1 STATE OF FLORIDA
CONSTITUTION REVISION COMMISSION
DATE: February 10, 1998
TIME: Commenced at 9:00 a.m.
11 Concluded at 4:50 p.m.
12 PLACE: The Senate Chamber
13 Tallahassee, Florida
14 REPORTED BY: KRISTEN L. BENTLEY
JULIE L. DOHERTY, RPR
15 MONA L. WHIDDON
16 Division of Administrative Hearings
The DeSoto Building
17 1230 Apalachee Parkway
2 W. DEXTER DOUGLASS, CHAIRMAN
3 CARLOS ALFONSO
CLARENCE E. ANTHONY
4 ANTONIO L. ARGIZ (EXCUSED)
JUDGE THOMAS H. BARKDULL, JR.
5 MARTHA WALTERS BARNETT
6 ROBERT M. BROCHIN
THE HONORABLE ROBERT A. BUTTERWORTH
7 KEN CONNOR
CHRIS CORR (EXCUSED)
8 SENATOR ANDER CRENSHAW
9 MARILYN EVANS-JONES
BARBARA WILLIAMS FORD-COATES
10 ELLEN CATSMAN FREIDIN
11 WILLIAM CLAY HENDERSON
THE HONORABLE TONI JENNINGS
12 THE HONORABLE GERALD KOGAN (EXCUSED A.M.) (PRESENT P.M.)
13 JOHN F. LOWNDES
STANLEY MARSHALL (EXCUSED)
14 JACINTA MATHIS
JON LESTER MILLS
15 FRANK MORSANI
ROBERT LOWRY NABORS
16 CARLOS PLANAS (PRESENT A.M.) (EXCUSED P.M.)
JUDITH BYRNE RILEY
17 KATHERINE FERNANDEZ RUNDLE
SENATOR JIM SCOTT
18 H. T. SMITH
ALAN C. SUNDBERG
19 JAMES HAROLD THOMPSON
PAUL WEST (EXCUSED)
20 JUDGE GERALD T. WETHERINGTON (ABSENT)
STEPHEN NEAL ZACK
IRA H. LEESFIELD (ABSENT)
22 LYRA BLIZZARD LOGAN (ABSENT)
2 SECRETARY BLANTON: All unauthorized visitors, please
3 leave the chambers. All Commissioners indicate your
4 presence. Quorum call, quorum call. All Commissioners
5 please indicate your presence.
7 SECRETARY BLANTON: Quorum call, quorum call. All
8 Commissioners indicate your presence. All Commissioners
9 indicate your presence. Quorum present, Mr. Chairman.
10 (Quorum taken and recorded electronically.)
11 CHAIRMAN DOUGLASS: Come to order, please. If
12 everybody would take their desk, please. Commissioner
13 Morsani, we are jealous.
15 CHAIRMAN DOUGLASS: All right. If you will come to
16 order. The opening prayer today is by Reverend Ray
17 Hanselman, Youth Pastor at Calvary Chapel Church in
18 Tallahassee, Reverend Hanselman.
19 REVEREND HANSELMAN: Heavenly Father, today I am
20 humbled as I stand in the presence of these, your people,
21 people who have been chosen by you to lead this state. So
22 I honor you and I glorify your Holy name in the presence
23 of them all. And today, Lord, our prayer is for wisdom.
24 Lord, there is a great deal of knowledge among these
25 people, and I pray that wisdom would be abundant, the
1 ability to use the knowledge that they have.
2 Lord, I pray that you would give them the
3 understanding that they need, the cooperation that they
4 need to bring about the revisions to this Constitution
5 that you, that you would require. And, Lord, I ask that
6 you would bless each of them as they work together
7 administering all of the plans and the actions that need
8 to be done for this state. Lord, I ask that you would, as
9 your word says, give them great wisdom. And Lord that
10 where there would be strife and envying, Lord, that it
11 would be removed. And that it would be something that
12 could be worked with among them as they cooperate together
13 administering the laws for this state.
14 I pray for each of the governing officials in their
15 homes and their family lives, Lord, that as they are
16 involved in things that are outside of these chambers that
17 those things can be used also to help in your plan and
18 your will. And, Lord, I pray as each of them discover in
19 their own hearts what it is for you that they will do
20 because we know that we will all stand before you one day
21 and give account of the things that are done even in these
22 chambers. And I pray, God, that there will be a humility
23 among everyone that they could administer the truth, the
24 truth that you have for this state. And we will ask all
25 of these things in Jesus' name, amen.
1 CHAIRMAN DOUGLASS: I would like to ask Commissioner
2 Barton to come forward and lead us in the pledge of
3 allegiance to the flag.
4 (Pledge of Allegiance.)
5 CHAIRMAN DOUGLASS: Good morning. We are a little
6 shorthanded this morning. People are a little late
7 getting in. If you haven't pushed the button, push it.
8 Commissioner Thompson, I see you got him, all right.
9 Okay. Commissioner Barkdull?
10 COMMISSIONER BARKDULL: Mr. Chairman, Members of the
11 Commission, you have on your desk a yellow folder which we
12 will go into after we complete the matters that are in the
13 gold folder which we used yesterday. There are committee
14 meetings that will be held at, one at noon today on the
15 Article V costs. I don't have the room number, but prior
16 to adjournment this morning we will have it, and I'll give
17 it to you.
18 The Select Committee on Sovereign Immunity will meet
19 this afternoon at 5:00 in Room 317. I understand Style
20 and Drafting is considering a meeting at 8:00 a.m. in the
21 morning; is that correct, Chairman Mills?
22 COMMISSIONER MILLS: (Nods affirmatively.)
23 COMMISSIONER BARKDULL: And we will give you the room
24 number on that before the close of the day this afternoon.
25 I will lecture again that you have mail over in the
1 conference room in the CRC offices on the ground floor of
2 the historic Capitol. I know some of you may have had the
3 same problem I had last night, you couldn't get in the
4 building. But hopefully we will have that open tonight if
5 you want to go by and pick up your mail; it is on the
6 conference table in the conference room.
7 And that concludes the report, Mr. Chairman, and we
8 are ready to proceed on to the special order.
9 CHAIRMAN DOUGLASS: All right. Before we do that, I
10 might tell you that -- go ahead.
11 COMMISSIONER BARKDULL: There will be a Rules and
12 Calendar Committee or Administration Committee tomorrow
13 afternoon at 5:00 upon adjournment, and I will give you
14 the room number when we get it.
15 CHAIRMAN DOUGLASS: The Article V Committee meets at
16 Room 317 in the Capitol at noon, I am informed by the
17 executive director, Commissioner Barkdull. I'd also like
18 to inform the Commission that Commissioner West had a
19 pancreatic attack last evening and had to fly home so he
20 will not be with us. He wasn't in very good shape, I
21 don't think. And Commissioner Marshall is ill this
22 morning, and he will be receiving medical treatment but
23 hopes to be in this afternoon. Commissioner Kogan is not
24 ill but he is excused because of a special meeting at the
25 court, and he had asked that we defer action on one of the
1 items when we get to it until he is present.
2 I think Commissioner Brochin is here but indicated
3 that he would be in late; is that correct?
4 COMMISSIONER BARKDULL: Yes, Mr. Chairman.
5 CHAIRMAN DOUGLASS: All right. Is there anybody else
6 that has been excused? Commissioner Butterworth will be
7 excused later because he has to go to a Cabinet meeting,
8 but we will do the best we can with those of us that are
9 here. The first item on reconsideration, Commissioner
10 Barnett, I think you had a request on that. Commissioner
12 COMMISSIONER SCOTT: I would like to, on the welfare
13 of the commission, make a comment.
14 CHAIRMAN DOUGLASS: Certainly.
15 COMMISSIONER SCOTT: I am concerned about what
16 happened yesterday, regardless of how anybody feels about
17 the issue, the fact that matters on reconsideration is an
18 order of business but is a special and continuing order,
19 and on a matter that we have twice discussed at length,
20 had some considerable controversy, some bruised feelings
21 about, by ten minutes after 9:00 yesterday had been taken
22 up and voted on by the commission before everyone had
23 gotten -- was able to get here.
24 And one of the persons that was not able to be here
25 was Senator Jennings who had specially asked at the last
1 meeting that this matter be reconsidered or taken up at a
2 different time and she was in the building and left.
3 So I would suggest that matters on reconsideration
4 are a continuing order of business and especially if it is
5 something controversial that we should allow each other
6 some courtesy like we do in legislative bodies in taking
7 those matters up.
8 CHAIRMAN DOUGLASS: I don't think we have any problem
9 with that. It is my understanding everybody was here
10 yesterday morning. Commissioner Barnett?
11 COMMISSIONER BARNETT: I am on another matter,
12 Mr. Chairman.
13 CHAIRMAN DOUGLASS: Well, I think --
14 COMMISSIONER BARNETT: On reconsideration on --
15 CHAIRMAN DOUGLASS: You wanted to make that
16 continuing and not take it up, as I understand it.
17 COMMISSIONER BARNETT: Yes, if it is appropriate, I'd
18 like to just have this, this was reconsidered at the last
19 minute yesterday afternoon. Frankly, I'm not prepared,
20 really to speak to it today. I believe there may be some
21 amendments. I'd like to talk with Commissioner
22 Butterworth about it. So just to -- I think it would
23 benefit the commission if we take the time to do that.
24 CHAIRMAN DOUGLASS: Without objection it will be put
25 on the calendar of continuing order before it's brought
1 up --
2 COMMISSIONER BARNETT: Excuse me, this is the issue
3 that we discussed last week dealing with amendment to
4 Article I, the Declaration of Rights to add language that
5 no punishment will be administered that's arbitrary,
6 capricious, or discriminatory.
7 CHAIRMAN DOUGLASS: All right. Without objection
8 that will be left pending on the motion. All right. The
9 next order of business on the calendar is proposal No. 155
10 by Commissioner Scott.
11 COMMISSIONER SCOTT: Commissioners, what this
12 provides is that single member districts --
13 CHAIRMAN DOUGLASS: Gentlemen, I forgot to have him
14 read it.
15 READING CLERK: Proposal 155, a proposal to revise
16 Article III, Section 16A, Florida Constitution; providing
17 for the Legislature to apportion the state into
18 single-member senatorial districts of contiguous territory
19 and single-member representative districts of contiguous
21 CHAIRMAN DOUGLASS: Senator Scott moves this be
22 withdrawn from the Committee on Legislative and we are
23 proceeding now on the proposal.
24 COMMISSIONER SCOTT: Very simple proposal. We always
25 had single-member districts, but about so many years ago,
1 I want to say 40 or 50 years ago, maybe less, this idea of
2 having multi-member districts where you have maybe five or
3 six House members, three, four senators, two, three, four
4 senators in a -- representing the same territory came
5 about. In 1982, as I told you yesterday, the Legislature
6 for the first time established single-member districts in
8 What that does -- however, the Constitution still
9 would allow multi-member districts. And what this puts in
10 the Constitution is the right for single member districts
11 for everyone. And the reasons for that are numerous. If
12 somebody has a question and wants to debate this, I'll be
13 happy to debate it. But one thing among other things is,
14 if you don't have single-member districts in there, then
15 you are ripe for discriminating against minorities by
16 encompassing, for example, Tampa Bay, all of it into a
17 four or five member Senate district, there will be no
18 district there and other instances throughout the state.
19 So this is very simple, puts into the Constitution
20 the right of -- or the requirement that the Legislature be
21 apportioned into single-member districts.
22 The same requirement was in the proposal yesterday
23 that was adopted on the Reapportionment Commission. Any
25 CHAIRMAN DOUGLASS: Commissioner Barkdull?
1 COMMISSIONER BARKDULL: Commissioner Scott, did I
2 understand you to say that this is the same provision that
3 was in the proposal that was adopted yesterday on
4 Reapportionment Commission?
5 COMMISSIONER SCOTT: Yes.
6 COMMISSIONER BARKDULL: Thank you.
7 CHAIRMAN DOUGLASS: Commissioner Barnett?
8 COMMISSIONER BARNETT: Just a couple of questions of
9 the sponsor. If it is in the proposal we adopted
10 yesterday, is the reason you want to do separately in the
11 event the commission, the Reapportionment Commission,
12 doesn't go forward that you want this as a freestanding
14 COMMISSIONER SCOTT: I think it is very important and
15 should be freestanding. It should be mandated in the
16 Constitution regardless of what happens to any other
18 COMMISSIONER BARNETT: Another question, this is the
19 current way that under the current Constitution we -- you
20 can and we do have single-member districts both for the
21 Senate and the House; is that correct?
22 COMMISSIONER SCOTT: That's correct.
23 COMMISSIONER BARNETT: So why the change if this is
24 already allowed in the Constitution? Give me some of the
25 reasons for the change.
1 COMMISSIONER SCOTT: Okay. Since you ask. One of
2 the concerns would be that the Legislature might be
3 apportioned with multi-member districts which would
4 deprive minorities of their access to the Legislature.
5 And this is -- there is particularly, I think, concern and
6 nervousness among the minorities about some of the things
7 that have been going on in this state and they and I feel
8 that we should have single-member districts in the
9 Constitution just like other important rights and freedoms
10 that people have. And I think that is very important that
11 it be in the Constitution so that if someone does get
12 tempted sometime in the future they could not do that.
13 Also, there are many other arguments or single-member
14 districts and these include better access, more effective,
15 closer to the people representation, and so forth. So
16 those are the reasons for this proposal.
17 CHAIRMAN DOUGLASS: Further discussion? Commissioner
19 COMMISSIONER NABORS: I was just getting up, I'll sit
20 back down.
22 CHAIRMAN DOUGLASS: Let the record reflect that
23 Commissioner Nabors got up.
25 CHAIRMAN DOUGLASS: If there is not any further
DIVISION OF ADMINISTRATIVE HEARINGS (850) 488-9675
1 discussion, does everybody understand what we are voting
2 on here? And understand that it is offered as
3 freestanding in the event that the provision that it is in
4 should not go forward. All right. Unlock the machines.
5 (Vote taken and recorded electronically.)
6 CHAIRMAN DOUGLASS: Has everybody voted?
7 READING CLERK: Twenty-five yeas, two nays,
8 Mr. Chairman.
9 CHAIRMAN DOUGLASS: All right. The next order of
10 business is Proposal 180 by Commissioner Brochin. Would
11 you read the proposal, please. It was disapproved by the
12 Committee on Finance and Taxation. Commissioner Langley?
13 COMMISSIONER LANGLEY: May I rise on the welfare of
14 the House?
15 CHAIRMAN DOUGLASS: Certainly.
16 COMMISSIONER LANGLEY: In 18 years in the
17 Legislature, I never did this, I kind of went my own way
18 as many of you know, but yesterday, and I think it is
19 appropriate that Commissioner Connor not be here,
20 sometimes we start at 9:00 and sometimes we start at 9:30
21 and sometimes we start at ten after. Yesterday the issue
22 of parental consent, which as I argued to reconsider may
23 end up parental notification before a teenager could have
24 an abortion, was brought up in this body when at least
25 Senator Crenshaw, Senator Scott, Senator Jennings, at
1 least those three that I know of, were not here; they were
2 in the buildings but were involved in other things at the
4 That vote failed 13 to 14, just to keep it alive.
5 And I know not where it goes, and as you well know, unless
6 we change and I hope we don't, it is going to take 22
7 votes to pass anything from this body. I would ask, beg,
8 and implore each of you as I move now to reconsider that
9 vote, realizing it takes unanimous consent, that we do
10 reconsider that vote and have an opportunity for a more
11 representative body to vote on it.
12 I don't know that it will ever get 22 votes even for
13 notification, but I don't think that Commissioner Connor
14 had a fair deal there. And I respectfully ask for
15 unanimous consent to reconsider that vote and that it be
16 made a matter on the calendar at a future date.
17 CHAIRMAN DOUGLASS: If that's true, then we probably
18 shouldn't take that up until Commissioner Kogan is here,
19 Commissioner Sundberg is here. Yesterday there were just
20 as many people on one side or the other that weren't here.
21 I voted for, it was 14 to 14 was the vote, and I cast the
22 vote for reconsideration in that matter.
23 And consequently, I don't know that -- and I want you
24 to know we have not started any later than 9:10 when we
25 are scheduled at 9:00 -- and we have tried to start at
1 9:00 but we can't get everybody here. We cannot delay the
2 commission because certain people are not present. And if
3 they are present and leave the chamber we cannot control
4 that either. Commissioner Henderson wasn't here for the
5 vote, he was in the building. And there were two or three
6 others that I counted afterwards.
7 I don't think the vote would have come out any
8 different, Commissioner Langley, but I'm not against
9 considering anything that this body wants to consider as a
10 whole. But if we are going to do this on unanimous
11 consent, then in the spirit of what you said, you should
12 let the other people who did oppose this be present as
13 well and they have been excused this morning.
14 COMMISSIONER LANGLEY: Well --
15 CHAIRMAN DOUGLASS: All right. I'll be happy to put
16 it on the calendar for matters on reconsideration again
17 and then you can ask for the unanimous vote.
18 COMMISSIONER LANGLEY: Mr. Chairman, I know rules
19 don't mean a lot in this body but the rules allow me to
20 make that motion any time I'm recognized.
21 CHAIRMAN DOUGLASS: That's correct. You made a
22 motion for unanimous consent --
23 COMMISSIONER LANGLEY: And it is not supposed to be
24 debated by the Chair.
25 CHAIRMAN DOUGLASS: I am not debating, I voted for
1 the motion. I am explaining to you that your statement
2 that if we start at different times and if people aren't
3 here for that purpose is not correct. And that's the only
4 thing I was trying to tell you. Now, your motion is to
5 waive the rules by unanimous vote to reconsider the motion
6 by which we reconsidered; is that correct?
7 COMMISSIONER LANGLEY: Yes, sir, and that it just be
8 placed on matters for reconsideration at another time.
9 CHAIRMAN DOUGLASS: Very well, does everybody
10 understand his motion? It takes a unanimous consent
11 without objection the motion is granted. All this is for
12 is to place it on the calendar. He's not -- this
13 doesn't -- it doesn't debate the reconsideration, it
14 doesn't debate anything, it is just to put it on the
15 calendar; am I right, Commissioner Langley? This doesn't
16 do anything but put it on the calendar. It doesn't have
17 any definitive action. Commissioner Riley?
18 COMMISSIONER RILEY: I am yet again confused. Every
19 time this issue comes up some change in the rules seems to
20 take place. Like a bad penny, it keeps coming back. And
21 I am certainly willing to bend over backwards to be equal
22 and fair but I'm confused. We now have to vote
23 unanimously to put it up just to reconsider it, and we can
24 vote that now?
25 CHAIRMAN DOUGLASS: That's correct.
1 COMMISSIONER RILEY: But yet you are saying, Okay --
2 are you just -- is that it, you think we have voted? I'm
4 CHAIRMAN DOUGLASS: Commissioner Langley, I think I
5 fully understand what you are doing.
6 COMMISSIONER LANGLEY: If one person in this body
7 objects to that, it is dead. And if Ms. Riley is
8 objecting, then the motion fails.
9 COMMISSIONER RILEY: In which case I do object.
10 CHAIRMAN DOUGLASS: I'd like to suggest, Commissioner
11 Riley, for the good of the body that you let it go on the
12 calendar and that we unanimously grant -- I will argue for
13 your motion, Commissioner Langley. Commissioner Mills?
14 COMMISSIONER MILLS: Well, Mr. Chairman, on the
15 welfare of the body, we have tried to work together; this
16 doesn't mean that people agree. If I understand, as
17 flexible as we have been about the rules, if Commissioner
18 Langley's motion is to try to design this motion, if it's
19 to take up at a future time a motion to reconsider, which
20 at that time would require unanimous consent, is that what
21 you are suggesting? You are making a motion to
22 reconsider --
23 CHAIRMAN DOUGLASS: Commissioner Langley?
24 COMMISSIONER MILLS: -- at a future time.
25 COMMISSIONER LANGLEY: The rules say that once a
1 motion for reconsideration has been voted upon it is no
2 longer available to the body except by unanimous consent.
3 I have moved to reconsider it at a time to be set by the
4 Chair on the calendar and for that motion to ever come up
5 again, it would take unanimous consent for my motion. And
6 I ask for the welfare of the House, I mean, we've all bent
7 over a lot to help other people in this thing and I ask,
8 beg, plead that nobody object and that this be back before
9 the House at a different time.
10 CHAIRMAN DOUGLASS: Now is everybody clear on this?
11 This is not a vote on whether or not we grant
12 reconsideration. What it does, I think I am right, is it
13 puts it back on the calendar and it will be set for a time
14 certain and then we will take up the issue and vote on
15 reconsideration; is that correct? Is that what you want
16 to accomplish?
17 COMMISSIONER LANGLEY: Yes.
18 COMMISSIONER BARNETT: And that point, Mr. Chairman,
19 it will take a unanimous vote or a majority vote?
20 CHAIRMAN DOUGLASS: It will take a majority vote.
21 COMMISSIONER BARNETT: So in order for this to go
22 on -- back on the calendar requires a unanimous vote?
23 CHAIRMAN DOUGLASS: That's correct. And what I
24 suggested was in light of the comments and for the, which
25 were made for the good of the order by Commissioner Scott,
1 and then the motion by Commissioner Langley, that we grant
2 that unanimous consent and we will set it for a time
3 certain. Is that what you understood, Commissioner Mills?
4 Okay. Commissioner Ford-Coates?
5 COMMISSIONER FORD-COATES: I just have one question.
6 If this motion is to take this matter up at a time
7 certain, I guess I'm having a real hard time understanding
8 why this is any different than what happened two weeks
9 ago, which was a motion for reconsideration, the agenda
10 was set, we knew we were going to be here at 1:00. We
11 knew that the matters of reconsideration, the first
12 matter, was 107, it is in our book. I got letters and
13 calls all week and I was here at 1:00 because I knew that
14 issue was going to come up. I don't see what the
15 difference is unless the next time people who were late
16 are going to be here. And I'm having a hard time thinking
17 that's a difference in the process. I think that when we
18 schedule something, we should be here.
19 CHAIRMAN DOUGLASS: Commissioner Smith?
20 COMMISSIONER SMITH: Thank you, Mr. Chairman. I rise
21 to speak for the good of the order. I had been lobbied,
22 educated, about this issue all week and I told various
23 people that I intended to be here at 1:00 sharp to vote
24 for reconsideration, out of the spirit of collegiality. I
25 was voting against consent, I was on the fence on
1 notification. Unbeknownst to me, yesterday I had an
2 emergency hearing and I couldn't be here, but I knew
3 without a doubt hearing from the rules chairman as I was
4 walking out in January, that this would be the first item
5 on the agenda. So technically speaking, technically
6 speaking, we are all on notice of that.
7 However, I believe that we should allow this matter
8 to go forward and be placed on the agenda. Technically
9 those who oppose it are right, there is no question about
10 that. I believe, based upon the votes we have had, those
11 who oppose it can pretty much understand and have a
12 feeling of where this thing is going to eventually come
13 out. And I would hope, I would hope that we will not, we
14 will not derail the spirit of cooperation that we have had
15 thus far understanding, and I don't take it as a threat, I
16 take it as an appeal for cooperation, that really to move
17 this thing forward is going to take all of us working
19 Commissioner Riley, you and I have voted the same on
20 every issue except one and that was medical marijuana and
21 I wish I was with you on that one. And I felt bad about
22 it because we were together in committee. And I would
23 appeal to you, you are right, but sometimes it is like
24 walking against the light, sometimes right is not the only
25 basis upon which to make a decision and I appeal to you to
1 stay right, but to allow this to be debated and put it on
2 the agenda so we can finally take -- and we'll take it up
3 one last, last, last final time. It is like lawyers, we
4 have got one more question. This is the last, last, last
5 time we are going to take it up and let's deal with it. I
6 appeal to you to do that.
7 CHAIRMAN DOUGLASS: Do we really need to debate this?
8 I think we have all recommended that are involved in the
9 administration that we grant this motion. Everybody has a
10 right to vote how they want to but it has been very well
11 stated at least not only by Commissioner Smith but others
12 that even though we don't agree with necessarily some of
13 the statements that were made about meetings and notice
14 and all of that, the question still remains that in order
15 to be a collegial body that there has been a personal
16 request that we do this.
17 And I recommend as the Chair that we do that and it
18 will go on the calendar and it then will be set for a time
19 certain. Commissioner Freidin?
20 COMMISSIONER FREIDIN: Mr. Chairman, now I'm confused
21 because it is my understanding that with unanimous consent
22 this can go on the calendar to be reconsidered, but it is
23 also my understanding that there has been an objection.
24 So I don't understand what we are doing here. I'm
1 CHAIRMAN DOUGLASS: We haven't voted yet.
2 COMMISSIONER FREIDIN: Well, I heard Commissioner
3 Riley stand up and say that she objected.
4 CHAIRMAN DOUGLASS: Well she did then but there has
5 not been a vote, but we are going to take a vote as soon
6 as everybody is satisfied that they have said what they
7 need to say. If there are no further -- Commissioner
9 COMMISSIONER RILEY: Mr. Chairman, could we put this
10 off for a little bit and let us think about the process
11 rather than voting right now. I am willing to not object
12 and to withdraw my objection, but I am not real favorably
13 leaning in that direction. I would like to have a few
14 minutes and maybe at the beginning after lunch we could
15 have this vote again.
16 CHAIRMAN DOUGLASS: Without objection, I'll give you
17 a few minutes. Commissioner Mills?
18 COMMISSIONER MILLS: Mr. Chairman, I think that what
19 you need to do is have a few minutes to describe precisely
20 what will happen at a given time. I think if the idea is
21 we want to have people present, we want to debate the
22 issues on the merits, people feel very strongly about
23 this, I suspect if you had an outcome the other way you
24 would have another motion to reconsider the other way.
25 What we need to do, I suppose, is whatever the consequence
1 of Commissioner Langley's is, we have to precisely define
2 what we are going to do. If that is at 2:00 we are going
3 to spend half an hour debating the merits of parental
5 CHAIRMAN DOUGLASS: We are going to give Commissioner
6 Riley here a few minutes. And it is a little early for
7 recesses but we will take one.
8 COMMISSIONER BARNETT: I want to raise the personal
9 income tax, Mr. Chairman, I feel passionately about it. I
10 could be persuaded.
12 CHAIRMAN DOUGLASS: Commissioner Barnett, you will
13 have to get somebody that was absent to raise it.
14 COMMISSIONER BARNETT: I'm raising it right now to
15 put people on notice that I could be persuaded here.
16 CHAIRMAN DOUGLASS: If we don't have anything to come
17 out of this, we have the question of attendance that
18 arises here.
19 (Brief recess.)
20 CHAIRMAN DOUGLASS: Come to order, please.
21 Commissioner Riley.
22 COMMISSIONER RILEY: Mr. Chairman, you have heard of
23 a "come to Jesus meeting;" I had a come to Langley
24 meeting. There is no comparison, I don't think. Except I
25 will withdraw my objection.
1 CHAIRMAN DOUGLASS: Then by unanimous consent, this
2 is placed on the calendar for reconsideration. Am I
3 right, Madam Secretary? Commissioner Barkdull.
4 COMMISSIONER BARKDULL: Mr. Chairman, in light of
5 that announcement, I would like to say it, and I'm going
6 to suggest to the Rules Committee that this be scheduled
7 for 1:00 p.m. tomorrow.
8 CHAIRMAN DOUGLASS: Okay. You do that. As a
9 suggestion, that will be taken and noted. All right.
10 Commissioner Anthony?
11 COMMISSIONER ANTHONY: Members of the Commission,
12 Mr. Chairman, I'm going to ask as well for a point of
13 personal privilege. The last week in February -- this
14 Saturday, something happens in my life that I have been
15 waiting on for a long time, and sovereign immunity is very
16 important to me as many of you know. And I don't think
17 that I will be able to be here the last week in February
18 to discuss that issue. And I am requesting consideration
19 of the commission on either tomorrow afternoon or Thursday
20 morning. Hopefully the Select Committee on Sovereign
21 Immunity will have proposals that we can calendar, I think
22 there are three proposals that we can calendar either
23 tomorrow afternoon after they meet tonight or at latest
24 Thursday morning because that is a very important issue
25 and do I apologize but I hope that the Members of the
1 Commission will understand.
2 CHAIRMAN DOUGLASS: That's a suggestion to the Rules
3 Committee and it will be honored if it's at all possible.
4 COMMISSIONER ANTHONY: Mr. Chair, if --
5 CHAIRMAN DOUGLASS: You have to wait until they
7 COMMISSIONER ANTHONY: Yes. If it is not, I want the
8 commission to be aware that I will ask consideration on a
9 point of personal privilege under the 10-minute rule to
10 make statements in reference to sovereign immunity if no
11 proposals are sent out. So I encourage, if you will,
12 their committee to do their work in diligence. Thank you,
13 Mr. Chair.
14 CHAIRMAN DOUGLASS: I think that will probably work
15 for you to be here. All right. Proposal 180 is where we
16 were. Did you read it? All right. We are on Proposal
17 180. Please read it. Commissioner Brochin, and it was
18 disapproved by the Committee on Finance and Tax.
19 READING CLERK: Proposal 180, a proposal to revise
20 Article VII, Section 4, Florida Constitution; providing
21 that after a specified date, the Save-Our-Homes assessment
22 limitation applies only to homestead parcels that have a
23 just value of more than a specified amount, requiring
24 provision to be made by general law for the coordination
25 of this limitation with other assessment limitations set
1 forth in Article VII, Section 4, Florida Constitution,
2 allowing provision to be made by general law for adjusting
3 the maximum just value to accommodate inflation.
4 CHAIRMAN DOUGLASS: All right. Commissioner Brochin,
5 you are recognized on the proposal.
6 COMMISSIONER BROCHIN: Okay. This deals with an
7 amendment to Article VII, Section 4 of the Constitution
8 which has been affectionately referred to as
9 Save-Our-Homes. It was, quote, disapproved by the
10 committee, but I should point out it was a 3-3 vote.
11 Under our rules, that means it's unfavorable. Perhaps I
12 should take a moment to explain the mechanics of this
13 Save-Our-Homes amendment.
14 First of all, what it required was that in January of
15 1994, all of the property was assessed at a value known as
16 a just value for property, that is not the same as a fair
17 market value, it is actually a little bit less. Once the
18 homestead property is locked in at a just value, it can
19 not be changed or reassessed to a new just value until
20 that property is sold in the future. The increase of
21 property, then, in the interim from the time of 1994 until
22 whenever that property is sold is done in one of two ways.
23 It can either go up by 3 percent, or it can go up by a
24 number tied to the CPI, Consumer Price Index, whichever is
1 So the effect is that, over the years, property
2 values may go up 100 percent, 200 percent, while the tax
3 or the assessment on that home will only go up 3 percent
4 or tied to the CPI.
5 Now, we had a fairly detailed discussion yesterday
6 about Florida's narrow tax base and it remains narrow
7 today in the sense that property taxes are, in Florida,
8 one of the largest source of revenues short of the sales
9 tax. What that amendment did when it was passed by a
10 citizen initiative is begin to have assessments on homes
11 that are really not related to the value of the property
12 or the fair market value of the property, but rather
13 arbitrarily tied to whether or not you sell your home in
14 the future, at which time it would be reassessed to a just
15 value. It then just arbitrarily marks it up 3 percent or
16 ties it into the CPI.
17 Now, cognizant of the fact that this was a citizen's
18 initiative and cognizant of the fact that it passed as a
19 citizen's initiative, this proposal is a modest, and I
20 would emphasize, a modest adjustment or revision to that
21 particular amendment. I would point out that the
22 amendment was passed in 1992; it was passed, I believe, by
23 53 percent in favor, 47 percent against. And county-wise,
24 I believe, 34 counties voted in favor of this amendment,
25 while 33 counties voted actually against it in 1992.
1 Now, what does this particular proposal do? It takes
2 a $200,000 assessed home and higher and exempts it out of
3 this restricted assessment of just value. Because what
4 happens is, and what has happened is, and one of the
5 reasons it's appropriate is, that we can look and revisit
6 it now that we have seen it for four years, is to see what
7 the affect is. And the affect is clear, those that get
8 the most expensive homes, those homes that appreciate the
9 greatest in value are recognizing the greatest tax savings
10 which is really not -- was the intent of the amendment in
11 the first place.
12 Just to know, in 1994 and in 1995 alone, $6 billion
13 worth of assessed value came off of the tax roles as a
14 result of Save-Our-Homes. Now, what is going to happen in
15 the future is local governments, as this inequity
16 increases, have no other choice but to raise the Mills,
17 millage rate to make up for the difference. And the staff
18 analysis, if you read it, very articulately points that
19 out. When it raises the millage rate to make up this
20 difference, it will affect those in the lower valued
21 income homes and the nonhomestead properties.
22 Again, further narrowing that tax base, further
23 putting, I believe, an inequitable burden on people that
24 it shouldn't be. Statistically, homes that are valued
25 between $200,000 and $350,000 in the state of Florida
1 represent about 4.3 percent of the homes in the state, but
2 it does represent 30 percent of the tax breaks given to
3 these particular properties.
4 So, I would urge this as, again, a modest adjustment
5 and a modest revision to an amendment that, I believe, in
6 1992 was very well intended. It was well intended so that
7 government, local government, could not systematically
8 increase the values of those assessed properties year in
9 and year out, and yet afford those who owned property some
10 assurance that it won't go up more than 3 percent or the
11 CPI. That is well intended.
12 And this amendment will keep in place for 95,
13 96 percent of the homes, that specific intent, that
14 specific insurance that up to that point in time their
15 homes will not be raised more than this 3 percent or CPI
16 index but allow local governments some flexibility to
17 assess them at their just value. And you should recognize
18 that it is not again a tax increase. It is simply
19 allowing them to assess the property at just value and tax
20 them on that just value, which is really the whole
21 centering source of a property tax. So that is what this
22 proposal is about. And I urge you to pass it.
23 (Commissioner Thompson assumes the Chair.)
24 COMMISSIONER THOMPSON: Further debate? Commissioner
25 Scott, you are recognized.
1 COMMISSIONER SCOTT: The committee voted, I started
2 to say unanimously, but Martha Barnett, the sponsor of the
3 personal income tax, voted with Commissioner Brochin on
4 this proposal. Save-Our-Homes, the property appraiser, I
5 think, is from Lee County that did this, put this on the
6 ballot, showed up and talked at the meeting. And, I mean,
7 he explained and we all kind of understand and I
8 understand it real well, being from South Florida and most
9 of the coastal areas will understand it, that people
10 bought homes for 50,000 or 100,000 or 80,000 and now they
11 are worth 4- or 500,000, and they are retired. And
12 Save-Our-Homes says that you don't tax their property
13 except -- you can increase it like 3 percent until they
14 dispose of it or they pass away, and, you know, then it
15 can be assessed at the full value.
16 What Commissioner Brochin is doing is saying, Well,
17 200,000 is the cut off. But the trouble with that is, in
18 most of the coastal areas, homes -- I mean, a home that I
19 lived in for 20 years, that I bought for 45,000, I sold
20 for 200 ten years ago. Another property appraiser showed
21 up from Franklin County and he pleaded and made the case
22 that Apalachicola, that the values have gone up and exceed
23 far more than 200,000 and yet people are living there and
24 working there at a scale that would suit a $40,000 home
25 for taxation, but because of the explosion in values.
1 So, do whatever you like, but I think is one more --
2 and one other thing, since I'll be the messenger, this is
3 not me, I don't care what you do particularly, but I will
4 tell you that this property appraiser, told us, and
5 Commissioner Brochin will tell you, that he said I've got
6 all the -- in my computer, everybody that signed this
7 petition for Save-Our-Homes and if this goes on the
8 ballot, he's going to reactivate and then there will be no
9 leeway, basically threat, whatever you take it as, a
10 warning that he made, there would be no leeway for
11 adjustment for inflation. But I don't think that's a
12 reason; I hear threats like that all of the time in the
14 But on its merits here, I just think to modify that,
15 when the people did speak, it was not a huge majority,
16 unlike some of the issues that were brought up like term
17 limits and whatever, but it was voted in fairly recently
18 for constitutional change, and so I would suggest that you
19 don't want to put this on the ballot as a part of the
20 product of this commission.
21 COMMISSIONER THOMPSON: Further debate? Commissioner
23 COMMISSIONER BARNETT: Thank you, Mr. Chairman.
24 Since Commissioner Scott has implicated me in this debate,
25 I thought I would defend myself momentarily and tell you
1 why I supported Commissioner Brochin's proposal. And in
2 order to do that, there's not a better explanation for it
3 than exists in the staff analysis, so let me read you a
4 few things contained in the staff analysis. It's on
5 Page 2. A study of the annual impact of Save-Our-Homes
6 indicates that 40 percent of Florida homeowners will see
7 no tax savings from the amendment. Forty percent see no
8 tax savings from the amendment. Eight percent of all tax
9 benefits will go to the 20 percent of Florida's homeowners
10 and most of these benefits will go to owners of the
11 expensive homes.
12 Homesteads valued between 200- to $350,000 comprise
13 approximately 4.3 percent of all homestead parcels in
14 1995. A simulation model predicts that they will receive
15 about 30 percent in bill reductions over the next 20
16 years, contrasted with this are the tax savings for
17 homesteads valued under $100,000. Seventy percent of all
18 homesteads fall into this category. They will receive
19 about 10 percent in tax savings over the same time period.
20 This proposal to me is a tax equity provision and
21 really implements what I think were the sentiments of the
22 people of the state when they voted for Save-Our-Homes.
23 And that was designed for people to not have to pay huge
24 property taxes on appreciated value. People who have
25 expensive homes will still get a benefit from this, just
1 not as much as it will under the law as it currently is in
2 the Constitution. The real benefit, if you adopt this, is
3 you will spread out, you will spread out some of this ad
4 valorem tax savings, the impact of that, to people in the
5 lower income level, because what's happening now is the
6 millage rate is going up and they are paying more taxes.
7 So, while they may think that there's some benefit,
8 it's really a net, net loss to many people. And that's
9 why you see 40 percent are getting no benefit from the
10 Save-Our-Homes. And I felt this was a good tax equity
11 provision that really did capsulize the original intent of
12 the proposal.
13 COMMISSIONER THOMPSON: Further debate? No
14 amendments on the desk. Commissioner Lowndes.
15 COMMISSIONER LOWNDES: Yes, I would like to oppose --
16 rise to oppose this provision. To me, it is kind of a
17 populous provision. I voted against it in the Tax and
18 Finance Committee, and I think that it is a deal where
19 it's okay to tax the rich people so, everybody would vote
20 for that, I just don't think that's the kind of spirit
21 that we need, and it kind of goes philosophically against
22 what I believe in, to tell you the truth, but I think that
23 the real crux of this is, and here I live in Winter Park,
24 and there's a lot of houses in Winter Park which were
25 built in the '60s and '70s and people bought them for 75-,
1 $100,000, and now the lots that these houses are on are
2 worth, you know, $200,000 or so. An awful lot of these
3 people are retired people living on fixed incomes and
4 their homes have appreciated beyond the $200,000 figure.
5 I think that those are the people that really should
6 be protected by the Save-Our-Homes provision and those are
7 the people who we are going to take out of the
8 Save-Our-Homes provision. So I think it is a bad idea. I
9 think it's a bad philosophy and I would vote against it.
10 COMMISSIONER THOMPSON: Further debate? Commissioner
11 Brochin to close.
12 COMMISSIONER BROCHIN: First, let me just clarify one
13 thing. If you bought a home in 1965 and it appreciated
14 all the way to 1994, that home was assessed in January of
15 1994 to a just value. So, if you bought a $75,000 home in
16 1965 and in 1994 it was valued at $500,000, you are today
17 paying an assessed value on the $500,000. It is really a
18 forward looking proposal. And the reason it is a forward
19 looking proposal is it is an effort to spread out or tax
20 base, which is a theme in Florida's tax system that needs
21 some significant addressing, which we are attempting to do
22 here, constitutionally. And unfortunately,
23 constitutionally, we are attempting to take efforts to
24 spread out this tax base. It's fine today and you don't
25 hear the hew and cry, to use an off-sided term, from the
1 people because Florida is doing well today. We are very
2 flush in our economy.
3 But we are about revising the Constitution to prepare
4 ourselves not for today or tomorrow, but for the next 20
5 years. And to constitutionally strap another tax base on
6 homes that are going to be worth hundreds and hundreds and
7 hundreds of thousands of dollars and not being paid a fair
8 tax on the value of that home, I would suggest is short
9 sided. The reason property taxes are critical to the
10 operation of the state of Florida is because we don't have
11 an income tax. And we have a sales tax and we have a
12 property tax. If that's the way we go, my God, we ought
13 to at least allow the taxing of that property to be
14 assessed on its value. That is the whole concept. You
15 have the ability to pay because the property is valued at
16 that amount and you pay a fair share based on that amount.
17 And as Commissioner Barnett pointed out, the effect
18 of this is that those with the wealthy homes are getting
19 the huge tax savings where those with the less expensive
20 homes and the homes that aren't inflating as much are
21 getting no savings and thus are going to be called upon to
22 make up the difference. So, I still think it is a modest
23 proposal, but one well worth our consideration.
24 COMMISSIONER THOMPSON: And so the question recurs on
25 passage of Proposal No. 180. The Secretary will unlock
1 the machine and the members will proceed to vote.
2 (Vote taken and recorded electronically.)
3 COMMISSIONER THOMPSON: All members voting. All
4 members voted? Secretary will lock the machine and record
5 the vote.
6 READING CLERK: Seven yeas, 19 nays, Mr. Chairman.
7 COMMISSIONER THOMPSON: The measure fails to pass.
8 Take up and read the next proposal.
9 READING CLERK: Proposal 91, a proposal to revise
10 Article VII, Section 4, Florida Constitution; providing
11 for certain pollution control devices to be classified by
12 general law and assessed solely on the basis of character
13 or use.
14 COMMISSIONER THOMPSON: Commissioner Hawkes, you are
16 COMMISSIONER HAWKES: I would like to TP this,
18 COMMISSIONER THOMPSON: Show that TP'd without
19 objection. Take up and read the next proposal. That is
20 184; 184 is not before us at this time. Okay. Do you
21 want to take up -- wait a minute, it's on the way. Is
22 this 184 now? Is the amendment distributed? Has it been
23 distributed? Okay. Read Committee Substitute for
24 Proposal 184.
25 READING CLERK: Proposal 184, a proposal to revise
1 Article VI, Section 1, Florida Constitution; providing
2 that the Legislature shall prohibit certain conduct in
3 connection with elections.
4 COMMISSIONER THOMPSON: Okay. Commissioner Rundle,
5 you are recognized.
6 COMMISIONER RUNDLE: We are offering this as a
7 substitute to the pending amendment which was filed, I
8 guess, the last time we met. And basically, what this
9 language does, and I'm sorry Commissioner Mills isn't
10 here, but what we were trying to do was get to the
11 behavior that's --
12 COMMISSIONER THOMPSON: Commissioner Rundle, I'm
13 advised by the Secretary, if you will hold on for a minute
14 and let us read.
15 COMMISIONER RUNDLE: Okay.
16 COMMISSIONER THOMPSON: What we have done is
17 previously, we have temporarily passed this Proposal 184.
18 It had a pending amendment. Now, Commissioner Rundle and
19 others have worked out a substitute for that pending
20 amendment which is going to be a strike everything and
21 insert. So the new proposed amendment will be the
22 proposal. So let's read that at this point. We'll take
23 that up and then when you're explaining, you'll be
24 explaining --
25 COMMISIONER RUNDLE: I apologize, I thought he had
1 read it.
2 COMMISSIONER THOMPSON: Okay. Read the amendment.
3 READING CLERK: By Commissioners Rundle, Freidin, and
4 Mills, CRC amendment, delete everything after the
5 proposing clause and insert lengthy amendment.
6 COMMISSIONER THOMPSON: Okay. Commissioner Rundle,
7 you are recognized now. And I guess everybody has this on
8 their desk available and before them. Hearing nobody
9 objecting to it, go ahead.
10 COMMISIONER RUNDLE: Do you want to speak to it or do
11 you want me to --
12 (Off-the-record comment.)
13 COMMISSIONER THOMPSON: All right. Commissioner
14 Mills, are you going to explain this proposal?
15 COMMISSIONER MILLS: Mr. Chairman, I would just
16 say -- I think Commissioner Freidin will explain it, but
17 to explain why we are here, we have been trying to get
18 something that's simple and responds to the general
19 public's concern about corrupt practices during election
20 activities. And we have gone through long versions, short
21 versions, et cetera, I think Commissioner Freidin working
22 with the staff has come up with something that's clear and
23 understandable and Commissioner Freidin may wish to
24 explain it.
25 COMMISSIONER THOMPSON: Commissioner Rundle, for what
2 COMMISIONER RUNDLE: Well, Mr. Chairman, if I may,
3 I'm going to attempt to try to explain why -- how we got
4 to this language. You may recall that what we were
5 attempting to do was under the law, as I understand it, if
6 a public official commits a crime, the Governor has the
7 ability to suspend and ultimately remove a person from
8 office; however, that act has to be committed while they
9 are in office.
10 So, what we were attempting to do was to address the
11 behavior, which any bad behaviors, violations of election
12 laws that occur during the candidacy, that they should
13 also be subject to some kind of consequence, which we
14 believe should be removal or suspension, as if it had been
15 committed while they are in office. And the philosophy
16 being that you shouldn't benefit from those bad acts and
17 then become a public official and then be immune from
18 suspension or removal, so we came up with this language,
19 which we believe is clear, which we believe is fair. It
20 won't address the candidates that don't make it, but they
21 would still be subject to all of the election violations
22 that might occur.
23 COMMISSIONER THOMPSON: Commissioner Smith, for what
25 COMMISSIONER SMITH: I rise for a question.
1 COMMISSIONER THOMPSON: The lady yield to a question?
2 COMMISIONER RUNDLE: Absolutely.
3 COMMISSIONER THOMPSON: She yields.
4 COMMISSIONER SMITH: This is definitely the right
5 person to ask the question. Let's just say we are having
6 a campaign in our beloved Miami-Dade County Florida, which
7 can be very interesting, and let's just say that a
8 candidate committed the crime of littering, and was
9 convicted of the criminal offense of littering. That was
10 committed during the campaign, and it was his campaign
11 signs which were related to the campaign, can that
12 candidate be punished and removed from office for
13 committing the criminal offense of littering?
14 COMMISIONER RUNDLE: Well, I don't think littering is
15 a criminal offense. I think that commercial dumping is,
16 but I think that littering is really a civil violation.
17 But I think your point is well taken, nonetheless. I
18 mean, as we read this, we believe that it has to be
19 related to the campaign, and if you want to offer an
20 amendment that would say the violated campaign or election
21 laws, I could see that as very good language to add to
23 COMMISSIONER THOMPSON: Commissioner Brochin, for
24 what purpose?
25 COMMISSIONER BROCHIN: A question.
1 COMMISSIONER THOMPSON: The lady yield? She yields.
2 COMMISSIONER BROCHIN: Who has the power to remove
3 the public official from office?
4 COMMISIONER RUNDLE: Well, I think that what the
5 intent of the authors was that, as the law stands now with
6 respect to the Governor and the Senate being able to
7 address those particular officials, that that would remain
8 the same, but this just extends to the acts committed
9 during the candidacy of their campaign.
10 COMMISSIONER BROCHIN: But is it -- I just want to be
11 clear. So the Senate could remove these officials once
12 the conviction of the crime occurs, but the Governor, in
13 the interim, would not have suspension powers?
14 COMMISIONER RUNDLE: Well, since you did this for so
15 many years, maybe you can help us with the answer to that.
16 COMMISSIONER BROCHIN: The way I read it, the answer
17 would be the Senate -- that's why I wanted to clarify
18 it -- I read it to mean the Senate could remove, but the
19 Governor would not have any suspension powers in the
21 COMMISIONER RUNDLE: I don't think that was our
23 COMMISSIONER BROCHIN: That's how I read it.
24 COMMISIONER RUNDLE: I think our intent was to
25 preserve the abilities that the Governor presently has for
1 acts committed as a public official but really to extend
2 it, suspend it and renew it, if that's language that you
3 want to contribute. Do you want to add "suspended and
5 COMMISSIONER BROCHIN: I do not. I do not think this
6 is a good idea.
7 COMMISSIONER THOMPSON: Commissioner Barkdull, for
8 what purpose?
9 COMMISSIONER BROCHIN: I just want to be clear on why
10 it's not such a good idea. I guess my other question
11 though is for clarification is, does the Governor today
12 under the Constitution -- and I'm not sure of this, and
13 maybe somebody can answer -- today, have the ability to
14 suspend and then the Senate remove if after being elected,
15 they are indicted for the crime even though the indictment
16 relates to acts prior to the election?
17 Okay. Well, if the answer to that is yes, then why
18 do we need this proposal? Isn't that already there -- in
19 other words, if he's elected, the public official is
20 elected and then after the election that public official
21 is indicted after the election, if the Governor can
22 suspend and Senate remove under those circumstances, what
23 situation does this cover that the existing powers don't
24 already cover?
25 COMMISIONER RUNDLE: Again, I know that this is
1 something that you did for years, but my understanding was
2 that it had to be related to his office for public
3 official. And we can pull the language again and make
4 sure, but I thought that the Governor had that ability if
5 the public official had committed those acts as it related
6 to his office. So, this extends its acts before he gets
7 to that office.
8 COMMISSIONER THOMPSON: Okay. Do you want to proceed
9 or temporarily pass it again or what?
10 COMMISIONER RUNDLE: No.
11 COMMISSIONER THOMPSON: Okay. We are on this
12 measure. Commissioner Langley, for what purpose?
13 COMMISSIONER LANGLEY: Will the commissioner yield
14 for a question?
15 COMMISSIONER THOMPSON: She yields.
16 COMMISSIONER BARKDULL: Commissioner Rundle, yours
17 would include even second degree misdemeanors, would it
19 COMMISIONER RUNDLE: Yes, sir.
20 COMMISSIONER LANGLEY: So if in a campaign a senator
21 trespassed and tacked a vote for me or put a sign on a
22 fellow's fence post, which would be a trespass, he could
23 be removed from office?
24 COMMISIONER RUNDLE: And I appreciate what's behind
25 that question. It is the same question that Commissioner
1 Smith really asked. As I said, I think the only way to
2 really clear that would be to say violation of the
3 election laws.
4 COMMISSIONER THOMPSON: We are on the substitute
5 amendment for the pending amendment. Is there further
6 debate? Hearing none, the question recurs on the adoption
7 of the substitute amendment. All those in favor of the
8 adoption of the amendment say yea. Those who oppose it,
9 say no.
10 (Verbal vote taken.)
11 COMMISSIONER THOMPSON: The amendment is adopted.
12 Now let's do this. And that just puts us where they want
13 us to be and then we'll vote on the final passage of the
14 measure. Okay. Now, we are on the proposal as amended.
15 Is there debate on the proposal as amended before I allow
16 Commissioner Rundle to close? Commissioner Rundle, you
17 are recognized to close.
18 COMMISIONER RUNDLE: Thank you, Mr. Chairman. I
19 think this is probably the easiest closing I've ever done
20 because I don't want to waste everybody's time on this.
21 So I think the best thing to do is just proceed to vote.
22 COMMISSIONER THOMPSON: So the question recurs on
23 passage of Committee Substitute for Proposal 184. The
24 Secretary will unlock the machine and the members will
25 proceed to vote. All members voted? All members voted?
1 The Secretary will lock the machine and announce the vote.
2 (Vote taken and recorded electronically.)
3 READING CLERK: Seven yeas, 16 nays, Mr. Chairman.
4 COMMISSIONER THOMPSON: So, the measure fails. We
5 are on a roll since I got up here. We are killing
6 everything. Take up and read the next one.
7 READING CLERK: Proposal 13, a proposal to revise
8 Article I, Section 22, Florida Constitution; providing
9 that a defendant charged with a capital offense may not be
10 sentenced to death unless such a sentence is recommended
11 by nine members of a jury of 12 persons.
12 COMMISSIONER THOMPSON: Okay. Whose proposal is
13 this? Commissioner Brochin, this is your proposal. Now,
14 and the first amendment is yours. Do you want to go ahead
15 and read the amendment and then explain it? Okay. Read
16 the first amendment by Brochin.
17 READING CLERK: By Commissioner Brochin, on Page 1,
18 delete Lines 20 through 22, and insert: No person shall
19 be sentenced to death unless unanimously recommended by a
20 12 person jury. This Subsection shall not retroactively
21 affect any death sentence imposed before its effective
23 COMMISSIONER THOMPSON: Commissioner Brochin to
24 explain the amendment.
25 COMMISSIONER BROCHIN: Okay. This subject is the
1 death penalty. And this amendment goes to the death
2 penalty. Let me first just briefly tell you what this
3 proposal does. It requires and it's actually very simple
4 in its constitutional context. It requires a jury of 12
5 persons to unanimously recommend the death penalty before
6 it can be imposed in the state of Florida. That's it,
7 there's not much more to it. It requires 12 persons to
8 recommend the death penalty before it can be imposed in
9 the state of Florida.
10 Now, Florida was the first state after the United
11 States Supreme Court decided that capital punishment was
12 constitutional to institute it, this was 20 years ago.
13 And now, we are looking at this thing after that decision
14 in the mid '70s to decide how, if at all, to revise the
15 death penalty. So, I think you first must look at what
16 the death penalty calls for in this state and how it's
17 being invoked. Because, you should make no mistake about
18 it. It is constitutional in nature, and let me tell you
19 why it's constitutional in nature. Executions in the
20 state of Florida are carried out at 7:00 a.m. in the
21 morning. And before they are carried out, the warden in
22 Starke gets on the telephone with three public officials,
23 the Attorney General for the state, the Chief Justice of
24 the Supreme Court, and the Governor of the state of
1 And before the warden will allow the execution to go
2 forward, she asks each one of those public officials
3 whether or not there's any reason why this execution
4 should not go forward. And I promise you that each one of
5 them, when they say no, invokes the Constitution of the
6 state of Florida as the reason why that death sentence is
7 carried out.
8 So, what has Florida's death penalty and death
9 sentencing shown for us? Florida basically executes on
10 the average of two people a year. Florida, on the
11 average, sends 20 people to death row every year. That's
12 why we have close to 400 people sitting on death row right
13 now. But, and this is a statistic to keep in mind, last
14 year alone, 400 people were convicted of first degree
15 murder and are not on death row, 400. So the 420 that
16 were convicted, 20 went to death row, and we know 400
17 didn't. So, that tells us, as we know, that not everybody
18 who commits first degree murder in the state of Florida is
19 going to receive the death penalty.
20 In fact, we know that 95 percent of those people who
21 are convicted of first degree murder are not going to
22 receive the death penalty. So, the question occurs, how
23 do we select, and for what purpose does our state select
24 those 20 to go to death row? I would submit to you what
25 we try to do is send those who have committed the most
1 heinous and the most atrocious crimes to death row for
2 execution. I will also tell you that doing so without a
3 unanimous jury consent or agreement lends to an arbitrary
4 and capricious result.
5 Today the way it works is that the prosecutor stands
6 up, he'll voir dire a jury or question a jury about their
7 views on the death penalty. That jury will hear all of
8 the evidence, that jury will convict by a unanimous
9 consent that person of first degree murder, that jury will
10 then go and hear evidence as to whether the death penalty
11 is appropriate. That jury will deliberate over whether
12 the death sentence is the appropriate penalty. That jury
13 will make a recommendation to the judge as to whether the
14 death sentence is an appropriate sentence, and then the
15 judge decides, notwithstanding that jury's recommendation,
16 whether the death sentence should be invoked. It is an
17 override potential that our judges have today.
18 Now, what do other states do? How do we stack up?
19 Twelve states don't even have the death penalty. Of the
20 38 that remain, 28 states require a unanimous jury
21 decision, 28. Of the ten left, only two allow a judge,
22 like Florida, to override that jury's decision; the other
23 state is Alabama.
24 This proposal, I believe, is fundamentally right.
25 Some may argue, not fundamentally fair to the victims, but
1 I'm saying it's fundamentally right. What it is saying is
2 that the 12 persons who heard the evidence, the 12 persons
3 who unanimously decided to convict that person should be
4 the 12 -- same 12 persons who ultimately make the decision
5 for our state as to whether we want to impose that
7 Now, how does this compare to the other things in our
8 judicial system? It takes 12 persons to take your
9 property in a condemnation action, it takes 12 persons to
10 unanimously take your property in a condemnation action.
11 Proposal No. 1 by this constitutional body revision
12 commission voted favorably that it takes a unanimous jury
13 to take your property in the commission of a crime, and
14 that too has to be unanimous by a jury.
15 If a civil lawsuit is filed against me for $15,000, I
16 have a right to a jury trial and a unanimous jury decision
17 to take my $15,000. I suggest a constitutional protection
18 that requires that same unanimous requirement to take
19 somebody's life be placed in our Constitution. Our
20 criminal justice system is really a corner stone for
21 democracy. And although people don't like to admit this
22 or speak about it, it is structured so the guilty can go
23 free in light of the innocent not being imprisoned or
24 executed. That's the system we have, it is a good system,
25 it recognizes that human beings in judging other human
1 beings make mistakes. And when we recognize that other
2 human beings make mistakes in judging other people, we
3 build a system that says, We are going to ensure that the
4 innocent are not -- their liberty and their life is not
5 taken from them. And that's why we require a unanimous
6 jury verdict.
7 Now, historically, things change to make the death
8 penalty an arbitrary penalty. I went back and I read the
9 1978 Constitution Revision Commission debate on the death
10 penalty, which was indeed inspiring, but Governor Leroy
11 Collins spoke for one hour on the subject on this floor
12 and urged a proposal that would have abolished the death
13 penalty placed on the ballot, that proposal in the
14 revision commission failed. But what Governor Collins
15 pointed out in that debate was that the death penalty as
16 Governor is an arbitrary, and he used the term, "freakish
17 event". He gave an example that 42 African-Americans have
18 been executed in the state of Florida for rape. And then
19 the Constitution, the same Constitution was in place,
20 declared that to be an unconstitutional act. That is an
21 arbitrary and freakish decision.
22 I think you ought to keep one statistic in your mind
23 when you vote on this proposal, and that's this; in the
24 last 20 years, the last 20 years in our country, 70, 70
25 people have been released from death row because of
1 indicia of evidence, 70. Now, that may occur, it may not
2 occur. I suggest to you, that the consistent factor of
3 having a jury unanimously say that this person was guilty
4 and is worthy of the death penalty is a protection against
5 an arbitrary decision and, worse yet, a decision that
6 could lead to the execution of someone who is indeed
7 innocent. Now, I know people don't like to talk about the
8 death penalty. It is not a very comfortable decision and
9 it's not a very popular one.
10 In fact, when I made the proposal early on, I was one
11 of the first people to appear before Commissioner Smith's
12 committee and the first thing he said was, Gee, I wish you
13 didn't draw the No. 13 for this proposal. This is not a
14 proposal, and I hope you don't take it this way, that
15 should be considered as someone who is in favor or someone
16 who is against the death penalty, because I really did not
17 bring it forward in that political spirit. I really
18 brought it forward as a way of, when the system works its
19 way through and all of those that are charged under the
20 Constitution with carrying this out, have the knowledge
21 and the ability and the reliance on a unanimous jury.
22 So, I suggest this proposal be adopted, I suggest
23 that we go out and educate the people about this. I think
24 once they are educated about these facts and statistics,
25 they, even though they believe the death penalty should be
1 carried out, will believe that this is an appropriate
2 protection for our Constitution and something that they
3 are going to want to have in their Constitution for the
4 protection of those people before they are executed. And
5 I hope that you will give it that consideration for what I
6 think is a very serious matter.
7 COMMISSIONER THOMPSON: Commissioner Sundberg, for
8 what purpose?
9 COMMISSIONER SUNDBERG: For a question.
10 COMMISSIONER THOMPSON: He yields.
11 COMMISSIONER SUNDBERG: Commissioner Brochin, does --
12 and by the way, I intend to support this, but I have some
13 concerns about if Furman still has any vitality, and who
14 knows, but our death penalty statute was held
15 unconstitutional under the Furman premise because it did
16 not have a structured decision making process, and that's
17 how we ended up with what we have today. Does this
18 eliminate the judge's right to override?
19 COMMISSIONER BROCHIN: No, it does not.
20 COMMISSIONER SUNDBERG: It does not. In other words,
21 even though there's a unanimous decision by the jury to
22 either not impose the death penalty or to impose the death
23 penalty, the judge can override that decision.
24 COMMISSIONER BROCHIN: No, no, I misspoke then. I
25 misunderstood the question. What this does is place a
1 constitutional question that says before anyone, or
2 particularly a judge, sentences somebody to death, he has
3 to, as a minimum, have a unanimous jury recommendation.
4 COMMISSIONER SUNDBERG: By death, of death, a
5 recommendation of death.
6 COMMISSIONER BROCHIN: That is the minimum. It does
7 not, in any way, otherwise, affect the system that's in
8 place, except to that extent. Today, the judge can impose
9 the death penalty, no matter what the jury recommends,
10 this raises it up and says simply, he can not impose it
11 unless there's a unanimous recommendation to that extent.
12 If there is a unanimous recommendation, he's constantly
13 permitted to move forward as he was with the case at that
15 COMMISSIONER SUNDBERG: Then as to life, it leaves it
16 absolutely in the hands of a unanimous jury.
17 COMMISSIONER BROCHIN: If the unanimous jury, if the
18 jury comes back and does not recommend unanimous death,
19 then the options for that judge are the same except he can
20 not impose the death penalty.
21 COMMISSIONER SUNDBERG: And you are not concerned
22 that that might run afoul of the Furman decision as I say
23 to the extent that it still has vitality.
24 COMMISSIONER BROCHIN: I am not, I am not.
25 COMMISSIONER THOMPSON: Further debate? Commissioner
2 COMMISSIONER RUNDLE: Question.
3 COMMISSIONER THOMPSON: He yields.
4 COMMISIONER RUNDLE: I want to make sure I
5 understand. If the jurors come back 12-0 for death, the
6 jury cannot give life if they think that that particular
7 recommendation by the jury is inappropriate in that case;
8 is that correct?
9 COMMISSIONER BROCHIN: No, that is not true per this
10 Constitutional amendment. There are other factors that
11 are still in the system now that would allow the judge to
12 consider it, whether he wanted to take a unanimous jury
13 recommendation and reduce it, say, to life imprisonment
14 without parole. That would not be constitutionally
15 impermissible. It may be impermissible otherwise.
16 COMMISSIONER RUNDLE: Okay. So the 12-0 for death
17 would not be the final determining factor?
18 COMMISSIONER BROCHIN: Not necessarily. It is not a
19 mandate by the jury, it is simply a protection
20 constitutionally, and that's why I think it is appropriate
21 in the Constitution.
22 COMMISSIONER THOMPSON: Okay. We have a substitute
23 amendment on the desk. Read the substitute by
24 Commissioner Douglass.
25 READING CLERK: Sub amendment by Commissioner
1 Douglass, on Page 1, Line 20 through 22, delete those
2 lines and insert, The jury shall sentence a defendant
3 convicted of a capital offense. The jury shall sentence a
4 defendant convicted of a capital offense to death by a
5 vote of nine members of the jury, life imprisonment in
6 solitary confinement without possibility of parole by a
7 vote of seven members of the jury or to life imprisonment
8 without possibilities of parole by a vote of seven members
9 of the jury. In the event of a nondecisive jury vote, the
10 sentence of life imprisonment without possibility of
11 parole shall be imposed.
12 COMMISSIONER THOMPSON: Okay. Commissioner Douglass,
13 you are recognized on your amendment.
14 CHAIRMAN DOUGLASS: Mr. Chairman, Members of the
15 Commission, I think this is fairly self-explanatory but I
16 will like to discuss it because I think it is one of the
17 major issues that we are going to deal with. I don't
18 agree that we should have a unanimous vote for the death
19 penalty and leave it at that. I think the design of that
20 would be to, in effect, eliminate the death penalty for
21 all practical purposes. It is very difficult to get a
22 jury today that at least one person does not feel that you
23 should not do the death penalty. That is not always the
24 case, but it is very difficult.
25 I propose that you have a death penalty imposed by
1 nine members of a 12 person jury, recognizing that that is
2 a substantial majority of those on the jury. But then the
3 important part of my amendment which I call your attention
4 to is the adoption of the federal rule that can apply in
5 death penalty cases and was applied in Denver. And that
6 is the jury have the alternative of sentencing a person to
7 solitary confinement without possibility of parole by
8 majority vote of the jury.
9 That would mean that a person before the jury who had
10 committed a crime sufficient, perhaps even to warrant the
11 death penalty, the jury would have the option of knowing
12 that they put that person in a punishment position for the
13 rest of their natural life. And they would not be in the
14 position that they would be in the general prison
15 population. They would be in solitary confinement and
16 this is also used in the federal system at the moment.
17 Not only for people that are sentenced to death but some
18 that are rather for capital crimes, but also for so-called
19 incorrigible prisoners who are permanently in solitary
20 confinement in federal facilities.
21 This is punishment. What the victims want can't be
22 given. They would like to have their lives back. What
23 the victims families need is closure. What they need is
24 an end to the interminable process that we have created by
25 not dealing with this issue straight up. What they want,
1 the 380 people that are on death row now, they have just
2 warehoused and kept growing and growing because of the
3 court's inability to deal with this problem, over the
4 years has resulted in these cases not being heard, and
5 these cases being heard over and over again and in us
6 spending millions of dollars to keep these people on death
7 row also to finance their collateral attacks on our
8 courts. The courts in effect are timid when it comes to
9 carrying out the sentences as it relates to death for
10 whatever reason.
11 And people tend to bring their own personal feelings
12 about this to their decision making process as judges.
13 That's going to be done in many other areas but this is
14 one in which people really have problems. It is hard for
15 the people that are involved in this process to go forward
16 with the death penalty if they think there is any
17 possibility that the man or woman might be innocent that's
18 being executed, and that's understandable.
19 On the other hand, I think the juries should be given
20 the alternative to award sufficient punishment and
21 sufficient imprisonment in a punishment situation that the
22 families of the victims who are actually, and the general
23 public, who are the ones that we are dealing with, the
24 person that's the victim we can't deal with any more but
25 the scars that are left on their families and their
1 friends and on the general public by the State's inability
2 to deal with these horrible crimes is given another
3 alternative which would be taken.
4 I realize it is hard for some of to you pay attention
5 to this particular debate and I realize that most of you
6 have the same strong feeling on this issue, but I can also
7 assure you that what I am proposing I hope would be an
8 improvement on a very flawed process that we have at the
9 present time. I leave intact the third provision which
10 would be life imprisonment without possibility of parole
11 by majority vote. Or if you can't get a majority vote,
12 the judge would then sentence them to life imprisonment
13 without parole.
14 That doesn't work, and the public knows it doesn't
15 work. We all know it doesn't work. People that are
16 sentenced to life imprisonment without parole for some of
17 these murders very shortly are, not always but often, wind
18 up with good behavior and minimum security involved in a
19 very not, no prison is plushy, I want you to know that,
20 kind of like the story about the Eglin field prison in the
21 federal system, they did a survey and they found it was
22 the most liked system by prisoners. And in the whole
23 federal system, there was one man who had been in all of
24 them, he said Eglin was the best prison. And they asked
25 him about it; and he said, Well the best prison is not
1 very good because I was confined and I had to take orders
2 from the other inmates. And he said they run the prison.
3 And then they asked the warden, they said, Warden, is
4 it true that your prison is a country club, that's what we
5 have heard from people? And he looked him in the eye and
6 he says, If it is a country club, I have had absolutely
7 nobody apply for membership in my club.
8 So the prison, no matter what you are in, is a
9 prison. On the other hand, the victim's families and the
10 public want these people that have committed these crimes
11 to either be put to death or to be punished in some
12 fashion that they can get closure on these cases.
13 And, therefore, I am offering this amendment to
14 arrive at what I hope would be a solution to the problem
15 created by our present situation. I think there is no
16 greater thing in our legal system that causes more
17 disrespect for the process of our courts than our present
18 implementation or lack of implementation of the death
19 penalty. I personally don't feel very strongly that we
20 should have the death penalty except I feel very strongly
21 we should have it for those crimes for which there is no
22 other justifiable sentence.
23 I feel that we should always retain the right
24 regardless of how many people feel otherwise or how many
25 states don't or how many countries don't, we should always
1 retain the right to execute the Rollings, the Bundys, the
2 Stano, who committed 30 murders of women who is on death
3 row and we cannot, because of stays by the Supreme Court,
4 put him to death. He was convicted of eight of those in
5 the state of Florida and we still have him there after 15
6 years and we cannot -- death warrants have been signed and
7 the court keeps holding him up. He should be executed
8 because of what he did. He forfeited his right as a human
9 being and there is no other punishment that the families
10 of these people could stand.
11 Commissioner Henderson knows personally one of the
12 families of one of those victims and he can tell you how
13 it does and did because of the lack of closure in this
14 case. I therefore request that you seriously consider
15 this amendment as an alternative to the death penalty as
16 such, and give the jury the alternative to punish the
17 person who might not be the Rolling, who might not be of
18 that nature but would reserve to the jury the right to
19 give the death penalty in any event.
20 I would answer any questions that you might have
21 about my amendment.
22 COMMISSIONER THOMPSON: Commissioner Mills?
23 COMMISSIONER MILLS: Mr. Chairman, would Commissioner
24 Douglass yield?
25 COMMISSIONER THOMPSON: He yields.
1 COMMISSIONER MILLS: Commissioner Douglass, one of
2 the criticisms of the death penalty is the expense of the
3 death penalty. And if the alternative here is life
4 imprisonment in solitary confinement, is that less
5 expensive in terms of state resources?
6 CHAIRMAN DOUGLASS: I believe that it is. I can't
7 give you the exact figures, but the figures for keeping
8 people on death row are very significant and large and we
9 keep them there for long, long periods of time, almost, in
10 some instances, for life. But it is not solitary
11 confinement on death row but it requires a lot more
12 security and a lot more people going and coming that have
13 to be dealt with, and I think the facility could be set up
14 that would make it much cheaper than our present system.
15 It certainly wouldn't involve, sir, the very great
16 expense of providing state paid lawyers and state paid
17 experts to keep attacking these penalties, which is what
18 we are doing now with the collateral attack business that
19 we finance -- which when those people, when there is an
20 execution coming, they suspend all operations around.
21 They spend interminable amounts of money which would be
22 eliminated under this particular proposal.
23 They would not be entitled to the collateral
25 COMMISSIONER THOMPSON: Commissioner Morsani?
1 COMMISSIONER MORSANI: I have a question. As a
2 layman I would like to ask two people, Judge Barkdull,
3 first I would like to ask the former appellate court judge
4 what his opinion is on this, especially on the amendment.
5 And then I would like for Commissioner Sundberg with his
6 former life to also comment on the amendment.
7 COMMISSIONER BARKDULL: Commissioner Morsani, for
8 your information I was fortunate enough to serve on a
9 court that did not consider death matters.
10 COMMISSIONER MORSANI: Well, but you still have a
11 very --
12 COMMISSIONER BARKDULL: I don't think they are
13 economically feasible.
14 COMMISSIONER MORSANI: But what do you think of the
15 amendment, sir?
16 COMMISSIONER BARKDULL: Wait until I vote.
17 COMMISSIONER THOMPSON: Excuse me, Commissioner
19 COMMISSIONER MORSANI: If Judge Sundberg or
20 Commissioner Sundberg would you please address the issue.
21 COMMISSIONER THOMPSON: Commissioner Sundberg, do you
22 wish to respond at this time?
23 COMMISSIONER SUNDBERG: Sure. I think it is
25 CHAIRMAN DOUGLASS: Commissioner Langley, for what
2 COMMISSIONER LANGLEY: A sane voice to the matter.
3 CHAIRMAN DOUGLASS: You are recognized.
4 COMMISSIONER LANGLEY: I agree with what Commissioner
5 Douglass is trying to do and I just wonder, Commissioner
6 Douglass, I have never heard a jury sentencing anybody and
7 how do you follow the sentencing statutes that we have
8 very distinctly spelled out the questions they asked, the
9 responses they get, wouldn't the amendment be better if it
10 said, The judge, upon recommendation of the jury, shall.
11 CHAIRMAN DOUGLASS: I think that would certainly be
12 an acceptable alternative. On the other hand, I think it
13 has been held to be constitutional in the United States
14 Constitution in Texas. Texas, the jury sentences and they
15 not only sentence in death cases in Texas, they sentence
16 in all of the criminal cases and that's been held to be
17 constitutional under the federal constitution. I am not
18 really too concerned with that recommendation idea, would
19 certainly be one that I think if it would improve this, I
20 would certainly agree to accept it. What I'm looking for
21 is an alternative to the death penalty which would make it
22 much more, the penalties for these crimes much more
23 enforceable than they are and to get the courts so that
24 they don't totally go crazy when a death case comes before
25 them. I'll answer any other questions that anybody might
2 In answer to your question specifically, Commissioner
3 Langley, I don't have any objections to that if it is the
4 rule of the body.
5 COMMISSIONER THOMPSON: Let's take up an amendment to
6 the substitute by Commissioner Rundle. Would you read the
7 amendment, please?
8 READING CLERK: Amendment to the substitute amendment
9 by Commissioner Rundle on Page 1, Line 16, delete the word
10 "nine" and insert "seven".
11 COMMISSIONER THOMPSON: Commissioner Rundle, you are
13 COMMISSIONER RUNDLE: Thank you, Mr. Chairman.
14 Commissioners, one reason I have offered this amendment --
15 do you all have it on your, okay. This is an amendment to
16 Commissioner Douglass' amendment. Well, actually, I guess
17 Commissioner Douglass' is a substitute. And essentially
18 what he provides in his substitute proposal is death by a
19 vote of nine members. And I would ask if we could pass
20 that out for the Commissioners so they have it in front of
22 And I understand why Commissioner Douglass did that,
23 it is because, I'm talking about my amendment, please --
24 (Off-the-record comment.)
25 COMMISSIONER RUNDLE: It is, okay, good, thanks.
1 Commissioner Douglass, I believe, chose the nine to
2 three because, for those of you that may not know, it came
3 out of committee that Commissioner Brochin's proposal was
4 not approved and instead there was a substitute by the
5 committee, I believe, Commissioner Smith, that said nine
6 to three.
7 So I understand why, Commissioner Douglass, you have
8 put the nine to three, that makes sense because that was
9 what was before the body. The reason I offer the seven to
10 five is as follows. One, that is what the law is today.
11 It takes a seven to five vote. So what that does is, it
12 prevents a lot of what I believe will be an outcry from
13 communities all over the state because to change that
14 number this will be viewed as an anti-death penalty
15 provision. There is just no doubt about it. And you are
16 going to have everyone who had a verdict in their case;
17 mothers, fathers, brothers, sisters, sons, daughters are
18 going to come out and say, Wait a minute, in my case where
19 my son or my loved one was murdered, raped, beaten,
20 tortured, you are going to tell me when the verdict came
21 out seven to five that that wasn't justified in my case
22 for my loved one? You are going to have all of those
23 people with signs, fighting particularly Commissioner
24 Brochin's proposal.
25 I think if you can avoid that kind of outcry, and you
1 may not have seen it, you have the sheriff's association
2 already all against it, you will have everyone in law
3 enforcement against it. You will have parents of murdered
4 children all over the community, victims' advocates groups
5 from wide across the state coming out to say this is
6 anti-death penalty.
7 There is something so visceral about this issue that
8 what it does is, is it draws out human emotions that
9 really are beyond description when you look and feel what
10 these people have suffered through. And I think that if
11 you can avoid that, and I'll tell you, I like the concept
12 of closure, Commissioner Douglass is absolutely right.
13 You are talking average 13 years from sentence to final
14 execution in the very few cases it occurs in.
15 A lot of these surviving members, they want closure.
16 So anything that we can do that will help these people
17 have closure in their case will make a difference. But I
18 don't think Commissioner Brochin's will do that. I think
19 Commissioner Douglass' does have the ability to offer that
20 and that's why, if you would, Commissioner Douglass, I
21 would like to know if you will accept that friendly
22 amendment to keep it at seven to five and I also would
23 like to ask you if you view this now to be very dependent
24 upon the 85 percent proposal, and I'll tell you why.
25 Because in this proposal that passed this body, it says
1 life will mean life. And if there is one thing that the
2 public doesn't believe, is the life means life. They just
3 don't believe it.
4 So if we are going to accept your particular
5 proposal, I would then say we are going to have to make
6 sure that that language in the 85 percent proposal also
7 passes. At some point they are going to have to be
8 married together, because if you can tell the public that
9 you want this proposal and life will mean life, I think
10 that your proposal would have a much better chance.
11 COMMISSIONER THOMPSON: Commissioner Douglass.
12 CHAIRMAN DOUGLASS: I'll answer your questions, there
13 are two as I understand it. If it means -- and I will
14 defer to you on this -- to the families that we have a 7-5
15 vote, that they will feel that they have been treated
16 fairly, then I would certainly agree to your amendment.
17 On the other matter, I don't have any objection to saying
18 life is life. And I think it would apply to both the
19 alternatives that I have proposed. I think you would want
20 to know that life at solitary confinement is life and
21 life, not solitary confinement, in the general prison
22 population is also life even if they go into minimum
23 security, work release, and all of these programs that
24 they get into over a period of years in the general prison
25 population. It still would be the confinement I discussed
1 at life.
2 I therefore would accept both of your suggestions as
3 being appropriate and I think it would still accomplish
4 the purpose that I am striving for which is to provide
5 that punishment level which would, in effect, I think,
6 reserve the death penalty for only those cases that really
7 cry out for it. But also, if you stop and think about it,
8 the punishment of life imprisonment at solitary
9 confinement is very severe but it is authorized by the
10 federal government, it is being used by them, it is
11 constitutional. The idea of the jury sentencing is
12 constitutional under the federal constitution, but I have
13 no problem even amending it to make it the way that
14 Commissioner Langley has suggested.
15 But what I am striving to get is that extra level of
16 punishment which I think will stop a large number of the
17 death sentences from being death, but the punishment will
18 be guaranteed and, with your suggestions, I have no
19 problem. I would accept them both, personally.
20 COMMISSIONER THOMPSON: Commissioner Rundle to
22 COMMISSIONER RUNDLE: If I could just ask one more
23 question of Commissioner Douglass. The way I also read
24 this, which I think has a practical benefit, and that is
25 that the final determination here is by the jury.
1 CHAIRMAN DOUGLASS: Correct.
2 COMMISSIONER RUNDLE: And in many ways, so I can
3 explain maybe to some of those that aren't as familiar
4 with some of these procedures, is what we frequently see
5 happening in everyday life in the courtroom is that a
6 defense lawyer will bring up some arguments in front of
7 the jury, wait for that jury determination and hold back
8 some stuff and it is a clever criminal defense tactic and
9 wait for the second phase, which is real, to argue before
10 the judge.
11 And so what happens is you build in a lot of
12 appellate issues and they intentionally do that so that to
13 some extent I can see this avoids that problem that we see
14 in the system today. So this does avoid a second
15 sentencing hearing, if you like, with the judge.
16 CHAIRMAN DOUGLASS: It will the way it is drafted. I
17 would also point out that if lawyers do that, I think they
18 are unethical, clearly. And some people think there are
19 no ethical standards that apply to lawyers that are
20 defending death cases and I think that's part of the
21 problem. I think the courts allow people that are
22 defending death cases, particularly in the collateral
23 nature, to do things they would not allow anybody to do.
24 And without batting an eye or even censoring them in some
25 instances. I ran into that when I was general counsel at
1 the Governor's Office where we dealt with these.
2 And I don't want to be one who criticizes the court
3 specifically, but on this issue at least a substantial
4 number of judges have a very difficult time dealing with
5 death cases and then they just take the view that, you
6 know, no holds barred and the lawyers do pretty much what
7 they want.
8 I would support any provision that will retain the
9 death penalty that will give an alternative to the
10 families for closure, and knowing that they would have
11 punishment for the rest of their life and would preserve
12 the normal life sentence and I believe that life should be
13 life. I am willing to do that because I think people lost
14 faith in our courts, they lost faith in our prosecutors
15 who try very hard, they certainly lost faith in lawyers
16 because of the things you just suggested and others, and
17 that's not to say that some prosectors don't do unethical
18 things either because they do. But we can't stop those
19 things and they are going to happen.
20 But we can at least give a process which would be
21 more designed to have the punishment fit the crime and
22 give to the survivors and to the general public the
23 assurance that these people are going to be punished even
24 if they are not going to be put to death. That's why I
25 offered this amendment and I do think that it is
1 constitutional the way we did it and regardless of what a
2 former justice may say or otherwise because it has been
3 upheld at the Texas version, has been upheld by the
4 federal constitution. I don't really mind Commissioner
5 Langley's proposal, however, which I think eliminates any
6 arguments in that regard because that's the way it is now.
7 The judge can always grant new trials. He can do
8 that. The issue of override has nothing to do with
9 granting a new trial. Now I have found, in reviewing
10 death cases, and I'm sure Commissioner Brochin who
11 reviewed some also found that the biggest problems we had
12 to deal with is when the judge overrode a recommendation
13 of mercy and imposed the death penalty. Now, the Governor
14 has always supported a proposition that there shouldn't be
15 an override in either direction and I tend to believe in
16 that also. But I think if we are going to have juries sit
17 up there, they are not potted plants, they have come from
18 the community and they are selected and 99.9 percent of
19 the people that serve on juries take their duties very,
20 very seriously.
21 And we may not agree with their verdicts, but that's
22 the cornerstone of our system. And I can assure you that
23 these non-experts, these laymen, these non-judges are much
24 better at judging the truth in these cases than those who
25 deal with them all the time. Judges become jaded one way
1 or the other. They become -- in criminal bench if you go
2 before the same judge you see them on TV, they do it a
3 lot, you know, it's like, Well, here you come with another
4 B and E and the judge gets jaded. The jury doesn't. The
5 jury walks in there, they are looking at a person's life,
6 another person's life and a crime and the jury tries to
7 apply their common sense and you get people now from all
8 walks of life and you get the diversity that exists in
9 your community.
10 And I for one, for example, all of this publicity
11 about the race card in the Simpson case, well so? He got
12 tried by a jury of his peers where he was tried and they
13 didn't find the State proved the case. And that's not an
14 issue ever at the end of guilt or innocence, it's the jury
15 didn't find the State proved the case. Don't blame the
16 jury, blame the State. If they had a case, they should
17 have presented it or presented it in a manner which it
18 would have convinced that there was no reasonable doubt.
19 On the other hand, I don't accept the proposition,
20 the converse, simply because today a jury is all white
21 that they don't give a fair consideration to someone who
22 happens to be an African-American.
23 And I can tell you this, people, you don't get
24 publicity like this on these cases. Right here in Leon
25 County in 1981, I had the benefit of trying a civil case
1 before an all white jury in Leon County, the foreman was
2 born and raised in Tupelo, Mississippi, who gave a
3 $5.55 million verdict for a black man who had been injured
4 by a company run by a white man and who had really
5 exploited his employees.
6 And that jury walked back in the courtroom, they
7 offered me $400,000 and laughed and I'm sitting there
8 thinking with my client, maybe we had better take it. He
9 was seriously injured but the money would have made that.
10 I took, and he did, and his wife took faith in that jury.
11 They not only gave 4« million to him but they gave the
12 same amount of 1,025,000 to his wife for loss of
13 consortium. And when we got to the appellate court, they
14 just couldn't believe all of those men on the bench that
15 any man was worth $1,025,000 to his wife. Particularly my
16 48-year-old African-American who happened to be one of the
17 finest people I ever knew. And then they reduced it, of
18 course, because those judges couldn't see it. And now you
19 get $1 million loss of consortium verdict, but that was in
21 And what I'm telling you is that this business about
22 juries is oversold. It is explanations that losers give,
23 it is explanations judges give trying to get out of doing
24 what the jury wants done and the public believes should be
25 done. And anything that infringes on the right of a trial
1 by jury in this country is wrong because the jury,
2 regardless of what any of us say, you cannot be found
3 guilty of a crime unless all of them agree to it to begin
4 with. And they don't have to have a reason. They don't
5 have to have one.
6 So I am urging that we give to the juries the
7 alternatives here. It is impractical to think anybody in
8 this state would ever think that a majority of the people
9 would abolish the death penalty because they won't, we
10 know that. And, Commissioner Rundle, I respect your
11 position very much, because you are in the largest circuit
12 and deal with probably more variety of crimes in your job
13 than anybody in the state.
14 And I would accept your amendments and I don't have
15 any objection to Commissioner Langley's, although I like
16 the idea and the concept of the jury being final on this.
17 COMMISSIONER THOMPSON: Okay. Now before we get into
18 any more conversations about successes in the courtroom,
19 let's go back to the amendment to the substitute which,
20 the issue on the amendment to the substitute is whether or
21 not you are going to have nine of them or seven of them
22 make the decision, that's Commissioner Rundle's amendment.
23 Now who wishes to speak to the amendment to the
24 substitute? I have recognized Commissioners Smith,
25 Barnett, and Sundberg that want to speak. Do you want to
1 speak on this amendment or do you want to vote on this
2 amendment and then go forward?
3 COMMISSIONER SMITH: Mr. Chair, I'd like to speak to
4 this amendment.
5 COMMISSIONER THOMPSON: Okay. You are recognized.
6 COMMISSIONER SMITH: First of all, I am encouraged at
7 the type of consideration this life and death issue is
8 getting in this body. I think that Commissioner Rundle's
9 proposal, though probably politically is moving in the
10 right direction, I think that legally and morally it is
11 moving in the wrong direction. While I agree with the
12 Chairman, Chairman Douglass that is, that there are times
13 when an all-white jury can be fair to blacks and an
14 all-black jury can be fair to whites, although in my
15 career I've never had an all-black jury. I can tell that
16 your perception and statistics from the race bias study et
17 cetera show how important it is that we have an
18 opportunity for all to participate.
19 I oppose the nine to three for the same reason I am
20 going to oppose the seven to five and that is that what
21 happens in the dynamics of the jury, when I first started
22 trying cases in 1973, from '73 until the time Neil vs.
23 State became a law of the state, I couldn't get black
24 people on my jury. People felt that either because of my
25 defendant or because I was black, that black jurors I
1 guess would identify me and vote with me. Most people who
2 don't try cases don't understand that. You are talking
3 about law and order, blacks are as law and order or
4 probably more law and order than most whites because of
5 the fact that our communities are the ones that really are
6 impacted most by crime.
7 And so I used to oftentimes object and object but
8 wink because I figured I might have reversal on appeal but
9 really didn't want a middle class, hard working, law
10 abiding, God fearing black person on the jury who I knew
11 would be coming in pro-prosecution.
12 But what happens is, when you have less than a
13 unanimous verdict, and when you have like a seven to five,
14 you are really taken in many instances people of color out
15 of the death penalty process. There are those who think
16 that because if you don't have unanimous verdict that you
17 give people a veto because what will happen is, as
18 Commissioner Rundle says, there will be those who will
19 say, Well, mine was 7-5 or mine was 8-4, it was 9-3, it
20 was that way because you only have to take one vote.
21 To reach unanimous verdict in the cases that a lot of
22 you lawyers try, almost all the time the first vote is not
23 unanimous, even if you have a six person jury, whether it
24 is a civil case or a criminal case. It may start 3-3 or
25 4-2 or 5-1 and then they have to listen to each other,
1 they have to listen to the minority view and the
2 minorities have to listen to the majority view, not
3 necessarily minority and majority in numbers, until they
4 can arrive at a verdict or they become deadlocked.
5 Now 28 states have unanimous verdicts, the federal
6 court has unanimous verdicts, I will not have an objection
7 to going to 9-3, but I think 7-5 right now we are not
8 making any progress in trying to make our system of
9 justice, especially when you impose the death penalty,
10 fairer. And let me tell you, in the state of Florida
11 today, February 10, 1998, the life of a black person does
12 not have the same value as the life of a white person.
13 There is -- all the statistical data shows that in terms
14 of jury decisions.
15 And as such, by lessening the number of people who
16 will recommend the death penalty, which the court is
17 almost bound to follow based upon the law, what you are
18 doing is really allowing the decision concerning life or
19 death to be relegated solely to the majority community.
20 That is not fair.
21 It probably is politically popular, it probably will
22 carry the day, but this is a matter of life and death and
23 a moral issue and I must vote no.
24 COMMISSIONER THOMPSON: Further debate on the
25 amendment to the substitute, Commissioner Rundle to close.
1 COMMISSIONER RUNDLE: Well just really to respond to
2 just a few things that Commissioner Smith said. He is
3 right when you talk about the 8-4s and the 9-3s and the
4 7-5s, and I can think of several parents from the Miami
5 area and several from the Orlando area where cases that
6 were clear, I mean just clear, they met everything that
7 statutorily and legally required and those families will
8 be out, they will come out in mass. And I'm not really
9 sure that you are going to be accomplishing what it is you
10 are striving to do, and I'm not quite sure what that is
11 other than to make the death penalty harder to get.
12 So I really think that if you want to use the
13 language that Commissioner Douglass is proposing, that it
14 would behoove you to keep it at the 7-5 because the public
15 won't view it that you are taking something away from
16 them, that you are taking something away from them where
17 they felt they had justice in their own case and now you
18 are going to come say, no, it really wasn't right in your
19 case. Even though it was your daughter and it was 8-4,
20 and they are going to feel you are denying them something
21 and they are going to be out there in full force telling
22 you how much they disagree with you.
23 So if you want to accomplish what Commissioner
24 Douglass is attempting to do, I think it should be changed
25 from the 9-3 to what the law is now, to the 7-5.
1 COMMISSIONER THOMPSON: Okay. We are on the
2 amendment to the substitute, the Secretary will unlock the
3 machine and the members will proceed to vote on the
4 amendment to the substitute.
5 (Vote taken and recorded electronically.)
6 COMMISSIONER THOMPSON: All members voting? All
7 members voting? Secretary will lock the machine and
8 announce the vote.
9 READING CLERK: 16 yeas, 12 nays, Mr. Chairman.
10 COMMISSIONER THOMPSON: So the amendment to the
11 substitute is adopted. Read the next amendment to the
12 substitute by Commissioner Langley.
13 READING CLERK: Amendment to the substitute amendment
14 by Commissioner Langley, on Page 1, Line 14, delete all
15 lines, all of the Lines 14, 15 and the words of a capital
16 offense to Line 16 and insert the judge shall, upon
17 recommendation of the jury, sentence a defendant convicted
18 of a capital offense as follows.
19 COMMISSIONER THOMPSON: Commissioner Langley, you are
20 recognized on the amendment.
21 COMMISSIONER LANGLEY: Thank you, Mr. Chairman, it
22 pretty much speaks for itself. Basically it puts the
23 sentencing procedure itself back in the hands of the judge
24 where I think it should be. The important word there
25 though is "shall" which means that the jury recommendation
1 binds the judge. Currently the judge can override. This
2 does, Commissioner Douglass, give the jury the final stay
3 but technically lets the judge go in and pronounce the
5 COMMISSIONER THOMPSON: Debate on the amendment to
6 the substitute, Commissioner Sundberg?
7 COMMISSIONER SUNDBERG: I am going to oppose the
8 amendment offered by Commissioner Langley for two reasons.
9 And the same reasons, in fact, the amendment offered by
10 Chairman Douglass, in my judgment. The first reason is I
11 believe it is unconstitutional. A thread -- and with all
12 due respect I don't believe this is the Texas model. I
13 believe in Texas it is a far more complex issue. The jury
14 does have, you know, added responsibility they don't have
15 here in Florida, but I think ultimately the judge has the
16 ability if for no other reason to grant a new trial to
17 exercise some discretion over the process.
18 And you are right, Mr. Douglass, judges take these
19 death cases very seriously. And they agonize over them,
20 as well they should. But I reject your assertion that
21 they don't carry out their constitutional duty to enforce
22 the capital penalty law when it is appropriate.
23 But therein lies the problem. The purpose of our
24 capital penalty statutes are to identify those especially
25 heinous, atrocious, and cruel homicides; that's what our
1 capital statute says. That is one of the aggravating and
2 probably the premiere aggravating circumstance under our
3 statute. And those of you who are not familiar with it,
4 our statute operates to have, it has so many aggravating
5 circumstances that the jury and the judge must consider in
6 the sentencing process, and designated mitigating
7 circumstances that each the jury and the judge are
9 To identify, to separate out, those homicides which
10 are especially heinous, atrocious, and cruel and are set
11 apart from other homicides and that's why the United
12 States Supreme Court in Furman invalidated statutes such
13 as the Florida Statute because -- or the then existing
14 Florida Statute -- because it left it completely in the
15 hands of the jury to sentence. And that's why I don't
16 think this substitute to the amendment cures the problem
17 because it gives the judge no discretion.
18 And the point of the judge, having some discretion in
19 this process, is to achieve some sort of proportionality.
20 And a thread that runs throughout the capital cases, I
21 submit to you, is that -- and this has nothing to do with
22 whether you are in favor of or opposed to the death
24 Those who are in favor of the death penalty will tell
25 you they don't want it imposed in a freakish or
1 discriminatory fashion; they want it fairly imposed.
2 That's why the statute attempts to identify those who are
3 deserving. Jurors, and this runs throughout the cases, a
4 jury in a particular case does not have the benefit that a
5 judge does of having seen a whole spectrum of capital
6 cases. Praise the Lord. That those 12 persons good and
7 true generally only have to do this once in a lifetime.
8 So how are they able to identify, to separate out
9 those homicides, those capital offenses that are deserving
10 of the death penalty as opposed to those which are not?
11 And we assume that some are not.
12 Let me give you an example. There was a criminal
13 episode, as I recall it was a bank robbery, it was a
14 robbery in which -- and the defendants were tried
15 separately. One defendant went into the place of
16 business, the bank, to perform the robbery and he
17 committed a homicide, shot somebody, killed them.
18 The co-defendant, not a co-defendant, he was tried
19 separately, the other perpetrator, so to speak, was the
20 getaway man. The getaway man was out at the curb in the
21 automobile. Under our law, the getaway man is as culpable
22 criminally as the person who was the trigger man because
23 of our felony murder rule.
24 Tried separately, the trigger man, who actually shot
25 the victim, was sentenced by that jury to life or actually
1 that was their recommendation and the court followed, the
2 judge followed the recommendation and sentenced the
3 trigger man to life. A separate jury trying the getaway
4 driver recommended death for the getaway driver. And the
5 judge approved that.
6 To complicate things further, the life sentence is
7 never seen by the Florida Supreme Court; the review of
8 those cases goes to the District Courts of Appeal, which
9 impedes any sort of proportionality review.
10 I suggest to you that Chairman Douglass' proposal,
11 even as amended by or proposed to be amended by
12 Commissioner Langley, will lead to freakish results, will
13 lead to a system which is capricious in its application.
14 So even if it were not, if I am wrong about it violating
15 the federal constitution, it is bad public policy. We do
16 not in this state want to capriciously apply the death
17 penalty. We want it to be done in as rational and
18 structured a manner as is possible. So I speak against
19 the amendment.
20 COMMISSIONER THOMPSON: Further debate on the
21 amendment by Commissioner Langley? Commissioner Douglass?
22 CHAIRMAN DOUGLASS: Yes, I want to just restrict my
23 remarks to Commissioner Langley's amendment. I think it
24 is a good amendment and I urge you to support it, because
25 it does accomplish the same purpose that I am trying to
1 put before you, and I think it improves the proposal. But
2 I would point out to you that one of the things that is
3 still left in all of this process, there is a couple of
4 things, even after the jury is through and the courts are
5 through, there is the matter of clemency, which can
6 prevent the death penalty from being imposed. And it
7 would be in some instances, and will be, and has been in
8 addition, the executive branch does have the duty of
9 carrying out the penalty, not the judicial branch.
10 Also, nothing prevents the judge from granting a new
11 trial when it's against the manifest weight of the
12 evidence or many other matters that the courts give them
13 the right to do, they would still have that.
14 The Legislature would still have latitude in defining
15 how the crimes should be treated in charging the jury, as
16 they do now, within constitutional limits.
17 So, I think that Commissioner Langley's amendment
18 improves the overall substitute amendment and I urge you
19 to vote for it.
20 COMMISSIONER THOMPSON: Okay. We are on the Langley
21 amendment to the substitute. Further debate?
22 Commissioner Langley to close.
23 COMMISSIONER LANGLEY: Go ahead.
24 COMMISSIONER THOMPSON: All of those in favor of the
25 Langley amendment to the substitute, say yea. Those who
1 opposed it say no.
2 (Verbal vote taken.)
3 COMMISSIONER THOMPSON: The Langley amendment is
4 adopted. Now, we are on the substitute as has been
5 amended twice. Any other amendments on the desk?
6 READING CLERK: None other on the desk.
7 COMMISSIONER THOMPSON: None on the desk.
8 Commissioner Barnett, you are recognized.
9 COMMISSIONER BARNETT: I want to ask some questions.
10 I don't know who to ask it to, Commissioner Langley or
11 Commissioner Douglass.
12 COMMISSIONER THOMPSON: Commissioner Douglass, would
13 you yield to Commissioner Barnett?
14 CHAIRMAN DOUGLASS: I'll yield. If I can't answer
15 it, I'll defer to Commissioner Rundle.
16 COMMISSIONER BARNETT: Your proposal refers to
17 capital offenses, and most of us think of that in terms of
18 a murder, someone who is killed. Are there other capital
19 offenses that this would apply to that doesn't involve
21 CHAIRMAN DOUGLASS: No, that's the way it is now.
22 And the death penalty only applies to murder.
23 COMMISSIONER BARNETT: This does not change that?
24 CHAIRMAN DOUGLASS: No.
25 COMMISSIONER BARNETT: The other thing, as I read
1 this. Today, without this amendment and somebody is
2 convicted of murder, a capital offense, are there options
3 available to the judge and/or jury that would include a
4 life sentence, but with the possibility of parole or some
5 lesser sentence?
6 CHAIRMAN DOUGLASS: I think that -- I know that at
7 one time the jury, it could give a life sentence without
8 reference to parole, but I think presently the law is that
9 they have to -- if they give a life sentence, it's without
10 possibility of parole. I'm right on that, I think,
11 Commissioner Rundle?
12 COMMISIONER RUNDLE: Of those sentenced at this time.
13 It depends on when the sentencing occurs, but parole does
14 not exist. Parole could at some point be brought back up
15 by the Legislature, which is one reason I was making that
16 point, is that if you are trying to give jurors an option
17 of life in solitary confinement and so on and so forth,
18 then you are really going to have to give them the
19 security that life is going to mean life without parole.
20 Because I would find this -- I would think that the
21 public would find, if you didn't have that kind of
22 language, that they would have to worry about parole being
23 reinstituted or some other kinds of minimums, like life
24 means a 25-year minimum, because we have had that period
25 of time too. But today there is no parole.
1 COMMISSIONER BARNETT: Can I just follow-up a little.
2 This is not my area, so I just need to have some answers.
3 The language that we are now putting into the Constitution
4 that deals with capital offense relates solely to first
5 degree murder?
6 COMMISIONER RUNDLE: Yes. There was a time when
7 capital offenses also included, I think it was, rapes of
8 individuals under the age of 12.
9 CHAIRMAN DOUGLASS: It was rape, period, and then it
10 was rape under 12.
11 COMMISIONER RUNDLE: For a child.
12 CHAIRMAN DOUGLASS: And it also included kidnapping
13 for ransom at one time. And at one time, not -- I mean,
14 in the past we had death penalties for many things,
15 including armed robbery.
16 COMMISSIONER BARNETT: Is the term -- is there some
17 concern that the term "capital offense," there's some
18 uncertainty as to what it actually applies to. I mean, it
19 sounds to me like over time that definition has actually
20 changed. So is there anything that, either in the
21 Constitution or otherwise that would say a capital offense
22 is first degree murder? Or is there the possibility that
23 this language, by having a -- you know, having a phrase
24 that might, and over historical time has meant something
25 else, that we may be in a situation where we have limited
1 dramatically the jury and/or judge in what they can do?
2 CHAIRMAN DOUGLASS: Well, I think you would have to
3 assume the court would reverse all of its precedent and
4 the United States Supreme Court would reverse all of its
5 precedent, because now the law is very clear. The Supreme
6 Court has ruled, and the Constitution means that capital
7 crime means murder.
8 But you know, who is to say, they could suspend the
9 Constitution, I suppose, if we wanted to get into
10 possibilities. The Court could say the Constitution
11 doesn't say what it says.
12 Commissioner Barnett, do you wish to debate the
14 COMMISSIONER BARNETT: Well, I'm really still,
15 Mr. Chairman, trying to get an understanding of what this
16 proposed amendment does. I guess the other question would
17 be, does this amendment further restrict what is the
18 current -- does this amendment, I think as Commissioner
19 Smith or somebody said, take us down a road that's in the
20 opposite direction of what Commissioner Brochin wants in
21 that the jury is now limited, the judge and jury are now
22 limited to life imprisonment without parole, life
23 imprisonment with solitary confinement and/or death and a
24 7-5 vote. I mean, is that different than what current law
25 is today?
1 COMMISIONER RUNDLE: I think I understand one of your
2 concerns is that the definition of what constitutes
3 capital punishment would be changed at some point.
4 COMMISSIONER BARNETT: Capital offense.
5 COMMISIONER RUNDLE: What did I say? I apologize.
6 Capital offense now is defined by which crimes death
7 penalty attaches to. So I think that your question is a
8 good one in the sense that, could the Legislature decide
9 or could the courts decide that other crimes could
10 constitute a capital offense. I don't have an answer for
11 that. I think that is a good question. But with respect
12 to what the alternatives are, this is the way it is today,
13 in terms of capital offense for first degree murder cases,
14 which is all that applies at this point. And again, as
15 you know, a small percentage of the first degree murder
16 cases would actually receive death penalty.
17 So, this language, in terms of alternatives, death,
18 life, life in, this is exactly the way it is today with
19 the exception of the solitary confinement, because that is
20 not a sentence that's prescribed.
21 COMMISSIONER BARNETT: And today in Florida, someone
22 who gets convicted of first degree murder, the judge nor
23 the jury have the option to sentence them to life but with
24 some minimum mandatory or with possibility of parole.
25 COMMISIONER RUNDLE: Parole doesn't exist so they
1 can't sentence parole. And the 25 minimum that used to
2 exist, no longer exists.
3 COMMISSIONER BARNETT: By statute.
4 COMMISIONER RUNDLE: It depends upon when you get --
5 I don't mean to be too complicated, but it does depend
6 because the law has changed over the years. Today life
7 does mean life, statutorily. So, there's no parole.
8 Clemency, of course, is always available.
9 And I think, if I may, just take this opportunity
10 just to reassure everyone that there are several levels of
11 review past what a jury says. You have the judge and then
12 you have the Florida Supreme Court, and then you have the
13 federal courts, and then you have the U.S. Supreme Court.
14 So there's lots of levels of review, including ultimately
15 clemency that applies to these cases.
16 And I think that you should be aware of that to give
17 you some assurances that this system does have a number of
18 checks and balances in it.
19 COMMISSIONER THOMPSON: Further debate on the
20 substitute? On the substitute amendment. Commissioner
22 COMMISSIONER SMITH: Thank you. Commissioner Barnett
23 and others, basically, with the amendment that
24 Commissioner Rundle was able to successfully move forward,
25 the only difference now with the law as it is now, and the
1 law if this is placed on the ballot and it passes, is that
2 there will be a third option for sentencing, and that is
3 placing defendants convicted of first degree murder in
4 solitary confinement. Now, the law is, with a majority
5 vote, the death penalty can be recommended by a jury, or
6 with, obviously, we can have life imprisonment as well if
7 there isn't a majority vote.
8 I was very encouraged, I guess, overly optimistically
9 encouraged by the Brochin proposal which I thought really
10 took us in the right direction. I was very happy that it
11 moved us away from Alabama and the only other state that
12 has override, and I was hoping that it would move us with
13 the majority of states in the United States that requires
14 a unanimous verdict before we take people's lives.
15 This is a fairness issue, fairness not just to
16 defendants, but fairness to families, fairness to the
17 system. What makes our country great in a large part is
18 our justice system. It's not the best, it's not perfect,
19 but it's definitely the best in the world having traveled
20 around and seen it. And for those who are concerned about
21 the numbers, Texas, which has more people on death row
22 than any other state, has unanimous verdict. Texas has
23 executed more people than any other state.
24 Just recently, when the United States Congress passed
25 a unanimous verdict, we saw it work twice just this last
1 year, with Timothy McVay and with the Pakistani who was
2 also convicted and sentenced to death. I just think that
3 we need to place more value on all life with regard to
4 this death penalty issue.
5 It appears, based upon the votes that have been cast,
6 that we are going to take a system that's flawed and make
7 it even more flawed. I don't see any way how, why this
8 provides better protection for those who may not deserve
9 the death penalty but who the juries feel are concerned
10 that they might get out of prison. Because today, if
11 there's a jury recommendation for life or for death, the
12 judge tells the jury, life means life, there is no parole.
13 So, the only thing that we are doing is saying, instead of
14 you, instead of you being in a six-by-eight cell by
15 yourself, I guess, solitary confinement, I guess they put
16 you under the ground someplace, because death row
17 prisoners are not with others -- I had a client on death
18 row. My client wasn't with somebody else. When I got to
19 that little cell, he was in the cell playing chess by
20 himself, against himself. So, I don't know, I guess,
21 solitary confinement, they lock them up down under the
22 jail. I don't see how that improves our system at all.
23 I understand what Commissioner Chairman Douglass is
24 trying to do, and I should have known that Proposal 13 was
25 doomed to bad luck, but Commissioner Brochin, I think
1 history will eventually prove you right. And I'm proudly
2 going to stand with you on the political Titanic with
3 Proposal 13, because in the moral universe, one is right,
4 one is a majority when they are right, and you are right.
5 Thank you.
6 COMMISSIONER THOMPSON: Further debate on the
7 substitute? Commissioner Brochin.
8 COMMISSIONER BROCHIN: Yes, I, too, want to speak
9 against this. I want to speak against it. First of all,
10 we are supposed to be revising a Constitution. This looks
11 like a statute that talks about sentencing guidelines, and
12 I find it highly inappropriate that we are dictating to
13 juries what votes they should take on various
14 alternatives. I find that inappropriate and it is not an
15 adjustment to the death penalty, and I don't think it's
16 going to be any improvement.
17 I also agree with Commissioner Smith that when this
18 has now been watered down to what we see here before you,
19 it does nothing to change what is before us, other than it
20 gives one more alternative, which is life imprisonment in
21 solitary confinement.
22 I'll tell you what they do on death row right now.
23 They live in about a 6-foot cell, they are allowed, I
24 believe, out for two hours twice a week, and the remainder
25 of their time under maximum security, they are in the
1 confines of that cell. So, I, too, don't appreciate or
2 know the difference between being on death row and being
3 in solitary confinement.
4 I'll tell you the real reason I speak out against
5 this is when I hear arguments that there's going to be an
6 outcry against this. We were supposedly appointed here to
7 look at the issues and make the right decisions for the
8 people to vote upon. And it's true, my fax machines are
9 not flooded with people from death row and people who are
10 trying to demand that this be done to fix the system, I
11 readily admit that. I don't think I've gotten anybody
12 that wrote me on this at all, or said anything to me,
13 because that constituency perhaps isn't out there.
14 I'll tell Commissioner Rundle, when I pull the lever
15 for 167 yes later today, I am not going to be thinking
16 about the numerous faxes that I did receive voting in
17 favor against that. So, I think at some point in time, we
18 have got to make our own individual decision on what's
19 right, and the reason a unanimous verdict is the right way
20 to go, the reason it's right is not because of those
21 people on death row, it's not for them that I bring the
22 proposal, I bring the proposal for all of the people of
23 Florida, so that when the execution is carried out under
24 the Florida Constitution, they have the basic value in
25 place that 12 of us, 12 of the citizens decided
1 unanimously to do so. That is the constituency we should
2 be thinking about.
3 And I think we are underestimating the public and
4 their ability to understand this concept when we suggest
5 that there's going to be hew and cry against it. I don't
6 think that's true. And I don't think history will prove
7 us right, I think we can be proven right today. And I
8 think the people are going to approve this when they are
9 educated on it, on the unanimous, and I think I will vote
10 Commissioner Douglass's amendment is well-intended as an
11 alternative, I don't think it makes the mark. And I urge
12 you, please, to vote against it. And let's put in the
13 protection that simply, in a constitutional sense, says if
14 you are going to execute people here under this document,
15 this Constitution, do it with a unanimous jury.
16 COMMISSIONER THOMPSON: Commissioner Barnett on the
18 COMMISSIONER BARNETT: Thank you, Mr. Chairman. I
19 want to get in the life boat with Commissioner Smith as we
20 leave the Titanic and oppose this amendment. I do so for
21 several reasons. One, I'm not fully aware of what it
22 does. I'm not completely convinced that it might not make
23 some major substantive change. And if it doesn't, if this
24 is simply a constitutional codification of what current
25 law is, it doesn't belong in the Constitution. And we
1 should leave the Legislature with the ability it currently
2 has to define capital offenses and to deal with punishment
3 and sentencing for those offenses.
4 I do know that in one respect it takes away a power
5 that the judge currently has. So, it does make a change
6 there and I think that is not a good thing to occur in our
7 system today.
8 I guess the final reason that I oppose it, although I
9 think it's well-intended by the proponents, is that I
10 support the underlying proposal of a unanimous jury
11 verdict. And I would like to have the debate and
12 discussion on that, and to focus on that, rather than on a
13 proposal that's implemented and raised to constitutional
14 stature would really be a legislative act, more in the
15 nature of a legislative act than a constitutional act, and
16 I would not want to ultimately see something like that in
17 the Constitution.
18 COMMISSIONER THOMPSON: Further debate on the
19 substitute before Commissioner Douglass closes?
20 Commissioner Douglass, you are recognized.
21 CHAIRMAN DOUGLASS: I would like to respond to the
22 last thing that was mentioned by both of the people who
23 spoke in opposition that this was a matter that could be
24 handled by statute. The proposal that was submitted by
25 Commissioner Brochin could be handled by statute, that
1 therefore falls as it should, because this is a matter of
2 great interest and should be in the Constitution. The
3 other technique of argument is, well I'm sort of for this,
4 but it's pretty good, but I really want to vote for the
5 underlying proposal, and that's fair game. I think that
6 Commissioner Smith made that very clear.
7 But what we are here on is whether or not we are
8 going to offer to the people an alternative in the death
9 penalty cases that would result in something short of
10 death being imposed by the jury, but would ensure
11 punishment to those who committed the crime of murder, if
12 the jury chose to punish them by putting them in solitary
14 And I submit to you that not a single juror thought
15 when he voted to give the death penalty to Stano
16 (phonetic) on death row that he was going into solitary
17 confinement for life, but under our system he's about to
18 make it because of the collateral attacks and the 13 to 15
19 to 17 years that they sit there costing more than normal
20 solitary confinement by far.
21 So, the argument that now you get the death penalty,
22 you get solitary confinement is one of the reasons we need
23 this, is to quit fooling ourselves, to quit fooling the
24 public by stacking 385 people on death row. And with the
25 opponents of the death penalty doing all they can to delay
1 and delay and delay, hoping that they will, the general
2 public will be like some of us are sometimes, This is a
3 lot more trouble than it's worth, let's get rid of the
4 death penalty. That is the aim of those who seek to make
5 it harder and harder and harder, who run it through the
6 courts forever and forever and forever.
7 And let us not lose site of that, because I think
8 Commissioner Rundle is absolutely correct, that the
9 families and the friends and the public of the victims are
10 entitled to this punishment, and they are entitled to
11 closure, and they are entitled to a system such as this to
12 afford to the juries as was pointed out which made this a
13 much better substitution to Commissioner Langley's
15 And I don't see that there's any change to anything
16 here from the original proposal of Commissioner Brochin,
17 except that it adds the two things, the seven to five
18 vote, it adds the jury's right to sentence to life
19 imprisonment without parole.
20 I urge you, in the interest of at least some point of
21 resolving this death penalty argument and getting it back
22 to where it was in '78, which was whether or not we had
23 the death penalty. And those who support the original
24 proposal, I will guarantee you in their silent moments of
25 admission to you, oppose the death penalty. And that is
1 their right. And I think that many people are very
2 sincere in that opposition, and I certainly respect that.
3 And if they are on juries, they have the opportunity to
5 But I think the public should know and be able to
6 vote that we can continue the death penalty, but we also
7 have an alternative of punishment, which would be
8 available as well to have closure. I urge you to vote for
9 the substitution.
10 COMMISSIONER THOMPSON: So, the question recurs on
11 the adoption of the substitute as offered by Commissioner
12 Douglass. The Secretary will unlock the machine and the
13 members will proceed to vote. This is on the substitute
15 (Vote taken and recorded electronically.)
16 COMMISSIONER THOMPSON: Have all members voted? All
17 members voted. The Secretary will lock the machine and
18 announce the vote.
19 READING CLERK: Seventeen yeas, 11 nays,
20 Mr. Chairman.
21 COMMISSIONER THOMPSON: So, the substitute is
22 adopted. Now, we are on the proposal. Are there further
23 amendments on the desk?
24 READING CLERK: No, Mr. Chairman.
25 COMMISSIONER THOMPSON: None on the desk. Anybody
1 wish to debate the Proposal No. 13? Commissioner Scott,
2 for what purpose?
3 COMMISSIONER SCOTT: For a question. What does this
4 proposal now do that's different than current law, if
6 CHAIRMAN DOUGLASS: It does two things. The Langley
7 amendment puts the provision in the Constitution that the
8 judge shall accept the recommendation of the jury in these
9 cases, that's number one. That's not now the law, nor is
10 it in the Constitution. It also puts into the
11 Constitution the death penalty as a specific item for
12 capital punishment. It also provides an addition to the
13 death penalty, the additional punishment of life
14 imprisonment without parole, which is provided in the
15 federal system as an alternative to the death penalty, and
16 it does incorporate the existing law as it is to life
17 imprisonment without parole, as I understand it. Is that
18 correct, Commissioner Rundle?
19 And so, that's what it would do. Those are the
20 changes, and that's why we support it.
21 COMMISSIONER THOMPSON: Other questions or debate?
22 Commissioner Langley, for what purpose?
23 COMMISSIONER LANGLEY: To speak about it.
24 COMMISSIONER THOMPSON: You are recognized.
25 COMMISSIONER LANGLEY: Is that lawful enough? It
1 really has something for everybody. A rather sad subject
2 to have something for everybody, but in those cases where
3 the jury recommends death, the judge can override that,
4 knowing more about the law and knowing the full run of the
5 cases as Commissioner Sundberg pointed out, can override
6 that recommendation and still give life. Those cases are
7 never appealed, and so, you know, we don't get those
9 On the other hand, where the jury recommends life and
10 the judge overrides and imposes the death sentence, I
11 don't know any of those that have ever been upheld,
12 certainly not from my subject. Almost without exception,
13 they are overturned.
14 But what we have here for those who oppose the death
15 penalty is, I truly believe that if a jury felt that life
16 is life and had the alternative of solitary confinement
17 for life, I think there would be less death penalties
18 recommended. So you might, you who oppose the death
19 penalty, might want to consider that. Although, on its
20 face, this is probably a little more pro-death penalty. I
21 think underlying that, there may be less death penalty
22 actually imposed by the jury. I'm going to vote against
23 it because I don't want to tamper with it.
24 COMMISSIONER THOMPSON: Commissioner Smith, for what
1 COMMISSIONER SMITH: To ask a question of
2 Commissioner Douglass.
3 COMMISSIONER THOMPSON: Commissioner Douglass, take
4 the floor and yield to a question. He yields.
5 COMMISSIONER SMITH: We have discussed back and
6 forth, Commissioner Douglass, the fact that today death
7 row inmates are in single cells, and now we are saying we
8 are going to add a provision to place them in solitary
9 confinement, what will be the difference between them now
10 serving their time in a six-by-eight cell alone and what
11 will be this new solitary confinement?
12 CHAIRMAN DOUGLASS: We would hope that those that are
13 sitting on death row now, that the log jam would break and
14 the law could carry out the sentences, which is death, not
15 solitary confinement. That is a big difference. These
16 people are under a sentence of death, or if they weren't,
17 they would not be in this type of confinement. That is a
18 big difference.
19 COMMISSIONER SMITH: Well, maybe I didn't ask the
20 question correctly. Right now, based upon your proposal,
21 the jury has three options, correct, a sentence of death,
22 sentence of life imprisonment with solitary confinement or
23 a sentence of life imprisonment, no parole. Okay, so
24 let's move out of the death penalty, it is not a death
25 sentence. One person now, today, in Miami, is sentenced
1 to life imprisonment, solitary confinement; another person
2 from Tallahassee is sentenced to life imprisonment, no
3 solitary confinement. What is the difference -- what
4 would be the practical difference that we would tell the
5 people that the one in solitary confinement has that the
6 one not in solitary confinement has?
7 CHAIRMAN DOUGLASS: It's my understanding that those
8 who are sentenced to solitary confinement would be put
9 into solitary confinement as defined by law what solitary
10 confinement is. Those that are not put into solitary
11 confinement could be put into the general prison
12 population, which would allow them to move differently
13 within the framework of our penal system. And they could
14 be put, ultimately, in all kinds of minimum security, even
15 in some instances, they could be, under the general prison
16 population, be on work release, they could even, to some
17 extent, be in halfway houses, and still be confined under
18 the general prison population.
19 And I think this is where this breaks down is, when
20 we sentence somebody to prison for life without parole, we
21 don't realize that what happens is they don't serve hard
22 time very long if they follow the rules and they don't get
23 into trouble, and they wind up serving an entirely
24 different sentence.
25 What this does, you can tell the public, is assure
1 them that when the jury feels that, as an alternative to
2 death, this was a very severe crime, they want them put in
3 and punished, they can put them in solitary confinement.
4 And in the general prison population, I don't think that
5 alternative is available except for misbehavior and under
6 very strict rules.
7 COMMISSIONER SMITH: So, life imprisonment and
8 solitary confinement, basically prisoners will serve their
9 sentences on death row as they are doing now?
10 CHAIRMAN DOUGLASS: No.
11 COMMISSIONER SMITH: No?
12 CHAIRMAN DOUGLASS: No, they wouldn't serve on death
13 row --
14 COMMISSIONER SMITH: I'm sorry, solitary confinement.
15 CHAIRMAN DOUGLASS: Not necessarily like they are on
16 death row.
17 COMMISSIONER SMITH: Okay.
18 CHAIRMAN DOUGLASS: The solitary confinement would
19 have to be defined by law what that would be. And you
20 could use the Federal model or you could use a model done
21 by the Legislature of Florida. I think the Legislature
22 would develop a system that would be sufficient to handle
23 solitary confinement, but not nearly so expensive as death
24 row where we are keeping people there to put them to
1 COMMISSIONER SMITH: Thank you.
2 COMMISSIONER THOMPSON: Commissioner Morsani, for
3 what purpose?
4 COMMISSIONER MORSANI: To ask a question.
5 COMMISSIONER THOMPSON: Of Commissioner Douglass?
6 COMMISSIONER MORSANI: No, if he would yield, I would
7 like to ask a question of the Attorney General.
8 COMMISSIONER BUTTERWORTH: I yield.
9 COMMISSIONER MORSANI: Thank you.
10 COMMISSIONER THOMPSON: Commissioner Butterworth,
11 take the floor and yield to a question from Commissioner
12 Morsani. He yields.
13 COMMISSIONER MORSANI: I know you would be
14 disappointed if I didn't ask you to answer this question,
15 Mr. Butterworth, so would you please give us your opinion
16 of the amendment and of the bill and of the Proposal 13,
17 in general. That's two questions.
18 COMMISSIONER BUTTERWORTH: I thank you very much,
19 Commissioner Morsani. I was down in a Cabinet meeting up
20 until about 15 minutes ago, and I believe most of the
21 things that I would say have been stated.
22 I think Commissioner Langley said it very well, so
23 far as the fact that this will, in essence, I believe,
24 reduce the number of death cases, that many people on a
25 jury wish to know what's going to happen. Right now
1 there's only two choices, one, which is death; number two,
2 which would be just life imprisonment without chance of
3 parole. And jurors don't know what that means. I don't
4 think we know what that means either, from that
6 If you put another element in there, which would be,
7 yes, we believe that this person should be taken off of
8 the street for the rest of their life and they should be
9 put in a setting where they cannot escape, the jury would
10 feel probably more comfortable with that.
11 Also we find in the area of victims or the survivors.
12 The survivors want finality, they want absolute finality,
13 they want it to be over with to where they know it's over
14 with. And, unfortunately, the present system with the way
15 it is right now, we revictimize the victim each and every
16 step of the way, every time the defense counsel misses a
17 pleading date or every time something occurs, it's tragic
18 to the families.
19 And ironically enough, when this was, a similar
20 legislation was proposed about two or three years ago,
21 ironically enough, it was the public defenders who were
22 opposed to this type of alternative. Because if in fact
23 you have an old spark electric chair out here and life
24 imprisonment, many times the jurors will go with the life
25 imprisonment as opposed to the death penalty.
1 If you give what might be considered non-death but
2 put the person away forever, without giving the people a
3 chance of letting them out, a lot of the public defenders
4 believe that the jurors will go with that. And I
5 personally believe that they will also.
6 From what's happening right now with death penalty,
7 that's not all that bad. We only average two executions a
8 year and there's 385 people on death row as we speak.
9 So, as Commissioner Langley stated, it has something
10 in it for everybody, and it also has something for
11 victims. And that's where, from our standpoint in the
12 Attorney General's office, we deal with the survivors, and
13 we deal with survivors in each and every death case. This
14 will have a lot in it, I believe, also for the victims,
15 the survivors because they will be able to have what many
16 of them want, and that's finality.
17 So, I believe this is an excellent proposal, I urge
18 that it go forward. I believe that it'll have a
19 tremendous affect on, if you are a pro-death penalty, this
20 will keep the death penalty, and if you are anti-death
21 penalty, you can be assured that less people will be
22 getting the death penalty.
23 And from the standpoint of victims, whether it's
24 death penalty or solitary confinement for the rest of
25 their lives, most of the survivors, I feel, will feel that
1 the finality is there.
2 COMMISSIONER THOMPSON: Further debate? Commissioner
4 COMMISSIONER BROCHIN: I'm going to vote against this
5 amendment. As I said at the first part when I stood up,
6 the proposal was that, I was trying not to get involved
7 and still do not think that we should be involved in a
8 discussion of whether we are pro or against the death
9 penalty. This proposal will, I think, place, quite
10 frankly, some havoc on the current implementation on the
11 death penalty. I think it'll result in a great deal of
12 cost and a great deal of litigation.
13 I think it will dramatically reduce the number of
14 death cases, but I think it's highly inappropriate
15 language for our Constitution. Commissioner Langley asked
16 about judicial overrides. You may be reading about it; a
17 guy named Crazy Joe Sapsiano (phonetic) who has been up
18 and down the Supreme Court with trial and retrial, the
19 jury in Mr. Sapsiano's case told the judge, life, it was a
20 life recommendation.
21 Just a historical note, when the current judicial
22 override was written, and it's perhaps interesting as we
23 consider other issues of the Constitution, the reason that
24 the judicial override was written was there was a concern
25 that jurors would be too anxious to impose the death
1 penalty. Therefore, they wanted to give the judge the
2 opportunity to take an overzealous jury and reduce or
3 override the jury's determination.
4 It's probably very ironic that the juries have always
5 been right all along. They got the life measure, perhaps
6 the recommendation for life in Sapsiano was the right
7 measure, but it's worked out the other way. And I would
8 submit that, because of judges who are elected have that
9 public pressure and a 12-person jury does not because when
10 that 12-person jury is sworn in, they are looking at that
11 person, that defendant and that victim in making a
12 decision as to whether the death penalty is appropriate.
13 So, I'm sorry for us as a body that we are not going
14 to vote for that proposal that would allow that jury,
15 who's been all right all along, to make that decision.
16 And I think this is just not appropriate language for our
17 Constitution, and I think it's going to greatly disrupt an
18 already very chaotic death penalty system.
19 COMMISSIONER THOMPSON: Commissioner Langley.
20 COMMISSIONER LANGLEY: I indicated that I would vote
21 against this, but I think now, having heard from our
22 Attorney General and the lady who has to deal with this
23 every day, I'm going to vote for it also. I just didn't
24 want to mislead anybody.
25 COMMISSIONER THOMPSON: If there's no further debate,
1 then the question occurs of final passage of Committee
2 Substitute for Proposal No. 13 as amended. The Secretary
3 will unlock the machine and the members will proceed to
4 vote. All members voting. All members voting.
5 (Vote taken and recorded electronically.)
6 COMMISSIONER THOMPSON: The Secretary will lock the
7 machine and announce the vote.
8 READING CLERK: Sixteen yeas, 13 nays, Mr. Chairman.
9 COMMISSIONER THOMPSON: So, the proposal is passed.
10 Now it's just a few minutes before twelve. We have
11 committee meetings, Mr. Chairman, and I'll turn the Chair
12 back over to you.
13 (Chairman Douglass resumes the chair.)
14 CHAIRMAN DOUGLASS: Commissioner Barkdull.
15 COMMISSIONER BARKDULL: Mr. Chairman, we are getting
16 near the hour of noon. I would suggest that we recess
17 until 1:00. We have a committee meeting at 12:00
18 scheduled in 317.
19 CHAIRMAN DOUGLASS: All right. Anything further to
20 come up before we adjourn to lunch? What time did you
21 suggest that we come back?
22 COMMISSIONER BARKDULL: 1:00. All right. Let's
23 everybody try to be back at 1:00. And we'll start, I
24 believe, on the calendar with Proposal 91. We are in
1 (Lunch recess.)
2 CHAIRMAN DOUGLASS: Give us a quorum call, please.
3 The committee has adjourned and is here.
4 SECRETARY BLANTON: Quorum call. Quorum call. All
5 commissioners indicate your presence. All commissioners
6 indicate your presence.
7 CHAIRMAN DOUGLASS: All right. Come to order.
8 SECRETARY BLANTON: Quorum present, Mr. Chairman.
9 (Quorum taken and recorded electronically.)
10 CHAIRMAN DOUGLASS: All right. The next proposal is
11 No. 26 by Commissioner Langley. Would you read it,
13 READING CLERK: Proposal 26, a proposal to revise
14 Article IV, Section 6 and Article VII, Section 9, Florida
15 Constitution; creating five executive departments of water
16 management and eliminating ad valorem taxing authority for
17 water management purposes.
18 CHAIRMAN DOUGLASS: All right. Is there anybody to
19 speak in favor of this?
20 (Off-the-record comment.)
21 CHAIRMAN DOUGLASS: I know he isn't here but we
22 announced -- somewhere we got a --
23 COMMISSIONER MORSANI: Commissioner Langley said he
24 was going to withdraw this proposal.
25 CHAIRMAN DOUGLASS: Okay.
1 COMMISSIONER MORSANI: Seriously, he told me that --
2 CHAIRMAN DOUGLASS: Well, we have two options.
3 COMMISSIONER MORSANI: -- I recommend that.
4 CHAIRMAN DOUGLASS: Are you moving to withdraw the
5 proposal on his behalf?
6 COMMISSIONER MORSANI: Yeah. I'm serious. He said
7 he was going to withdraw it.
8 CHAIRMAN DOUGLASS: Well, anybody could make a
9 motion, I guess. All right. There's a motion before the
10 body to withdraw Proposal No. 26. All those in favor say
11 aye. Opposed.
12 (Verbal vote taken.)
13 CHAIRMAN DOUGLASS: It's withdrawn. Proposal 99,
14 would you read it, please?
15 READING CLERK: Proposal 99, a proposal to revise
16 Article VII, Section 18, Florida Constitution; providing
17 that a county or municipality is not bound by any agency
18 action or administrative rule that requires the
19 expenditure of funds, reduces revenue raising authority,
20 or reduces a percentage of shared state taxes.
21 CHAIRMAN DOUGLASS: All right. Does anybody want to
22 speak in favor of Proposal 99? Commissioner Anthony?
23 COMMISSIONER ANTHONY: Thank you, Mr. Chairman. This
24 is a proposal that is being presented by Commissioner
25 Langley. He is not here so I'll just give the gist of
1 this proposal. In 1990, the voters of the state of
2 Florida passed anti-mandates amendment to the
3 Constitution. And basically what this amendment, in
4 concept, refers to is that the Legislature could not and
5 should not pass any legislation that would require
6 financial responsibility on local governments, county and
7 municipalities, without sending a funding source to those
8 entities to pay for whatever proposal or legislation that
9 is passed by the Legislature. The voters passed this
10 amendment but what has happened since then, and this
11 mandates process, is the Legislature has developed a
12 policy, but once the policy gets to the administrative
13 level who promulgates the rules, more mandates are placed
14 upon local government by administrative rules. What this
15 amendment says, and Commissioner Langley is here and he
16 can help --
17 (Off-the-record comment.)
18 COMMISSIONER ANTHONY: Well, trust me, Commissioner
19 Langley, you and I agree on almost nothing but this.
21 CHAIRMAN DOUGLASS: Note that in the record.
22 COMMISSIONER ANTHONY: That is a compliment to both
23 of us. But what it does in aggregate is it states that
24 the Legislature in its wisdom in the past, the past
25 legislation that has provided mandates. And then the
1 staff in administrative process, the promulgation of the
2 rules, then requires us to do things in local government
3 that we don't think they provide the resources for us to
4 be able to carry out that legislation that is passed.
5 Commissioner Langley, did you have any -- so that's
6 in concept and I'd like to respond to any questions or
7 provide Commissioner Langley the opportunity.
8 CHAIRMAN DOUGLASS: Commissioner Langley?
9 COMMISSIONER LANGLEY: I had the privilege once while
10 I was in the Senate of chairing the Joint Committee
11 between the House and the Senate that oversees rulemaking,
12 it's a year-to-year thing. And in that year we found over
13 160 agency rules that were either, one, unauthorized by
14 the Legislature, or, two, diabolically opposed to the
15 legislation. We would have an amendment on the floor of
16 the Senate on a bill that would be defeated overwhelmingly
17 and turn around eight months later and see it in agency
18 rule verbatim, what this Legislature had turned down.
19 So these agencies have an awful lot of authority.
20 And all this does, all this proposal does, is to say, like
21 the other mandatory language about mandates in the
22 Constitution, that agency rules would fall under those
23 same -- the same scrutiny as the laws that are passed by
24 the Legislature.
25 CHAIRMAN DOUGLASS: All right. Any further --
1 anybody want to be heard? Commissioner Sundberg?
2 COMMISSIONER SUNDBERG: For a question, Commissioner
4 CHAIRMAN DOUGLASS: He yields.
5 COMMISSIONER SUNDBERG: What if the Department of
6 Environmental Regulation adopts a rule that is clearly
7 within its legislative authority, assuming that, and this
8 rule requires universally across this state for owners of
9 real property to take certain actions to -- to prevent
10 runoffs or something like that. And that it would cause a
11 municipality and counties, along with everybody else in
12 the state, to expend funds or to take some action
13 requiring the expenditure of funds to meet the
14 requirements of that rule. Would that be covered by this
16 COMMISSIONER ANTHONY: Yes, that would be covered by
17 this provision. And what the Department of
18 Environmental -- DEP, Environmental Protection should do,
19 in terms of if they create this legislation, or if the
20 Legislature creates it and they promulgate these rules,
21 they should provide the monies to pay for the
22 implementation of that rule. For example, it may be
23 through grants, may be through loans to local governments
24 to be able to implement this rule.
25 In this concept, Commissioner Sundberg, good
1 legislation becomes bad legislation if there is not funds
2 provided to the local government to implement it. And
3 what we're saying is stormwater requirements on local
4 governments may definitely be needed. But if it is needed
5 and it's of the public interest, then the public interest
6 in the state Legislature, if they pass it, should also
7 think about the public when providing the sufficient funds
8 to implement it. So, yes.
9 CHAIRMAN DOUGLASS: Commissioner Langley, do you want
10 to try that one too?
11 COMMISSIONER LANGLEY: Yeah. Well, in further
12 explanation of that, Commissioner Sundberg, if it were
13 enacting or enforcing the law already passed by the
14 Legislature, it would have met the muster anyway.
15 CHAIRMAN DOUGLASS: Any further debate? Are you
16 ready to vote? Unlock the machine. Let's vote.
17 (Vote taken and recorded electronically.)
18 CHAIRMAN DOUGLASS: Do you all know what you're
19 voting on? You're voting on Proposal No. 109 -- 99,
20 excuse me. I got it confused. It's Commissioner
21 Langley's proposal as explained by Commissioner Anthony.
22 All right. Has everybody voted? Lock the machine.
23 READING CLERK: Fifteen yeas, eight nays,
24 Mr. Chairman.
25 CHAIRMAN DOUGLASS: All right. We move to -- now we
1 go to Proposal 109, Committee Substitute for Proposal 109
2 by the Committee on Finance and Taxation, and Commissioner
3 Mills recommended it as a Committee Substitute and
4 approved by the Committee on Finance and Tax. Read it,
6 READING CLERK: Committee Substitute for Proposal
7 109, a proposal to revise Article VII, Section 3, Florida
8 Constitution; allowing a local option tax exemption for
9 owners of land used for conservation purposes; requiring
10 general law authorization.
11 CHAIRMAN DOUGLASS: Commissioner Mills?
12 COMMISSIONER MILLS: Mr. Chairman, the substance of
13 this was passed as an amendment to Commissioner
14 Henderson's bill, so I would move to withdraw this from
15 further consideration.
16 CHAIRMAN DOUGLASS: Without objection, Proposal
17 No. 109 is withdrawn.
18 Now we go to Proposal No. 169 by Commissioner Hawkes
19 which was referred and deferred and referred and
20 disapproved by the Committee on Judicial. And -- all
21 right. Before we read that, there's an amendment on the
22 desk by Commissioner Hawkes to strike everything and come
23 up with a different version; is that correct, Commissioner
25 COMMISSIONER HAWKES: Correct.
1 CHAIRMAN DOUGLASS: And I'll have him read your
2 amendment -- well, first of all, read the subject of the
3 amendment and then maybe we can adopt it on voice vote.
4 Read the subject, please.
5 READING CLERK: Proposal 169, a proposal to revise
6 Article V, subsections 1 and 4, Florida Constitution;
7 establishing courts of criminal appeals; providing for a
8 court of appeals to be located in each of the three
9 regional divisions; providing for justices of the courts
10 of criminal appeals to be appointed by the Governor and be
11 subject to confirmation by the Senate; providing for
12 compensation of the justices; providing for terms of
13 office; providing for the courts to have final appellate
14 jurisdiction of criminal appeals, appeals of capital
15 cases, and appeals based on habeas corpus or other
16 post-conviction claims.
17 CHAIRMAN DOUGLASS: Commissioner Hawkes, I think with
18 your permission, we'll ask for a vote to adopt your
19 amendment so then you can proceed on the proposal.
20 COMMISSIONER HAWKES: That was the proposal. He
21 hasn't read the amendment yet.
22 CHAIRMAN DOUGLASS: Sorry, I thought he read the
23 amendment, excuse me. Read the amendment. You moved it,
24 right, the amendment?
25 COMMISSIONER HAWKES: Yes.
1 READING CLERK: By Commissioner Hawkes, delete
2 everything after the proposing clause and insert Section
3 1 -- Sections 1 and 4 of Article V of the Florida
4 Constitution are revised by amending those sections to
5 read lengthy amendment.
6 CHAIRMAN DOUGLASS: Now, Commissioner Hawkes, you're
7 recognized, it's your proposal and your amendment. We're
8 on the amendment.
9 COMMISSIONER HAWKES: Thank you, Mr. Chairman, the
10 essence of this proposal is it creates a court of criminal
11 appeals. The court of criminal appeals will consist of
12 seven justices. It will handle the cases that -- it has
13 complete authority to handle criminal appellate cases but
14 that can be defined by the Legislature, in essence is
15 designed to take the workload off the Florida Supreme
16 Court so that more time can be devoted to these kinds of
17 cases and they can move more expeditiously through the
19 There is a mechanism in there so that a procedure can
20 be set up so that the courts can have some methodology to
21 remove any conflicts if there are any conflicts and it's
22 much more scaled down, Mr. Chairman, than it was when we
23 originally proposed it. And I would ask for your
24 favorable consideration. I'd be happy to answer any
25 questions. Thank you.
1 CHAIRMAN DOUGLASS: Now this is on the amendment?
2 COMMISSIONER HAWKES: Yes.
3 CHAIRMAN DOUGLASS: So you're asking we use the
4 amendment as the vehicle instead of the original proposal?
5 COMMISSIONER HAWKES: Yes, Mr. Chairman.
6 CHAIRMAN DOUGLASS: All right. All in favor --
7 question, Commissioner?
8 COMMISSIONER BARNETT: Just a question. I would like
9 to hear Mr. Hawkes detail how it's scaled down from the
10 original amendment because I just got it and I haven't had
11 a chance to read it through. So I'd like to have him,
12 before we vote on it, go through that.
13 CHAIRMAN DOUGLASS: Very well. Commissioner Hawkes.
14 COMMISSIONER HAWKES: Okay. The concept in the
15 original amendment was we would start with a minimum of 27
16 judges and these courts of criminal appeals would in
17 essence hear all criminal appellate cases and we would
18 remove the criminal appeals from the District Courts of
19 Appeal as well as from the Supreme Court, that as the
20 Legislature determined the need, as certified by the court
21 as consistent with how we do it now, there would be
22 additional judges as the workload increased.
23 What this does is, it cuts it down to seven justices.
24 It grants the ultimate capital jurisdiction with the court
25 as well as all other criminal appellate jurisdiction as --
1 except as limited by the Legislature. So the Legislature
2 could define it to make the system work as best as
3 possible. But, in essence, it would be the primary
4 criminal appellate case court for capital cases. And so
5 that's where it focuses now, whereas before it primarily
6 focused on all criminal appellate cases, now it primarily
7 focuses on the capital.
8 CHAIRMAN DOUGLASS: Commissioner Barnett?
9 COMMISSIONER BARNETT: So the difference would be
10 rather than having the criminal court of appeal at like
11 the district court level and the supreme court level,
12 you're just having one appellate court for all criminal
13 appeals, whether it's from the circuit courts or our
14 current district courts at a kind of a supreme court
16 COMMISSIONER HAWKES: No, I would envision on this
17 that, in essence, this court plays the role of what the
18 current Supreme Court plays in criminal cases. In other
19 words, if there were, the Legislature could for instance
20 grant jurisdiction to resolve conflicts among the District
21 Courts of Appeal in criminal cases to this court. This
22 court would handle the capital cases. They would handle
23 the habeas corpus and all the other stuff that goes on
24 within those cases as well as the actual ruling as to
25 whether or not the judge imposed the correct sentence and
1 the defendant had a fair trial, and those kinds of
2 questions, the due process as well as the substance of due
4 COMMISSIONER BARNETT: So then I guess this would
5 really become -- replace the Florida Supreme Court to the
6 extent they currently have jurisdiction over any type of
7 appellate -- criminal appellate matter.
8 COMMISSIONER HAWKES: Yes.
9 CHAIRMAN DOUGLASS: Commissioner Barkdull was up
10 first. Brochin, you're next. Commissioner Brochin is
12 COMMISSIONER BARKDULL: Would the gentleman yield for
13 a question?
14 CHAIRMAN DOUGLASS: Yes.
15 COMMISSIONER BARKDULL: Commission Hawkes, on Page 2,
16 at the bottom, commencing on Line 28, it reads, "The court
17 of criminal appeals may have exclusive and final
18 jurisdiction to review all criminal appeals in this state,
19 including appeals of capital cases and those appeals or
20 requests for relief which are based on habeas corpus or
21 other post conviction claims."
22 Now that indicates to me that this court is going to
23 have all the jurisdiction over criminal cases that
24 presently resides in the five districts and the Supreme
1 COMMISSIONER HAWKES: It is limited by or prescribed
2 by general law. So the Legislature, basically the court
3 in the Constitution would technically have all that
4 authority, but there are seven justices and the
5 Legislature can then define it on the thought because I
6 don't understand all the workings of the courts. If we
7 could facilitate or help out the District Courts of
8 Appeal, then maybe some of that jurisdiction could be
9 given to this court as well.
10 But the primary focus of this is to handle the
11 capital cases with the Legislature having the ability to
12 do the nuts and bolts as to how you get those capital
13 cases to this court. It's not intended to completely
14 replace the District Courts of Appeal as to the routine
15 appellate work that the District Courts currently do.
16 COMMISSIONER BARKDULL: It appears from the language
17 that it would permit the taking of that jurisdiction from
18 the five DCAs. Now the only state that I know of that has
19 such a Supreme Court for capital cases is Texas and
20 Oklahoma. I'm not familiar whether they have all the
21 criminal jurisdiction or just the capital jurisdiction in
22 either one of those states. But this is broad enough to
23 where this court would encompass all of it, which
24 constitutes more than half of the caseload of the five
25 DCAs at the present moment.
1 CHAIRMAN DOUGLASS: Commissioner Brochin?
2 COMMISSIONER BROCHIN: Two questions. One is, have
3 you considered the fiscal impact, if any, that this
4 proposal will have? And, two, what is the reason for this
5 proposal? I mean, why are you bringing this forward?
6 COMMISSIONER HAWKES: Well, the fiscal impact of a
7 justice, I don't know if that's -- even if we said it's a
8 million dollars and there are seven justices, that's
9 $7 million out of $42.5 billion budget last year and $44
10 billion budget perhaps is proposed next year. So I don't
11 think the impact is of great significance, especially
12 compared to some of the other things that we've done in
13 this commission.
14 Plus, considering, of course, that one of the primary
15 functions of government is to provide a system where
16 citizens can have some kind of redress so that they don't
17 attempt to take redress themselves. That is one of the
18 purposes. Because I think that what's happened is we
19 have -- our citizens have lost some credibility in their
20 court system. And I think that a court system not only
21 has to work properly and function properly, it has to have
22 the public perception that it's working properly and
23 functioning properly or there are terrible consequences
24 which we as a society have to pay.
25 So this is a court that is accountable for capital
1 cases. It's answerable for capital cases to make sure the
2 system works properly. I think it's somewhat bizarre now
3 that the average, before we execute somebody on death row,
4 now is about 15 years. That is an indictment, I think, of
5 the system.
6 We should be able to provide a fair trial and a fair
7 appellate review process, make appropriate decisions in
8 less time than 15 years. Someone mentioned earlier in the
9 previous debate that we execute on average two people a
10 year in the state of Florida. We now have 368 people on
11 death row. Obviously we're putting them on the death row
12 faster than we're either taking them off through the
13 appellate process or executing them because that's
14 considered or determined to be the appropriate sentence.
15 You know, if we look at Texas, which in fact has a
16 court, the Supreme Court, except in Texas they elect their
17 judges for this court instead of -- these judges are
18 appointed. They executed last year, I believe, 37 people.
19 The state of Florida last year executed one. So, for a
20 system that works better is more accountable to the
21 citizens that are supposed to serve, those are the reasons
22 behind the proposal.
23 CHAIRMAN DOUGLASS: Commissioner Brochin?
24 COMMISSIONER BROCHIN: Just a thought. So am I
25 understanding it that the intent is as a means to speed up
1 the time from when somebody is sentenced to death to the
2 time they are executed?
3 COMMISSIONER HAWKES: Well, that is one of the
4 beneficial -- I mean, I think that you have a system that
5 is working better if, in fact, you have a sentence that's
6 carried out in somewhat of a reasonable fashion. I think
7 that when people sit on death row for 15 years it becomes
8 somewhat almost cruel and unusual punishment in and of
10 But the reason that this works better, of course, is
11 because this is this court's area. The Supreme Court, I
12 mean, there were comments by the Chief Justice, where the
13 workload created by these kinds of cases is bogging down
14 the Florida Supreme Court. Florida is the fourth largest
15 state. Texas is the, I don't know, third largest state,
16 second largest state. And that might be one of the
17 reasons they went to it. Because now you are allowing
18 your judges more time. When you allow your judges more
19 time, you can have a process that works better because
20 more time can be spent on doing the things that you need
21 to do.
22 CHAIRMAN DOUGLASS: Commissioner Butterworth?
23 COMMISSIONER BUTTERWORTH: Gentleman yield for a
25 CHAIRMAN DOUGLASS: Yes.
1 COMMISSIONER BUTTERWORTH: Commissioner Hawkes, is
2 there any reason why you're having these justices
3 nominated and appointed differently than the other
4 justices and other judges on appellate benches in the
6 COMMISSIONER HAWKES: It was a thought that that
7 would allow more credibility because there is more
8 accountability on the front end. But if that part of the
9 proposal caused great concern, that could be changed. But
10 I will tell you that if a judge applies for the position
11 and he knows what the position is, and he's nominated for
12 that position by the Governor, then I think that that
13 suggests two facts. One, obviously the individual who
14 applies for the position is interested in this kind of
15 work and therefore must have some experience in it.
16 And, two, he must be qualified by the Governor, for
17 his own credibility wouldn't nominate him. Whereas in the
18 current system, I think that you can be a fantastic civil
19 judge or have a lot of civil experience and not
20 necessarily have the criminal experience or vice versa.
21 CHAIRMAN DOUGLASS: Commissioner Butterworth? You're
22 next, Commissioner Kogan.
23 COMMISSIONER BUTTERWORTH: Commissioner Hawkes, under
24 the present system, I believe the judges are responsible
25 to the people. Under this system it appears these
1 particular justices will be responsible only to one person
2 and that being the Governor.
3 COMMISSIONER HAWKES: Well, they would be confirmed
4 by the Florida Senate. But like I said, if that aspect of
5 the proposal was causing concern, you know, because I
6 think even through the current methodology, since these
7 judges would be applying for this position, we have
8 some -- we achieve the benefits of interest and
10 COMMISSIONER BUTTERWORTH: Thank you.
11 CHAIRMAN DOUGLASS: Commissioner Kogan.
12 COMMISSIONER KOGAN: I need to ask a couple of
13 questions. Has anyone studied Oklahoma and Texas Criminal
14 Courts of Appeal to find out how they function and whether
15 or not they are functioning well?
16 COMMISSIONER HAWKES: I personally haven't studied
17 them. I do know that Texas is a large state like Florida
18 and I do know that Texas has a system that seems to be
19 working far better than what our system is working.
20 COMMISSIONER KOGAN: All right. Now you understand
21 that Texas has had its criminal court of appeal for a long
22 period of time, at least in excess of 15 years as far as I
23 know and probably even longer than that.
24 You understand the increase in executions in Texas
25 occurred last year because of certain legislation that the
1 Texas Legislature had passed in an attempt to speed up
2 executions. Without going into the details, mainly having
3 lawyers also representing the inmates on, in effect, the
4 assistance of counsel claims at the same time their
5 initial appeals are being argued. And that's the reason
6 why you saw an upswing in executions last year in the
7 state of Texas. They were waiting for that particular law
8 to be declared constitutional or unconstitutional and
9 that's what sped up the execution. Did you study that at
10 all, I'm just curious.
11 COMMISSIONER HAWKES: Well, I would suggest that the
12 fact that the court has the time to spend on the cases
13 because they are not also handling the civil docket,
14 assists the court greatly in being able to resolve those
15 questions also.
16 COMMISSIONER KOGAN: All right. Now, another
17 question and another thing I'm having a problem with, as
18 Judge Barkdull said, 50 percent of all cases in the five
19 District Courts of Appeal are criminal in nature. We have
20 in excess of 75 appellate court judges in the state of
21 Florida. You call for seven or nine in here but if half
22 the caseload, that means you're going to need about 35
23 judges on the special court.
24 COMMISSIONER HAWKES: No, it would be envisioned that
25 this court -- the DCAs would in essence do the same thing
1 that they are doing now.
2 COMMISSIONER KOGAN: I know. But if they have their
3 caseload --
4 COMMISSIONER HAWKES: They would continue to do -- if
5 a defendant is sentenced for burglary and he files his
6 appeal as a matter of constitutional right, that appeal
7 still goes to the District Court of Appeal and they hear
8 argument or handle that case the same way that they would
9 handle it now. Does the court have jurisdiction?
10 The court has -- they are not limited to their
11 jurisdiction but the Legislature can limit them on a
12 theory that if there was something that the DCAs could --
13 that this court could do to assist the DCAs, this court
14 would be able to do that. That was an enabling clause,
15 not an exclusive clause, because the Legislature limits
16 the court's jurisdiction.
17 COMMISSIONER KOGAN: Let me ask you another question
18 here. You're also limiting the terms of the judges on
19 this particular appellate court to 12 years.
20 COMMISSIONER HAWKES: Well, that certainly wasn't the
21 intent. It was a six year term and they are eligible for
23 COMMISSIONER KOGAN: As I understand it, they can
24 only be -- well, I guess to a subsequent term by the
25 Governor, but, again, you're having these people subject
1 to the confirmation of the Senate.
2 COMMISSIONER HAWKES: Yes.
3 COMMISSIONER KOGAN: So we are having an entirely
4 different way of retaining these judges in office as we
5 had with the other judges on the appellate level.
6 COMMISSIONER HAWKES: Under this wording, yes.
7 CHAIRMAN DOUGLASS: Commissioner Sundberg?
8 COMMISSIONER SUNDBERG: For a question, Commissioner
9 Hawkes. Have you in your study of this issue made any
10 determinations? You talk about it's now taking 15 years
11 to execute people. Have you made a determination as to
12 how much of that delay, if you perceive it to be delay, I
13 perceive it to be due process, how much of that is
14 attributable to initial review of those capital cases in
15 the Florida Supreme Court and any subsequent review under
16 a state habeas of 3.850? I mean, isn't, in fact, most of
17 that delay, if you want to characterize it as such,
18 attributable to the fact that we're in a federal system
19 and there is a great deal of time consumed in the federal
21 COMMISSIONER HAWKES: Well, I would submit, of
22 course, Texas is under the same federal system as Florida
23 is. And I think that if we look over just even the last
24 eight years, the average time on death row has increased
25 dramatically. And I know the Chief Justice was quoted in
1 the newspaper talking about what a tremendous time burden
2 this creates on the court and how difficult it is to find
3 the time that these cases need and I know for a fact that
4 Florida is the fourth largest state in the union, and
5 therefore is going to have a whole lot more problems in a
6 state like Minnesota perhaps and therefore our Supreme
7 Court is going to be burdened with these other issues.
8 So to answer your question, I think this court
9 facilities the process because we have justices who have
10 the time, the expertise, and the desire to work in this
11 area. And therefore, I think we're going to have a better
12 work product because I don't think that it's very much
13 debatable that the public perceives that the current
14 system does not work very well. And therefore, this is an
15 effort to try to get a system that will work better.
16 COMMISSIONER SUNDBERG: But my question was, do you
17 know how much -- what percentage of the time that's
18 perceived to be delayed, results from the time for review
19 in the Florida courts of death penalty cases?
20 COMMISSIONER HAWKES: No.
21 COMMISSIONER SUNDBERG: I mean, this only addresses
22 the sort of review that takes place in the state courts,
23 correct? It can't at all control what goes on in the
24 federal courts?
25 COMMISSIONER MORSANI: Well, I mean, through our
1 rules and procedures we can help out the federal courts,
3 COMMISSIONER SUNDBERG: But we can do that without
4 the creation of Criminal Courts of Appeal, can't we?
5 COMMISSIONER MORSANI: Well, to the extent that we
6 expedite the state court and finish with the state court
7 system, it puts us in the federal court system. And can
8 we do things without necessarily doing a constitutional
9 amendment? Yes, we can do some things to improve the
10 process and I imagine that every year the Legislature
11 attempts to do some of those kinds of things.
12 COMMISSIONER SUNDBERG: I do intend to speak to this
13 matter. That's the end of my questions, Mr. Chairman.
14 CHAIRMAN DOUGLASS: Are you ready to yield the floor,
15 Mr. Hawkes?
16 COMMISSIONER HAWKES: Pardon?
17 CHAIRMAN DOUGLASS: Are you ready to yield the floor?
18 COMMISSIONER HAWKES: Yes.
19 CHAIRMAN DOUGLASS: Actually, we're now on the
21 (Off-the-record comment.)
22 CHAIRMAN DOUGLASS: Well, I was trying to do that and
23 Commissioner Barnett wanted to ask about the amendment.
24 We're now on the amendment that was offered by
25 Commissioner Hawkes to his original proposal. All those
1 in favor of the amendment say aye. Opposed.
2 (Verbal vote taken.)
3 CHAIRMAN DOUGLASS: The amendment is adopted. Now
4 we're on the proposal. Mr. Hawkes, do you want to speak
5 to the proposal as a proponent?
6 COMMISSIONER HAWKES: No, I think that we've
7 discussed it. I can answer questions or have debate.
8 CHAIRMAN DOUGLASS: Commissioner Sundberg and
9 Commissioner Barkdull, I'll take Commissioner Sundberg
10 first. I think he asked to be recognized earlier and then
11 Commissioner Barkdull.
12 COMMISSIONER SUNDBERG: Thank you, Mr. Chairman. The
13 Florida Supreme Court considered a proposal like this back
14 in 1979 when it perceived that its caseloads were to the
15 point where it was not efficiently handling the people's
16 business in the courts and so it looked at a whole range
17 of possibilities to relieve what was perceived to be an
18 overburdening of the court at that time. And in looking
19 at this proposal, the members of the court obviously
20 rejected it and went to the proposals that made up the
21 1980 amendments, the jurisdiction of the Florida Supreme
23 In considering this proposal, we heard from -- he was
24 then the Chief Judge of the court of appeals of the state
25 of Louisiana; they don't have a Supreme Court in
1 Louisiana. And they have -- and traditionally had a court
2 of criminal appeals. He was an expert in judicial
3 administration and served on the ABA's committee with
4 respect to judicial administration.
5 He urged us in the strongest terms not to go to a
6 court of criminal appeals for several reasons. One was
7 that in his experience, and we found that to be pretty
8 much true throughout, that Criminal Courts of Appeal and
9 specialized criminal courts are, whether it's correct or
10 not, perceived not to be of a dignity of a court of
11 general jurisdiction. The other thing, and hence they
12 aren't accorded, you know, the kind of deference that the
13 other courts are, they become, in effect, a second class
14 court and the clients tend to get second class treatment.
15 The other thing -- and this applies to any
16 specialized court -- in any specialized court, there tends
17 to develop around those courts jargon that's particular to
18 that court, a Bar that's peculiar to that court. But most
19 importantly what happens is, that the judges of those
20 kinds of specialized courts become, in effect, tunnel
21 visioned because that's all they see. And we perceive one
22 of the great virtues of having a court of general
23 jurisdiction handle criminal appeals, including capital
24 cases, was that it brought the view of a generalist judge
25 to these kind of issues. For all of those reasons, the
1 court rejected it.
2 I stand today just as firmly convinced that courts of
3 criminal appeal are not a good idea. And, in particular,
4 if you propose to vest in that court the capital cases in
5 this state, it seems to me that it is good public policy
6 that when you're talking about taking one's life that the
7 court of the highest dignity, in the state ought to be
8 passing on those kinds of sentences and not a court that
9 is of some sort of lesser dignity because of the very
10 seriousness of that decision.
11 And I submit that, in fact, this perceived delay, or
12 delay in the process between initial conviction and when
13 there are executions, is very, very little attributable to
14 what goes on in the state system. And I'm not being
15 critical of the federal system, but it's the nature of the
16 interaction of two judicial systems in a federal system.
17 And hence, I submit to you, and I think I hold the same
18 view as Commissioner Kogan in that any speed-up in Texas
19 probably has resulted because of legislative changes and
20 not because of the existence of a court of criminal
21 appeals. And lastly, meaning no disrespect, I would not
22 like to emulate the Texas judiciary here in Florida. It
23 does not really enjoy the kind of reputation that our
24 judiciary does. So I'm opposed to this proposition.
25 CHAIRMAN DOUGLASS: Commissioner Barkdull?
1 COMMISSIONER BARKDULL: Mr. Chairman, Members of the
2 Commission, this is a drastic proposal. It proposes to
3 upset one branch of government extensively. The present
4 appellate system in this state came into effect about 41
5 years ago, after five or six years of extensive study.
6 The present trial court system in this state came into
7 existence about 25 years ago after extensive study in the
8 culmination of some 27 different courts.
9 There is a balance that's established in the
10 Constitution that has been envied by many states across
11 the country. We have a system where the Legislature has
12 the ultimate control over what the trial courts will
13 consider. The Constitution prescribes the appellate
14 review. The system basically works this way: The truth
15 of a matter is established in the trial courts. Any
16 judicial error is corrected in the District Courts of
17 Appeal. The Supreme Court has the original jurisdiction
18 in death cases, bond cases and matters involving
19 constitutionality of a statute and it keeps the law
20 uniform within the state.
21 The Supreme Court cannot create judgeships without
22 the approval of the Legislature. And except in
23 extraordinary circumstances, the Legislature can't create
24 judgeships without the concurrence of the Supreme Court.
25 And if you understand, and if I had the time to stand here
1 and explain it, there were reasons that those two
2 safeguards were put in. There was a time when the
3 Legislature created more judges than were needed because
4 there were people that thought they could get the
5 appointments. Then when we put a limit on how many judges
6 they would have, then the Legislature would create
7 circuits because each circuit had to have a judge.
8 So these qualifications as to how you establish
9 courts and how you establish judges for those courts are
10 lodged in both departments, the judiciary and the
11 Legislature. It has worked very well. I urge you not to
12 adopt a system that has been studied many times, to my
13 knowledge, probably over 35 years the Texas Court of
14 Appeals has been looked at by numerous judicial councils
15 in this state, by the Bench and Bar Commission, by the
16 Article V Commission and nobody that has studied this
17 system has recommended it. I don't recall at any public
18 hearing anybody recommending that we go to the Texas
20 And I would urge you not to do that. And I also urge
21 you not to upset something that's taken us well over 40
22 years to establish, and believe me, not just because I
23 have been a member of the judiciary and there are other
24 members of the judiciary here, this is a system that's
25 looked at across the nation as one of the best.
1 And I assure you that adding on a fifth wheel like
2 putting on this court of appeals is not going to improve
3 it. I urge you to defeat this proposition.
4 CHAIRMAN DOUGLASS: Further debate? Commissioner
6 COMMISSIONER KOGAN: I think both Commissioner
7 Sundberg and Commissioner Barkdull have expressed
8 everything that I would need to express. I think a lot of
9 people need to understand that once a case reaches our
10 court, from the trial court on the initial appeal, that
11 case is disposed of within six months to a year. What
12 happens then is that case goes into the federal system and
13 wanders around in the federal system for a number of
14 years. When it is finished in the federal system, then
15 the particular defendant has the right to come back for
16 what we call "collateral relief", and that's when they can
17 raise such issues as the ineffective assistance of counsel
18 and newly discovered evidence.
19 Again, they have to start in the trial court. When
20 they are finished in the trial court, they come to us.
21 Again, those cases are out within six months to a year.
22 But you see then again they recycle in the federal system
23 and then when they are through in the federal system,
24 years later, then it's up to the Governor's Office to sign
25 the death warrant. I mean, they are just sitting there.
1 And when the death warrant is signed, that's what the
2 habeas corpus and the new 3.850s are filed with us, again
3 we get them. And under those circumstances, as the
4 Chairman and anyone, Commissioner Brochin, who have ever
5 been in the Governor's Office, are concerned with these
6 cases, know what happens then, we get those out within a
7 matter of 30 days or less. But they are back in the
8 federal system. They are the Federal District Court, the
9 11th Circuit Court of Appeals, on the way to the Supreme
11 So consequently, we move these cases despite the
12 inordinate amount of time we spend on them. We get them
13 out in time, but we have no control over the federal
14 system and certainly we have no control over when the
15 Governor signs the death warrant. Just because we affirm
16 a conviction and say the death penalty is proper in a
17 particular case, that case goes nowhere until the Governor
18 signs the death warrant. And you have all these other
19 folks -- so these cases, by their very nature, everybody
20 has to understand, are going to move slowly and they move
21 slowly through the system for a very, very important
22 reason and that is because a person's life is on the line.
23 And therefore every judge, every justice who
24 considers this case, somewhere along the line is going to
25 take extraordinary care and time and effort to make sure
1 that a mistake has not been made and the death penalty is
2 proper in that particular case.
3 So that's all I wanted to add, Mr. Chairman, to this
4 particular debate.
5 CHAIRMAN DOUGLASS: Thank you. Any further debate?
6 Would you like to close, Commissioner Hawkes?
7 COMMISSIONER HAWKES: Thank you, Mr. Chairman. I can
8 see that this is probably your most favorite proposal. I
9 suppose even if I told you it was my take home proposal,
10 it probably isn't going to get very many votes. But I
11 would suggest and ask for your favorable consideration,
12 but I would suggest that the Supreme Court is extremely
13 busy and if we had a court that could spend more time on
14 these cases, then I think that we would probably achieve a
15 better work product. And with that, thank you, Mr.
16 Chairman, and appreciate your opportunity.
17 CHAIRMAN DOUGLASS: All right. Unlock the machine
18 and let's vote.
19 (Vote taken and recorded electronically.)
20 CHAIRMAN DOUGLASS: Lock the machine and announce the
22 READING CLERK: Five yeas, 22 nays, Mr. Chairman.
23 CHAIRMAN DOUGLASS: All right. It fails. Proposal
24 No. 1 by Commissioner Sundberg, it has been approved by
25 the Committee on Declaration of Rights, it was adopted as
1 amended, and we are on a motion to -- the motion to
2 reconsider was adopted and the consideration was deferred
3 until today. So we are reconsidering this, the motion
4 having been adopted. Would you read the proposal, please?
5 READING CLERK: Proposal 1, a proposal to revise
6 Article I, Section 9, Florida Constitution; providing that
7 private property may not be forfeited unless the owner is
8 convicted of a felony and has exhausted all appeals.
9 CHAIRMAN DOUGLASS: All right. Commissioner
10 Sundberg, this was amended, of course, and it is on
11 reconsideration and would like for you to present it
12 again, please.
13 COMMISSIONER SUNDBERG: Mr. Chairman, this proposal
14 provided that the same burden of proof would be required
15 in any forfeiture proceeding as is required for a
16 conviction of the crime out of which the forfeiture would
17 have arisen.
18 I frankly, I have been fairly persuaded by some
19 pretty persuasive people, not the least of whom is the
20 Attorney General, that this is not an issue that requires
21 attention at this time. Hence, I will not attempt to
22 withdraw it, but I do not intend to urge upon you with
23 great force the necessity for this. I think, if nothing
24 more, than out of a sense of we have got to start some
25 culling here, I think this is one that can be culled.
1 CHAIRMAN DOUGLASS: Did I understand you to say you
2 are withdrawing it?
3 COMMISSIONER SUNDBERG: I did not say I was
4 withdrawing it. I don't think I can withdraw on a
6 CHAIRMAN DOUGLASS: No, you could move, I guess, and
7 we could all agree to it. I understand there are
8 amendments on the desk.
9 COMMISSIONER SUNDBERG: Mr. Chairman, may I waive the
10 rule and move to withdraw? It's hard to give up in this
12 CHAIRMAN DOUGLASS: Without objection, it is
14 Now we will move on. Proposal 168 by Commissioner
15 Corr, Commissioner Corr -- Commissioner Barkdull?
16 COMMISSIONER BARKDULL: Mr. Chairman, this is one
17 that Commissioner Corr proposed where he was trying to get
18 direct responsibility for the executive departments and,
19 in effect, he destroyed the collegiality of the reduced
20 Cabinet size. We put it on reconsideration. I have
21 offered an amendment which Commissioner Corr has no
22 objection to. I have also run it by Commissioner Alfonso
23 who has no objection to it and they are beginning to pass
24 it out -- no?
25 (Off-the-record comment.)
1 COMMISSIONER BARKDULL: It may be in the packet. It
2 restores three words to the Constitution that eliminates a
3 problem that Commissioner Barnett raised when we were
4 discussing about the reduced Cabinet size and that allows
5 collegial responsibility to be restored.
6 CHAIRMAN DOUGLASS: Well, all right. Let me do this
7 before we go further. I don't believe we read it, the
8 Proposal 168. And I would ask the clerk to read 168.
9 READING CLERK: Proposal 168, a proposal to revise
10 Article IV, Section 6, Florida Constitution, providing
11 that an entity purportedly within an executive department
12 which is not subject to the direct supervision of the
13 agency head is a department providing that the amendment
14 does not affect the status of such entities to issue
15 revenue bonds before a specified date and to create
16 Article XII, Section 23, Florida Constitution, providing
17 that the amendment does not affect the status of such
18 entities in existence on the effective date of the
19 adoption of the amendment.
20 CHAIRMAN DOUGLASS: All right. Now does everybody
21 understand what we are on here and Commissioner Barkdull
22 has an amendment on the table. Would you read the
23 amendment, please?
24 READING CLERK: By Commissioner Barkdull on Page 1,
25 Line 29, delete the phrase "the Governor and the Cabinet"
1 and insert "the Governor and Cabinet".
2 CHAIRMAN DOUGLASS: All right. Now at the time that
3 you are explaining your amendment, you might want to
4 explain the proposal, Commissioner Barkdull.
5 COMMISSIONER BARKDULL: This was a proposal of
6 Commissioner Corr's which placed responsibility for the 25
7 departments of government under individual -- individuals,
8 either Governor or a member of the Cabinet did not appear
9 to allow for collegial responsibility. It was pointed out
10 in the debate that we should preserve collegial
11 responsibility in certain instances. I think Commissioner
12 Butterworth raised the Department of Law Enforcement and
13 there are some others that had statutory collegial
15 It was considered that by striking the words the
16 Governor and the Cabinet we eliminated the ability for
17 that collegial responsibility to continue or to be placed
18 therein later on by legislation.
19 And the purpose of my amendment is to put those words
20 back in which would permit collegial responsibility both
21 in the Constitution and by statute.
22 CHAIRMAN DOUGLASS: Everybody understand? Any
23 further discussion on the amendment? All right. All in
24 favor of the amendment say aye. Opposed.
25 (Verbal vote taken.)
1 CHAIRMAN DOUGLASS: Amendment carries. Is there
2 another amendment on the table?
3 READING CLERK: Yes, Mr. Chairman.
4 CHAIRMAN DOUGLASS: Read the amendment.
5 READING CLERK: By Commissioner Alfonso, on Page 2,
6 between Lines 14 and 15, insert Section 2, Section 14 of
7 Article IV of the Florida Constitution is created to read,
8 State Board of Agriculture, the State Board of Agriculture
9 shall be a body corporate and have such duties as are
10 provided by law. The State Board of Agriculture shall
11 consist of seven members appointed by the Governor to
12 staggered four year terms subject to confirmation by the
13 Senate. The State Board of Agriculture shall appoint the
14 Commissioner of Agriculture.
15 CHAIRMAN DOUGLASS: Commissioner Alfonso?
16 COMMISSIONER ALFONSO: Thank you, Mr. Chairman. This
17 language really mirrors our language that we had included
18 in our Cabinet reform package that dealt with the
19 Commissioner of Education and the Board of Education and
20 it really mirrors that so we treat both of those
21 departments now equally.
22 I brought it up to really let the folks from the
23 agricultural community know that we clearly intended to
24 deal with it in this fashion. I think it would, again,
25 continue with a philosophy for our Cabinet reform package
1 of gubernatorial appointment and then having those experts
2 in that commission go ahead and appoint the agricultural
3 commission, that's plain and simple what it is.
4 CHAIRMAN DOUGLASS: All right. Anybody want to be
5 heard on the amendment? Commissioner Morsani?
6 COMMISSIONER MORSANI: Mr. Alfonso, I'm sorry, I
7 missed that day that we -- when you had this vote. Why --
8 I thought that the purpose of the change in the Cabinet
9 was to eliminate rather than continue to increase and put
10 a checks and balances. Why are we creating basically
11 another entity with this agricultural commission? I
12 thought that the intent was when we voted out the Cabinet
13 reform to eliminate some of these areas. I mean, maybe
14 they want it, but is that the right thing for our state?
15 Do we need this in this Constitution?
16 COMMISSIONER ALFONSO: Well, one, I think we are
17 going to find out if it is the right thing. Two, I am
18 mirroring the language and the proposals under the debates
19 that we had here for the Board of Education to go ahead
20 and deal with it so that constitutionally we could deal
21 with the fact that we were just taking Agriculture out of
22 the Cabinet. They were being left in what I considered to
23 be kind of limbo. Yes, it could have been dealt with by
24 the Legislature and it still can. But I am putting this
25 amendment on it because I felt that it rounded out our
1 whole package for the Cabinet reform issues that we
3 COMMISSIONER MORSANI: Well, I don't know why we need
4 it in here, I'm sorry. I apologize for having a
5 discussion with my chairman there, but I just don't know
6 why we need this in the Constitution when we are -- if the
7 Legislature wants to do something about them, let them do
8 something about it. But I think we have passed a change
9 in the proposed makeup of the Cabinet; I can't see why
10 this -- why we have to mirror anything at this time and I
11 would be opposed to it.
12 COMMISSIONER ALFONSO: Well, sir, when we brought
13 these things up, I mean, we really dealt with every
14 office, every former Cabinet office including the
15 Commissioner of Education, but we really never dealt with
16 the Commissioner of Agriculture in any way in our Cabinet
17 reform package. And this is a way that satisfies, or at
18 least shows our intent to deal with the agricultural
19 commissioner and his commission.
20 You are absolutely right, I felt this was an
21 amendment that would allow us to round out our whole
22 package and that's why I proposed the amendment. I have
23 not yet heard and I am sure I will from the agricultural
24 folks if they want to deal with it in fashion.
25 We had a very lengthy debate on the Education
1 Commissioner's office and the Board of Education, of which
2 I was, you know, favorably disposed to. And it was my
3 thought that this then would mirror that and allow at
4 least to get us, you know, get us a proposal out that we
5 could get input from.
6 COMMISSIONER MORSANI: Well, if I might. I haven't
7 received a single letter from anyone in the agricultural
8 department. I have an agriculture periphery of what I do
9 in life and I haven't received a single objection or
10 anyone in the agriculture field that is suggesting that we
11 do anything with this. Now maybe others are being
12 inundated; I'm not aware of that though.
13 COMMISSIONER ALFONSO: And you may not, but it was my
14 feeling that you were about to get a bunch of letters and
15 that's why I brought forth this amendment -- so.
16 CHAIRMAN DOUGLASS: I like that. Commissioner Riley.
17 COMMISSIONER RILEY: I have a question for
18 Commissioner Alfonso. What about insurance then? I
19 mean --
20 COMMISSIONER ALFONSO: That would be combined with
21 the comptroller's office and the chief financial officer
22 in our Cabinet package.
23 COMMISSIONER RILEY: So of the existing Cabinet
24 members, there will be some that would be combined but
25 what you are saying is that agriculture was just simply
1 left out completely and therefore this is.
2 COMMISSIONER ALFONSO: Yes, we never really, we
3 talked about it in committee briefly, we talked about how
4 we were going to deal with it. But since you had a
5 proposal dealing with the Board of Education and it was
6 favorably moved here and we thought this was a way to take
7 up the issue with agriculture.
8 COMMISSIONER RILEY: Well, I would hope they would be
9 argued or debated separately.
10 COMMISSIONER ALFONSO: I'm sure they will be.
11 CHAIRMAN DOUGLASS: They are being debated separately
12 right now, Commissioner Riley, so if you want to, this is
13 your shot. All right. Now Commissioner Barnett?
14 COMMISSIONER BARNETT: Follow-up question. What is
15 the reason to distinguish the Department of Agriculture
16 functions from the functions that are not combined in the
17 new fiscal officer from the Department of Banking -- or
18 the banking and finance aspects and the pure insurance
19 regulatory aspects? What is the reason to treat them
20 differently and constitutionalize one of those functions
21 and not the other two?
22 COMMISSIONER ALFONSO: I am proposing this amendment
23 to the body to see if it is proper to constitutionalize
24 one. It may very well be dealt with. If we have a
25 different priority towards education than we do towards
1 agriculture or if there is a different makeup of those
2 two, then it may very well be dealt with differently and
3 dealt just how you are suggesting.
4 COMMISSIONER BARNETT: There would be nothing to
5 limit the Legislature from creating a Department of
7 COMMISSIONER ALFONSO: Nothing that I know of would
8 limit them from creating a Department of Agriculture.
9 CHAIRMAN DOUGLASS: Commissioner Barnett?
10 COMMISSIONER BARNETT: I have a question on the
11 main --
12 CHAIRMAN DOUGLASS: On the main proposal when we get
14 COMMISSIONER BARNETT: When we get there, yes.
15 CHAIRMAN DOUGLASS: Commissioner Thompson.
16 COMMISSIONER THOMPSON: I just wanted to ask
17 Commissioner Alfonso a question or two.
18 CHAIRMAN DOUGLASS: He yields.
19 COMMISSIONER THOMPSON: In response to that last
20 question that was asked by Commissioner Barnett. There
21 would be nothing, as you understand it, to prohibit the
22 Legislature from establishing a Department of Agriculture
23 unless there are already enough departments.
24 COMMISSIONER ALFONSO: Unless there were already
25 enough departments.
1 COMMISSIONER THOMPSON: We had already reached the
2 cap, so that's one problem. Other thing I would like to
3 ask you is, if you had ever heard former Lieutenant
4 Governor Wayne Mixson, I wish he was here, talk about the
5 three-legged stool of Florida's economic base. And the
6 first one is new construction and that comes and goes
7 based on what the economy is and the second one is tourism
8 and it goes real hard when the economy is threatened a
9 little bit. And the third one is agriculture and it is
10 our most stable industry in this state.
11 And I think what we are hearing, and I think,
12 Commissioner Alfonso, if you agree, you have heard from
13 your ag community and they are a little concerned about
14 their base and their relationship to state government.
15 And you think that if we put something into Style and
16 Drafting that would give us the opportunity to readdress
17 the issue of how to deal with agriculture, we might be
18 able to get their support for some of the other things
19 that we are doing. Is that basically where you are coming
21 COMMISSIONER ALFONSO: That is absolutely where I'm
22 coming from. And I appreciate you putting it that way.
23 And I -- obviously, we all know the importance of
24 agriculture to our state and to its economy. So I bring
25 this amendment forward. It gives us a way of dealing with
1 it in Style and Drafting. It mirrors what we have done
2 with education and now we can hear how best to take this
3 up as we go forward.
4 CHAIRMAN DOUGLASS: All right. Any further debate on
5 the amendment? The amendment that would deal with the
6 agriculture situation. Everybody ready to vote? All in
7 favor of the amendment say aye. Opposed.
8 (Verbal vote taken.)
9 CHAIRMAN DOUGLASS: The amendment carries. All
10 right. We are now on the proposal and we will hear from
11 proponents first if -- all right, yes, Commissioner
13 COMMISSIONER BARNETT: Just a question. Currently in
14 the Constitution we are limited in the number of
15 departments that we can have, I think the number is 25,
16 and we are getting close to that. It comes and goes as we
17 do legislative reform. This language in this original
18 proposal, as I understand it, makes those entities, let me
19 see, let me see the exact language, entity purportedly
20 within the department which is not subject to the direct
21 supervision of the head of the department. It
22 constitutionally makes these entities a department.
23 And I have asked the staff what that would affect,
24 and they tell me that it is possible that it could be
25 eight or ten currently existing entities in state
1 government. Examples will be the Agency for Health Care
2 Administration, the Division of Administrative Hearings,
3 and several things like that which are administratively --
4 CHAIRMAN DOUGLASS: I know we are having a little
5 trouble with order here.
6 COMMISSIONER BARNETT: -- which are administratively
7 housed in a department but function independently. And so
8 if this is adopted, it looks like that we will be in a
9 situation where we are at or near the constitutional cap
10 on departments and yet we are going to have up to eight or
11 ten of these entities that are administratively assigned
12 to a department but not subject to the agency head. What
13 are we going to do? What's going to be the practical
14 implications of that for the Legislature or, you know,
15 what's going to happen under those circumstances? Because
16 we are not going to have enough places. This mandates
17 they be treated as a department, but we don't have any
18 room left or we may only have one or two slots left.
19 COMMISSIONER ALFONSO: Just as a lay person, I would
20 assume they would consolidate some departments.
21 COMMISSIONER BARNETT: So it is going to force the
22 Legislature simply to come in and consolidate the
24 COMMISSIONER ALFONSO: That's my assumption.
25 CHAIRMAN DOUGLASS: All right. Let's see, we are on
1 the proposal now. Does anybody want to be heard on the
2 proposal? Does everybody understand what happened with
3 the 25 department issue? All right. Does anybody want to
4 be heard on this now? We are fixing to vote. You want to
5 close at all, Commissioner Alfonso? All right.
6 Commissioner Thompson.
7 COMMISSIONER THOMPSON: I believe, and I don't know
8 whether Commissioner Alfonso, and I am just sorry I was
9 out of the chamber when he started this debate, but we
10 took this up earlier and it has been amended so that the
11 engrossed proposal is different than the one showing in
12 your package and some of the things that Commissioner
13 Barnett has been concerned about about reaching the cap
14 and so forth is not applicable as I understand it.
15 Number one, there was an amendment that was put on
16 that said if you were now some kind of a division or
17 department and you had bonds outstanding, you would
18 continue to exist no matter whether this amendment is
19 adopted by the people or not.
20 Number two, if you are a department, agency, or
21 whatever you want to call it at this point in time,
22 regardless of how your supervision is and what your chain
23 of command is, you are grandfathered in at this time. So
24 this is only a prospective proposed amendment at this
25 point, I think, based on the amendments that have been
1 adopted previously.
2 CHAIRMAN DOUGLASS: That's correct. All right. If
3 you are ready to vote, we will open the machine.
4 (Vote taken and recorded electronically.)
5 CHAIRMAN DOUGLASS: Okay. Everybody hasn't voted.
6 Lock the machine and announce the vote.
7 READING CLERK: Eighteen yeas, five nays,
8 Mr. Chairman.
9 CHAIRMAN DOUGLASS: All right. By your vote you have
10 adopted Proposal 168 as amended. We now move to proposal
11 149 which, I believe, was a general proposal, Commissioner
12 Scott, was it not? And there's an amendment on the desk.
13 COMMISSIONER SCOTT: Mr. Chairman, Commissioners,
14 this was a proposal that I just put in in case we needed
15 it for something and I understand that Commissioner Connor
16 has an amendment but I'm not sure.
17 CHAIRMAN DOUGLASS: All right. Let's have order,
18 please. Commissioner Scott, the Secretary tells me that
19 this needs to be withdrawn from the committee, so.
20 COMMISSIONER SCOTT: Without objection.
21 CHAIRMAN DOUGLASS: Without objection it is withdrawn
22 from the committee. All right, proceed.
23 COMMISSIONER SCOTT: Mr. Chairman, this is a proposal
24 that I just put it in in case we needed something and I
25 understand that Commissioner Connor has found something
1 important for it. So he has an amendment. So if he'll
2 read the amendment.
3 CHAIRMAN DOUGLASS: Are we ready to proceed with
4 Commissioner Connor's amendment which is going to become
5 the proposal?
6 COMMISSIONER CONNOR: Yes, sir. They are
7 distributing it now as I understand it.
8 CHAIRMAN DOUGLASS: I'm right on that, am I not,
9 Commissioner Scott? His amendment is going to be the
10 proposal when we finish with his amendment.
11 COMMISSIONER SCOTT: That's correct, it is a
12 strike-everything amendment that will then become the
14 CHAIRMAN DOUGLASS: All right. So are we prepared --
15 you can go ahead. And if everybody would pay attention,
16 please, Commissioner Connor will explain the amendment
17 that's being distributed.
18 THE WITNESS: Commissioner Connor.
19 COMMISSIONER CONNOR: Thank you, Mr. Chairman.
20 Members of the Commission, if I could have your attention,
21 I dare say we may have a proposal that will enjoy
22 virtually the ununanimous consent of this body and in an
23 effort to always promote harmony, which I specialized in
24 on some of my proposals.
1 CHAIRMAN DOUGLASS: Does everybody want to vote on
3 COMMISSIONER CONNOR: I think this is a good one.
4 Ladies and gentlemen, the proposal would be an amendment
5 to Article V, Section 5 which would add new language and
6 you'll see some language in front of you, and
7 Mr. Chairman, I'm going to propose orally that we drop one
8 word, "naming". And this, all this amendment would do
9 would be to add the following to Article V, Section 5," In
10 primary elections all --
11 CHAIRMAN DOUGLASS: It's Article IV, isn't it?
12 COMMISSIONER CONNOR: Thank you, I'm sorry, Article
13 IV, Section 5. Thank you very much. And it says simply,
14 as I proposed to amend it.
15 CHAIRMAN DOUGLASS: It is amended on the desk,
17 COMMISSIONER CONNOR: Thank you. In primary
18 elections all candidates for the offices of Governor shall
19 run without a Lieutenant Governor candidate. Now, ladies
20 and gentlemen, the point very simply is this,
21 gubernatorial candidates often run in a field of
22 candidates, typically in a fine field of candidates and
23 those candidates are very often very effectively vetted
24 out, if you will, during the primary process.
25 And so the public has an opportunity to assess that
1 entire field of candidates and very often at the end of
2 that process the leading gubernatorial candidate
3 oftentimes would like to be able to have dropped back
4 within that field and pick one of those candidates whom
5 they felt comfortable with, whom they felt received a
6 favorable response to the public and who had, if you will,
7 passed inspection in the public arena before going on to
8 be named to the ticket.
9 And I think this would be a proposal that would inure
10 to the benefit of gubernatorial candidates and all
11 parties, it provides an opportunity, I think, to after a
12 potentially fractious primary to reunify the party by
13 drawing in one of the candidates against whom the leading
14 candidate ran to bring that person on to the ticket. And
15 I think it eliminates problems that may come from a
16 candidate not having been under the public scrutiny
17 associated with the gubernatorial candidacy before.
18 So whether you are Republican, Democratic,
19 Libertarian or Independent, I believe that this provides
20 us with the best opportunity to field the best set of
21 candidates for Governor and Lieutenant Governor regardless
22 of the party that's involved, and I encourage your support
23 of the proposal.
24 CHAIRMAN DOUGLASS: Commissioner Barkdull?
25 COMMISSIONER BARKDULL: Will the gentleman yield for
1 a question?
2 CHAIRMAN DOUGLASS: He yields.
3 COMMISSIONER CONNOR: Yes, sir.
4 COMMISSIONER BARKDULL: Commissioner Connor, as I
5 read your proposal, this would not limit the choice to the
6 candidates that did not make the endorsement in the
8 COMMISSIONER CONNOR: By no means would there be such
9 limitation, that's correct.
10 COMMISSIONER BARKDULL: Thank you.
11 COMMISSIONER CONNOR: It simply affords the
12 opportunity, actually, for a broader ticket than otherwise
13 might be permitted under the existing system.
14 COMMISSIONER SMITH: Rise for a question.
15 CHAIRMAN DOUGLASS: Commissioner Smith.
16 COMMISSIONER SMITH: Do I understand this correctly
17 that if this had been in law in 1994 it may have allowed
18 for the possibility maybe of a Bush/Connor ticket?
20 COMMISSIONER CONNOR: That's very remotely possible
21 but anything is within the realm of possibility.
22 COMMISSIONER SMITH: Just trying to bring it closer
24 CHAIRMAN DOUGLASS: It more probably would have been
25 a Bush/Smith ticket; would it not, Commissioner?
1 COMMISSIONER CONNOR: That would have been more
2 likely. More probably than not.
3 CHAIRMAN DOUGLASS: But at least he would have had an
4 opportunity to select the best man available, Commissioner
6 COMMISSIONER CONNOR: That's exactly right.
7 CHAIRMAN DOUGLASS: Excuse me, best person available,
8 I'll tell you what, we are learning here today.
10 CHAIRMAN DOUGLASS: All right. Does anybody want to
11 be heard on this with Governor Connor? If not, we will
12 proceed to vote. Open the machine.
13 (Vote taken and recorded electronically.)
14 CHAIRMAN DOUGLASS: We adopted the amendment. I want
15 you to know that -- close the machine and announce the
16 vote, please.
17 READING CLERK: Twenty-five yeas, three nays,
18 Mr. Chairman.
19 CHAIRMAN DOUGLASS: I want you to know, Commissioner
20 Connor, you weren't elected unanimously, you had three
21 holdouts against you and they were nonpartisan.
22 COMMISSIONER CONNOR: And I won't be picking them on
23 any future ticket, I can tell you right now. They won't
24 even be up for consideration.
25 CHAIRMAN DOUGLASS: Commissioner Langley, you are out
1 of luck. Commissioner Anthony, you can go back to South
2 Bay. That's a good amendment and I don't mean to make
3 light of it, but a little levity might help us out a
4 little bit. Now, we will go to Committee Substitute for
5 Proposals 138 and 89 by the Committee on Education and
6 Commissioners Nabors and Riley. We are back on the state
7 Lottery proposal which was recommended as a Committee
8 Substitute approved by the Committee on Education, adopted
9 as amended and it came back -- is coming back on a motion
10 to reconsider by Commissioner Alfonso. The motion has
11 been adopted and consideration was deferred until this
12 week. It was on the calendar yesterday. It is coming up
13 today. I'll ask that the clerk read the proposal.
14 READING CLERK: Committee Substitute for Proposal
15 Nos. 138 and 89; a proposal to revise Article X, Section
16 15 of the Florida Constitution; limiting the use of state
17 Lottery net proceeds to financing certain educational
18 facilities or funding early childhood care and education
20 CHAIRMAN DOUGLASS: All right. There is an amendment
21 on the desk and an amendment to the amendment on the desk.
22 We will take up the amendment. Would you read the
23 amendment, please?
24 READING CLERK: By Riley, Sundberg, and Nabors, on
25 Page 1, Line 27, through Page 2, Line 16, strike all of
1 said lines and insert lengthy amendment.
2 CHAIRMAN DOUGLASS: All right. On the amendment, who
3 made the amendment? Who proposed the amendment? Riley,
4 Commissioner Riley, on the amendment.
5 (Off-the-record comment.)
6 CHAIRMAN DOUGLASS: Speak to me.
7 COMMISSIONER RILEY: I am not sure they have on their
8 desk what I have in my hands which is a -- an amendment to
9 what we passed previously and in addition to that, an
10 additional amendment.
11 CHAIRMAN DOUGLASS: We are not there yet. First of
12 all, you have got an amendment which really replaces what
13 we passed, correct? That's what we have before us right
14 now. Tell us what that does that the other one didn't do.
15 COMMISSIONER RILEY: We have --
16 CHAIRMAN DOUGLASS: You are supposed to have it on
17 your desk. Do they have it? You do. Commissioner
18 Barnett, look on your desk, please.
19 COMMISSIONER BARNETT: Mr. Chairman, what we have on
20 our desk is I think what we passed before -- oh, okay, so
21 we don't have it.
22 CHAIRMAN DOUGLASS: Hold on. Now you will get it. I
23 didn't mean to infer it was hidden on your desk, but I
24 have it on mine and I can't find it either. Commissioner
25 Riley, what we need to do is for you to tell us what the
1 amendment does and then -- that the other didn't do -- and
2 then we will discuss the amendment to the amendment.
3 COMMISSIONER RILEY: Correct. Basically this does
4 three specific things separate from the amendment to the
5 amendment. First of all, it will add under Section 1,
6 where it talks about financing and refinancing, it will
7 add the word "heretofore". So it will now read, on No. 1,
8 "to finance or refinance as provided by general law bonds
9 or certificates of indebtedness heretofore issued by the
10 state or school district", et cetera. We are adding that.
11 The second, the second part of the change is to add a
12 number five, which, in fact, adds the school advisory
13 councils as established pursuant to 229.58, Florida
14 Statutes, or their successor in function. We are
15 answering all of the questions that were brought up
17 And the third change on the initial, this initial
18 amendment, is a schedule of implementation which answers
19 the questions on the Bright Futures Scholarships. We are
20 like Smith-Barney, you talked and we listened. And we
21 went back very carefully and made sure because we
22 understand that this is extremely important and if you
23 looked at all the papers, what they talked about the next
24 day was almost exclusively the Lottery and what we had
25 done and then it talked about how it was going to block
1 out the Bright Futures Scholarships. So we have made sure
2 that we have put that back in with some time limitations.
3 Now before you say that that doesn't do what you want
4 to do as far as the future in 20 years, and while I
5 realize I'm getting a little bit ahead of this existing
6 amendment, the amendment to the amendment will take care
7 of the years after that in terms of future scholarships.
8 But what this initial amendment does is to bring back into
9 the possibilities of the Legislature to take care of and
10 to fund the Bright Futures Scholarships with the Lottery
12 So again, we listened to all -- we want this to pass.
13 I think we all know that there is a problem that we need
14 to fix. We listened to all of the ways that you said our
15 original proposal didn't quite fix it and we have fixed
16 that with this amendment. So I don't think there is
17 anything else we can do. We have not put in percentages.
18 We have not told the Legislature how they are going to
19 divide the dollars. We have listed the very important
20 things and very important areas that everybody agrees with
21 need to be funded by the Lottery proceeds.
22 CHAIRMAN DOUGLASS: Commissioner Mills?
23 COMMISSIONER MILLS: Commissioner Riley yield for a
25 COMMISSIONER RILEY: She does.
1 COMMISSIONER MILLS: The -- as I understand the
2 current Lottery process, there is somewhere in the
3 neighborhood of 225 million or so spent on the basic
4 education finance program, the Florida Education Finance
5 Program. After the implementation, I understand the idea
6 is to do this for a supplement. But after the
7 implementation of this provision it would be
8 unconstitutional to spend that money; is that correct?
9 COMMISSIONER RILEY: I'm not sure I understand your
11 COMMISSIONER MILLS: Well, you enumerated --
12 COMMISSIONER RILEY: You mean in terms of other areas
13 that are not listed --
14 COMMISSIONER MILLS: So for the following uses.
15 COMMISSIONER RILEY: The intent here is to make sure,
16 again, that the Lottery proceeds are spent to enhance
18 COMMISSIONER MILLS: I understand --
19 COMMISSIONER RILEY: So if the answer to your
20 question then is does it limit to the things in this, yes,
21 it would.
22 COMMISSIONER MILLS: There are two issues that are
23 important for us to talk about and one is by doing the
24 language -- so for the following uses you have enumerated
25 every type of enhancement that is possible. And secondly
1 by saying solely you have constitutionally reduced
2 $225 million that's currently being spent on the basics in
3 school funding and haven't mandated it be picked up
4 otherwise; do you see what I'm saying?
5 COMMISSIONER RILEY: What we've done is taken what
6 was already agreed upon by this body, by majority vote,
7 and made it better, added to it complaints that people had
8 who voted against that original proposal.
9 COMMISSIONER MILLS: All I'm suggesting is I think
10 that original proposal had that same problem which is to
11 say that this is a cut -- this is a $225 million cut in
12 the FEFP.
13 COMMISSIONER RILEY: I see that as an advantage to
14 the proposal, not a disadvantage.
15 COMMISSIONER MILLS: Well, if you see it as an
16 advantage to the proposal, then either you think that the
17 school system is overfunded or you think the Legislature
18 will pick up 225 million.
19 COMMISSIONER RILEY: Again, the issue before us is,
20 how do we get back to what the people were promised when
21 we voted in the Lottery fund, that's the question we're
22 trying to answer. And you may not agree with how we've
23 answered that, but we think we have tried to define
24 enhancement as broadly as possible and to make it clear
25 that enhancement is where the dollars are supposed to go.
1 COMMISSIONER MILLS: Well, let me say my problem with
2 this is probably going to be that this is like giving your
3 kid candy before they eat their vegetables. I mean, we
4 have not adequately funded the baseline of education.
5 This cuts $225 million out of education and says, I
6 understand the Lottery was supposed to be a supplement. I
7 understand Lottery was supposed to be a supplement, but if
8 it hasn't been, the effect of this we must deal with. And
9 if you have full faith that the Legislature is going to
10 pay 225 million, then that's fine. But this
11 constitutionally limits uses for the next 20 years to
12 these five items and I just have some personal concerns.
13 I absolutely agree the Lottery is supposed to be for
14 a supplement, I mean, agree with that. But since it
15 hasn't been and since all of that we have read about
16 education doesn't indicate we're doing a great job, we do,
17 by doing this, at least constitutionally, reduce
18 $225 million that is currently going to baseline school
20 COMMISSIONER RILEY: And I say right on.
21 CHAIRMAN DOUGLASS: Commissioner Nabors.
22 COMMISSIONER NABORS: I'd like to speak to your
23 question if I can. As you recall, this is the debate we
24 had a week ago Thursday. And as I recall, you supported
25 the debate and voted for this proposal. The weakness we
1 had a week ago Thursday was, is we had no schedule in the
2 bill and so there was a provision that if it passed there
3 would be an abrupt consequence. We called it creating a
4 hole in the budget which would be a hole for 7 million for
5 Bright Future Scholars and another 200 and some million
6 for K through 12, another amount for community college,
7 another amount for higher education. So about
8 $400 million.
9 No question about that, as we talked about in that
10 debate, which you supported, that if you enumerate
11 provisions in the Lottery, you're going to create a hole.
12 What this is intended to do is to schedule out over a
13 period of years to give the Legislature time to make up
14 that hole. It does it in two ways.
15 One is is that there would not be a loss of that
16 money, day one. What it says is, it says beginning in the
17 year 2001, which is the same year that the tax fairness
18 initiative proposal we've discussed will be considered,
19 which we will have to see if that passes along, nothing
20 would happen until that year. After that year, the
21 exclusive uses will be phased out, one-third, one-third
22 over three years. You have five years before you would
23 get to an exclusive use of Lottery money.
24 You have five years before the enumerated uses would
25 be exclusive. Now what this does, which makes it a better
1 proposal we passed out last time, is it gives comfort to
2 all those students who have Bright Scholars, all those who
3 have it now, who have it next funding cycle and the next
4 funding cycle before year 2001, their awards are going to
5 be honored.
6 It also allows the Legislature, by a subsequent
7 amendment, to use Lottery money for Bright Futures or any
8 other scholarship program they want to. So what it puts
9 us in a position of doing is all the monies that are
10 currently being used by the Lottery, which are
11 theoretically for enhancement of education, whether you
12 agree or not, scholarship, bonding, pre-K is all
13 recognized. But those that aren't going for enhancement,
14 if this was to pass standing alone, would have to be
15 phased out over a five-year period, that's correct.
16 CHAIRMAN DOUGLASS: Commissioner Mills? Commissioner
17 Scott, you're next. He's still questioning.
18 COMMISSIONER MILLS: Commissioner Nabors, are there
19 other of that the 400 million, and I did vote for that
20 last time which proves I'm educable, that this -- of the
21 400 million, are there other funds that go to higher
22 education, other functions which would also not qualify?
23 COMMISSIONER NABORS: Yes. Yes, we talked about
24 that. There are approximately $400 million which has to
25 be made up either by the Legislature over a five-year
DIVISION OF ADMINISTRATIVE HEARINGS (850) 488-9675
1 period or by another proposal, which is a revenue-raising
2 proposal which we talked about earlier today or yesterday.
3 COMMISSIONER MILLS: There is nothing that requires
4 the Legislature to make up any of that in this proposal?
5 COMMISSIONER NABORS: Absolutely not. What this
6 proposal does is exactly what we heard the citizens tell
7 us, is we needed to have the Lottery be used for enhanced
8 education, not supplemental. All of us who have worked on
9 this, this is a consensus project, of all of us who worked
10 on this know of no other way to enhance the use of Lottery
11 money other than by enumerating them in the Constitution.
12 CHAIRMAN DOUGLASS: Commissioner Scott?
13 COMMISSIONER SCOTT: I want to speak on the proposal.
14 CHAIRMAN DOUGLASS: All right. Then I think
15 Commissioner Evans-Jones has some questions.
16 COMMISSIONER EVANS-JONES: I have a question.
17 Commissioner Nabors, we talked earlier this morning about
18 the Bright Scholars Program. And if I understand this,
19 the people who now have the Bright scholarship will be
20 able to continue it, which is great; I certainly want
21 that. But then what's going to happen after that? Is
22 there going to be as much money on the Bright Scholars
23 program as it is currently because a lot of young people
24 are being serviced by this now.
25 COMMISSIONER NABORS: The amendment to the amendment,
1 which will be considered next, has an enumerated use, the
2 use of the Lottery money for scholarship programs.
3 COMMISSIONER EVANS-JONES: All scholarship programs?
4 COMMISSIONER NABORS: Right.
5 COMMISSIONER EVANS-JONES: Which is Bright --
6 COMMISSIONER NABORS: Well, the Legislature -- I
7 would argue we wouldn't want to put in the Constitution a
8 specific program over a 20-year period. In the scheduled
9 provision we give assurances to those who have a warrant
10 under an existing program that they're not going to lose
11 those. That's one of the compromises that we've made in
12 order to try to enumerate an enhanced use. All those
13 things that the Legislature currently has blessed as
14 enhancement to education.
15 CHAIRMAN DOUGLASS: Question?
16 COMMISSIONER RILEY: May I add to that answer also,
17 Commissioner Evans-Jones, that this doesn't say -- it
18 enumerates the areas that the money can go to. It doesn't
19 say how or in what percentage. So the Legislature could
20 decide that a good bit of it goes to what they may
21 continue to call a Bright Futures Scholarship or they may
22 change the percentages. It could be, however, the
23 Legislature decides. We have left them some to do.
24 CHAIRMAN DOUGLASS: Question? All right. Now when
25 we get to debate, Commissioner Scott is first.
DIVISION OF ADMINISTRATIVE HEARINGS (850) 488-9675
1 COMMISSIONER BARKDULL: Commissioner Riley, assume
2 I've got the right amendment, this has got the number five
3 in it which says that the money proceeds solely for number
4 five to school advisory councils established pursuant to
5 Section 229.56, Florida Statutes; is that correct?
6 COMMISSIONER RILEY: Correct.
7 COMMISSIONER BARKDULL: I've got the same problem
8 with this as I had with the one the other day. You're
9 putting the statute into the Constitution and there is no
10 where in the Constitution that school advisory councils
11 are established, they're only established by law.
12 COMMISSIONER RILEY: I understand that and that's why
13 we added "or its successors and function" to clarify that.
14 CHAIRMAN DOUGLASS: His question is why didn't you
15 put it in the schedule.
16 COMMISSIONER BARKDULL: This is going in the body of
17 the Constitution and says this Constitution encompasses a
18 statute. What happens when that statute gets repealed or
19 amended or anything else? I don't think it's good
20 constitutional draftsmanship to have it referenced to a
21 statute and then have it included in the Constitution and
22 put it in the schedule.
23 COMMISSIONER RILEY: Perhaps would it be better off
24 then to eliminate the statute number? But I think adding
25 the term or the phrase "or their successors and function"
1 would answer the question that you had last time, which is
2 student advisory council is not in the Constitution, so
3 how can we reference it?
4 COMMISSIONER BARKDULL: That's still my problem
5 today. There's no establishment of school advisory
6 councils in the Constitution.
7 COMMISSIONER RILEY: Which is why we added the next
8 phrase in terms of what the school advisory councils,
9 which have been funded by these dollars, what they have
10 done in the past. If they go away, and there is the
11 replacement in function of what they have done, then they
12 could also be funded by this.
13 COMMISSIONER BARKDULL: Well, my point is that I
14 don't think we should lock into the Constitution a
15 statutory created item.
16 CHAIRMAN DOUGLASS: All right. Any more questions?
17 I had a question. When you-all were redoing this, did you
18 consider the language that you could continue to fund any
19 programs funded as of this date and henceforth they would
20 be used to enhance educational programs and then to list
21 these things here? In other words, the argument you were
22 making before is that the people were misled when they
23 thought it was all going to enhance education. Now we are
24 in the situation where we can correct that, and did you
25 consider correcting it effective when you do this
1 amendment which is -- would have the effect of enhancing
2 the existing programs and that would take care of your
3 Bright -- that's what I thought you-all were going to do.
4 Commissioner Sundberg?
5 COMMISSIONER SUNDBERG: I'm not sure, Mr. Chairman,
6 because I'm one of these three. I think insofar as the
7 scholarship program at Bright Futures, we did do that.
8 With respect to all others, and I assume sources of
9 funding or the recipients of funding that Commissioner
10 Mills referred to, yes, I considered that possibility and
11 rejected it.
12 CHAIRMAN DOUGLASS: That answers my question. You
13 considered it and didn't do it. Okay, Commissioner Scott.
14 COMMISSIONER SCOTT: Mr. Chairman, Commissioners, if
15 you look down this list, let's take the first item to
16 finance or refinance for construction or improvement or
17 renovation of schools. We don't know that it would be
18 successful, but the President of the United States
19 proposed to build 5,000 new schools with federal dollars.
20 Now, let's assume that that item, we're not going to use
21 this Lottery money for if that's successful, or we may not
22 use it for, you go to the next one, provision of
23 pre-kindergarten programs.
24 I don't know the numbers, but I think that we have
25 made major strides in spending on pre-kindergarten
1 programs and I'm trying to remember if they were mentioned
2 on a federal level also.
3 Then you go to early childhood care and education
4 established by general law which are not provided on the
5 effective date of this amendment. Well, let's assume
6 we've now come up with every possible good idea at the
7 time this goes into effect so we're not going to spend the
8 money for that. The school advisory councils or their
9 successors, what if there are no successors? What if the
10 people determine, all of the people that support
11 education, that this is not the way to do it. So now we
12 have no successors for that.
13 There's some provision, I understand, in another
14 amendment for Bright Scholarships. But to me, all of
15 this, other than item one which talks about financing and
16 refinancing of education, you'll be taking money from
17 education and putting it into something in the
18 Constitution that we don't know what it will be and how
19 much of it we will need. We don't know where it will come
20 from if we're not able to replace it, whether it's going
21 to come from law enforcement or health and social service
22 programs or environmental programs or whatever, which gets
23 back to the basic question here. It's a good idea; we're
24 not sure who made the promise but everybody talks about a
25 promise that was made and broken, and I'm still not clear
1 who made it. But in any event, let's assume that the
2 people want some further proof about education, as
3 Commissioner Jennings said last time, what it really is.
4 They thought the Lottery was going to solve all the
5 problems. And it realized that it's nowhere near enough
6 money -- I don't want to say it's a drop in the bucket --
7 but it's not a lot, percentage-wise, of educational
9 So as well intended as this is, as nice as it can be
10 to say, Yeah, we did something about the Lottery, and put
11 that on the ballot, whatever you are doing here,
12 amendments, Bright Futures, to add that one item, we may
13 come up with something better than that. Nobody heard of
14 Bright Futures until the last year or so. And in two or
15 three years, we may have something that's better than
17 So that's another reason why you shouldn't -- and,
18 Commissioner Nabors, with all due respect, in answer while
19 ago to something you said, Well, we don't want specific
20 programs in the Constitution. You made that statement
21 awhile ago, talking about programs that aren't. And this
22 is exactly the problem that I have with this whole thing.
23 It's a very specific statement of what you're going to do
24 with money that's, you know, that's for education. And I
25 think that that should not be in the Constitution under
1 any circumstances.
2 So I would urge that we did not vote for this
3 proposal even when it puts Bright Futures in it.
4 CHAIRMAN DOUGLASS: All right. Now, we're getting
5 the same people here. Anybody other than the people that
6 have spoken want to speak?
7 COMMISSIONER NABORS: Mr. Chairman, I think I
8 answered. I'd like to speak on the merits, I think, in
9 answering questions to Commissioner Mills. I'd like to
10 refresh the debate that we had last time.
11 CHAIRMAN DOUGLASS: I will recognize you. You are
12 recognized, Commissioner Nabors.
13 COMMISSIONER NABORS: Let's go back to -- I know
14 we've been here a couple days and everybody is getting
15 tired, and I want you to listen up. This is the debate we
16 had a week ago, two weeks ago yesterday. And let's go
17 back to basics. If you believe that the Lottery money
18 needs to go for enhancement of education, which is what
19 the citizens all over the state believe, what we've been
20 told, then you've got to -- there is no way that you can
21 ensure that without enumerating in the Constitution what
22 those enhancements are. Otherwise, it gets involved in
23 the morass of the general education financing.
24 And as we talked about at the last debate, the
25 temptation on the Legislature is too great in order to
1 balance the budget by using Lottery funds for general
2 education which would otherwise come from other dollars,
3 no question about that. We can't just sit here and say
4 Well, it would be nice, let's just make sure, use the
5 general term, general education because that's the dilemma
6 we're in now.
7 So what we talked about is, and one of the
8 difficulties with this process is, we don't have a public
9 hearing process where everybody can hear the testimony.
10 This is very important. But at the Education Committee,
11 those who are on the Education Committee, we had
12 compelling testimony, very compelling testimony, of what
13 was meant by the term "early childhood care and
14 education". When Charlie Reed testified, we had David
15 Loren (phonetic) who's a publisher of the Miami Herald, we
16 had Dr. Blackman talk about the things we're learning
17 about, the development of children in early years, all of
18 those were under the umbrella of readiness to succeed in
19 school. As part of the committee of the Governor's, the
20 bipartisan committee on education, is a subcommittee on
21 the readiness to succeed in school, how that is so vitally
22 important for children, whether it's children with
23 disabilities, whether it's education to parents, a whole
24 variety of programs has a real, real meaning in the term
25 "early childhood care and education".
1 So what this proposal basically says is, we've looked
2 at all the things that the Legislature traditionally has
3 used to enhance education, whether it's Lottery, whether
4 it's scholarships, whether existing pre-K program is not
5 fully funded, or whether it's the money that goes to the
6 school advisory councils. The other things the
7 Legislature does is not enhancement of education and what
8 this would do would enumerate these early childhood care
9 and education programs as a recipient of those funds,
10 phase down over six years.
11 And I will tell you, unless you dedicate it to a
12 specific program like that that's not part of the general
13 education process, you've done nothing more but deceive
14 the people again in terms of using some just general
15 language in terms of general education.
16 Charlie Reed whose job was with the University System
17 has told us if he had one dollar to spend on education
18 where he would spend it would be on early childhood
19 education to get children prepared to succeed in school.
20 The problem with that program is there is no galvanized
21 constituency for those programs. They never go unfunded.
22 When the deal is cut, they're never in the room and
23 there's never any ability for those programs to be funded.
24 It's nothing we could do more vitally important with our
25 Lottery money than to place the money, to dedicate it to
1 using the early childhood education program. And that in
2 itself will achieve our objective and it won't be
3 swallowed up in that black hole of general education.
4 Frankly, most of the educational community is very
5 supportive of this dedication of money. I've talked to
6 teachers, to teachers unions, and other people that said,
7 This is the appropriate thing to do to make sure the
8 Lottery money is dedicated to enhancing the education.
9 Anything we do is going to be the same bait and switch in
10 terms of general appropriation of education. And this
11 will either stand alone and be done over a six year
12 period, or if I can persuade you ultimately of the wisdom
13 of the tax initiative, the fairness of the tax initiative
14 program, we will have in the same base year, the capacity
15 under revenue and neutrality to fund the reduction in the
16 sales tax as well as these types of programs.
17 So I would suggest to you this is something we need
18 to continue into the public hearing process so you can
19 hear firsthand this testimony from these experts in early
20 childhood brain development. You can hear people like in
21 the University System that say this is the best way to
22 spend a dollar and not try to kill this today. It passed
23 with a large majority last Thursday. Why we brought it
24 back was to give us some comfort that this would not be a
25 catastrophic cut down in funds; it would be phased over a
1 reasonable period of time and that's exactly what this
2 proposal does.
3 I urge your support of it to keep it in the public
4 hearing process. You can hear the testimony we heard.
5 The only time we can hear testimony in this process,
6 outside a public hearing, is at committee. And I sent you
7 all a tape so you could have the benefit of that if you
8 took the time to hear it. It's compelling testimony.
9 (Commissioner Jennings assumes the Chair.)
10 COMMISSIONER JENNINGS: Commissioner Mills, for what
12 COMMISSIONER MILLS: Would Commissioner Nabors yield
13 for a question?
14 COMMISSIONER JENNINGS: It's that time of the
15 afternoon. It says "Jennings," I'm about to call you
16 Commissioner Jennings.
17 COMMISSIONER MILLS: Don't dare do that.
19 COMMISSIONER MILLS: Commissioner Nabors, I know
20 you're intentions are completely sincere and I agree with
21 your ultimate outcome. The question is, are you telling
22 me this provision allows to the year 2004 before the
23 Legislature would have to replace the funding to basic
25 COMMISSIONER NABORS: Before it would be completely
1 gone. After the year 2000, after fiscal year budget
2 2000-2001, the next year a third of the money would be
3 restricted by the provisions in the Lottery. Next two
4 years two-thirds and then the following year, all of it.
5 So that would still be the Lottery will continue to be
6 funded. Pre-K would continue to be funded, the bonds.
7 But the 400 million or so that's now being sucked up in
8 the general education, that will be phased out over five
9 years, yes.
10 COMMISSIONER MILLS: Will be phased out over five
11 years. Did you consider as an option one way to assure
12 that items would be supplemental would be to identify that
13 which it couldn't be spent for, that is like to say you
14 could not spend funds for the basic educational funding
16 COMMISSIONER NABORS: We talked about that but we
17 thought it was more helpful to try to enumerate what it
18 could be spent for because that would give more comfort to
19 the people. We've had enough hysteria about what is meant
20 by this at all. But I guess -- the problem doing that is
21 very difficult to describe in a general way, you know,
22 exactly what it is by the basic, you know, the basic --
23 COMMISSIONER MILLS: Well, if --
24 COMMISSIONER NABORS: Let me finish. I would argue,
25 you get to the same place. If your concern is there is
1 going to be a cliff drop at some point in time, that's
2 going to occur whether you define it this way or the
4 COMMISSIONER MILLS: Well, you have identified a
5 program that is statutory in nature, so it would be easy
6 enough to identify the FEFP which is statutory in nature.
7 The problem is, as much faith as I have in the legislative
8 process, that at some point it's impossible not to say
9 that this doesn't leave a hole in the FEFP. I might even
10 vote for this today and look for other options because I
11 really believe that we are -- we've gotten ourselves in a
12 constitutional bind by spending money for basic
13 educational services over a ten-year period. And, yes,
14 we're trying to put ourselves on withdraw.
15 And when we put ourselves on withdraw, though, we are
16 constitutionally prohibiting the money from being spent
17 for the most important educational services, which is
18 classrooms, books, the fundamental part of education. So
19 I do not -- I agree that this is where we should end up,
20 but I'm nervous about the impact.
21 COMMISSIONER NABORS: Commissioner Mills, may I ask
22 you a question?
23 COMMISSIONER MILLS: Yes.
24 COMMISSIONER NABORS: Would you believe that at our
25 last debate, you were the one that used the terminology
1 that what's happened to date has been a fraud in terms of
2 the way the money has been used for general education off
3 the Lottery?
4 (Off-the-record comment.)
5 COMMISSIONER NABORS: Can you hear me? You were the
6 one that used the term "fraud". Would you believe --
7 COMMISSIONER MILLS: I would agree with myself
9 COMMISSIONER NABORS: Would you believe any time you
10 restrict the use of Lottery money, either the way I did it
11 or the way you did it, it's going to create a hole to the
12 extent that fraud has occurred in the past. So the
13 question is, how do we get where we ought to be and what
14 this says is we can't get there immediately. We either do
15 it over a five-year period, or there are other proposals
16 that if we can get enough support on, that we can sandwich
17 together and submit to the people, we'll have a funding
18 source to give to it immediately.
19 COMMISSIONER MILLS: I would believe there are a
20 number of ways to do this but there are two problems.
21 And, again, I may vote for this so I can work with this in
22 Style and Drafting with you and others; it enumerates only
23 five purposes that we consider constitutionally
24 supplemental. And I think that that is an interesting --
25 I mean, I think Commissioner Scott's point was well taken.
1 We've mentioned two things in here that are statutes,
2 that have been passed in the past three years. I mean, 15
3 years from now there may be ideas, and I hope there are,
4 that we haven't conceived of that would be supplemental.
5 And the second issue, to which there is no good answer,
6 and that is that because of the expenditure of these funds
7 for basic purposes and to try to return to what many of us
8 believe was the original purpose, creates a $200 million
9 hole in basic purposes. I don't know that there is a good
10 answer to that.
11 What I'm suggesting is I'd like to continue to work
12 with you, but there are two problems. One is the hole it
13 creates. And one is the fact that 20 years from now we
14 may have somehow forgotten or not identified what every
15 good idea and every supplemental educational purpose would
16 be in these six items.
17 COMMISSIONER NABORS: Commissioner Mills --
18 CHAIRMAN DOUGLASS: All right. Just a moment. We
19 haven't read the amendment to the amendment, I've been
20 told by the Secretary. So I want to read the amendment to
21 the amendment so we can start voting. Read the amendment
22 to the amendment.
23 READING CLERK: Amendment to the amendment by
24 Commissioners Riley, Sundberg, and Nabors, on Page 1,
25 between Lines 10 and 11 after Paragraph 5, insert; to fund
1 scholarships established by general law for attendance at
2 Florida public or private post-secondary education
4 CHAIRMAN DOUGLASS: All right. Now that's the
5 amendment to the amendment which we're on. And at this
6 time, you're all ready to vote on that, are you? All
7 those in favor of this amendment to the amendment, this
8 doesn't pass anything except add that to the amendment
9 they are proposing. All in favor say aye. Opposed.
10 (Verbal vote taken.)
11 CHAIRMAN DOUGLASS: Now, we're on the amendment as
12 amended, which is the one on your desk plus the general
13 law attendance at a Florida public or private
14 post-secondary school. Go ahead. Commissioner Riley has
15 the floor. Commissioner Rundle, you're next.
16 COMMISSIONER RILEY: If I may ask Commissioner Mills
17 a question. I think we all want to go to the same place
18 with this. Do you think that a proposal that said
19 "Lottery dollars cannot be used for" and draw the fence
20 around the general educational dollars, if there is an
21 acceptable definition that's succinct that we could put in
22 there, and if the proposal then had a phase-in time, that
23 that would take effect within that period of time, would
24 that get us where we all want to go?
25 COMMISSIONER MILLS: That would be as close as you
1 can get. I mean, if your purpose is to say that you want
2 Lottery funds to be spent on supplemental purposes and you
3 realize the reality of the situation is they haven't been,
4 if you want them all ultimately to be spent on
5 supplemental purposes but you don't feel like you know all
6 of them today, then you would define that which you
7 couldn't spend it on and then you would set a period of
8 time out in the future that you would give yourself or the
9 Legislature time to phase into that.
10 COMMISSIONER RILEY: Proposal 89, which was my
11 original proposal, basically said that Lottery dollars
12 must be used to enhance education and everybody agreed
13 that that basically said nothing and really didn't do
14 anything. And maybe we need to go to the basics because,
15 again, I think this subject is extremely important,
16 however we need to get there.
17 CHAIRMAN DOUGLASS: Commissioner Mills?
18 COMMISSIONER MILLS: Mr. Chairman, Commissioner
19 Nabors and Riley, if there was an amendment which said,
20 inartfully, drawn that one of the purposes for which
21 Lottery funds could be expended would be to fund basic
22 programs funded through Lottery programs in fiscal year
23 '98-'99, that is to define the FEFP, through fiscal year,
24 say, 2004. And thereafter no funds should be expended and
25 appropriated for the FEFP.
1 If you added another item it would allow you, I
2 guess, essentially to do what Commissioner Nabors says his
3 does which is allow you a phase-out from basic funding.
4 But if you put this provision in and if it was well enough
5 drawn, you'd say -- it just identifies what you couldn't
6 spend it for and you could spend it for other purposes.
7 In other words, if the goal is to say you don't want
8 the Lottery to be expended on FEFP but -- and if you
9 defined adequately what basic education funding is, then
10 you allow the Legislature to define other things that are
11 supplemental. I don't think we can draft that on the
12 floor, but I understand, I think, we're all heading in the
13 same direction and I'm perfectly willing to say I'll work
14 with those that are concerned about this at a later time.
15 But I truly think that there are two problems. I
16 think that we've gotten most of the way for one problem
17 which is phase-in, but I don't feel that I'm smart enough
18 to say to you on this date in 1998 I know what we should
19 be spending supplemental Lottery funds on in 15 years.
20 CHAIRMAN DOUGLASS: All right. Do you want to
21 respond, Commissioner Sundberg? You're recognized.
22 COMMISSIONER SUNDBERG: Respectfully, Commissioner
23 Mills and Mr. Chairman, I suggest that this really is out
24 of order, not the phase-in. But Commissioner Crenshaw
25 offered us the opportunity early on in this debate to
1 adopt a proposal that simply said that Lottery funds would
2 be used to enhance education, that was defeated. So as a
3 point of order, I would suggest that it's out of order to
4 circle back to that.
5 CHAIRMAN DOUGLASS: We're on reconsideration, it's
6 not out of order if somebody offered it.
7 COMMISSIONER SUNDBERG: We're not on reconsideration
8 of Commissioner Crenshaw's.
9 CHAIRMAN DOUGLASS: Well, I'm going to rule that it's
10 wide open. The proposal is on the floor, it's being
11 reconsidered, it can be amended, it can be debated and
12 everything else.
13 COMMISSIONER SUNDBERG: Somehow I sensed that would
14 be your ruling. It seems to me that we have just got a
15 light on this. And I understand and I think we ought to
16 be amenable to perhaps some phase-in language. We've done
17 it with respect to the scholarship. But sooner or later
18 we have got to pay the fiddler, and unless we want to just
19 carry that burden as a charge against the Lottery proceeds
20 forever and a day, and I don't think you want to do that.
21 In terms of addressing this by circumscribing what,
22 essentially identifying what you can't use it for, the
23 mind of man also has trouble in trying to identify. It
24 never occurred to me that the Legislature would
25 appropriate these funds for the state motor pool. So it
1 seems to me we have to, and they have, and it seems to me
2 we have to talk about what they can do.
3 All of us are concerned again that when you're trying
4 to in the future prescribe what will happen, that you
5 don't -- that you can't probably consider all the
6 ramifications. I would suggest to you though that
7 scholarships are something that will be enduring forever
8 and a day, as a subject matter. That the pre-school
9 program, and if you watch the tapes you would be convinced
10 that that's going to be with us probably for the 20 years
11 before we address this again. And I suggest to you that
12 by adding back in and recognizing, as Commissioner
13 Barkdull has pointed out to us, that it's not good
14 practice to put statutory references in the Constitution;
15 however, I couldn't think of a better way to do it
16 right -- within the time constraints we had. And I think
17 we have, to an extent, cured it by saying, to these school
18 councils or their successors and purpose.
19 And I suggest to you that the very reason for
20 flexibility will be an incentive for the Legislature to
21 keep them in place or something that looks like them in
22 place because that does give the Legislature, indirectly,
23 the ability, the flexibility to deal with issues we
24 haven't even thought of yet. I think the Legislature, and
25 I agree with that policy decision, that this was a good
1 way to address problems in the school. This was a good
2 way to address trying to make our educational system
3 better because it was closer to the people and it was
4 closer to the students.
5 The Legislature has the ability to appropriate
6 whatever amount they choose through these school councils
7 to enhance education in ways we have not thought of yet.
8 So to that extent I think we do have a safety valve. I
9 think it is time that we need to move this along. I think
10 the people expect it of us. And I suggest we move it
12 CHAIRMAN DOUGLASS: Commissioner Riley?
13 COMMISSIONER RILEY: Mr. Chairman, because I would
14 also like to move it along and don't want to kill it and
15 yet would like to make it better, I move that we TP this
16 for today.
17 CHAIRMAN DOUGLASS: Commissioner Rundle?
18 COMMISSIONER RUNDLE: I would support that.
19 COMMISSIONER RILEY: I move to TP it for it.
20 COMMISSIONER RUNDLE: I think that's probably a good
21 idea, Mr. Chairman. I think a lot of us support it but it
22 needs work.
23 CHAIRMAN DOUGLASS: All right. Is this a motion
24 to --
25 COMMISSIONER RILEY: It is --
1 CHAIRMAN DOUGLASS: For a time certain?
2 COMMISSIONER RILEY: For a time certain.
3 (Off-the-record comment.)
4 CHAIRMAN DOUGLASS: We'll let you ride on that. I
5 think the motion we're looking for is a motion to continue
6 to a time certain -- to postpone for a time certain. I
7 think it takes a majority vote, otherwise it takes
8 two-thirds. But we will, without objection, temporarily
9 pass this to be set on the calendar by the Rules Committee
10 at the earliest possible moment that it's available to be
11 set. Without objection, it is done and we will move to
12 the next item. Is that all right, Commissioner Barkdull?
13 COMMISSIONER BARKDULL: Yes, sir, the earliest
14 possible moment would be tomorrow morning.
15 CHAIRMAN DOUGLASS: I said when it's practical to be
16 done. I'm going to leave that to you in the Rules
17 Committee. Now, we do move now to Proposal No. 167 which
18 I will ask the clerk to read first.
19 READING CLERK: Proposal 167, a proposal to revise
20 Article VIII, Section 5, Florida Constitution; providing
21 for the electors of a county to regulate the possession,
22 purchase, and sale of firearms prohibiting that a county
23 may not prohibit the possession, purchase, or sale of
24 firearms and ammunition.
25 CHAIRMAN DOUGLASS: All right. If you-all please,
1 let's have some order and pay a little bit of attention
2 here. This particular proposal now we have had a
3 tremendous amount of letters and form letters and all
4 kinds of things generated. I had a call from one
5 commissioner who said, Please tell them not to give my fax
6 number out it, was jammed up for two full days. And
7 E-mail people, Commissioner Barnett hasn't even been able
8 to get in the chat room, but whatever the case is, I would
9 like to get people to take their seats for this
10 presentation if you could, please. Now, Commissioner
11 Rundle, that we have restored order, please proceed.
12 COMMISSIONER RUNDLE: Thank you very much,
13 Mr. Chairman. And I do want to say that I apologize to
14 all the commissioners that I set that paper tiger on them
15 and wished I could have spared them all the faxes but
16 unfortunately that's not the nature of the beast. What
17 I'd like to do, Mr. Chairman, is deal with a substitute
18 amendment that I have filed.
19 CHAIRMAN DOUGLASS: All right. Or is it a substitute
20 amendment or is it an amendment or a substitute proposal?
21 COMMISSIONER RUNDLE: It is an amendment to my
23 CHAIRMAN DOUGLASS: It's an amendment to the
25 COMMISSIONER RUNDLE: Amendment to the proposal.
1 CHAIRMAN DOUGLASS: Now, you read the proposal, now
2 we need to read the amendment.
3 READING CLERK: By Commissioner Rundle, on Page 1,
4 Lines 26 through 29, delete those lines and insert, Each
5 county shall have the authority to require a background
6 check and waiting period of not less than three days
7 excluding weekends and legal holidays in connection with
8 the sale of any firearm occurring within such county.
9 For the purposes of the subsection, the term sale
10 means the transfer of money or other valuable
11 consideration for any firearm.
12 CHAIRMAN DOUGLASS: All right. Now that is the
14 COMMISSIONER RUNDLE: Correct. Now we have an
15 amendment to the amendment. Would you read that?
16 READING CLERK: Amendment to the amendment by
17 Commissioners Scott and Smith, on Page 1, Line 20, insert,
18 Holders of a concealed weapons permit as prescribed in
19 Florida law shall not be subject to the provisions of this
21 CHAIRMAN DOUGLASS: All right. The first thing we
22 need to take up is the amendment to the amendment.
23 Commissioners Smith and Scott offered that, who wants to
24 present it, Commissioner Smith?
25 COMMISSIONER SMITH: Thank you, Mr. Chairman.
1 Commissioner Scott is here. So I'm going to --
2 CHAIRMAN DOUGLASS: You are going to defer to
3 Commissioner Scott?
4 COMMISSIONER SMITH: Yes.
5 CHAIRMAN DOUGLASS: You are recognized, Commissioner
6 Scott, to the amendment to the amendment.
7 COMMISSIONER SCOTT: Mr. Chairman, Commissioners,
8 what this does is take the language from article, I think
9 it is Article I, Section 8, which is the three-day waiting
10 period and background check provision and just applies it
11 to this provision which says that people who have already
12 had the background checks who have concealed weapons
13 licensed as prescribed by law, which I believe would
14 include law enforcement officers and state attorneys and
15 whoever, judges, they would not have to wait and that's
16 about that simple and I understand the sponsor doesn't
17 have a problem with that.
18 CHAIRMAN DOUGLASS: The amendment to the amendment is
19 that we do what he said and do you rise for a question?
20 Commissioner Sundberg.
21 COMMISSIONER SUNDBERG: Commissioner Scott, you are
22 sure this does not exculpate somebody who is selling a
23 weapon from the provisions of these laws -- of this
25 COMMISSIONER SCOTT: It's the exact language that --
1 COMMISSIONER SUNDBERG: I mean, do you remember
2 seeing those guys in the automobile in the video, so they
3 go get a concealed weapons permit and they start selling
4 them out of the back seat of their car, I don't know, I'm
5 not unsympathetic to this, but I think we need to be
6 careful we have not opened it up that somebody can get a
7 concealed weapons permit and sell all the weapons they
8 want to.
9 COMMISSIONER SCOTT: This language is identical to
10 the language that says, The holder of a concealed weapon
11 permit as prescribed in Florida law shall not be subject
12 to the provisions of this paragraph.
13 Well, it says this subsection because that's what
14 that bill drafting says. And I don't know the answer to
15 that other than the purpose of it is that someone who has
16 a license, it is my understanding, that's the way it is
17 currently, I don't know about selling, but currently if
18 you have a concealed weapons license that you would not
19 have -- you could have the instantaneous background check
20 and whatever that's now --
21 COMMISSIONER SUNDBERG: How about if you simply
22 added, Shall not be subject to the provisions of this
23 subsection when purchasing a weapon?
24 (Off-the-record comment.)
25 COMMISSIONER SCOTT: My intent was to --
1 COMMISSIONER SUNDBERG: When purchasing a weapon.
2 COMMISSIONER SCOTT: When purchasing -- would not be
3 subject to it. It would by implication, I suppose, not
4 subject the seller other than they would have to, if you
5 had the license, they would not have to do the waiting
7 CHAIRMAN DOUGLASS: Commissioner Smith, did you want
8 to respond to that?
9 COMMISSIONER SMITH: I just want to make sure that
10 everyone understands that when a concealed firearms permit
11 is obtained there is a background check, and a
12 verification of proficiency in handling of a weapon. So
13 that the requirements for the waiting period and the
14 requirements for the check have already been met. And so
15 it is our intent only to allow the concealed firearm
16 permit holder to not have to go through a process that
17 they have already gone through in obtaining the concealed
18 firearm. And I think the suggested language clarifies
19 that and I would ask to you support it.
20 CHAIRMAN DOUGLASS: All right. Commissioner Rundle?
21 COMMISSIONER RUNDLE: Question, Commissioner Smith,
22 are you suggesting the language that Commissioner Sundberg
23 just suggested?
24 COMMISSIONER SMITH: Well, I have no objection to it
25 being clarified that this deals with the concealed firearm
1 permit holder purchasing a firearm if there is any
2 question that it may relate to a concealed firearm permit
3 holder taking his old Cadillac and selling weapons out of
4 the back of his Cadillac near the schoolground. No, we
5 don't want to do that.
6 CHAIRMAN DOUGLASS: Hope he has got a Lexus.
7 COMMISSIONER RUNDLE: So if Commissioner Scott were
8 to agree with my amendment, then I would accept
9 Commissioner Sundberg's language for his amendment a
10 friendly amendment.
11 CHAIRMAN DOUGLASS: All right. At the moment we have
12 pending Senator -- Commissioner Scott's amendment to the
13 amendment, your amendment. And I don't understand that
14 anybody has offered an amendment to that amendment.
15 COMMISSIONER RUNDLE: Well, Commissioner Sundberg,
16 are you going to be offering --
17 (Off-the-record comment.)
18 CHAIRMAN DOUGLASS: You'll have to have it in writing
19 and on -- okay. It would be a substitute amendment which
20 would include the language of the Scott/Smith amendment
21 and the additional language proposed by Commissioner
22 Sundberg. So it would be in the nature of a substitute
23 amendment for the amendment. For the Scott/Smith
25 COMMISSIONER MORSANI: Mr. Chairman?
1 CHAIRMAN DOUGLASS: Yes. Commissioner Morsani?
2 COMMISSIONER MORSANI: Under Article I, Section 8,
3 you have -- how is all that going to flow, Article I,
4 Section 8, then over to Article VIII, Section 5, how does
5 all that work?
6 COMMISSIONER RUNDLE: Well, of course we didn't get
7 an opportunity to get into the details yet and I know the
8 devils are in the details. But the thought here was, was
9 not to have a conflict. I think what Commissioner Scott
10 is trying to accomplish is to just restate what's in
11 Paragraph B of Section 8 under Article VIII, Section 4.
12 So that there is no confusion about the carrying concealed
13 weapons permit being applicable both at this state level
14 and at the county level.
15 COMMISSIONER MORSANI: This is going to come under
16 the county ordinance rather than the state?
17 COMMISSIONER RUNDLE: Correct. So really it is just
18 adopting the same language that's in one section of the
19 Constitution into the other.
20 COMMISSIONER MORSANI: Thank you.
21 CHAIRMAN DOUGLASS: All right. We are waiting, I
22 guess, on the drafting of the substitute amendment. There
23 is another amendment which has been brought forward which,
24 I guess, it is an amendment to the Rundle Amendment.
25 Would we take that up now? We have got the substitute.
1 All right. Would you read the substitute amendment?
2 Would everybody please pay attention, please? Thank you.
3 Read the amendment.
4 READING CLERK: By Commissioner Sundberg, a
5 substitute amendment, on Page 1, Line 20, insert, Holders
6 of a concealed weapons permit as prescribed in Florida law
7 shall not be subject to the provisions of this subsection
8 when purchasing a firearm.
9 CHAIRMAN DOUGLASS: All right. Now, this is on the
10 substitute amendment which is the Scott/Smith Amendment as
11 substituted with the additional language by Commissioner
12 Sundberg. And you are saying you accept that as a
13 friendly amendment and would like for us to vote on it to
14 add it to your amendment; is that right?
15 COMMISSIONER RUNDLE: Correct, I accept that as
17 CHAIRMAN DOUGLASS: Okay. With no further debate,
18 all those in favor of the substitute amendment which is to
19 the Rundle amendment, signify any by saying aye. Opposed.
20 (Verbal vote taken.)
21 CHAIRMAN DOUGLASS: All right. We are now on the
22 Rundle Amendment which is the amendment before us and we
23 have on the table a Langley Amendment to the Rundle
24 Amendment. Commissioner Langley, we will read it and then
25 you have the floor. Would you read the amendment to the
1 amendment by Commissioner Langley?
2 READING CLERK: Amendment to the amendment by
3 Commissioner Langley, new subsection C, it shall be
4 illegal to murder any natural person, female or male. The
5 Legislature shall enact laws providing punishment for the
6 violation of this provision.
7 CHAIRMAN DOUGLASS: Commissioner Langley?
8 COMMISSIONER LANGLEY: Well, this is such a novel
9 idea that I thought surely if law is going to stop the
10 illegal use of handguns we ought to outlaw murder and that
11 would certainly stop murder. I mean it is a logical
12 conclusion. But, you know, history shows I think murder
13 has been illegal since Cain slew Abel. And making it
14 illegal doesn't do a bit of good and the people that are
15 being to regulate you think by this provision are not
16 going to obey in law either.
17 Law-abiding citizens don't use guns to murder people.
18 And law-abiding citizens don't sell guns illegally. And
19 the people who sell them illegally are going to keep
20 selling them illegally. And what are you doing to the
21 private collector? What do I do as an estate lawyer when
22 I have a gun collection to sell in the estate? I can't
23 have an auction. I can't sell them because they have got
24 to wait whatever the county -- by the way, this is no less
25 than three. It could be as much as ten years. You know,
1 the waiting period could be ten years or five years or in
2 New York City I think it is 180 days but that certainly
3 cured crime there in New York City.
4 CHAIRMAN DOUGLASS: The amendment doesn't reach that.
5 COMMISSIONER LANGLEY: Pardon?
6 CHAIRMAN DOUGLASS: You're arguing the merits of her
7 amendment, not your amendment at the moment.
8 COMMISSIONER LANGLEY: Well, my amendment is that, of
9 course, it's offered in jest, but it is just the whole
10 thing should be in jest. And, again, is this not a
11 province of the Legislature?
12 CHAIRMAN DOUGLASS: If this is an amendment in jest,
13 then I'll rule you out of order.
14 COMMISSIONER LANGLEY: Well sometimes this whole
15 procedure ought to be out of order then. Rather than
16 stepping on your toes, I'll withdraw the amendment rather
17 than stepping on your toes.
18 CHAIRMAN DOUGLASS: You are not stepping on my toes,
19 you are stepping on the commission's toes and the rules,
20 sir. And you move to withdraw your amendment?
21 COMMISSIONER LANGLEY: Yes, sir.
22 CHAIRMAN DOUGLASS: All right. Without objection, it
23 is withdrawn. Commissioner Rundle?
24 COMMISSIONER RUNDLE: Thank you, Mr. Chairman.
25 Commissioners, let me just, if I could, explain the
1 amendment that I have filed and I would like to tell you
2 that I have given it considerable thought. The first
3 proposal that I had was, I suppose, far too broad and I
4 thought that there were a lot of interesting issues that
5 were raised by a lot of you Commissioners and a lot of
6 citizens in Florida. And I gave it a great deal of
7 thought and worked with a number of experts on language
8 and I felt that this amendment really would alleviate a
9 lot of the concerns that were raised with the first
11 And I did -- do not take this in jest. I will tell
12 you that I take this very, very seriously. And I do
13 believe that this is an opportunity for this commission to
14 do something very important that will have an impact on
15 the daily lives of Floridians. So I do not take this in
17 This proposal, the amendment basically does three
18 things. The Constitution provides, and this is why it
19 must be done by Constitution, provides that there is a
20 three-day waiting period and background checks for retail
21 sales of handguns. The state law provides that, actually
22 incorporates that language, and specifically exempts, and
23 I quote, it says under Section 790.33, This section does
24 not include gun collectors shows or exhibits or gun shows.
25 Therefore, the only way to really address some of
1 those folks that are not subject to the three-day waiting
2 period and background checks is it has to be done
3 constitutionally. And essentially all this proposal does
4 is it only says if you want to as a local community. This
5 really is to allow local communities, local governments,
6 to take some control over protecting themselves. It is
7 really a public safety issue for them.
8 It does not mean that if there is an area of the
9 state that doesn't have particularly a gun problem, or
10 doesn't feel like they need any greater waiting periods or
11 they don't care about gun shows, that's okay. They don't
12 need to do that in their community. But there are some
13 communities, there are some governments, local
14 governments, around this state that do feel they need to
15 have that ability.
16 So all this provision does, and you will notice that
17 where it falls is under Article VIII, Section 4, the first
18 section deals with the sale of alcohol. So all we are
19 saying is we add this section that says local government
20 can do the same thing for firearms. And in my view, it
21 would address at least four things that a local community
22 could do. One, it could provide more stringent waiting
23 periods, right now under state law it is three days.
24 If a local community wanted to make it five days and
25 the community voted upon it through democratic process,
1 they should be able to do that. The other thing it would
2 allow them to do is background checks. If they wanted to
3 have a more comprehensive background check, they should
4 have the ability to do that.
5 It also, the third thing it would do, is it would
6 include firearms. If you look at the Constitution, it
7 really only pertains to handguns at this point. So as you
8 know, those are pistols, revolvers, anything that can be
9 held within one hand. It does not address assault rifles
10 and assault shotguns. So this would give local government
11 the ability, if they wanted to, to include a three day --
12 I'm sorry, waiting periods and background checks on all
13 firearms. Or they might decide they only want to do
14 handguns and not firearms, but that should be up to them.
15 So it broadens the scope of what firearms they can
17 The third -- fourth thing that it does is it closes
18 what I call a very deadly loophole and it has to do a lot
19 with gun shows, flea markets, swap shops and that is that
20 if you are a law abiding citizen and you go to a gun
21 store, there are certain things you have to do, you talked
22 about those. You have to submit to a background check,
23 you have got to go back and get your weapon in three days,
24 and that's the way -- and the gun store owner has to do
25 those things and there is a paper trail and we know what
1 guns you own.
2 But criminals are not going to go to a store when
3 they go to a gun show down the street where it is totally
4 unregulated. Now, I don't know if you know how these gun
5 shows work, I didn't until I really got into this issue
6 and really started looking at it and understanding the
7 impact that it was having not only in our country but in
8 our state and in particularly urban areas.
9 These gun shows, for instance, are no questions
10 asked, cash and carry, no background checks, no waiting
11 periods, no paper trail, no tracing, no nothing. That's
12 why what we are seeing is an increase throughout America
13 but particularly in Florida because they know that there
14 is this loophole. They are coming to Florida in droves.
15 Almost every other weekend in the state of Florida
16 there is a gun show. And what's really disturbing to a
17 lot of communities, maybe not to other communities, but to
18 some communities is that they are held on public property.
19 They are held in gymnasiums, school gymnasiums. They are
20 held in civic centers. And I'll give you an example. The
21 Mayor of Tampa, I'm told, at one point he got so fed up
22 with the gun shows and the militia and the kind of people
23 that it attracted to their communities that she said, No,
24 I'm not going to give a permit for gun shows here, not
25 going to do it. And the opposition filed a lawsuit and it
1 said, You can't prevent us because the law says we can do
2 that. And they won.
3 And the Tampa community that didn't want the gun show
4 in their publicly-funded property was stuck. They had no
5 control or no say over what they felt was a very important
6 issue for their community.
7 I would call to your attention, I know in some ways
8 this is kind of a cheap shot to use, they call it Hall of
9 Famers, but I use these only because I think they are
10 names you will recognize, Timothy McVeigh, the Oklahoma
11 bomber. It is well established what he did is he and his
12 tribe would go and steal firearms, rifles, shotguns and go
13 to gun shows and sell them because nobody would find them
14 and that's how they financed themselves.
15 Same thing with David Koresh, you know, from the Waco
16 incident, the cult leader. What he did was he bought a
17 lot of his firearms and ammunition at gun shows. I use
18 those only because that shows you the kind of element that
19 a lot of these communities, particularly urban areas, are
20 struggling with.
21 Let's talk a little bit about the gun crisis, the gun
22 emergency as our Mayor says we have especially in Miami
23 but not just Miami, in all urban areas throughout the
24 state of Florida. And I don't know about you, but I am
25 getting really fed up with always seeing on the ten most
1 violent list of all the cities in the United States, of
2 all the cities in all this great nation, look at this six
3 months ago reported that four of the ten most violent
4 cities in the country are located in one state. And guess
5 which state that is, that's our state.
6 Now are guns the only problem that contribute to
7 violate crime, no, but they are a major contributing
9 In urban areas if you want to talk about debts
10 deaths, in the state of Florida, Dade, Broward, Palm
11 Beach, Duval, Orange, Pinellas, and Hillsborough County
12 accounted for more than half of all the firearm-related
13 deaths in the state of Florida.
14 So of the 2,059 deaths, 1,113 of these were in seven
15 counties. And youth deaths, age 24 and under, 81 percent
16 of them occurred in urban counties. Age 19 and under, 56
17 percent occurred in urban counties. Four and under,
18 75 percent occurred in urban areas.
19 What we are asking in some of these urban areas is to
20 please help us, allow us to help ourselves, to help
21 protect ourselves. We don't want to impose on other
22 people in other areas of the state if what's working -- if
23 the law is working for them now, then so be it. That's
24 good. We are glad. But there are some of us in urban
25 areas that desperately need to have our hands untied. We
1 desperately need a safety valve and we can't get it
2 without changing the Constitution.
3 One last area, if I may, support. What is the
4 support for this? I know that you-all were faxed to
5 death, I know that. And again, and I understand some of
6 my friends here have some deep scars and wounds from
7 previously proposing similar-type legislation and I really
8 do, I appreciate that and I respect that and I must tell
9 you I really worked through these issues, I worked through
10 this language to make sure that it was the most
11 conservative but would still have the best impact that we
12 could achieve as a commission.
13 But the support is there, you just have to look at
14 the history for just a moment. First of all, in 1990,
15 when this was put in the Constitution, the people of the
16 state of Florida had the opportunity to vote for a waiting
17 period. It was an incredible hands down, 2,840,912
18 Floridians voted in favor of the waiting period. That won
19 by 84 percent.
20 If you look at the voter trend poll that was just
21 taken in October, it told you that 74 percent of
22 Floridians, and I'm just going to refresh your memory of
23 this, you may have gotten a copy of this, said that they
24 support waiting periods and background checks and more
25 stringent rules that will make sure that these deadly
1 firearms do not get in the hands of criminals and the
2 wrong people. Law abiding citizens want that and even if
3 it means that may be a little inconvenient for them,
4 that's what they want. They are prepared to do that.
5 Last but not least, just to make sure we were going
6 to do something really positive because I tell you with
7 great sincerity, I want this ballot to be very successful.
8 I do not want to put anything on it that I would think
9 would drag it down. So I wanted to test the language and
10 make sure that it was right and make sure that we had a
11 winner here. And we did a poll, it was a grass roots
12 effort, in Miami there is a group called the Miami
13 Coalition for Drug Free and Safe Neighborhoods. It is
14 very grass roots, it has been there for a long time. They
15 put up money because they believed so deeply in this and
16 so did the folks in Washington. They hired, what I'm
17 told, is a very respected pollster by the name of Peter
18 Heart (phonetic). I think I mailed, if not all of the
19 results, most of the results out to you.
20 And it was this language, this very exact language
21 that we tested, so there is no doubt about it. And they
22 said hands down 75 percent and it was across the board.
23 It didn't matter male, female, black, white, it wasn't
24 bipartisan lines. They did six geographical regions of
25 the state of Florida. And I guarantee you, many of you,
1 in your hometowns are greatly supported by the citizens.
2 So as we go into open -- I'm going to open for
3 questions. I do want to just assure you that this
4 language is good language, the people do support it, they
5 want to be protected, and we just want to have some leeway
6 within our own communities at a local level and we are
7 doing that, we did that with merit selection. That's not
8 nearly as popular as this, I'm sorry to say, but it isn't,
9 and we did that. We are looking at school districts, we
10 are bringing things home. This makes sense. So with
11 that, I open it up for questions.
12 CHAIRMAN DOUGLASS: Commissioner Morsani?
13 COMMISSIONER MORSANI: I would like to ask some
14 questions for clarification.
15 COMMISSIONER RUNDLE: Please.
16 COMMISSIONER MORSANI: In your early dissertation you
17 mentioned that the statutes prohibit them from like the
18 gun -- the gun shows, the statutes, and I guess I ask the
19 legislators who may be present, why are those statutes in
20 place that prohibit, well, that's not the question, that's
21 a poor choice of words. Why do the statues exempt the
22 very things that Commissioner Rundle is addressing?
23 (Off-the-record comment.)
24 COMMISSIONER MORSANI: Mr. Thompson? Why did the
25 Legislature exempt the very things that, like the gun
1 shows, why are those exempted in the statute?
2 COMMISSIONER THOMPSON: I'm sorry, I'm not really
3 that familiar with the statute. I'm not sure that's a
4 state exemption either, that could be a federal exemption.
5 COMMISSIONER RUNDLE: If I may, I mean, he was asking
6 why. But as I understand it, there are two areas where
7 they are exempt. One is in the Constitution, it says
8 "retail". And the gun shows and gun collector shows and
9 auctions and those things are not considered storefront
10 retail shops.
11 And in the state statute, without boring you, and I
12 can give you a copy, they define what is a retail
13 establishment, in fact, if you give me just a second if it
14 is real important I can --
15 COMMISSIONER MORSANI: No, that's okay. You have
16 answered enough. Now why won't the Legislature, if you
17 have this problem, and I think we have the problem all
18 over the state, why has the Legislature refused to address
19 it to your satisfaction?
20 COMMISSIONER RUNDLE: Well, let me put it this way.
21 Even if they were to not have reiterated it, because
22 that's really what they are doing, they were restating the
23 law in their preemption statute, you would still have to
24 deal with the problem of retail in the Constitution.
25 In other words, the Constitution exempted them, the
1 Florida Legislature comes and reinstates that with greater
2 description, but they couldn't change it to apply to gun
3 shows unless you changed the Constitution because retail
4 is in the Constitution, Florida Constitution.
5 CHAIRMAN DOUGLASS: Commissioner Morsani, did you ask
6 another question? Commissioner Thompson has a response.
7 COMMISSIONER THOMPSON: Let me just tell you what the
8 present Constitution says, you might have already read
9 that. The present Constitution just has a three-day
10 mandatory waiting period for handgun purchases and those
11 are retail sales. I don't think that prohibits the
12 Florida Legislature from doing anything that it chooses to
13 do in respect to private sales or whatever. It is just
14 that it hasn't done so, that's what you are saying.
15 CHAIRMAN DOUGLASS: Commissioner Thompson, his
16 question he directed to you when you were -- I believe you
17 were distracted -- was do you know why the Legislature
18 hasn't done that.
19 COMMISSIONER THOMPSON: No, I'm sorry I don't know
20 that. I've been out of it 11 years.
21 CHAIRMAN DOUGLASS: I started to say that he hasn't
22 been there in so long he couldn't tell.
23 COMMISSIONER THOMPSON: And they wouldn't even do
24 what I wanted them to do then.
25 COMMISSIONER MORSANI: I guess we are all wrestling
1 with this. There is no question about it, I think we are
2 all supportive of trying to figure out what to do. My
3 question, you know, I don't pay much attention to all
4 those faxes and letters and we all have them -- we have
5 hundreds and hundreds of letters and faxes on this issue
6 and we know why that transpired, so I'm not intimidated by
7 that at all.
8 But I keep asking the question why can't we do it
9 statutewise rather than put it in this Constitution, there
10 is my real problem. It has nothing to do with them. I'm
11 opposed to them. I don't think there is any use, any
12 reason for people to have handguns specifically and so on
13 and so forth, but that's a personal opinion. I think they
14 should all be outlawed but I wouldn't get very far with
15 that philosophy.
16 But I have a great concern about getting this into --
17 it goes back to the former discussion which I am opposed
18 to also about the money being -- saying we can only use it
19 for certain things and I have the same, going back to
20 Mr. Brochin's, is it really the right thing for the
21 Constitution and that's where I am, Commissioner Rundle.
22 COMMISSIONER RUNDLE: I would say that in addition to
23 what I have already said with respect to the Constitution,
24 that we will -- when you were talking about the faxes that
25 you were receiving, that's really your answer. As to why
1 the -- it is very difficult for a lot of my elected
2 friends and colleagues who I have a great deal of respect
3 for to withstand that kind of opposition and time and time
4 again people have come and asked from communities, for
5 instance, our Mayor from Dade County tried at that last
6 year and said, Please, would you just change the
7 preemption statute so we can save ourselves down in Dade
8 even if you don't want to do it for the rest of the state
9 that's okay, just allow us and they won't and they haven't
10 and I don't believe they will.
11 CHAIRMAN DOUGLASS: Commissioner Evans-Jones?
12 COMMISSIONER EVANS-JONES: Question for Commissioner
13 Rundle. You are assuming that the county commission will
14 be the body who will determine what time frame this is and
15 if the county wants to do it so an elected body will do
16 that and then the sheriff's department will be the one to
17 enforce I assume whatever the county says or who will do
19 COMMISSIONER RUNDLE: It could be -- the first answer
20 to your question is yes. It will obviously be done by
21 democratic process and everyone would have input as to
22 what wouldn't be included, what would, what would the time
23 frame be. I suppose they could say it would be the local
24 sheriff, they may stay with FDLE which is now the
25 background check. But I think those are the kinds of
1 things that should be done at a local community level.
2 COMMISSIONER EVANS-JONES: Thank you.
3 CHAIRMAN DOUGLASS: All right. Further discussion
4 now. Commissioner Connor?
5 COMMISSIONER CONNOR: Mr. Chairman, I'd like to speak
6 in opposition to the proposal.
7 CHAIRMAN DOUGLASS: Before you do that, we have got
8 another amendment that's just been put on the table. I
9 hate to interrupt you, but would you read the amendment,
10 please? And say who it is by.
11 READING CLERK: Amendment --
12 CHAIRMAN DOUGLASS: It is an amendment to the
13 amendment and it is by --
14 READING CLERK: Amendment to the amendment by
15 Commissioners Alfonso and Evans-Jones on Page 1, Line 15,
16 after the comma insert, Nor more than five days.
17 CHAIRMAN DOUGLASS: All right. Commissioner Alfonso
18 or Evans-Jones, do you want to be heard on your amendment
19 to the amendment? Commissioner Alfonso?
20 COMMISSIONER ALFONSO: With all due respect,
21 Commissioner Rundle, we proposed this amendment just to
22 really say does it really mean what you say. I mean, is
23 it three days or is it ten years? That's all we are
24 asking. If it is three to five days -- or the other
25 question I would have then if this amendment is not
1 satisfactory is why wouldn't you just mirror the language
2 in the Constitution then and is it mandatory three days?
3 I don't understand. It seems like this is an open-ended
4 thing that can allow it to drag on and that's my question
5 to you.
6 COMMISSIONER RUNDLE: The answer is that it should be
7 up to the local community. The federal law is five days
8 and even the federal law said, Well, if the states have
9 their own law that we won't impose ours on them. And so
10 what this proposal does is say, Let the local community
11 decide. It depends on your needs, their turnaround time,
12 may apply to different types of weapons, but, I mean, come
13 on, this is kind of another one in jest. If we are saying
14 no less than three and no more than five, you are giving
15 them the ability to do four days?
16 COMMISSIONER ALFONSO: No, what I'm saying is, if I
17 want to go out and buy a shotgun because I like to bird
18 hunt or turkey hunt, am I going to go buy one in January
19 for next year's season, the following March? Am I going
20 to have to wait a year? Am I going to have to wait three
21 weeks? I don't know, I'd like to know. I surely don't
22 mind wait three to five days, I understand that. I'd like
23 to know. And if we are going to put it in the
24 Constitution -- I mean, who is to say that you get a
25 county that says you have to wait six months.
1 COMMISSIONER RUNDLE: But I think that the answer is
2 that you go to your county commission, that's where you
3 put your pressure on your mayors, your commissioners, your
4 council people, just like you do on every other issue that
5 impacts you.
6 I'll tell you quite frankly New York, everyone wants
7 to know how New York reduced its murder rate and how it's
8 reduced its violent crime rate and what they did was they
9 put six months waiting on all firearms, but attached a
10 $180 fee. I mean, they made it virtually impossible for
11 people to keep getting a firearm. Now that was New York's
12 choice. That's what they voted on, that's what they
13 wanted. That would be up to a local community. They
14 wanted to make it seven days. I'll tell you, Dade County
15 before 1987 when the preemption statute went into effect,
16 it was two weeks. Broward County, I think, had 21 days.
17 So it really is up to the local communities what works
18 best for them.
19 CHAIRMAN DOUGLASS: This is on the amendment to the
20 amendment. Commissioner Smith.
21 COMMISSIONER SMITH: Thank you, Mr. Chairman. While
22 I am supportive of the underlying measure, I too share the
23 same concern as my turkey hunting commissioner friend
24 Alfonso. And I think I asked Commissioner Rundle to
25 rethink this because we are supposed to be moving
1 technologically into a situation where we can have even
2 faster checks, you know, the federal government is
3 supposed to by November to implement a situation that is
4 instantaneous checks. I think if you put it out like
5 this, I know what you are trying to do, but if you put it
6 out like this where hunters and people who are legitimate
7 gun owners say, You mean to tell me there is a possibility
8 that I can -- I have to wait three months or six months to
9 buy a gun, oh, absolutely not, this is outrageous.
10 And it is possible for that to happen and I would
11 have to strongly support this proposal. If you can't get
12 it done in three to five days, we know we can do it now
13 because it is being done now, three days. Why should we
14 allow them to extend it, but that's not important to
15 extend it? Why should we leave it open? I mean, there
16 are some legislative bodies that are not very responsible
17 either way on issues like this. So they could come in and
18 say six months, a year, three years, or whatever.
19 I wholeheartedly support this amendment and I'm going
20 to support the underlying proposal but I want to support
21 this amendment so we don't accidentally kill the baby
22 while we are trying to clean the baby up.
23 CHAIRMAN DOUGLASS: Commissioner Langley?
24 COMMISSIONER LANGLEY: If Commissioner Rundle would
1 CHAIRMAN DOUGLASS: She yields.
2 COMMISSIONER LANGLEY: Won't this solve your gun show
3 problem and your out of the car problem? People are going
4 to ignore it anyway, but assuming they were not to ignore
5 it, wouldn't it solve your gun show problem? It would
6 solve your selling on the street problem? What doesn't it
8 COMMISSIONER RUNDLE: It does solve the problem with
9 respect to applying waiting periods and background checks
10 on all firearms sold anywhere in that community. So from
11 that perspective it will cover that population.
12 I guess I just --
13 CHAIRMAN DOUGLASS: Commissioner Rundle I think we
14 are just on this amendment now.
15 COMMISSIONER RUNDLE: Well, I was responding --
16 CHAIRMAN DOUGLASS: Go ahead. We are on the Alfonso
18 COMMISSIONER RUNDLE: Correct. He asked me how it
19 applied to gun shows.
20 CHAIRMAN DOUGLASS: Go ahead.
21 COMMISSIONER RUNDLE: I think though that, you know,
22 I don't want to belabor too much three to five days, but I
23 think if the concept here is to allow local communities to
24 deal with these issues, and they deal with a lot more
25 important issues too, then we have to have some confidence
1 in them and some confidence in their process of their
2 Democratic process. So I hate to tie their hands by just
3 giving them a couple of days but in terms of the gun
4 shows, it is true, it will help alleviate that problem.
5 CHAIRMAN DOUGLASS: All right. Now we are on the
6 amendment. Commissioner Ford-Coates?
7 COMMISSIONER FORD-COATES: I rise to speak against
8 the amendment. It seems to me as we look at this proposal
9 as a whole, but this amendment in particular, that in a
10 state like Florida that is so diverse, the metropolitan
11 areas that have a problem with this need to be dealing
12 with this based on what they perceive as the best possible
13 method. And a story that someone shared with me, which I
14 think is illustrative of this situation is if our neighbor
15 has a house that's burning, and we say, Yes, we will loan
16 you our garden hose, great, we have given them the hose,
17 but we are trying to control the amount of water they can
18 put on that fire.
19 To me, that decision should be made at the local
20 level if we are going to give them the tool to make the
21 decision then they should be able to make the entire
22 decision and I urge you to vote against this amendment.
23 CHAIRMAN DOUGLASS: All right. We are on the
24 amendment. Any further discussion on the amendment?
25 Amendment to the amendment it is. Commissioner Freidin?
1 COMMISSIONER FREIDIN: I'm troubled with Commissioner
2 Smith's favoring this amendment because almost always I
3 turn around and say, Commissioner Smith, how should I vote
4 on this? But, this time I'm having a problem with it for
5 the reason that Commissioner Ford-Coates expressed.
6 This is the -- the idea here is to give local
7 governments the power. But for another reason too, and
8 I'd like to ask Commissioner Rundle to correct me if I'm
9 wrong. But it seems to me the delay in -- or the waiting
10 time for somebody to have -- to get a gun is, for two
11 purposes. One is to give them time to do a background
12 check. But the other is for a cooling-off period that
13 sometimes people have reasons that they want to use that
14 gun that are not legal reasons and the whole purpose here
15 is to give them an opportunity to -- or to give government
16 the opportunity to slow that down and let whoever it is
17 that wants to, you know, use their gun to solve whatever
18 problem they have, some time to think about it. And to
19 maybe come to a different conclusion.
20 So for that reason, I think it would be a terrible
21 mistake for us to pass this amendment and injure the
22 proposal which seeks to give local communities the
23 opportunity to deal with what is a very, very serious and
24 very real problem in those communities.
25 CHAIRMAN DOUGLASS: All right. This is on the
1 amendment to the amendment. Commissioner Evans-Jones?
2 COMMISSIONER EVANS-JONES: I would just like to speak
3 in favor of the amendment and believe it or not, it was a
4 friendly amendment because I think that if you leave it
5 open-ended like this that there will be a real hue and cry
6 from everybody. And I don't think it will pass quite
7 frankly on the ballot. And I think that question would be
8 raised by legitimate people who want to do this. How long
9 am I going to have to wait is the question they are going
10 to have to do. And I just think it would be very wise and
11 prudent and really a good addition to your proposal.
12 CHAIRMAN DOUGLASS: Commissioner Zack?
13 COMMISSIONER ZACK: I agree with Ms. Freidin that the
14 two reasons intellectually to do this bill and to pass
15 this bill is for a background check and a cooling-off
16 period and that's why I'm in favor of the amendment. I
17 just come out completely opposite, and I rarely do that.
18 But the fact of the matter is, if we want to ban
19 handguns we ought to say, Let's ban handguns and give the
20 local communities a right to ban handguns by having a
21 180-day or 360-day waiting period, that's not a cooling
22 off period, that's a ban.
23 So I'm in favor of the amendment. I too consider it
24 a friendly amendment if, in fact, what you're interested
25 in doing is what you are saying you want to do.
1 CHAIRMAN DOUGLASS: Okay. Now, are we ready to vote
2 on the amendment to the amendment which is the one we've
3 been discussing expanding it from three to five days; is
4 that correct? All right. Open the machine and we'll vote
5 on the amendment to the amendment. Okay. Lock the
6 machine and announce the vote.
7 (Vote taken and recorded electronically.)
8 READING CLERK: Twenty-three yeas, four nays,
9 Mr. Chairman.
10 CHAIRMAN DOUGLASS: All right. The amendment to the
11 amendment is adopted and we are now on the amendment as
12 amended. Commissioner Connor, I had previously recognized
13 you before we had the amendment so you have the floor.
14 COMMISSIONER CONNOR: Thank you. Mr. Chairman, I
15 rise in opposition to the proposal. I commend
16 Commissioner Rundle on her candor about why I go to the
17 Constitution and that's because notwithstanding the
18 polling date that Commissioner Rundle has been able to
19 generate in this case, the Legislature has heard from a
20 different set of people and has a different perspective on
21 what the people's view is on this issue.
22 And I can tell you from my own experience in the
23 gubernatorial campaign, there are lots and lots of people
24 out there who cherish the rights that have been accorded
25 them under the Second Amendment to keep and bear arms. So
1 I'm not going to address the issue on the turkey hunter
2 exception or the duck hunter or the deer hunter. I think
3 we ought to deal with it straight up just as Commissioner
4 Zack has suggested.
5 There are many, many people in this state and there
6 are many, many people in this country who feel that
7 government has failed in its essential responsibility
8 which is to protect the public's safety. And so they feel
9 very, very strongly that they should be able to preserve
10 their constitutional right to keep and bear arms so that
11 among other things, they can provide for their personal
12 safety and for their family's safety.
13 And if you think this proposal would prevent the next
14 David Koresh or the next Timothy McVeigh from engaging in
15 their unlawful acts, I would suggest to you plainly and
16 simply you are naive. It will not in any way deter those
17 folks from engaging in a course of unlawful conduct.
18 But what it will do in a very real sense is to impair
19 people in the exercise of their Second Amendment rights
20 and it will impair their ability and it will impair their
21 sense of their ability to preserve their safety and to
22 preserve the safety of their family.
23 I remember a number of years ago living in a small
24 town in central Florida, Lake Wales, we had two little
25 babies at the time and underwent during the middle of the
1 night an attempted break-in in our house. It was without
2 a doubt one of the most terrifying experiences I have ever
3 been through. And went through casting about of trying to
4 find something to defend myself. And the best I could
5 come up with that night was a tennis racket.
6 Now I've got my wife, I've got my two little girls at
7 that time in my house and I don't know who is coming but
8 I'm betting that they are not breaking in with a tennis
9 racket and I'm feeling pretty ill-equipped to take care of
11 After the situation was clear, the police had come
12 and we were deemed to be safe, and spending the balance of
13 the night in an utterly sleepless state, 8:00 the next
14 morning, I'm downtown at a store trying to buy a gun. I
15 didn't want to wait three days, I didn't want to wait five
16 days, I didn't want to wait 20 minutes. I wasn't going to
17 let another day go by, Lord willing, without buying a gun
18 to use it in my own personal defense and to use it in the
19 defense of my family.
20 Now, since that time, the people, through the
21 Constitution and the Legislature through its authority
22 which had been conferred on it, have acted in such a way
23 to try to achieve an appropriate balance in how we deal
24 with the situation. I think that the Legislature has
25 struck an appropriate balance. I am not -- it's -- I'm
1 convinced we use a lot of arguments for convenience. The
2 polling data is unpersuasive. If it was persuasive,
3 parental consent would have already been passed and we'd
4 be on our way in that regard.
5 But I can tell you as a practical matter the
6 overwhelming sentiment of support, I think you'll find
7 from experience if you deal with these issues out on the
8 stump, is that people cherish and want to preserve their
9 Second Amendment rights.
10 They don't want to see us act as a super Legislature
11 accomplishing a political agenda which has been
12 unsuccessful in the arena where the people have elected
13 representatives. They don't want a, what they view in
14 many respects as an appointed, elitist, lawyer-dominated
15 group to come in and say, We are going to take away from
16 you what your elected officials have been unwilling to
17 take away from you which is your discretion in this
19 When we compare this to local control of alcohol, I
20 would submit to you, that we trivialize the Second
21 Amendment rights that we cherish and enjoy under the
22 Federal Constitution. I don't believe that's an apt
23 comparison. But I guarantee you that you will find out
24 what the real sentiment of the public is if you pass this
25 proposal and I'll bet money, and I'll lay odds with you,
1 that it will be strongly against the passage of this
2 proposal. Thank you.
3 CHAIRMAN DOUGLASS: All right. Commissioner Smith.
4 COMMISSIONER SMITH: Thank you, Mr. Chairman. First
5 of all, I rise to speak in favor of this proposal. I am a
6 concealed firearm permit holder. I am a multiple gun
7 owner. I am a veteran of the Vietnam War having not just
8 been there but having fought in the war. I am a strong
9 proponent of the right to bear arms.
10 I agree with my friend Commissioner Connor when he
11 says they're arguments of convenience because one of the
12 first powerful arguments that I heard that convinced me to
13 vote in favor of merit selection came from Commissioner
14 Langley who is a member of the Judiciary Committee. I had
15 opposed merit selection, Article V Task Force and
16 Commissioner Langley quite persuasively and eloquently
17 stated what's good for south Florida may not be good for
18 north Florida. And what we're doing now is we're allowing
19 different parts of the state, circuit by circuit, county
20 by county, to make a judgment as to what's best for them.
21 The second argument that I heard that I found quite
22 persuasive when we dealt with other issues is the issue of
23 government closest to the people being better for the
24 people, being more effective. And now the proponents of
25 those two arguments, I find, some of them on the opposite
1 side of this issue.
2 And let me tell you why I think this is a good law.
3 First, because, Commissioner Connor, I think you're right
4 when you say that the Legislature has now made a good
5 balance. But in the balance, there is a loophole. See,
6 the people like the balance, that's why in 1990 they
7 supported this, the people and even the lawyers like me
8 didn't realize that this loophole existed.
9 I didn't know that I could just -- criminals know,
10 but I didn't know I could walk into a gun show in Dade
11 County on Dade County property and just buy a handgun
12 without a check. I want the checks. When I get on an
13 airplane it's an inconvenience when I'm trying to rush
14 here like yesterday and I'm stopped to be searched, that's
15 very inconvenient to me, I don't like it until I think
16 about the fact that somebody can blow the airplane up and
17 then I start cooperating.
18 You know, sometimes the guy stops you and you get a
19 little flippant and then you think about it and say, Well,
20 you know, he's just trying to prevent the criminal from
21 getting on the airplane and blowing that airplane up.
22 Let's talk about what this doesn't do. The Second
23 Amendment provides a right to keep and bear arms. Does
24 this proposal prevent any law abiding citizen from keeping
25 arms, not at all. Not one iota. Does it in any way
1 affect the bearing of arms? A lot of the faxes that we
2 received talked about going from county to county. As if
3 going from Dade County to Broward County passing this law
4 somehow affects your keeping your arm or bearing your arm,
5 it does not at all.
6 This only regulates the purchase of firearms and it
7 closes that loophole. Now as a gun owner, as a proponent
8 of the Second Amendment I found myself in the opposite
9 position that you had, Commissioner Connor, because I had
10 my Army-issued 45-caliber pistol on my desk one Saturday
11 and ran out to my car and took it across the street. And
12 when I got back there was a 6'4" burglar in my office. I
13 am 5'5", I am not a fighter. And I was thinking, Oh, my
14 God, does he have my gun? I'm really going to be in
15 trouble. And I said to him, Is anybody else in there? He
16 said, No. I said, Let me go upstairs and check and I got
17 to my pistol before he did. And therefore he got arrested
18 and went to jail because I was able to outsmart him.
19 So there will be situations where having a gun,
20 possessing and owning a gun, legally can be dangerous,
21 sometimes a gun goes off and kills a child but I don't
22 think that's any reason why people shouldn't have a right
23 to legally own a gun. And there will be situations like
24 yours and a lot of other citizens have where at late at
25 night you hear your daughter say, Daddy, Daddy, there's a
1 man out here, and you want to have that protection.
2 But I think what we want to send to the people of
3 Florida is, this proposal does not take away people's
4 guns. It does not prevent a lawful citizen from owning as
5 many guns as they want to legally own. It does not, now
6 that we have this proposal by Commissioner Alfonso,
7 circuitously and under the rug ban handguns by allowing
8 some city to pose a six-month or a year waiting period
9 which, in effect, is as far as I'm concerned a ban in
10 disguise. Because whether it's a situation that you have
11 or I've been invited to turkey hunt with my friend,
12 Commissioner Alfonso, I don't have a shotgun. I guess
13 I've got to get a shotgun. We're supposed to go in April.
14 I shouldn't have to wait, you know what I mean, I
15 shouldn't have to wait three or four months to get a
16 shotgun to go turkey hunting.
17 So I think that this is a step in the right direction
18 and, Commissioner Connor, I'd want to take you up on that
19 wager, maybe a lunch, because I think that the evidence
20 from 1990 clearly shows that the people of Florida believe
21 strongly in the Second Amendment; however, they believe
22 that this type of regulation will keep guns out of the
23 hands of those who are mentally infirmed and keep guns out
24 of the hands of those people who terrorize our families or
25 kin to the person that showed up that night where you had
1 to have the tennis racket.
2 COMMISSIONER CONNOR: The Chief Justice has informed
3 me, Mr. Chairman, that it was not appropriate or lawful to
4 offer to engage in a bet so we'll -- we won't have any
5 real consideration.
6 CHAIRMAN DOUGLASS: If he can handle burglars, he can
7 handle betters.
8 COMMISSIONER SMITH: Let me just close by saying
9 this, the first time I ever played golf with preachers, we
10 had two preachers and two non-preachers in the game and we
11 said, Okay, before we start, What are we going to bet?
12 And the preacher said, We can't bet, but we can have a
15 CHAIRMAN DOUGLASS: Okay.
16 COMMISSIONER CONNOR: We'll put a prize on the line.
17 CHAIRMAN DOUGLASS: All right. Commissioner Langley.
18 COMMISSIONER LANGLEY: In opposition to the gun
19 control bill. You know, the history of this, and I
20 certainly think this is totally legislative and should be
21 a legislative prerogative. The history of Chapter 790 and
22 the amendment that went on the ballot and all was not a
23 two-hour debate as we are having here perhaps and all of
24 this, but it was a debate in the process through the House
25 and the Senate and committees and public hearings that
1 culminated in what you see in the Constitution and what
2 you see in Chapter 790 with the concealed weapons permit.
3 And the problem before that, there was a collage of
4 laws throughout the state. In my county to get a gun
5 permit, you put up a $100 bond and had two people say,
6 You're a pretty good guy, that's all you had to do.
7 In Seminole County, adjoining Lake County, the
8 sheriff there said he's the only one that needed to carry
9 a gun and you didn't get any gun permits.
10 So a person could be perfectly legal in Lake County
11 and cross the river into Seminole County and be a felon
12 for carrying a gun, that was the reason that we did the
13 preemption law and the reason we agreed after much public
14 debate to have a uniform system across the state and to
15 forbid local laws relating to that.
16 Now if gun shows are the problem, they can be
17 regulated by the Legislature today and probably should be
18 if, in fact, these things that you paraded before us are
19 true, they should be regulated, I don't have any problem
20 with that. But what you're doing here is not only
21 handguns, it's all firearms including rifles and shotguns,
22 22 rifles or 410, whatever, that anybody is dealing with.
23 And you're getting to the private sale.
24 I was just talking with Commissioner Anthony who
25 happens to be a gun collector and we were talking about
1 some guns. But under this law, if I wanted to sell
2 Commissioner Anthony one of my guns or trade a gun with
3 him, who would do the background check? And do we have to
4 wait five days before we can make that trade? And in that
5 five days, who's going to do the background check on which
6 one of us? Since we're trading guns, do we both have to
7 have a background check or whether we ignore that law and
8 we become felons overnight?
9 There is local control when you talk, Mr. Smith,
10 about selecting a judge is a whole lot different from
11 taking away your constitutional right to possess a
12 firearm. And if I can't possess it today, I can't possess
13 it. So if you're going to make me wait five days, that's
14 still the same.
15 You know, Washington, D.C., New York City have the
16 toughest firearm laws in the world and correspondingly the
17 highest murder rates in the world. It doesn't work.
18 Criminals are not going to pay any attention to this.
19 You're going to penalize Commissioner Anthony and me and
20 Commissioner Alfonso who have guns and trade guns and buy
21 guns and sell guns and never intend to use them in a
22 criminal action. I have a gun collection probably
23 two-thirds of which have never been fired, you know,
24 they -- much less even have been used for any illegal
1 And you have to consider it and equate it with the
2 drug laws. I assume it's illegal to sell drugs in Dade
3 County today. So that law isn't working because the
4 people who would sell drugs are going to ignore it and go
5 on and sell their guns. Why make criminals out of
6 innocent people? The good people aren't going to use the
7 guns for bad purposes and those are the people you're
8 going to curtail. Let's regulate gun shows or let the
9 Legislature regulate gun shows. But, you know, it's
10 really, I think, most importantly a matter for the state
11 Legislature in appropriate hearings with good
12 representation, hearing from the public, reasoning these
13 things out, see how it fits with the other parts of the
14 law, and it's not up to us to do it.
15 CHAIRMAN DOUGLASS: Commissioner Zack?
16 COMMISSIONER ZACK: I guess we have a lot of gun
17 collectors on this ground and I consider myself one of
18 those and I'm also a sporting clays enthusiast. And about
19 two weeks ago I went and bought a new shotgun. And when I
20 bought that shotgun it was like buying a set of golf clubs
21 or a tennis racket, I couldn't wait to go out and shoot
22 it. I knew it was going to solve all my problems as far
23 as hitting those darn things. And I always find it's the
24 archer and not the arrow as far as equipment is concerned.
25 However, I waited the time that was necessary to wait
1 and it didn't hurt me any. Now I also went to the gun
2 show in Miami about two weeks ago, three weeks ago, walked
3 around there and saw the exact kind of weapons that we're
4 talking about here today.
5 So I can tell you from firsthand experience that they
6 do, in fact, exist if anybody has any doubt about that.
7 And I listened to Commissioner Connor's example and it
8 concerned me greatly. Most certainly he's been a dear
9 friend of mine for 25 years at least and would not want
10 anything bad to happen to him or his family who I've known
11 likewise as long. But there is one thing I'm certain of,
12 that if the day after that happened he would have called
13 any one of his friends, including myself, we would have
14 immediately provided him with a weapon, there is no
15 question in my mind about that, that we all know people
16 who have handguns or shotguns and if we need to have
17 something for our own protection we have the ability to
18 get it.
19 The reason I'm in favor of this, while being strongly
20 in support of the Second Amendment is because I'm looking
21 at not preventing David Koresh or Timothy McVeigh from
22 doing the horrible deeds that they've done because I don't
23 think this will do it. I agree with Commissioner Langley
24 in this one case. But the fact is, that the majority of
25 violence that occurs is in the home among family members.
1 And what I'm concerned about is I can give
2 Commissioner Connor my handgun or a handgun or a shotgun
3 but I can't rush in, nor do I want to rush in, and stand
4 between a husband and a wife who have had a horrible spat
5 and who are not thinking particularly right-headed at that
6 moment and one of them goes out and buys a gun and shoots
7 the other one at that gun show with a weapon from that gun
9 So when I look at the issue here, and that is to
10 avoid people from dying, I think we do that by passing
11 this. And I know that New York and D.C. have very high
12 crime rates. What I don't know is how much higher they
13 would be if they didn't have the laws that they presently
14 have in place. So that's why I'm voting for it.
15 CHAIRMAN DOUGLASS: All right. Anybody else?
16 Commissioner Butterworth -- Commissioner Evans, excuse me.
17 COMMISSIONER EVANS: I have a question of
18 Commissioner Rundle if it's appropriate.
19 CHAIRMAN DOUGLASS: If she will rise. You have the
21 COMMISSIONER EVANS: This background check, there is
22 no definition in the amendment, and I'm wondering what is
23 the background check, who decides what the background
24 check is, what are the limits of it.
25 COMMISSIONER RUNDLE: The way I understand it, it
1 occurs today, is that the purchaser is the one who makes
2 an application and it gets submitted to FDLE, which is the
3 Florida Department of Law Enforcement, and I think there
4 is an $8 or $25 fee or something like that. They run it
5 for a criminal history check. They then present that to
6 the person, you know, who is selling them that firearm.
7 Whether or not a community wanted to expand that a
8 bit for mental health issues, alcohol addiction, drug
9 addiction issues, again, I think those would be things
10 that could be done at the local community. Whether it
11 could be by the sheriff, as opposed to FDLE, again, I
12 think those are the kinds of things the local government
13 would decide what works best for their own community.
14 CHAIRMAN DOUGLASS: Commissioner Butterworth?
15 COMMISSIONER BUTTERWORTH: As a proponent. I
16 believe, and I traveled the state quite a bit over the
17 last couple of decades, and I find that we do have a
18 couple of Floridas, probably more than two, but probably
19 less than six. And I don't believe there is anywhere in
20 the state of Florida, no matter where you stand on this
21 bill, and no matter where the public out there might stand
22 on it, there is no one that wants a felon to have a
23 firearm. And there is no one that wants anyone that is
24 mentally ill to have a firearm. And I do believe when
25 people voted on this issue a decade ago, they thought that
1 gun shows would have been included, only common sense
2 would have said that there would be.
3 Any problems I think anyone would have with this
4 particular proposal by Commissioner Rundle should have
5 been taken care of with the two very fine amendments that
6 were adopted by us. One of them, which exempted out the
7 persons who already have a concealed weapons permit. And
8 secondly, the five-day issue by Commissioner Alfonso. I
9 think those two are the main reasons why someone would be
10 opposed to this.
11 From the standpoint of here we have the chief law
12 enforcement officer and the state attorney of our largest
13 circuit and also a letter and strong support from a strong
14 Mayor of Miami Dade County, Alex Pinellas, saying that
15 with our population of 2 million plus and our tremendous
16 crime problem that we have, we believe it's imperative for
17 Dade County to be able to have the option of making the
18 purchasing of firearms a little more difficult in our
19 particular community or at least we have the option to
20 address that issue.
21 I doubt very much if Crestview has the same problem
22 as Miami. I doubt very much if Two Egg, Florida has the
23 same problem as Hialeah. But I do believe that our super
24 counties that are larger than perhaps 75 percent of the
25 states in this union should have the opportunity to
1 address themselves in a limited way that we're allowing
2 them to do to address what they consider to be the most
3 important crime problem facing them as a community today.
4 If you go into any schools, if you go into any
5 schools, elementary schools, middle schools, and you ask
6 those children, What are you most afraid of, and what you
7 see right now, I see it from time to time and every time I
8 do go into the schools, they are more concerned about
9 firearms than anything else and access to firearms.
10 In essence, they are worried not about whether or not
11 they are going to lose their lunch money, they are worried
12 about whether or not they are going to lose their life in
13 school or going to or from school. I urge you to pass
15 CHAIRMAN DOUGLASS: Commissioner Freidin?
16 COMMISSIONER FREIDIN: I had an experience maybe six
17 weeks ago that I thought I would share with you because at
18 the time it happened I didn't even know -- I never heard
19 of Proposal 167 and I didn't know it was going to be
20 offered. I -- my family and I are fortunate enough to
21 live in what is one of the most beautiful areas of the
22 state of Florida, Coconut Grove, Florida. And within
23 jogging distance of our home is an area called Dinner Key
24 Marina which is where the City Hall of Miami is and it is
25 a beautiful marina and it is my jogging route.
1 When I leave the house, I go down and I jog around
2 and I look at the sailboats and I look at the beautiful
3 yachts that are moored there and I have a peaceful and
4 lovely time. I go around City Hall but I also go around
5 an area called -- that's called Dinner Key auditorium, or
6 Dinner Key Convention Center I guess it's called now. And
7 I have been doing that jog for probably 20 years now --
8 and I must admit, the jog has turned now to a fast walk.
10 After about 18 of those 20 years I decided that was
11 enough. But sometime, I think it was in early December, I
12 was walking through that area and I noticed that there was
13 something going on at the convention center. I didn't
14 really pay much attention to it and I kept going.
15 And then as I was walking, all of a sudden I saw
16 there was lots of cars parked in what's usually an empty
17 parking lot. I saw some teenage boys in battle fatigues
18 and they were like going around and hiding behind trucks
19 and playing like they were playing battle games, war
20 games. And then I realized that they had guns in their
21 hands and then I looked and I realized that they were real
22 guns and then I paid more attention and I realized what
23 they were doing was they all had at least a couple of guns
24 in their hands, these are teenage boys, and they were
25 walking into the gun show. And on the way into the gun
1 show they were playing with their guns.
2 And this was being done in a public area in an open
3 parking lot where often I bring my children with me. And
4 it was an absolutely terrifying experience to me. I
5 realized that this gun show, which I had noticed but
6 really never paid much attention to, was drawing these
7 kinds of people, these actual children who had guns that
8 were obviously bringing their guns to the gun show. I now
9 realize what they were probably doing was bringing them
10 there to sell them or to trade them or to trade up or to
11 trade for something more powerful, I don't know.
12 But the point is, it was a very terrifying experience
13 to me to see these people playing in the area. Now I
14 don't suggest that that's a problem that is the only
15 pervasive problem, but what I do suggest is that the very
16 notion that people would be all gathered together in order
17 to, you know, I saw an article in which these gun shows
18 where called Tupperware parties for criminals. And I
19 actually thought that was an apt description of what it
20 was, it seemed like these kids were involved in.
21 I think that it encourages people to take the
22 responsibility of ownership of a gun very lightly and I
23 think that local governments, I certainly would want my
24 county to be able to control this and to regulate sales of
25 firearms at these kinds of gatherings and I urge your
1 passage of this bill.
2 CHAIRMAN DOUGLASS: All right. Would you like to
3 close? This is the proposal, the amendment that we're
4 talking about and it's as amended, the two ways we talked
5 about. And if you would like to close, Commissioner
7 COMMISSIONER RUNDLE: Thank you, Mr. Chairman.
8 Really what we're asking is that you allow us at a local
9 level, we're not asking to impose it on everyone, it's
10 really giving rights back to local communities if they
11 want the opportunity to help themselves save lives. And I
12 really do believe based on -- I used some famous cases and
13 Commissioner Connor asked me, Well, what about real cases
14 in your community. I didn't refer to those because I
15 didn't think they would mean anything to you. We see the
16 mayhem that is created by some of these loopholes and we
17 see the tragedies, we see the dead bodies, we see the
18 injuries and lots of these criminals will tell you,
19 especially gang members and others, that they got them
20 from the gun shows.
21 So what we're asking is to allow us, at our own
22 level, in our own community, to be able to close that
23 deadly loophole, that's all we're asking. And to let
24 communities deal with background checks and waiting
25 periods. And that's all. And that's a very simple
1 request that will have a true meaningful difference on the
2 impact of lives and public safety in communities
3 throughout this state. Thank you.
4 CHAIRMAN DOUGLASS: All right. The proponent having
5 closed, we've adopted the amendment as amended and now
6 we're voting on that as the proposal. So if you will
7 unlock the machine, we will vote. Unlock the machine.
8 Has everybody voted? Lock the machine and announce the
10 (Vote taken and recorded electronically.)
11 READING CLERK: Twenty yeas, eight nays,
12 Mr. Chairman.
13 CHAIRMAN DOUGLASS: By your vote you have adopted the
14 amendment. Commissioner Barkdull, the next order of
15 business would be the report, I guess, of the Select
16 Committee on the Initiatives.
17 COMMISSIONER BARKDULL: Mr. Chairman, it's my
18 understanding that Commissioner Freidin has a substitute
19 for my 130 which I have no objection to it being
20 considered rather than 130. My question is should we --
21 CHAIRMAN DOUGLASS: All right. So what this is, as
22 I've explained, is you're yielding to Commissioner Freidin
23 who has a substitute which is the Select Committee's
25 COMMISSIONER BARKDULL: That's correct.
1 CHAIRMAN DOUGLASS: And that would, in effect, deal
2 with all of these proposals that are on it?
3 COMMISSIONER BARKDULL: Yes, sir. And if that's
4 adopted, I would withdraw my others or remove them. If
5 it's not adopted, then these will stay alive on the
6 calendar for consideration.
7 CHAIRMAN DOUGLASS: All right. I understand.
8 COMMISSIONER BARKDULL: It has to be passed out. The
9 Select Committee's substitute needs to be passed out.
10 CHAIRMAN DOUGLASS: All right. So there is a strike
11 everything amendment is what it is, I think; is that
13 COMMISSIONER BARKDULL: They need to passed it out.
14 CHAIRMAN DOUGLASS: It's being passed out. My next
15 question is, it's 4:35 and obviously this is not going to
16 be a subject that we're going to be able to take up in a
17 short period of time.
18 COMMISSIONER BARKDULL: I move we extend the time of
19 adjournment until the conclusion of this matter.
20 CHAIRMAN DOUGLASS: Well, no, no. I think that was
21 exactly what I was getting to. I believe we should extend
22 the time beyond a reasonable hour. We've had some pretty
23 tough discussions today and debates. And as the Chair, I
24 think we would be a lot better off if we got started on
25 this and we knew what we were dealing with, if this is the
1 will of the body, and we knew what the substitute was and
2 you might have a presentation on it. And then we prepared
3 to adjourn at the assigned time and you could make your
4 announcements or whatever, we'd have time for that, if
5 that's the will of the body.
6 Now I realize we have a lot of work to do but I think
7 anything we do from now on, there are a lot of people that
8 are tired and it would be better to be fresh with this.
9 COMMISSIONER BARKDULL: I gathered from the rumblings
10 of the group and the comments of the Chair that we will
11 interrupt this debate at five minutes to 5:00 and take it
12 up again tomorrow.
13 CHAIRMAN DOUGLASS: That's -- well, we'll just see
14 how it plays here. We're going to get this amendment
15 before you anyway, whatever else we do. Commissioner
16 Freidin, has it been passed out? Does anybody know?
17 Everybody got one but me. Commissioner Mills --
18 Commissioner Henderson, excuse me.
19 COMMISSIONER HENDERSON: I've been quiet all week.
20 CHAIRMAN DOUGLASS: You've been absent too.
21 COMMISSIONER HENDERSON: I've been around. But I
22 believe the motion is in order that after announcements we
23 would recess until tomorrow.
24 CHAIRMAN DOUGLASS: You mean now or after we get this
25 proposal before us?
1 COMMISSIONER HENDERSON: I'm just saying, this side
2 of the building here is ready to recess, okay?
3 CHAIRMAN DOUGLASS: All right. If you could hold
4 your motion just long enough for us to have this amendment
5 presented by Commissioner Freidin, I'd entertain that
6 motion with great glee after we did that. Could you do
7 that for me?
8 All right. Commissioner Freidin, I'm going to ask
9 everybody to please give us your attention just a minute
10 and then we're going to go. Commissioner Mills, could you
11 and Senator Silver, who is not supposed to be on the floor
12 talking to you, please quit and we'll proceed to see if we
13 can get out of here. Commissioner Freidin, you're
14 recognized. Commissioner Evans-Jones?
15 COMMISSIONER EVANS-JONES: I just wondered if it's
16 the appropriate time to move that we reconsider Committee
17 Substitute for 172 and 162.
18 CHAIRMAN DOUGLASS: Well, we'll treat that as a
19 motion to reconsider. That's not out of order, is it,
20 Commissioner Barkdull?
21 COMMISSIONER BARKDULL: No, sir.
22 COMMISSIONER EVANS-JONES: This is the Independent
23 Reapportionment Commission.
24 CHAIRMAN DOUGLASS: You have moved to reconsider it
25 and it will be placed on the calendar for reconsideration.
1 (Off-the-record comment.)
2 CHAIRMAN DOUGLASS: I'm trying to get to that. We're
3 going to read the amendment first if you will come to
4 order and listen to the Clerk. The Clerk is going to read
5 the amendment which is the work of the Select Committee on
6 Reapportionment. Would you read the amendment, please?
7 READING CLERK: Proposal 130, a proposal to revise
8 Article XI, Section 3, Florida Constitution; requiring an
9 initiative petition to be signed by a specified percentage
10 of the electors from each congressional district.
11 CHAIRMAN DOUGLASS: Now, the amendment is a
12 substitute for that. And would you read that, please?
13 READING CLERK: By Commissioner Freidin, delete
14 everything after the proposing clause and insert lengthy
16 CHAIRMAN DOUGLASS: Now, do you all have before you
17 the amendment? Commissioner Freidin, if you would just
18 briefly explain what this proposal does then we will
19 proceed to the other matters at hand. You have the floor.
20 COMMISSIONER FREIDIN: Mr. Chairman, when I was a
21 baby lawyer in Steve Zack's firm and when he was my boss,
22 Steve is much older than I am, (Laughter.) I learned that
23 you should never ever talk to the jury when the jury had
24 one foot out the door and I really think that it would
25 be -- it would make more sense for us to take -- I'm glad
1 that it's all on your desks. I would appreciate -- I
2 would ask that the members read this proposal tonight so
3 that when we get in here in the morning everybody will be
4 totally fresh and ready to discuss it and I would like to
5 explain it at that time.
6 CHAIRMAN DOUGLASS: Very well. I want to recognize,
7 before you do anything else, that in the gallery today is
8 a long-suffering citizen of the state of Florida who's put
9 up with a lot of adversity for many, many years, she is
10 the living widow of Commissioner Morsani. She is here and
11 he and Carol are celebrating their 47th wedding
12 anniversary. She's present in the gallery. We're honored
13 to honor you both. And all in great fun, Frank, you've
14 obviously been a great husband and father. Now,
15 Commissioner Barkdull.
16 COMMISSIONER BARKDULL: Mr. Chairman, I would yield
17 to Commissioner Connor for a moment.
18 CHAIRMAN DOUGLASS: Commissioner Connor?
19 COMMISSIONER CONNOR: Mr. Chairman, having conferred
20 with my colleague, Mr. Langley, in an effort to spare this
21 body the agony of further debate on the controversial,
22 apparently within this body, issue of parental consent and
23 being of a mind to take my appeal to the elected
24 Legislature in an effort to get this matter up before the
25 citizens of Florida, with the consent of this body, we'd
1 like to withdraw Mr. Langley's motion to reconsider which
2 is scheduled to be heard at 1:00 a.m. tomorrow -- excuse
3 me. Yes, we'll crack the whip, you'll be here at 1:00
4 a.m. We think we can get our folks here at 1:00 a.m.
5 CHAIRMAN DOUGLASS: At this time, without objection,
6 the motion to reconsider, to reconsider is withdrawn.
7 Now, Commissioner Barkdull, you're recognized.
8 COMMISSIONER BARKDULL: First I'd like to move to
9 reconsider Proposition No. 2, affirmative action, which
10 was passed yesterday and I was on the affirmative. Next
11 I'd like to reconsider Proposition 6 which was a sales tax
12 sunset and I was on the affirmative of that also.
13 CHAIRMAN DOUGLASS: It seems to me that's already
14 been moved to reconsider, I think, according to the
16 COMMISSIONER BARKDULL: No, sir. Well, if it has,
17 fine, if it hasn't --
18 CHAIRMAN DOUGLASS: Proposal 6?
19 COMMISSIONER BARKDULL: Proposal 6.
20 CHAIRMAN DOUGLASS: The journal says that
21 Commissioner Mills -- no, that was another proposal. I'm
22 sorry, you're correct. That was 144.
23 COMMISSIONER BARKDULL: I just want to be sure.
24 No. 2 and No. 6 are the two that I'm moving for right now.
25 CHAIRMAN DOUGLASS: You're moving to reconsider
2 COMMISSIONER BARKDULL: Now, I'd like to announce the
3 Sovereign Immunity Committee meets in Room 317 immediately
4 upon adjournment or 5:00. Style and Drafting is going to
5 meet in the morning, as I understand it, Commissioner
6 Mills at 8:00, 317?
7 CHAIRMAN DOUGLASS: Commissioner Mills?
8 COMMISSIONER MILLS: 7:30.
9 CHAIRMAN DOUGLASS: Where are you meeting,
10 Commissioner Mills?
11 COMMISSIONER MILLS: 317.
12 CHAIRMAN DOUGLASS: All right. Any further
13 announcements? Do you need anything? Just a moment.
14 We're TPing the 130 until tomorrow morning. It will be
15 the first item on the order; will it not?
16 COMMISSIONER BARKDULL: Yes, sir.
17 CHAIRMAN DOUGLASS: Commissioner Mathis, do you have
18 a question?
19 COMMISSIONER MATHIS: I had a question. Commissioner
20 Barkdull, did you ask for reconsideration of Commissioner
21 Sundberg's Proposal No. 2 on equal opportunity?
22 CHAIRMAN DOUGLASS: Yes, he did. He moved for
23 reconsideration on that.
24 COMMISSIONER BARKDULL: I did.
25 COMMISSIONER MATHIS: Well, can I -- just so I can
1 get an understanding, can I understand why?
2 CHAIRMAN DOUGLASS: I guess he'll do that when it
3 comes up for consideration.
4 COMMISSIONER MATHIS: So I should object now?
5 CHAIRMAN DOUGLASS: No, no. You get to hear him say
6 why he wants you to reconsider. You're not waiving
7 anything, Commissioner Mathis.
8 All right. Any further questions? Anything else?
9 Commissioner Barnett?
10 COMMISSIONER BARNETT: The reconsiderations though
11 will come up at 9:00 in the morning; is that when they
12 will be? Just so we know when to be here to discuss this
14 CHAIRMAN DOUGLASS: They don't have to come up the
15 first thing. It is up to the Rules Committee or the order
16 as to where they come up and so we'll just wait and see on
18 COMMISSIONER BARNETT: Well, just some idea. They
19 have been coming up right at 9:00, is that the intention?
20 CHAIRMAN DOUGLASS: Well, and then we TP'd them like
21 the one we had today. We had one up first and we TP'd it
22 until later in the week.
23 COMMISSIONER NABORS: Mr. Chairman?
24 CHAIRMAN DOUGLASS: Yes, Commissioner Nabors.
25 COMMISSIONER NABORS: It's hard to hear --
1 CHAIRMAN DOUGLASS: All right. Could everybody hold
2 it down just a minute. Commissioner Nabors has a
4 COMMISSIONER NABORS: Commissioner Barkdull, you
5 moved to reconsider which proposals?
6 COMMISSIONER BARKDULL: Pardon?
7 COMMISSIONER NABORS: Which proposals? I didn't hear
8 which proposals.
9 COMMISSIONER BARKDULL: I moved to reconsider the
10 sales tax sunset No. 6.
11 CHAIRMAN DOUGLASS: And No. 2. And then we had
12 another motion to reconsider that was made by Evans-Jones
13 on the Reapportionment Commission. Those will not
14 necessarily be coming up first thing in the morning at
15 all. They will be on the calendar and they will come up
16 in due course or they can come up anytime that the Rules
17 Committee puts them up.
18 (Off-the-record comment.)
19 CHAIRMAN DOUGLASS: Beg your pardon?
20 COMMISSIONER SUNDBERG: They must come up this
21 session, correct?
22 CHAIRMAN DOUGLASS: No.
23 (Off-the-record comment.)
24 CHAIRMAN DOUGLASS: They will come up tomorrow unless
25 we extend them over. We extended one over today so we
1 actually have four. On these items, I know the Rules
2 Committee is going to try to give you notice when they are
3 going to come up so we don't go through this I wasn't here
4 business and have to do it again. All right.
5 Commissioner Barkdull?
6 COMMISSIONER BARKDULL: I move we recess until the
7 hour of 9:00 a.m. tomorrow morning.
8 (Session adjourned at 4:50 p.m.)
3 STATE OF FLORIDA:
4 COUNTY OF LEON:
WE, JULIE L. DOHERTY, KRISTEN L. BENTLEY and
6 MONA L. WHIDDON, court Reporters, certify that we were
authorized to and did stenographically report the foregoing
7 proceedings and that the transcript is a true and complete
record of our stenographic notes.
9 DATED this ______ day of ____________, 1998.
12 JULIE L. DOHERTY, RPR
KRISTEN L. BENTLEY
17 MONA L. WHIDDON
18 DIVISION OF ADMINISTRATIVE HEARINGS
1230 APALACHEE PARKWAY
19 TALLAHASSEE, FLORIDA 32399-3060