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1 STATE OF FLORIDA
CONSTITUTION REVISION COMMISSION
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COMMISSION MEETING
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DATE: February 24, 1998
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TIME: Commenced at 9:00 a.m.
11 Concluded at 5:00 p.m.
12 PLACE: The Senate Chamber
The Capitol
13 Tallahassee, Florida
14 REPORTED BY: KRISTEN L. BENTLEY
MONA L. WHIDDON
15 JULIE L. DOHERTY, RPR
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 (EXCUSED)
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
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 (ABSENT)
DICK LANGLEY
13 JOHN F. LOWNDES
STANLEY MARSHALL (EXCUSED UNTIL 1:30)
14 JACINTA MATHIS
JON LESTER MILLS
15 FRANK MORSANI
ROBERT LOWRY NABORS
16 CARLOS PLANAS
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
STEPHEN NEAL ZACK
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IRA H. LEESFIELD (ABSENT)
22 LYRA BLIZZARD LOGAN
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1 PROCEEDINGS
2 (Roll taken and recorded electronically.)
3 SECRETARY BLANTON: All unauthorized visitors,
4 please leave the chamber. All commissioners indicate
5 your presence, all commissioners indicate your
6 presence. Quorum call. Quorum call. All
7 commissioners indicate your presence.
8 (Quorum taken and recorded electronically.)
9 SECRETARY BLANTON: Quorum present, Mr. Chairman.
10 CHAIRMAN DOUGLASS: If everyone will take their
11 seats, we'll come to order. Will the commissioners
12 and guests please rise for the opening prayer given
13 this morning, and let me, as we approach this prayer,
14 ask each of you to join all of us in prayer for those
15 who have lost their homes and their families, and
16 their injuries in the great disaster that occurred in
17 Central Florida. It's something that we all feel
18 collectively very, very bereaved about. Reverend.
19 REVEREND MCWRIGHT: Let us pray.
20 CHAIRMAN DOUGLASS: Excuse me, this is Reverend
21 Frank McWright from St. John's Episcopal Church.
22 REVEREND MCWRIGHT: Let us pray. Lord, we do
23 come to you this morning with heavy hearts for lives
24 that are lost. We pray for their souls, we pray for
25 their families, and for all of those who are close to
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1 them. Lord, I pray particularly for this group
2 gathered this morning, that we can set aside our
3 agendas, our self-centeredness and be focused on those
4 in need as we go about our work. Help us have mercy,
5 help us to be vehicles of your grace and your love
6 throughout the day and in the coming year. In
7 Christ's name we pray. Amen.
8 Good luck.
9 CHAIRMAN DOUGLASS: Please remain standing for
10 the pledge of allegiance led this morning by students
11 from Hosford Elementary and Junior High School in
12 Liberty County. They are Jennifer Smith, Laura
13 Miller, Karrie Flowers, Tommy Robbins, Brent Justice
14 and Chris O'Neal. Michelle Gawin is their sponsor.
15 (Pledge of Allegiance.)
16 CHAIRMAN DOUGLASS: These young people will be
17 our pages for today and will be with us, and we are
18 delighted to have you over here from Hosford.
19 I am reminded in a note here to remind everybody
20 that this is Fat Tuesday, for those who are
21 interested, Mardi Gras is ending tonight. This is
22 your last shot, Commissioner Morsani. All right,
23 Commissioner Barkdull, you are recognized. The
24 Chairman of Rules.
25 COMMISSIONER BARKDULL: Mr. Chairman, Members of
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1 the Commission, your daily order of business on the
2 calendar is here. The program is to continue with the
3 matters on reconsideration we were on yesterday and
4 the items that were temporarily passed. Hopefully we
5 can clean off all of these matters until we reach the
6 committee report on Style and Drafting.
7 At that time we'll probably take a short recess
8 to consider the recommendations of the report before
9 we go into the items in the report. The main thing
10 will be that the committee, as I understand it, will
11 recommend one of two different alternatives, which may
12 require a change in the rules. And if they do, we are
13 going to have a short Rules Committee in the recessed
14 period of time after we complete the special order of
15 the items that are on reconsideration and those that
16 haven't been heard yet. So, I suggest that we go to
17 the special order as outlined in the calendar on the
18 desk.
19 CHAIRMAN DOUGLASS: Commissioner Barkdull, due to
20 the non-attendance of a lot of members that are not
21 here, would it be possible to have that meeting now?
22 COMMISSIONER BARKDULL: Yes, sir, but I'm short
23 two members of the --
24 CHAIRMAN DOUGLASS: Well, one of them just walked
25 in the door.
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1 COMMISSIONER BARKDULL: And you thought you were
2 going to sneak in. I would like to have a full
3 complement of the Rules Committee to take these items
4 up, sir. We could do that, but Commissioner Scott has
5 had no notice of the fact that we were going to do
6 this.
7 CHAIRMAN DOUGLASS: Commissioner Langley.
8 COMMISSIONER LANGLEY: Our executive director
9 confirmed that Commissioner Scott is here, he's just
10 not come in yet, so we could send for him.
11 CHAIRMAN DOUGLASS: I think it would be -- we
12 only have 22 people here. And I don't feel very
13 comfortable going forward here unless we can get
14 people in here.
15 COMMISSIONER BARKDULL: Well, I'll be happy to go
16 over the special Rules Committee meeting, but I think
17 we have got to alert Senator -- Commissioner Scott.
18 CHAIRMAN DOUGLASS: Well, that's being done.
19 COMMISSIONER BARKDULL: Okay.
20 CHAIRMAN DOUGLASS: I think if --
21 COMMISSIONER BARKDULL: Well, then I would
22 suggest, if you want to follow that procedure, that we
23 hear from Commissioner Mills, the chairman of Style
24 and Drafting and the staff can be prepared to pass out
25 the two alternatives.
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1 CHAIRMAN DOUGLASS: Okay. Then I'll recognize
2 Commissioner Mills to explain the proposal of Style
3 and Drafting for the rest of the procedure of our
4 work. Commissioner Mills, you are recognized.
5 COMMISSIONER MILLS: Mr. Chairman, yesterday
6 several of the commissioners expressed concern about a
7 process of consideration that would have us
8 reconsidering all votes this week next week. If the
9 staff is going to pass out these two options, let me
10 try to explain those two options because I think, at
11 this point, what we need to do is make a decision and
12 stick with it. We need to decide how we are going to
13 consider this and have a firm, firm view as to how we
14 are going to do this the rest of the week.
15 Now, as the option as presented yesterday was all
16 58 proposals would be considered individually in these
17 topical groupings, those that got a majority vote or
18 those that got 22 would move forward. Those that did
19 not receive a majority would not move forward and
20 would therefore be ultimately deceased.
21 For your information, of the 58 proposals, 38 got
22 more than 22 votes, 20 got fewer than 22 votes. The
23 process then would go to the date of March 17th.
24 Under option one, all proposals that had passed this
25 week would be available for a reconsideration, that is
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1 both the majority and those that got more than 22.
2 Of course the body would have the option of not
3 reconsidering those that got more than 22. Those that
4 got fewer than 22, if not reconsidered, would be dead
5 because they would never have gotten 22 votes. In
6 other words, if something got a bare majority and
7 over the period of public hearings the commission
8 wasn't persuaded that it even should be reconsidered,
9 then it would be dead.
10 Option two, which Commissioner Connor and I
11 think -- Commissioner Connor and I think Hawkes and
12 others discussed yesterday, would say that during this
13 week, again, those that didn't receive a majority
14 would die. Those that received a majority or 22 votes
15 would proceed forward, and there would be no rule
16 concerning reconsideration, which means when you
17 return on the 17th you would vote on all of those
18 remaining proposals again.
19 And in terms of actual effect, I personally don't
20 see too much difference. In terms of time I see some
21 difference. I think there are really two issues.
22 Commissioner Connor and others are concerned that
23 something that got 22 votes and was only available for
24 reconsideration would have some priority; would,
25 therefore, be considered to have some advantage.
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1 The other issue is the fact that if we come back,
2 whatever the number is under option two, you have to
3 vote on all of them. Under option one on
4 reconsideration, you only have to vote on those that
5 you choose to reconsider. So, I'll be glad to answer
6 questions and proceed in either way the body wishes.
7 CHAIRMAN DOUGLASS: All right. Commissioner
8 Langley. The Rules Committee is going to have a
9 meeting after these discussions to consider these
10 proposals and come back with a recommendation, and you
11 are on the Rules Committee?
12 COMMISSIONER LANGLEY: Yes.
13 CHAIRMAN DOUGLASS: Commissioner Langley, you are
14 recognized.
15 COMMISSIONER LANGLEY: Well, just for the body to
16 understand, it's not quite that simple. A proposal
17 that has gone through here with 22 votes now should
18 have no particular sanctity. If we go to public
19 hearing and we come back and you have to prevail on a
20 motion to reconsider that, then basically say, like
21 today, there are only 27 of us here at the time, then
22 14 people could pass that proposal because they could
23 defeat a motion to reconsider, and in effect, a
24 proposal could go out of here with 22 votes with many
25 that might have been, Well, let's let it go on and
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1 we'll look at it later, courtesy votes. But when it
2 comes back, 14 adamant supporters of that proposal
3 could pass the bill, proposal.
4 And that's not why we are here. I think anything
5 that we put on the ballot ought to be here for a final
6 vote and have 22 positive votes. I thought that was
7 the intent of all of us when we got here.
8 So, if in fact -- anyway, the Rules Committee is
9 meeting and that's why I personally prefer proposition
10 number two.
11 CHAIRMAN DOUGLASS: All right. Commissioner
12 Lowndes.
13 COMMISSIONER LOWNDES: Yes, sir. My concern is,
14 is the time that we have got to do what we have got to
15 do. We have got 58 proposals now. And I don't think
16 that anybody here seriously wants to put 58 proposals
17 on the ballot. We really have four days left this
18 week and two days in March to do all of this.
19 In my view, it's time for us to start deciding
20 what we want to put on the ballot and what we don't
21 want to put on the ballot.
22 It's time for us to pass beyond wanting to, as
23 Commissioner Langley said, giving courtesy votes and
24 to take a look at everything that we have and decide
25 which one of those proposals we really feel should go
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1 forward. I really think it's more fair to the public,
2 if rather than kicking everything down the road to
3 March 17th, we really go to the public with things we
4 really think we want to put on the ballot, as opposed
5 to things that we are going to decide on March 17th
6 whether we are going to put on the ballot.
7 If 58 proposals show up on March 17th, then we
8 are going to have to deal with 58 proposals; we are
9 going to have to vote on them about every six or seven
10 minutes in our seven-hour meeting. And I don't think
11 there's any way that we are going to get finished.
12 And my concern is, having been up here for these eight
13 months, we really need to try to figure out how to get
14 out of here and how to finish our business. And I
15 think we are much more apt to, under Proposal No. 1,
16 the initial proposal of the Style and Drafting, to
17 finish our business.
18 Under that proposal, we would have to, this week
19 when we vote on these things, be careful what we are
20 voting about, making sure when we vote for it that we
21 want it to go on the ballot, not just that we can
22 decide later. And if not enough people show up here
23 on March the 17th, as Commissioner Langley suggests, I
24 think that's kind of a tragedy because I think that is
25 a critical day and I think everybody should show up.
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1 But if they don't, I don't think we can let a few
2 people not showing be the reason we can't finish our
3 business. So, I would urge you to vote for Proposal
4 No. 1.
5 CHAIRMAN DOUGLASS: All right. Without further
6 discussion, we'll take a five-minute recess for the
7 Rules Committee to meet briefly to make their
8 recommendation. We'll stand in recess. You can meet
9 back in the bubble, back where Commissioner
10 Butterworth is on the phone. But he'll probably move
11 to another location, if necessary, or stay at the
12 meeting, if you would like.
13 All right. We'll stand in recess for five
14 minutes. We will come back at 9:25. Commissioner
15 Thompson.
16 (Off-the-record comment by Commissioner
17 Thompson.)
18 COMMISSIONER THOMPSON: -- have public access a
19 little more than being in the bubble, couldn't we just
20 go to a room right around here somewhere, maybe drop
21 down a floor or something, Madam?
22 CHAIRMAN DOUGLASS: Do whatever you like. I just
23 said that because it was convenient.
24 COMMISSIONER THOMPSON: The president's
25 conference room and let the world out there know
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1 that's where we are going to be. She's got to clean
2 up her room first, but all right, we'll be there
3 shortly.
4 CHAIRMAN DOUGLASS: Okay. I guess we have
5 already killed two minutes, so we'll come back at 9:27
6 now.
7 (Brief recess.)
8 CHAIRMAN DOUGLASS: Now, our 10-minute or
9 5-minute break, whatever it is, has now turned into 38
10 minutes. I was wondering if somebody could go back
11 and tell the committee that we are ready. All in
12 favor say aye.
13 (Verbal vote taken.)
14 CHAIRMAN DOUGLASS: It carries unanimously. If
15 anybody wants to attend the meeting of the commission,
16 you can go to the committee meeting. Apparently, the
17 room is so full you can't get in, so.
18 (Brief recess.)
19 CHAIRMAN DOUGLASS: Give us a quorum call,
20 please.
21 READING CLERK: Quorum call. Quorum call. All
22 members to the chambers.
23 CHAIRMAN DOUGLASS: Come to order, please. All
24 right, would everybody take their seats, please?
25 Commissioner Scott. Would you be seated, please. I
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1 have an announcement that's of some importance. Thank
2 you.
3 Commissioners, Commissioner Corr is back with us
4 today and we are certainly glad you are back. We all
5 were aware, Commissioner Corr, of the unfortunate
6 death of your father, Thomas Paul Corr, and we all
7 want you to know that we have thought about you and
8 you were in our prayers and you still are, because
9 having lost a father when I was about your age, it's
10 something that you never, ever get over. And we
11 wanted to take this opportunity for all of us to let
12 you know that we sincerely are with you in this time
13 of grief, and your family.
14 All right. We'll now proceed with the Rules
15 Committee. Commissioner Barkdull.
16 COMMISSIONER BARKDULL: The Rules Committee will
17 have a recommendation for procedure, which generally
18 follows the Proposal No. 1, except rather than having
19 the matter on reconsideration on the 17th when we come
20 back, upon a show of five hands, the matter will be
21 revoted and there will be no motion to reconsider.
22 That proposal -- report of the Rules Committee is
23 being put in written form at the present time and will
24 be on your desk as soon as it is completed and I would
25 defer any action on the -- to approve that until such
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1 time it's in written form in front of the commission.
2 Now, I would suggest that we revert to the
3 special order.
4 CHAIRMAN DOUGLASS: All right. We have first on
5 the special order matters on reconsideration, Proposal
6 No. 144 by Commissioner Barnett. Would you read it,
7 please?
8 READING CLERK: Proposal 144, a proposal to
9 revise Article I, Section 17, Florida Constitution;
10 relating to punishment for crime.
11 CHAIRMAN DOUGLASS: Commissioner Barnett, would
12 you like to briefly explain that again?
13 COMMISSIONER BARNETT: Mr. Chairman, this is a
14 proposal that -- let me just read it to you so I can
15 refresh your memory on it, that adds to the
16 Constitution in Article I, Section 17, dealing with
17 punishment, the following language: No punishment may
18 be imposed or inflicted in an arbitrary, capricious or
19 discriminatory manner.
20 The purpose of this language was to embed in the
21 Constitution the current standards that are being
22 applied, supposedly being applied in our court system
23 in the punishment phase of criminal activities. And
24 it's my understanding, it is my intent, not
25 necessarily to change the law, but to raise this
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1 aspirational standard to the level of a constitutional
2 standard.
3 I'm unsure who moved to reconsider it. I would
4 certainly be glad to go through all of the debate that
5 we had before, but hopefully it's not necessary.
6 CHAIRMAN DOUGLASS: We had a motion to
7 reconsider, you are right.
8 COMMISSIONER BARNETT: I understand, also, that
9 the Chairman has an amendment to the proposal which
10 adds language in the proposal to say, No punishment
11 may be, and he wants to adds the words "intentionally"
12 or "purposely" imposed or afflicted in an arbitrary,
13 discriminatory manner. And those are acceptable with
14 the sponsor.
15 CHAIRMAN DOUGLASS: All right. I thought they
16 would be, because I think this alleviates some of the
17 perceived problems with your proposal, and that was
18 the reason that I was willing to offer this amendment
19 to do that.
20 Commissioner Barkdull, we are on the motion to
21 reconsider. And if you vote to reconsider, then the
22 amendment, with the permission of the sponsor, would
23 be offered. Ready to vote on the motion to
24 reconsider? All of those in favor of the motion, say
25 aye; opposed?
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1 (Verbal vote taken.)
2 CHAIRMAN DOUGLASS: Motion carries. If you will
3 offer the amendment. Commissioner Barnett, will you
4 offer that so I don't have to leave the chair?
5 COMMISSIONER BARNETT: On request of the Chair,
6 the amendment on line one.
7 CHAIRMAN DOUGLASS: It's being distributed.
8 COMMISSIONER BARNETT: On Line 15, the
9 language -- and I will read it, it's very short so
10 I'll read the language as amended. No punishment may
11 be imposed, excuse me, no punishment, how is it, may
12 be intentionally or purposely imposed or afflicted in
13 an arbitrary, capricious or discriminatory manner.
14 CHAIRMAN DOUGLASS: All right. Technically, I
15 need to ask that the amendment be read.
16 READING CLERK: By Commissioner Barnett, on
17 Page 1, Line 15, after "no punishment may be," insert
18 "intentionally or purposely imposed or afflicted in an
19 arbitrary, capricious or discriminatory manner."
20 CHAIRMAN DOUGLASS: All right. Any discussion on
21 the amendment? If not, all in favor of the amendment,
22 say aye; opposed?
23 (Verbal vote taken.)
24 CHAIRMAN DOUGLASS: It is amended. We are now on
25 the proposal as amended with the added language.
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1 Would you care to make any further comments,
2 Commissioner Barnett?
3 (Inaudible response.)
4 CHAIRMAN DOUGLASS: All right. You will have the
5 right to close. On debate today, I would like your
6 attention, we are going to try to ask everybody to
7 speak once on these proposals instead of four and five
8 times like we did yesterday, and we are also going to
9 try to ask everybody to stay in their seats as much as
10 they can to avoid interfering with the debate.
11 And if we could do that, I think we might speed
12 up our process quite a bit. Commissioner Langley, you
13 wanted to be recognized on this proposal.
14 COMMISSIONER LANGLEY: To oppose the proposal,
15 Mr. Chairman. I don't know that the language helps it
16 or hurts it, or the amendatory language. Basically,
17 you know, we are tampering again with the process. I
18 don't know what this language means. Does it mean
19 discrimination as far as age, race, sex, national
20 origin, sexual preference, poverty level; what does it
21 mean? You know, I don't believe the sponsor can tell
22 us what it means, and I don't believe, I just talked
23 to my good friend Judge Wetherington here who says he
24 thinks this is already the law.
25 But when you put something like this in the
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1 Constitution, it turns the spotlight on this, and the
2 first liberal judge that comes along is going to say,
3 Well, you know, it appears from statistics that --
4 yes, that's you, Judge Sundberg -- it appears from
5 statistics there's more poor people executed in the
6 state of Florida than there are rich people.
7 Therefore, the current statute discriminates against
8 the poor; we can't have any more capital sentences.
9 It is just -- maybe it is broke, but the old
10 saying, If it ain't broke, don't fix it. But maybe it
11 is broke, but I don't think this fixes it. And I
12 think it's just tampering with something that's going
13 to create a thousand more appeals as time goes on.
14 CHAIRMAN DOUGLASS: Commissioner Barkdull.
15 COMMISSIONER BARKDULL: Mr. Chairman, Members of
16 the Commission, I rise to oppose it. As Commissioner
17 Barnett pointed out, this is already the law. It is
18 an aspirational statement in the Constitution, and I
19 think to put it in at this time, and with the debate
20 that will go forward if it's in there, if you want to
21 aspire to the fiat programs, it is a good proposal in
22 that regard; otherwise I don't like it.
23 CHAIRMAN DOUGLASS: All right. Any further
24 debate? Commissioner Butterworth.
25 COMMISSIONER BUTTERWORTH: Mr. Chairman, this
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1 obviously is a good idea and it is something which is
2 very difficult to vote against, but I will have to
3 vote against it for the simple reason, as has been
4 stated, this is the law as it stands now in the
5 McCluskey case, United States Supreme Court, and the
6 Forrester case in our Supreme Court. I'm really very,
7 very concerned that this is going to cause constant
8 litigation on sentencing issues and we'll never have
9 closure. I think I can see it causing so many
10 tremendous problems or potential problems within the
11 criminal justice system that I would urge everybody to
12 vote against it. Even though it's difficult to vote
13 against it, but I really believe that we have to vote
14 against it. Thank you.
15 CHAIRMAN DOUGLASS: Any further debate?
16 Commissioner Barnett to close.
17 COMMISSIONER BARNETT: Mr. Chairman, yes, this is
18 the law today, this is supposedly the case law and the
19 statutory law today, but I think those of you who were
20 here when we debated this issue and when I went into a
21 lot of details about it recall that even though this
22 is the law today, it's not working. There are many
23 instances in which punishments are being imposed in an
24 arbitrary, capricious or discriminatory manner, in
25 which race, particularly, is an issue.
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1 Everything from the death penalty in the capital
2 cases, down the line, all of the available statistics
3 show that indeed the law is not working. And the
4 purpose of this, by putting it in the Constitution, is
5 hopefully so that the judges, and so that the
6 prosecutors of this state will say, Yes, that is the
7 law, maybe we need to give a little bit more attention
8 to the issues related to arbitrary, capricious or
9 discriminatory punishments, maybe we ought to take it
10 a little bit more seriously and do a little bit more.
11 Now, the language that Commissioner Douglass
12 offered, the purpose for the intentional language
13 really was designed, I believe, to take care of the
14 concerns about McCluskey and Forrester and not
15 necessarily overturn those cases.
16 I think what he was trying to do was address some
17 of the problems people have in this. But I find it
18 incongruous for people to say, This is the law, but if
19 you put it in the Constitution, it's going to create a
20 lot more litigation and concern and debate. That
21 concern to me almost proves the fact that people in
22 law enforcement and otherwise know that the law indeed
23 is not working.
24 I think for the people in the state of Florida to
25 have in their Constitution a very simple statement
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1 that in this state, when we impose punishments, up to
2 and including the ultimate punishment, that our
3 people, our citizens want to make sure that it's
4 imposed in a manner that's not arbitrary, not
5 capricious, and most certainly, most certainly does
6 not discriminate.
7 So, I ask you to support this. I frankly think
8 this could be one of the more popular proposals and
9 one that we will be, perhaps, proudest of if we could
10 put it in our Constitution.
11 CHAIRMAN DOUGLASS: All right. Unlock the
12 machine and let's vote.
13 (Vote taken and recorded electronically.)
14 CHAIRMAN DOUGLASS: Lock the machine and announce
15 the vote.
16 READING CLERK: Nine yeas, 21 nays, Mr. Chairman.
17 CHAIRMAN DOUGLASS: By your vote you have
18 defeated Proposal No. 144. We now move to Committee
19 Substitute for Proposals 172 and 162 which we debated
20 yesterday and carried over until today by the
21 Committee on Legislative, and Commissioner Thompson
22 and Evans-Jones. Do we need additional debate? I'll
23 call on Commissioner Evans-Jones first as a proponent.
24 COMMISSIONER EVANS-JONES: There is an amendment
25 on the desk, Mr. Chairman.
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1 CHAIRMAN DOUGLASS: There is an amendment on the
2 desk. All right, there is a pending amendment on the
3 desk. Read the amendment, please.
4 COMMISSIONER EVANS-JONES: Do you want to
5 withdraw that amendment or do the substitute
6 amendment, Commissioner Zack?
7 CHAIRMAN DOUGLASS: Commissioner Zack is
8 recognized.
9 COMMISSIONER ZACK: Withdraw the amendment to
10 allow a substitute amendment to be put on the table.
11 CHAIRMAN DOUGLASS: All right. Are you going to
12 offer a substitute amendment? Oh, you are. Is it
13 offered yet; is it on the table?
14 COMMISSIONER ZACK: It's on behalf of Mr. Mills,
15 Evans-Jones and Zack; is that correct?
16 COMMISSIONER EVANS-JONES: That's correct.
17 CHAIRMAN DOUGLASS: Which really, Commissioner
18 Mills, Commissioner Zack, and Commissioner Evans-Jones
19 offer the substitute amendment which is on the table.
20 Would you read the amendment, please, substitute
21 amendment?
22 READING CLERK: By Commissioners Mills and Zack,
23 on Page 2, Line 10 through Page 3, Line 17, delete
24 those lines and insert lengthy amendment.
25 CHAIRMAN DOUGLASS: All right. Commissioner
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1 Mills, you are recognized.
2 COMMISSIONER MILLS: Mr. Chairman, after the
3 concerns expressed yesterday on the issues of racial
4 equity, Commissioners Evans-Jones, Zack and I had a
5 conversation about where we were before the series of
6 amendments, that is the Henderson amendment, which I
7 guess really generated the beginning of this
8 conversation.
9 What this does is put us back where we were, and
10 where we were before that amendment makes it clear
11 that the issues of racial balance and discrimination
12 have priority before the issue of compactness. And
13 that clearly, really actually reflects the law. That
14 is a federal law on the voting rights act, et cetera.
15 But what this does from the point of view of racial
16 equity in apportionment and a particular directive to
17 this commission is to make it clear that it is the
18 constitutional law of Florida that that commission
19 cannot dilute voting strengths of any racial minority
20 as a priority. And that is a first priority before
21 the issue of compactness, which I think responds to
22 the concern.
23 CHAIRMAN DOUGLASS: Any further discussion on the
24 amendment? Commissioner Henderson.
25 COMMISSIONER HENDERSON: If Commissioner Mills
25
1 will yield for a question. Why is this even necessary
2 to put this in there if it in fact is the federal law?
3 COMMISSIONER MILLS: Well, I would suggest, the
4 reason to put it in the Constitution, even though the
5 federal law is good on it, is the federal law can
6 change. The federal law in the future may or may not
7 reflect that priority, and this reflects, I think, a
8 simple constitutional priority to not dilute. And it
9 still has the issue of compactness, but it raises the
10 issue of dilution to a priority.
11 CHAIRMAN DOUGLASS: Any further -- Commissioner
12 Zack.
13 COMMISSIONER ZACK: Well, there's no such thing
14 as absolute compactness. And when you have various
15 considerations that are being presented to the
16 commission, he needs to understand that the creation
17 of an over-seized (phonetic) has priority over
18 compactness. So, we will have to consider compactness
19 in light of the constitutional requirements of equal
20 protection.
21 CHAIRMAN DOUGLASS: All right. Commissioner
22 Smith.
23 COMMISSIONER SMITH: Thank you, Mr. Chairman. I
24 want to address this question to either of the
25 sponsors. Is this amendment a by-product of the
26
1 discussion from Commissioner Scott concerning his
2 concern for minority districts?
3 COMMISSIONER MILLS: Commissioner Smith, I think
4 we all have that concern. I know Commissioner Scott
5 expressed it. Just to read this language, there's
6 several criteria, as shall be drawn as nearly a
7 population as possible, which is the constitutional
8 requirement. And then the language says, "and may not
9 be drawn in a manner that dilutes the voting strength
10 of any racial or language minority group." That's
11 what it says. In other words, it is a mandate that
12 this commission do that.
13 And the next sentence, which is the -- where we
14 got into the conversation yesterday, "except to meet
15 the foregoing requirements, the commission shall
16 consider creating districts that are compact," which
17 means the foregoing requirements, including you can't
18 dilute is a priority that must be considered before
19 you can consider compactness.
20 CHAIRMAN DOUGLASS: All right. On the amendment.
21 Any further debate? On the amendment. All right, all
22 in favor of the amendment, say aye; opposed?
23 (Verbal vote taken.)
24 CHAIRMAN DOUGLASS: The amendment is adopted. We
25 are now on the proposal as amended. Commissioner
27
1 Evans-Jones, Commissioner Thompson, you are recognized
2 on your proposal. Commissioner Evans-Jones, you go
3 first.
4 COMMISSIONER EVANS-JONES: All right. Thank you,
5 Mr. Chairman. I want all of you to think very
6 seriously before you vote here today. What we are
7 going to do is to put this on the ballot so that
8 people will have an opportunity to vote on how we
9 redistrict in our elections. The legislators are
10 going to be allowed to appoint the minority leader and
11 President of the Senate and Speaker of the House and
12 so forth. We'll have 17 members. And I think
13 increasing the number to 17 does give us an
14 opportunity to have more diversity there, and that the
15 general public will be better represented. I also
16 think that the fact that they are going to be going to
17 public hearings is going to be very helpful.
18 Everybody in the state of Florida is going to know who
19 is doing the reapportioning.
20 When we reapportion now, the Legislature does it.
21 In my opinion, it's very self-serving, as far as I
22 would be concerned about my seat. And I think it's
23 unrealistic to expect the legislators to think any
24 other way. And I think that they also should be
25 concerned with other affairs that are extremely
28
1 important. And I would like to relieve them of having
2 to be burdened with this reapportionment. It is very
3 time consuming. It is very important. And I think
4 that all of the citizens of Florida will be better
5 served by having an independent reapportionment
6 commission.
7 As you remember, we went to the public hearings,
8 and I think at every single public hearing that we
9 attended, people said they did not want the
10 legislators to reapportion themselves. I know, in
11 1993, President Crenshaw at the time proposed a
12 reapportionment commission, and that commission would
13 have been appointed by the judiciary. I think Senator
14 Scott and Senator Jennings both supported that at the
15 time. And I think that this is a better way to do it
16 by letting the legislators appoint the people instead
17 of the Supreme Court. I think that's much fairer. I
18 think it gives the legislators some power, but not
19 complete authority as far as the seats are concerned.
20 So, I would urge you to vote yes on this very,
21 very important proposal. And I can assure you that
22 it'll be accepted and voted on by the people in the
23 state of Florida. So, I urge you to vote yes.
24 CHAIRMAN DOUGLASS: Commissioner Thompson.
25 COMMISSIONER THOMPSON: I think she's closed very
29
1 well. I just move the proposal.
2 CHAIRMAN DOUGLASS: Any further debate?
3 Commissioner Langley, you are in opposition?
4 COMMISSIONER LANGLEY: Yes, sir. You know, it
5 would be nice if everything worked as we often planned
6 it did. To call this commission independent is
7 certainly an oxymoron when it's appointed by the
8 politicians. To call it unbiased or nonpolitical is
9 certainly not true because, you know, you have -- you
10 name the two parties in the respective houses as being
11 those who support the commission.
12 I think there's two words that you need to think
13 about. The first one is accountability, and the
14 second one is representation. Ms. Evans-Jones, I want
15 you to tell me, after I'm through, whether you think
16 Okahumpka ought to be grouped with Leesburg as a
17 community of interest or with Clermont; do you know?
18 You don't. And neither will the people on that
19 commission.
20 But the local representatives do know where that
21 community interest is, they do know where the trade
22 routes are, they do know where the shared
23 environmental resources are. And, you know, the
24 representation currently, I think a House member
25 represents about 90,000 people, and a Senate member
30
1 about 300,000 people. This commission of 16 will each
2 theoretically represent 1.8 million people. And where
3 are they going to come from, you know, name the four
4 big democratic politicos in the state, that's where
5 they will come from, and the four big republicans,
6 that's where they will come from. And you will have a
7 total lack of representation.
8 And more important to me is the accountability.
9 These people are appointed politically and they are
10 accountable to no one, no one at all. But when your
11 representative gets up there and divides up your
12 counties and divides up your communities, he has to
13 answer for it. These people answer to nobody.
14 What's wrong with the democratic process? What's
15 wrong with representative government? And who knows
16 more about how to divide this state into communities
17 of interest and best representative of all of the
18 people including minorities than the people who have
19 been elected to represent those people they are
20 dividing? What's wrong with it?
21 Sure it has its problems, they are wheeling and
22 dealing. And if you don't think they will be wheeling
23 and dealing in this commission, then you don't
24 understand life, because these people are going to
25 answer to whomever appointed them. That's the only
31
1 people they are going to answer to. So, I think it is
2 a bad idea. It's working and let's keep it working.
3 CHAIRMAN DOUGLASS: Commissioner Connor.
4 COMMISSIONER CONNOR: Mr. Chairman, I rise in
5 opposition to the proposal and I reject the notion
6 advocated by some that this is purely a partisan
7 issue, and that if you don't support this proposal you
8 are voting your Republican interest, and if you do
9 support it, you are voting your Democratic interest.
10 It's rare that I have ever found myself aligned on the
11 same position with Carrie Meek, and Alcee Hastings and
12 Corrine Brown, but I think that speaks the fact that
13 this is not a partisan issue, that there is more to
14 this than partisanship.
15 I reject the notion that if you come down on one
16 side or the other, you have more concern for racial
17 minorities than if you are in the other position. I
18 think Alcee Hastings and Carrie Meek and Corrine Brown
19 understand something about racial sensitivity and the
20 importance of ensuring that all of our citizens are
21 appropriately empowered under our system of
22 government.
23 One observation that I'll make, I'm troubled by
24 this proposal and I have discussed this with the
25 sponsor, is this, is that for the period of time that
32
1 we continue to have the two party system. And I will
2 suggest to you that that will predominate for some
3 extended period of time into the future. The effect
4 of this proposal is to render party parity when the
5 people have not done so.
6 For example, if you have a Legislature that
7 breaks down 65 percent to 35 percent based on the
8 election by the people, what this commission does, as
9 framed, is to restore party parity to a 50/50 basis,
10 even though the people, regardless of which party is
11 in power, even though the people obviously were not
12 comfortable in seating 50/50 relationships to the
13 Legislature.
14 So, for example, if you had the Republican party
15 representing 65 percent of the Legislature, under this
16 proposal the Republican party only gets 50 percent.
17 The same is true if you flip that for the Democrats.
18 And I would suggest to you that this may be perceived
19 by some to represent an attempt to maintain party
20 parity when the political winds of the state are
21 shifting. And I dare say that same argument may be
22 made about the limitations that some wish to put on
23 contributions to political parties.
24 But I dare say, ladies and gentlemen, that it's
25 more equitable to have a body that's represented in
33
1 proportion to the way in which the people of Florida
2 voted for their representatives than to create some
3 artificial party parity simply by virtue of the fact
4 that this is a two-party state. I don't think that's
5 appropriate and I think that is a flaw in this
6 proposal. Approved, though, this proposal is by
7 virtue of enlarging the body, which would yield
8 greater diversity. I reiterate that there's no more
9 diverse branch of government in this state than the
10 legislative branch; racial diversity, religious
11 diversity, geographic diversity, gender diversity. It
12 is about as much of an amalgamation as you will get in
13 state government.
14 I believe that those elected representatives are
15 the ones who have the responsibility and who ought to
16 be accountable for the way in which we redistrict our
17 state. For those who have sought to abuse this
18 process and use it to their own advantage, history
19 speaks the fact that the public was not so ignorant or
20 stupid that they couldn't see through the way in which
21 they sought to promote their own self interest, and
22 typically they were penalized at the polls for doing
23 it.
24 I urge you to maintain this critical function in
25 the hands of the most diverse, most accountable branch
34
1 of government, the legislative branch. Thank you.
2 CHAIRMAN DOUGLASS: Commissioner Crenshaw.
3 COMMISSIONER CRENSHAW: Mr. Chairman, Members,
4 just very briefly, since people get invoking my name
5 in terms of trying to change the system, I just want
6 to make it clear that in 1992 when the Senate was
7 going through reapportionment, there were 21 Democrats
8 and 19 Republicans. And one of the Democrats felt
9 disenfranchised by his party, and so every time there
10 was a vote on reapportionment, he voted with the
11 Republicans. And so every time there was a vote on
12 the reapportionment plan in the Senate, the vote came
13 out 20/20. The House passed the reapportionment plan
14 just fine, no problems. But in this body, it was
15 almost like purgatory; every time you would vote, a
16 plan would fail, 20/20.
17 So, I guess I became convinced that if there was
18 some way to remove the politics from the
19 reapportionment process would be a good idea, and I
20 proposed to do that, as far as I could get it away
21 from politics, which was actually having the Supreme
22 Court Justices, through a series of interviews, et
23 cetera, appoint a commission, which in my view would
24 be a lot farther from politics than having the Senate
25 President or the House Speaker appoint people.
35
1 As Commissioner Connor pointed out, I think what
2 this does, after going through what I went through in
3 1992, this just perpetuates the purgatory of 1992 and
4 writes it in the Constitution forever, and I think
5 that's wrong.
6 If there was some way to get it away from
7 politics, which I thought my proposal 10 years ago or
8 whenever I madd it did, I would certainly support it.
9 But this certainly isn't as good, it's worse. It just
10 narrows the members of the commission and takes the
11 politics and reduces it down, and again, just
12 perpetuates what we saw in 1992. So I don't think
13 this is a very good solution. And I wanted you-all to
14 know that since I'm the one that would like somehow to
15 remove it from politics. But this certainly doesn't
16 do it. I am going to vote against it.
17 CHAIRMAN DOUGLASS: Commissioner Barton.
18 COMMISSIONER BARTON: I rise to speak in favor of
19 the proposal. Let's face it, we've been doing it one
20 way for a long time. It has not been exactly fair.
21 It's called gerrymandering. I don't know that this
22 will work, but we don't have it forever as
23 Commissioner Crenshaw has said, we have it for 20
24 years, max, unless it does work; and I think we ought
25 to try it.
36
1 Just for example, one of the finest state
2 senators I have ever had representing my community is
3 Senator Scott who lives in the Fort Lauderdale area,
4 Broward County, and I happen to live in Collier County
5 on the other coast. That's an example of the
6 gerrymandering that did occur for many years. And I
7 think it is better, but I don't think it's perfect.
8 And I also would point out that this has broad support
9 across this state by people who have watched the
10 process unfold so unfairly. I think we need to take
11 the high road in this particular issue and I urge your
12 support.
13 CHAIRMAN DOUGLASS: Commissioner Scott.
14 COMMISSIONER SCOTT: Briefly, I know you're
15 tiring of hearing me on that. And let me just say,
16 it's great representing Collier County. They gave me
17 80 percent of the vote in the first primary against
18 the 12-year incumbent House member running for the
19 Senate. But in the spirit of what was best for the
20 state, which is what you often find, I know people
21 want to take a negative attitude about political
22 officeholders, I gave that up, you know, to go for
23 single-member districts so that we could have one
24 minority member in the Florida Senate. There were
25 none for the first six years I served here.
37
1 And subsequently, we have pursued that. Let me
2 just speak for just two seconds on behalf of the
3 members of the Senate and the House who are minority
4 members. You don't know. You cannot imagine, it's
5 like you have heard that song, Walk A Mile In My
6 Shoes. You cannot imagine the insecurities and the
7 problems that they have faced in view of the Supreme
8 Court of the United States' decisions in recent years,
9 up until the last year or so.
10 And in doing reapportionment there is no way that
11 someone else -- no one knows who they are until just a
12 year before they are appointed. I want to put our
13 names on this commission out and find out who knows
14 who we are or how many people actually even know we
15 are meeting, in view, in spite of all of the press
16 we've gotten. But they do know who their
17 representatives are.
18 And I mean, you take someone like Betty
19 Holzendorf, I mean, she knows, she knows, where the
20 community of interest is. You take Jim Hargrett in
21 Tampa. There is a community of interest all the way
22 through Hillsborough and parts of Pinellas, goes
23 around Tampa Bay, economic, socioeconomic, and other
24 communities of interest. And I just want to tell you
25 that it has been great having served, you know, with
38
1 no minority members, to have five of them in the
2 Florida Senate to interact with them.
3 You know, the argument used to be that people
4 that wanted multimember districts would say, Well, no,
5 it would be much better if they -- a few of them are
6 here and a few of them there and a few of them here,
7 then they will have more people accountable to them,
8 but the reverse is totally the truth. And they don't
9 get to sit at the table.
10 Think about sitting at the table and being able
11 to say, Look these are people that I know and if you
12 don't believe me, ask them, or they told me last week
13 when I was down there or they told me last year that
14 they really liked, and here is whatever. So I would
15 just urge you to keep thinking, those of you that feel
16 like you want to be for this keep, to keep thinking
17 about the reality of it is not good all across the
18 state. And like Ander says, I don't remember if I
19 voted for that, but if I did, I was temporarily out of
20 my mind and now I have it back. So I would urge you
21 to not go forward with this.
22 And in addition to which, it's been pointed out
23 by some of the other commissioners, it is potentially
24 very divisive because of the fact that it's leadership
25 of either party that's doing the appointing. So why
39
1 not -- I think the time has come and gone. I think
2 when Marilyn Evans-Jones proposed this 15 years ago
3 --
4 CHAIRMAN DOUGLASS: Commissioner Scott, please
5 refer to these people as Commissioner.
6 COMMISSIONER SCOTT: I would appreciate it,
7 Mr. Chairman, if you would quit interrupting me when I
8 am speaking on a matter that you do not agree with.
9 CHAIRMAN DOUGLASS: I haven't said anything on
10 this matter.
11 COMMISSIONER SCOTT: Okay, thank you. I lost my
12 train of thought for a second. But I would point out
13 to you that the people that are elected from whatever
14 part of the state ought to be the ones to make this
15 decision that the time for this has come and gone and
16 all the people that want it, you know, we get up here
17 in the Legislature and it is the lobbyists and the
18 press and a few interest groups, the people out there
19 are not going to want this when they find out about
20 it, and believe me, they will find out about it. I am
21 sure that you all saw the letter from the three
22 Congress persons who wrote to all of you who are
23 expressing their concerns about it. I just think it's
24 not a good idea and I would urge you to vote against
25 it.
40
1 CHAIRMAN DOUGLASS: Commissioner Ford-Coates.
2 COMMISSIONER FORD-COATES: Commissioners, I rise
3 in support of this proposal. I agree that communities
4 of interest are an important piece of selecting a
5 district. But I disagree strongly that the only
6 people that can make those decisions are the elected
7 representatives. I believe an independent commission
8 will do very similarly to what the Constitution
9 Revision Commission did. They will go out, they will
10 hold public hearings, they will hear from the elected
11 representatives. Their proposals will be out there
12 and available as we heard testimony. They will be
13 available on the Internet probably. It will be easy
14 for people to see what they are doing.
15 And I think people will come and talk and express
16 their opinions. And I believe that these citizens who
17 are appointed by political officials, as we are, will
18 come in and do their job the best possible way they
19 can having studied the issues and listened to the
20 people.
21 This is a good proposal. It takes it out of the
22 hands of the Legislature which already has plenty to
23 do, and puts it in the hands of an independent
24 commission. It is a good proposal and I urge your
25 support.
41
1 CHAIRMAN DOUGLASS: Any further debate?
2 Commissioner Evans-Jones to close.
3 COMMISSIONER EVANS-JONES: Thank you,
4 Mr. Chairman, Members of the Commission. I want to
5 tell you that it may sound good that each legislator
6 has so much information and that they are going to
7 really be involved in the reapportionment process.
8 The fact of the matter is that they are not. Out of
9 the 120 members, maybe there are 2 or 3 that are going
10 to make all these decisions. They really can't have
11 any sort of input into the process, and they don't,
12 and they haven't. So I think you need to consider
13 that.
14 Yes, I am trying to be fair. I'm trying to be
15 fair to the Democrats, I'm trying to be fair to the
16 Republicans. But the people I'm really trying to be
17 fair to is all those people out there who are
18 concerned with reapportionment.
19 If the Democrats are in control, this is going to
20 be a very fair process for Republicans as well. And I
21 think you really need to consider that, so yes, it is
22 parity. And I can assure you that these commissioners
23 will find out what the communities of interest are
24 when they go out on the trail and have the public
25 hearings, they are going to know and they are going to
42
1 find out. And you can say -- well you heard from
2 three incumbents I think you mentioned. Those are
3 also people who are running for election. I imagine
4 they want to keep their seats just like each Senator
5 and each member of the House does. But we are going
6 to have single-member districts, it's going to be
7 fair, and the people who are the best candidates are
8 going to be the ones who are going to be elected. And
9 I think that's what all of us want.
10 This is really a matter of equity. It's a matter
11 of fairness. We don't know who is going to be in
12 charge as far as we have more Democrats registered
13 right now than Republicans, but the Republicans are
14 now in control of the House and the Senate.
15 I think you just want to try to do the fair
16 thing, the thing that needs to be done. The
17 legislators are never going to give this up their own.
18 And I think it's our responsibility to give the public
19 an opportunity to vote for this and to have an
20 independent, and yes, I think it will be an
21 independent reapportionment commission. Thank you.
22 Please vote yes.
23 CHAIRMAN DOUGLASS: All right. Ready to vote.
24 Open the machine. Let's vote.
25 (Vote taken and recorded electronically.)
43
1 CHAIRMAN DOUGLASS: Lock the machine and announce
2 the vote.
3 READING CLERK: Nineteen yeas, 12 nays,
4 Mr. Chairman.
5 CHAIRMAN DOUGLASS: By your vote you've adopted
6 Proposal Committee Substitute for 172 and 162. We'll
7 now move to Proposal No. 91 by Commissioner Hawkes
8 which has been on a motion for reconsideration which
9 was adopted and it's been deferred since
10 February 14 -- 26th. Read it, please.
11 READING CLERK: Proposal 90 --
12 CHAIRMAN DOUGLASS: By Commissioner Hawkes.
13 COMMISSIONER HAWKES: We've been TP'ing this
14 proposal.
15 CHAIRMAN DOUGLASS: I think we're through TP'ing.
16 Commissioner Barkdull.
17 COMMISSIONER BARKDULL: Clean this calendar off.
18 CHAIRMAN DOUGLASS: All right. Read the
19 proposal.
20 READING CLERK: Without objection, it's
21 withdrawn.
22 CHAIRMAN DOUGLASS: All right. The next group of
23 proposals are sovereign immunity which we were on
24 yesterday, and I believe we left with that being the
25 situation. Commissioner Zack, you had the floor I
44
1 think when we quit, didn't you?
2 COMMISSIONER ZACK: I withdrew my proposal,
3 there's nothing pending. There is a motion for
4 reconsideration by the chairman on the Lowndes
5 proposal, is what I recall the status of sovereign
6 immunity was at the time of adjournment.
7 At this time -- by the way, last night we made
8 use of the evening to meet with Commissioner Sundberg
9 and Commissioner Wetherington to discuss some of the
10 legal issues that were discussed extensively yesterday
11 to make sure we were not doing anything that was not
12 intended to be done. As a result of that, we do have
13 presently a committee -- no, not a committee
14 substitute, it's a substitute for 59. And it is on
15 the desk, I believe.
16 CHAIRMAN DOUGLASS: All right. At the present
17 time there is a motion to reconsider the Lowndes
18 proposal on the floor.
19 COMMISSIONER ZACK: That's what I understood, is
20 where we are at at this moment.
21 CHAIRMAN DOUGLASS: So we could go back to that.
22 We didn't vote on it, it was placed on the calendar
23 then we adjourned.
24 COMMISSIONER ZACK: That's correct.
25 CHAIRMAN DOUGLASS: All right. I think I made
45
1 the motion to reconsider. Commissioner Barkdull.
2 COMMISSIONER BARKDULL: Point of inquiry,
3 Commissioner Zack. If we were to pass the motion to
4 reconsider and be back on the Lowndes amendment, is
5 the amendment that you said would be on our desks an
6 amendment to the Lowndes proposal or an amendment to
7 the original proposal?
8 COMMISSIONER ZACK: It would be an amendment to
9 the new proposal if the new proposal is adopted. What
10 is being done now, just so that everyone understands
11 and we try to demystify a little bit what was going
12 on, and no doubt it was confusing because of the
13 member of amendments we were hearing late in the day.
14 What we did is we have a Provision A --
15 COMMISSIONER BARKDULL: Excuse me a minute.
16 Commissioner Zack, I am not interested in the details,
17 I am trying to find out where we would be
18 procedurally.
19 COMMISSIONER ZACK: It would be an amendment to
20 the substitute, and it would be C.
21 COMMISSIONER BARKDULL: It would not be an
22 amendment to the Lowndes amendment?
23 COMMISSIONER ZACK: No, that's correct. The
24 Lowndes amendment if adopted would be an amendment to
25 the Substitute 59.
46
1 COMMISSIONER BARKDULL: But what you were
2 discussing initially is an amendment that was on the
3 desk is not right at this point if --
4 CHAIRMAN DOUGLASS: It's not been introduced.
5 COMMISSIONER BARKDULL: And we're on a motion to
6 reconsider.
7 CHAIRMAN DOUGLASS: That's correct. And correct
8 me if I'm wrong, Commissioner Zack, if this is
9 adopted, then the Lowndes amendment would pass, it
10 would go to vote, then you're offering an amendment
11 which would be to the substitute as amended by the
12 Lowndes proposal.
13 COMMISSIONER ZACK: That's correct, but the way
14 that it actually occurred yesterday is that the
15 Lowndes amendment was an amendment to 59. So this
16 would, in effect, be passing the amendment to 59
17 before 59 was dealt with, that's where the confusion
18 is.
19 CHAIRMAN DOUGLASS: So, if we do reconsider and
20 pass the Lowndes amendment then we can start with your
21 amendments; is that correct?
22 COMMISSIONER ZACK: And you can make an amendment
23 to 59.
24 CHAIRMAN DOUGLASS: All right. Commissioner
25 Lowndes, is that --
47
1 COMMISSIONER ZACK: Or that matter could be
2 freestanding because they are divisible.
3 CHAIRMAN DOUGLASS: Commissioner Lowndes, it was
4 your amendment. Do you understand? I'm not sure I
5 do.
6 COMMISSIONER LOWNDES: Yes, as I understand to
7 simplify what Commissioner Zack is saying, is the
8 so-called Lowndes amendment would work both with the
9 amendment which has been proposed, 59, the substitute
10 to 59, and also would work with the substitute to
11 that, which Mr. Zack is going to propose after we vote
12 on the motion to reconsider.
13 CHAIRMAN DOUGLASS: Okay. On the motion to
14 reconsider, Commissioner Freidin.
15 COMMISSIONER FREIDIN: My understanding of these
16 two proposals or these two amendments, and I'd like
17 the proponents to correct me if I'm wrong, is that the
18 Lowndes proposal would work with the Zack amendment or
19 it would work on its own. It makes sense to me, and I
20 will urge the Commission to first take up Commissioner
21 Zack's amendment and then deal with the Lowndes
22 proposal because it really is something that follows,
23 you kind of have to know what you're doing with the
24 Zack one before you decide the Lowndes one.
25 CHAIRMAN DOUGLASS: Commissioner Connor, you
48
1 wanted the floor?
2 COMMISSIONER CONNOR: Mr. Chairman, I didn't want
3 to speak -- I didn't want to speak to that issue,
4 because frankly I just have to rely on these folks to
5 let us know in what sequence it ought to come. There
6 was an indication by some to me yesterday that the
7 Lowndes proposal perhaps it suffered from a lack of
8 clarity and I was asked in the interest of promoting
9 the reconsideration to try to clarify what that
10 proposal did. I don't know if that would be out of
11 order or not, Mr. Chairman.
12 CHAIRMAN DOUGLASS: Well, without objection, tell
13 us what your clarification is in 75 words or less.
14 COMMISSIONER CONNOR: Yes, sir. This proposal
15 would eliminate the claims bill process. In cases
16 where a claim exceeded $200,000, the claim would be
17 submitted in lieu of a trial to an arbitration panel
18 whose vote would be binding in terms of the outcome.
19 That means then that, with respect to claims where the
20 cap -- statutory cap which has been imposed was
21 exceeded, that the arbitration panel's decision would
22 be binding on the claimant and on the sovereign entity
23 whose conduct was at issue, hence you eliminate
24 altogether the claims bill process. You effectively
25 eliminate any cap on sovereign immunity.
49
1 I think that's important to understand because
2 that represents a marked departure from current
3 policy, and you assure that injured people are
4 compensated in proportion to the extent of the
5 injuries that they have sustained.
6 The concern about the waiver of a jury trial was
7 deemed to be a matter of little consequence, inasmuch
8 as one does not have the right to a jury trial when
9 they seek to recover more than the cap currently,
10 their remedy is through the legislative arena in the
11 claims bill process, and there's an explicit provision
12 here that planning functions would remain immune from
13 suit and that the rules of the arbitration panel would
14 be written by the Supreme Court. That's my
15 explanation, Mr. Chairman.
16 CHAIRMAN DOUGLASS: Commissioner Morsani.
17 COMMISSIONER MORSANI: Mr. Chairman and
18 Commissioners, there is one thing that Commissioner
19 Connor did not say, but this is the exact language --
20 I shouldn't say the exact language, but it mirrors the
21 current federal system. Am I correct, Mr. Connor?
22 COMMISSIONER CONNOR: Well, actually, it
23 represents a permutation of the federal system. It's
24 my understanding under the federal system that a
25 federal judge is the ultimate determiner -- arbiter of
50
1 the facts in the case and makes the award. In this
2 case it would be a panel.
3 CHAIRMAN DOUGLASS: Commissioner Morsani, your
4 mic isn't on. I am going to try to get it on for
5 you.
6 COMMISSIONER MORSANI: I know. There. But the
7 jury trial is not available in the federal system, and
8 that's what I was trying to say.
9 COMMISSIONER CONNOR: That's precisely correct.
10 And in cases where it is maintained that the claim
11 would exceed the cap, the parties would not have a
12 right to a jury trial. The thought by the sponsor, as
13 I understood it, is that helps to protect a sovereign
14 entity against a potential runaway jury and injects
15 some balance in there, while at the same time
16 providing some opportunity for an injured person to
17 recover the full measure of their damages.
18 CHAIRMAN DOUGLASS: Commissioner Nabors.
19 COMMISSIONER NABORS: As I understand the posture
20 is to whether we reconsider the Lowndes amendment.
21 CHAIRMAN DOUGLASS: That's correct.
22 COMMISSIONER NABORS: Because I had a lot of
23 problems with the Lowndes amendment which I am not
24 going to debate now pending reconsideration.
25 CHAIRMAN DOUGLASS: That's correct, it is a
51
1 matter on reconsideration. Are we ready to vote,
2 Commissioner Zack, on reconsideration?
3 COMMISSIONER ZACK: Mr. Chairman, Commissioner
4 Freidin suggested that the Lowndes matter be addressed
5 after 59. And I know procedurally that may not be
6 correct, but I think it's important, if the Chair will
7 allow it, for an overview of sovereign immunity and
8 what is being proposed both by 59 and the Lowndes
9 amendment as it applies to 59, because it needs to be
10 taken in context.
11 And what I heard yesterday is that the issue of
12 sovereign immunity, particularly to those laypersons
13 on this commission, is not clear as of this time. And
14 before the vote, I think it's important that we
15 understand what we're voting on, and to do that, there
16 has to be an overview of what we're dealing with as it
17 pertains to sovereign immunity. But again I
18 understand that procedurally that is not the posture
19 that we're in.
20 CHAIRMAN DOUGLASS: Well, in answer to that, if
21 you vote to reconsider and it is affirmative that we
22 do reconsider, then you could move to delay the
23 reconsideration until after your --
24 COMMISSIONER ZACK: That's perfectly acceptable.
25 CHAIRMAN DOUGLASS: And that would, I think,
52
1 probably meet the approval of Commissioner Lowndes.
2 Would it not, Commissioner Lowndes?
3 COMMISSIONER LOWNDES: Yes, sir.
4 CHAIRMAN DOUGLASS: All right. So the issue is
5 not as described, we can still reach that if the vote
6 to reconsider is a positive vote. All right. So now
7 we'll vote on the motion to reconsider the Lowndes
8 amendment. I think everybody fully understands it at
9 this point. So open the machine and let's vote.
10 (Vote taken and recorded electronically.)
11 CHAIRMAN DOUGLASS: Lock the machine and announce
12 the vote.
13 READING CLERK: Seventeen yeas, 9 nays,
14 Mr. Chairman.
15 CHAIRMAN DOUGLASS: All right. Now, as I
16 understand, Commissioner Zack, with the concurrence of
17 Commissioner Lowndes, moves to pass this pending the
18 consideration of his amendment which he's placing on
19 the desk. Now, is that an amendment to the amendment?
20 COMMISSIONER ZACK: That's correct.
21 CHAIRMAN DOUGLASS: So, it's an amendment to the
22 amendment that was on the floor that had passed. No,
23 it had not passed, it was on the floor. All right.
24 Commissioner Zack has an amendment on the table which
25 we'll read. I think this is your definitive
53
1 amendment; is that correct?
2 COMMISSIONER ZACK: This is the definitive
3 substitute amendment after consultation with
4 Commissioner Sundberg and Commissioner Wetherington
5 about the concerns that were discussed yesterday late
6 in the day.
7 CHAIRMAN DOUGLASS: All right.
8 COMMISSIONER ZACK: And there are two different
9 amendments that you have before you. You have to have
10 two different sheets of paper to understand what's
11 happening. Until -- that's the problem. There has to
12 be two sheets of paper that each person, each
13 commissioner is looking at. There is the first sheet,
14 which is the amendment, which has provision Section
15 13A, (a) and (b).
16 (Off-the-record comment.)
17 CHAIRMAN DOUGLASS: As far as I'm concerned, we
18 can vote on the Lowndes amendment if everybody is in
19 the chamber. I have no problem with that. You need
20 to get your stuff together so we know what we're
21 voting on.
22 COMMISSIONER ZACK: It's been together, Mr.
23 Chairman, it's been presented before. As a matter of
24 fact, it was typed up. I reviewed it before the
25 Lowndes amendment. The Lowndes amendment was then
54
1 typed up to be attached to it but considered
2 separately from it. And that's why each person should
3 have before it -- I can't help it has not been passed
4 out, it should have been passed out. You should have
5 before you two sheets. Does everybody have two
6 sheets? A and B. All right. Commissioner Barkdull
7 doesn't have two sheets. Commissioner Mathis doesn't
8 have two sheets. What we need is these passed out.
9 CHAIRMAN DOUGLASS: They are now passing
10 something out.
11 COMMISSIONER ZACK: Apparently the machine is
12 broken is what I have been told.
13 CHAIRMAN DOUGLASS: Commissioner Scott, the
14 machine is broken.
15 COMMISSIONER SCOTT: How about my microphone?
16 CHAIRMAN DOUGLASS: It's working full time.
17 COMMISSIONER SCOTT: Thank you. Can I be
18 recognized?
19 CHAIRMAN DOUGLASS: You already have been.
20 COMMISSIONER SCOTT: Okay. When you called the
21 vote you said on reconsideration of the Lowndes
22 amendment, and that's what we say when it will have
23 passed. But what apparently you were doing is
24 reconsidering the vote by which it failed, and I was
25 confused, so I voted yes thinking, you know, whatever.
55
1 So, I think we should either revote, or I would
2 now move to reconsider the vote by which whatever
3 happened last time. You know, it failed once and we
4 reconsidered, and I now move to reconsider that
5 reconsideration because there is a lot of confusion
6 here on what we're voting on.
7 CHAIRMAN DOUGLASS: Do you want to just change
8 your vote, Commissioner Scott? Would you like
9 unanimous permission to change your vote?
10 COMMISSIONER SCOTT: No, I would just like the
11 vote to be explained properly that what we were voting
12 on was a motion to reconsider the vote by which the
13 Lowndes amendment failed, and that was not what was
14 said.
15 CHAIRMAN DOUGLASS: It was said. It might not
16 have been said right at the end, but it was said
17 several times in the discussion when you were not
18 there. And maybe I called it at the end wrong, and
19 you're absolutely right, I should have been
20 technically correct at the end so you would have known
21 what you're voting on. But I think everybody in the
22 chamber knew what they were voting on. And if you
23 would like permission, unanimous permission, to change
24 your vote, I think you can get it.
25 Commissioner Riley.
56
1 COMMISSIONER RILEY: Mr. Chairman, I'd like to
2 throw away some papers that are on my desk, but before
3 I throw them away, I would like to make sure I'm
4 throwing away the right stuff. So, my question is,
5 what I need to have on my desk are the two things that
6 have just been passed out and the Lowndes proposal,
7 Lowndes and Morsani, which talks about the
8 three-person arbitration. Everything else I can throw
9 away?
10 CHAIRMAN DOUGLASS: As it relates to this
11 proposal, I think that's correct according to
12 Commissioner Zack.
13 COMMISSIONER RILEY: As it relates to Proposal
14 59.
15 CHAIRMAN DOUGLASS: And all the combined
16 proposals.
17 COMMISSIONER RILEY: Well, it's the combined
18 stuff that's worrying me.
19 CHAIRMAN DOUGLASS: Well, don't worry about that
20 yet.
21 COMMISSIONER RILEY: Every time I think I
22 understand it, somebody hands me another piece of it.
23 CHAIRMAN DOUGLASS: What you should have before
24 you on this consideration are the two proposals, or
25 amendments rather, offered by Commissioner Zack and
57
1 you should have the Lowndes amendment also on your
2 table.
3 COMMISSIONER RILEY: Thank you.
4 CHAIRMAN DOUGLASS: Now, does everybody have that
5 information on their desks? If so, we'll proceed with
6 Commissioner Zack on his amendments. Commissioner
7 Zack.
8 COMMISSIONER ZACK: Will Rogers once said that a
9 pretzel is a bread stick described by a lawyer. I'm
10 going to try to turn this pretzel back into a bread
11 stick. And it is very, very simple. But I'm going to
12 start at the beginning, which is with the king because
13 there used to be a king. And all the law in the
14 United -- there still is a king, but a different king.
15 But the king could do no wrong in England, and
16 our law comes from common law England, as we discussed
17 yesterday, and there was a principle that the king
18 could do no wrong. That means you couldn't sue the
19 king no matter what the king did, no matter how
20 egregious the crime. Some of you saw Brave Heart, you
21 could not sue the king for what the king did, no
22 matter what. That is called sovereign immunity.
23 When we adopted the common law of England in this
24 country we accepted sovereign immunity. The sovereign
25 became the state and the state had the same rights as
58
1 the king and the state could do no wrong. And the
2 state could not be sued no matter what the state did.
3 Some people felt that was just a little unfair.
4 As a result of that, there was a limited waiver
5 of sovereign immunity by the state. And that limited
6 waiver, which occurred in 1981 or '83 -- it was '81,
7 was for $100,000.
8 Now, in 1986 there was the Tort Review Commission
9 that Commissioner Wetherington sat on. I don't know
10 if Commissioner Kogan sat on it or not, but in 1986,
11 10 years ago, it was recommended that that cap be
12 raised from 100 to $200,000. Not a big raise, but it
13 was just reviewed by that commission and felt it was
14 fair to raise it to $200,000. Ten years has gone by,
15 nothing has happened.
16 We went around the state of Florida and at every
17 public hearing we have heard about the abuses that
18 occurred in this area. Particularly where the state
19 has taken on the role of private industry and does not
20 have the same obligations to insure over its wrongful
21 acts.
22 This proposal still protects the state. It is a
23 very limited fix, if you will, of the very limited
24 waiver that exists today of sovereign immunity in the
25 state of Florida. And this is No. 59 (a) and (b).
59
1 (a) contains the word "may," the Legislature may.
2 Again there was waived sovereign immunity. There was
3 concerns yesterday about legislating to the
4 Legislature that they shall waive sovereign immunity.
5 So, in fact, this still preserves the right of
6 the Legislature to maintain sovereign immunity;
7 however, (b) says that if there is going to be a
8 waiver of sovereign immunity, which we anticipate in
9 view of the history of that waiver would continue to
10 exist, then it should be as set forth in (b).
11 And (b) says that the $100,000 cap is raised to
12 $200,000, that that amount is increased by the CPI
13 annually so we don't get into the disparity that we
14 presently have, and that this doesn't have to be fixed
15 on an annual basis.
16 It also provides that costs are in addition to
17 the $200,000. But attorneys' fees are not considered
18 costs. The attorneys' fees are part of the $200,000
19 recovery. It also has a bad faith provision which you
20 have heard me identify as a, quote, accountability
21 provision, because what that faith does is it makes
22 the person determining whether or not to pay a claim
23 accountable for acting in a reasonable way, not as a
24 guarantor that the decision is correct, because it can
25 be wrong. There is no bad faith if there are two
60
1 competing claims -- views of the situation.
2 In other words one witness said it was a red
3 light, the other one says it was a green light when
4 the accident occurred, and there is no clear
5 determination, and the jury decides in favor of the
6 plaintiff. There is no bad faith because that was
7 reasonable, there were two people that witnessed the
8 accident, and the adjuster does not have to pay any
9 money in that situation.
10 However, if you have a bus driver who is
11 intoxicated and runs on the other side of the road and
12 kills an individual or makes them a quadriplegic and
13 that information is represented to the claims adjuster
14 and proven to the claims adjuster by the accident
15 report of the police officer, then the claims adjuster
16 has a very simple thing to do, it will have a
17 reasonable period of time to make an investigation,
18 and then pay the $200,000, and there can never be any
19 bad faith because they acted properly as any
20 reasonable person will do.
21 If they do not, however, if they do not, and they
22 say, We're not going to pay anyway, we're just going
23 to keep the money in our pocket, we're not going to be
24 accountable and you can't do anything to us, that's
25 the situation today. We can say, No, you can be
61
1 guilty of bad faith, but there is a limitation.
2 And we put on a limitation last night to the
3 extent not to exceed $1 million. The reason we did
4 that is so that there would be not an unlimited
5 liability, and the concerns that we've heard from
6 various government entities about unlimited liability.
7 So, if you adopt (a) and (b), and if the
8 Legislature continues to have a waiver of sovereign
9 immunity, (a) and (b) is what you see, and that will
10 be the sovereign immunity law of the state of Florida.
11 Now, what happens today if you have a verdict in
12 excess of $100,000, which is what the cap is today?
13 You can come to the Legislature and you can seek a
14 claims bill, and to the extent that there is a claims
15 bill, as it exists today, there is an unlimited waiver
16 of sovereign immunity if the claims bill is passed.
17 In other words, you have a $12 million verdict in
18 a quadriplegic case, and if the state, after you come
19 up here and present your information and a claims bill
20 is in fact passed by the Legislature, there is no
21 limitation. What's the problem with that system? It
22 is what has been described to us by President
23 Jennings, by people here in this chamber over and over
24 again, that that is justice for the rich, that is
25 justice for people who can hire the best lobbyist, who
62
1 can make the appropriate campaign contributions and
2 can get a claims bill through.
3 Now last year President Jennings looking at the
4 situation felt it had been abused so extensively in
5 the past that there would be no claims bill of any
6 kind, and there have been no claims bills passed last
7 year.
8 What Commissioner Lowndes' amendment to my
9 amendment does is it replaces that claims bill
10 process; in other words, anything over the waiver of
11 sovereign immunity with an arbitration panel, a
12 three-person arbitration that will determine whether
13 or not any monies should be paid over the sovereign
14 immunity cap, period, that's what it does. There is
15 no limitation, however, to that amount, just as there
16 is no limitation today on a claims bill.
17 So, you can adopt 59 and all that does, again, is
18 allows the Legislature first to make the decision of
19 whether to waive; and two, if it does waive, it will
20 be the waiver to the extent identified in (b) that is
21 before you. You can adopt that by itself, however, if
22 you do not believe that the claims bill process as it
23 exists today is fair and that the Lowndes amendment,
24 which is (c) would be fairer to the people of Florida
25 than what exists today, then you will move, and it's
63
1 been moved and you will vote in favor of the Lowndes
2 amendment.
3 However, if you vote against the Lowndes
4 amendment, Amendment 59 still needs to be voted on.
5 And if you defeat the Lowndes amendment and you pass
6 59, what you have is the new terms of (b) and you
7 maintain the claims bill process that exists today in
8 Florida.
9 If you defeat the Lowndes amendment and you
10 defeat Amendment 59, what you are left with is the
11 $100,000 sovereign immunity cap. That's what I
12 understand is before the body.
13 CHAIRMAN DOUGLASS: Commissioner Barkdull.
14 COMMISSIONER BARKDULL: Commissioner Zack, yield
15 for a question?
16 COMMISSIONER ZACK: Yes, sir.
17 CHAIRMAN DOUGLASS: He yields.
18 COMMISSIONER BARKDULL: Commissioner Zack, the
19 $100,000 limit is not in the Constitution today, is
20 it?
21 COMMISSIONER ZACK: That's what we discussed
22 yesterday.
23 COMMISSIONER BARKDULL: No, it's not in the
24 Constitution today. It's a statutory --
25 COMMISSIONER ZACK: I accepted that as an
64
1 accurate statement yesterday.
2 COMMISSIONER BARKDULL: Now, as I read your (b)
3 when you talk about a million dollar limit, you read,
4 In the event of a finding of bad faith and the failure
5 to settle such a suit. Now a bus driver's got 32
6 passengers and he doesn't run and get hit by a driver,
7 he gets drunk and runs off of a mountain and there is
8 bad faith, is it 1 million for the 32 or $32 million?
9 COMMISSIONER ZACK: Each person shall have the
10 same rights as every other person.
11 COMMISSIONER BARKDULL: That's the way I read it.
12 And I appreciate your candor and the answer because
13 that's the way I read it.
14 COMMISSIONER ZACK: As a matter of fact that's
15 why the occurrence limit that was previously in one of
16 them was deleted because it wasn't felt that by
17 happenstance every citizen in Florida should be
18 treated inferior to any other citizen.
19 COMMISSIONER BARKDULL: Thank you.
20 CHAIRMAN DOUGLASS: All right. I have been
21 advised by the clerk that we need to read the
22 amendment since we haven't. Would you please read it?
23 This is the Zack amendment.
24 READING CLERK: Substitute Amendment by
25 Commissioner Zack on Page 1, Lines 15 through 28,
65
1 delete those lines and insert lengthy amendment.
2 CHAIRMAN DOUGLASS: All right. Now, Commissioner
3 Morsani.
4 COMMISSIONER MORSANI: Just as a clarification.
5 This amendment actually becomes a proposal. So
6 everybody really understands, all those other papers
7 that are on your desk, throw them away. This actually
8 becomes the proposal.
9 CHAIRMAN DOUGLASS: We haven't voted on yours
10 yet, so don't throw them all away. All right,
11 Commissioner Brochin was up first. Commissioner
12 Brochin has a question.
13 COMMISSIONER BROCHIN: Commissioner Zack, is the
14 intent of this amendment by picking $200,000 to adjust
15 the amount from the original $100,000 amount; is that
16 the intent? Do you know how the original $100,000
17 amount was picked in the first place?
18 COMMISSIONER ZACK: I have no idea.
19 COMMISSIONER BROCHIN: Well, is there any tie
20 that that is somehow justly compensating victims in
21 any sense since we are now picking another amount off
22 of the original?
23 COMMISSIONER ZACK: We know one thing, that we
24 heard if you factor in the inflation, that a person,
25 inflation, not even in considering the higher
66
1 inflation rate of medical care, that the very least
2 amount would be 200 -- it's probably 250 to $300,000.
3 It depends on what discount rate you want to use. As
4 you know, you can use any discount rate and change the
5 number. But what we felt, and again, I am trying not
6 to repeat what was said yesterday, but it was felt
7 that a citizen of Florida in 1998, if they are injured
8 by the state should be able to receive the same health
9 care benefits and other benefits that they would have
10 had if they were a citizen in this state in 1981.
11 COMMISSIONER BROCHIN: And that's what I'm trying
12 to understand. As arbitrary as the $200,000 number
13 was, perhaps the $100,000 was arbitrary in terms of
14 compensation of the victims. Because if I understood
15 it right, when you are putting sovereign immunity in,
16 the caps don't relate to compensation, they relate to
17 the ability of the sovereign to pay or be protected.
18 And you selected 200,000 and now you select a
19 million dollars, I'm just trying to understand why we
20 are putting these numbers in the Constitution and what
21 basis there is for these numbers other than they are
22 building upon statutory numbers that have already been
23 created some 15 years ago.
24 COMMISSIONER ZACK: Never arbitrary in the sense
25 that that is what is required to be paid on any claim.
67
1 If a claim as determined by a jury is a $10,000 claim
2 or is not compensable at all, then nothing is paid.
3 This was a cap. So it can never be -- you know, it's
4 not an automatic payment, I want to make clear about
5 that as well. So, it's not arbitrary, it really is a
6 backstop to protect the state from unlimited amounts
7 of claims.
8 COMMISSIONER BROCHIN: Precisely. And if it's a
9 backstop to protect the state from unlimited claims,
10 I'm curious as to how we came up with $200,000 or
11 $1 million as an appropriate backstop.
12 COMMISSIONER ZACK: That's easy, that is your
13 question.
14 COMMISSIONER BROCHIN: That is the question.
15 COMMISSIONER ZACK: What we tried to do, again,
16 is to provide a citizen in Florida today with the same
17 rights they had in '81, and the $200,000 played off of
18 the $100,000 figure using inflationary numbers since
19 that time. As far as the million dollar concern was
20 because originally it was unlimited. And as you know,
21 bad faith is a contractual -- comes from contractual
22 law. What it does is it avoids this scenario. And
23 again, for those in attendance yesterday, I apologize,
24 but it has to be as it relates to a specific scenario.
25 If you have, again, that quadriplegic I'd
68
1 identified earlier, in today's environment, and I can
2 tell you and I can present you cases where this does
3 occur, this is not just being made up, you can have a
4 quadriplegic and you can call the state adjuster, and
5 the state adjuster will say a couple of things.
6 Number one, I want you to take depositions of all
7 the people around the incident, quote, unquote, what
8 that means, you translate it into English is, We want
9 you to spend money off the cap.
10 So, it's going to cost you 10,000, $15,000 in
11 costs to take those depositions and do that discovery.
12 Then, we're not going to pay you for a year, two
13 years, maybe five years. You say, How can you do that
14 to me, what is my remedy? It says, You don't have any
15 remedy. If I have 200 cases, if I have 400 cases, I
16 don't care because no matter what happens, no matter
17 how irresponsibly I act, no matter how offensive I am
18 to you and callous to your needs to have medical care
19 at that moment, you can't do anything about it.
20 Now, you have a claim for a quadriplegic that's
21 worth $10 million over your lifetime, it is a young
22 teenage quadriplegic, and that's a low number based on
23 what they'll tell you. It will be paid, it's going to
24 be paid by somebody, it can be paid by a public
25 hospital, it can be paid by the taxpayers somewhere
69
1 along the way.
2 But that $10 million claim, if it's paid under
3 this proposal, it will be a $200,000 payment. Today
4 it would be a $100,000 payment less the cost of
5 discovery, 15,000, less the time value of money not
6 paid, say another $10,000 deduction, so you are down
7 to $75,000, it's not a $100,000 cap, it's 75,000.
8 But what happens on the eve of trial? The
9 adjuster calls you up and says, Mr. Zack, I know
10 you're a very busy lawyer and it's going to cost you
11 $25,000 to try this case, so if you give me another
12 $10,000 break, I'll pay you $65,000 and you're still
13 way ahead of the game. And there is nothing more you
14 can do about it. And people have had enough.
15 And we have -- let me finish. We have heard that
16 around the state, the people have had enough. So what
17 does bad faith do? Bad faith says that if that
18 adjuster doesn't pay that $200,000 under the new
19 proposal --
20 CHAIRMAN DOUGLASS: I hate to interrupt you, but
21 it's been suggested that we limit time to debate on
22 this because we debated it yesterday afternoon.
23 COMMISSIONER ZACK: I would be happy to do that,
24 but I need to finish up and I will finish up very
25 quickly, then a subsequent jury will decide whether
70
1 that adjuster acted in bad faith, and if it is an
2 insurance company and it's $10 million, they have to
3 pay the entire $10 million because they acted in bad
4 faith.
5 But because this is the state and the concerns of
6 Commissioner Wetherington and Commissioner Sundberg
7 and other concerns we have heard, we're going to limit
8 it to a million dollars, so there will be an $800,000,
9 in effect, maximum bad faith judgment. And I assure
10 you that with that, the adjuster or the claims persons
11 in this instance will not act in a way that is
12 arbitrary and capricious, and that's the protection
13 that the citizens of this state have. And if a
14 subsequent jury finds that they acted properly, there
15 is no bad faith.
16 COMMISSIONER BROCHIN: If I could just follow up
17 with one other question on a different matter,
18 Commissioner Zack. Do I understand it correctly that
19 if this amendment is defeated, and then we consider
20 Commissioner Lowndes' amendment that the effect of
21 Commissioner Lowndes' amendment would be to waive all
22 caps on sovereign immunity? I thought that's what I
23 heard Commissioner Connor say in his clarification,
24 but I want to know, and we all ought to know, is that
25 the issue in part that we'll be voting on when we
71
1 consider Commissioner Lowndes' amendment, that is all
2 caps on sovereign immunity?
3 COMMISSIONER ZACK: Again, I want to
4 differentiate between Commissioner Lowndes' proposal
5 and 59. There is a limitation in 59. As far as
6 Commissioner Lowndes' proposal, it is the same
7 limitation or lack of limitation that exists today in
8 the claims bill process. In the claims bill process
9 there is no limitation on a waiver of sovereign
10 immunity, none. And on the Lowndes bill, there is no
11 limitation of sovereign immunity.
12 COMMISSIONER BROCHIN: So, in effect, we would be
13 removing the caps from sovereign immunity if we adopt
14 it?
15 COMMISSIONER ZACK: Yes and no. You are not
16 doing anything other than what exists today. Today,
17 if there is a claims bill, there is no cap, if there
18 is a claims bill.
19 COMMISSIONER BROCHIN: Not to be argumentative,
20 but there is a distinct difference because with the
21 claims bill process it is still the legislative body
22 who is making the decision on the cap and whether the
23 amount of the cap should be extended. That's the same
24 Legislature that created the cap in the first place,
25 that's a significant distinction when you're taking it
72
1 and putting it into three arbitrators and telling
2 them, There are no caps and you can make a decision
3 notwithstanding the statutory caps of $100,000.
4 COMMISSIONER ZACK: Excuse me, that's a
5 completely different question than what you asked me.
6 The answer to your question now is yes, it is now
7 taken away from the Legislature and given to three
8 arbiters under the Lowndes amendment. However, it
9 doesn't change the fact that under the claims bill
10 there is no cap, and under the Lowndes' there is no
11 cap. You understand the distinction?
12 COMMISSIONER BROCHIN: Yes, I do.
13 COMMISSIONER ZACK: Okay.
14 COMMISSIONER BROCHIN: And I'd like, at the
15 appropriate time, to speak against this amendment.
16 CHAIRMAN DOUGLASS: All right now. I believe the
17 first one up was Commissioner Lowndes.
18 COMMISSIONER LOWNDES: I rise for a point of
19 clarification. I'm not sure what -- whether we're
20 discussing Mr. Zack's -- or Commissioner Zack's
21 substitute amendment or are we discussing my
22 amendment?
23 CHAIRMAN DOUGLASS: We are supposed to be
24 discussing his substitute amendment and yours is still
25 pending.
73
1 COMMISSIONER LOWNDES: I understand from my good
2 friend Commissioner Barkdull that a procedural motion
3 might be to divide the question. So because I believe
4 that, whether or not Commissioner Zack's substitute
5 amendment passes, that the amendment which we're
6 reconsidering, which was my amendment, could stand on
7 its own.
8 CHAIRMAN DOUGLASS: So you're making a motion to
9 divide the question which would separate your
10 amendment from the proposal -- the amendment that's
11 now on the floor; is that your purpose? Now, you have
12 an amendment on the table which you've offered; would
13 that be what you would offer to divide?
14 COMMISSIONER LOWNDES: Yes.
15 CHAIRMAN DOUGLASS: So what is before us then
16 would be a motion --
17 COMMISSIONER CONNOR: Point of order,
18 Mr. Chairman.
19 CHAIRMAN DOUGLASS: I would like some help on
20 this. Who's first ordered?
21 COMMISSIONER CONNOR: Point of order,
22 Mr. Chairman. I think the motion to divide the
23 question is inappropriate inasmuch as we're on the
24 Zack proposal, and by virtue of our previous vote, as
25 I understand it, that will be followed by a discussion
74
1 on the Lowndes amendment.
2 CHAIRMAN DOUGLASS: Let me say that on the table
3 it was just placed, and I think this may be what
4 precipitated it, because it hasn't been read yet, is
5 an amendment to Commissioner Zack's substitute
6 amendment by Commissioner Lowndes, which is what he's
7 trying to divide --
8 COMMISSIONER CONNOR: He may want to just --
9 CHAIRMAN DOUGLASS: That procedurally is a
10 correct motion.
11 COMMISSIONER CONNOR: He may prefer not to
12 proffer that amendment at this time so we can stay
13 focused on the Zack proposal.
14 CHAIRMAN DOUGLASS: Okay. So what you're saying
15 is if his substitute amendment is defeated or
16 whatever, he would have the opportunity then to bring
17 this forward on its own merits, is that what you're
18 saying? That would be true now, would it not?
19 COMMISSIONER LOWNDES: I will withdraw my motion
20 and anything I can do to keep this commission
21 focussed, I'd like to do.
22 CHAIRMAN DOUGLASS: |
