State Seal CRCLogo

Meeting Proceedings for November 13, 1997


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1                            STATE OF FLORIDA
                     CONSTITUTION REVISION COMMISSION
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                            COMMISSION MEETING
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		DATE:			November 13, 1997
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		TIME:			Commenced at 9:00 a.m.
11					Concluded at 3:30 p.m.

12		PLACE:			Senate Chamber
					The Capitol
13					Tallahassee, Florida

14		REPORTED BY:		KRISTEN L. BENTLEY
					JULIE L. DOHERTY, RPR
15					Court Reporter
					Division of Administrative Hearings
16					The DeSoto Building
					1230 Apalachee Parkway
17					Tallahassee, Florida

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1                             APPEARANCES

2    W. DEXTER DOUGLASS, CHAIRMAN

3    CARLOS ALFONSO
     CLARENCE E. ANTHONY
4    ANTONIO L. ARGIZ  (ABSENT)
     JUDGE THOMAS H. BARKDULL, JR.
5    MARTHA WALTERS BARNETT
     ROBERT M. BROCHIN
6    THE HONORABLE ROBERT A. BUTTERWORTH
     KEN CONNOR
7    CHRIS CORR  (ABSENT)
     SENATOR ANDER CRENSHAW
8    VALERIE EVANS
     MARILYN EVANS-JONES
9    BARBARA WILLIAMS FORD-COATES
     ELLEN CATSMAN FREIDIN
10   PAUL HAWKES
     WILLIAM CLAY HENDERSON
11   THE HONORABLE TONI JENNINGS
     THE HONORABLE GERALD KOGAN  (ABSENT)
12   DICK LANGLEY
     JOHN F. LOWNDES  (ABSENT)
13   STANLEY MARSHALL
     JACINTA MATHIS
14   JON LESTER MILLS
     FRANK MORSANI
15   ROBERT LOWRY NABORS
     CARLOS PLANAS
16   JUDITH BYRNE RILEY
     KATHERINE FERNANDEZ RUNDLE  (ABSENT FOR PM SESSION ONLY)
17   SENATOR JIM SCOTT
     H. T. SMITH
18   CHRIS T. SULLIVAN
     ALAN C. SUNDBERG
19   JAMES HAROLD THOMPSON
     PAUL WEST
20   JUDGE GERALD T. WETHERINGTON
     STEPHEN NEAL ZACK  (ABSENT)
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     PAT BARTON
22   IRA H. LEESFIELD  (ABSENT)
     LYRA BLIZZARD LOGAN  (ABSENT)
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1                             PROCEEDINGS

2             SECRETARY BLANTON:  Quorum call.  All commissioners

3        indicate your presence.  (Pause.)

4             (Quorum taken and recorded electronically.)

5             CHAIRMAN DOUGLASS:  Everybody take your seats.

6             SECRETARY BLANTON:  Quorum present.

7             CHAIRMAN DOUGLASS:  Father Tom Collins will give the

8        invocation this morning.  He's from the St. Thomas More

9        Co-Cathedral in Tallahassee.  And Father Collins.  If

10        everybody would please rise, including the folks in the

11        gallery.

12             FATHER COLLINS:  Let us pray.  Lord God, I want to

13        thank you and praise you and honor you for the great gift

14        of yours to us which is the state of Florida.  You have

15        given us a rich and fertile land unmatched in beauty and

16        you ask us to be responsible stewards with this gift.  You

17        have given us a people rich in cultural diversity and

18        talents.  And you ask us to honor the dignity that you

19        have given each member, regardless of social status or

20        state in life.  You give us a bright and hopeful future if

21        we use the gifts and talents you gave us to seek justice,

22        truth and prosperity for all our people.

23             And so, God, I ask you to bless this commission given

24        the task to be part of the planning for the future.  Give

25        them wisdom, understanding and knowledge.  Help them to


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1        help us, the voters, to make the right decisions for all

2        the people of this great state.  Make their work fruitful

3        and help their deliberations to be made in charity and

4        respect.

5             And finally, Lord, let your favor be upon all the

6        people of this great state.  Grant us prosperity and

7        virtuous lives and give success to the work of our hands,

8        I humbly ask this in your name.  Amen.

9             CHAIRMAN DOUGLASS:  Thank you, Father.  I'd like to

10        call on Commissioner Sullivan to please come forward and

11        lead us in the Pledge of Allegiance this morning.

12             (Pledge of Allegiance.)

13             CHAIRMAN DOUGLASS:  Good morning.  We've got to start

14        our real work today.  Before we do that, however, are

15        there any communications?

16             READING CLERK:  None on the desk, Mr. Chairman.

17             CHAIRMAN DOUGLASS:  Are there any introduction of

18        proposals?

19             READING CLERK:  None on the desk, Mr. Chairman.

20             CHAIRMAN DOUGLASS:  We will get to the reports of the

21        committee after the next matter.

22             Today is a very significant day here for one of the

23        people that is with us.  When she was four years old, she

24        started working for the Florida Senate.  That's based on

25        the number of years she claims to have worked for the


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1        Florida Senate.  And today is the anniversary of her first

2        year as being the secretary of the Florida Senate.  And

3        she was the first person of her gender, is that the way to

4        say that, to serve in that capacity.  And, of course,

5        she's our own secretary and does such a great job for us.

6             In honor of your one-year service, we have some

7        momentos to give to you.  We refrained from giving you

8        champagne because we knew you didn't drink, but we were

9        afraid you'd give it to Ed and we might lose him for a

10        week.  So I believe our General Counsel has the gift --

11        she's disappeared.  Is it all right if I allow her up

12        here, Commissioner Jennings?  Is that okay?

13             COMMISSIONER JENNINGS:  It's your rostrum today.

14             CHAIRMAN DOUGLASS:  Just today.

15             (Laughter.)

16             CHAIRMAN DOUGLASS:  We'd like to present this to you,

17        Fay.  And all of us are very proud of your accomplishments

18        and we are delighted to have you serving with us.  And I

19        remember you from '78 as a ten-year-old girl.  Would

20        everybody rise and give her a round of applause.

21             (Applause.)

22             (Off-the-record discussion.)

23             CHAIRMAN DOUGLASS:  Now that we've been able to do

24        that, I might tell you that Commissioner Sullivan, I was

25        having a chat with him.  One of the reasons I called on


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1        him this morning to lead the pledge, he's been on a grand

2        tour of the world.  He went to Australia where they have

3        no Outback Steakhouses.  That's correct; isn't it?

4             COMMISSIONER SULLIVAN:  That's correct.

5             CHAIRMAN DOUGLASS:  To determine if he was still in

6        the outback, and then from there to the Philippines and

7        Hawaii.  And you do have Outbacks in those venues, of

8        course.  And we're all very glad to have you back and glad

9        you made it safely.  And as a result of my acknowledging

10        him, he's promised me that I can promise my wife that we

11        won't have to wait on the porch in order to get in.  Thank

12        you for your fine work.  She won't have to wait, I'll have

13        to wait.

14             COMMISSIONER SULLIVAN:  You got it.

15             CHAIRMAN DOUGLASS:  Fair enough.

16             We'll proceed now with the business.  Commissioner

17        Barkdull, report, please, on the committee on rules and

18        administration.  Commissioner Barkdull.

19             COMMISSIONER BARKDULL:  Mr. Chairman, members of the

20        commission.  First, the air conditioner is not operative

21        in this room today.  And without objection, the members

22        will be able to take their coats off if they would like

23        to.

24             CHAIRMAN DOUGLASS:  That is the men.  The male

25        members.


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1             COMMISSIONER BARKDULL:  Well, the ladies can take

2        their jackets off, if they would like to.

3             CHAIRMAN DOUGLASS:  Jackets, yes, sir.  I really got

4        them going.

5             COMMISSIONER BARKDULL:  I can't keep up with you,

6        Mr. Chair.

7             Today's calendar is before you.  The rules committee

8        has set the special order as the proposed special order

9        was on the calendar of yesterday.  Overnight the staff has

10        put together the yellow package you find on your desk

11        which is the staff analysis of each of the proposals and

12        the order in which they will come up, for your

13        consideration.

14             We're scheduled to meet today until 4:00 p.m.  We

15        will take an hour off for lunch, 12:00 to 1:00, and you

16        will be on your own for lunch.  At 4:00 p.m. there's a

17        declaration of rights committee scheduled, at 5:00 p.m.

18        there is a rules committee scheduled, at this point.  That

19        might change in time later on depending on how the

20        calendar goes.  At the present time, we're scheduled to

21        meet tomorrow at 9:00 until the calendar is concluded.  If

22        it is concluded today, we probably won't meet tomorrow.

23             It came up before the rules committee yesterday the

24        policy that would be followed if a member desired to

25        withdraw a public proposal or had reached a point where


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1        they did not desire to sign a proposal after it was

2        drafted by the bill drafting committee.  It was the

3        consensus of the rules committee that the proper way to

4        handle this would be for the member to stand up and ask

5        for unanimous consent to withdraw that particular

6        proposal.

7             If it received unanimous consent, it would be

8        withdrawn.  If it does not receive unanimous consent, the

9        person or persons that object will then become sponsors of

10        that proposal.  So the burden is on each of the members

11        who have previously indicated that they wanted to move a

12        public proposal, and now decide they do not want to go

13        forward, to ask for consent, unanimous consent of the body

14        to withdraw that proposal.

15             CHAIRMAN DOUGLASS:  Does everybody understand that?

16        What we're going to do is the rules chairman is going to

17        announce the proposal, or I guess maybe we'll do it from

18        the rostrum, and then the person, we will identify the

19        person who sponsored it and wants to withdraw it.  We will

20        then ask if there are no objections, it will be withdrawn.

21        If there is an objection, then the person who objects or

22        the person, whoever desires, will become the sponsor and

23        will need to sign it and it will then be referred to

24        committee and proceed forward.

25             Is that clear?  Does anybody have any questions?  All


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1        right.

2             COMMISSIONER BARKDULL:  Mr. Chairman, I have one

3        motion that I would like to make on behalf of all the

4        committee chairmen.  I would like to move that the time

5        for consideration of all proposals that have been referred

6        to their committees be extended through the termination of

7        our session in December.

8             CHAIRMAN DOUGLASS:  Is that a motion?

9             COMMISSIONER BARKDULL:  Yes, sir.

10             CHAIRMAN DOUGLASS:  All right.  Any discussion on the

11        motion?  Maybe you'll explain why.

12             COMMISSIONER BARKDULL:  The reason is the committees

13        are reaching a deadline on their times and they have not

14        had an opportunity to fully discuss certain of these

15        proposals.  And some of the committee chairmen have asked

16        for extensions.

17             CHAIRMAN DOUGLASS:  Does that extend the time to move

18        for a rehearing or not, reconsideration?

19             COMMISSIONER BARKDULL:  I don't think that extends

20        the time for reconsideration.  This just extends the time

21        for initial consideration of the proposals.

22             CHAIRMAN DOUGLASS:  Very well.  All in favor, please

23        say aye.

24             (Verbal vote taken.)

25             CHAIRMAN DOUGLASS:  Motion carries.


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1             COMMISSIONER BARKDULL:  That concludes the report,

2        Mr. Chairman.

3             CHAIRMAN DOUGLASS:  The secretary advises me that

4        this packet is the revised rules and they are on your desk

5        for your use and consideration.  It includes the

6        Constitution and the index to the rules and the index to

7        the Constitution.  So it will be a very valuable tool for

8        your use.

9             One other announcement.  Susan Evans is our page

10        today.  Susan, would you stand up, please?  She's

11        available and you have a button on your desk that says

12        "page."  So when you want something, push the button and

13        Susan will respond.  She's acting as our page.

14             While we're on that, if you have children that are

15        nine to, or young people, nine to 14 or so, that you'd

16        like to have serve as pages at our sessions, speak to the

17        secretary in advance and we'd be delighted to have them.

18        In '78 I think many of the members had children that

19        served and you may have -- some of ours may have

20        grandchildren or whatever that might like to.  Keep that

21        in mind and you can speak to the secretary.  And that's a

22        good experience for these young people.

23             All right.  We'll proceed forward with the special

24        order calendar.  I guess I'll call on the chairman of the

25        judicial committee to present the first set of proposals.


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1             COMMISSIONER FREIDIN:  Mr. Chairman, I'm a little

2        unclear on when the appropriate time to do this would be,

3        but I'd like to withdraw a couple of proposals I filed.

4        Is this the appropriate time?

5             CHAIRMAN DOUGLASS:  It is the appropriate time.

6             COMMISSIONER FREIDIN:  I'd like to withdraw proposals

7        12 and 68, unless there's an objection.

8             CHAIRMAN DOUGLASS:  Do them one at time, please.

9        Proposal No. 12.  Which is what?

10             COMMISSIONER FREIDIN:  Access to the courts

11        regardless of age.

12             CHAIRMAN DOUGLASS:  All right.  We've heard the

13        motion of Commissioner Freidin to withdraw consideration

14        of the public proposal to have access, is that it?

15             COMMISSIONER FREIDIN:  Access to the courts

16        regardless of age.

17             CHAIRMAN DOUGLASS:  Any objection?  Commissioner

18        Langley.

19             COMMISSIONER LANGLEY:  Just a question of

20        Commissioner Freidin.  Is there another proposal that

21        covers the access for the over 25 and the under, for the

22        deceased parents?

23             COMMISSIONER FREIDIN:  There is but I was going to

24        withdraw that one, too.  The reason that I'm withdrawing

25        both of these at this time is I have asked some


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1        constitutional scholars to look at them.  They have raised

2        genuine concerns.  So I don't think that they are

3        constitutionally sound.  I don't think that they probably

4        achieve -- either one of them probably achieves what we're

5        trying to achieve in terms -- I mean, and I would welcome

6        some input from anybody because I certainly remain

7        committed to trying to fix that problem, but I don't think

8        that this is the way to do it.  And I'm being told that

9        this is not the way to do it by people I respect.  That's

10        why I'm moving to withdraw both of them.

11             CHAIRMAN DOUGLASS:  Let me point out, Commissioner

12        Langley, I think you pointed this out to me yesterday,

13        that any Commissioner can still introduce proposals up

14        until, what is it, November 25th.  So there is nothing to

15        prevent, even if this one is withdrawn, for a Commissioner

16        to submit one which accomplishes or addresses the same

17        subject.

18             Without objection, we will allow the withdrawal of

19        this particular proposal.  Is there any objection?  If

20        not, it's withdrawn.  And No. --

21             COMMISSIONER FREIDIN:  68.

22             CHAIRMAN DOUGLASS:  -- 68, covering the same subject?

23             COMMISSIONER FREIDIN:  Yes, sir.

24             CHAIRMAN DOUGLASS:  Without objection, we will allow

25        Commissioner Freidin to withdraw her sponsorship of that.


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1             COMMISSIONER FREIDIN:  Thank you.

2             CHAIRMAN DOUGLASS:  Is there any objection?  If not,

3        it's withdrawn.  Are there any others?  We had some

4        others.  Where are they?  We had some that people had

5        sponsored on the floor but they won't sign the jacket.

6        What happened to those?  These are public proposals, they

7        wouldn't be proposals that they offered.

8             (Off-the-record discussion.)

9             CHAIRMAN DOUGLASS:  We don't have a list, unless some

10        of you know who you are and want to move to withdraw.  I

11        know there are several proposals that people sponsored and

12        we furnished them with the proposal of the draft and they

13        said they didn't want to sign them.  And that would be

14        tantamount to withdrawing them.  It would be the same as

15        this.  I thought maybe we could cover them at this

16        meeting.

17             (Off-the-record discussion.)

18             CHAIRMAN DOUGLASS:  I guess we can get started now

19        and call on the chairman of the judicial committee to

20        present the first proposals on the special order.

21             Commissioner Wetherington.

22             COMMISSIONER WETHERINGTON:  Thank you, Mr. Chairman.

23        The first proposal for consideration is Proposal No. 62

24        which amends Article V, Section 8, to raise the mandatory

25        retirement age of justices and judges from age 70 to age


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1        72, with no opportunity for the justice or judge to serve

2        any remaining term of office.  If I remember correctly,

3        the vote in the committee on this was two to two.

4             The reason why I submitted the proposal I submitted

5        was because the Article V commission recommended this,

6        Justice Grimes recommended it, it makes sense.  Rather

7        than the present situation which is if you have served

8        less than half your term when you reach age 70, you have

9        to retire at age 70.  If you have served more than half

10        your term when you reach age 70, you can continue to serve

11        the balance of the term.  The purpose of the

12        recommendations is to have a uniform rule at age 72.  And

13        that's the reason for the proposal.

14             CHAIRMAN DOUGLASS:  All right.  As I understand -- if

15        I understand what you're saying is even though the

16        committee two-to-two'd on this and therefore it comes out

17        without approval, you support it.

18             COMMISSIONER WETHERINGTON:  I do.

19             CHAIRMAN DOUGLASS:  Would you like to tell us why you

20        support it and begin the debate on this subject or would

21        you like to combine it with the next one which deals with

22        the same subject?

23             COMMISSIONER WETHERINGTON:  The next proposal would

24        be to eliminate Commissioner Sundberg's proposal, which is

25        Proposal No. 9, which would eliminate the requirement of a


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1        mandatory retirement at age 70 for judges and justices.

2             CHAIRMAN DOUGLASS:  Was that one 2/2 also?

3             COMMISSIONER WETHERINGTON:  This was defeated.

4             CHAIRMAN DOUGLASS:  Let's move with the first one

5        then and you can present that and then Commissioner

6        Sundberg can speak to the other proposal when you finish,

7        when we finish with this one.

8             COMMISSIONER WETHERINGTON:  On the age 72, it's not a

9        major matter, but it obviously makes a great deal of sense

10        rather than having the system we have now where

11        arbitrarily some people have to leave at age 70, others

12        can serve to perhaps as much as age 73.  And to put

13        everybody on an equal plane, you just have one date

14        everybody leaves on.  That was the reasoning behind the

15        Article V commission's recommendation.

16             Justice Grimes appeared before our committee and he

17        agreed with this.  He did not agree with eliminating the

18        mandatory retirement, but he did agree with this

19        particular provision.  And for those reasons, that's why

20        I've submitted this proposal.

21             CHAIRMAN DOUGLASS:  Commissioner Connor.

22             COMMISSIONER CONNOR:  Mr. Chairman, I'd like to ask a

23        question.

24             CHAIRMAN DOUGLASS:  Do you yield to Commissioner

25        Connor?


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1             COMMISSIONER WETHERINGTON:  Yes.

2             COMMISSIONER CONNOR:  Judge Wetherington, are there

3        any other provisions in the Constitution, or indeed in

4        statutory law in Florida, that either mandate the

5        retirement of a public employee or official at a given age

6        or place any other limitation on their service based on

7        age?  On the upper end of the scale as opposed to the

8        lower.

9             COMMISSIONER WETHERINGTON:  I'm not aware of any.

10             CHAIRMAN DOUGLASS:  I think there may be some

11        statutory requirements, for example, in the university

12        system, I believe, Commissioner Marshall, but they can be

13        waived; is that not correct?  Would you respond to that,

14        please, Commissioner Marshall?  I know you are familiar

15        with this in the university system.  Commissioner

16        Marshall.

17             COMMISSIONER MARSHALL:  Yes, Mr. Chairman.  There is

18        such a requirement, it's been under review in recent

19        years.  I think you're correct when you say the

20        restriction is there at age 70, I believe, but can be

21        waived for fairly casual reasons.

22             CHAIRMAN DOUGLASS:  That's the only one I'm aware of.

23        There may be others in the statutes.  Some of you members

24        of the Legislature may know.  Does that answer your

25        question?  Is there any other further discussion in


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1        opposition or in favor?  Commissioner Brochin.

2             COMMISSIONER BROCHIN:  I just had a question.

3             CHAIRMAN DOUGLASS:  Do you yield to Commissioner

4        Brochin?

5             COMMISSIONER WETHERINGTON:  Yes.

6             COMMISSIONER BROCHIN:  So I'm following along, is the

7        proposal we're considering No. 62 in the package that we

8        got yesterday?  Is that the actual language that we're

9        considering in terms of amending the Constitution?

10             COMMISSIONER WETHERINGTON:  Yes.

11             CHAIRMAN DOUGLASS:  So the committee hasn't changed

12        any of the language on the proposal?

13             COMMISSIONER WETHERINGTON:  No.

14             CHAIRMAN DOUGLASS:  Commissioner Sundberg, for what

15        purpose do you rise, sir?

16             COMMISSIONER SUNDBERG:  Mr. Chairman, just --

17             CHAIRMAN DOUGLASS:  First of all, do you yield to

18        Commissioner Sundberg?

19             COMMISSIONER WETHERINGTON:  I will.

20             COMMISSIONER SUNDBERG:  Commissioner Wetherington, I

21        take it you're seriously --

22             CHAIRMAN DOUGLASS:  You're off.

23             COMMISSIONER SUNDBERG:  I've been accused of that

24        before.

25             CHAIRMAN DOUGLASS:  I mean your sound is off.  You've


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1        never been accused of that before.

2             COMMISSIONER SUNDBERG:  Thank you.  If this provision

3        is adopted, which you urge, it will then preclude the next

4        proposal, will it not; that is, that there be no age

5        limitation on the service of a judge or justice in this

6        state; is that correct?

7             COMMISSIONER WETHERINGTON:  That's correct.

8             CHAIRMAN DOUGLASS:  Commissioner Langley, you were

9        next.  For what purpose do you rise?

10             COMMISSIONER LANGLEY:  You're going to hate me for

11        this.

12             CHAIRMAN DOUGLASS:  Do you have a question?

13             COMMISSIONER LANGLEY:  A point of order.  I have

14        heard said by you, Mr. Chairman, also by the rules

15        chairman, that it takes 19 votes for a measure to survive

16        today.  And I respectfully request you to consider that

17        that's not what the rule says.  The rule says a majority

18        of the commission.  And the definitions under Rule 9.4

19        says that a majority of the commission is a majority of

20        those voting.  And therefore if there were only 27 here

21        today, it would only take 14.

22             CHAIRMAN DOUGLASS:  I'm not sure we're quite to the

23        point where we need to consider that.

24             COMMISSIONER LANGLEY:  We're about to vote on

25        something.


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1             CHAIRMAN DOUGLASS:  We still have people that want to

2        discuss this issue then we'll take it up.  Commissioner

3        Barkdull is going to answer that at the time, not now,

4        soon as the other people -- we'll stay in order and we

5        will continue with Commissioner Wetherington who has the

6        floor.  Anybody that wants him to yield for a question,

7        this is the time to do it.  Commissioner Smith.

8             COMMISSIONER SMITH:  Thank you, Mr. Chairman.  First

9        of all, Commissioner Wetherington, will you explain,

10        especially for the nonlawyers, what it means when you said

11        that some people have to retire at 70 and others have to

12        retire at 72 and by now coming forward with a proposal

13        that everybody has to leave at 72 it levels the playing

14        field, that's No. 1.

15             And question No. 2, is this the same proposal in

16        substance that was rejected by the voters in the last

17        election after the Article V commission?

18             CHAIRMAN DOUGLASS:  I can answer that.  It didn't

19        pass the Legislature.

20             COMMISSIONER WETHERINGTON:  On the first point, the

21        way it works now, if you serve less than half your term

22        when you reach age 70, you must retire.  If you're a day

23        over half your term, you can then serve out the balance of

24        your, the balance of your term.  So theoretically you can

25        serve out close to three years.


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1             Let me add this point, which I think is significant.

2        This is not a major -- this is not a major problem.  The

3        idea is that if we end up with, for example, a judiciary

4        proposal that combines a number of issues that are all

5        desirable but are not necessarily earthshaking, this is

6        the kind of proposal that I would envision would be

7        included in that kind of an overall proposal including a

8        number of matters that are desirable, beneficial, but

9        would not meet a very, very high-needs test in terms of a

10        constitutional amendment.

11             And it is being submitted with that in mind.  If we

12        can do that combination in the right way without

13        disturbing anything, it would be a desirable thing to do

14        because I think it makes sense, but it would not meet, in

15        my opinion, a high-needs test.

16             CHAIRMAN DOUGLASS:  Commissioner West, for what

17        purpose do you rise?

18             COMMISSIONER WEST:  Just to ask Judge Wetherington a

19        question.

20             CHAIRMAN DOUGLASS:  Do you yield, Judge Wetherington?

21             COMMISSIONER WETHERINGTON:  I do.

22             CHAIRMAN DOUGLASS:  Commissioner Wetherington, he's

23        no longer a judge, we've removed him.

24             COMMISSIONER WEST:  Thank you very much,

25        Mr. Chairman.


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1             Did you have testimony in committee meeting from the

2        justice that spoke, his name was --

3             COMMISSIONER WETHERINGTON:  Grimes.

4             COMMISSIONER WEST:  Justice Grimes.  Did you have

5        testimony from him on his position on Commissioner

6        Sundberg's proposal?

7             COMMISSIONER WETHERINGTON:  Yes.  He's against

8        eliminating mandatory retirement.

9             COMMISSIONER WEST:  Why?

10             COMMISSIONER WETHERINGTON:  His feeling was --

11             CHAIRMAN DOUGLASS:  I'd like to hold this until the

12        next -- that is the next issue that will arise is the

13        issue of no retirement -- well, I think it's pertinent.

14        Go ahead and answer his question.

15             COMMISSIONER WETHERINGTON:  His feeling is although

16        he doesn't want to leave now, he'd like to stay on, his

17        feeling was whereas a lot of people can stay on, there are

18        instances of people that do have problems and that this

19        having a mandatory retirement overall, in his opinion, and

20        I think in the opinion of the Article V commission,

21        eliminates some problems that might otherwise arise.

22             It's difficult to remove people.  The Judicial

23        Qualifications Commission has difficulty in removing

24        people simply on the grounds that maybe they're not up to

25        doing their job anymore.  And that therefore, overall,


 										22

1        it's probably a good rule.  And although it applies to him

2        and he's leaving and he would rather stay, he favored the

3        rule.  That was one of the things that was persuasive to

4        me.

5             CHAIRMAN DOUGLASS:  All right.  Any further questions

6        or debate?

7             Commissioner Barnett, for what purpose do you rise?

8             COMMISSIONER BARNETT:  A question really of the

9        sponsor and/or the Chair.  I just want to clarify a

10        comment made earlier when Commissioner Sundberg asked

11        whether consideration of this proposal would preclude

12        consideration of his proposal.  The answer was yes and

13        what I thought --

14             CHAIRMAN DOUGLASS:  The Chair didn't rule, we'll

15        still consider it.

16             COMMISSIONER BARNETT:  I want to make sure that what

17        the real implications of that was that the proposals are

18        inconsistent, but that we will debate and consider

19        removing mandatory retirement.

20             CHAIRMAN DOUGLASS:  That's correct.

21             COMMISSIONER BARNETT:  And it would be possible, at

22        least at this stage, for both to go forward with a

23        positive vote.

24             CHAIRMAN DOUGLASS:  It would be possible, but not

25        likely.


 										23

1             COMMISSIONER BARNETT:  But it would be possible.

2             CHAIRMAN DOUGLASS:  That is correct.

3             Commissioner Connor.

4             COMMISSIONER CONNOR:  Mr. Chairman, I rise to speak

5        in opposition to the proposal.

6             CHAIRMAN DOUGLASS:  Very well.  Hold it just a

7        moment.  Do you have anything, Commissioner Barkdull?

8             COMMISSIONER BARKDULL:  I speak in favor of the

9        proposition.

10             CHAIRMAN DOUGLASS:  Favor?  All right.  Commissioner

11        Connor, if you'll wait until -- Commissioner Barkdull,

12        you're next.

13             Incidentally, my understanding, Commissioner Jennings

14        and Commissioner Scott, this proposal came from the

15        Article V revision group and it passed the Senate and

16        received a 3/5 vote and it did not pass the House.  And

17        therefore it was not on the ballot and it was opposed by

18        the Black Caucus, Commissioner Smith, it's my

19        recollection.  And one of the members of that was on the

20        Article V commission and she was successful in keeping it

21        from receiving the 3/5 vote.  That's why it was never on

22        the ballot.  The people never got to vote on it.

23             Commissioner Barkdull.

24             COMMISSIONER BARKDULL:  I speak in favor of this

25        proposal as one affected by the present Constitution, I


 										24

1        think, and also as one who served for a number of years on

2        the Judicial Qualifications Commission and also as one who

3        served with certain individuals that were exempt from the

4        70 provision.

5             As many of you know, I have served on previous

6        commissions and I also served on the Article V task force.

7        I have never thought strongly that this should be changed.

8        I've had recently people ask me about it, would I support

9        the change, and I said, no.  The reason I said, no, is I

10        knew what it was when I took the job, that the term

11        expired in accordance with the terms of the Constitution

12        and that I would be gone.  And I think, on balance, it is

13        a very good provision and I would urge that you support

14        the proposition as advanced by Commissioner Wetherington.

15             CHAIRMAN DOUGLASS:  Anyone else as a proponent?

16        Commissioner Connor is an opponent.

17             COMMISSIONER CONNOR:  Mr. Chairman, I rise in

18        opposition to the proposal because I have a general

19        reluctance to endorse age-based caps for service.  I have

20        talked with several judges about this proposal, all of

21        whom have favored that because they frankly indicated that

22        they found in a number of instances, not many instances,

23        that there were some judges when they reached a given age

24        lacked the energy, and drive and capacity to manage their

25        caseloads.


 										25

1             And that it was uncomfortable and difficult for them

2        to confront those judges about that and to raise issues

3        about their qualifications.  And that is certainly

4        understandable.

5             The flip side of that, I believe, is that when we

6        adopt an age-based limit of service that in effect we are

7        affirming, in a very real sense, a form of age

8        discrimination, indicating there is a presumption that

9        when a person reaches a given age, to wit in this instance

10        72, that they lack the capacity to go forward and carry

11        out the execution of their duties.

12             I think that's a wrongheaded approach and I don't

13        think that we should adopt such a wrongheaded approach to

14        relieve others in positions of responsibility who have a

15        duty to do the difficult task of grasping the medal and

16        confronting someone who is incapable of service or who

17        doesn't measure up or whatever, and relieving them of that

18        rather difficult political responsibility.

19             So I think we substitute a much greater problem by

20        adopting any form of age-based or age-capped service.  And

21        I will object -- I object to it, will vote against it and

22        will vote to support Commissioner Sundberg's proposal.

23             CHAIRMAN DOUGLASS:  Any further debate or discussion?

24        Anybody else in opposition or now anyone in rebuttal?

25             All right.  Before we vote, Commissioner Langley's


 										26

1        point of order, Commissioner Barkdull, on whether or not

2        it takes a majority of those present and voting or whether

3        it takes 19 votes, regardless.

4             COMMISSIONER BARKDULL:  I've been advised by people

5        with great wisdom that it takes a majority of those

6        present.

7             CHAIRMAN DOUGLASS:  Anybody want to address that

8        before the Chair rules?  Commissioner Scott.

9             COMMISSIONER SCOTT:  I agree with him and I think

10        particularly at this stage when we still have the 22 vote

11        requirement for the final passage.  And also I'm kind of

12        worried about reconsideration, would that take 19 votes.

13        So I think it's a majority for everything except where

14        specifically provided.

15             CHAIRMAN DOUGLASS:  I was one of those with great

16        wisdom that he referred to.  The Chair is going to rule

17        that it takes a majority of those present and voting, as

18        long as we have a quorum.  But I want to remind you that

19        that's subject to appeal, the ruling of the Chair.  So if

20        anybody wants to appeal it, now is your shot.

21             (No response.)

22             CHAIRMAN DOUGLASS:  Very good.  Commissioner Langley,

23        thank you for bringing that to our attention.  We can now

24        proceed with great vigor.  Is there any further discussion

25        on the first proposal?  If not, we'll proceed to vote.


 										27

1             Read it, we didn't do this and I think we need to

2        have it read.  You can leave your votes up there.

3             READING CLERK:  Proposal 62, proposal to revise

4        Article V, Section 8, Florida Constitution, raising the

5        mandatory retirement age for justices and judges.

6             CHAIRMAN DOUGLASS:  Has everybody voted?  Lock the

7        machine.

8             (Vote taken and recorded electronically.)

9             READING CLERK:  Fourteen yeas and 13 nays,

10        Mr. Chairman.

11             CHAIRMAN DOUGLASS:  By the barest of margins, it

12        stays alive.  Commissioner Langley, shake hands with

13        Commissioner Wetherington, you've saved the day.  This is

14        one we probably may want to reconsider that close vote.

15             (Off-the-record discussion.)

16             CHAIRMAN DOUGLASS:  We'll stand in informal recess,

17        but don't open the chamber.  We'll take a five-minute

18        break while they are trying to repair the printer.

19             (Brief recess.)

20             CHAIRMAN DOUGLASS:  Okay.  Come to order.  We now

21        have everything in working order.  If everybody will take

22        their seats.  Would you check back there to make sure they

23        know we're meeting?

24             SECRETARY BLANTON:  All members indicate your

25        presence.  Quorum call.  All members indicate your


 										28

1        presence.

2             CHAIRMAN DOUGLASS:  Commissioner Scott, indicate your

3        presence please.  Commissioner Freidin is here.  She needs

4        to indicate her presence.  Commissioner Connor, he's here.

5        Here he comes.  Okay.  Thirty-two members present.  We'll

6        now proceed.

7             Commissioner Wetherington, you yielded to

8        Commissioner Sundberg to present the next proposal.

9        Before you do, I ask the clerk to read the proposal.

10             READING CLERK:  Proposal 9, proposal to revise

11        Article V, Section 8, Florida Constitution, repealing the

12        provision that stipulates a maximum age beyond which

13        individuals may not serve as justices or judges.

14             CHAIRMAN DOUGLASS:  Commissioner Sundberg, you're

15        recognized.

16             COMMISSIONER SUNDBERG:  Thank you, Mr. Chairman.  I

17        rise to speak in favor of this proposal, which as has been

18        indicated, plain and simply would eliminate the provision

19        for constitutional senility when it comes to judges.  The

20        argument is made that we really will not lose the services

21        of these judges because they always can continue to serve

22        as senior judges and it provides the check that the chief

23        judge or the chief justice who must pass on their

24        qualifications can make a determination if they are, in

25        fact, qualified to serve.


 										29

1             The problem with that is that when a judge goes on

2        senior status, in order to qualify to serve inactive

3        service, that judge has to accept a salary or actually a

4        payment of, I'm not sure, it's probably $200 a day.  Judge

5        Wetherington, is that accurate?

6             COMMISSIONER WETHERINGTON:  250 a day.

7             COMMISSIONER SUNDBERG:  250 a day.  That, of course,

8        is far less than what the judge or justice was receiving

9        in active service.  So that requires that in order for a

10        senior judge to continue to serve as a resource for the

11        state court system, he or she has to make the sacrifice of

12        accepting less than the full salary or the compensation he

13        or she would have received in active service.

14             Furthermore, any one of those individuals, it's been

15        my experience, is quite able to serve as a mediator or

16        arbitrator and is in fairly great demand amongst parties

17        for that service, at which they can receive as much as

18        $250 an hour for that service.  It calls for, in my

19        judgment, quite a sacrifice to ask these senior status

20        people to continue to serve the state court system.

21             The other thing that I think makes it -- and the

22        argument is we've all seen individuals who have lost their

23        intellectual prowess at a certain point in time and age

24        and hence they don't bring the kind of vitality to the job

25        that they should.  I will grant you that that does pose a


 										30

1        problem.

2             However, and I must defer to Commissioner Barkdull

3        who served from the beginning for many, many years on the

4        JQC.  But there are the mechanics of the JQC for judges

5        who suffer from a mental or emotional disability that

6        makes them unfit to serve in office and they can be

7        removed in those instances.  I grant you it's not an easy

8        task, but I can remember an occasion, one judge that was

9        removed simply because he couldn't make a decision.  He

10        broke out in a rash every time he was called upon to make

11        a decision.  And I think Commissioner Barkdull recalls

12        that case.

13             It is -- and unlike the federal system where those

14        judges are appointed for life, there is not a comparable

15        system to check those judges who have reached that point

16        in time where they should not continue to serve.

17             In response to Commissioner Barkdull's statement that

18        he knew what the deal was when he ran for the office or

19        undertook the office, that isn't the point at all.  I

20        don't urge this proposal on you for the benefit of the

21        judge.  I urge this proposal on you for the benefit of the

22        public.

23             I had the great good opportunity to serve on a

24        collegial court with some people who were absolutely

25        outstanding legal scholars and yet at a time when their


 										31

1        faculties were fully in force and continue today to be

2        fully in force, had to leave the bench.  Justice Jimmy

3        Adkins was one of the finest legal minds I've ever seen in

4        my life.  And until the day he died, long after he had

5        reached age 70, he continued to have that kind of

6        facility.

7             Justice Ray Ehrlich, whom you all know or should if

8        you don't, today has those faculties that would permit him

9        to serve well, but he was required to leave the bench.

10        And most recently of course, Justice Grimes is being

11        required to leave.  Steve Grimes' faculties are as acute

12        today as they ever have been.

13             So I urge you at a time when it seems to me in almost

14        every other sector of our society we recognize that age is

15        not necessarily disqualifying, that we extend that to this

16        situation which is, as was I think borne out by

17        Commissioner Connor's question, in almost no other that I

18        can think of, a conditional provision in the university

19        system that can be waived, do we say that it is

20        disqualifying.

21             We have the experience of the federal system, which

22        is a far different problem from the standpoint of being

23        able to relieve those judges.  They are appointed for

24        life.  At least judges here are only going to be in that

25        position until an election period arrives.  There is that


 										32

1        check.  And there is a much more significant check by our

2        Judicial Qualifications Commission than they have in the

3        federal system.

4             For all of those reasons, I urge you to support this

5        proposal and let's not lose the services of the Steve

6        Grimes, and the Ray Ehrlichs and the Jimmy Adkins and

7        many, many more that I have not had personal experience

8        with that I'm sure are out there in the state court

9        system.  Thank you, Mr. Chairman.

10             CHAIRMAN DOUGLASS:  Any proponents or questions

11        directed to the sponsor?

12             Commissioner Brochin.

13             COMMISSIONER BROCHIN:  Yes, I have a question.

14             CHAIRMAN DOUGLASS:  Do you yield?

15             COMMISSIONER SUNDBERG:  I yield.

16             COMMISSIONER BROCHIN:  Did the committee consider the

17        historical creation of this amendment that capped it at 70

18        years?  As I understand it was passed in 1985, or is that

19        not correct?  My question was did the committee consider

20        how it came about that we decided 70 was the appropriate

21        age and therefore the reason for --

22             CHAIRMAN DOUGLASS:  Do you yield to Commissioner

23        Barkdull who was present in 1904?

24             COMMISSIONER SUNDBERG:  Gladly I'd yield to

25        Commissioner Barkdull.


 										33

1             COMMISSIONER BARKDULL:  Commissioner Brochin, in

2        answer to your question, in the reorganization of the

3        appellate court system, before the Legislature in 1955,

4        part of the proposal in that joint resolution that there

5        was a mandatory retirement age at 70.

6             I believe it was in 1963, this is why this appears in

7        the disciplinary section and not somewhere else in Article

8        V, when the Judicial Qualifications Commission was up for

9        consideration, there was a situation where the judge and

10        former justice and former Governor Caldwell was allowed to

11        be able serve out his term and not have to leave when he

12        was 70.  And it was figured out when he reached 70 he was

13        to be over halfway into his term and that's the way that

14        got into the Constitution.

15             The 70 business did not come in in '85, it's been in

16        existence since 1955.  It originally provided a

17        grandfather clause for all those judges and justices that

18        were serving on June 30th, 1957.  It was changed, I

19        believe, when we adopted Article V in 1972 and moved one

20        day to July 1, 1957.  The reason for that was that on

21        July 1, 1957 the District Courts of Appeal came into being

22        and there were also some other statutory courts at the

23        trial level that were having additional judges added to

24        them.

25             So between June 30th and July 1 there was a


 										34

1        substantial difference in the number of judiciary.  But

2        that's been in existence some 40-odd years now.

3             COMMISSIONER SUNDBERG:  If I may respond.  None of

4        that information was brought to the attention of the

5        committee during our deliberations.

6             CHAIRMAN DOUGLASS:  I understand the answer in a one

7        liner is it's been in the Constitution for 40-odd years;

8        is that correct, in one form or another, 70 retirement

9        mandatory?

10             COMMISSIONER SUNDBERG:  But as I understood the

11        question by Commissioner Brochin was whether or not the

12        committee considered that historical information and the

13        answer is no.

14             CHAIRMAN DOUGLASS:  Commissioner Barnett, for what

15        purpose do you rise?

16             COMMISSIONER BARNETT:  To speak in opposition to the

17        proposal.

18             CHAIRMAN DOUGLASS:  First, are there any

19        commissioners who wish to speak in favor of the proposal?

20             (No response.)

21             CHAIRMAN DOUGLASS:  All right.  Commissioner Barnett.

22             COMMISSIONER BARNETT:  Thank you.  I hesitated to do

23        this, but I decided that I think there are some issues

24        about this that need to be discussed.

25             First, I had the great privilege and honor of having


 										35

1        former Justice Ray Ehrlich as my law partner.  And while

2        he delights in telling people that until Steve Grimes

3        retires this month, he's the only person in the state

4        who's been declared constitutionally senile, I can tell

5        you he is not, that he is one of our most energetic and

6        productive lawyers in our law firm.  He really sets a

7        model for some of the younger lawyers in the firm.

8             Perhaps just having the opportunity to have someone

9        like Ray Ehrlich come back into the private bar is enough

10        for me to support some type of mandatory retirement for

11        judges because but for this provision I suspect he as well

12        as Steve Grimes and other great justices would still be on

13        the court.

14             But I don't believe that is the issue and I don't

15        believe that it is the question necessarily of the

16        senility or ability of the justice or a judge to continue

17        to serve.  I think the JQC could in fact handle those

18        issues, although I suspect that if we had the statistics

19        we would find that over the years there have been very,

20        very few situations where a judge has actually been

21        removed.  And normally I think that would be for

22        misconduct as opposed to omission to act or failure to act

23        with appropriate energy, although maybe someone can

24        provide that information.  I don't think that is the

25        issue.


 										36

1             For me, the issue is the opportunity in our judiciary

2        to continue to have new faces, new people participate in

3        the judicial branch of government.  We have a situation

4        right now in the state of Florida, like today, yesterday

5        and tomorrow occurring that to me illustrates why this is

6        important.  And that is, with the vacancy created in the

7        Florida Supreme Court with the retirement of Justice

8        Grimes.

9             Most of you know, probably know, that at this point

10        in time there are no women on the Florida Supreme Court,

11        although a substantial number of the members of the Bar

12        are women and certainly a substantial number of the

13        population of this state are women.  There is only one

14        African-American on the Florida Supreme Court although,

15        again, there are many, many lawyers in this state who are

16        African-American and there are many, many citizens of this

17        state who are African-American.

18             I believe that our court system needs to reflect the

19        people that it serves appropriately and that the time has

20        come for us to have a more diverse court.  And indeed the

21        five people who have presented to the governor, of those

22        five there are four women.  And I think there is a

23        substantial possibility that we will have a justice on the

24        court who is a woman, a very qualified woman.

25             It is the opportunity that mandatory retirement


 										37

1        presents to bring in fresh ideas, fresh faces and new

2        enthusiasm to the judicial branch that compels me to

3        oppose this proposal, although I don't like to be -- I

4        don't want to be characterized in any way as being for

5        discrimination.  And to the degree this is age

6        discrimination, I may have the same reaction Commissioner

7        Connor does.  But I believe there are many instances in

8        our statutes where we make distinctions based on age and

9        it is not necessarily discrimination.

10             So I come down in favor of continuing the current

11        status of the Constitution.

12             CHAIRMAN DOUGLASS:  Commissioner -- do you have a

13        question, Commissioner Connor, or are you --

14             COMMISSIONER CONNOR:  A rejoinder.

15             CHAIRMAN DOUGLASS:  You'll have to wait.  I believe

16        you want to speak in opposition, Commissioner Smith?

17             COMMISSIONER SMITH:  That's correct.

18             CHAIRMAN DOUGLASS:  You're recognized.

19             COMMISSIONER SMITH:  Thank you, Mr. Chairman.

20        Although it's extremely difficult for me to oppose any

21        idea that could, a proposal that could get both Justice

22        Sundberg and my dear friend Mr. Connor to agree to, I must

23        respectfully object.

24             I object not for the great justices Ehrlich and

25        Adkins and others who have served so well, I object


 										38

1        because of what the people of the state of Florida have

2        said to us by their actions and by their testimony.

3        Clearly the trend throughout this state is not to extend

4        the service of public servants, but to limit the terms of

5        public servants.  As we've seen with Eight is Enough,

6        whether that's right or wrong, the people have a right to

7        speak.  They have a right, as Judge Wetherington so

8        eloquently said yesterday, they have the right to make bad

9        decisions.  It is their government.

10             With regard to this issue, we have heard at every

11        stop along the way people's frustration with our legal

12        system, their frustration with what they perceive as the

13        arrogance of the Bar to tell them what is best for them in

14        their court system.  I think this proposal sends a bad

15        message.  That while you're telling us even to limit the

16        terms of judges, while you're telling us to give new

17        people an opportunity to serve, as my friend Ms. Barnett

18        has so eloquently stated, that you folks know better.

19             And so in the face of what we are saying, you believe

20        that you're going to extend the terms.  Let me tell you

21        something, there are -- as brilliant as he is, there are

22        other young Justice Sundbergs out there.  As brilliant as

23        Ehrlich is, there are other young brilliant Ehrlichs out

24        there.  Give them a chance.

25             Thank you.


 										39

1             CHAIRMAN DOUGLASS:  Any other speakers in opposition?

2             All right.  For those in favor, Commissioner Connor.

3             COMMISSIONER CONNOR:  Mr. Chairman, I believe

4        Commissioner Barnett and Commissioner Smith made a

5        compelling case, by virtue of their very arguments for

6        term limits for judges, which I support.  What I oppose is

7        the notion that we should conclude that one is somehow

8        legally incapacitated by virtue of age and unable to carry

9        out the duties of office.

10             We live in a period of marvelous health care, of

11        increased life expectancies, in a state in which the

12        population who is over age 65 exceeds that of any other

13        state in the union and our population of those who exceed

14        80 is growing as well.

15             I think it's a mistake and I think it's the wrong

16        message to send to say that we believe that older folks in

17        our society are legally incapacitated to carry out the

18        duties of public office, particularly as it relates to the

19        judiciary.  I would be much more in favor of a term limit.

20        I know it's not a popular opinion, but please don't cut me

21        off, Mr. Chairman --

22             CHAIRMAN DOUGLASS:  It's the mikes, I would not cut

23        you off.

24             COMMISSIONER CONNOR:  -- I would be much more

25        supportive of a term limits proposal which would infuse


 										40

1        fresh faces, new blood, new energy, new creative ideas, et

2        cetera, than I would to say that if you reach 70 years

3        old, or you reach 72 years old you are presumptively,

4        constitutionally senile and incapable of carrying out your

5        duties.

6             So in order to accomplish Ms. Barnett's goal and to

7        further debate, I'll support a proposal that would provide

8        a limitation of terms for judges to conform to those of

9        other public servants in the state.

10             CHAIRMAN DOUGLASS:  I might caution you, you must

11        ultimately do that by the 25th of this month, unless you

12        want to make an amendment.

13             Any further debate?  Commissioner Sundberg.

14             COMMISSIONER SUNDBERG:  May I close?

15             CHAIRMAN DOUGLASS:  Yes.

16             COMMISSIONER SUNDBERG:  In response to Commissioner

17        Barnett's premise I'm not sure there is anything -- that

18        there is particular merit in new faces in the institution

19        of the judiciary.

20             Just anecdotally, I can tell you that when I went on

21        the Supreme Court there were four members of the court,

22        including me, who were under the age of 44 years old.  We

23        profited greatly by the presence of Jimmy Adkins on that

24        court because of the maturity he brought to it that we had

25        no idea about.  So, you know, turnover for the sake of


 										41

1        turnover, make space for, is not a very compelling

2        argument to me.

3             And the two instances you raise, and I'm not sure

4        you're not suggesting that we discriminate against one

5        group in favor of another group if we're to make way for

6        women and African-Americans and Latins by virtue of

7        shoving other people out the other end.

8             And I would suggest to you that the only woman who

9        has ever served on the Florida Supreme Court did not

10        undertake that service because of someone's having to

11        leave because of age.  She filled a space that was vacated

12        by James Alderman, who was about 50 years old when he left

13        the court.

14             The second African-American, and the one who serves

15        on the court today, took my position on the court and I

16        was not then and I'm even not now constitutionally senile.

17             CHAIRMAN DOUGLASS:  You don't want a ruling from the

18        Chair on that, do you?

19             COMMISSIONER SUNDBERG:  I said constitutionally.  I'm

20        talking about de jure, not de facto.  So those arguments

21        are not compelling and should not be compelling to us.

22             In addressing my good friend Commissioner Smith's

23        remarks, and I know they are deeply felt, first of all,

24        this is not a term limits issue.  It has nothing to do

25        with term limits.  If a person were elected at age 68 or


 										42

1        appointed at age 68, he would still have to leave or she

2        would still have to leave at age 70 under the current

3        Constitution.  So it's not a term limits issue.

4             And whether or not the people have the right to

5        speak, sure they have the right to speak.  But they might

6        want to distinguish between the skills and talents that

7        are required to serve in the judiciary as opposed to the

8        skills and talents to serve in the executive or

9        legislative branch of government.  So if you want to let

10        the people speak, put this on the ballot and let them

11        speak to it.  I thank you very much, Mr. Chairman.

12             CHAIRMAN DOUGLASS:  All right.  Proceed to vote on

13        Proposal 9.

14             (Vote taken and recorded electronically.)

15             READING CLERK:  10 yeas and 21 nays, Mr. Chairman.

16             CHAIRMAN DOUGLASS:  The proposal fails.  Now we go to

17        Proposal 67.  I ask the clerk to read the title please.

18             READING CLERK:  Proposal 67, proposal to revise

19        Article V, Section 8, Florida Constitution, and to create

20        Article XII, Section 21, Florida Constitution, providing

21        for an increase in the length of membership in the Florida

22        Bar which is required of a candidate for the office of

23        circuit judge or county judge.

24             CHAIRMAN DOUGLASS:  Commissioner Wetherington to

25        present the proposal for the committee which passed it out


 										43

1        with approval; is that correct?

2             COMMISSIONER WETHERINGTON:  That's correct.  This

3        proposal was also recommended by the Article V commission.

4        And the purpose of it is to increase the legal experience

5        level of those who are either appointed or elected to the

6        circuit or county courts in an effort to increase the

7        overall competence and experience of the judiciary.

8        That's the only purpose of it.  I think it's the right

9        thing to do.

10             CHAIRMAN DOUGLASS:  All right.  Any -- Commissioner

11        Smith, for what purpose do you rise?

12             COMMISSIONER SMITH:  For a question.

13             CHAIRMAN DOUGLASS:  Do you yield?

14             COMMISSIONER WETHERINGTON:  I do.

15             COMMISSIONER SMITH:  You mentioned this was

16        recommended by the Article V task force.  What happened to

17        it after its recommendation?

18             COMMISSIONER WETHERINGTON:  It isn't -- hasn't been

19        -- I don't think its been passed on.

20             CHAIRMAN DOUGLASS:  I don't think it passed in the

21        Legislature.

22             COMMISSIONER WETHERINGTON:  It hasn't been submitted

23        to the people, in other words.

24             CHAIRMAN DOUGLASS:  Commissioner Barkdull, did the

25        task force actually recommend this?


 										44

1             COMMISSIONER BARKDULL:  Yes, sir.

2             CHAIRMAN DOUGLASS:  Am I correct in saying it did not

3        pass the Legislature?

4             COMMISSIONER BARKDULL:  I can't answer that.  I think

5        Mr. Buzzett can.

6             CHAIRMAN DOUGLASS:  Is that correct, Commissioner

7        Wetherington?

8             COMMISSIONER WETHERINGTON:  What was the question?

9             CHAIRMAN DOUGLASS:  It did not pass the Legislature;

10        is that right?  Mr. Buzzett was the executive director of

11        that commission.

12             COMMISSIONER WETHERINGTON:  It was never taken up by

13        the Legislature, according to Mr. Buzzett.

14             CHAIRMAN DOUGLASS:  That's the same thing as not

15        passing it, I think.

16             COMMISSIONER WETHERINGTON:  Right.

17             CHAIRMAN DOUGLASS:  Is there any other debate, any

18        pro or con, or any further questions of Commissioner

19        Wetherington on this issue?

20             Commissioner Wetherington, I have a question.

21             COMMISSIONER WETHERINGTON:  Yes.

22             CHAIRMAN DOUGLASS:  This applies to everybody, is

23        that right?

24             COMMISSIONER WETHERINGTON:  Correct.  There's an

25        exception in there I think for counties under --


 										45

1             CHAIRMAN DOUGLASS:  Tell us what the exception is and

2        why it's in there, if you would.

3             COMMISSIONER WETHERINGTON:  I think there's an

4        exception for the counties -- there are some counties that

5        still have nonlawyer judges, small counties.

6             (Off-the-record discussion.)

7             COMMISSIONER WETHERINGTON:  I think it should be in

8        there.

9             CHAIRMAN DOUGLASS:  What this does though for

10        counties under 40,000, it requires them to just be a

11        member of the Bar?

12             COMMISSIONER LANGLEY:  That's right.

13             CHAIRMAN DOUGLASS:  And have we phased out all the

14        nonlawyer county judges?  Commissioner Langley, are you

15        familiar with that?  So this wouldn't change that; is that

16        correct?  Could you respond?

17             Commissioner Thompson, you probably know more about

18        this than the rest of us.

19             COMISSIONER THOMPSON:  Mr. Chairman, to tell you,

20        it's been so long since I've been in the legislature and

21        dealing with this that I haven't paid too much attention

22        to it.  But I do know that we do have county judges that

23        are nonlawyers.  And I think the way the law is is they

24        can continue to run so long as they are in office.  But if

25        there's a gap, in other words if a nonlawyer quits, then a


 										46

1        lawyer has to run.  That just happened in Liberty County,

2        as you probably know.

3             Now I tell you one of the things that concerns me,

4        folks, is that 40,000 may not be the good magic figure

5        anymore.  I'm thinking of my home county is probably at

6        44,000.  Jackson County is probably at 45-.  And a lot of

7        the lawyers are doing kind of like me, they are moving,

8        you know, so you don't have a lot of lawyers in those

9        counties.  So you may have trouble getting any kind of a

10        choice.  In some of the counties that may be pushing up

11        toward 50.

12             I wonder if we're going to recommend this ultimately,

13        I would recommend to you-all that we go to 50,000 or maybe

14        more, I don't know.  But 50- is probably a pretty good

15        place to stop, based on the counties that I'm familiar

16        with.  You-all are familiar with other counties.

17             How do you put an amendment up there?

18             CHAIRMAN DOUGLASS:  You put it in writing.  We have

19        people here to put it in writing for you.

20             COMISSIONER THOMPSON:  While the debate ensues, I'll

21        do that.

22             CHAIRMAN DOUGLASS:  Mr. Buzzett, will you see that

23        his amendment is prepared?

24             I have a question while you're here.  Somebody said

25        yesterday, maybe it was Commissioner Langley or someone


 										47

1        that looked at this problem, that 80 percent of all the

2        judges came from counties with over a 100,000 population.

3        Is that -- who told me that?  Commissioner Evans-Jones?

4             COMMISSIONER EVANS-JONES:  I have a question for

5        Commissioner Wetherington.

6             Commissioner Wetherington, could this be done by

7        statute by the Legislature?  Does it have to be a

8        constitutional amendment?

9             COMMISSIONER WETHERINGTON:  I think it does, yes.

10             COMMISSIONER EVANS-JONES:  You think it does?

11             COMMISSIONER WETHERINGTON:  Yes, it does have to be a

12        constitutional amendment.

13             COMMISSIONER EVANS-JONES:  Thank you.

14             COMMISSIONER BARKDULL:  I'd like to make an

15        observation, Mr. Chairman.  That whatever exemption we put

16        in for the counties of lesser population, we either put it

17        in in a schedule form where it can be changed by the

18        Legislature, or we provide that in counties below a

19        certain level the Legislature by law may provide an

20        exemption.

21             So whatever arises as to lawyers moving out or where

22        the lawyers not within a county of a certain years of

23        experience that there will be some availability, because

24        that's been the problem that executives have in filling

25        some of these smaller counties particularly.  You can't


 										48

1        find a lawyer or you can't find a lawyer with even five

2        years' experience.  But I think if you left it optional

3        with the Legislature to fix whatever minimum requirements,

4        it would be better than us trying to write it in the

5        Constitution.

6             CHAIRMAN DOUGLASS:  Are you going to prepare that and

7        offer it as an amendment?

8             COMMISSIONER BARKDULL:  I'll see how it goes.

9             CHAIRMAN DOUGLASS:  You're not going to have much

10        longer at it.  Commissioner Scott, did you want to be

11        recognized?

12             COMMISSIONER SCOTT:  Yes.

13             CHAIRMAN DOUGLASS:  Is it for a question?

14             COMMISSIONER SCOTT:  No, just a statement in support

15        of the pending amendment.

16             I'm sure many lawyer members probably know this, but

17        what happens in small counties, I have a ranch out in

18        Holmes County, they have a circuit and you're part of a

19        bigger circuit.  And all the circuits are generally the

20        same size.  So there will be a lot of counties to chose

21        circuit judges from.  But county is just, I mean,

22        population -- I think there is only four lawyers in the

23        town or maybe eight out there.

24             And if you start limiting them in age -- and the

25        other point is you might be lessening the quality.  It may


 										49

1        well be that there's right in some small county a very

2        qualified person, but if he's limited, somebody that maybe

3        is not and is sort of mediocre or happens to be somewhere

4        else will move into the county.  So I really think it

5        probably ought to be 60,000 to give a little bit of leeway

6        to counties like Jackson County.

7             CHAIRMAN DOUGLASS:  Do you yield to a question from

8        the Chair?

9             COMMISSIONER SCOTT:  Yes.

10             CHAIRMAN DOUGLASS:  It was raised it would be better

11        to leave this to some extent to the Legislature, if it's

12        under a certain amount.  And we're talking about a 20-year

13        period before this will be addressed by another revision

14        commission.  And we've gone now to the point where our

15        larger counties are becoming much larger and our middle

16        and small counties are beginning to swell.

17             When we select a figure in population, whether it be

18        40 or 50 for this thing, doesn't that create a problem

19        potentially in the next ten years?  Commissioner Scott,

20        you're familiar with the state.

21             COMMISSIONER SCOTT:  Right.  I think Judge Barkdull's

22        idea is a good one to put it in a schedule.  The way it's

23        worded, it's not clear.  It says, unless otherwise

24        provided by general law.  It sort of implies that the

25        Legislature could keep those counties from -- in other


 										50

1        words, they could go in one direction but not necessarily

2        in the other.  So I think we need to probably clarify that

3        they could change the population figure if it became

4        appropriate.

5             CHAIRMAN DOUGLASS:  Are you amenable to a suggestion,

6        Commissioner Wetherington, that we temporarily pass this

7        and that the people who have expressed this concern, at

8        this meeting, come back with an amendment proposal that we

9        could deal with this?  Is that agreeable to those that are

10        concerned with this?  Commissioner Scott, Commissioner

11        Thompson, Commissioner Barkdull?

12             If it is, I would entertain a motion to temporarily

13        pass this and move on with the special order and we will

14        come back to it later in the session today, if that's

15        agreeable.  Can somebody move it?

16             Without objection then we'll temporarily pass it.

17        Thank you, Commissioner Thompson.

18             All right.  We'll move on then on the special order.

19        And does that -- that next one is Proposal 44 Commissioner

20        Langley.  Would you yield to Commissioner Langley to

21        present this?  Commissioner Langley, would you present it

22        please?

23             Oh, before you do that, I'll ask the clerk to read

24        it.

25             READING CLERK:  Proposal 44, proposal to revise


 										51

1        Article V, Section 2, Florida Constitution, allowing the

2        State Supreme Court to District Courts of Appeal to submit

3        questions of military law to the Federal Court of Appeal

4        for the Uniform Services for an advisory opinion.

5             CHAIRMAN DOUGLASS:  Commissioner Langley.

6             COMMISSIONER LANGLEY:  Thank you, Mr. Chairman.  To

7        answer the first question, yes, this is constitutionally

8        necessary.  The next three proposals, they all relate to

9        one problem that has come up because of a decision of our

10        Supreme Court in dicta, not directly related to the matter

11        before it, but in it said that, in fact, if an

12        imprisonment sentence in a court-martial by the Florida

13        National Guard came before them, that it would most likely

14        not be constitutionally sound.

15             The Florida National Guard, when not under call of

16        the federal government, is basically a state agency or has

17        been ruled as that.  In the Waterman case, interpreting

18        one of the articles of the Constitution, it says, no

19        imprisonment nor unscheduled fine can be levied by an

20        agency.

21             Now if the National Guard is called out, then they

22        become a agent of the federal government, they're subject

23        to the Uniform Code of Military Justice and there is no

24        question but that they can impose fines, imprisonments,

25        demotions or whatever they may want to do under the


 										52

1        Uniform Code of Military Justice.  But when they are just

2        not that way; i.e., weekend camps and what have you, if a

3        member breaks that Code of Justice it has been ruled by

4        the Supreme Court, at least indirectly, that probably the

5        current Florida National Guard could not imprison that

6        soldier for breaking the rules.

7             So there's a series here of three of them which gives

8        the Florida National Guard, and its military tribunal the

9        right to impose those sentences provided under the Uniform

10        Code of Military Justice.  And these three amendments do

11        that.  The world is probably going to go on without this,

12        but you do need, in the military, you do need the

13        discipline, you do need that as the ultimate discipline.

14             Incidentally, the ultimate punishment it 280 days in

15        the military stockade.  And that would be the maximum

16        punishment that they can render.  So these next three do

17        all of that including the right of the military tribunal

18        to seek the opinion of a district military court as to any

19        legal matters relating to those particular proceedings.

20        So that's what it is, Your Honor.

21             Let me tell you, with Chairman Wetherington in the

22        judiciary committee, we have a consensus in the committee

23        that we're going to do a catchall amendment.  There are a

24        lot of small things that need to be fixed in Article V in

25        the judiciary.  And this might be one of those things that


 										53

1        we fix in a multi-subject amendment that will cure a bunch

2        of little problems that we have in the Constitution.

3             CHAIRMAN DOUGLASS:  Something like a reviser's bill

4        that's not controversial?

5             COMMISSIONER LANGLEY:  Yes, sir.  And I submit to you

6        that it will not be anything controversial.

7             CHAIRMAN DOUGLASS:  Does anybody have any questions

8        to Commissioner Langley?  Is there anybody that wants to

9        speak as a proponent?  Anybody that wants to speak as an

10        opponent?  If not, we'll proceed to vote.

11             (Vote taken and recorded electronically.)

12             CHAIRMAN DOUGLASS:  Lock the machine.

13             READING CLERK:  Twenty-nine yeas and zero nays,

14        Mr. Chairman.

15             CHAIRMAN DOUGLASS:  Commissioner Langley.

16             COMMISSIONER LANGLEY:  Yes, sir.  The next is the

17        second part of the package --

18             CHAIRMAN DOUGLASS:  I'll ask him to read the title of

19        Proposal No. 4 -- 25, excuse me.  That was 44, this is 25.

20             READING CLERK:  Proposal 25, a proposal to revise

21        Article V, Section 1, Florida Constitution, providing for

22        military court-martial to be conducted by military judges

23        of the Florida National Guard with the direct appeal to

24        the District Court of Appeals, First District.

25             COMMISSIONER LANGLEY:  That's the second part of that


 										54

1        same issue.  The first one allowed the appeal for an

2        advisory opinion and this direct appeal to the --

3             CHAIRMAN DOUGLASS:  Any debate?  If not, we'll vote.

4             (Vote taken and recorded electronically.)

5             CHAIRMAN DOUGLASS:  Lock the machine.

6             READING CLERK:  Thirty yeas and zero nays,

7        Mr. Chairman.

8             CHAIRMAN DOUGLASS:  All right.  Now we'll move to

9        No. 4, Proposal 4.  Would you read the title?

10             READING CLERK:  Proposal 4, proposal to revise

11        Article I, Section 18, Florida Constitution, clarifying

12        the authority of the Department of Military Affairs,

13        through court-martial to impose sentences of imprisonment

14        and other penalties.

15             CHAIRMAN DOUGLASS:  Any proponents or opponents?

16             COMMISSIONER LANGLEY:  I have a question.

17             CHAIRMAN DOUGLASS:  They can't do that now?

18             COMMISSIONER LANGLEY:  No, sir, that's what the

19        Waterman case said that they could not.

20             CHAIRMAN DOUGLASS:  They had done it in the past.

21             COMMISSIONER LANGLEY:  Yes, sir.  Let me answer it.

22        They are doing it now but the Supreme Court has said if

23        that were before us, we would probably rule that you can't

24        do that now.

25             CHAIRMAN DOUGLASS:  So that's the reason for this?


 										55

1             COMMISSIONER LANGLEY:  Yes.

2             CHAIRMAN DOUGLASS:  All right.  Any further debate or

3        questions?  If not, we'll proceed to vote.

4             (Vote taken and recorded electronically.)

5             CHAIRMAN DOUGLASS:  Lock the machine.

6             READING CLERK:  Thirty-one yeas and zero nays,

7        Mr. Chairman.

8             CHAIRMAN DOUGLASS:  You increased it one vote with

9        that one.  Now we'll move on to the next proposal which is

10        the last one other than the one we're coming back to by

11        the judicial committee today, Proposal No. 87.  Would you

12        read the title then I'll recognize Commissioner

13        Wetherington to present it.

14             READING CLERK:  Proposal 87, a proposal to revise

15        Article V, Section 1, Florida Constitution, allowing the

16        Legislature to establish by general law a system of family

17        magistrates.

18             CHAIRMAN DOUGLASS:  Commissioner Wetherington, you're

19        recognized.

20             COMMISSIONER WETHERINGTON:  This is comparable in

21        some ways to the traffic hearing officers, or traffic

22        magistrates that were approved and added as recognized

23        constitutional officers.  The problem basically is this.

24        In our family courts, we have a problem with respect to

25        the volume of child support cases and other family cases


 										56

1        that require expedited hearings and part of this

2        requirement is because of federal requirements to their

3        funding that they give and grants they give to the state.

4        They require expedited hearings with respect to such

5        matters, for example, as child support.

6             We're presently doing that by using child support

7        hearing officers and also we're doing it by General

8        Masters that are in existence in 16 out of the 20

9        counties.  There are some problems that come up in these

10        two areas.  And one is the long-standing constitutional

11        provision in the state of Florida and that is if you refer

12        something to a Master or something to a non -- to somebody

13        who's not a judge, you have to have the consent of the

14        parties.  And there are certain other limiting factors

15        that are involved.

16             In order to have a more effective system of judicial

17        support through our Masters and our hearing officers to

18        eliminate some of the legal impediments to the effect of

19        use of these aids to the Court, this provision would allow

20        the Legislature to create a system of family magistrates

21        in the state of Florida which would be state funded.  It

22        would allow, in other words, for a uniform system, uniform

23        regulations, uniform standards and it would be something

24        that would aid, in other words, in the family court.

25        That's the purpose of the proposal.  Problems do come up


 										57

1        because of the constitutional impediments that exist with

2        respect to the referral system like that.  It would be

3        eliminated if we had this.

4             CHAIRMAN DOUGLASS:  Do you yield to Commissioner

5        Barkdull?

6             COMMISSIONER WETHERINGTON:  I do.

7             COMMISSIONER BARKDULL:  Commissioner Wetherington, I

8        have a question that goes right to your last statement.

9        At the present time, if a family matter has a controversy

10        against the will of one of the parties, it cannot be

11        referred out to a third person to be determined it must be

12        determined by the judge himself.  Will this prevent that

13        from happening or -- what I'm getting at is I would hate

14        to see us get away from the Supreme Court decisions that

15        say that when you have a judicial controversy it will be

16        decided by the judge unless you agree that it will go to a

17        special Master.  Will that eliminate this?

18             COMMISSIONER WETHERINGTON:  It could.  The

19        Legislature could decide to do it either way it wanted to

20        do it.  For example, in the federal magistrate system you

21        have -- a lot of the matters are referred over to federal

22        magistrates to handle certain kinds of matters without the

23        consent of the parties.  And the Legislature could

24        provide, under a family magistrate system, that there are

25        certain matters.  For example, child support.  Right now


 										58

1        we're referring child support to child support hearing

2        officers without the consent of the parties because

3        there's a feeling that we have to do this to meet federal

4        guidelines.  Now a question can be raised as to whether or

5        not that is constitutional.

6             And the answer is, do we refer matters for expedited

7        hearings when the courts are backed up to the child

8        support hearing officer without the consent of the parties

9        and the answer is, yes, we do.  And the answer is, is this

10        something we need to do in order to get expedited

11        determinations in this critical area.  And the answer in

12        many areas of the state is, yes, we need to do this.

13             And, yes, it would result in some instances in which

14        the parties would have a matter just like in the traffic

15        area too that they will have to go in front of the traffic

16        hearing officer, although I recognize that's of much less

17        importance, but it could lead to the fact these

18        magistrates, in order to be effective, with the volume of

19        the court and the need to move family cases and to get

20        prompt hearings would be in a position to where they would

21        have a matter referred and they would make a decision.

22             That decision may be subject to review by the judge

23        in that particular division but it would not necessarily

24        require the consent of the parties.  And absolutely that

25        is one of the big factors that's involved in the creation


 										59

1        of a family magistrate system.

2             Our magistrates, for example, in Dade County, Broward

3        County, and many are selected.  They are rated -- they get

4        an average rating of about 87 to 88 percent on the Bar

5        rate.  They rate average, better than the average judge in

6        terms of satisfaction by the parties and they are

7        well-respected, they are well regulated and this would

8        allow for a system of carefully monitored, well-regulated,

9        well qualified people to do essentially judicial functions

10        under judicial supervision but in a more limited way, it

11        would involve that.

12             I know your court has taking the view many times

13        which we respect, that you have to have consent of the

14        parties, that's what the law is in the state of Florida.

15        There's a question of whether that's required in the

16        hearing officer matter.  But this would involve being able

17        to refer these matters in order to get expedited hearings

18        in these critical matters.

19             CHAIRMAN DOUGLASS:  Commissioner Barkdull, do you

20        have another question or an observation or whatever?

21             COMMISSIONER BARKDULL:  No.  I've got an observation

22        and I guess that answers itself.  And that is any

23        qualifications for these people would be regulated by the

24        Legislature.  And the way I read this, they could regulate

25        their qualifications.  Thank you.


 										60

1             CHAIRMAN DOUGLASS:  Let me ask you something.  I'm

2        not sure that I'm very alert here but what I read within

3        the body of this is the Legislature may establish by

4        general law or the Supreme Court may establish by rule a

5        family court magistrate system to hear family law matters.

6        If established the family court magistrates should be

7        funded by the state.

8             I raise the question immediately this will not be a

9        noncontroversial amendment, number one, because you're

10        creating a new system of judges with this.  But you're

11        also taking away from the Legislature and giving it to the

12        judicial branch the right to create courts and they shall

13        be funded.  So I think that question should be answered

14        and it has not even been addressed.  I mean you've told us

15        that the Legislature could do this but this says the

16        Supreme Court can; is that not true?

17             COMMISSIONER WETHERINGTON:  I have no problem

18        eliminating the Supreme Court part if that's offensive.

19             CHAIRMAN DOUGLASS:  Well, that's not my question.

20        The way it is now --

21             COMMISSIONER WETHERINGTON:  It could be either.

22             CHAIRMAN DOUGLASS:  The Legislature and the Supreme

23        Court as the judicial branch could create judges and they

24        are required to be funded by the Legislature.

25             COMMISSIONER WETHERINGTON:  Well, we could eliminate


 										61

1        the Supreme Court part if that's offensive.

2             CHAIRMAN DOUGLASS:  Well, the judicial branch does

3        not create judicial office; is that correct?

4             COMMISSIONER WETHERINGTON:  That's not entirely

5        correct.  We have a Master --

6             CHAIRMAN DOUGLASS:  But they are not judges.

7             COMMISSIONER WETHERINGTON:  Well, they perform quasi

8        judicial functions, exactly the same thing as the family

9        magistrates are going to perform.

10             CHAIRMAN DOUGLASS:  I'm not arguing with you, I'm

11        just telling you Judge Barkdull points out that you have

12        the right to go back to the judge if you don't like what

13        the Master did and you would have a right to do that with

14        a magistrate system too.  But I understand your point, if

15        there's an objection to the part dealing with the Supreme

16        Court doing the appointment, the establishment of the

17        standards, I don't have any problem amending that and

18        deleting that.

19             Commissioner Scott.

20             COMMISSIONER SCOTT:  We're preparing an amendment to

21        take out the words "or the Supreme Court by rule" which I

22        will offer.

23             COMMISSIONER WETHERINGTON:  I'll accept that.

24             CHAIRMAN DOUGLASS:  All right, sir.  As soon as it's

25        in writing, we'll take up the amendment.


 										62

1             Commissioner Langley.

2             COMMISSIONER LANGLEY:  I rise in semi-support of the

3        bill.

4             CHAIRMAN DOUGLASS:  Semi-support you're going to have

5        to explain that.

6             COMMISSIONER LANGLEY:  Halfheartedly.  Seriously, we

7        need something to deal with multiplicity of all the

8        domestic problems that we have and I think this is a step

9        in the right direction.  I support Senator Scott's

10        amendment.  I don't think the Supreme Court ought to order

11        it and tell the Legislature to fund it without the

12        responsibility.

13             But if you'll look at the language, it only says --

14        this only allows the Legislature to do that if it chooses

15        to.  There is no mandate that the Legislature do it but

16        there was some question about whether or not the

17        Legislature could create these in and of its own power.

18        And that is why the amendment is there.  So again, we're

19        not ordering it to be done, we're saying if the

20        Legislature wants to do it, wants to fund it, and wants to

21        provide an appeal back to a real judge, then that could be

22        done by law also.

23             CHAIRMAN DOUGLASS:  Commissioner Scott, I think your

24        proposed amendment is on the desk, is it not?  Would you

25        read the proposed amendment, it's moved by Senator Scott


 										63

1        -- Commissioner Scott.

2             READING CLERK:  By Commissioner Scott on Page 1,

3        Lines 25 and 26, delete, "or the Supreme Court may

4        establish by rule."

5             CHAIRMAN DOUGLASS:  All right.  You move that.  Would

6        you like to speak -- anybody want to speak in opposition?

7        Commissioner Thompson has a question -- Commissioner Scott

8        or Commissioner Wetherington?  All right, Commissioner

9        Wetherington yields.

10             COMISSIONER THOMPSON:  I just wonder and the answer

11        very well may be yes if the term "family law," I mean,

12        don't know that I've seen it anywhere else in any

13        Constitution, is it a well-enough defined thing in the law

14        so that the Legislature is going to know what the

15        jurisdiction of these magistrates would be or would not

16        be?  Because the cases that I know about sometimes can get

17        very, very complicated and go beyond -- I mean, you know,

18        you have to get accountants in to find out what businesses

19        are worth and all these kinds of things.  And I'm just

20        wondering if this is a good term to use in the

21        Constitution and whether or not it's well-enough defined

22        elsewhere in law to be placed in the Constitution.

23             COMMISSIONER WETHERINGTON:  Well, the specific

24        functions and all could be set forth by the Legislature.

25        The concept of magistrate is well-recognized in the law.


 										64

1        We have federal magistrates, we use the traffic hearing

2        magistrates, it's a term that's used, for example, in the

3        federal system.  We recognize it.  The question is what

4        duties or what limitations do you want to impose on the

5        system that can be done by the Legislature in creating the

6        system.  They can say -- they can define it if they want

7        to.  And they can say the family magistrates will have the

8        following jurisdiction or so on and so forth and they can

9        lay it out in that respect.  Any further questions,

10        Commissioner Smith?  Do you have a question?

11             COMMISSIONER SMITH:  No, sir.

12             CHAIRMAN DOUGLASS:  I have a question.  Family law

13        generally means adoptions.  It also means domestic

14        violence, it means injunctive relief which you can put

15        people in jail for violating the injunction.  So if we're

16        allowing the Legislature then to create a new court if

17        we -- if the people so desire if they approve this

18        amendment; is that not correct?

19             COMMISSIONER WETHERINGTON:  That's correct, but we as

20        a court that presently exists right now, it's not -- this

21        isn't a new court.  This is a court that exists right now.

22             CHAIRMAN DOUGLASS:  It does not exist as a judge does

23        it, Commissioner Wetherington?  It exists under the

24        auspices of a duly appointed or elected circuit judge or a

25        circuit court.  It is not a -- an authorized judge that


 										65

1        can take final action such as entering an injunction.

2             COMMISSIONER WETHERINGTON:  It's a quasi-judicial

3        officer in the same way that a magistrate would be to some

4        extent --

5             CHAIRMAN DOUGLASS:  I'm going to have to leave the

6        chair if I keep debating you.

7             COMMISSIONER WETHERINGTON:  No, you can keep -- no,

8        no, no.  This is perfectly -- the point is right now on

9        the hearing officers, the child support hearing officers,

10        the matters are referred to them.  In order for us to get

11        federal money we have to do it.  And that's what we're

12        doing every day.  And what's happening is, a matter is

13        being deferred over in order for there to be a prompt

14        child support hearing.

15             Now, we're doing that right now.  Now, you can call

16        it whatever you want to, but the person sitting in that

17        row sits down and listens to the evidence from one side

18        and then sits down to listen to the evidence in the other

19        side and that person says, the child support will be X

20        dollars.  Now, that can be subject to review by the judge

21        just in the way that a family magistrate would make that

22        exact same decision and that can be reviewed by the judge.

23             And if the Masters are doing it, the only difference

24        is that if the parties -- the parties have to agree to the

25        referral.  Once they agree to the referral, the magistrate


 										66

1        sits down every day -- the General Masters are sitting

2        down every day and they are trying, with the agreement of

3        parties, in some instances the entire divorce case, right

4        now.  And they're making findings and rulings that are

5        subject to review by the trial judge and then that's

6        subject to appeal by the appellate court.  That's going on

7        right now.  Now, if you don't want to call that being a

8        judge, that's okay.

9             CHAIRMAN DOUGLASS:  All right.  I think we strayed

10        from the matter on the floor.  There's an amendment on the

11        floor that's been proposed by Commissioner Scott.  And the

12        debate now is on the merits which we'll come back to.  Are

13        you on the amendment, Commissioner Barnett?

14             COMMISSIONER BARNETT:  Question.

15             CHAIRMAN DOUGLASS:  A question on the amendment?

16             COMMISSIONER BARNETT:  No, on the rule.

17             CHAIRMAN DOUGLASS:  All right.  Let's hold it and

18        vote on the amendment.

19             Does anybody have any questions or debate on the

20        amendment?  Would you read the amendment again and we'll

21        vote.

22             READING CLERK:  By Commissioner Scott on Page 1,

23        Lines 25 and 26.  Delete, "or the Supreme Court may

24        establish by rule."

25             CHAIRMAN DOUGLASS:  All right.  Is everybody ready to


 										67

1        vote, if so, let's vote.  We'll just take a voice vote.

2        All in favor of the amendment say aye.  Opposed like sign.

3             (Verbal vote taken.)

4             CHAIRMAN DOUGLASS:  It carries.  Did somebody oppose

5        it?  This is the amendment.  All right.  Now we'll refer

6        to the proposal as amended.  Commissioner Mills and then

7        Commissioner Barnett.

8             COMMISSIONER MILLS:  Mr. Chairman, would the

9        gentleman yield to a question?

10             COMMISSIONER WETHERINGTON:  Yes.

11             COMMISSIONER MILLS:  I think this goes to your

12        question, some questions that I've heard around here.

13        That is, is the term magistrate or is the term magistrate

14        system anywhere else in the Constitution?

15             COMMISSIONER WETHERINGTON:  No.

16             COMMISSIONER MILLS:  All right.  Well, I mean

17        that's -- the question then is what is the magistrate

18        system the first time it's mentioned in the Constitution?

19        Does it need further definition or does that say enough to

20        everybody -- these folks in here are not quite clear if

21        that adopts the current magistrate system in which they

22        must return to the court constantly, et cetera.  In other

23        words, there is a -- this is again a definitional issue.

24             The first time we introduce something in the

25        Constitution, somebody is going to pay attention to it.


 										68

1        And if it's not very clear -- and in fact since what we

2        say here is important to clarify that.  If our intent is

3        unclear, we need to actually say it in words.  If our

4        intent is clear, we need to say what it is.

5             CHAIRMAN DOUGLASS:  Commissioner Barnett.

6             COMMISSIONER BARNETT:  I have a question.  I'm not

7        prepared to answer his question.

8             CHAIRMAN DOUGLASS:  All right.  Well just wait a

9        minute, we'll get to you and then we'll get to

10        Commissioner Scott.  Commissioner Wetherington, do you

11        understand the question posed to you by Commissioner

12        Mills?

13             COMMISSIONER WETHERINGTON:  I understand.  And the

14        answer is that the Legislature -- you can call them

15        anything you want to, I'm not wedded to the word.

16        Magistrate is just the word that we really took because

17        that's the way the federal system does.  They have

18        magistrates that assist the judges over there in the

19        performance of matters so it's a recognized concept in

20        that context.

21             But the answer to the question is the Legislature

22        will define the jurisdiction and the authority if they

23        should decide to establish this.  They would define this

24        themselves and they would say what the jurisdiction would

25        be and what they would be allowed to hear and what they


 										69

1        would not be allowed to hear.  And that's what you would

2        do in any -- in the creation of any -- just like they did

3        with the traffic hearing officers.  The traffic hearing

4        officer's jurisdiction was subsequently defined and that's

5        the way it was done.

6             CHAIRMAN DOUGLASS:  All right.  Commissioner Barnett,

7        you had a question.  Do you yield?

8             COMMISSIONER WETHERINGTON:  Yes, sure.

9             COMMISSIONER BARNETT:  The simple statement or the

10        question is why -- explain why this needs to be a

11        provision in the Constitution.  As I heard the debate, it

12        sounds like many of these functions are currently being

13        performed under our current circuit court -- our current

14        judicial system, in that the only constitutional question

15        is whether the Legislature has the authority to establish

16        a new court and that would be what the authorization was.

17        But I am confused and need to know whether this is

18        something that needs to be done constitutionally or can be

19        done now statutorily.

20             COMMISSIONER WETHERINGTON:  The reason why you have

21        to have constitutional recognition is that under the

22        present state of our constitutional law, a matter cannot

23        be referred by a judge to a quasi judicial officer such as

24        a hearing -- such as a special Master or maybe even a

25        child support hearing officer without the consent of all


 										70

1        parties, that's the main -- apart from the other factors

2        which are having uniformity and standards throughout the

3        state in terms of family law which are additional

4        considerations.

5             But the main, the centerpiece frankly, is right now

6        you cannot refer anything out unless everybody agrees

7        under the constitutional cases.  Now because these --

8        because general Masters or child support hearing officers

9        for that matter are not Constitution officers, they are

10        not recognized in the Constitution and they could not --

11        not having that status, they could not be given that

12        authority.

13             This would allow -- it would be a system, which in

14        some ways would be similar in some ways to the federal

15        magistrate system where a matter could be referred out

16        whether it's a child support matter, temporary child

17        support, an alimony matter or whatever else the judge felt

18        was appropriate to refer out to the family court

19        magistrate.

20             They would hear the matter, they would make a

21        decision subject to review by the trial judge.  But it

22        would not require the consent of the parties before the

23        referral could be made.  That cannot be done now under the

24        law without the constitutional change.  Whether or not

25        it's important enough to do it is a different matter.  And


 										71

1        there's been a tremendous emphasis in our state on family

2        law.  We have a huge number of cases, particularly we're

3        getting a mushrooming number of pro se litigants in our

4        system.  We have to handle the problem.  We have the

5        problem of the child support hearing officer which is

6        mandated in effect by the federal funding.  We are going

7        to give up millions and millions and millions of dollars

8        if we can't do this.

9             So the question is this would allow a more efficient

10        system for judicial assistance in this area which requires

11        prompt decisions.  We can't -- in some of these cases we

12        can't wait in other words.  And it helps with the

13        tremendous backlog of cases.  It makes it easier, it makes

14        it more efficient and that's the whole purpose of it.

15             Commissioner Barnett.

16             COMMISSIONER BARNETT:  Just a follow-up question.

17             CHAIRMAN DOUGLASS:  Do you yield?

18             COMMISSIONER WETHERINGTON:  I do.

19             COMMISSIONER BARNETT:  As I understand the proposal,

20        it would be left up to the Legislature to create this

21        magistrate system and funded by the Legislature.  But the

22        question is under our current judicial system, do the

23        circuit courts have the authority or does the Legislature

24        have the authority either to create family court divisions

25        and then if the problem is the need for additional judges


 										72

1        in funding, create those divisions, authorize the new

2        judges, and fund the family court division.

3             I mean, is there any reason we couldn't do that other

4        than the will of the Legislature to do it?

5             COMMISSIONER WETHERINGTON:  You can do it but

6        constitutionally can't solve the problem I'm talking about

7        without some recognition in the Constitution of these

8        persons, whatever you want to call them, being

9        constitutionally-recognized officers.

10             And if you take a look at a family court now to

11        handle the volume that we've got, as complicated as family

12        law is and as important as it is, we have hearing

13        officers, we have general Masters, we have judges, we have

14        family investigators, we've got family court mediators, we

15        have a whole panoply of professionals that are needed to

16        handle this very, very important area of law in our state.

17             And there is no way -- and everything we've done has

18        been to recognize the importance of this.  But we need all

19        these professionals in there.  There is no way the judges

20        can do it by themselves.  And right now we're using these

21        professionals.  There may be some questions raised by the

22        child support hearing officers, I don't know.  But we have

23        to have them because of federal funding.

24             All this does would allow for the court to be -- to

25        have a more efficient system to eliminate the problem of


 										73

1        the necessity of consent for the parties with respect to

2        referrals that may be needed and to allow for the creation

3        of a uniform, maybe arguably, a higher quality, more

4        effective way to help our family courts.

5             Can we survive without it?  Yes, we can survive

6        without it.  But the only reason I put the proposal

7        forward is because of the importance of family law.  It

8        isn't going to hurt anybody.  The Legislature can tell

9        them to do what they want to do.  And if we didn't have

10        the problem of consent, we wouldn't need it.

11             But constitutionally, we have the problem of consent.

12        Because the Masters which have been with us since the time

13        of the 14th century -- we used special Masters since the

14        time of the 14th century in Chancery, the Chancery used

15        special Masters.  But the problem with all this is that we

16        have constitutional decisions in the state of Florida

17        which say you have to have the consent even on a minor

18        matter to refer anything to someone other than a judge.

19        That's basically it.

20             CHAIRMAN DOUGLASS:  Commissioner Scott, I believe you

21        raised your hand.  You'll be next, Commissioner Freidin.

22        Are you speaking?

23             COMMISSIONER SCOTT:  Mr. Chairman, yeah, I was going

24        to -- I think I'm going to speak against it.  And I would

25        like to make this caveat with all due respect to the


 										74

1        committee and Commissioner Wetherington.  There are enough

2        questions raised here -- first of all, I'm not sure that

3        it's all bad to require consent for someone other than a

4        judge to determine rights which are in some respects even

5        greater and longer lasting and more potentially

6        devastating not only financially but to children and

7        others to have them decided by our court system.  And the

8        court system is not perfect and it's, you know, it's often

9        delayed and may become more delayed in this area.

10             But in view of what Commissioner Mills said, I don't

11        really frankly like the word "magistrate" for starters.

12        Something about that goes back to the systems that we've

13        basically gotten rid of including even municipal courts in

14        this state where it is not too completely defined.  The

15        fact that the federal government might, in effect, require

16        something, that doesn't move me at all.  I mean, we're not

17        sure we're not going to give up the money, but at least

18        we've now got a system where the Court does have a review.

19        And so I would say that for us, as we sit here today, the

20        Legislature could always propose this constitutional

21        amendment after maybe some more work on defining it and so

22        forth.

23             So I'm saying I'm probably going to vote against it

24        just because I don't know enough and because I'm not so

25        sure that it's bad to require consent on those matters.


 										75

1             CHAIRMAN DOUGLASS:  Now, Commissioner Freidin.

2             COMMISSIONER FREIDIN:  Mr. Wetherington, I had a

3        question about the consent issue and the necessity to have

4        some kind of constitutional validation in order to refer a

5        case to a magistrate or a Master or whatever.

6             Supposing that this amendment were passed and the

7        Legislature in its wisdom chose not to create or fund a

8        system but in Dade County for example we have the system

9        of general Masters who now get referred these cases

10        questionably under the -- questionably with regard to the

11        constitutional authority --

12             COMMISSIONER WETHERINGTON:  It's not questionable

13        because we have consent.

14             COMMISSIONER FREIDIN:  Consent.  Would this solve

15        that problem?  I mean would the amendment that's being

16        proposed solve that problem or would it be better to

17        somehow deal with both issues?  I mean, the way I'm

18        understanding it there are two issues.  One, should the

19        state have a uniform system so that in every circuit we're

20        dealing with the same thing.

21             And, two, in a circuit where there are Masters,

22        should there, if the circuit so chooses and finds a way of

23        funding it, should that be constitution -- should it then

24        become constitutionally permissible for courts to refer

25        matters to those Masters.  Is there a way -- does the


 										76

1        amendment -- I mean, does the proposed amendment to the

2        Constitution deal with both of those issues or does it

3        only deal with the uniformity issue?

4             COMMISSIONER WETHERINGTON:  I think it deals with

5        both issues.  It would allow the Legislature, if it

6        elected to do it, to have these judicial officers to find

7        their jurisdiction, the functions, the way they are

8        selected, the way they are regulated, just like they would

9        any class of judicial officers.  It would take care of the

10        whole issue.

11             CHAIRMAN DOUGLASS:  Any further -- Commissioner

12        Morsani was up.

13             COMMISSIONER MORSANI:  If I might, sir, ask a

14        question.  I appreciate all the debate here by the legal

15        minds and I'm certainly not an attorney.  But I think

16        there is some -- one element of this is missing that's not

17        in the discussion.

18             In visiting with Chief Justice Kogan, it was his

19        thesis that the purpose of exploring this type of change

20        was twofold.  I -- first to bring these kinds of cases

21        closer to home rather than -- and to short-circuit, if you

22        will, and maybe you don't like to hear that as legal

23        minds, but to short-circuit this tremendous logjam or

24        longtime elements.  I don't hear that being told here,

25        that it was his intention to bring justice closer to


 										77

1        the -- almost a neighborhood, almost create a neighborhood

2        court so to speak because we've gone so far away from that

3        and caused this tremendous logjam in our courts.

4             I haven't heard that discussion here by you ladies

5        and gentlemen that know the courts and I certainly don't.

6        And then that piece of it I don't hear and then the other

7        piece is the qualifications of these people that might be

8        becoming magistrates.  I haven't heard any one of those

9        two things discussed.  And in my conversation with Chief

10        Justice Kogan, that was really the thesis for what this

11        was going to be put forth.  If I might hear some comments,

12        I would appreciate it.

13             CHAIRMAN DOUGLASS:  Commissioner Langley.

14             COMMISSIONER LANGLEY:  I'd like to rise in support of

15        the proposition and just tell you that in answer to your

16        question, Commissioner Morsani, now there are almost as

17        many non-married custody support fights as there are

18        dissolution custody support fights.  Because so many

19        people are living together and having children, you don't

20        go in with a dissolution, you go to the paternity suit to

21        establish custody, visitation, just like a divorce.  And

22        nine out of ten of these people can't afford lawyers.

23             A lot of them are going pre se which is really a mess

24        for the courts and the clerks to deal with.  And we need

25        at least an opportunity -- this just says, we are not the


 										78

1        Legislature and we really shouldn't be that concerned with

2        the intricacies of what may or may not be provided once

3        the Legislature may decide to create these domestic

4        magistrates if they do.  They will have their hearings,

5        they will set the qualification for the magistrates, they,

6        I hope, will provide an appeal from that magistrate's

7        decision.

8             All that Commissioner Wetherington is asking of this

9        is, the Legislature says we can't do it now -- or the

10        Constitution says the Legislature can't do it now -- let's

11        let the Legislature explore that.  And if it's a whole lot

12        cheaper to deal with magistrates than it is to deal with

13        judges and retirements and secretaries and health

14        insurance and all the other things that we do when we

15        create a judgeship, so if we can simplify it, make it more

16        accessible to the poor people of this state that need it

17        and relieve the pressure on the judiciary, all we're

18        saying is let the Legislature look at it.  And they may

19        decide they don't want to do it, but that's fine.  To say

20        that it shouldn't be done I don't think it's our

21        prerogative.

22             CHAIRMAN DOUGLASS:  Commissioner Nabors.

23             COMMISSIONER NABORS:  Yes.  I'd like to ask you a

24        question Commissioner Wetherington.  I'm sympathetic to

25        where you are going.  But one of the things that troubles


 										79

1        me about this and maybe we could table it, or whatever the

2        procedure rule is, what troubles me about it is I

3        supported the amendment that basically provided that the

4        Court could not require appropriation.  It troubles me

5        just as much on a separation of powers' concept

6        fundamentally to put too much power in the Legislature

7        dealing with jurisdiction and dealing with reconciling

8        jurisdiction, these issues between the circuit and these

9        type courts.

10             And so it seems to me what I'm struggling with is is

11        that appropriate.  And it bothers me to say the

12        Legislature can define a family magistrate court system

13        because the Constitution does preserve procedure and other

14        things to the judiciary.  So it seems to me that there

15        might be a middle ground between the court adopting rules

16        relating to jurisdiction and procedures and the funding

17        and maybe we can separate those down the line.

18             But does it bother you the fact that you give the

19        Legislature so much power in this area?  This is

20        fundamentally different than traffic, for example, issues.

21             COMMISSIONER WETHERINGTON:  I agree with what

22        Commissioner Langley said obviously.  And that is the

23        means and the mechanisms and the way in which it would be

24        instituted would have to be done, I take it, like we do in

25        many areas which involve both the Court and the


 										80

1        Legislature.

2             What they would probably do, what they would probably

3        have some kind of analysis done maybe in conjunction with

4        the Supreme Court and if they decided to do it, they would

5        come up with a proposal just like for example with the

6        rules of evidence which are both the Supreme Court and the

7        Legislature, as you know, have signed off on.  And they

8        would come up with a proposal that made sense.  And after

9        they came up with a proposal that made sense, they would

10        simply define it.  And if they wanted to say that the

11        rules and procedures and things like that would be

12        established by the Court, they could do it.

13             I'm not proposing the entire system and all the

14        intricacies and details of the system obviously.  I think

15        it's the kind of thing that the Legislature could do

16        probably in consultation with the court if we wanted to

17        have this power in the Legislature to address it.  It's

18        not as radical a proposal as some people are interpreting

19        it to be because we have 75 percent of this going on right

20        now.  This isn't totally new court, it's simply -- it

21        would allow to improve the efficiency of what we're doing

22        to allow these quasi judicial officers to be of greater

23        assistance to the courts with a mushroom caseload with the

24        increase in the pro se cases that we're dealing with.

25             It appears to me that since you have a right of


 										81

1        review with a trial judge you're not giving up judicial

2        control, and it's just an effort to try to do something to

3        help make us more effective and move efficient in the

4        field of family law anticipating what's happening in

5        family law now.  Can we live without it?  Yes, we can live

6        without it.  Would we probably have a more effective and

7        more efficient family law handling of all these cases

8        including domestic violence and the child support and the

9        terrible things that are happening?  I think we would and

10        that's why I proposed it.

11             CHAIRMAN DOUGLASS:  All right.  Commissioner

12        Sundberg.  Incidentally, the air conditioner is back on if

13        you want to put your coats back on.

14             COMMISSIONER SUNDBERG:  Commissioner Wetherington,

15        would you yield for a couple of questions?  Commissioner

16        Langley said, you know, they aren't creating a court here

17        but in fact doesn't this create a court?  Doesn't it

18        create an Article V court?

19             COMMISSIONER WETHERINGTON:  Yes.

20             COMMISSIONER SUNDBERG:  Then next, and I support this

21        in principle, I'm just not sure -- the more I look at it,

22        I'm not sure we thought it completely through.  Are you

23        troubled at all by the fact the jurisdiction of a circuit

24        court is defined -- first of all, are you troubled at all

25        by the fact that this would be the only court in which its


 										82

1        jurisdiction is defined by the Legislature as opposed by

2        the people in the Constitution?

3             COMMISSIONER WETHERINGTON:  Am I troubled by that?

4             COMMISSIONER SUNDBERG:  Yes, sir.

5             COMMISSIONER WETHERINGTON:  No, not in this instance

6        I'm not.

7             COMMISSIONER SUNDBERG:  But, in fact, that is true,

8        the jurisdiction of every other court, Article V court, is

9        defined in the Constitution; is it not?

10             COMMISSIONER WETHERINGTON:  That's correct except for

11        the traffic hearing officers.

12             COMMISSIONER SUNDBERG:  Yes, but which is a court.

13        But the jurisdiction of the circuit court is provided by

14        Section V and it says, "The circuit court shall have

15        original jurisdiction not vested in the county courts and

16        jurisdiction of appeals not vested elsewhere."

17             Does that not need some amendment to say, "not vested

18        in the county courts or in any magistrate court system

19        that's established"?

20             COMMISSIONER WETHERINGTON:  That's a good point.

21             COMMISSIONER SUNDBERG:  Okay.  Thank you.

22             COMMISSIONER WETHERINGTON:  In other words, these are

23        all good points.  Do I think with respect to this that it

24        could be handled by the Legislature and the Court?  And

25        the answer is I think it could.  Am I proposing an


 										83

1        entire --

2             CHAIRMAN DOUGLASS:  We have to break for just a

3        second.  We have to change the paper.  (Pause.)  Okay.

4        You may proceed.

5             COMMISSIONER SUNDBERG:  Just so I'm clear, are you

6        suggesting that the Legislature could deal with the issue

7        of -- that's raised by Section V, subsection (b) that says

8        a circuit court shall have original jurisdiction not

9        vested in the county courts?

10             COMMISSIONER WETHERINGTON:  Yes.

11             COMMISSIONER SUNDBERG:  That the Legislature could

12        say notwithstanding the provisions of Section 5(b) of

13        Article V that the circuit courts would then have

14        jurisdiction not vested in the county courts or in these

15        magistrate courts?

16             COMMISSIONER WETHERINGTON:  These are family law

17        matters.  The circuit court has jurisdiction of family law

18        matters.  That's the only court that has jurisdiction of

19        family law matters now.  Subject matter is not obscure.

20        We're talking about family law cases so we know it's

21        subject matter.  And the only question is we talk about

22        what can be referred and any limitations on referral and

23        what are the qualifications of the officers and we put in

24        a few things like that and that would have to be filled

25        in, yes.


 										84

1             COMMISSIONER SUNDBERG:  Okay.

2             COMMISSIONER WETHERINGTON:  In other words, I'm not

3        proposing a whole system for you today with all the

4        details, I wouldn't presume to do that.  I'm just trying

5        to put forth a concept so it might be of some help.  It's

6        not -- going to require some thinking and the Legislature

7        in conjunction with the Court having to sit down and put

8        it together and come up with like they did with sentencing

9        guidelines for example when you were there and many other

10        projects which are joint legislative judicial decision

11        where jurisdiction involves the legislative prerogative as

12        well as this judicial prerogative, this would be involved.

13             CHAIRMAN DOUGLASS:  Commissioners, it's been

14        suggested to me by several commissioners that we probably

15        are in a position where we could vote on this unless there

16        is really some matter that you feel you have to raise.

17        Commissioner Barkdull.

18             COMMISSIONER BARKDULL:  Mr. Chairman, I make an

19        observation and a question to Commissioner Wetherington

20        because my understanding when this thing first started out

21        is, in the explanation of what you wanted to do, that this

22        was an aid to the circuit court when they were determining

23        a family matter.  Now you indicate to a response, I

24        understood, to a question by justice -- Commissioner

25        Sundberg, that this was a new court.  And if it's a new


 										85

1        court, then what is the remedy of a person that's

2        aggrieved?  Do they have an appeal to the circuit court or

3        do they have an appeal to the DCA?

4             COMMISSIONER WETHERINGTON:  The way it works is

5        exactly like it works right now, it's a referral to the

6        magistrate.  The magistrate makes the decision.  That

7        decision can be sent back for review by the trial judge.

8        The trial judge will make the decision.  If they're

9        offended by the trial judge's decision, it will go out to

10        your court just like it does right now.

11             COMMISSIONER BARKDULL:  Then it's not a new court.

12        This is an adjunct -- help to the existing -- to the

13        existing system?

14             COMMISSIONER WETHERINGTON:  Well, yeah, I didn't want

15        to fight with him because he's saying if you put it in the

16        Constitution is it now -- you want to call it a new court,

17        you can call it a new court.

18             COMMISSIONER BARKDULL:  I don't want to call it a new

19        court.

20             COMMISSIONER WETHERINGTON:  Well, you don't have to.

21        But from his perspective it's not -- I don't have any

22        disagreement if you want to call it a new court or not.

23             COMMISSIONER BARKDULL:  Then my only other

24        observation is if you're going to equate this to

25        sentencing guidelines I might be against it.


 										86

1             (Laughter.)

2             COMMISSIONER WETHERINGTON:  Well, I'm not.  I'm going

3        to take that back because --

4             CHAIRMAN DOUGLASS:  All right.  Is everybody ready to

5        vote?  All right.  Let's vote.

6             (Vote taken and recorded electronically.)

7             CHAIRMAN DOUGLASS:  Have all commissioners voted

8        except me?  Lock the machine.

9             READING CLERK:  Nineteen yeas and 12 nays,

10        Mr. Chairman.

11             CHAIRMAN DOUGLASS:  I'll announce that I voted yes so

12        I can move to reconsider.  I just announced it.  I'll have

13        to leave the chair to do that.

14             All right.  We'll move to the next special order.

15        Proposal 29 by Commissioner Riley.  Would you read

16        Proposal 29?

17             READING CLERK:  Proposal 29, Proposal to create

18        Article I, Section 26, Florida Constitution, allowing the

19        lawful possession, use, and prescribing of marijuana for

20        medicinal purposes.

21             CHAIRMAN DOUGLASS:  All right.  The chairman of the

22        Declaration of Rights Committee.  Commissioner Smith --

23             COMMISSIONER SMITH:  Thank you very much.

24             CHAIRMAN DOUGLASS:  -- would you like to yield this

25        to Commissioner Riley for her to present since it's her


 										87

1        proposal?

2             COMMISSIONER SMITH:  Sure, if you'd like to, of

3        course.

4             COMMISSIONER RILEY:  Thank you, Mr. Chairman.  I

5        would like to speak --

6             CHAIRMAN DOUGLASS:  First of all, I didn't allow him

7        to say that this was disapproved by the committee vote

8        which I should have, is that not correct, Commissioner

9        Smith, as Chairman?  The committee voted to disapprove --

10             COMMISSIONER RILEY:  Except for one.

11             CHAIRMAN DOUGLASS:  Except for one.  Okay.  That was

12        you.

13             COMMISSIONER RILEY:  It was.  And I understand and I

14        will explain first the reasons why the committee did that

15        and I don't disagree with the committee.  The committee

16        said that in fact they did not feel this was a

17        constitutional issue but they felt that it was a

18        legislative issue.  And I agree with that.  I voted in

19        favor of it because I have carried this water so to speak.

20        But also, we have heard around the state the reasons why

21        this needs to be made an issue and I think it needs to

22        have some airing out.  I think it needs to come to the

23        table.  And I think this proposal has done that.

24             I am concerned, as are other commissioners, that an

25        issue such as this which has been voted out, disapproved,


 										88

1        not necessarily because the committee itself disapproves

2        of the idea but because that it is, as they understand it,

3        a legislative and not a constitutional issue.

4             And I would like us to consider at this time some

5        process that this commission or its committees initially

6        can look at that would allow issues that are legislative

7        and not constitutional issues to have some process as we

8        go through our deliberations and on through May that will

9        allow us to take issues such as this to the Legislature

10        with some sort of recommendation that they either look at

11        it, approve it, or at least give it some awareness in the

12        Legislature and that these issues such as medical

13        marijuana not be simply dropped into oblivion.  So with

14        that, I understand this is not going to pass.  I still

15        recommend it but I am looking for a solution.

16             CHAIRMAN DOUGLASS:  We haven't voted yet.

17        Commissioner Barton, you were up.

18             COMMISSIONER BARTON:  Yes, sir.  I just wanted to say

19        that there may have been some other reasons for the

20        negative vote on this proposition.  One is that there are

21        virtually no medical associations either in the state or

22        nationally where representatives from any medical

23        disciplines who support this proposition such as

24        oncologists, ophthalmologists.  I might also add that

25        there is some legal concern in that it took -- Attorney


 										89

1        General Janet Reno, United States Attorney General,

2        declared illegal the propositions that were passed in

3        California and Arizona because marijuana is a scheduled

4        one drug and therefore elicit drug.

5             Further, there was a real complication and concern

6        about the words "medical practitioner" in terms of who

7        might prescribe such a drug to potential patients.  So I'd

8        just like to mention those other concerns.  Thank you.

9             CHAIRMAN DOUGLASS:  Commissioner Smith.

10             COMMISSIONER SMITH:  Thank you very much.  I'd just

11        like to report out that obviously this issue received a

12        tremendous amount of input to the committee.  We heard

13        from the head of the Florida Department of Law

14        Enforcement, representative of the organization Drug Free

15        America.  We heard from licensed physicians who are

16        proponents and opponents, and obviously we heard from many

17        of the people afflicted by cancer, HIV, AIDS, glaucoma and

18        other serious illnesses.  We heard from a patient, one of

19        the eight patients who is currently receiving a

20        prescription from the government to smoke marijuana

21        cigarettes.

22             I can tell you in addition to the things that were

23        already said, there were some serious concerns about the

24        wording of the proposal, one of which Commissioner Barton

25        has stated.


 										90

1             Another problem, if you'll look at Proposal No. 29,

2        it says, A person whose use of marijuana is certified as

3        necessary.  That doesn't provide for a prescription, it

4        doesn't provide that a certification can be in writing or

5        verbal.  And with regard to the medical practitioners, we

6        heard testimony with regard to other jurisdictions,

7        podiatrists, midwives and others were allegedly considered

8        as medical practitioners.

9             For all the reasons stated, specifically with regard

10        to overbreadth and with regard to the issue stated both by

11        Commissioner Barton and Commissioner Riley, we voted this

12        out unfavorably as a constitutional issue.

13             Thank you, Mr. Chairman.

14             CHAIRMAN DOUGLASS:  Any further discussion?  If not,

15        we'll proceed to vote.

16             (Vote taken and recorded electronically.)

17             CHAIRMAN DOUGLASS:  We're voting on Proposal 29.

18        Well, has everybody voted?

19             READING CLERK:  One aye and 30 nays, Mr. Chairman.

20             CHAIRMAN DOUGLASS:  All right.  Maybe this would be a

21        good time, Commissioner Riley, to recognize the presence

22        of your mother who's sitting up there in the audience.

23        We're delighted to have her here.  Ms. Ray Williams of

24        Valparaiso.

25             COMMISSIONER RILEY:  Mr. Chairman, if I just may


 										91

1        comment, perhaps it's from her that I got the ability to

2        stand up one against thirty plus.

3             CHAIRMAN DOUGLASS:  Well, I know your mother and you

4        took after your mother.  She'd stand up against 100 if it

5        was necessary I think.  So it's genetically there.  Our

6        next proposal is No. 57 by Commissioner Zack who isn't

7        here.  And, Commissioner Smith, would you present that,

8        please.

9             COMMISSIONER SMITH:  Thank you.  And since my dear

10        friend, Commissioner Riley's mother, is here, in the moral

11        universe one is the majority if you're right.  So take

12        some solace in that.

13             CHAIRMAN DOUGLASS:  The secretary just reminded me

14        that as usual, I forgot to have the clerk read the

15        proposal.

16             READING CLERK:  Proposal 57, a proposal to revise

17        Article I, Section 23, Florida Constitution, prohibiting

18        the sale from a database of information that relates to a

19        natural person, unless the person gives written consent.

20             COMMISSIONER SMITH:  Thank you very much.  Just in

21        case some of you looked at the special order calendar and

22        wondered what was the Declaration of Rights committee

23        doing so it would get to the other proposals, we were

24        reading between 100 to 200 faxes and letters.  We were

25        being pigeonholed by just about every business entity with


 										92

1        regard to this issue.  This issue has received more

2        attention, discussion, debate, and concern than I guess

3        all the other issues that we've taken up thus far.  And it

4        has come forward from the declaration of rights committee

5        with an unfavorable recommendation.

6             We listened to Commissioner Zack.  Justice Overton

7        who basically spoke to us about his position and concern

8        on this issue which was consistent with his statements

9        when he spoke to us at the beginning of our sections.

10             And his concern and the concerns we heard from most

11        people about privacy of sale of information from a

12        database and he has put it succinctly as the KC test, that

13        is, that people want to know where private information

14        about them and public information about them is going.

15        But secondly and most importantly, people want to have the

16        right to correct, an opportunity to correct erroneous

17        information in these databases.

18             We also heard from a multitude of opponents,

19        telemarketers, private investigators, nonprofits including

20        American Cancer Society, that gets this database

21        information for fund-raising, et cetera.  We heard from

22        banking institutions and I could just go on and on and on.

23             Specifically with regard to the Zack proposal, one of

24        the big stumbling blocks was that his proposal, unlike the

25        recommendation of Justice Overton, which is not yet a


 										93

1        proposal, requires prior written consent of the person

2        before you could sell that database information.  This

3        would be looked at very, very favorably by people in the

4        criminal underworld.

5             If you had -- if you were trying to conduct some type

6        of investigation of a chop shop or insurance fraud and you

7        are gathering information about false insurance claims and

8        these funny-looking accidents and you had to get the

9        written consent of the target of the investigation before

10        you could get this data, obviously that would be a big,

11        big concern.  That was one of the problems with

12        overbreadth and a problem of the concern of commerce.  The

13        effect that this would have a commerce clause, the effect

14        that it would have on real commerce in the state of

15        Florida.

16             And for those basic reasons and some others, the

17        Declaration of Rights committee voted to unfavorably

18        recommend proposal No. 57, the Zack proposal.

19             And I'm prepared to answer any questions.

20             CHAIRMAN DOUGLASS:  All right.  Anybody have any

21        questions of Commissioner Smith?  Anybody want to speak as

22        a proponent?  Commissioner Mills?

23             COMMISSIONER MILLS:  I will speak in favor of the

24        committee's report, which was seven zip.  And for

25        Mr. Zack's benefit and the benefit of those who are


 										94

1        concerned about this issue, I think that Justice Overton's

2        proposal had received some larger general support from the

3        committee.  I expect it probably will be introduced.  The

4        way -- Commissioner Zack deserves credit for introducing

5        this because it rooted out every possible individual that

6        could be opposed to this kind of thing and I think that

7        the committee was the beneficiary of learning an enormous

8        amount about the problems with this sort of right.

9             Justice Overton's language is much broader

10        constitutionally but much narrower probably in terms of

11        impact.  I think what some members of that committee might

12        do is take another look at that language while

13        understanding that this particular proposal is not viable

14        for a number of reasons but understanding that any future

15        proposal would have to avoid the kinds of conflicts that

16        this proposal brought to light.  But for those that were

17        concerned with the issue, which there are quite a few,

18        that the issue itself still has some life.  And I think

19        the committee will still try to consider something.

20             CHAIRMAN DOUGLASS:  Anything further?  Commissioner

21        Barkdull is rules chairman.  Since Commissioner Zack isn't

22        here, I know that's not a reason to do this, but since

23        they have announced that this is really part of a subject

24        matter that's going to be reported out, would it be

25        appropriate to leave this one pending or just go ahead and


 										95

1        vote on it?

2             COMMISSIONER BARKDULL:  I think we ought to go ahead

3        and vote on it and I'm getting indications that this

4        should not be carried over by members of the committee.

5             CHAIRMAN DOUGLASS:  All right.  Everybody ready to

6        vote?  Then vote.

7             (Vote taken and recorded electronically.)

8             CHAIRMAN DOUGLASS:  Commissioner Riley, you did

9        better.

10             (Laughter.)

11             CHAIRMAN DOUGLASS:  All right.  Lock the machine.

12             READING CLERK:  Zero yeas and 31 nays, Mr. Chairman.

13             CHAIRMAN DOUGLASS:  Is that it?  Okay.  The next

14        proposal is Proposal 53.  Would you read the proposal,

15        please?

16             READING CLERK:  Proposal 53, a proposal to revise

17        Article VI, Section V, Florida Constitution, providing

18        that general elections shall be held on the first Saturday

19        and Sunday after the first Monday in November of each

20        even-numbered year.

21             CHAIRMAN DOUGLASS:  All right.  Commissioner Anthony,

22        that's your proposal.  Who's the chairman here?

23             COMMISSIONER FREIDIN:  Commissioner Kogan is the

24        Chair and I am the Vice Chair, Mr. Chairman.  This

25        proposal was considered at our first committee meeting and


 										96

1        also at our committee meeting yesterday.  It was voted out

2        unfavorably by the committee.  There were many objections

3        raised to the suggestion of Saturday and Sunday voting.  I

4        think that the reasoning of the committee, and I invite

5        the committee members to correct me if I am misstating

6        this, but I think that the reasoning of the committee was

7        multifold.

8             First of all, there are religions objections to

9        having voting on either a Saturday or a Sunday which would

10        then require voting on both days which therefore increased

11        the cost.  And it wasn't only the double days of voting

12        that increased the cost, it was in addition to that

13        additional costs because of weekend voting, having to pay

14        time and half for voting time, having difficulty getting

15        polling places, et cetera.  But we did hear from the

16        supervisor of elections who advised us that their

17        organization opposes such a proposal.

18             And finally, we had the benefit of the experience of

19        two states that have tried this where voter turnout really

20        hasn't increased significantly enough for us to consider

21        it and therefore the committee voted to oppose it.  That's

22        the committee's report.

23             CHAIRMAN DOUGLASS:  Okay.  Commissioner Anthony, you

24        were the sponsor of this proposal, I would recognize you

25        as a proponent.


 										97

1             COMMISSIONER ANTHONY:  Yes, thank you very much,

2        Mr. Chairman.  In an effort to increase opportunity for

3        voting in the state of Florida and our citizenry, I think

4        it's important that we consider every way possible to

5        provide those citizens that our time that we provide now

6        may not have an opportunity to get to the polls.  This

7        provides them the opportunity to get to the polls.

8             It may seem inconvenient to the workers, the

9        supervisor of elections, but I will say to you from

10        experience of working in the voting business for at least

11        a couple of decades, that -- especially in rural

12        communities, our citizens find it very difficult, even

13        though Tuesdays from seven to seven seems like a lot of

14        time to many of us who have the opportunity to get off at

15        lunchtime and run to vote or prior to going to our

16        meetings in the morning.  But I'll say that a lot of our

17        citizens in the state of Florida find it difficult when

18        they have families to take care of, children to drop off

19        and pick up, single mothers, and I can go on and on in

20        examples of people who want to be able to participate in

21        the American system.

22             Right now, we may think that we provide that

23        opportunity, but I know from my experience of people

24        walking up to me and citizens in this state walking up to

25        me saying that, I wish I could have voted but I just did


 										98

1        not have the time and is there any way that we can in the

2        state provide more than one day and perhaps the weekend

3        for us voting.

4             Louisiana and Hawaii are two states that have tried

5        the Saturday and the weekend voting.  What is being

6        reported now, that they have not increased significantly.

7        But there has been a difference in the voting patterns in

8        those states.  And that's why I think Florida through our

9        Constitution should provide that opportunity in

10        consideration of those citizens who really want to

11        participate in our American system.

12             We now are using the motor voter process.  That's a

13        way we've used to try to increase the number of people

14        registering to vote.  And I think this is another option

15        that we should consider and, Mr. Chair, I request a

16        consideration of the Revision Commission of this proposal.

17             CHAIRMAN DOUGLASS:  All right, Commissioner Barton.

18             COMMISSIONER BARTON:  Yes, I'd just like to say --

19             CHAIRMAN DOUGLASS:  He asked to yield for a question,

20        do you yield?  Commissioner Barton, we'll get back to you.

21             COMMISSIONER BARTON:  Oh, I beg your pardon.

22             COMMISSIONER BARKDULL:  Commissioner Anthony, this is

23        the only place in the Constitution where it fixes a date

24        for an election; is that correct?

25             COMMISSIONER ANTHONY:  Yes, that is correct.


 										99

1             COMMISSIONER BARKDULL:  And that's the general

2        election in November?

3             COMMISSIONER ANTHONY:  Yes.

4             COMMISSIONER BARKDULL:  That puts us, with the

5        exception of Louisiana and Hawaii, in conformity with the

6        other 48 states, correct?  Everybody votes for president

7        on the same day except for those two states you

8        identified; is that correct?

9             COMMISSIONER ANTHONY:  Those two states also vote for

10        the president on the Tuesday that's set by federal law.

11             COMMISSIONER BARKDULL:  Then your concern is with the

12        primaries, is that correct, and not the general election?

13             COMMISSIONER ANTHONY:  That is correct.

14             COMMISSIONER BARKDULL:  That could be remedied by the

15        statute under the present Constitution, can it not,

16        because Article I -- Article -- Section 1 says the control

17        of political parties should be by general law or something

18        to that effect.  The only thing that is fixed in the

19        Constitution datewise is the general election.  Everything

20        else is done by statute.

21             COMMISSIONER ANTHONY:  I think and someone may be

22        able to help me on that.  But I think state and county

23        elections are set out in the Constitution.

24             COMMISSIONER BARKDULL:  No, sir, I don't think so.

25        If you look at Article VI, Section 1, the political party


 										100

1        sections are to be regulated by law and they are done by

2        the statutes or by the city charter and are not in the

3        Constitution.

4             COMMISSIONER ANTHONY:  But I think Article VI,

5        Section 5, of the Constitution requires that those

6        elections elect state and county elections on the first

7        Tuesday after the first Monday.

8             COMMISSIONER BARKDULL:  That's the general

9        election --

10             COMMISSIONER ANTHONY:  Yes.

11             COMMISSIONER BARKDULL:  -- provided for in November.

12        And what you're proposing is the general election be

13        changed?

14             COMMISSIONER ANTHONY:  Yes.

15             COMMISSIONER BARKDULL:  Thank you.

16             CHAIRMAN DOUGLASS:  All right.  Now, I took age

17        before beauty, Commissioner Barton.

18             COMMISSIONER BARTON:  Thank you.  I just wanted to

19        point out, speaking in opposition to the proposal, that

20        the Supervisor's Association said the motor voter issue,

21        while increasing the number of people who are registered

22        to vote significantly, did not however increase the number

23        of voter participation.  Also, barriers to elections have

24        been pretty adequately removed in the state of Florida

25        through the absentee ballot process which now allows you


 										101

1        to vote absentee regardless of the reason.  Anybody can

2        vote absentee.

3             COMMISSIONER ANTHONY:  Mr. Chairman.

4             CHAIRMAN DOUGLASS:  Commissioner.

5             COMMISSIONER ANTHONY:  I appreciate that and I agree

6        that every attempt we should make in the state of Florida

7        is to continue to provide that the perspective of not

8        breaking down barriers but creating opportunities is

9        something we should continue to look at.  I'm not very

10        secure with the absentee ballot process especially with

11        the issues that are going on now in south Florida in

12        regards to some of the ballot challenges that Commissioner

13        Rundle was dealing with now.  But in any case, I do

14        appreciate -- I do appreciate your comments and I may feel

15        better about the absentee ballot in a couple of months.

16             CHAIRMAN DOUGLASS:  Commissioner, would you believe

17        they have problems with absentee ballots in small

18        counties?

19             COMMISSIONER ANTHONY:  I do.  I've had a number of --

20        I've heard that a number of people in South Dade have

21        voted that are not still alive but I'm not sure that's

22        true.

23             CHAIRMAN DOUGLASS:  So you're not suggesting that

24        there is anything unique in Dade County.

25             COMMISSIONER ANTHONY:  I'm not suggesting that, sir.


 										102

1             CHAIRMAN DOUGLASS:  I just wanted to know that

2        Commissioner Rundle is doing her job even though she's up

3        here.  Commissioner Riley.

4             COMMISSIONER RILEY:  Mr. Chairman, I'd like to speak

5        in favor of this motion.  I, as Commissioner Anthony, am

6        very concerned with the percentage of our populous and our

7        citizens who not only don't register, but even more

8        importantly once registered, don't vote.  I would remind

9        everyone that the supervisors of elections as their

10        organization, has been, as I remember, against absentee

11        balloting in terms of its quantity.  They have been

12        against motor voter which, while it may have not at this

13        point increased the voting that much, has certainly

14        increased the registration of voters and you have to do

15        that first.

16             So I wouldn't be put off by that and I would strongly

17        recommend that we support this in the hopes that we will

18        have more participation.  And I think that's the goal

19        here.

20             CHAIRMAN DOUGLASS:  Commissioner Barnett.

21             COMMISSIONER BARNETT:  To ask a question of

22        Mr. Anthony.

23             CHAIRMAN DOUGLASS:  Commissioner Anthony, do you

24        yield?

25             COMMISSIONER ANTHONY:  I do.


 										103

1             COMMISSIONER BARNETT:  I was thinking, however, as we

2        were talking about Dade County.  I went to school in

3        Louisiana and there was a story there about the famous

4        Governor Huey Long that when he was on his deathbed, as

5        hard as it was for him to believe that he was actually

6        going to die, he gathered all of his friends and family

7        around him and made them promise that if he died and when

8        he did that they would bury him in south Louisiana because

9        even though he hated the thought of dying, even more so he

10        did not want to give up his right to vote.

11             (Laughter.)

12             But the question I would ask Mr. Anthony is, as I

13        understand this proposal, we change the general election

14        date only as it regards state and county officers.  And

15        that we would continue to have a general election for all

16        other officers, federal elections.  So that, in effect, we

17        are creating an additional day or two of voting as opposed

18        to consolidated opportunity for people.  And as hard as it

19        is to get there on one day, you're really creating two

20        times people have to go out and vote as opposed to one.

21        And I wonder if that doesn't really create a disincentive

22        for people to vote or vote selectively and that it could

23        have an impact on our general elections.

24             COMMISSIONER ANTHONY:  In creating this proposal I

25        considered that and I agree that that is something that is


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1        of concern.  I think that voters are going to select

2        clearly which election that they are going to participate

3        in, even if they have to go twice.  Some people will feel

4        as if the presidential election -- or the congressional

5        elections are more important and therefore they will vote

6        on that Tuesday.  Others will vote on that Saturday and

7        Sunday.

8             But I feel as if the opportunity to participate and

9        also the potential increase in participation in the

10        electorate process is my ultimate goal in presenting this

11        proposal.  But the answer is, yes, I think that would be a

12        hard decision and it may, in fact, decrease on certain

13        days in certain elections.

14             CHAIRMAN DOUGLASS:  Commissioner Butterworth, I

15        believe you were up first.

16             COMMISSIONER BUTTERWORTH:  Mr. Chairman, if

17        Commissioner Anthony will yield for a couple of questions.

18             COMMISSIONER ANTHONY:  I will.

19             COMMISSIONER BUTTERWORTH:  Commissioner Anthony,

20        would the supervisor of elections today have the authority

21        to open up their offices for voting for people who would

22        not be in their precincts on election day in order to vote

23        early, not by absentee, but to vote in person?

24             COMMISSIONER ANTHONY:  Yes.

25             COMMISSIONER BUTTERWORTH:  Are a number of the


 										105

1        supervisors of elections doing that now to the best of

2        your knowledge?

3             COMMISSIONER ANTHONY:  I don't know of any.  I can't

4        respond to that.

5             COMMISSIONER BUTTERWORTH:  I know that in my county

6        of Broward, my home county of Broward, I believe the last

7        11 years I've probably only been in the county on election

8        day maybe three times when I was on the ballot.  In the

9        other times, I'd be in Tallahassee but I'd be able to vote

10        days beforehand by just walking into one of the many

11        offices the supervisor has and state that I would not be

12        in my precinct or the jurisdiction on election day so they

13        allowed me to do it.

14             So for that reason, I believe, perhaps maybe this is

15        not the best place to put it in the Constitution but to

16        encourage the supervisors to use the authority they

17        already have and that some of them are already using.

18        Thank you, Commissioner.

19             CHAIRMAN DOUGLASS:  All right.  I think Commissioner

20        Marshall was next.

21             COMMISSIONER MARSHALL:  Thank you, Mr. Chairman.  The

22        question for Commissioner Anthony.  In your attempt to

23        find ways to make it easier for people to get to the

24        polls, did you consider the possibility of extending the

25        voting hours without changing the days?


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1             COMMISSIONER ANTHONY:  I did consider that as an

2        option.  But again, based upon the input that I received,

3        the weekend voting opportunity was a more flexible

4        opportunity for people to get to the polls because of the

5        working hours and the time.

6             And, again, you know, you create proposals based on

7        your experience and my experience is in the rural

8        community where my family and my citizens get up at 5:00

9        in the morning and they go to work.  And then they come in

10        at 6:00 or 7:00 at night on buses.  And, you know, again,

11        I created the proposal because of an experience that I

12        had.  Generally, in the state of Florida for some of us

13        this may not be a challenge and therefore it's hard to

14        sometimes explain it.

15             CHAIRMAN DOUGLASS:  Commissioner Smith.

16             COMMISSIONER SMITH:  Thank you, Mr. Chairman.  First

17        of all, one of the important issues that I want to deal

18        with and being privileged to serve on this commission was

19        to increase voter participation in our system of

20        government.  And so I commend you for trying to find a way

21        to do that.

22             I was privileged to be in south Africa during the

23        first election after Apartheid where the voting was over

24        three days.  The first day was for people who were

25        physically disabled, people who were in hospitals and


 										107

1        prisoners, by the way.  And the second day and third day

2        were for everybody else.  I see a lot of situations,

3        especially in Miami, which is a commuter transit,

4        transit-oriented working class, where people get up at

5        6:00 in the morning, get their kids ready for school, drop

6        their kids off at 7:30 and go to work.  By the time they

7        get back home, it's 7:00, the polls are closed.

8             I think we're going to have to do this much more

9        incrementally.  There is no doubt about it if we even

10        thought about Saturday and Sunday, the religions community

11        would just, not just the heads of the churches and the

12        synagogues, but the congregations, there would just be too

13        much of a headwind.

14             Secondly, the business community paying overtime,

15        doubletime or whatever, you see how hard it is just to get

16        the minimum wage to a decent living wage.  So I think that

17        we need to consider proposals incrementally like maybe

18        extending the hours down to 8:00 or, you know, something

19        of that matter and let's move forward.  Plus we have some

20        other ballot access issues that are coming up that

21        hopefully provide a wider choice which may be able to

22        do -- get more people interested.

23             So while I have to oppose this proposal, I think we

24        can work together hopefully over the course of our term to

25        make some incremental steps in the direction you're trying


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1        to leading us.  Thank you.

2             CHAIRMAN DOUGLASS:  Any further discussion?  If not,

3        we'll proceed to vote.  All right.  Okay.  Has everybody

4        voted?

5             (Vote taken and recorded electronically.)

6             CHAIRMAN DOUGLASS:  Okay.  Lock it.

7             READING CLERK:  Six yeas and 23 nays, Mr. Chairman.

8             CHAIRMAN DOUGLASS:  All right.  It fails.  We're

9        going to -- I've had some people that have to be somewhere

10        by 12:00.  So we're going to break for lunch now.  And I

11        would suggest that we come back at what, 1:15?  Is that

12        agreeable, Commissioner Scott?  Is 1:15 -- I think 1:15

13        would be more appropriate.  We're going to have to eat in

14        the building.  We didn't get the caterer to come in today

15        so I would suggest -- and our director is trying to set up

16        a special line down there, but it probably won't happen.

17        Anyway, that's where we're going to have to meet.

18        Commissioner Barkdull.

19             COMMISSIONER BARKDULL:  I move we recess until 1:15.

20             CHAIRMAN DOUGLASS:  Without objection.

21             (Lunch recess.)

22             SECRETARY BLANTON:  Quorum call.  Quorum call.  All

23        commissioners indicate your presence.  All commissioners

24        indicate your presence.  Quorum call, quorum call.  All

25        commissioners indicate your presence.


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1             CHAIRMAN DOUGLASS:  If you haven't registered your

2        presence, please push your button.  Okay.  Come to order

3        please.  Commissioner Barkdull for informational.

4             COMMISSIONER BARKDULL:  Thank you, Mr. Chairman and

5        members of the commission.  The rules committee had an

6        informal meeting a few minutes ago and has gone over a

7        proposed addendum to the special order that you have on

8        your desk which will be presented to you, it's in the

9        printer's office right now and will be out within the next

10        15 or 20 minutes and will be given to your desk.  This

11        will add onto the special order we've got today.  And the

12        suggestion of the rules committee is going to be that we

13        convene at nine in the morning and we end at 1:00 tomorrow

14        or we end when we finish the special order, whichever

15        comes first.  And we'll definitely be here no later than

16        1:00 tomorrow.

17             The addendum to the special order will be handed to

18        you as soon as the director receives it and it will be

19        given -- on everybody's desk and that will be the program

20        we will follow.  There will be no rules committee meeting

21        at 5:00 this afternoon.  But there still will be the

22        Declaration of Rights committee at 4:00.

23             CHAIRMAN DOUGLASS:  All right.  We'll proceed.  The

24        next proposal is 18.  The secretary reminds me that they

25        will post that in the rotunda for anyone that's interested


 										110

1        and it will also be distributed to the press and others

2        that are interested.  All right.  Proposal 18.  Would you

3        read Proposal 18, please.

4             READING CLERK:  Proposal 18, a proposal to revise

5        Article VI, Section 5 Florida Constitution, providing for

6        elections to be held on Saturday and Sunday and

7        prohibiting second primaries.

8             CHAIRMAN DOUGLASS:  Commissioner Freidin, Chairman of

9        the -- vice chairman acting as chairman of the committee.

10        This is Commissioner Riley's proposal.  Do you want to

11        yield to her for her to present it?

12             COMMISSIONER FREIDIN:  I would be happy to do that.

13             CHAIRMAN DOUGLASS:  And there's an amendment on the

14        desk.

15             COMMISSIONER RILEY:  Actually, Mr. Chairman, as maker

16        of this proposal, I would like to withdraw it at this

17        time.

18             CHAIRMAN DOUGLASS:  All right.  We have the same

19        thing applying to this as we did to other public

20        proposals.

21             COMMISSIONER RILEY:  Not that there's not an issue

22        here, but I'd like to work on the wording --

23             CHAIRMAN DOUGLASS:  Do you want to temporarily pass

24        it?  You could withdraw it or you can temporarily pass it.

25        You can't withdraw it if somebody objects.


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1             COMMISSIONER RILEY:  I withdraw it.

2             CHAIRMAN DOUGLASS:  Okay.  Without objection, it will

3        be withdrawn.  Are there objections, Commissioner

4        Marshall?

5             COMMISSIONER MARSHALL:  I'm not sure, Mr. Chairman.

6        It seems to me it would be proposals.  One has to do with

7        weekend voting and the other one has to do with

8        eliminating the second primary.  Aren't they separate

9        issues?

10             COMMISSIONER RILEY:  They are separate issues.  In

11        fact, at the committee level I thought they had been

12        split.  But my understanding is neither have passed at the

13        committee level anyway.  And my amendment was going to be

14        to pull out the weekend voting part.  But I think at this

15        time -- and perhaps, Mr. Chairman, that would be the

16        better thing to do is to temporarily pass it and to not

17        act on it today.

18             CHAIRMAN DOUGLASS:  If you want to temporarily pass

19        it, I think without objection we'll temporarily pass it.

20        But I agree with Commissioner Marshall and thank you for

21        pointing that out, Commissioner Marshall, these are really

22        two issues and the weekend voting we discussed and did not

23        approve, but the issue of prohibiting second primaries is

24        an entirely different issue which historically has been

25        done in Florida as a matter of fact.


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1             COMMISSIONER MARSHALL:  Yes, Mr. Chairman, and I

2        think an important one.  I would be very much interested

3        in that.

4             CHAIRMAN DOUGLASS:  So it's my understanding that

5        Commissioner Riley is going to redraft that and present it

6        as a substitute?

7             COMMISSIONER RILEY:  Yes, Mr. Chairman.

8             CHAIRMAN DOUGLASS:  Then you can do that at any time.

9             COMMISSIONER RILEY:  Thank you.

10             CHAIRMAN DOUGLASS:  Without objection, then we'll

11        allow that to be the case.  And now we'll move to Proposal

12        10.  Would you read that, please?

13             READING CLERK:  Proposal 10, proposal to revise

14        Article VI, Section 4, Florida Constitution.  Deleting

15        term limits for offices of state senator or

16        representative, lieutenant governor, Cabinet member, U.S.

17        representative, and U.S. senator.

18             CHAIRMAN DOUGLASS:  Commissioner Freidin, do you want

19        Commissioner Sundberg to present that since it's his

20        proposal?  Commissioner Sundberg, you have the floor.

21             COMMISSIONER SUNDBERG:  Thank you, Mr. Chairman.

22        Fully recognizing that this is an issue that was

23        considered by the voters in November of 1992 and that the

24        imposition of term limits passed by significant majority,

25        I do not intend to beat this horse, at least, to death.  I


 										113

1        have other horses that I am sure I will beat to death.

2             But, apart from that, I simply suggest to you that

3        term limits are not a limitation on public officials so

4        much as they are a limitation on the electorate.  If the

5        electorate wants to limit any public official's term they

6        have the ability to do that at the ballot.  But to impose

7        on them a limitation as to the length of time their

8        elected public officials can serve does not make sense to

9        me and it seems to me that we lose the advantage of the

10        continuity and the maturity that comes with service.

11             I frankly do not recall what the debate was

12        surrounding this issue or to what extent it was.  It was

13        put forward, as I recall, as an initiative petition.  I

14        think it is entitled to an opportunity after the people

15        have had several years to consider it to reconsider this

16        issue and I do that with full comprehension that it has

17        recently been considered by the people.  Thank you,

18        Mr. Chairman.

19             CHAIRMAN DOUGLASS:  All right.  Is there any further

20        discussion on this debate?  Any proponents wish to be

21        heard?  Any opponents wish to be heard?  All right.  If

22        not, we'll proceed to vote.  In a minute we'll proceed to

23        vote.  Now we'll vote.

24             (Vote taken and recorded electronically.)

25             CHAIRMAN DOUGLASS:  All commissioners voted?  Okay.


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1        Lock the machine.

2             READING CLERK:  Five yeas and 19 nays, Mr. Chairman.

3             CHAIRMAN DOUGLASS:  All right.  Let's move to

4        Proposal No. 78.  Would the clerk please read it?

5             READING CLERK:  Proposal 78, a proposal to revise

6        Article VI, Section 4, Florida Constitution, deleting

7        provisions that establish term limits for Florida

8        delegates to Congress.

9             CHAIRMAN DOUGLASS:  Commissioner Freidin, would you

10        yield to Commissioner Ford-Coates?

11             COMMISSIONER FREIDIN:  Yes.

12             CHAIRMAN DOUGLASS:  Commissioner Ford-Coates, you're

13        recognized.

14             COMMISSIONER FORD-COATES:  Mr. Chairman, at this time

15        I'd like to temporarily pass this proposal until our next

16        meeting.

17             CHAIRMAN DOUGLASS:  Without objection, it will be

18        temporarily passed until the next meeting.  Now, that's

19        tomorrow morning.

20             COMMISSIONER FORD-COATES:  I'd like to do it until

21        our December meeting.

22             CHAIRMAN DOUGLASS:  Okay.  Without objection, it will

23        be passed until the December meeting.  And that was

24        approved by the committee as I understand it.  Okay.

25             Proposal 71 by Commissioner Mills.  Would you please


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1        read the proposal?

2             READING CLERK:  Proposal 71, a proposal to revise

3        Article VI, Section 5, Florida Constitution, providing for

4        open primary elections.

5             CHAIRMAN DOUGLASS:  Commissioner Freidin, do you

6        yield to Commissioner Mills?

7             COMMISSIONER FREIDIN:  Yes.

8             CHAIRMAN DOUGLASS:  Commissioner Mills.

9             COMMISSIONER MILLS:  Mr. Chairman, having experienced

10        several committee hearings in front of the ethics and

11        elections committee, and having been flagellated enough, I

12        would like to move to withdraw this with the knowledge and

13        assurance that Commissioner Ford-Coates and I are looking

14        at some other methods to deal with this issue.  I thinks

15        it's -- in the ethics and elections area, we've heard a

16        lot of testimony about people being concerned about

17        access, about voters wanting to increase the number of

18        people who would participate in elections.  The goal of

19        the open primary is to do that.

20             The goal of a number of other things we discussed is

21        to do that.  We probably just need to fine-tune it.  So I

22        would move -- ask unanimous consent to remove this

23        proposal and tell you that I will work with Commissioner

24        Ford-Coates to present something that is analogous to this

25        to increase voting participation.


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1             CHAIRMAN DOUGLASS:  All right.  Without objection,

2        Commissioner Mills will withdraw from further

3        consideration Proposal 71.  That's the open primary.  If

4        anybody wants to keep this on, all you have to do is

5        object.

6             (No response.)

7             Without objection, then it is removed and withdrawn

8        with the understanding now on November the 25th this can

9        be introduced by any member.  And I take it somebody is

10        going to do that; is that correct?

11             Okay.  Proposal 35 by Commissioner Freidin.  Would

12        you read it, please?

13             READING CLERK:  Proposal 35, a proposal to revise

14        Article II, Section 8, Florida Constitution, relating to

15        ethics in the government.

16             CHAIRMAN DOUGLASS:  Read the rest of it there a

17        little bit.

18             READING CLERK:  Including in that section the

19        requirement set out in the Article III, Section 18,

20        Florida Constitution which requires creation of a code of

21        ethics; repealing Article III, Section 18, Florida

22        Constitution as a distinct section.

23             CHAIRMAN DOUGLASS:  All right.  Commissioner Freidin

24        as chairman of the committee and as sponsor of this

25        proposal.


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1             COMMISSIONER FREIDIN:  Mr. Chairman, this proposal

2        simply is a housekeeping matter.  It does not make a

3        substantive change.  Currently the Constitution provisions

4        regarding ethics are located in Article II, Section 8,

5        except for the requirement that the Legislature adopt a

6        code of ethics for state employees and nonjudicial

7        officers.  That provision currently is found in Article

8        III, Section 18.  The purpose of this proposal is simply

9        to put both provisions together where they belong in

10        Article II, Section 8.

11             CHAIRMAN DOUGLASS:  All right.

12             COMMISSIONER FREIDIN:  It passed unanimously out of

13        the committee with a favorable recommendation.

14             CHAIRMAN DOUGLASS:  If you would, I think it might be

15        helpful, I'm not sure everybody is awake yet, including

16        me.  If you would again explain what we're changing with

17        this.

18             COMMISSIONER FREIDIN:  There is no substantive

19        change.  It simply is moving a provision with regard to --

20        that directs the Legislature to adopt a code of ethics for

21        state employees and nonjudicial officers and put it in the

22        other section where ethics is dealt with so that it's not

23        buried in a separate section.

24             CHAIRMAN DOUGLASS:  So this would, in effect, be part

25        of the ultimate glitch bill or the bill we've discussed


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1        earlier when Commissioner Wetherington was up that this

2        would be something that would be a technical change that

3        there should not be any controversy about?

4             THE WITNESS:  I would think so.

5             CHAIRMAN DOUGLASS:  All right.  With that

6        explanation, are you ready to vote?  All in favor, go

7        ahead and vote.  That's Proposal 35.

8             (Vote taken and recorded electronically.)

9             CHAIRMAN DOUGLASS:  Has everybody voted?  All right.

10        Count the votes.

11             READING CLERK:  Twenty-six yeas and zero nays,

12        Mr. Chairman.

13             CHAIRMAN DOUGLASS:  Proposal No. 32 by Commission

14        Ford-Coates.  Would the clerk please read?

15             READING CLERK:  Proposal 32, a proposal to revise

16        Article VI, Section 2, Florida Constitution reducing the

17        voting age to age 18.

18             CHAIRMAN DOUGLASS:  Commissioner Ford-Coates.

19             COMMISSIONER FORD-COATES:  This is a technical

20        proposal, part of housekeeping.  The Constitution

21        currently states that one has to be a resident for a

22        certain amount of time and has to be 21 years of age.

23        Both those provisions were struck down and we need to

24        clean it up and make the Constitution accurate.

25             CHAIRMAN DOUGLASS:  The Chair had an inquiry.  Is the


 										119

1        next one, Proposal 34, the same thing?  Commissioner

2        Barnett, the next one, are they identical or are they

3        different?

4             COMMISSIONER BARNETT:  They must be different or they

5        wouldn't have put them there but they look identical to

6        me.  The substance is identical.

7             CHAIRMAN DOUGLASS:  Commissioner Ford-Coates, do you

8        know what the actual difference is?

9             COMMISSIONER FORD-COATES:  I don't see a difference

10        either, Martha, do you?

11             COMMISSIONER BARNETT:  I will withdraw 34 when the

12        time comes.

13             CHAIRMAN DOUGLASS:  Okay.  That's what I wanted to

14        know.  Do we need to take that one up too or we can do it

15        all at once?  Anybody that has any problems with this,

16        raise it.  We'll vote.  Okay.  The secretary informed me

17        that one of these does not require a length of residency

18        and the other one does.  That's why I was asking if there

19        is any difference in these two proposals.  Which is which?

20             Well, I guess the change we're discussing, on one of

21        them it says "is a permanent resident" instead of "has

22        been," "of the state" instead of saying "for one year and

23        six months in the county" is struck.  Then the provision

24        in the end, "provisions may be made by law for other bona

25        fide residents," that's struck.  Then on the other one, it


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1        appears to be --

2             COMMISSIONER BARNETT:  Mr. Chairman, I believe they

3        are identical in language.  So --

4             CHAIRMAN DOUGLASS:  We'll just combine them and vote

5        on them as --

6             COMMISSIONER BARNETT:  Either that or I'll withdraw

7        the second one.

8             CHAIRMAN DOUGLASS:  That's okay.  We'll vote on them

9        both at the same time.  Commissioner Evans-Jones.

10             COMMISSIONER EVANS-JONES:  I have a question of the

11        sponsor, either one, both of them.  Currently, you don't

12        have to live here for a year prior to voting, do you?

13             COMMISSIONER FORD-COATES:  You're correct, you do not

14        because that provision was struck down.

15             COMMISSIONER EVANS-JONES:  But are you saying here

16        that you do?

17             COMMISSIONER FORD-COATES:  No, it's been -- what

18        we're doing is deleting both the provision for residency,

19        length of residency, and the age of 21.

20             COMMISSIONER EVANS-JONES:  Okay.

21             COMMISSIONER FORD-COATES:  We're correcting it to the

22        way it is under the U.S. Constitution.

23             CHAIRMAN DOUGLASS:  Both of them say exactly the same

24        thing and they are to make the Constitution comply with

25        the U.S. requirements for voting.  And that's what I


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1        understand is the case.  And we'll vote on the first one

2        and Commissioner Barnett will withdraw, without objection,

3        the second one.  Commissioner Riley.

4             COMMISSIONER RILEY:  I had a question for the

5        proposer.  My question is, is there a definition for a

6        permanent resident?

7             COMMISSIONER FORD-COATES:  As a understand it, a

8        permanent resident is defined by law.  In other words,

9        you're registered to vote, you filed a declaration of

10        domicile, whatever is required to register under the

11        general law of the state.  The reason that -- I believe

12        that terminology is in there was the initial provision

13        whereby you had to live within a county for a certain

14        amount of the time.  That requirement was struck down by

15        the courts.  By the courts, correct, the residency

16        portion, but the age was changed by an amendment to the

17        Constitution.

18             CHAIRMAN DOUGLASS:  All right.  Any further questions

19        or statements?  If not, we'll proceed to vote on Proposal

20        No. 32.  Go ahead and vote.

21             (Vote taken and recorded electronically.)

22             CHAIRMAN DOUGLASS:  Have all commissioners voted?

23        Okay.  Lock the machine.

24             READING CLERK:  Twenty-eight yeas and zero nays,

25        Mr. Chairman.


 										122

1             CHAIRMAN DOUGLASS:  All right.  Commissioner Barnett,

2        without objection, moves to withdraw Proposal No. 34.  Is

3        there any objection?  If not, it's withdrawn.

4             Now we'll move to legislative and Proposal No. 65 --

5        85 by Commissioner Sundberg.  The legislative committee is

6        chaired by?

7             COMMISSIONER SUNDBERG:  James Earl Thompson.

8             CHAIRMAN DOUGLASS:  Do you yield --

9             COMMISSIONER SUNDBERG:  Mr. Chairman, may I please

10        yield --

11             CHAIRMAN DOUGLASS:  Wait a minute, we better read the

12        title.  I remembered it this time.  You see, I'm getting

13        better.  Read us what it is.

14             READING CLERK:  Proposal 85, a proposal to revise

15        Article I, Section 24; Article III, Sections 1, 2, 3, 4,

16        5, 7, 8, 9, 11, 15, 16, 17, 19; Article IV, Sections 6, 7,

17        9, 13; Article V, Sections 2, 9, 11, 12, 20; Article VII,

18        Sections 1, 5, 18; Article VIII, Section 6; Article X,

19        Sections 2 and 12; Article XI, Sections 1, 2, 5, and 6;

20        Article 12, Sections 11, 12, 14, Florida Constitution and

21        to create Article III, Sections 20 and 21; Article XII,

22        Section 22, Florida Constitution, providing for a

23        unicameral Legislature.

24             CHAIRMAN DOUGLASS:  Well, I think -- are you ready to

25        vote?


 										123

1             (Laughter.)

2             CHAIRMAN DOUGLASS:  No, I was only kidding.  With

3        that many changes, I feel that maybe we don't have enough

4        time to really discuss all of them.  But basically is this

5        a unicameral Legislature proposal where you get rid of the

6        Senate and the House and put them all into one,

7        Commissioner Sundberg?

8             COMMISSIONER SUNDBERG:  I sense that there are

9        commissioners here, one sitting in front of me and even

10        the Chair who are making light of this proposal --

11             CHAIRMAN DOUGLASS:  No, the Chair isn't.  What I was

12        making clear was to considering that all of these

13        articles, provisions, have to be revised and deleted and

14        it's a very difficult thing to consider.  But basically

15        when you strip it down, it's proposing a unicameral

16        legislature; is it not?

17             COMMISSIONER SUNDBERG:  Yes, Mr. Chairman, if you

18        choose to characterize it that way.

19             (Laughter.)

20             CHAIRMAN DOUGLASS:  Well, is that a wrong

21        characterization whether I chose to or not?

22             COMMISSIONER SUNDBERG:  It may not be totally

23        accurate, but I wouldn't say it's wrong.

24             CHAIRMAN DOUGLASS:  Okay.  I want you then to proceed

25        and we will be enlightened.


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1             COMMISSIONER SUNDBERG:  Actually, with your

2        permission, Mr. Chairman, I would like to defer to the

3        cosponsor of this proposal, Commissioner Evans-Jones, to

4        handle this technical amendment.

5             CHAIRMAN DOUGLASS:  Commissioner Evans-Jones, it took

6        him a long and took me a long time to get to that.

7             COMMISSIONER EVANS-JONES:  Thank you, Mr. Chairman,

8        thank you, commissioners.  Now, listen up, this is

9        something that's really important and I want y'all to

10        recognize that.

11             We've been talking about this thing and that thing,

12        it really isn't very important in the big picture.  The

13        public has never had an opportunity and will never have

14        another one in all probability to be able to vote for a

15        unicameral Legislature.  I happened to have served in the

16        Legislature for ten years here and, believe me, I know the

17        system and I can tell you that it's a lousy system.  The

18        people who have served in the system are terrific but they

19        are bound by a system that is absolutely not managed

20        properly.  And let me try to tell you why.  For instance,

21        it is very costly to have two houses and let me give you

22        some figures on that.

23             The Senate this past year had spent $27,893,476.  The

24        House has spent 50,162,204.  And the Joint Legislative

25        Committee, which obviously you would not need at all, has


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1        spent 20,722,124.  So you're talking about a lot of money.

2        You have heard and I have heard that people would love to

3        cut the cost of government.  They would like for it to be

4        more efficient and this certainly would accomplish that

5        purpose.  I think $48,615,604 is a significant saving and

6        I think we could use it for a lot of very worthwhile

7        purposes.  Now this money is being used to pay very

8        talented staff in the House and in the Senate who are

9        doing identical functions.  And let me tell you, it's not

10        at all necessary to have all of these people doing the

11        same thing.

12             When we had the Supreme Court decision one man, one

13        vote, we really no longer needed it because the members of

14        the House and the members of the Senate are in fact carbon

15        copies representing the same constituency.  So I want you

16        to think about that.  Nobody can say that this is not a

17        cost-saving factor, it certainly is an efficient factor as

18        well.

19             If you've ever been up here during the Legislature,

20        you and I both know that the bills are batted back and

21        forth between the House and the Senate and of course then

22        you have the third house out there who is really running

23        the show in a lot of cases anyway.  And if you had a

24        one-house Legislature, people would know who their

25        legislators are.  Right now people don't know who


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1        represents them.  A lot of us have been elected.  People

2        will come and say, Oh, yeah, we voted for you.  And we

3        know they don't live in our districts.  You could really

4        put the spotlight on people and they would know really how

5        you voted.

6             Right now we have wonderful excuses of, Well, you

7        know, they killed it in the House but I would have

8        supported it.  Or they killed it in the Senate or

9        whatever.  So I think that you need to think about that.

10        The League of Women Voters has taken a stand on this a

11        long time ago and they have not revoked the stand that

12        they think it's a wonderful idea and so do I.

13             Another thing, the economy and the efficiency is

14        there.  And you talk about checks and balances.  You don't

15        need checks and balances within a branch of government,

16        you need checks and balances between the branches of

17        government.  If you had a one-house Legislature, you would

18        still have the governor's power to veto, you would still

19        have judicial review and certainly you would need that.

20             When they first set up the two houses, we didn't have

21        gubinatorial veto and we had the landed gentry and then we

22        had the masses.  And now we simply don't need that

23        anymore.  You really right now have a unicameral

24        Legislature anyway and you know what you call it, the

25        conference committee.


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1             So really and truly there are about six people who

2        are running the show on every important issue.  The

3        Speaker of the House appoints two or three people, the

4        president of the Senate appoints two or three people, and

5        they have a meeting and come back with their

6        recommendation to the rest of the members.  The rest of

7        the members have to take it or leave it.  So it's not

8        really as much of a democracy as it would be if you had

9        all of the members in a unicameral Legislature voting on

10        all the proposals.

11             Also, there would be a lot less chaos.  Right now

12        many, many times most of the members don't know what they

13        are voting for.  You could have proposals on their desk at

14        least three days prior to voting and you would know what

15        you're voting for.  Also the press would be able to report

16        it and your constituents would know what you were voting

17        for.  Wouldn't that be nice for a change?  It's -- Senator

18        Scott, did you want to say something?

19             COMMISSIONER SCOTT:  No, I was just saying I would

20        like to announce that I know everything that I voted

21        for --

22             COMMISSIONER EVANS-JONES:  Well, you're an exception.

23             CHAIRMAN DOUGLASS:  All right.  I would appreciate it

24        if we could have order in the chamber because this is a

25        very well done presentation and is worthy of our complete


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1        attention.  And I'm going to ask those of you that feel

2        constrained to walk around the chamber to wait until she

3        finishes this presentation and then walk around when

4        someone else is talking.

5             Proceed, Commissioner Evans-Jones.

6             COMMISSIONER EVANS-JONES:  Thank you, Mr. Chairman.

7             (Off-the-record comment.)

8             CHAIRMAN DOUGLASS:  It's Rule 13.4 that says sit up

9        and shut down.

10             COMMISSIONER EVANS-JONES:  Thank you, Mr. Chairman.

11        I appreciate the courtesy of my fellow members.  Well, I

12        think basically there are many people here who don't want

13        this, particularly people who are lobbyists because it's

14        much easier now to control the process the way it is

15        because it is so confusing and so chaotic.  The

16        Legislature obviously will never put this venture forward.

17             But we have one state, Nebraska, and you wonder why

18        other states don't have this.  And the reason for that is

19        because the Legislature controls it and they would never

20        put it on the ballot.  You're talking about jobs, you're

21        talking about money, you're talking about people actually

22        understanding what's going on.

23             You could have -- you could take some power away from

24        the president or the speaker or whoever they decide to

25        call this person.  And you could have committees elect


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1        their own chairman.  And wouldn't that be nice?  And then

2        you wouldn't have the threat of, Well, if you don't do

3        this, I'm going to remove you as chairman of that

4        committee.  And I think that power does corrupt.  I think

5        it would be a much healthier system this way.

6             I introduced this many years ago knowing full well it

7        would never get out of committee but it did give me the

8        opportunity to speak to a lot of people in the general

9        public.  And let me tell you something, if you put this on

10        and allow the people to have the opportunity for the first

11        time to be able to -- to actually vote on something that

12        is important, that is cost saving, that is efficient, you

13        will have done something important for the state of

14        Florida, probably the most significant thing that you

15        could ever do.  So I would be happy to answer any

16        questions.

17             CHAIRMAN DOUGLASS:  Thank you very much.  And that

18        was a very -- one of the better presentations we've had.

19        And, Commissioner Sundberg, do you rise in support?

20             COMMISSIONER SUNDBERG:  I do and I would just like to

21        add two very brief comments to that very eloquent

22        presentation of the position.  And one is that any of you

23        who've had the opportunity, and it's on television now

24        where you can see the English parliamentary system in

25        action, I think it is clear that the majority party is


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1        simply required to be more responsive in that system

2        because it must, through its prime minister, stand up and

3        defend its positions.  At the same time, I think it

4        diminishes the power of special interest.  As the

5        commissioner has said, you can't hide the ball nearly as

6        well in a unicameral system as you can in a bicameral

7        system.

8             And lastly, just some anecdotal information.  In the

9        legislative committee yesterday, which voted unfavorably

10        on this proposition, we had a presentation for purposes of

11        presenting essentially a revisor's bill on 17 issues upon

12        which the House and the Senate had come to different

13        conclusions on.  In this last session, this special

14        session that just past, in fact, the House and the Senate

15        could not agree on whether or not they had to take veto

16        messages at that special session or it would be lost and

17        has to be taken up at a subsequent session.  That is not

18        constructive, it doesn't advance the people's business and

19        I think it's a perfect example of why a unicameral

20        Legislature would be more efficient and I think more

21        responsive.  Thank you very much, Mr. Chairman.

22             CHAIRMAN DOUGLASS:  Commissioner Wetherington.

23             COMMISSIONER WETHERINGTON:  Can I say something

24        against it?

25             CHAIRMAN DOUGLASS:  Yes.  First, are there any other


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1        proponents that want to rise?  Commissioner Alfonso.

2             COMMISSIONER ALFONSO:  Well, I was just -- very

3        briefly I'd like to go through some of the things I was

4        writing down as Commissioner Evans-Jones was talking.  And

5        I just wrote down some factors that I look for in

6        government and when I look at accountability, that's a

7        positive, when I looked at cost savings, that's a

8        positive, when I looked at representation of the people,

9        that's a positive.

10             When I looked at campaign spending, I think we could

11        probably have clear lines and maybe a few less candidates

12        to give too.  Lines of authority, that's a positive.

13        Special interest influence, that's a positive.  And the

14        simplification of the whole overall system, that's a

15        positive.  So those are some things that are important to

16        me in the way the government runs.

17             The only negative I can think of is the architecture

18        of this building.

19             (Laughter.)

20             CHAIRMAN DOUGLASS:  Commissioner Thompson, do you

21        have a question or do you rise for --

22             COMISSIONER THOMPSON:  I'll speak --

23             CHAIRMAN DOUGLASS:  -- when it becomes time for the

24        opponents?  Are you a proponent, Mr. Morsani?

25             COMMISSIONER MORSANI:  A question.


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1             CHAIRMAN DOUGLASS:  Question directed to the sponsor?

2             COMMISSIONER MORSANI:  Yes, sir.

3             CHAIRMAN DOUGLASS:  Do you yield, Commissioner

4        Evans-Jones, to rise to the question, please?

5             COMMISSIONER EVANS-JONES:  Certainly.

6             COMMISSIONER MORSANI:  Have you had any -- has there

7        ever been any polling done on this issue of the public?

8        And there's a little bit of a difference in our states

9        between Nebraska and Florida especially with 14 million

10        people and we all talk about access to our Legislatures.

11        But have we had any polling pro or con on this issue in

12        this state?  And if there are any surveys and what are the

13        results of those?

14             COMMISSIONER EVANS-JONES:  Thank you, Commissioner

15        Morsani.  The way to have the most accurate polling on

16        this is for us to put it on ballot and give the people an

17        opportunity to say yes, whether it's a good idea or

18        whether it isn't.  And then I think you can go to

19        editorial boards who would give you a great deal of

20        information.  Right now, we have said in there no more

21        than 120 members in a unicameral Legislature.  You could

22        obviously change it later.  I know that a lot of people

23        have laughed and joked but this is a serious situation.

24             CHAIRMAN DOUGLASS:  All right.  Are there any other

25        questions of the -- Commissioner Brochin.


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1             COMMISSIONER BROCHIN:  Yeah, I just had a question.

2        Is this proposal only limited to creating a unicameral

3        legislature?

4             COMMISSIONER EVANS-JONES:  Yes --

5             COMMISSIONER BROCHIN:  That's all that's in this?

6             COMMISSIONER EVANS-JONES:  That's all that's in

7        there.

8             COMMISSIONER BROCHIN:  Does it talk about the length

9        of terms and the districts upon which they would come?

10             COMMISSIONER EVANS-JONES:  It has.  I think in there

11        it talks about an independent commission who would set the

12        districts, it would be done.  What does it say, Alan?

13        He's looking for it.

14             CHAIRMAN DOUGLASS:  Does this address the number of

15        Legislatures?

16             COMMISSIONER EVANS-JONES:  I'm not sure.  That's what

17        Alan is looking for -- I mean Commissioner Sundberg.  I

18        think that it says that there will be no more than 120

19        members of the unicameral Legislature and then you could

20        change it later if you needed more.  Of course right now

21        the senators are pretty well representing the districts

22        that you would be talking about now.  You probably

23        wouldn't need many more than what you have in the Senate

24        at the present time.  The Legislature could set the

25        number.


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1             COMMISSIONER BROCHIN:  I don't know if this is a

2        question or a comment or point of order.  It seems to be a

3        fairly significant proposal worthy of some consideration.

4        I happen to think it's a terrific idea, I just don't feel

5        comfortable in the position to vote one way or the other

6        without an opportunity to read through this more

7        thoroughly.  I mean, the debate is good because it helps

8        flush out the issues.  But to ask us to pass a vote on

9        this, I think is going to be very difficult because I

10        think it is a terrific idea I just haven't had the

11        opportunity to really study its implications and how it

12        fits in with the rest of the proposal.

13             COMMISSIONER EVANS-JONES:  I appreciate that comment

14        and the only thing that I would say too is that if it were

15        to get the number of votes today to move it forward, it

16        obviously will have to come back.  All you have to have is

17        a majority today.  And then it's going to come back if it

18        gets the majority vote and we would be to -- you know,

19        there are a lot of places in the Constitution that we're

20        talking about.  And we could delineate exactly before you

21        voted for it again.  But I think it's worth you-all really

22        moving it forward, giving it an opportunity to be studied.

23        Believe me, it would be one of the most historic things

24        you could do here in Florida.

25             CHAIRMAN DOUGLASS:  Commissioner Sullivan.


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1             COMMISSIONER SULLIVAN:  Mr. Chairman, I think that

2        Commissioner Brochin has a good idea with this.  I don't

3        think a lot of us had a chance to seriously look at this

4        especially point by point by point.  The private sector

5        has gone through major reengineering for organizations and

6        this might be an opportunity for us to take a more serious

7        look at it and I would support time to further evaluate

8        it.

9             CHAIRMAN DOUGLASS:  Am I interpreting this as a

10        request for select committee?

11             COMMISSIONER EVANS-JONES:  I guess you're asking him

12        to temporarily pass it until December, I personally have

13        no objections, do you, Commissioner Sundberg?

14             CHAIRMAN DOUGLASS:  I think some people wanted to

15        speak in opposition and now we're only on the proponents.

16        So if some of the opponents wish to speak, Commissioner

17        Wetherington has risen on two occasions.  I know he wants

18        to speak and you may proceed, sir, unless there is

19        somebody else who is a proponent.  Proceed to hear from

20        the opponents.

21             COMMISSIONER WETHERINGTON:  A representative

22        government is not necessarily the most efficient

23        government and I think we all recognize that.  Democracy

24        is not the most efficient representative government, it's

25        not necessarily the most efficient although efficiency is


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1        important in government.  It seems to me that there is

2        time after time where there are significant differences of

3        opinions that emerge on important issues from the House

4        and Senate and they have to be worked out and talked

5        about.

6             I've got to believe that this process is a beneficial

7        process on balance, I've got to believe it contributes to

8        a better quality of law that we have in the state.

9        Sometimes there may be dynamics that take over in a given

10        group.  We've seen this time and again, particularly at

11        the federal level between the Senate and the House.

12        Things will come and you will see dramatic differences

13        between the Senate and House on different things.

14        Passions can sometimes come into play, lots of things

15        could come into play when people are forced however to

16        reflect upon them because there is a difference that has

17        to be ironed out.  I think what happens is in many

18        instances major mistakes are avoided.  And it appears to

19        me that that's one of the reasons, and I recognize the

20        idea that the Legislature is generally not going to want

21        to voluntarily eliminate jobs and go to a unicameral kind

22        of system.

23             But we have this long-standing history in the country

24        that to some extent suggests -- it reflects as Edmond

25        Burke said, maybe the wisdom of the ages in some respect.


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1        And that in this process we have, although it may be not

2        as efficient and theoretically efficient and economical as

3        simply one group, I believe that experience has shown that

4        it's produced probably a better quality of deliberation

5        and a better quality of law.

6             And therefore, although it's not the most efficient,

7        it does have a tremendous amount of experience behind it.

8        It's an institution that's accepted in 49 other states and

9        the question is, what is the evidence that it's not

10        working, what's the evidence that we require radical

11        surgery?  I know there is criticism, but it seems to me

12        that there is, that when Monosceau (phonetic) talked about

13        the separation of powers there may be a role for

14        separation of powers even within the legislative and we

15        are concerned about the impact of the laws.  The laws

16        become enormously significant in our lives and on balance,

17        even though it's less efficient, it appears to me that we

18        ought to keep the institution.

19             CHAIRMAN DOUGLASS:  Any additional opponents?

20             Commissioner Thompson.

21             COMISSIONER THOMPSON:  If she's going to pass it to

22        the next time, I may be wiser then.

23             CHAIRMAN DOUGLASS:  I think it requires a motion,

24        doesn't it?

25             COMISSIONER THOMPSON:  Well, there is no such thing


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1        as a motion for temporarily passing it that I know of.  I

2        think it's just that if a member wants to take the bill up

3        next time and there's no objection we can do that.

4             CHAIRMAN DOUGLASS:  Is that right, Commissioner

5        Barkdull?

6             COMMISSIONER BARKDULL:  Yes, sir, that's the way I

7        understand it.

8             CHAIRMAN DOUGLASS:  Okay.  So if she wants to

9        temporarily pass it, then if she says -- requests that

10        until a time certain.

11             COMMISSIONER BARKDULL:  She can either do it until a

12        time certain or to --

13             CHAIRMAN DOUGLASS:  She's requested to pass it until

14        the December meeting.

15             COMMISSIONER BARKDULL:  Well, I think she can do that

16        if it's the will of the body to accept it.

17             COMISSIONER THOMPSON:  Well that is a motion to -- a

18        motion to postpone to a time certain is --

19             CHAIRMAN DOUGLASS:  I think that's my question.

20        That's what she's really asking them to do and it would

21        require a motion to postpone until the December meeting;

22        is that not correct?

23             COMMISSIONER BARKDULL:  Yes, sir.

24             CHAIRMAN DOUGLASS:  Is that what you --

25             COMMISSIONER EVANS-JONES:  That would be fine,


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1        Mr. Chairman.

2             CHAIRMAN DOUGLASS:  So, Commissioner Brochin, you

3        were involved in this too.

4             COMMISSIONER BROCHIN:  I would so move but I would

5        like to hear from Commissioner Thompson the reasons why he

6        opposes it.  I mean I'd like to hear the debate but I'd

7        like to then postpone it until December so we can consider

8        the pros and cons of it and then move forward.  That was

9        about the essence of my comments before.  I don't know if

10        that's in the rules anywhere.

11             CHAIRMAN DOUGLASS:  I could probably answer that for

12        Commissioner Thompson.  He's an old hunter and he doesn't

13        fire until it's time to shoot.  So he probably doesn't

14        want to make his arguments until it's there for final

15        consideration.  Am I right, Commissioner Thompson?

16             COMISSIONER THOMPSON:  I do whatever -- I mean, I'm

17        ready to load it right now if she wants me to.  No,

18        whatever -- I don't know what the body wants to do or the

19        sponsor wants to do.  Do you want to debate it a little

20        bit today or do you want to just postpone it indefinitely?

21        It's your decision.

22             COMMISSIONER EVANS-JONES:  Well, thank you.  I would

23        prefer to take it up in December and just stop the debate

24        today.  I think there are some answers that we do need to

25        give.  There may be some amendments that we really need to


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1        address too.

2             COMISSIONER THOMPSON:  One thing I would -- I mean,

3        there's a reapportionment provision in here, there is a

4        lot in here.  We are, for everybody's information, in our

5        legislative committee which Commissioner Evans-Jones is

6        on, we are really working hard on some kind of

7        recommendation to you about an apportionment commission,

8        not that you want to accept that eventually.  But we've

9        considered some of the aspects of this one but I don't

10        think we've settled enough to recommend this one to you.

11        So there's a lot more involved than just waving a wand and

12        saying we're going to have 80 people represent us now.

13             CHAIRMAN DOUGLASS:  All right.  There is a motion

14        then to postpone this until time certain which is the

15        December meeting.  So all in favor, say aye.  Oppose like

16        sign.

17             (Verbal vote taken.)

18             CHAIRMAN DOUGLASS:  Then it is postponed.

19             All right.  Proposal 8.  Commissioner -- well, I

20        believe the chairman of that executive committee, do you

21        want to yield to Commissioner Barkdull who introduced this

22        or do you want to present it?

23             COMMISSIONER ALFONSO:  No, I'm glad to yield to

24        Commissioner Barkdull since he is the proposer.

25             COMMISSIONER BARKDULL:  Mr. Chairman, members of the


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1        commission, what this proposal does is to give the

2        governor additional time to consider vetoes of

3        legislation.  At the present time he has seven and 15

4        days, seven if the Legislature is in session and if he

5        receives a bill towards the conclusion, he has 15 days.

6        The great bulk of the bills that the governor receives

7        come at the end of the session and there is a jam-up.

8        What this would do is give him 14 days during the session

9        and 30 days after the session.

10             CHAIRMAN DOUGLASS:  Read the proposal now.

11             READING CLERK:  Proposal 8, a proposal to revise

12        Article III, Section 8, Florida Constitution, increasing

13        the length of time within which the governor may veto

14        legislation.

15             CHAIRMAN DOUGLASS:  All right.  Are there any

16        proponents or questions that anybody has of Commissioner

17        Barkdull?  Commissioner Smith.

18             COMMISSIONER SMITH:  Thank you, Mr. Chairman.  What

19        is the recommendation of the committee?

20             CHAIRMAN DOUGLASS:  It was approved according to my

21        notes by the executive committee; is that correct?

22             COMMISSIONER BARKDULL:  That's correct.

23             CHAIRMAN DOUGLASS:  Are there any proponents of this?

24        This is a fairly significant change, is it not,

25        Commissioner Barkdull?


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1             COMMISSIONER BARKDULL:  Well, it's giving him

2        additional time.  You've been in the office and you know

3        what it does.  It's going to give him a little more time

4        to look at the bills.  Okay.  Commissioner Langley, I

5        thought that might get you to the floor.

6             COMMISSIONER LANGLEY:  It's going to give him a

7        little more time to procrastinate until the end of the

8        session when the Legislature can't do anything about it,

9        that's what it's going to do.  There, you know, it's

10        overused.  But if it ain't broke, don't fix it.  And I

11        haven't heard any great clamor from anybody saying this

12        really has got to be fixed.  The Legislature needs to have

13        these while they're in session as soon as they can if he's

14        going to veto it.  Often it's just a technical thing that

15        they can cure and get out before the session ends.  Often

16        that's the way it is.  So you, you know, there is a deluge

17        of bills at the end of the session but he's well staffed

18        and has great legal advice at times.

19             CHAIRMAN DOUGLASS:  Not anymore.

20             COMMISSIONER LANGLEY:  I said at times.  Mr. Petersen

21        might object.

22             CHAIRMAN DOUGLASS:  I think he left.

23             COMMISSIONER BARKDULL:  But anyway -- I'd like to

24        respond to that and Commissioner Langley would on the

25        additional time at the end of the session.  You have the


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1        same objection to that?

2             COMMISSIONER LANGLEY:  Not as loud.

3             COMMISSIONER BARKDULL:  Not as loud, okay.

4             CHAIRMAN DOUGLASS:  What was the answer?

5             COMMISSIONER BARKDULL:  I asked Commissioner Langley

6        what was his reaction to the extension after the

7        conclusion of the session.  He indicated it wasn't as

8        loud.  Commissioner Scott has got a --

9             CHAIRMAN DOUGLASS:  Commissioner Scott.

10             COMMISSIONER SCOTT:  I would agree with the idea of

11        not extending the time during the session or -- unless we

12        make a change in the length of the sessions and so forth.

13        Because you're now talking 14 days, that's 25 percent of

14        the session.  So the time during the session, I think

15        seven days is plenty.  Afterwards, they actually don't

16        always get them until a week or two after the session

17        anyway by the time the president and the Speaker signs

18        them, that might be all right.

19             But as far as during the session, I would urge us to

20        only allow seven days which gives us the chance if we have

21        a problem to send it and we can then react before the end

22        of the session.

23             COMMISSIONER BARKDULL:  Let me, Mr. Chairman, ask to

24        temporarily pass this in order to get an amendment ready

25        to strike those days --


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1             CHAIRMAN DOUGLASS:  We'll temporarily pass it while

2        he's preparing an amendment.  I might comment and I think

3        that Ms. Kearney did this for several years in studying

4        for veto messages in the governor's office.  And it seemed

5        to me the biggest problem we had was after the session

6        when what you mentioned occurred.

7             The Legislature would send 50 at the end of one week

8        then maybe we didn't get all of them until two months

9        after the session, some of them.  It would always be one

10        major -- or two major bills there that we didn't get.  And

11        I never felt, and she can correct me if I'm wrong, that we

12        had a great problem with anything other than the sheer

13        number that was delivered after the session.  I don't

14        remember when I was there getting many during the session,

15        very few bills came while you were in session or that

16        required us to act within seven days.  If it was that

17        controversial, usually it didn't come up until the end.

18        Before we go further though while we temporarily pass this

19        for an amendment, are you ready on the amendment?

20             COMMISSIONER BARKDULL:  It's being drawn, it's being

21        printed up to be delivered to each of the members of the

22        body.

23             CHAIRMAN DOUGLASS:  Okay.  Well, we'll just sit at

24        ease for a minute until he gets his amendment.  We'll take

25        a short two minute -- is it ready -- it's ready.  Okay.


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1        Everybody take your seat, we're ready to go.

2             Did you need to speak, Commissioner Thompson, to this

3        matter?

4             COMISSIONER THOMPSON:  Not to this matter.  I want to

5        take up another matter when you finish.

6             CHAIRMAN DOUGLASS:  Commissioner Barkdull, you have

7        an amendment.

8             COMMISSIONER BARKDULL:  Amendment is on the desk.

9             CHAIRMAN DOUGLASS:  Read the amendment.

10             READING CLERK:  By Commissioner Barkdull on Page 1,

11        Line 17, delete "15" and insert "7."

12             COMMISSIONER BARKDULL:  What the amendment does is,

13        as far as the time, it will be identical when the

14        Legislature is in session.  It will be extended after the

15        session.  I urge the passage of the proposal as amended.

16             CHAIRMAN DOUGLASS:  Commissioner Scott.

17             COMMISSIONER SCOTT:  Adopt the amendment.

18             CHAIRMAN DOUGLASS:  All right.  On the adoption of

19        the amendment we're on at the moment, all in favor of

20        approving the amendment or voting for the amendment please

21        say aye.  Opposed like sign.

22             (Verbal vote taken.)

23             It carries.  It is amended and now we'll revert to

24        the proposal as amended.  Commissioner Bardull.

25             COMMISSIONER BARKDULL:  I move the adoption of the


 										146

1        proposal.  I think the members of the commission

2        understand what it does.  It extends the period of time

3        for the governor to consider a veto after the conclusion

4        of the Legislature.

5             CHAIRMAN DOUGLASS:  Commissioner Scott.

6             COMMISSIONER SCOTT:  It's noticed here that --

7        President Jennings has noticed that the section that

8        raises this veto question is addressed in this item.  And

9        I don't know if there is a separate proposal in that or

10        not but --

11             (Off-the-record comment.)

12             COMMISSIONER SCOTT:  The point is we have an issue

13        here which we discussed briefly in the legislative meeting

14        yesterday which is the question of when you take up a

15        governor's veto message.  We just had a special session

16        last week.  The House took the position that they didn't

17        have to take up the veto messages, that they were

18        available at the next regular session; whereas, the Senate

19        has always and continues to take the position that you

20        have to take it up at the next special or regular session

21        being the first available opportunity or it's lost.  And

22        the question is when it will be lost.

23             And we discussed -- I'm not sure what they're

24        drafting, that's why we made it a point that we discussed

25        the question of whether it would be lost or not and really


 										147

1        either/or is what the committee said yesterday, and we

2        didn't vote, but we were thinking you could take it up at

3        a special session but you didn't have to until the end of

4        the next regular session and then after that it would then

5        be lost.

6             What happens now is the secretary and the clerk, up

7        until recently, would send them back after a special

8        session like last week and they would all be sort of sent

9        back to the Secretary of State and then they're not

10        available anymore.  And the only thing I would -- while

11        I'm talking, I might as well make a point -- is that we

12        discuss the question of what happens if one house takes it

13        up and one house doesn't take it up and so forth.  And I'm

14        not sure of the total answer to that and maybe we'll talk

15        about that a little bit.  It is something that needs to

16        be --

17             CHAIRMAN DOUGLASS:  Commissioner Scott, the governor

18        agrees with the Senate.

19             COMMISSIONER SCOTT:  That's two out of three.

20             CHAIRMAN DOUGLASS:  Well, actually, we dealt with

21        this on occasion before.  I think you're right though to

22        raise this point but it's been traditionally understood

23        that it's the next session, special or otherwise.

24        Commissioner Butterworth.

25             COMMISSIONER BUTTERWORTH:  I think it's two to two,


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1        Mr. Chairman.  The attorney general sides with the House.

2             (Laughter.)

3             CHAIRMAN DOUGLASS:  Then I guess we're going to have

4        to ask -- wait until Commissioner Kogan is here to give

5        the definitive answer because I think there may be some

6        attorney general's opinions that don't agree with that

7        that preceded you.  Commissioner Barkdull.

8             COMMISSIONER BARKDULL:  Mr. Chairman, on the main

9        issue, it that what Senator Scott -- Commissioner Scott

10        and Commissioner Jennings are interested in can be

11        corrected but I don't think that what we do up or down on

12        this is going to impact what they want to do.

13             CHAIRMAN DOUGLASS:  Well, I think they have an

14        amendment on the table here.

15             COMMISSIONER BARKDULL:  I think they can amend it at

16        this point if they wanted to.

17             CHAIRMAN DOUGLASS:  There is an amendment on the

18        table and that is Senator -- it's Commissioner Jennings.

19             COMMISSIONER JENNINGS:  Mr. Chairman and

20        commissioners, I think because of the complexity of the

21        issue we don't want to involve everybody in this at the

22        moment.  I just, in my legislative career, have always

23        looked for convenient ways to do things.  And since I

24        noticed this was addressing the same section I thought

25        this would be a handy way.  But especially since the


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1        attorney general has a differing opinion, the last opinion

2        we had was from the attorney general but that was in '76.

3        So we didn't know this one agreed.

4             CHAIRMAN DOUGLASS:  He hadn't researched it lately.

5             COMMISSIONER JENNINGS:  Perhaps what we need to do,

6        because there just needs to be some clarification.  We may

7        have it before the Supreme Court if something happens

8        during this session.  It may be -- whatever is overridded

9        may be challenged and be there.  But I think since we have

10        an opportunity to clarify it, we should at least clarify

11        it because there does seem to be some -- and it sort of

12        doesn't matter to me at this point.

13             I have what I believe is the traditional Senate

14        opinion of when it's taken up.  But the Constitution is

15        pretty ambiguous.  It says the next regular or special

16        session and it doesn't indicate that it has to be the

17        first of either of those, that has just always been the

18        Senate position that it is the next opportunity and if not

19        then taken, that you lose the opportunity to take up the

20        veto.  But the Constitution is pretty unclear about the

21        issue and it would just probably help the Legislature a

22        lot if we could clear it up for them.

23             CHAIRMAN DOUGLASS:  Well, I think you have an

24        amendment that would do that on the table; do you not?

25             COMMISSIONER JENNINGS:  Yes, sir, but --


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1             CHAIRMAN DOUGLASS:  I don't mind taking it up.

2             COMMISSIONER JENNINGS:  Well, I will withdraw it at

3        this time because it may need to sit as a separate

4        proposal that could go in the housekeeping issues.  It

5        probably needs to be aired so that people can come and I'd

6        like to hear from the attorney general and perhaps the

7        House.  I wouldn't want the House to think I was trying to

8        making an end run on them.  It was just one of those

9        opportunities that I saw it and since we had just been

10        discussing the issue, I thought it might be an appropriate

11        time to bring it up.  And now at least all the

12        commissioners are aware as well.  So we'll give them more

13        information about it.

14             CHAIRMAN DOUGLASS:  Very well.  I agree that that has

15        become an issue but one of the reasons I was familiar with

16        it is we were always concerned having a special session an

17        attempt to override the veto on the tobacco matter.  And

18        actually it didn't come up until the regular session so we

19        never got a chance to attest to that.  Commissioner

20        Barkdull, you're now on the amended version of your

21        proposal.

22             COMMISSIONER BARKDULL:  Yes, sir, and I urge the

23        adoption of it.  It think the members of the commission

24        understand what it does.

25             CHAIRMAN DOUGLASS:  Is everybody ready to vote?


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1        Commissioner Marshall.

2             COMMISSIONER MARSHALL:  Thank you, Mr. Chairman.  I

3        rise to speak in opposition to it, to the measure, for the

4        following reason.  I think there may be occasions,

5        perhaps, rarely when any delay in signing the bill could

6        inconvenience the voters and would in effect defeat it as

7        partly the purpose of the Legislature in passing the

8        legislation.

9             For example, the Legislature in late May 1996 passed

10        the charter school bill.  It provided for the

11        establishment of charter schools and in order to have

12        those open in the fall of 1996 they had to be in operation

13        in the 17th or 18th of August.  The measure was passed as

14        I think I said in late May.  The governor did not sign it

15        until the expiration, as I recall, of the allowable

16        period.  And it meant that some of those who were planning

17        to start charter schools had to provide space, hire staff

18        and all of those things, it had a difficult time doing it.

19             I think it's true that at least one organization that

20        wanted a charter school to start a charter school was

21        unable to do so because they lacked the time and that

22        difference of a few days, that period of a few days made a

23        difference.

24             So I think there might be an occasion when it would

25        be to the benefit of the people and the Legislature's


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1        intent for the governor to be required to sign the measure

2        or to veto it or to let it pass without his signature in

3        the shortest reasonable period of time.

4             CHAIRMAN DOUGLASS:  Any further discussion?

5        Commissioner Barkdull?

6             COMMISSIONER BARKDULL:  Well, I think you can get a

7        parade of horribles about any proposed range.  I think

8        what this does is give more opportunity for the governor,

9        to the office, to be completely familiar with the bills

10        that are presented to him and I think he should be

11        accorded that opportunity.

12             CHAIRMAN DOUGLASS:  Commissioner Barnett.

13             COMMISSIONER BARNETT:  I want to just respond to an

14        almost unanswered question that Commissioner Marshall

15        raised in his comments about the timing of the governor

16        signing legislation.

17             It's been my experience in legislation that I've

18        watched and have been active in that really the governor's

19        office acts fairly expeditiously once the bill is

20        presented to the governor's office.  There is a time

21        period within which the governor must act once that bill

22        is presented.  And this proposal simply gives the governor

23        a little bit longer, 15 more days, to consider the bill.

24        Oftentimes they may have several hundred that come at one

25        time.


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1             The problem and the reason that there is a delay

2        often in legislation actually being signed, vetoed, or

3        allow to become law without the governor's signature is

4        when it's presented to the governor.  The presentment is a

5        constitutional concept and that can only be done by the

6        House and Senate actually signing off on the bill and then

7        formally presenting it to the governor.

8             That process, I'm sure for the same reason because of

9        the deluge of legislation that is passed during the last

10        several days of session, that presentment process

11        sometimes takes several weeks.  I don't know the longest

12        it's taken but it can take a long time.  There's no time

13        period that I'm aware of on when the Legislature has to

14        actually present the bill to the governor.  The governor

15        is the entity who does have a time period.  And I think

16        extending it some is a very rational thing to do.  Your

17        problem may be better solved by looking at the presentment

18        issue.

19             CHAIRMAN DOUGLASS:  Thank you.  All right.

20        Commissioner -- any other commissioners have any other

21        comment on this or statements they want to make?  Is

22        everybody ready to vote?  All right.  We will vote.

23             (Vote taken and recorded electronically.)

24             CHAIRMAN DOUGLASS:  Okay.  Has everybody voted?  Have

25        all members voted?  All right.  Lock the machines and


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1        tally the votes.

2             READING CLERK:  Eighteen yeas and nine nays,

3        Mr. Chairman.

4             CHAIRMAN DOUGLASS:  All right.  It carries as

5        amended.  Now we'll go to -- back to No. 67 which we

6        passed until later in this session.  Commissioner

7        Thompson, I think we passed it on your motion or request

8        and therefore -- and you have an amendment on the desk?

9        All right.  Read the amendment.

10             READING CLERK:  By Commissioner Thompson on Page 2,

11        Line 7, delete "40,000" and insert "50,000."

12             COMISSIONER THOMPSON:  Okay.  This is the proposal

13        that extends the time that a person has to be a member of

14        the Bar to be a circuit or county judge to ten years

15        rather than five years proposed by Commissioner

16        Wetherington.  I wanted to change existing language in the

17        Constitution that said the Legislature can make decisions

18        otherwise for counties under 40,000.  I want to raise that

19        cap to 50,000.

20             Commissioner Scott and others are interested in some

21        kind of a schedule but what we pretty well agreed to is we

22        don't have that before us today, so, let's go ahead and do

23        this, send it into style and drafting and we'll try to

24        come up with something in that committee.

25             CHAIRMAN DOUGLASS:  All right.  Are there any


 										155

1        questions?  Do we need -- anybody need to have the sponsor

2        of this proposal refresh their memory on what it did?

3        This is the proposal that required an increase.

4             COMISSIONER THOMPSON:  Yes, sir.  While you were

5        chatting with them, I explained it.  It extends from five

6        to ten years the required time to be a member of the

7        Florida Bar before you can run for or be appointed to

8        county court or circuit court.

9             CHAIRMAN DOUGLASS:  And then it put 50,000 --

10             COMISSIONER THOMPSON:  A county under 40,000 would be

11        existing language that the Legislature can require

12        otherwise.  My amendment raises it to 50,000.

13             CHAIRMAN DOUGLASS:  All right.  Is everybody ready to

14        vote on this or do we need additional discussion?

15        Commissioner Freidin.

16             COMMISSIONER FREIDIN:  The question that comes to my

17        mind when we're raising --

18             CHAIRMAN DOUGLASS:  We're on the amendment.  All in

19        favor of the amendment say aye.

20             (Verbal vote taken.)

21             CHAIRMAN DOUGLASS:  The amendment is adopted.  Now

22        we'll revert to the proposal as amended.  Now,

23        Commissioner Freidin, do you rise to question or take a

24        position for or against it?

25             COMMISSIONER FREIDIN:  I wanted to ask -- well, I


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1        guess it's a --

2             CHAIRMAN DOUGLASS:  You wanted to ask a question?

3             COMMISSIONER FREIDIN:  I guess I want to ask a

4        question.

5             CHAIRMAN DOUGLASS:  Who do you want to ask?

6             COMMISSIONER FREIDIN:  I'm not sure.  I want to ask

7        Commissioner Wetherington.

8             CHAIRMAN DOUGLASS:  Well, he was the sponsor of this

9        so he's the proper one.

10             COMMISSIONER FREIDIN:  The question I have is, I was

11        wondering if there was any discussion -- let me start out

12        by saying that I favor raising the level of experience

13        required to become a judge whether it be county court or

14        circuit court.  The thing that I'm concerned about and I'm

15        not sure if this was discussed in the committee or not,

16        was the requirement of being a member of the Florida Bar

17        for ten years because if somebody were to move into the

18        state it presents a significant impediment if they wanted

19        to become a judge.

20             So I was wondering if there had been any discussion

21        about being a member of the Bar versus being a member of

22        the Florida Bar, what was the intent of your proposal and

23        also within the committee.

24             COMMISSIONER WETHERINGTON:  Well, the intent of --

25        that specific issue wasn't discussed.  It was -- the full


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1        issue was aired with the Article V commission which

2        recommended this.  And the reason why I think that that

3        would be important to be a member of the Florida Bar is

4        because the judges will be applying Florida law and

5        knowledgeability in Florida law -- I can be knowledgeable

6        in the law of Nevada but there's huge differences,

7        depending on the state and the law, it takes quite a bit

8        of time as we know because of the complication in the law

9        to hone in and get expertise in the law of any particular

10        state.  One of the things as we all know the judge has to

11        do is to apply the law.  And therefore, experience in

12        Florida law is more relevant than experience in the law of

13        other jurisdictions.

14             The law is tough enough anyway even in Florida law if

15        you've studied it for 25 or 30 years.  If you looked at

16        the panoply of law particularly in the civil jurisdiction

17        of the Court, as we know, the law has gotten to be

18        extraordinarily complicated and difficult.  We've got some

19        very complicated heavy cases out there requiring an awful

20        lot of sophistication and knowledgeability in the law and

21        therefore it would seem logical to me that the legal

22        experience that you would be primarily focusing on would

23        be the law in the state in which you would be applying

24        that law.

25             Not that somebody else would not have general good


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1        instincts and ability to analyze, but you can have a case

2        come in, for example, the door, you can have 15 people in

3        front of you and they've all got claims talking about

4        indemnity and contribution under Florida law or they may

5        have sovereign immunity questions under the Florida law.

6             Now, the time it takes to understand the Florida

7        indemnity rule and contribution rule, joint and several

8        liability rule, sovereign immunity rule, it takes an awful

9        lot of time to get a handle on that kind of stuff just in

10        Florida.  It seems to me therefore that the Florida

11        experience would be the relevant experience.

12             CHAIRMAN DOUGLASS:  Commissioner Scott.

13             COMMISSIONER SCOTT:  Well, this is a luxury that I

14        don't ever exercise in the Legislature.  But let me just

15        say something to you, I really personally wonder about

16        this whole idea because for starters let me point out that

17        five years after I took the Florida Bar I probably knew

18        more than I did ten years after.

19             And the second thing is that in my case for example I

20        started out with a law firm -- I tried major lawsuits,

21        argued appeals and a number of other things in the first

22        five years and was into trial work versus someone who

23        might have been sitting in a title company doing real

24        estate deals for ten years.

25             So I just -- and I think we still do have, at least


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1        at the moment, elected trial judges on the county level

2        and I think the energy, you know, we have a top limit of

3        age 70.  Somebody was in the service, for example, before

4        they go to law school they might be 29 or 30 before they

5        even get to be a lawyer.  And then now you're going to say

6        they've got to be 40 before they can be a county judge,

7        which then they like to always move up to circuit and so

8        on.  I just wonder about the whole idea.  I've been

9        sitting here thinking about this since it first came up,

10        whether we want to do this or not.

11             So I guess when you talk about -- that's another good

12        example, experience in another state.  I mean, people that

13        might even have been a judge in another state could come

14        down and say they've got to be ten years before they can

15        even be in the county court.  I understand these days

16        county judges do more and more and I know that argument.

17        But these are serious questions.  So I thought I'd like to

18        make some points and I've got some concerns about it.

19             CHAIRMAN DOUGLASS:  All right.  Commissioner

20        Sundberg.

21             COMMISSIONER SUNDBERG:  I was just asking if that was

22        a motion to reconsider my proposal to eliminate --

23             CHAIRMAN DOUGLASS:  Use the microphone, please, I

24        still haven't heard you.

25             COMMISSIONER SUNDBERG:  It wasn't that important,


 										160

1        sir.

2             CHAIRMAN DOUGLASS:  Commissioner Smith, yours is that

3        important; is it not?

4             COMMISSIONER SMITH:  Thank you, Mr. Chairman.  When

5        this proposal came before the Article V Commission I was

6        serving as president of a National Lawyers' Organization,

7        the National Bar Association at that time.  We opposed

8        this position because we felt at that time that it might

9        have a negative impact on lawyers of color who were just

10        beginning to be allowed to go to law school and get out

11        and for those that wanted to be on the Bench.  In 1970 I

12        was in the first class of lawyers of black students at the

13        University of Miami.

14             However, I have not gotten any input with regard to

15        this issue at this juncture nor do I have the statistics

16        or data that I had at the time this matter came before the

17        Article V Commission.  So at this time, I am prepared to

18        let this matter go forward, personally vote in favor of

19        it.  However, after getting the statistics and data and

20        talking to the people who were advising me on this issue

21        in the past, I might wind up eventually voting against it

22        if it moves forward the date.

23             So I just want to state that on the record because

24        once this is reported out what we do today, I'm sure I'm

25        going to get a lot of telephone calls from around the


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1        state about my vote on this issue.

2             CHAIRMAN DOUGLASS:  All right.  Anybody else want to

3        get a lot of telephone calls?  Commissioner Evans.

4             COMMISSIONER EVANS:  Well, some of the language

5        written in here on the analysis says specifically it was

6        suggested that 5-year membership in the Bar of Florida was

7        not sufficient for an attorney to gain the necessary legal

8        experience and an understanding of the human condition to

9        become a judge.  I submit that perhaps that there are

10        lawyers that have been a member of the Florida Bar and

11        their legal experience still does not give them an

12        understanding of the human condition.  I think that there

13        are --

14             CHAIRMAN DOUGLASS:  Some of us old ones.

15             COMMISSIONER EVANS:  There are many people who have

16        been in other walks of life prior to going to law school

17        who get a much greater understanding of the human

18        condition, for instance an officer in the military who

19        perhaps is judge, advocate general or, you know, any of

20        the military services in a leadership position.  And I

21        don't see that an additional five years' membership in the

22        Florida Bar would give -- necessarily give that

23        understanding.

24             CHAIRMAN DOUGLASS:  All right.  So you oppose this

25        amendment -- I mean this proposal?


 										162

1             COMMISSIONER EVANS:  I oppose.

2             CHAIRMAN DOUGLASS:  Any other debate or -- pro or

3        con, Commissioner Morsani?

4             COMMISSIONER MORSANI:  I would like to, I guess, ask

5        a question as well.

6             CHAIRMAN DOUGLASS:  You want to ask Commissioner

7        Wetherington who is the proposer?

8             COMMISSIONER MORSANI:  Especially at the time of five

9        years versus ten years and some of the things -- I just

10        happen to know a number of women who raised a family, they

11        have now gone back, they are lawyers.  They certainly are

12        astute.  They're women in their early 40s, mid 40s, who I

13        happen to think would make very good judges.  And to have

14        to serve on the Bar for ten years before they're eligible,

15        I happen to think there's -- and I don't know, but maybe

16        you have some statistics at the University of Florida,

17        FSU, Stetson, Miami, how many people are doing that today.

18             But I think it's more than maybe we know, because I

19        don't know the statistics, and I wondered if we're not

20        borrow -- yes, I can't say it, barring some very capable

21        people that may certainly serve us well in the judicial

22        process.  And I have -- I think that restriction of ten

23        years is too long even though I understand we all want to

24        have people with wisdom and vision and so on and so forth,

25        but I'm wondering if we aren't making a mistake.


 										163

1             CHAIRMAN DOUGLASS:  All right.  I don't think that

2        requires an answer.  Commissioner --

3             COMMISSIONER WETHERINGTON:  I close.

4             CHAIRMAN DOUGLASS:  Well, Commissioner Freidin has a

5        question.

6             COMMISSIONER FREIDIN:  I just want -- in response to

7        what Commissioner Morsani was saying, I think that that's

8        a genuine concern.  I think that the reason that I would

9        vote for this proposal is that I see, at least in my

10        circuit, many young lawyers who are coming in and applying

11        with the JNC to be judges who have barely practiced five

12        years, who have not established themselves as members of

13        the community, who maybe don't, you know -- haven't even

14        reached the age of 30.  And at the ripe old age I'm at,

15        that seems awful young.

16             And it seems like even to be on the county court

17        bench or especially to be on the county court bench you

18        need more life experience and law experience to do that.

19        I recognize, however, that the way this is structured now

20        requiring ten years membership in the Florida Bar might

21        eliminate some people who do have a lot of life experience

22        and also who have a lot of law experience.

23             I think that we might want -- I favor the concept.

24        My only question is, is there another way to structure

25        this.  So I don't know -- I'm not really sure how else it


 										164

1        could be done because I don't think I favor an age

2        limitation either.  And I do think that it is important

3        that people who are making important decisions for the

4        citizens of our state do have that kind of life and law

5        experience.  So I think on balance I will vote for it.

6        But I understand your concern.

7             CHAIRMAN DOUGLASS:  Commissioner Scott and then

8        Commissioner Mathis will be next.

9             COMMISSIONER SCOTT:  I could do this as a question.

10        But correct me if I'm wrong when I say this.  I don't

11        think maybe all the members are aware that today, am I

12        right, ten years is required for the circuit court today

13        is that -- it's not?  All of it is five years?

14             COMMISSIONER WETHERINGTON:  Five.

15             COMMISSIONER SCOTT:  It seems to me that -- I guess

16        that didn't pass.  That's the Article V we didn't get into

17        the Constitution.  But you've two courts here and five

18        years for the county, ten years for the circuit to me

19        might be a better option here because then you at least,

20        you know, you have the young people with some energy that

21        have spent five years and it is true you're always going

22        to maybe have some and that's why we have, when it's an

23        appointment, the judicial nominating commission and the

24        governor to look at it.  And otherwise, the people would

25        get to vote for them.


 										165

1             But to deny a chance for someone with five years'

2        practice just to get started into the judiciary so that

3        they do have a chance if they are super judges to be able

4        to get to the Supreme Court or whatever at a reasonable

5        early age, I think might be another option here and make

6        it five for the county and ten for the circuit court.

7             CHAIRMAN DOUGLASS:  Are you offering an amendment?

8             (No response.)

9             CHAIRMAN DOUGLASS:  Are you offering an amendment to

10        that effect to this proposal?

11             COMMISSIONER SCOTT:  Can we just interlineate --

12             CHAIRMAN DOUGLASS:  I think so.  It has to be in

13        writing.  What your amendment is, as I understand it, is

14        to make the requirement ten years to be a circuit judge,

15        member of the Bar for ten years, and five years to be a

16        county judge and then ten years of course for any other

17        judge above the circuit.  Does everybody understand that

18        amendment that he's proposed?

19             COMMISSIONER LANGLEY:  Why don't we make it 30 years

20        for Supreme Court judges and lower the retirement age and

21        then we can get rid of all of them?

22             (Laughter.)

23             CHAIRMAN DOUGLASS:  Commissioner Langley moves that

24        we get rid of all the Supreme Court judges.  Commissioner

25        Wetherington, would you report that to Commissioner Kogan


 										166

1        since he isn't here?  I trust you were being funny.

2        Commissioner's Scott's motion to amend would require that

3        to become a circuit judge you'd have to be a member of

4        Florida Bar for ten years.  To be a county judge, you

5        would have to be a member of the Florida Bar for five

6        years before you would eligible; is that correct?  Okay.

7             All in favor of the amendment, please so signify by

8        voting on the machine.  We'll open the machine and we'll

9        vote.

10             COMMISSIONER BUTTERWORTH:  Is there any discussion on

11        the amendment?

12             CHAIRMAN DOUGLASS:  Commissioner Butterworth.

13             COMMISSIONER BUTTERWORTH:  Mr. Chairman, is there any

14        discussion as to the amendment?

15             CHAIRMAN DOUGLASS:  Oh, yeah.  If you want to discuss

16        it, go right ahead.  I thought we were through.  I asked

17        for further discussion.

18             COMMISSIONER BUTTERWORTH:  I'm sorry, because I'd

19        like to vote in favor of the amendment by Commissioner

20        Scott.  I myself, having been elected to the county bench

21        before I had five years in the Florida Bar and having been

22        appointed and elected to the circuit bench before I had

23        ten years in the Florida Bar, I think I may have turned

24        out all right, hopefully?

25             But I think what we're doing is if we had ten years


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1        for the county bench, I think we're at a point in time

2        when many young attorneys who were already in the public

3        life and public defenders, city attorneys, state

4        attorney's offices, would like to perhaps stay in public

5        life and at that point in time I think could offer

6        themself as judges either through an election or through

7        the appointment process.  And at that point in time it

8        could be a career change and may very well wish to keep

9        some of these dedicated people in the judiciary.  So I

10        would urge the favorable adoption of Commissioner Scott's

11        amendment.

12             CHAIRMAN DOUGLASS:  Commissioner Smith.

13             COMMISSIONER SMITH:  I too rise to support the

14        amendment.  I think this provides a real opportunity for

15        people who historically have been locked out to have an

16        opportunity to show at an early age that they have the

17        ability and that they have the commitment to serve in the

18        judiciary.  And hopefully if they desire to move up, this

19        is a very Henry Clay-like amendment and I appreciate it.

20             CHAIRMAN DOUGLASS:  Commissioner Mathis, we're going

21        to get to you, it's your turn on the amendment.

22             MS. MATHIS:  I rise in opposition to the amendment

23        for the same reasons that I opposed the original proposal.

24        Having been one of those people who are over 40 and went

25        back to law school late in life, not because I was raising


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1        children, but because I couldn't afford to go to law

2        school directly out of undergraduate school.  So I think

3        that to raise the Bar the number of years to be eligible

4        for the Bench eliminates not just those who are using law

5        as a second career, but eliminates those who may not have

6        had the financial opportunity to be able to afford law

7        school early in life.

8             So I would rise in opposition to the amendment

9        because I think my life experiences have prepared me

10        better than someone coming directly out of school who went

11        to law school and then went into a law firm and then

12        worked.

13             And I oppose the amendment for the limitation on the

14        county court bench because being a civil practitioner who

15        didn't come from the state attorney's office or public

16        defender's office I would think that my experience and

17        others like me is more in the civil trial practice and we

18        could better serve the state of Florida on the circuit

19        court bench.

20             CHAIRMAN DOUGLASS:  Commissioner Scott.

21             COMMISSIONER SCOTT:  I was going to ask her -- let me

22        just -- first of all --

23             CHAIRMAN DOUGLASS:  The amendment is now on the desk.

24        I'll ask him to read it.  That might help this.  Would you

25        read the amendment, please?


 										169

1             READING CLERK:  By Commissioner Scott on Page 2, Line

2        3 delete "10" and insert "5."

3             COMMISSIONER SCOTT:  Commissioner Mathis let me just

4        point out to you.  The proposal here is for 10 years for

5        both the county and the circuit.  My amendment makes it 5

6        for the county which I believe is what it is now, am I

7        correct in that, Judge?

8             So it makes it better at least.  So I guess I would

9        urge everybody to adopt the amendment.  I might still have

10        some of the concerns you had but the amendment just adds 5

11        instead of -- makes 10 5 for the county court which is the

12        current law.

13             CHAIRMAN DOUGLASS:  Commissioner Mathis, we couldn't

14        hear you.

15             COMMISSIONER MATHIS:  Oh, I'm sorry.  I think what I

16        was proposing is there would be 5 years in both courts.

17             CHAIRMAN DOUGLASS:  Okay.  Well, this amendment is

18        what we were voting on.  He's reduced the time for county

19        judges to 5 from the present proposal and that's what the

20        amendment seeks to do.  So we're going to vote on the

21        amendment now, not the proposal.  Commissioner Sundberg,

22        on the amendment.

23             COMMISSIONER SUNDBERG:  On the amendment,

24        Mr. Chairman, I want to speak against the amendment.  Most

25        if not all the discussion that I've heard here today seems


 										170

1        to be directed at what the effects of the amendment will

2        be on the individual.  I think we need to focus on what

3        this proposal in its original permutation will do for the

4        public.

5             And I think it's been perceived by the Article V

6        commission and by many others that in order for the public

7        to be well served that it is appropriate that someone have

8        legal experience, I'm not so sure about life experience, I

9        subscribe to the fact that that comes along with legal

10        experience.

11             But to have that maturity to bring to the dispute

12        resolution process, which is what our system is all about,

13        and it's serving the public in the resolution of their

14        dispute that that maturity well serves the individual.

15        And I think we need to look at it from the public's

16        viewpoint.  For that reason, I speak against the

17        amendment.

18             CHAIRMAN DOUGLASS:  Commissioner Scott.

19             COMMISSIONER SCOTT:  I'm ready to close.

20             CHAIRMAN DOUGLASS:  This will be the close.

21             COMMISSIONER SCOTT:  Okay.  From the public point of

22        view, and of course Justice Sundberg is right, that is a

23        concern.  But I spent a lot of years in the courtroom

24        representing people even back when we had actual contested

25        divorces, of whether you could even get a divorce.  And I


 										171

1        think it's good to have some energy and youth and you can

2        have maturity, as has been pinpointed out here by several

3        people, regardless of how many years you serve on the

4        Florida Bar.

5             And the other point is you really don't have to --

6        and I know people could debate this -- but you don't have

7        to have a judge that knows everything about every law.

8        What you want them to have is the ability to ferret out

9        things that they may not know anything about never having

10        studied it.  And I would urge the adoption of the

11        amendment in the public interest as well as in the

12        interest -- and it is in the public interest to attract

13        competent people with only five years' experience at least

14        to the county court.

15             CHAIRMAN DOUGLASS:  All right.  We'll proceed to vote

16        on the amendment.  All in favor of the amendment say aye.

17        All opposed say nay.

18             (Verbal vote taken.)

19             CHAIRMAN DOUGLASS:  Open it up and we'll vote.

20             (Vote taken and recorded electronically.)

21             CHAIRMAN DOUGLASS:  Has everybody voted?  Lock the

22        machine.

23             READING CLERK:  Eighteen yeas and ten nays,

24        Mr. Chairman.

25             CHAIRMAN DOUGLASS:  All right.  We will go now to the


 										172

1        proposal which as amended sets the time of membership in

2        the Florida Bar at 5 years to be county judge and 10 years

3        to be a circuit judge.  To close on the proposal,

4        Commissioner Wetherington.

5             COMMISSIONER WETHERINGTON:  Apart from the question

6        of 5 or 10 years, just as a general matter, there is

7        always something that's out there that's a matter that's

8        been a great concern to me on the law.  If you went down

9        to get an operation or you wanted a doctor or a surgeon,

10        you're going to want somebody that has knowledgeability in

11        that field, I think, I mean, most people do.  If you

12        wanted an electrician, if you wanted an engineer, if you

13        wanted an architect, and the reason you do, because you

14        feel that their knowledge in that particular area has

15        value in terms of what they're doing.

16             Now there is, unfortunately, kind of almost a

17        widespread feeling around that you don't really have to

18        know anything to be a judge.  What's all this law stuff,

19        you don't really have to know anything.

20             But as a consequence of that, when you get

21        complicated and difficult cases you know what happens?

22        The court system backs up, cases have to be retried, huge

23        major matters get fouled up.  It happens all the time.

24        Anybody that goes down to courts and complains, as you

25        hear the lawyers complain a lot of times about things,


 										173

1        will know that.

2             My simple point apart from this, don't think that you

3        don't have to know a lot of law and a lot of very

4        difficult law both procedural and substantive if you're

5        going to do that very difficult job the right way because

6        you really do.  So it's well enough that -- you know, come

7        and say, Well, you don't really have to know the law,

8        that's not true.  You really do have to know some law to

9        be a judge.  There is no guarantee that between 5 and 10

10        it's going to make a magic difference but at least it's

11        going to add some additional years of experience as a

12        lawyer having to deal with the law, having to take the

13        annual legal education that you're required to do after

14        law school and it is going to add to your knowledge and

15        the experience as a lawyer.  And it seems to me for that

16        reason that that's an important consideration.

17             CHAIRMAN DOUGLASS:  All right.  Commissioner

18        Thompson, would you take the rostrum?  I would like to

19        take the floor to oppose this proposal.

20             COMISSIONER THOMPSON:  Mr. Douglass, you're

21        recognized.

22             CHAIRMAN DOUGLASS:  Mr. Chairman, I don't know that I

23        feel strongly enough about this to really be quite as

24        dramatic as I had to be to come down to make these

25        remarks, but I have had the experience of 2 years of


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1        sitting in the governor's office selecting people for the

2        governor and recommending to him people to appoint as

3        county judges and as circuit judges.  And there is one

4        thing I want to start out with to tell you that there is

5        no formula for knowing who is going to be a good judge.

6        There is none.  You do not know until they assume the

7        office and if they get there by election or by appointment

8        there is no way to find out until they are there.

9             So you make your best effort when you are selecting

10        judges, the governor does, to select the person who best

11        fits the needs of that particular court at that particular

12        time.  And the biggest criteria is not whether he's been a

13        judge and he's moving from county judge to circuit judge

14        or up.  In fact, in many instances this makes people

15        bureaucratic and you don't want them to be moving up

16        because they tend to be non-risk takers, they tend to be

17        the middle people in the road.  They don't do things with

18        courage on occasion because they're seeking to move to the

19        next level.

20             So you watch when you have a list and you look for

21        people that have life experience and that is a major

22        consideration because the one thing that most intellectual

23        people tend to on occasion not have is a sound common

24        sense based on a wide life experience.  So you're very

25        careful to make sure when you select for these various


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1        positions that you do have all the combinations.

2             So any criteria you set which is arbitrary, such as

3        this is, tends to limit to some extent the thinking of the

4        judicial nominating commissions as to who they might send.

5        I agree wholeheartedly and have observed this that there

6        are women who have become lawyers at the age of 40 or so

7        or 35 that in a short time would have made and have made

8        terrific judges.  I saw one that was turned down for a

9        county judge appointment because of that fact, she had

10        only been a lawyer a short time and one of the people

11        making the selection pointed out that she only made

12        $25,000, that's how much income she had.  And, you know,

13        somebody that only made $25,000 couldn't be qualified to

14        move up to a $95,000 job.

15             This is the way people think.  And I think that --

16        and I really believe this sincerely is wrong.  And

17        therefore I really, as a person who's engaged in the

18        process, don't believe in arbitrarily excluding people

19        from the judiciary.  I think -- I don't like to use the

20        term, but we tend to be elitist, particularly lawyers.  We

21        tend to think in terms of, Well, he was number one in the

22        class therefore he'd be a terrific judge.  Some of the

23        number ones in the class I know are in the penitentiary.

24        You really and truly have to go beyond these arbitrary

25        measures.  I was not number one in the class.  I might be


 										176

1        there some day.

2             Anyway, my point is that I think it would be wrong

3        and I sincerely agree with those that feel this way, and I

4        think Commissioner Butterworth and Commissioner Mathis

5        particularly stated pretty much the way I feel, that we

6        should not further raise the Bar because I think that we

7        should be open for appointment and if we go to an

8        appointed process on all judges, a lot of these objections

9        will be met.  But if we go for an appointment process

10        which increases the choice and the type of choices, number

11        of choices, rather than decreasing them.  And the fact

12        that you're a member of the Bar for any arbitrated period

13        of time doesn't give you wisdom, it doesn't give you

14        brains and it doesn't give you the experience you

15        necessarily need to be any kind of a judge.  And

16        therefore, I urge that we not approve this particular

17        proposal for putting it on the ballot.

18             COMISSIONER THOMPSON:  Questions or further debate?

19        Further debate?  Commissioner Wetherington, have you

20        closed?

21             COMMISSIONER WETHERINGTON:  I have closed.

22             COMISSIONER THOMPSON:  Okay.  The question recurs on

23        the adoption of resolution No. 67.  The clerk will unlock

24        the machine and the members will proceed to vote.  All

25        members.


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1             (Vote taken and recorded electronically.)

2             READING CLERK:  Eleven nays, 16 yeas, Mr. Chairman.

3             COMISSIONER THOMPSON:  And so the resolution is not

4        adopted.  I think that was the last one.  Is there --

5        clerk read the next resolution.  There's not another one?

6             CHAIRMAN DOUGLASS:  We had two more but I think I've

7        been informed that they will be carried over until

8        tomorrow.  And for your information, I'm going to, with

9        the permission of Commissioner Barkdull, read the items

10        that are on special order tomorrow so you can spend the

11        night preparing on them because I don't want anybody

12        coming in here saying they hadn't had a chance to read

13        these because we've been dealing with them in public

14        hearings and everywhere.  Beg your pardon.

15             Commissioner Morsani.

16             COMMISSIONER MORSANI:  Is there any way we can work

17        late tonight and wrap these things up?  I mean, it's only

18        3:00.  I mean, the day is only half over.

19             CHAIRMAN DOUGLASS:  I understand that.  I've tried

20        that.  We're going to adjourn anyway at 4:00 because we

21        have a committee meeting at 4:00 --

22             COMMISSIONER MORSANI:  Those on that committee, they

23        can stay tonight and meet in the morning.

24             CHAIRMAN DOUGLASS:  Well, we've got notice

25        requirements, Commissioner Morsani.  I tried this but we


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1        have notice requirements in the rules or the press for the

2        public and for our members and we have to meet that.  So

3        the special order was prepared today for notice for

4        tomorrow and that's all we can do.  We really anticipated

5        we'd go much longer on some of these than we went.  For

6        example, we expected a couple that were passed to go

7        longer.

8             The unicameral legislature, we expected a longer

9        debate than some of the others and we may still have them.

10        But let me read you the ones we have for tomorrow

11        because -- and if I'm wrong, correct me.

12             On the committee on judicial Article V, Costs, which

13        are Proposals 31 and 55, will be on the special order.

14        Committee on the executive, the unification amendment will

15        be on the special order.  And move the PSC to the

16        executive will be on the special order.  On the committee

17        on education, the elected appointed commissioner of

18        education, Proposal 69, will be on the special order.  The

19        first two years of college free will be on the special

20        order.  The divided school districts, is that on the

21        order?

22             COMMISSIONER BARKDULL:  You skipped over one,

23        Mr. Chairman, I believe.

24             CHAIRMAN DOUGLASS:  It says it's temporarily passed

25        on the Lottery funds.


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1             COMMISSIONER BARKDULL:  No, sir.  Before --

2        underneath elected commissioner of education, I'm led to

3        believe it's Proposal No. 28 for appointed superintendent

4        of schools.

5             CHAIRMAN DOUGLASS:  That's correct.  Proposal 28 is

6        also on the special order.

7             COMMISSIONER BARKDULL:  Okay.  That's the one you

8        skipped over.

9             CHAIRMAN DOUGLASS:  I did.  I didn't intend to.  Let

10        me see, okay.  On Proposal 70.

11             COMMISSIONER BARKDULL:  I have noted divided school

12        district, Proposal 40.

13             CHAIRMAN DOUGLASS:  That was the one I was fixing to

14        read when you stopped me.  Proposal 40, divided school

15        districts is on the special order.  Commissioner Mills'

16        proposal on homestead, limiting the amount that can be

17        claimed, Proposal 70 is on.  Initiatives affecting

18        municipalities, Proposal 47.  The ethics commission

19        investigation, Proposal 7, strengthen ethics commission.

20        Proposal 63, the -- we temporarily passed that one.  Okay.

21        Residency requirement for candidates, Proposal 43, is

22        marked on mine.

23             COMMISSIONER BARKDULL:  I've got Proposal 15, code of

24        ethics to the Legislature.

25             CHAIRMAN DOUGLASS:  It was temporarily passed,


 										180

1        according to my information.

2             COMMISSIONER BARKDULL:  All right.

3             CHAIRMAN DOUGLASS:  The next one I have is Proposal

4        43, the residency requirements to candidates.  And then

5        ballot language Proposal 82 listing candidates on the

6        ballot.  And then mandate Proposal 48, local government

7        not bound by mandates.  And that is the ones that I have

8        on the special order.

9             Commissioner Barkdull, is that the special order?

10             COMMISSIONER BARKDULL:  That's the special order and

11        at this time I would move that would be the special order

12        for tomorrow.

13             CHAIRMAN DOUGLASS:  And it has been distributed and

14        posted?

15             COMMISSIONER BARKDULL:  It's been distributed to all

16        members and been posted in the lobby and been distributed

17        to the press.

18             CHAIRMAN DOUGLASS:  All right.  Commissioner Scott.

19             COMMISSIONER SCOTT:  It would take some kind of

20        motion probably to either waive the rules and set that as

21        a special order and that's --

22             COMMISSIONER BARKDULL:  I just made that.

23             CHAIRMAN DOUGLASS:  He made the motion to set that as

24        special order.  All in favor aye.  Opposed like sign.

25             (Verbal vote taken.)


 										181

1             CHAIRMAN DOUGLASS:  Motion carries, special order is

2        set tomorrow morning.  We'll begin at 9:00 a.m.

3             Now, Commissioner Sundberg, I don't want to cut

4        anybody off that's got anything to say here.

5             COMMISSIONER SUNDBERG:  Mr. Chairman, this is just an

6        inquiry.  The Proposals 31 and 55 on Article V, Costs, has

7        there been prepared an appropriate proposal?  We were

8        working from just a draft on a piece of paper at the

9        committee yesterday.  Perhaps this should be directed to

10        Mr. Buzzett.

11             CHAIRMAN DOUGLASS:  As far as I know the committee

12        substitute is coming out of bill drafting this afternoon.

13             COMMISSIONER SUNDBERG:  My point is, I think in

14        fairness to the members of the commission they ought to

15        see a copy of it in writing before they have to consider

16        it tomorrow.

17             CHAIRMAN DOUGLASS:  Well, tomorrow if it's not -- if

18        you feel that way, move to temporarily pass it.

19             COMMISSIONER SUNDBERG:  I'd rather see a copy of it

20        and deal with it.

21             CHAIRMAN DOUGLASS:  Well, if you will, after we

22        adjourn, you can take this up tomorrow, but if you see the

23        executive director you can get a copy.  Or if there is not

24        one, then you can be prepared to move to temporarily pass

25        it.  Commissioner Scott.


 										182

1             COMMISSIONER SCOTT:  Mr. Chairman, several members of

2        the commission have expressed to me the concern about the

3        Article V issue and we know that it's complex.  We know

4        it's a lot of money.  And I guess I just wanted to

5        reexpress that and it may be --

6             CHAIRMAN DOUGLASS:  Move to temporarily pass it now,

7        I'll vote on it.

8             COMMISSIONER SCOTT:  No, I'm not saying that.  But

9        it's my understanding that perhaps we may not conclude

10        that matter tomorrow.

11             CHAIRMAN DOUGLASS:  I think there's a very good

12        chance we won't.  I agree with both of you that Article V,

13        Costs, if we take it up tomorrow, I don't believe we would

14        complete the subject matter without temporarily carrying

15        it over even if we debate it and discuss it and get

16        something on the floor.  I think because of the complexity

17        of it, I am in complete accord with Commissioner Scott

18        that we will probably be dealing with that again in

19        December.  On the other hand, by placing it on the special

20        order does not mean we have to go to final vote on it.

21             Commissioner Smith.

22             COMMISSIONER SMITH:  Mr. Chairman, Declaration of

23        Rights is scheduled to meet at 4:00.  However, we'd like

24        to commence at 3:30 to take up housekeeping matters and

25        not vote on any issue until 4:00, and we just want to make


 										183

1        sure that that's okay.

2             CHAIRMAN DOUGLASS:  Is that all right under the rules

3        and under the --

4             COMMISSIONER SMITH:  That's the official announcement

5        as well.

6             CHAIRMAN DOUGLASS:  Official announcement is that

7        you're going to have a housekeeping meeting at 3:30.  You

8        will not begin official business to vote on things until

9        4:00.  Okay.  And that meeting has been scheduled and

10        Commissioner Smith is the chairman.  We'll try to begin in

11        the morning promptly at 9:00 and I hope we'll be out of

12        here by noon.

13             Commissioner Barnett.

14             COMMISSIONER BARNETT:  For those of us who are not on

15        some of the committees that have proposals that will come

16        before the body tomorrow, it would be enormously helpful

17        if we could get the background information, the staff

18        analysis on these today so we could have the evening to

19        review them.

20             CHAIRMAN DOUGLASS:  Well, I think they are available,

21        is that not correct, right now.  And we hope to have them

22        by 4:00 and it's not 4:00 yet but we will have that packet

23        that has the information that goes with the proposals

24        available this afternoon and that's one reason I wanted to

25        read these.  Some of these are very significant proposals


 										184

1        and I know you're going to want to think about it and

2        discuss it among yourselves and otherwise and read.  So

3        that's why we did that.

4             It will be available from the distribution center on

5        the third floor of the capitol.  Will we also have some in

6        the CRC office?  So members, you can get them over at the

7        office in the basement of the capitol.

8             Commissioner Nabors.

9             COMMISSIONER NABORS:  I'd like -- I just talked to

10        Commissioner Anthony on Proposal 47, which is on the

11        special order, we had an amendment that would

12        substantially change the language on that.  I think a lot

13        of people would like to look at that.  I'd like to have

14        that.  I think he agrees to temporarily pass that until

15        the December meeting --

16             CHAIRMAN DOUGLASS:  What we'll do is go ahead and

17        you're going to have the information on it in the

18        distribution center and everybody can look at that if you

19        want to temporarily pass it tomorrow, you can move to do

20        so.

21             Commissioner Scott.

22             COMMISSIONER SCOTT:  Mr. Chairman, motions to

23        reconsider any of these matters are available tomorrow

24        since we are meeting tomorrow; am I right about that?  And

25        then if they're made tomorrow, they would carry over to


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1        December?

2             CHAIRMAN DOUGLASS:  That is correct.  And I assume

3        we'll have one or two of those.  Now does anybody have any

4        other matters that they want to bring up at all before

5        tomorrow morning?

6             Judge Barkdull.

7             COMMISSIONER BARKDULL:  Well, this is a matter I just

8        want the commission to think about.  We discussed

9        shortening the times that we would meet to one week here

10        in November or a part of this week and what I understood

11        was a week in December and two weeks in January and two

12        weeks in February.  In examining the calendar and in

13        examining the journal, we are only scheduled to sit four

14        days in December.  Instead of commencing on Monday, we

15        commence on Tuesday.  I'm just calling that to your

16        attention because tomorrow we will have to make a decision

17        whether we're going to stay with that calendar or whether

18        we will add Monday or a half of Monday into it.  But I

19        raise that to your attention now so you can be thinking

20        about it.  We may present that as a schedule change

21        tomorrow.

22             CHAIRMAN DOUGLASS:  Okay.  I think this sounds rather

23        Draconian in a way.  But if we don't do it in December we

24        will pay for it in January and February.  We have to

25        pretty much complete the work by the end of March.  We


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1        don't have to complete it obviously, but the Legislature

2        will be coming in session and we don't want to overlap

3        very much with that because of our members and also our

4        quarters.

5             So I think it's -- we're beginning to get a flavor

6        that we are going to have to have and we haven't really

7        had any really tough debates yet but we will.  And as more

8        publicity is focussed on what we're doing, you're going to

9        find it's more difficult to deal with it without more

10        extensive debate I think.  So let's be giving that thought

11        and we obviously will be guided by the majority's views on

12        this.

13             COMMISSIONER BARKDULL:  Okay.  Mr. Chairman, I move

14        that we recess until the hour of nine tomorrow morning.

15             CHAIRMAN DOUGLASS:  All in favor say aye.  Without

16        objection, we're adjourned.

17             (Session adjourned at 3:30 p.m.)

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1                             CERTIFICATE

2

3   STATE OF FLORIDA:

4   COUNTY OF LEON:

5
     	WE, JULIE L. DOHERTY, KRISTEN L. BENTLEY
6   and Court Reporters, certify that we were authorized to
     and did stenographically report the foregoing proceedings
7   and that the transcript is a true and complete
     record of our stenographic notes.
8

9             DATED this ______ day of ____________, 1997.

10

11
                          _________________________________
12                      JULIE L. DOHERTY, RPR

13

14                      _________________________________
                          KRISTEN L. BENTLEY
15                      COURT REPORTERS
                          DIVISION OF ADMINISTRATIVE HEARINGS
16                      1230 APALACHEE PARKWAY
                          TALLAHASSEE, FLORIDA  32399-3060
17                      (850) 488-9675

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