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1 STATE OF FLORIDA
CONSTITUTION REVISION COMMISSION
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4 COMMISSION MEETING
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8 DATE: February 12, 1998
9 TIME: Commenced at 9:00 a.m.
Concluded at 1:00 p.m.
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PLACE: The Senate Chamber
11 The Capitol
Tallahassee, Florida
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REPORTED BY: KRISTEN L. BENTLEY
13 JULIE L. DOHERTY, RPR
MONA L. WHIDDON
14 Court Reporters
Division of Administrative Hearings
15 The DeSoto Building
1230 Apalachee Parkway
16 Tallahassee, Florida
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1 APPEARANCES
2 W. DEXTER DOUGLASS, CHAIRMAN
3 CARLOS ALFONSO (EXCUSED)
CLARENCE E. ANTHONY
4 ANTONIO L. ARGIZ (ABSENT)
JUDGE THOMAS H. BARKDULL, JR.
5 MARTHA WALTERS BARNETT
PAT BARTON
6 ROBERT M. BROCHIN
THE HONORABLE ROBERT A. BUTTERWORTH
7 KEN CONNOR
CHRIS CORR (EXCUSED)
8 SENATOR ANDER CRENSHAW
VALERIE EVANS
9 MARILYN EVANS-JONES
BARBARA WILLIAMS FORD-COATES
10 ELLEN CATSMAN FREIDIN
PAUL HAWKES (ABSENT)
11 WILLIAM CLAY HENDERSON
THE HONORABLE TONI JENNINGS
12 THE HONORABLE GERALD KOGAN
DICK LANGLEY (ABSENT)
13 JOHN F. LOWNDES
STANLEY MARSHALL
14 JACINTA MATHIS
JON LESTER MILLS
15 FRANK MORSANI
ROBERT LOWRY NABORS
16 CARLOS PLANAS (EXCUSED)
JUDITH BYRNE RILEY
17 KATHERINE FERNANDEZ RUNDLE
SENATOR JIM SCOTT
18 H. T. SMITH
ALAN C. SUNDBERG
19 JAMES HAROLD THOMPSON
PAUL WEST (EXCUSED)
20 JUDGE GERALD T. WETHERINGTON (ABSENT)
STEPHEN NEAL ZACK
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IRA H. LEESFIELD (ABSENT)
22 LYRA BLIZZARD LOGAN (ABSENT)
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1 PROCEEDINGS
2 (Quorum taken and recorded electronically.)
3 SECRETARY BLANTON: Quorum call, quorum call. All
4 commissioners indicate your presence. All unauthorized
5 visitors please leave the chamber. Quorum present,
6 Mr. Chairman.
7 CHAIRMAN DOUGLASS: All right. If everybody will
8 take your seats, we'll have the morning prayer. Would you
9 please take your seats. All right. Would everybody
10 please rise for the morning prayer.
11 This morning we're happy to have again Reverend Emory
12 Hingst, pastor of St. Stephen's Lutheran Church in
13 Tallahassee. Reverend, if you can get them to move, you
14 can say our prayer.
15 REVEREND HINGST: Let us begin our prayer in silence,
16 perhaps taking a breath to consider who we are, for what
17 purpose we are here and to continue to let God's presence
18 be known.
19 Almighty yet loving Lord God, the beginning and end
20 of all that we are and all that we have you create,
21 preserve, forgive, replenish, renew and continue to create
22 as the love of the world. You give society the privilege
23 and responsibility to wisely use our resources, to be
24 responsible to structure our society in striving for
25 justice for all citizens particular in your revelation to
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1 the Judeo-Christian tradition, justice for those who are
2 the most vulnerable.
3 Thank you for this awesome freedom and
4 responsibility. In that light, we ask you to give these
5 commissioners the eyes to see your presence in the
6 citizens and the environment they serve. Give these
7 commissioners the ears to hear your voice in the voices of
8 the people and to see clearly the public they are asked to
9 support. Give them wisdom, knowledge, patience, kindness,
10 gentleness, humility in affirmations and negations and
11 deliberations.
12 And, lest we forget others, we ask for your peace and
13 health for all communities of our world. Hear our
14 petitions in your grace. Amen.
15 CHAIRMAN DOUGLASS: Commissioner Riley, would you
16 lead us in the pledge of allegiance to the flag?
17 (Pledge of Allegiance.)
18 CHAIRMAN DOUGLASS: All right. Order, please.
19 Commissioner Barkdull.
20 COMMISSIONER BARKDULL: Yes, sir, Mr. Chairman.
21 CHAIRMAN DOUGLASS: Just a moment. Okay. We're
22 starting off this morning like we did yesterday and we
23 couldn't get anything done. I would hope everybody could
24 sort of stay in their seats and resist too much talking
25 back and forth while people are on the floor today.
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1 And I want to congratulate you, Commissioner
2 Henderson. You were in your seat all day yesterday and
3 I'm proud of that.
4 COMMISSIONER HENDERSON: Mr. Chairman, do I need to
5 ask permission to go to the bathroom?
6 CHAIRMAN DOUGLASS: Just raise your hand.
7 (Laughter.)
8 CHAIRMAN DOUGLASS: Commissioner Barkdull will give
9 you permission. Commissioner Barkdull.
10 COMMISSIONER BARKDULL: Mr. Chairman, Members of the
11 Commission, you have a proposed special order calendar in
12 front of you today. There are a number of items on
13 reconsideration and then the special order starts with
14 Proposition No. 58, which I'm not sure is in the packet
15 but I believe is over at the desk and is going to be
16 distributed now. This is the one we had to withdraw from
17 Declaration of Rights yesterday and place on the calendar.
18 It concerns age in the nondiscriminatory section of the
19 Declaration of Rights.
20 One of the items on reconsideration is number six,
21 which was there -- I placed on reconsideration. I'd like
22 to withdraw that motion at this time with the concurrence
23 of the body.
24 CHAIRMAN DOUGLASS: All right. Without objection the
25 motion for reconsideration, that one, incidentally, is the
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1 Nabors' proposal on finance and taxation.
2 COMMISSIONER BARKDULL: That's correct, sales tax
3 sunset.
4 CHAIRMAN DOUGLASS: The sunset of the sales tax. And
5 you're moving to -- you're actually moving to withdraw
6 your motion to reconsider.
7 COMMISSIONER BARKDULL: Yes, sir.
8 CHAIRMAN DOUGLASS: Everybody understand? All those
9 in favor say aye; opposed?
10 (Verbal vote taken.)
11 CHAIRMAN DOUGLASS: Without objection it is --
12 COMMISSIONER BARKDULL: Now, Mr. Chairman, all the
13 remaining motions to reconsider that are on the first --
14 CHAIRMAN DOUGLASS: By unanimous consent it is
15 withdrawn. I'm reminded that that's what it takes to
16 withdraw a motion to reconsider.
17 COMMISSIONER BARKDULL: Now, Mr. Chairman, I move you
18 that we temporarily pass all the other motions for
19 reconsideration on the calendar. I see some of the
20 people's proposals that are involved are not here and some
21 of the makers of the motions to reconsider are not here
22 until later on in the day.
23 CHAIRMAN DOUGLASS: And some of those we may have to
24 carry over to the next meeting.
25 COMMISSIONER BARKDULL: The first item then would be
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1 No. 58 which should be being given out right now. And I
2 think Commissioner Anthony wants the floor.
3 CHAIRMAN DOUGLASS: This is the age matter. And I
4 would hope we could take up next, early or the first thing
5 the Article V cost report. That's the next item on the
6 calendar. Commissioner Smith.
7 COMMISSIONER SMITH: I'm just asking a question.
8 With regard to the motion made by Commissioner Barkdull to
9 temporarily pass all the items that are on
10 reconsideration, what does it take to pass that? Because
11 I --
12 CHAIRMAN DOUGLASS: Pass that motion, you want to
13 take them up?
14 COMMISSIONER SMITH: Not all of them up, but I
15 think -- Commissioner Barkdull moved to reconsider
16 Proposition 2 and the proponents, key proponents, Sundberg
17 and Smith, are here.
18 CHAIRMAN DOUGLASS: Well there are a lot of the
19 opponents that aren't here, which that may be why you want
20 to take it up.
21 (Laughter.)
22 COMMISSIONER SMITH: There is nothing like a good
23 clear answer. Thank you, very much.
24 CHAIRMAN DOUGLASS: I tell you, we're going to have
25 to quit acknowledging people aren't here, aren't we,
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1 Commissioner Smith, on both sides of the issues I guess.
2 We'll proceed with the age.
3 COMMISSIONER ANTHONY: Mr. Chairman.
4 CHAIRMAN DOUGLASS: Commissioner Anthony.
5 COMMISSIONER ANTHONY: Mr. Chairman, I'd like to make
6 a motion that we take up Proposals 59, 76 and 77 after the
7 Proposal 58 this morning.
8 CHAIRMAN DOUGLASS: All right. Commissioner
9 Barkdull.
10 COMMISSIONER BARKDULL: Those were the sovereign
11 immunity matters and it was my understanding that all the
12 parties involved are not in agreement yet.
13 COMMISSIONER ANTHONY: That's why we have debate on
14 the floor, Commissioner Barkdull, so we can come to
15 consensus on these matters. I think that yesterday we
16 started this discussion at around 11:30. Chairman
17 Douglass then came on the floor, started debate on this
18 issue at 11:45, went to 12:00, and then we came back after
19 lunch and did not continue the discussion on this matter.
20 I think I request a consideration of the Chair and
21 the membership of this commission, let's take up this
22 matter and I made this request in January. So I ask that
23 we take up this matter this morning so that we can have a
24 discussion that the people want on sovereign immunity.
25 CHAIRMAN DOUGLASS: Commissioner Connor.
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1 COMMISSIONER CONNOR: Mr. Chairman, respectfully, and
2 appreciative of Commissioner Anthony's concerns, and I'm
3 not sure what the appropriate order is, I would, in
4 arguing against that, would simply request that we be
5 permitted to temporarily pass those proposals for this
6 reason: As you know, the select committee on sovereign
7 immunity was a creature that came rather late in the game.
8 We had three proposals that came before us and then
9 literally at the 11th hour we had a new, unique proposal
10 which was altogether different from the proposals that
11 were put on the table that came to us.
12 And much of the time yesterday was spent on the floor
13 in an attempt to scurry around and draft something and
14 satisfy different people's considerations and concerns.
15 And I am one of those, frankly, who have grave concerns
16 about that. Both from a philosophical standpoint and from
17 a public policy standpoint.
18 My sense is, however, from talking with various
19 partisans who are involved in this, that they would like
20 additional time, particularly in light of the new proposal
21 that came to the floor late in the game, to have an
22 additional opportunity to continue to try to refine that
23 language. We met as late as yesterday at lunch with our
24 committee and heard from different people about these
25 matters.
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1 And I frankly think the quality of the product, and
2 as a consequence the quality of the debate would likely be
3 enhanced if additional opportunity were given to have
4 input on the various proposals. And our committee either
5 could meet further or perhaps the various folks that are
6 involved could meet further, but I think we might have the
7 product enhanced so that our debate would sharpen when
8 those matters came up.
9 CHAIRMAN DOUGLASS: Commissioner Connor, I think
10 Commissioner Langley had spoken and he wanted to be on
11 that, I think he was working with the group on that.
12 COMMISSIONER CONNOR: He met with our committee
13 yesterday, he did indeed.
14 CHAIRMAN DOUGLASS: And that I think is one reason I
15 feel that we ought to TP it until you have an opportunity
16 in the committee to come up with something. I don't think
17 you have come up with anything.
18 COMMISSIONER ANTHONY: Mr. Chairman.
19 CHAIRMAN DOUGLASS: Commissioner Scott.
20 COMMISSIONER SCOTT: Mr. Chairman, he has a motion on
21 the floor which is a majority vote, simple majority vote,
22 to amend the special order calendar. I don't even know
23 what's going on with this issue or which way I would vote
24 on it.
25 But I want to start expressing right now a concern
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1 that this is an issue of major import, a higher level,
2 obviously, than probably some percentage -- I don't want
3 to be mean about it, 70 percent of the stuff we've been
4 debating in here -- and I think that if Commissioner
5 Anthony wants to have this advanced that we ought to do
6 it.
7 I want to express the concern that we've got to get
8 finished here, you know. And we've now got one more week,
9 there's going to be discussions from the leadership and
10 Style and Drafting and Rules about that, but, I mean, one
11 more week in February. I think we ought to do it and I'm
12 in favor of his motion.
13 CHAIRMAN DOUGLASS: If you want to be heard on the
14 motion, I don't believe it's a motion to amend, is it,
15 Commissioner Barkdull?
16 COMMISSIONER BARKDULL: I took it as a motion to
17 amend the calendar to place this on after the
18 consideration --
19 CHAIRMAN DOUGLASS: That's what I mean. It was a
20 motion to amend, not a motion --
21 COMMISSIONER CONNOR: Then, Mr. Chairman, my position
22 simply is in opposition to the motion only because, as I
23 understand it, deferring this would not be the
24 precipitating cause of our coming back. My understanding
25 is we're coming back in any event.
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1 And that because of the very thing that Commissioner
2 Scott has pointed out, that this is a matter of
3 extraordinary importance, I think, and would have
4 significant and far-reaching implications. My own
5 estimation is, particularly in light of the Senate
6 President's comments yesterday and the struggle the
7 Legislature has had, that we would do well to refine our
8 thinking and sharpen the issues more carefully before
9 putting it to the body.
10 And I say that, frankly, without having a commitment
11 either way on these issues. I have a lot of sympathy, I
12 know and you can talk with folks who have been in the
13 committee, I have a lot of sympathy for the concerns that
14 Commissioner Anthony has raised. My desire simply is to
15 afford us the best opportunity to produce the best product
16 that will result in the most clear and careful
17 consideration.
18 CHAIRMAN DOUGLASS: So you oppose the motion to
19 amend?
20 COMMISSIONER CONNOR: Yes.
21 CHAIRMAN DOUGLASS: Commissioner Ford-Coates.
22 COMMISSIONER FORD-COATES: It seems to me that I
23 think Commissioner Anthony has expressed quite clearly
24 that this is an issue of prime importance to him. And the
25 fact that he happens to be getting married this week is
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1 going to interfere with the minor detail of, you know, his
2 honeymoon is coming up and he's not going to be here the
3 week that this is discussed.
4 I would suggest that we go ahead and debate some of
5 the pros and cons and problems of the issue, finish our
6 debate and then perhaps entertain a motion to temporarily
7 pass it. If we don't want to have the final vote, I think
8 we should at least be allowed to sufficiently hear
9 Commissioner Anthony's information on the process and
10 other issues. And I support his motion.
11 CHAIRMAN DOUGLASS: I'm looking for some compromise
12 that might accommodate. Would it be appropriate to go
13 ahead with the special order as set and then have
14 Commissioner Anthony make his debate on, actually on
15 something that's not really before us and probably won't
16 be until the next meeting, as Commissioner Connor pointed
17 out.
18 I have no objection to that. And I'm sure most
19 others don't have any objection to him making his debate.
20 On the other hand, I don't think we can control the
21 special order based on that altogether. We do accommodate
22 all the time but not for the next meeting. It's going to
23 be the most important meeting we have. And it's very
24 essential that everybody be here and at that point I feel
25 sure that everybody will be here that can.
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1 And I don't have -- as an accommodation I don't have
2 any problem with Commissioner Anthony making his remarks.
3 They are generally addressed to the subject I think.
4 COMMISSIONER ANTHONY: Mr. Chairman, thank you very
5 much for that consideration, but I'm not requesting that
6 consideration. I'm requesting that we move the items and
7 that I be given a chance to have some input on the
8 proposals that are before us and that would be in order
9 once we approve, hopefully we approve this motion.
10 Mr. Chairman, I am not one that misses meetings and I
11 have been here during the process and having input on
12 proposals throughout this process. If we're going to hold
13 up this item because of Commissioner Langley not being
14 here, I ask you to compare my voting record and
15 attendance. And I would beg to say that my attendance
16 here at these meetings has been more than 80 percent at
17 these meetings.
18 And all I'm doing is requesting, as I requested of
19 you, that we put this item up to when I am here, because I
20 have been waiting to provide input to the members of this
21 commission on this item. And that's the consideration
22 that I'm asking of the commission, that you give me this
23 opportunity and give Commissioner Zack this opportunity,
24 and Freidin, who have proposals on this issue to have an
25 opportunity to talk to you about the pros and cons.
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1 Whichever way you will fall on this item, it's just
2 the pros and cons that I'd like you to be able to hear
3 from me while I'm here. And I ask your consideration.
4 CHAIRMAN DOUGLASS: Anybody else want to be heard on
5 the motion? All in favor of the motion, say aye; opposed?
6 (Verbal vote taken.)
7 CHAIRMAN DOUGLASS: All right. The motion carries.
8 Where does that leave us, Commissioner Barkdull?
9 COMMISSIONER BARKDULL: Proposition 58, and then we
10 go to Article V costs and then we go to the sovereign
11 immunity three that Commissioner Anthony had in his
12 motion.
13 CHAIRMAN DOUGLASS: Is that agreeable to you now,
14 Commissioner Anthony? We'll be going to it third on the
15 order. That will be this morning.
16 Fifty-eight, read 58.
17 COMMISSIONER BARKDULL: Mr. Chairman, I may have
18 misstated. He asked that it be taken up after 58 and
19 ahead of the Article V costs.
20 CHAIRMAN DOUGLASS: All right. It will be taken up
21 after 58. Fifty-eight. We called 58 yesterday, I think.
22 Read the Proposal 58 by Commissioner Zack.
23 READING CLERK: Proposal 58, a proposal to revise
24 Article I, Section 2, Florida Constitution; providing that
25 a person may not be deprived of any right because of age.
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1 CHAIRMAN DOUGLASS: Commissioner Zack, you're
2 recognized on the proposal.
3 COMMISSIONER ZACK: We've withdrawn that and
4 submitted a substitute that should be before the body at
5 this time.
6 CHAIRMAN DOUGLASS: All right. Is the substitute --
7 COMMISSIONER ZACK: It's an amendment.
8 CHAIRMAN DOUGLASS: It's an amendment?
9 COMMISSIONER ZACK: Yes.
10 CHAIRMAN DOUGLASS: Is the amendment on the table?
11 COMMISSIONER ZACK: Yes, it is.
12 CHAIRMAN DOUGLASS: Would you read the amendment?
13 READING CLERK: By Commissioner Zack, delete
14 everything after the proposing clause and insert
15 Section 1, Section 21 of Article I, of the Florida
16 Constitution is revised by amending the section to read,
17 Article I, Declaration of Rights; to access courts, the
18 courts shall be open to every person for redress of any
19 injury and injustice -- excuse me, and justice shall be
20 administered without sale, denial or delay.
21 CHAIRMAN DOUGLASS: Commissioner Zack on the
22 amendment which is really sort of a substitute; isn't it?
23 COMMISSIONER ZACK: Yes, it is.
24 CHAIRMAN DOUGLASS: Would you explain what you are
25 now asking us to do on this amendment?
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1 COMMISSIONER ZACK: First let me explain the reason
2 for the amendment. The concern that was expressed in
3 committee, the Declaration of Rights Committee, about just
4 adding age to Section 2 was that we really weren't sure
5 where that would lead us.
6 There were a number of concerns vis-a-vis adding
7 rights to minors. In fact, you could argue that anybody
8 at any age could drive, anybody at any age could do many
9 things, drink, et cetera, that presently they are not
10 allowed to do. Also, there are concerns about, on the
11 other end of the spectrum, on the long in the tooth, where
12 I'm on that side of that spectrum, about the mandatory
13 retirement ages and things of that nature.
14 So the reason for the original proposal and for the
15 amendment, and the amendment actually has a laser effect
16 of curing a problem as opposed to a more broad-based,
17 uncertain effect. And the problem was one that was
18 addressed to us at every single meeting that we had around
19 the state. And I'm proud to say that I attended every
20 single one of those meetings.
21 And there wasn't any issue that was more debated,
22 more passionately debated, than the rights of people over
23 25 years of age to receive remuneration in the event of
24 the wrongful death or injury to their parents.
25 And we've heard, and I'm not going to take the time
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1 of this body which has a very full agenda today, to
2 reiterate each of the horror stories, and that's the only
3 way to describe them, as horror stories, that we heard at
4 those public hearings.
5 I was thinking last night that -- when I was thinking
6 about this matter coming up first thing this morning, I
7 happen to have a 25-year-old son and a 23-year-old
8 daughter. I happen to think they love me both equally, I
9 hope they do at least. They were raised in the same
10 household with the same affection. And if this afternoon
11 I'm walking across the street and I'm hit and killed by a
12 bus with a -- a bus with an intoxicated driver and, a
13 private bus most certainly, and tomorrow they find out
14 that I had died, that each of them would have the same
15 pain and each of them would have the same loss.
16 And there is no intellectual justification that can
17 be expressed, I believe, in this chamber. And there are
18 very few things where we cannot honestly disagree and we
19 have honestly disagreed on many, many of those. But on
20 this issue, frankly, there is no intellectual or logical
21 reason that my daughter should recover and my son
22 shouldn't. And I ask you to support this motion.
23 CHAIRMAN DOUGLASS: Commissioner Connor.
24 COMMISSIONER CONNOR: Mr. Chairman, I rise to speak
25 in favor of the proposed amendment. And I'm very
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1 appreciative of Commissioner Zack and others for being
2 sensitive to the concerns that I had raised about
3 potential unintended consequences. And I agree with
4 Commissioner Zack that this is a very targeted, laser-type
5 way to address the concern.
6 I do think it's appropriate to be in the Constitution
7 because we're talking about either the denial or
8 impairment of people's rights. And I believe it to be the
9 role of the Constitution to protect the rights of the
10 people. I would make this observation with respect to age
11 23 versus 25 or older. That this proposal would not in
12 any way impair the ability of the jury to determine the
13 amounts to be awarded a decedent's survivor based on their
14 age. In other words, a 45-year-old child, the jury, with
15 respect to the amount of the recovery, could take into
16 account the facts at issue and make rationally-based
17 distinctions on how much should be recovered.
18 What this does is simply to say that the right to
19 make a recovery can't be denied or abridged in any way.
20 So the jury still has the opportunity to take into account
21 those kinds of factors that would be appropriate in
22 assessing the amount that ought to be awarded. And I dare
23 say, I dare say, that a jury could well find that a
24 30-year-old child and a 3-year-old child ought to be and
25 should be treated differently with respect to the loss of
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1 a parent, for example.
2 So I encourage your favorable consideration. I think
3 it's properly within our purview. I think it does not
4 open the door to the unintended consequences that I was
5 concerned about, and I think it does remedy a gross
6 injustice that is present in the law.
7 CHAIRMAN DOUGLASS: Commissioner Smith?
8 COMMISSIONER SMITH: Thank you, Mr. Chairman. As the
9 Chair of the Declaration of Rights Committee, I rise just
10 for a brief point of information.
11 As was said, this matter was withdrawn from the
12 Declaration of Rights Committee. I would ask that none of
13 you take any adverse inference from that. Basically there
14 was a miscommunication as to what the status of this
15 proposal was, as to whether it was withdrawn, whether it
16 was going to go in Article I, Section 2, Article I,
17 Section 21.
18 And once we found out that it fell through the cracks
19 and the Declaration of Rights Committee had closed shop
20 and was not taking up any other proposals, and since it's
21 so laser-like and so specific and deals with one specific
22 issue, we felt it was appropriate, especially with time
23 running out, to bring it to the body, debate it, hopefully
24 a very, very small period of time, and vote it up or down.
25 Thank you.
21
1 CHAIRMAN DOUGLASS: Commissioner Freidin? Did you
2 rise for a question?
3 COMMISSIONER BARKDULL: I was going to ask
4 Commissioner Zack to take the floor, but I'll yield to
5 Commissioner Freidin.
6 COMMISSIONER FREIDIN: I also rise to speak in favor
7 of this, in fact, because I was very impressed, sadly
8 impressed, with the testimony that we heard at our public
9 hearings uniformly.
10 I only wanted to raise one additional point and it
11 will be very brief and that is that this will also apply
12 in cases where parents lose children. Because if a parent
13 loses a child over 25, this will apply. You know, you
14 could have a child who just, unfortunately, is killed on
15 their 25th birthday and that would presently defeat the
16 right, there would be no right to recover. So I just
17 wanted to make that clarification.
18 CHAIRMAN DOUGLASS: All right. Commissioner
19 Evans-Jones.
20 COMMISSIONER EVANS-JONES: I have a question please
21 of Commissioner Zack. Commissioner Zack, does this simply
22 apply to the wrongful act or does it apply to everything
23 like Supreme Court judges? Do they now have to retire at
24 a certain age?
25 COMMISSIONER ZACK: The reason has nothing to do with
22
1 retirement whatsoever.
2 COMMISSIONER EVANS-JONES: That's what I wanted to
3 clarify.
4 CHAIRMAN DOUGLASS: The substance of your amendment
5 is that you have moved it over to the access to the courts
6 section.
7 COMMISSIONER ZACK: That's right. It's now in
8 Section 21.
9 CHAIRMAN DOUGLASS: Correct. Commissioner Barkdull.
10 COMMISSIONER BARKDULL: Commissioner Zack, at the
11 present time the 25 and the wrongful death cause of action
12 is a creature of the Legislature; isn't it?
13 COMMISSIONER ZACK: That is correct.
14 COMMISSIONER BARKDULL: The whole wrongful death
15 action is a creature of the Legislature.
16 COMMISSIONER ZACK: That's also correct.
17 COMMISSIONER BARKDULL: So you're moving a cause of
18 action into the Constitution.
19 COMMISSIONER ZACK: That is one of the ways of
20 looking at it. I don't look at it quite that way. I look
21 at it as not a cause of action but providing the same
22 rights for, as I said, my son and daughter.
23 COMMISSIONER BARKDULL: I understand, but if the
24 Legislature had made the age 21 then there wouldn't be any
25 difference.
23
1 COMMISSIONER ZACK: I still would put it in the
2 Constitution because the Legislature can change their mind
3 tomorrow.
4 COMMISSIONER BARKDULL: I understand that. But what
5 I'm trying to get to is this is a right that was created
6 by statute. And now we want to enlarge -- we want to set
7 it in concrete for 20 years in the Constitution.
8 COMMISSIONER ZACK: I want to set it for longer than
9 20 years. I don't believe there is any reason to
10 differentiate between somebody 25 and 24.
11 COMMISSIONER BARKDULL: Twenty-five and 24 is a
12 statutory number that was put in there. They can change
13 it to 21, they can change it to 30 or they can change it
14 to 50.
15 COMMISSIONER ZACK: Not once it's in the
16 Constitution.
17 COMMISSIONER BARKDULL: I understand what you are
18 trying to do, but you're really trying to take what's a
19 statutory cause of action and put it in the Constitution.
20 COMMISSIONER ZACK: I don't agree with that
21 characterization of it.
22 COMMISSIONER BARKDULL: Well the cause of action is
23 created by statute; isn't it?
24 COMMISSIONER ZACK: We have already said so.
25 CHAIRMAN DOUGLASS: Commissioner Zack, to clear up
24
1 the confusion, you're saying the Legislature could repeal
2 the whole thing because you say in any action for personal
3 injury or wrongful death if they repeal the entire
4 wrongful death statute then --
5 COMMISSIONER ZACK: Of course if it applies to
6 everybody and all the citizens in the state of Florida,
7 they can take away every right. They can take it away for
8 everybody. I don't think the citizens of the state of
9 Florida will allow that to occur.
10 CHAIRMAN DOUGLASS: My point is you're not trying to
11 write the statute, you're just saying if there is one that
12 you're not going to discriminate on age.
13 COMMISSIONER ZACK: I agree, Mr. Chairman.
14 CHAIRMAN DOUGLASS: Commissioner Riley.
15 COMMISSIONER RILEY: I have a question for
16 Commissioner Zack and a comment on Commissioner Barkdull's
17 comment that this is a right in statute.
18 I would say it's a wrong in statute that's trying to
19 be righted by this. So getting back then to that and
20 reading the first part of Section 21, as it is currently
21 in the Constitution, how then could statute put into --
22 how could the Legislature put into statute something that
23 limits redress based upon age, as it has, given the first
24 sentence as I read it?
25 Do you understand my question? I mean, how is
25
1 that -- how is that correct what the Legislature did, the
2 limits because of age that they put on --
3 COMMISSIONER ZACK: Section 21 has been reviewed many
4 times by the courts and it happens to be one of the most
5 fundamental rights, as I look at it, that we have in our
6 Declaration of Rights. But it has been determined
7 previously that what the Legislature did in this regard,
8 as I understand it, is constitutional. And unless we make
9 this change, it will not occur otherwise.
10 COMMISSIONER RILEY: I guess that's my question.
11 What it says is that the court shall be open to every
12 person for redress of any injury. It doesn't say anything
13 about the age of 25. So how can that be right if it's
14 already in here? Maybe I should be asking Commissioner
15 Kogan this.
16 COMMISSIONER ZACK: I always will defer to our Chief
17 Justice in responding to any legal question, if he wants
18 to.
19 CHAIRMAN DOUGLASS: It's a simple answer. The court
20 held it was constitutional for the Legislature to create
21 the cause of action in any manner they saw fit. And they
22 didn't take the issue to deny equal access to the courts.
23 So what he's trying to do is put it in the Constitution as
24 if you have it, then the court has to recognize this. I
25 think that's what he's doing.
26
1 COMMISSIONER ZACK: That is correct.
2 CHAIRMAN DOUGLASS: Commissioner Thompson.
3 COMISSIONER THOMPSON: I just wanted to ask a
4 question or two seriously for information that might help
5 us all. And I'm sincere in asking these. I'm going to
6 vote against this, but I'm not asking these to be
7 unfriendly. I just want to try to understand it.
8 The way I understand it, this whole cause of action
9 for wrongful death for people who are not dependent on
10 someone had to be created by the Legislature because it
11 was not a common law right nor is it a right under our
12 Constitution, obviously; is that correct?
13 COMMISSIONER ZACK: You know, I cannot tell you for
14 sure. It sounds basically -- I don't know if it was a
15 common law right or not. And I have not reviewed it from
16 that point. And Mr. Connor may be aware.
17 COMMISSIONER CONNOR: There was no common law right
18 to wrongful death. Wrongful death actions were purely
19 creatures of statute.
20 COMMISSIONER ZACK: The wrongful death statute
21 itself?
22 COMISSIONER THOMPSON: Pardon me?
23 COMMISSIONER ZACK: Are you referring to the wrongful
24 death statute itself?
25 COMISSIONER THOMPSON: Yeah, that's what you're
27
1 addressing this to, aren't you?
2 COMMISSIONER ZACK: Well, you know, going back to I
3 guess Torts 101, my professor used to talk about how the
4 acts on the train that we have today goes back to England
5 many, many years ago. That as long as the person died in
6 an accident, there was no problem, but if they became
7 injured or maimed, there was. So they just made sure that
8 nobody survived those accidents. This is a legislative
9 way of making sure nobody survives those accidents.
10 COMISSIONER THOMPSON: Well I guess what you're
11 saying is Commissioner Connor is right, that it's a
12 creature of the Legislature, the wrongful death act.
13 COMMISSIONER ZACK: It is. I didn't understand that
14 that was your question, that you were limiting it to
15 wrongful death.
16 COMISSIONER THOMPSON: And the logic for sometimes
17 children in particular and other people who are not
18 dependent on the person who has died for support is really
19 the crux of the problem you're trying to address here.
20 COMMISSIONER ZACK: That is, correct. It's the
21 emotional loss, the pain and suffering that exists.
22 And again, I thought the interesting statement by
23 Commissioner Connor about a birthday, actually my son
24 turned 25 about a week ago. So one week before he had all
25 those rights. It just doesn't make any sense to take that
28
1 away based on one week.
2 CHAIRMAN DOUGLASS: Commissioner Morsani.
3 COMMISSIONER MORSANI: Before I can vote I have to
4 ask my colleague and expert and advisor, Commissioner
5 Thompson.
6 CHAIRMAN DOUGLASS: His fees are very large in this
7 area. I understand he's working very hard in this area.
8 (Laughter.)
9 COMMISSIONER MORSANI: He has told me not to vote
10 until I talk to him, so here I am.
11 Tell me why -- I heard this and I don't know -- why
12 did the Legislature address this and why is it a
13 legislative statute? What is the reasons for the
14 Legislature taking this action and if -- and why didn't
15 they undo this action if it's not just?
16 COMISSIONER THOMPSON: I don't know a full answer to
17 that, just like I don't guess any of us know a full answer
18 to anything. Let me give you my best shot and I'm
19 certainly subject to being corrected and augmented by
20 others that are more informed than I am.
21 But as Commissioner Connor said, the right to a
22 wrongful death action was not something that people had at
23 common law. And particularly some of the elements of
24 that, if you weren't dependent on somebody, then you
25 couldn't get money that you weren't going to get if they
29
1 were alive. And so the other thing you couldn't get is
2 being compensated in some way for the speculative damages
3 of how you felt about it, which is pain and suffering.
4 So the Legislature over a period of time did go ahead
5 and enact a wrongful death statute that allows, in certain
6 circumstances, people who are not dependent, and
7 otherwise, to collect through a wrongful death action.
8 They made certain exceptions for age and so forth. In
9 other words, if you were 50 years old and your parent was
10 70 years old and you weren't dependent, they might have
11 been dependent on you at that stage in your life, then
12 they made certain exceptions. And I'm not at all positive
13 what the exceptions are today.
14 But all legislation, as we all realize, is a product
15 of compromise, just about what we're doing here. He filed
16 this proposal in one form, got concerned about the
17 far-reaching impacts of that, and decided to change his
18 form until he got something that he thought would be
19 palatable to us. And that's certainly the way the
20 legislative process works.
21 This is a rifle shot, as he says, at trying to get to
22 a specific statute that the Legislature, as Commissioner
23 Barkdull has pointed out, can change up and down and in
24 and out and in fact was not a common law right. So the
25 Legislature has exercised its discretion in that area. We
30
1 certainly have a right to exercise our discretion in that
2 area also if we think that's right and we think we
3 understand the implications of this.
4 CHAIRMAN DOUGLASS: Commissioner Connor.
5 COMMISSIONER CONNOR: Mr. Chairman, I'd like, if I
6 might, to respond further to that question.
7 Commissioner Morsani, I think Commissioner Scott can
8 attest to this, that the very issue that came to us in the
9 context of medical malpractice cases and people who are
10 over age 25 couldn't make a recovery for mental pain and
11 suffering and the like, really came as a result of a
12 compromise that was reached in large measure, as I
13 understand it, probably between Senator Scott and Senator
14 Myers.
15 Senator Myers being a physician and the FMA being a
16 very powerful and influential lobby within the
17 Legislature, they had enough clout to get it through,
18 plain and simple.
19 Now what is typically recoverable on behalf of a
20 child under the wrongful death act is the following:
21 First of all, loss of support and services. Those are the
22 economic losses. Then in addition to that, a child may
23 recover for mental anguish associated with a parent's
24 loss, together with what's called the loss of parental
25 guidance, companionship and instruction.
31
1 And what this amendment to the Constitution will do,
2 would say that when the Legislature recognizes within its
3 inherent authority that certain elements of damages are to
4 be recoverable, the Legislature may not restrict the
5 elements of damage differently based on age. But take
6 into account, if you will, sir, that the jury may take
7 into account the distinctions of age in arriving at its
8 award.
9 For example, one would scarcely expect that a
10 26-year-old child who is out of the home, who has a job
11 and is not dependent at all upon their parent for support
12 whom they lost in the accident would be awarded by the
13 jury consideration for loss of support and services. But
14 they could recover for mental pain and suffering, which
15 they cannot now do, in proportion to what the jury felt
16 was factually justified.
17 So what this does, it retains to the jury the ability
18 to make distinctions based on the evidence. But it just
19 simply says in terms of a right itself, the Legislature
20 may not discriminate on the basis of age. I have, in my
21 experience, I have tremendous confidence in juries and
22 know that juries are very capable of making those kinds of
23 rationally-based distinctions based on the law that the
24 court instructs them to take into account and based on the
25 evidence that's before it.
32
1 But this does, in effect, level the playing field in
2 a very real sense. And rather than eliminating rights,
3 which the Legislature historically has had the power to
4 do, based on special interest legislation or whatever, it
5 just says, hey, we're not going to allow discrimination on
6 the basis of age, but the jury clearly can make
7 distinctions on the basis of age based on the evidence
8 before it.
9 CHAIRMAN DOUGLASS: Commissioner Smith.
10 COMMISSIONER SMITH: Thank you, Mr. Chairman. I have
11 a very brief example of a real-life situation I just
12 handled, Commissioner Morsani, that might amplify just how
13 you know justice is. And although Commissioner Barkdull
14 is right, that the Legislature does -- this is a creature
15 of statute, one, and two, they have the right to determine
16 whether it should be 21 years of age, 25. Wherever you
17 stop, somebody is going to say it's arbitrary. If they
18 set it at 29 and you are 30, they are going to think it's
19 arbitrary.
20 I just handled a case where my 27-year-old male
21 client was waiting for his mother and father at the altar
22 to get married. His mother and father were killed on the
23 way to the wedding of their 27-year-old son. It was so
24 devastating; the only thing in the car recognizable was
25 the wedding present, and it didn't have a scratch on it.
33
1 Nothing else you could identify as a particular item,
2 ashtray, you couldn't tell that it was.
3 Twenty-seven was able to recover for what
4 Commissioner Thompson described as speculative damages,
5 but what I would describe as the pain and suffering of
6 losing both of his parents as he stood at the altar
7 waiting for them so that the wedding could start and all
8 of the other loss that comes with losing a parent.
9 Now, if they had been killed as a result of wrongful
10 death, he gets nothing. What this is trying to do is say
11 to the Legislature, Yes, you have the authority because it
12 is a creature of statute to set the guidelines with regard
13 to this. But whatever it is, we are not going to
14 discriminate against age. We are not going to allow you
15 to discriminate against age. So, that's the purpose we
16 are trying to -- what we talked about yesterday in
17 leveling the playing field, the issue of ports or
18 seaports, owned by a city or county, just level the
19 playing field. That's what we are trying to do here.
20 I hope that example showed you why people out in the
21 community wherever we went were so passionate about this
22 because it's inherently unfair. I understand the purist
23 standpoint that certain things should be left to the
24 Legislature, but the only way that we can make these
25 things fair, in my judgment, to right a wrong is to enact
34
1 this constitutional provision. Thank you.
2 CHAIRMAN DOUGLASS: Commissioner Sundberg.
3 COMMISSIONER SUNDBERG: Commissioner Zack for a
4 question, please.
5 CHAIRMAN DOUGLASS: He yields.
6 COMMISSIONER SUNDBERG: Commissioner Zack, is it your
7 considered legal opinion and the intent of this proposal
8 that it would not deprive the Legislature from, in its
9 next sessions coming up, eliminating actions for wrongful
10 death or survival all together, is that correct?
11 COMMISSIONER ZACK: I've already indicated that, as
12 long as they do it uniformly and it applies to everyone in
13 the State of Florida, they can do what they choose to do.
14 COMMISSIONER SUNDBERG: And this measure simply says,
15 If there's to be a cause of action for wrongful death or
16 other action of personal injury, that the Legislature
17 would be limited in its ability to build-in any sort of
18 convictions that relate to age that discriminate against
19 anyone on the basis of age; Is that accurate?
20 COMMISSIONER ZACK: That is absolutely accurate.
21 COMMISSIONER SUNDBERG: Thank you.
22 CHAIRMAN DOUGLASS: Commissioner Scott.
23 COMMISSIONER SCOTT: Mr. Chairman, Commissioners, I
24 was in the forefront of passing this wrongful death
25 statute in the year after Dempsey Barron left the
35
1 Legislature. I never succeeded before that. But I have
2 advocated this issue in the Legislature. Having said
3 that, however, I do not think that we should put this in
4 the Constitution. It is another example of something
5 where there may be, not that there should be, but there
6 may be at least an argument someone could make at a
7 certain age that, you know, that this right terminates.
8 It is true that the Legislature could do, could do --
9 repeal it uniformly and so forth. But to go in and pick
10 one phase of it, I don't think, is something that we
11 should do here.
12 Now, I had -- last session, as recently as last
13 session, I mean, I spoke extensively on this, and
14 committee, about the medical malpractice issue, why should
15 there be a difference between what could be recovered and
16 whatever by an adult child regarding a medical malpractice
17 action. But I'm not positive, but I'm probably going to
18 vote against this because I think it should be left to the
19 Legislature, like every other right, including the basic
20 right of even having a wrongful death action.
21 (Commissioner Jennings assumes the Chair.)
22 COMMISSIONER JENNINGS: Further, Chairman Douglass.
23 CHAIRMAN DOUGLASS: I just wanted to add this. It
24 will be very short. Those of you that were at our public
25 hearings, this has been mentioned, but this is an issue of
36
1 fairness, that's all it is. And it's proper that
2 discrimination be rooted out everywhere that it exists.
3 It's proper that it be in the Constitution when this has
4 occurred over a period of time. It didn't used to be this
5 way. What happened was, we got an older population, and
6 when I get killed, it was the will of those who influenced
7 legislation to reduce it so that my children couldn't
8 recover from my death.
9 That's not only true, it could be the Nursing Home
10 Relief Act, it could be any number of things that you
11 could call it. And we have heard that, and we heard the
12 great impact that it made on these people, that they were
13 denied access to the courts. And that's what this has
14 done, Commissioner Zack's amendment has done, it has
15 guaranteed access to the courts if there's a wrongful
16 death action.
17 Now, the powerful interests in this state that don't
18 want people to recover for the wrongful death at all
19 cannot repeal this statute, but they were successful in
20 getting this wonderful compromise, and they have kept it
21 for years, and they kept people like those we heard at our
22 public hearings.
23 Now, if you are for fairness and if you are for equal
24 access to the court by everyone in the state, then you
25 should support this because it doesn't -- to those of you
37
1 that aren't lawyers, this argument about, well, the
2 Legislature can do this, the Legislature can do that, that
3 does not apply in a case like this because all you are
4 saying is, If you have this cause of action, it will be
5 fair and it will result in people not being discriminated
6 against because of their age or even because of the age of
7 their parents.
8 We have an aging population, they know what I'm
9 talking about, and I think and I urge you to support
10 Commissioner Zack's proposal.
11 COMMISSIONER JENNINGS: Further on the amendment?
12 Commissioner Morsani.
13 COMMISSIONER MORSANI: I guess -- I've heard the
14 argument and I certainly was impressed with the difficulty
15 that people had. However, I'm not swayed by the rhetoric
16 to put this in the Constitution. I apologize to some of
17 you ladies and gentlemen who work before the Bar and in
18 these type of situations; however, I think that you -- we
19 are honestly opening the door to additional litigation.
20 But that's not the issue.
21 I happen to think that we talk about the generation
22 of instant gratification, what the underlying thing here
23 is, we want gratification because of something that
24 happened to a loved one. I don't happen to think that's
25 right, it's very unfortunate. It's like war. Mr. Smith
38
1 talks about Vietnam. Some of us can talk about other
2 wars. And that's true. And no one wants to see people
3 killed; it is a messy thing, and it hurts and people do
4 make mistakes.
5 What we are saying, what we are trying to do here is
6 put mistakes, like an accident, they are accidents, people
7 don't run into each other because they want to, they are
8 accidents. And also I think this is directed, basically,
9 at hospitals; there's no question about that. And I have
10 come down on both sides.
11 I think hospitals should be made to do the right
12 thing, that they need to take all precautions. I've been
13 chairman of hospital boards, I know the problem, and that
14 requires continued, continued scrutiny and inspection of
15 the policies and procedures in those entities.
16 But I am going to vote against this proposal because
17 I really don't think it's being presented for all the
18 right reasons, and I would urge you to vote against it.
19 CHAIRMAN DOUGLASS: Would he yield for a question?
20 COMMISSIONER JENNINGS: I'm sure he does.
21 COMMISSIONER MORSANI: Sometimes I say no.
22 CHAIRMAN DOUGLASS: As I understand your argument,
23 and I think I understand it, and it's one that I've heard
24 before, and it's one that's compelling to a lot of people,
25 you would abolish the entire cause of action for death; is
39
1 that correct?
2 COMMISSIONER MORSANI: No, that's not what I said,
3 sir.
4 CHAIRMAN DOUGLASS: Well, you don't support a
5 distinction between older people and younger people, I
6 know, we have discussed that. So, you are not doing away
7 with the whole cause of action, just the part of it that
8 applies to people that happen to be over 25.
9 COMMISSIONER MORSANI: Well, you could construe it
10 that way. That's not what I really mean, but that's all
11 right. You can come to that conclusion.
12 CHAIRMAN DOUGLASS: I came to the conclusion from
13 your statement that you really didn't think this wrongful
14 death cause of action was a very good cause of action
15 anyway; is that right?
16 COMMISSIONER MORSANI: That's right.
17 COMMISSIONER JENNINGS: Further on the amendment?
18 Commissioner Lowndes.
19 COMMISSIONER LOWNDES: Yes, as much as I hate to
20 disagree with my great friend, Commissioner Morsani, the
21 thing that occurred to me during the public hearing, my
22 first impression of this, and we have heard it so many
23 times was, that it was simply an economic issue and that
24 people were chagrined over the fact that they couldn't
25 recover or profit from the death of a loved one. But the
40
1 more important thing that came through to me was the
2 concern that I had that people could, physicians and
3 hospitals, could kind of deal with people's impunity
4 because they didn't have any relatives of a certain age.
5 My sense is that the removal of the age provision in the
6 wrongful death act will have the effect of causing
7 hospitals and doctors to deal much more carefully with
8 people. And you will, in the long run, it's not so much
9 allowing people to recover, but it is to cause people to
10 pay attention to what they are doing, realizing that they
11 are going to be responsible for their acts. Thank you.
12 COMMISSIONER JENNINGS: On the amendment.
13 Commissioner Zack to close.
14 COMMISSIONER ZACK: We have got a very long agenda,
15 so I'm going to be very brief. We have been talking about
16 taking away people's rights, a lot of discussion, we have
17 had a lot of discussion that what we do should not be
18 perceived as taking away anyone's rights. This is truly
19 giving rights to the citizens of the State of Florida who
20 deserve those rights.
21 And Commissioner Thompson, Commissioner Thompson,
22 Commissioner, I just wanted to address Commissioner
23 Thompson for a moment before he makes his final decision
24 on this vote, that Claude Pepper is still watching.
25 (Laughter.)
41
1 COMMISSIONER JENNINGS: Good line. Mr. Chairman, you
2 are back there. I normally take these kind of things --
3 excuse me, Commissioner Thompson.
4 COMMISSIONER THOMPSON: I have a question for
5 Commissioner Zack.
6 COMMISSIONER JENNINGS: Though he's closed, we are
7 sort of loose with the rules.
8 COMMISSIONER THOMPSON: Can I help you with that, my
9 friends, Commissioner Zack, it's come to my attention that
10 you are trying to read the insurance coverage from New
11 York City to California on this matter. (Impersonation.)
12 (Laughter.)
13 COMMISSIONER THOMPSON: In the words of Hugh Taylor,
14 they will pack up their money and go home if you don't be
15 careful.
16 (Impersonation.)
17 COMMISSIONER THOMPSON: Judge Taylor used to tell us
18 that when we got a little too anxious on the Plaintiff's
19 sides. I do want one question answered by you or
20 Commissioner Connor or Commissioner Freidin, or anybody
21 who knows more than I do, which is all of you.
22 COMMISSIONER ZACK: (Inaudible impersonation.)
23 COMMISSIONER THOMPSON: I'll tell you what, you need
24 to practice around the supper table a little bit more.
25 COMMISSIONER ZACK: That's South Miami Beach.
42
1 COMMISSIONER THOMPSON: Oh. Does this proposed
2 change relate only to medical malpractice claims or not?
3 I'm getting differing opinions from differing experts.
4 COMMISSIONER ZACK: It does not. It's universal and
5 it's intended to be universal. It's to give everyone the
6 same rights, whether they are young or old in this state.
7 COMMISSIONER THOMPSON: I know the battle in the
8 Legislature is always over medical malpractice, and in
9 reading it, it looks like it refers back to the damages
10 recoverable for a minor, and a minor then is defined over
11 on the definition side as someone under 25 years of age,
12 but I'm going to take your advice on that and vote against
13 it.
14 COMMISSIONER JENNINGS: Okay. Shall we try a voice
15 vote? No, okay. You all are so picky, my Senators like
16 voice votes. On the motion by -- oh, is that it? On
17 motion by Commissioner Zack to favorably recommend the
18 amendment. Open the machine and record your vote.
19 (Vote taken and recorded electronically.)
20 COMMISSIONER JENNINGS: Lock the machine and announce
21 the vote.
22 READING CLERK: Twenty-one yeas, seven nays, Madam
23 Chairman.
24 COMMISSIONER JENNINGS: And the amendment passes.
25 Further amendments?
43
1 READING CLERK: None on the desk.
2 COMMISSIONER JENNINGS: Okay. Then the original
3 proposal as amended is before us. Commissioner Zack,
4 anything further?
5 COMMISSIONER ZACK: Nothing further.
6 COMMISSIONER JENNINGS: Okay. I keep wanting him to
7 read it another time, but we don't have to do that. Then
8 a motion by Commissioner Zack to favorably recommend the
9 proposal. Open the machine and cast your vote.
10 (Vote taken and recorded electronically.)
11 COMMISSIONER JENNINGS: Lock the machine and announce
12 the vote.
13 READING CLERK: Nineteen yeas, seven nays, Madam
14 Chairman.
15 COMMISSIONER JENNINGS: And the proposal is
16 recommended. Mr. Chairman, you didn't tell me what was
17 next. I thought it was Commissioner Anthony's sovereign
18 immunity. Okay, you wanted to do that? Do you want to
19 come back up here to do it? He's gotten as bad as the
20 rest of us, he's leaving too. That's all right, sir, you
21 are excused.
22 (Laughter.)
23 COMMISSIONER JENNINGS: We are not going to tell
24 them. Proposal 59, pending. Okay, let's get us in the
25 right posture. We are on Proposal 59, which was in one of
44
1 those books, I saw it. The pink book, the pink book. And
2 there is a substitute amendment pending, but for our
3 edification this was the substitute amendment by
4 Commissioner Lowndes that we had the discussion yesterday,
5 as I remember.
6 Commissioner Lowndes, would you like to refresh our
7 memory about the substitute amendment?
8 COMMISSIONER LOWNDES: I believe that there --
9 COMMISSIONER BARKDULL: Madam Chairman.
10 COMMISSIONER JENNINGS: Commissioner Barkdull.
11 COMMISSIONER BARKDULL: Can I interrupt you? Could
12 we have the substitute read in its entirety because the
13 last sentence I'm concerned about, among other things.
14 COMMISSIONER JENNINGS: That's why I wanted
15 Commissioner Lowndes to tell us about it. Okay, let's
16 read the substitute again.
17 READING CLERK: Substitute amendment by Commissioners
18 Lowndes, Zack, Morsani and Hawkes, on Page 1, Lines 11
19 through 28, strike all of said lines and insert, Section
20 1, Section 13 of Article X of the Florida Constitution, as
21 revised by amending that section to read, Article X,
22 Section 13, suits against the state provision may be made
23 by general law, for bringing suit against the state as
24 political subdivisions, agencies, districts and
25 municipalities. As to all liabilities now existing or
45
1 hereafter originating, provided in such a suit a person
2 may recover damages up to a maximum amount of $200,000
3 plus costs, other attorney fees occurred in the suit,
4 unless amount is increased by general law. In any event,
5 the maximum amount of damages shall be increased each year
6 by the same percentage, as a percentage increase in the
7 consumer price index or any successor index published by
8 the federal government.
9 COMMISSIONER JENNINGS: Okay. That was the
10 substitute amendment read in full. Commissioner Lowndes.
11 COMMISSIONER LOWNDES: Yes, I think there was an
12 amendment to the amendment which we were discussing
13 yesterday which was either withdrawn with the idea that a
14 second amendment or a substitute amendment was going to be
15 proposed. The amendment that we were talking about to the
16 amendment yesterday was the mechanism to, in tort claims,
17 to have a solution for those in excess of the caps other
18 than a claims bill by somehow structuring something
19 similar to the Federal Torts Claim Act.
20 And I think that that -- I don't know what happened
21 to my good friend Commissioner Zack, but I think that
22 there is an amendment pending.
23 COMMISSIONER JENNINGS: Well, that is a substitute
24 amendment. Have we got an amendment to the substitute?
25 Oh, the Secretary has it in her hands.
46
1 COMMISSIONER ZACK: That is the arbitration?
2 COMMISSIONER JENNINGS: Madam Secretary, is that what
3 you are passing out, or is that what you are --
4 COMMISSIONER ZACK: I think they have handed out an
5 earlier version and there's been a later version. We have
6 just got to make -- there's been about 22 versions of
7 this.
8 COMMISSIONER JENNINGS: I was going to say.
9 COMMISSIONER ZACK: So I just want to make sure it is
10 the correct one.
11 COMMISSIONER JENNINGS: Okay. Do we have an
12 amendment to the substitute? Okay, that's what you meant,
13 you had our copy of it?
14 (Off-the-record discussion.)
15 COMMISSIONER JENNINGS: Okay, let's read the
16 amendment to the substitute.
17 READING CLERK: Amendment to the substitute amendment
18 by Commissioners Langley, Morsani, Lowndes and Zack. On
19 Page 1, Line 14, after the period, insert, There shall be
20 a waiver for sovereign immunity for excess tort claims,
21 when any tort claim is filed against the state or any
22 political subdivision agency, district or municipality
23 which exceeds a limited waiver of sovereign immunity
24 established by general law, it shall be submitted by the
25 court in which it is filed in lieu of trial to a
47
1 three-person arbitration panel that shall by majority vote
2 render a decision on the claim. The rules that govern the
3 proceedings of the arbitration panel and any appeal taken
4 therefrom shall be determined by the State Supreme Court.
5 COMMISSIONER JENNINGS: Okay. Everybody got the
6 right copy of the amendment to the substitute?
7 COMMISSIONER ZACK: Yes.
8 COMMISSIONER JENNINGS: Okay. And the amendment to
9 the substitute?
10 COMMISSIONER ANTHONY: Question.
11 COMMISSIONER JENNINGS: Commissioner Anthony. Who is
12 the sponsor of the amendment to the substitute?
13 COMMISSIONER ANTHONY: Commissioner Morsani, or
14 Lowndes, or Zack. Would you yield for a question?
15 COMMISSIONER JENNINGS: Ask the question and then
16 we'll find out who wants to answer it.
17 COMMISSIONER ANTHONY: Let me make sure I'm clear, in
18 fact what this amendment does is take away sovereign
19 immunity for governmental entities and place it for
20 resolution in the court system or through an arbitrational
21 panel; is that correct, Commissioner Lowndes?
22 COMMISSIONER LOWNDES: I think that is a little bit
23 of a broad statement. It really deals only with tort
24 claims, number one. And number two, it deals with those
25 tort claims in excess of the cap. And rather than having
48
1 those tort claims in excess of the cap be subject to claim
2 bills, it provides for a judicial way of resolving it.
3 COMMISSIONER ANTHONY: Commissioner, further
4 questions?
5 COMMISSIONER JENNINGS: You are recognized,
6 Commissioner Anthony. Of who, Commissioner Morsani,
7 Commissioner Lowndes?
8 COMMISSIONER ANTHONY: Lowndes.
9 COMMISSIONER JENNINGS: Okay, Commissioner Lowndes.
10 COMMISSIONER ANTHONY: Is this another court system
11 being put in place, and what is the cost of such a process
12 being put in place?
13 COMMISSIONER LOWNDES: Well, to answer those
14 questions in reverse order, I don't know what the cost is.
15 But I don't think it's another court system. What it
16 provides for presumably is, number one, the rules to be
17 promulgated by the Supreme Court. But it provides for an
18 arbitration proceeding with arbitrators appointed by
19 circuit court judges.
20 COMMISSIONER ANTHONY: So, you are proposing -- and
21 further questions, ma'am?
22 COMMISSIONER JENNINGS: Yes. But Commissioner
23 Anthony, I understand that on your desk is the wrong
24 version. So, we can take all of our versions of
25 amendments to Proposal 59 and just hold them for a minute.
49
1 They are bringing the corrected version now.
2 COMMISSIONER ZACK: I understand that Mr. Anthony's
3 question was directed to any of the proposers.
4 COMMISSIONER JENNINGS: Are you answering the
5 previous question, or the one he was about to ask?
6 COMMISSIONER ZACK: The previous one, where
7 Commissioner Lowndes said he wasn't sure of the cost and
8 so forth. The fact of the matter is that this is no new
9 court system. I think I would be opposed to any new court
10 system. I have voted against any new court system in
11 prior votes.
12 All this does is allow the circuit judge in which the
13 case is filed to appoint a three-person arbitration panel
14 which will award a judgment, if in fact that's
15 appropriate.
16 And, no, I don't think this is just, should be viewed
17 just as a waiver of sovereign immunity. I look at it as a
18 better process than the claims bill process that has been
19 previously described in this chamber as a disaster. And I
20 would address that particular aspect of it, Commissioner
21 Anthony, and it reminds me very much of the response of
22 Taltran (phonetic) to the question about the courts of
23 justice. And he said, Yes, the courts of justice are
24 opened to all people, just like the Ritz Hotel. And those
25 people that can afford justice as described to us
50
1 previously in this chamber, who can afford the best
2 lobbyists and can afford to make the political
3 contributions necessary and go through the claims bill
4 process that has been admitted to be one that is not fair,
5 that does not give equal justice, that is capricious, that
6 on a year-to-year basis, depending on the winds, that the
7 Legislature can change.
8 But this is to bring reason and fairness to a process
9 that has been stipulated as being unfair to those who have
10 gone through it. So, no, I don't believe that you have
11 properly described it.
12 COMMISSIONER JENNINGS: Commissioner Scott.
13 COMMISSIONER SCOTT: Thank you. I have a question
14 for Commissioner Lowndes.
15 COMMISSIONER JENNINGS: We'll ask Commissioner
16 Lowndes to yield the floor, take the floor and yield for a
17 question.
18 COMMISSIONER SCOTT: Commissioner, I don't know what
19 version is what, but from what you just described and the
20 one version that I have, this would mean that you would be
21 taking away the right to trial by jury in tort claims
22 against the state?
23 COMMISSIONER LOWNDES: No. As I understand how this
24 would work, and Commissioner Zack could correct me, if you
25 were injured by the state you would have two choices. You
51
1 have got to read this in context with the committee
2 proposal, but you have two choices. One choice is to go
3 into court and have a jury trial. And if you did that,
4 you would be subject to the caps which the Legislature has
5 set and which are adjusted by the main part of this
6 amendment. Your other choice would be to say, is to say
7 to the court, I think my claim is better than the amount
8 of the caps or larger than the amount of the caps and I
9 would like to have it determined by a panel of
10 arbitrators.
11 And if you took the second route, you would give up
12 the right to a jury trial, you would subject yourself to a
13 panel of arbitrators who then would determine the amount.
14 And I think that that's about as best as I could explain
15 it.
16 COMMISSIONER SCOTT: Okay. Further question, Madam
17 Chair. What about the city or whoever is being sued, do
18 they have -- they have the right to a trial by jury. You
19 would be depriving them of that right, then?
20 COMMISSIONER LOWNDES: Yes.
21 COMMISSIONER SCOTT: Thank you.
22 (Chairman Douglass resumes the Chair.)
23 CHAIRMAN DOUGLASS: Commissioner Morsani.
24 COMMISSIONER MORSANI: Mr. Chairman, I think that all
25 of you need to take in context, and Commissioner Lowndes
52
1 alluded to it. You have got to look at the entire thing,
2 and I think we are missing that. And that is the -- this
3 is the amendment to the amendment. Which the amendment to
4 the amendment -- no, the amendment has not been delineated
5 and articulated as yet, so you can't take this in
6 isolation.
7 This portion, as Commissioner Zack said, and
8 Commissioner Lowndes, is only addressing or attempting to
9 address the claims bill process and replace the claims
10 bill process with this process.
11 This is not -- so, this amendment would go to the
12 amendment which, in effect, goes back to the current
13 sovereign immunity as far as caps. So, you can't take
14 this in isolation as the entire sovereign immunity
15 proposal. So, I want to make that perfectly clear, you
16 have got to look at this as strictly, we are attempting to
17 address the claims bill portion of the sovereign immunity
18 problem.
19 CHAIRMAN DOUGLASS: Commissioner Brochin.
20 COMMISSIONER BROCHIN: I think this is an
21 extraordinarily fundamental change that we are considering
22 here. And I actually think that we are doing it a little
23 bit backwards because I think we first need to decide what
24 we are going to do with sovereign immunity before we make
25 a decision on how we are going to implement it.
53
1 I think this is, essentially, Commissioner Anthony,
2 is doing just what you think it's doing, and it's waiving
3 sovereign immunity.
4 COMMISSIONER ANTHONY: It is.
5 COMMISSIONER BROCHIN: Now, if that's the decision
6 that's going to be made, then we should think about how to
7 implement it through a court system. But sovereign
8 immunity principles have to be based on the ability of the
9 Legislature to make the determination of the appropriate
10 caps and; therefore, the appropriate waiver of those caps,
11 if indeed the principle of sovereign immunity is going to
12 remain intact.
13 This fundamentally changes it to the extent that we
14 are taking that decision out of the legislative branch and
15 putting it into the judicial branch, which in my mind
16 could have no other effect but to lift the principle of
17 sovereign immunity. Not necessarily a concept that I'm
18 against, but I just believe we ought to get to the
19 ultimate issue first, and that is, what are we going to do
20 with sovereign immunity, before we can figure out, once we
21 get rid of sovereign immunity, how we are going to
22 implement it. Because the collateral issue is, is there a
23 problem with the claims process in the legislative branch.
24 I think the answer is yes. But if sovereign immunity
25 remains intact, then the process ought to remain in the
54
1 legislative branch, it ought to be fixed in the
2 legislative branch. If sovereign immunity is going to be
3 lifted, then I think it is appropriate to consider
4 implementing it through the judicial branch. So, it's
5 hard to make this decision, in my view, out of that
6 particular context.
7 CHAIRMAN DOUGLASS: Commissioner Nabors.
8 COMMISSIONER NABORS: Mr. Lowndes, let me ask you
9 another question, my good friend, Mr. Lowndes. I am
10 saying a little bit about what Commissioner Brochin is
11 saying, and it has addressed an issue which I'll talk
12 about as we deal with sovereign immunity. My concern is,
13 that the current statutory waiver that we have basically
14 waves tort claims or any action which a private individual
15 would have, and that brings all of the issues, that there
16 is no waiver for governmental-playing type activities.
17 So, anything we do constitutionally, one of the things
18 that you will hear me argue about is to make sure we don't
19 do anything to expand and interfere with those basic
20 concepts that what the Legislature has done, whether
21 200,000 or unlimited, it relates to issues in which a
22 private individual having an action recognizing the
23 distinction for government. So, that's somewhat why I am
24 concerned, and I'll be looking at these for that issue.
25 And I hope the other commissioners understand that.
55
1 That's why language in this one which talks about exceeds
2 a limited waiver of sovereign immunity, we need to make
3 sure it doesn't encompass not only private actions above
4 whatever the Legislature does but those other type of
5 activities. We need to be vigilant if we are going to
6 deal with sovereign immunity that we don't go beyond some
7 unintended consequence.
8 COMMISSIONER LOWNDES: That is a long question, but I
9 think the answer to it is this, is that the provision in
10 the Constitution at this point says that the Legislature
11 by general law can determine suits against the state, and
12 that's not changed by this. The Legislature still has the
13 right to determine the suits against the state.
14 This would deal with those suits against the state
15 that the Legislature has said is okay, which is what you
16 are saying, it's those which a private individual would be
17 liable for.
18 CHAIRMAN DOUGLASS: Commissioner Sundberg.
19 COMMISSIONER SUNDBERG: Respectfully, Commissioner
20 Lowndes, and I have the same concerns that Commissioner
21 Nabors has. And I conclude that this is as opposed to --
22 because what you will have if this is passed, in my
23 judgment, is you will have a constitutional waiver of
24 sovereign immunity to the extent expressed in this, and
25 then you will have the ability of the Legislature to waive
56
1 sovereign immunity with respect to other liabilities of
2 the state. And I think Commissioner Nabors' concern is a
3 real valid concern.
4 Currently, I submit to you that if in fact someone is
5 injured and brings a suit against a municipality or a
6 county asserting that they were injured because of the
7 placement of a traffic control device at a particular
8 intersection or the failure to locate one at that
9 intersection, which is in fact under the current state of
10 the law perceived to be a pure governmental planning
11 function for which there is no waiver of sovereign
12 immunity, that if this in the form in which it is
13 presented passes, we'll now make available a cause of
14 action, certainly to be arbitrated, but nonetheless, it'll
15 create a cause of action where none exists.
16 The person who wrote the opinion respecting the
17 waiver of sovereign immunity said it can't be a tort to
18 govern, and this can make it a tort to govern by making
19 those governmental decisions.
20 So, I suggest to you, that unless you want to
21 significantly change the state of the law with respect to
22 liability, not just the amount -- the recovery of damages
23 in excess of a cap, that you are going to have to limit
24 this back by either using the terms "operational
25 functions" or something that makes it clear that you are
57
1 not waiving -- you are not waiving sovereign immunity for
2 those acts that, from time in memorial, not because the
3 sovereign can do no wrong, sovereigns do wrong all of the
4 time, but because it is a function of separation of
5 powers, that a jury should not be put in a position of
6 second guessing the city council when the city council
7 determines, for whatever reasons, fiscal or otherwise,
8 that a traffic control device is not to be placed at a
9 particular intersection.
10 And I suggest to you that this goes much farther --
11 you know, talk about unintended consequences, I think this
12 clearly could be -- because I don't think that you are
13 trying to do that, but I think that's what the result
14 would be.
15 CHAIRMAN DOUGLASS: Commissioner Anthony.
16 Commissioner Morsani first.
17 COMMISSIONER MORSANI: I would like for Commissioner
18 Zack or Commissioner Lowndes to address it. We talked
19 about that, Commissioner Sundberg; we discussed that,
20 Commissioner Sundberg. And I was told this would not
21 affect the planning and so on and so forth. I understand
22 the concerns, but Commissioner Zack, would you please
23 address that? Because we thought that was covered in my
24 opinion, but --
25 COMMISSIONER ZACK: We agree with Commissioner
58
1 Sundberg. I have addressed it. If you want anything
2 further, I mean, it cannot be a tort to govern; the
3 planning functions were not intended to be dealt with in
4 this manner. There are a number of issues here that need
5 to be fine-tuned, most certainly.
6 CHAIRMAN DOUGLASS: When we didn't have sovereign
7 immunity at all for municipalities, governmental functions
8 were accepted?
9 COMMISSIONER ZACK: Always.
10 CHAIRMAN DOUGLASS: So, from that standpoint,
11 regardless of what you say, the common law was that
12 governmental functions are accepted?
13 COMMISSIONER SUNDBERG: As to municipalities, that
14 was true. That was not true, with respect, I think,
15 Mr. Chairman, with respect to states and counties.
16 Municipalities were always treated differently. They had
17 a proprietary government.
18 CHAIRMAN DOUGLASS: There was no liability for
19 counties in a state.
20 COMMISSIONER SUNDBERG: Absolutely.
21 CHAIRMAN DOUGLASS: In that two-year period, and in
22 that two-year period, they applied the same rule in these
23 courts as they did to municipalities.
24 COMMISSIONER SUNDBERG: I'm sympathetic to this, but
25 I'm not sympathetic to rolling the whole street up, all
59
1 right.
2 COMMISSIONER ZACK: Neither are we, that's not the
3 intent. I'm very impressed with the Chairman's
4 recollection of what happened about 15 years ago,
5 actually, on a year-to-year basis.
6 CHAIRMAN DOUGLASS: I'm better at that than I am what
7 happened last week.
8 COMMISSIONER ZACK: For a long time this was a matter
9 that changed annually, and the interpretation of the
10 courts as to what became a governmental function or
11 proprietary function or what wasn't often depending on how
12 difficult a case they had before them. And this was
13 intended to bring some uniformity to it, the changes were.
14 But we are in agreement, Commissioner Lowndes, I
15 believe would agree, and this was discussed during the
16 course of our deliberation, that this was not intended to
17 change that part of the law, Mr. Chairman.
18 CHAIRMAN DOUGLASS: You have really been wanting to
19 get up, and I want to recognize you. Commissioner
20 Anthony.
21 COMMISSIONER ANTHONY: Thank you. As a matter of
22 fact, it may not be intended, but as a matter of fact, it
23 is, and it does change and it takes away the sovereign
24 immunity of local governments and government entities in
25 toto by giving it to an arbitration panel who in fact will
60
1 place an unfunded mandate, and none of us really want an
2 unfunded mandate, unlimited, runaway arbitration panel.
3 We talk about a jury system, this would be truly, truly an
4 unlimited.
5 And in that regards, because Commissioner Zack has
6 proposed this amendment to the Constitution, I want to
7 give him on behalf of the voters, the citizens of this
8 state, a check, a blank check that is made out to Zack in
9 the amount of unlimited funds that he's cost to the
10 citizens of this Florida, citizens of this state by
11 proposing this.
12 And what it's for, it's for the bankruptcy, the
13 bankruptcy of local government. And in fact, that's what
14 indeed would happen if we continue to dwindle away with
15 sovereign immunity or attempt to get rid of sovereign
16 immunity. I run a very poor community and if this
17 proposal that Freidin is proposing passes, I want to give
18 her a key to the city of South Bay. You deserve a key to
19 my city hall, because in fact, I may as well give the keys
20 to the city -- of our city, of our city governments, all
21 400 local governments, to the proposers of this proposal.
22 In fact, right now, if anything occurs in terms of --
23 and I want to go on record saying that, if anything
24 happens by action of a local government personnel that
25 destroys the life of an individual and their ability to
61
1 make a living, I'm very sympathetic to that. And no
2 assumptions should be made that those officials who are
3 employed by local government intend to cause harm to
4 anyone. I don't believe that. I will not believe that.
5 If they are carrying out their duties as employees,
6 driving a bus and other performed duties that they have, I
7 don't think that they intend to hurt anyone. I will say
8 to you that we provide services that no one else wants to
9 provide. We have risky business that we provide the
10 services for all of us that are in this room. And if we
11 are going to continue to provide those services, we can't
12 allow those people who want to have a blank check to have
13 those blank checks.
14 At every commission meeting, I balance issues related
15 to providing local government services on the record, not
16 in my private, corporate world, on the record, in the
17 Sunshine. Talk about whether or not I should pave a
18 street, or my other priority is whether or not I should
19 hire more police officers.
20 We have been brought into court based upon those
21 matters of discussion, saying that we have not carried out
22 our responsibilities in a deliberate fashion to not harm
23 people by lawyers, by people who are really trying to find
24 a way to recover. If I cannot make those decisions
25 without the cause or the concern of being sued by people,
62
1 then I'm not going to be able to make very good decisions
2 as a local government official.
3 It could be said that people who come before the
4 Legislature are not providing an opportunity -- provide an
5 opportunity to get judgments. We are averaging right now
6 almost a dozen claim bills per year. In the 1980s we were
7 averaging 26, now we are averaging 12. And if you look at
8 the statistics, except last year where the leadership
9 decided that they did not want to take up any claims bills
10 because they wanted to look at the process, they wanted to
11 find ways to improve the process, they wanted to find ways
12 to streamline the process. That is being worked on.
13 Why are we going to put something in the Constitution
14 that the Legislature can deal with? And Chairman Douglass
15 talked yesterday about those strong lobbyists from local
16 government associations. I say to you that I'm proud to
17 be a past president of the Florida League of Cities. We
18 represent the people. We don't give campaign
19 contributions. So, in fact, if nothing has been changed
20 because the people and the representatives of associations
21 such as the counties and the cities have come before the
22 Legislature and have not been -- have been successful in
23 stopping these caps from being increased, that tells me
24 something. That tells me that big money lobbyists have
25 not been able to impact the legislative process, not been
63
1 able to change the process, and that the proud citizens of
2 Florida, and I'm so proud that the citizen associations of
3 Florida have had the strength to hang together and to stop
4 these changes by, and proposed by many members of the
5 legislative or lobbying corps of the private sector.
6 The proposal is unnecessary, it is truly unnecessary
7 to take away something that is legislatively directed and
8 consistently have been used.
9 It also to me can cause a financial impact on local
10 governments that we can't even calculate. It is a blank
11 check, folks. You may as well look at communities all
12 around this state and say to them, You can close your
13 doors right now.
14 And the question is can we buy enough insurance?
15 Yeah. If we do buy enough insurance to cover all of the
16 claims that may occur on local government, something else
17 is going to suffer; police services, housing for the
18 elderly, housing for the poor, fire protection. It may
19 cost us a million dollars or more to get coverage if
20 sovereign immunity is taken away.
21 All these proposals before you -- and I wanted to get
22 to this and I know it may go off a little bit of the
23 amendment that is proposed, just a little -- but I wanted
24 to make sure that you understood that there are people who
25 you are impacting. There are budgets that are being
64
1 impacted. There are lives that are being impacted. And I
2 know there are also lives that are not being brought back
3 in full because of this process.
4 But I say to you, if you want to hurt local
5 government in your communities that you live in, this is
6 the proposal to do so. To take away sovereign immunity on
7 state, counties and political subdivisions, cities they
8 are in, would clearly destroy the substance and the
9 structure of our local governments.
10 CHAIRMAN DOUGLASS: Commissioner Zack, he had his
11 hand up while he was speaking.
12 (Off-the-record comment.)
13 CHAIRMAN DOUGLASS: Absolutely, you have a personal
14 privilege.
15 COMMISSIONER SMITH: I'd like to join as a proponent
16 so I can share in the blank check with Mr. Zack and not
17 have him get all of it himself.
18 CHAIRMAN DOUGLASS: Commissioner Zack.
19 COMMISSIONER ZACK: I'm going to accept on behalf of
20 the people of the state of Florida and the committee, and
21 it was the committee proposal. But I don't think this is
22 a time for show-and-tell. And I don't think it's very
23 funny, frankly.
24 And I also don't think this is a place to make jury
25 arguments and to present props because if it was, I would
65
1 have presented a videotape of a young man who is a
2 quadriplegic who had a city who had rebar on its beach.
3 Rebar is metal sticking up out of the sand.
4 And that city knew about it. As a matter of fact,
5 they got letters from people who walked along the beach
6 every single day. And they wrote letters to the
7 commission. And the commission was told that if you don't
8 get rid of this rebar somebody is going to get hurt,
9 somebody may die, somebody may become paralyzed.
10 And this young man, not knowing the rebar was there
11 because it was high tide, ran into the water, struck his
12 head on that rebar, and became a quadriplegic. He was
13 about 18-years-old. And I would have a videotape here,
14 Mr. Anthony, to show you and I would ask you to present
15 him with that check because he needs that check.
16 He needs that check to live. He needs that check to
17 wake up in the morning and have someone dress him and feed
18 him and move his muscles and change his clothes and get
19 rid of the bedsores and teach him how to speak again. He
20 needs that check real bad. And the fact of the matter is
21 that when the city was told about it, and after the
22 accident, what does an adjuster do? I don't have to pay
23 this, I don't care what you say. Gee, I like those
24 letters, they are pretty good. Actually, they are kind of
25 funny when I read them in retrospect because it's
66
1 $100,000.
2 Somebody else take care of him. Those hospitals you
3 talked about that we pay for have to take care of him. We
4 take care of that person one way or another, but you don't
5 want to.
6 Now the fact of the matter is that that young man
7 received in excess of $100,000 because he came up here and
8 there was a claims bill passed eventually. The only
9 reason it was passed is because that city had a social
10 conscience and understood that it was wrong morally,
11 ethically, and legally to limit his recovery to $100,000.
12 By the way, I wasn't the plaintiff's lawyer in that
13 case. I didn't get any fee as the plaintiff's lawyer. I
14 happened to represent the city in that case. The fact of
15 the matter is that we come here today to right a wrong on
16 behalf of the citizens in the state of Florida.
17 And we know that there are vested interest groups.
18 And I received the same letters, Mr. Anthony, that you
19 have, that you helped draft, from people who I represent,
20 frankly, telling me this is wrong because they don't want
21 to pay any more money. Everything we do in this chamber
22 affects somebody; somebody is happy and somebody is sad.
23 And we keep talking about that it shouldn't be in the
24 Constitution, let the Legislature do it. Let me tell you,
25 the citizens of the state of Florida have this
67
1 Constitutional Revision Commission. It's the citizens'
2 commission.
3 And I believe it was put in place so that once every
4 20 years, not very often, the wrongs of this state and the
5 inability of the average citizen to convince the
6 Legislature that what they're doing is wrong and they have
7 the right to vote on what we put on that ballot and then
8 they'll decide for themselves whether it's a problem they
9 want fixed or not. But that's our obligation here.
10 And no one wants an unlimited check. The only thing
11 we ask here is for what the preacher this morning asked of
12 all of us. And I saw you shaking your head when he said
13 "protect the most vulnerable."
14 And when you go to the court in England of Old
15 Bailey, the oldest courthouse the common law has, and you
16 look at it, on top of it, it says "protect the widow,
17 defend the orphan." That comes from the Bible. The fact
18 is those people are the ones who need protecting. And
19 those people that will benefit from what we do here today
20 are those people that need protecting.
21 And that young man that wakes up everyday as a
22 paraplegic deserves justice. He doesn't deserve justice
23 because it's a free check. He deserves it because there
24 was a wrong committed by someone and that wrong was
25 determined to be a wrong by a jury or by a government
68
1 entity and they are entitled to be compensated for that
2 wrong. And we need to make sure there is a process in
3 place. And we heard what the President of the Senate
4 said.
5 And, Mr. Anthony, had you been present at any of the
6 meetings of this committee where you had presented a
7 proposal, had you been present at any of those meetings,
8 you would have heard the abuses that occur. And you would
9 have heard the claims supervisor for the Senate come and
10 testify about the abuses and what you have to do to go
11 through the process. And why there was no claims bill
12 passed at all because when the President of the Senate
13 looked at what had gone on before found it to be patently
14 unfair and unjust.
15 And after we heard the different people who came and
16 testified before us for hours, we determined that this was
17 a matter that needed to be corrected. And we hope that
18 you, each and every one of you when you vote, protect
19 those who are most vulnerable.
20 CHAIRMAN DOUGLASS: All right. Commissioner Connor.
21 COMMISSIONER CONNOR: Thank you, Mr. Chairman.
22 Commissioner Anthony, I've been a trial lawyer for 25
23 years. I'm a member of the Academy of Florida Trial
24 Lawyers. And it may surprise you to know that I voted
25 against every single proposal that came before our
69
1 committee. I voted against it because I wasn't satisfied
2 that on the strength of what I had seen that we'd come up
3 with the right solution, and that we had done it in the
4 right way. And you know from my comments yesterday that
5 my concern about the process is as grave as my concern
6 about the product.
7 But I do want to help you put this in context, ladies
8 and gentlemen. In 1981 the Florida Legislature, pursuant
9 to the constitutional waiver of limited immunity
10 established statutory caps of liability for governmental
11 entities at $100,000 per person and $200,000 per incident.
12 In the ensuing 17 years, Commissioner Anthony, the
13 real purchasing power of that $100,000 has eroded by about
14 45 percent, according to the Consumer Price Index. In
15 other words, a citizen who would recover $100,000 in 1981
16 because of an injury sustained wrongfully at the hands of
17 government, today would recover only $55,000. Manifestly
18 unfair I think all of you would agree.
19 Imagine if your wages had been frozen at 1981 levels
20 or the employees of your city's wages had been frozen at
21 1981 levels. You would regard that as an administrator as
22 manifestly unfair.
23 When you look at the Medical Price Index you'll see
24 the erosion has been even greater, dramatically greater
25 than the Consumer Price Index. Commissioner Anthony, what
70
1 that means is that with respect to people who are
2 catastrophically injured and who require continuing
3 medical care in the future, that their ability to secure
4 that care is eroded all the more. Manifestly unjust in my
5 estimation.
6 The per incident limitation means that if you have 40
7 children on a school bus and they're in a collision with a
8 train or a tractor-trailer or it goes down an embankment
9 and rolls and there are multiple injuries and you have 40
10 children who are seriously injured, guess what, in the
11 aggregate those 40 can recover only $200,000. Not
12 $200,000 per child, but $200,000 for the whole bus load of
13 children. Again, I would submit to you, that's manifestly
14 unfair.
15 I think all of us would agree that government, no
16 less so than individuals, should be held accountable for
17 its wrongdoing. Why? Because we know that accountability
18 and responsibility run hand in hand. If you don't hold a
19 person accountable for the consequences of their
20 wrongdoing, they are far less likely to be responsible in
21 their behavior in the future. And I think that's
22 particularly important when we talk about governmental
23 entities. We're not -- we don't want to protect
24 government as much as we want to protect the people.
25 But what I would submit to you very simply is this:
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1 That there are tensions to be balanced. There are
2 tensions to be balanced. And we have to worry about
3 whether or not we bankrupt the City of Palm Bay or Port
4 Saint Joe or Apalachicola as a consequence of a terrible
5 act which was unintended and we have to balance how we
6 deal with the necessity of keeping order and providing
7 essential government services, and at the same time
8 balance that over against the needs of that person who has
9 been wrongfully injured.
10 Now late in this process we began to be exposed to a
11 concept that nobody had thought of before that seemed to
12 resonate with a lot of people in our committee and seemed
13 to, in my estimation, begin to provide the basis for an
14 emerging consensus that had not yet developed because this
15 matter was taken up late in the game and we didn't have it
16 on the table that I think may satisfy the philosophical
17 objections that people like I have about operating outside
18 our purview, and at the same time address a very serious
19 injustice that occurs every day.
20 And we have the President of the Senate, one of the
21 branches of our Legislature who says, Look, I've got to be
22 frank with you, this stinks. The way it works now is not
23 working right. And we need to do something about it.
24 So, Mr. Chairman, with all deference to my dear
25 friend Commissioner Anthony for whom I have the greatest
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