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1 STATE OF FLORIDA
CONSTITUTION REVISION COMMISSION
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COMMISSION MEETING
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DATE: February 10, 1998
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TIME: Commenced at 9:00 a.m.
11 Concluded at 4:50 p.m.
12 PLACE: The Senate Chamber
The Capitol
13 Tallahassee, Florida
14 REPORTED BY: KRISTEN L. BENTLEY
JULIE L. DOHERTY, RPR
15 MONA L. WHIDDON
Court Reporters
16 Division of Administrative Hearings
The DeSoto Building
17 1230 Apalachee Parkway
Tallahassee, Florida
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1 APPEARANCES
2 W. DEXTER DOUGLASS, CHAIRMAN
3 CARLOS ALFONSO
CLARENCE E. ANTHONY
4 ANTONIO L. ARGIZ (EXCUSED)
JUDGE THOMAS H. BARKDULL, JR.
5 MARTHA WALTERS BARNETT
PAT BARTON
6 ROBERT M. BROCHIN
THE HONORABLE ROBERT A. BUTTERWORTH
7 KEN CONNOR
CHRIS CORR (EXCUSED)
8 SENATOR ANDER CRENSHAW
VALERIE EVANS
9 MARILYN EVANS-JONES
BARBARA WILLIAMS FORD-COATES
10 ELLEN CATSMAN FREIDIN
PAUL HAWKES
11 WILLIAM CLAY HENDERSON
THE HONORABLE TONI JENNINGS
12 THE HONORABLE GERALD KOGAN (EXCUSED A.M.) (PRESENT P.M.)
DICK LANGLEY
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
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IRA H. LEESFIELD (ABSENT)
22 LYRA BLIZZARD LOGAN (ABSENT)
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1 PROCEEDINGS
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.
6 (Pause.)
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.
14 (Laughter.)
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
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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.
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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
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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
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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
11 Scott?
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
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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
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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
20 territory.
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,
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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
7 Florida.
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
24 questions?
25 CHAIRMAN DOUGLASS: Commissioner Barkdull?
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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
13 issue?
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
17 proposal.
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.
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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
18 Nabors?
19 COMMISSIONER NABORS: I was just getting up, I'll sit
20 back down.
21 (Laughter.)
22 CHAIRMAN DOUGLASS: Let the record reflect that
23 Commissioner Nabors got up.
24 (Laughter.)
25 CHAIRMAN DOUGLASS: If there is not any further
DIVISION OF ADMINISTRATIVE HEARINGS (850) 488-9675
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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
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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
3 time.
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
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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
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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.
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1 COMMISSIONER RILEY: But yet you are saying, Okay --
2 are you just -- is that it, you think we have voted? I'm
3 confused.
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
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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,
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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
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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
18 together.
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
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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
25 confused.
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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
8 Riley?
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
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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
4 consent.
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.
11 (Laughter.)
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.
24
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
25
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
6 report.
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
26
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
25 lower.
27
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.
28
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
29
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.
30
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.
31
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
13 Legislature.
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
22 Barnett.
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
32
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
33
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-,
34
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
35
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
36
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
15 recognized.
16 COMMISSIONER HAWKES: I would like to TP this,
17 please.
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
37
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
38
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
39
1 purpose?
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
24 purpose?
25 COMMISSIONER SMITH: I rise for a question.
40
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
22 this.
23 COMMISSIONER THOMPSON: Commissioner Brochin, for
24 what purpose?
25 COMMISSIONER BROCHIN: A question.
41
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
20 interim.
21 COMMISIONER RUNDLE: I don't think that was our
22 intent.
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
42
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
4 renewed"?
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
43
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
18 not?
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
44
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?
45
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
22 date.
23 COMMISSIONER THOMPSON: Commissioner Brochin to
24 explain the amendment.
25 COMMISSIONER BROCHIN: Okay. This subject is the
46
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
25 Florida.
47
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
48
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
49
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
6 penalty.
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
50
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
51
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
52
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
53
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
14 point.
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
54
1 Rundle.
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
55
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
56
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,
57
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
58
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
59
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
60
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.
61
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
24 representative.
25 COMMISSIONER THOMPSON: Commissioner Morsani?
62
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
18 Morsani.
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
24 unconstitutional.
25 CHAIRMAN DOUGLASS: Commissioner Langley, for what
63
1 purpose?
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
64
1 have.
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
12 recognized.
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
21 them.
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.
65
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
66
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
67
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
68
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
21 respond.
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.
69
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
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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
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1 constitutional the way we did it and regardless of what a
2 former justice may say or otherwise because it h |
