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1 STATE OF FLORIDA
CONSTITUTION REVISION COMMISSION
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COMMISSION MEETING
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DATE: November 14, 1997
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TIME: Commenced at 9:00 a.m.
11 at 1:05 p.m.
12 PLACE: Senate Chamber
The Capitol
13 Tallahassee, Florida
14 REPORTED BY: MONA L. WHIDDON
JULIE L. DOHERTY, RPR
15 Court Reporters
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 (EXCUSED)
4 ANTONIO L. ARGIZ (EXCUSED)
JUDGE THOMAS H. BARKDULL, JR.
5 MARTHA WALTERS BARNETT
ROBERT M. BROCHIN
6 THE HONORABLE ROBERT A. BUTTERWORTH (EXCUSED UNTIL 9:35)
KEN CONNOR
7 CHRIS CORR (ABSENT)
SENATOR ANDER CRENSHAW (ABSENT)
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 (EXCUSED)
12 DICK LANGLEY (ABSENT)
JOHN F. LOWNDES (ABSENT)
13 STANLEY MARSHALL
JACINTA MATHIS
14 JON LESTER MILLS
FRANK MORSANI
15 ROBERT LOWRY NABORS
CARLOS PLANAS (ABSENT)
16 JUDITH BYRNE RILEY
KATHERINE FERNANDEZ RUNDLE
17 SENATOR JIM SCOTT
H. T. SMITH
18 CHRIS T. SULLIVAN
ALAN C. SUNDBERG
19 JAMES HAROLD THOMPSON
PAUL WEST (EXCUSED)
20 JUDGE GERALD T. WETHERINGTON
STEPHEN NEAL ZACK (EXCUSED)
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PAT BARTON
22 IRA H. LEESFIELD (ABSENT)
LYRA BLIZZARD LOGAN (ABSENT)
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1 PROCEEDINGS
2 SECRETARY BLANTON: All commissioners indicate your
3 presence.
4 (Quorum taken).
5 CHAIRMAN DOUGLASS: Okay. We do have a quorum,
6 although it's very sparse this morning. I think everyone
7 is having trouble getting up this morning. Will everyone
8 have a seat and we will go ahead and get started. If
9 everybody will please take their seat. Commissioner
10 Jennings, you have shrunk. All right, if everybody would
11 be seated, please, I would like to call on Commissioner
12 Marshall to give the invocation, and would everybody
13 please rise.
14 COMMISSIONER MARSHALL: Let us pray. O Lord, the
15 first step in any effort to better the human condition
16 must be to have the opportunity to serve, to confront the
17 circumstances and conditions that must be changed if we
18 are to make a difference.
19 We pray for your guidance, for the qualities that
20 allow women and men to serve and to lead, for wisdom,
21 patience, forbearance, and above all, the love and respect
22 for those with whom we serve. You have given us these
23 opportunities, Lord, and for these, we thank you. Now we
24 ask you for your guidance in these other matters. Amen.
25 CHAIRMAN DOUGLASS: I would like to call on
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1 Commissioner Mills to lead the pledge of allegiance.
2 (Pledge of allegiance.)
3 CHAIRMAN DOUGLASS: Good morning and welcome, those
4 that have gotten up before noon to be here today, we
5 appreciate it. If you haven't checked in on the -- that
6 you are here, please push your button. Anybody that has
7 not recorded their presence, please push your button.
8 SECRETARY BLANTON: He had closed it before you said
9 that, but we reopened it.
10 CHAIRMAN DOUGLASS: All right. Let's push the button
11 again, everybody that's here. If you haven't -- we have
12 lost. We don't have a quorum. Push your button to
13 designate that you are here. We had 20 and we are down to
14 18 and two came in. We ought to get our 20 back anyway.
15 We are trying to reestablish who is here. If you
16 have not re-designated, please push your yes button. Push
17 it again. Is that it?
18 There's Commissioner Hawkes, you can wait until he
19 pushes the button. Commissioner Ford-Coates is here, I
20 see her out in the hall. Ask her if she would come in.
21 She's registered her presence, though, all right. Do we
22 have a quorum, Madam Secretary? We do have a quorum and
23 we will, therefore, open the meeting.
24 (Quorum taken electronically).
25 CHAIRMAN DOUGLASS: I would like to call on
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1 Commissioner Barkdull on rules.
2 COMMISSIONER BARKDULL: Thank you, Mr. Chairman.
3 Members of the Commission, you have on your desk several
4 items that relate to the day and December matters. One is
5 the day's calendar with backup material prepared by the
6 staff, which is in the blue copy.
7 Number two, you have on your desk for your
8 information and for reflection on the deadline for
9 proposals, which is 5:00 p.m. on the 25th of November, a
10 list of all of the proposals that have been filed. It is
11 a two-page document that says, "Constitution Revision
12 Commission proposals filed." There are 101 in number.
13 Some of us have had a problem remembering what we
14 have filed or what we haven't filed or thought about. The
15 staff has put this together so we can take a look at what
16 actually has been filed. So, you can go through it and
17 see whether a proposition that you have been considering
18 putting in has gotten in. And if not, you can contact
19 staff of bill drafting and it'll be prepared.
20 In connection with the December meeting I had several
21 members come to me after the meeting yesterday, and the
22 upshot of the discussions are, we will stay with the
23 December schedule the way it is. We commence at 9:00 on
24 Tuesday, the 8th of December and will go through Friday.
25 For those committee chairmen, several of which have
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1 indicated they might want to have committee meetings on
2 the Monday before I guess we start on the 9th, on Monday
3 the 8th. Committee chairs can at any time call a
4 committee meeting, if satisfactory with their committee,
5 but they must meet in Tallahassee. So, bear that in mind
6 if you decide to call a committee meeting before we take
7 in in December.
8 A housekeeping matter, I want to announce that some
9 of you received on your desk during the session yesterday
10 some lobbying material. That was distributed by accident.
11 We have instructed the staff that there will be no more
12 lobbying materials distributed in the chamber at any time.
13 Mr. Chairman, that concludes.
14 CHAIRMAN DOUGLASS: The secretary reminds me that if
15 anybody wants to pass out anything, including us, that it
16 should be handed to the Secretary, who then will review it
17 and review it with you and maybe the rules committee or
18 with me or somebody before it's distributed to make sure
19 that it's properly done. So, if everybody will keep that
20 in mind, we'll continue to operate that way.
21 COMMISSIONER BARKDULL: All right. Now, I'm about to
22 conclude my remarks, but I would just like to say one
23 thing. It's now 9:15 and it took us about 15 minutes to
24 get organized. You know, there are 37 people on this
25 commission, and there are a lot of staff that you see here
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1 that work, and everybody is here. And I think that
2 everybody should try to get here in time for us to start
3 on time because when we don't, it's an inconvenience to a
4 number of people. Thank you, Mr. Chairman.
5 CHAIRMAN DOUGLASS: All right. You have distributed
6 the special order for the day?
7 COMMISSIONER BARKDULL: Yes, sir.
8 CHAIRMAN DOUGLASS: And everybody has that on their
9 desk, and we'll be getting to that in just a moment. I
10 see some -- for what purpose do you rise, Commissioner
11 Ford-Coates?
12 COMMISSIONER FORD-COATES: To ask a question.
13 CHAIRMAN DOUGLASS: Yes.
14 COMMISSIONER FORD-COATES: The deadline for filing is
15 5:00, November 25th. I just want to make sure I
16 understand what filing means. Does that mean that the
17 jacket has been signed or does that mean that the idea is
18 in the hopper?
19 COMMISSIONER BARKDULL: It mean the jacket has been
20 signed a it's been assigned a number and it's ready to go.
21 COMMISSIONER FORD-COATES: So, if anyone were going
22 to meet that deadline, they need to be starting long
23 before the -- I mean, it can't happen the morning of the
24 25th unless the faxes go back and forth pretty quickly or
25 the exact wording is set up.
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1 COMMISSIONER BARKDULL: You have got to have it in by
2 5:00 on the 25th. If the exact wording is not the way you
3 want it at that time, I would suggest let it go because
4 you have a vehicle, you can amend it when it gets here.
5 COMMISSIONER FORD-COATES: But we have to get that
6 final document from bill drafting?
7 CHAIRMAN DOUGLASS: Yes.
8 COMMISSIONER FORD-COATES: Thank you.
9 CHAIRMAN DOUGLASS: Well, it doesn't really have to
10 go to bill drafting if you want to draft it yourself and
11 you have got a jacket and can sign it. Then we'll send it
12 to bill drafting and see if they approve it. It'll go to
13 bill drafting.
14 That is important to remember, the 25th at 5:00 p.m.,
15 anything that a member wants to file has to be filed.
16 That's under the rules, and then it would take a 2/3's
17 vote to file something after that, waiver of the rules.
18 Am I right, Commissioner Barkdull?
19 COMMISSIONER BARKDULL: That's correct.
20 CHAIRMAN DOUGLASS: Okay. I do want to compliment
21 the commission on this meeting. The few people that have
22 been in the gallery that are experts at this thing have
23 come up to me and said how pleased they were with the
24 quality of the decorum of this group and the way they
25 debated and the intelligence of the debate. And I think
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1 that you are to be complimented for that, and it is a
2 great reflection on your ability and your dedication to
3 doing the right thing. And I'm very proud to be involved
4 with you, as I'm sure we all are with each other.
5 We will proceed now with the special order. And the
6 first proposal is No. 45 by the Commission on Executive
7 and Commissioner Henderson. And I would like to ask the
8 clerk to read the title.
9 READING CLERK: We have proposal 31.
10 CHAIRMAN DOUGLASS: Beg your pardon?
11 READING CLERK: We have proposal 31.
12 CHAIRMAN DOUGLASS: Oh, okay, excuse me, the first
13 one on special order -- I was trying to get to
14 Commissioner Henderson because he's been very quiet. I
15 wanted him to speak and tell us it is a miracle again.
16 I'm looking forward to that. It is Proposals 31 and 55,
17 which is a committee substitute for those, and would you
18 read the title please?
19 READING CLERK: Committee substitute for Proposals 31
20 and 55, a proposal to revise Article V, s. 14, Florida
21 Constitution, and create Article V, s. 21, Florida
22 Constitution, providing for salaries, costs, and expenses
23 of the judiciary, state attorneys, public defenders, and
24 clerks of the circuit court, and their appropriate staff,
25 to be funded from state revenues appropriated by general
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1 law.
2 CHAIRMAN DOUGLASS: All right. Commissioner
3 Sundberg, I believe you were designated by the committee
4 to present this, and you had one of the two proposals that
5 were combined; therefore, I recognize you to proceed on
6 this proposal.
7 COMMISSIONER SUNDBERG: Thank you, Mr. Chairman.
8 CHAIRMAN DOUGLASS: There is an amendment on the
9 table.
10 COMMISSIONER SUNDBERG: I would like to --
11 CHAIRMAN DOUGLASS: Commissioner Sundberg, there is
12 an amendment on the table.
13 COMMISSIONER SUNDBERG: By me.
14 CHAIRMAN DOUGLASS: By you? I would like to ask that
15 that be read.
16 READING CLERK: By Commissioner Sundberg, on Page 2,
17 Lines 3 and 9, delete "judiciary" and insert "state court
18 system."
19 CHAIRMAN DOUGLASS: All right. Proceed.
20 COMMISSIONER SUNDBERG: Let me first address the
21 amendment because I really believe it's noncontroversial
22 and I would like to have that issue addressed and the
23 proposal amended before we commence presentation today on
24 the principle of the proposition.
25 The amendment, as has been read, if you look at the
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1 Proposals 31 and 35, when referring to the costs of the
2 state court system that is to be assumed by the State, it
3 says, all of the salaries, costs and expenses of the
4 judiciary, comma, state attorneys, public defenders, et
5 cetera. This amendment simply substitutes for the word
6 "judiciary" in Line 3 and in Line 9, the phrase, "state
7 court system."
8 I do that because I think that it's more consistent
9 with definitions that have heretofore been used. For
10 example, that is a defined term in Section 25.382, Florida
11 Statutes, which is Title V dealing with the judicial
12 branch of government.
13 So, this is, I believe, accurately, simply, the
14 technical amendment to have this more clearly define what
15 we mean. And that definition in the statutes, as it is
16 here, is intended to refer to the Supreme Court, the
17 District Courts of Appeal, the circuit courts, and the
18 county courts.
19 CHAIRMAN DOUGLASS: All right. Commissioner Sundberg
20 has moved the amendment to committee substitute for
21 Proposals 31 and 55. Commissioner Scott.
22 COMMISSIONER SCOTT: Mr. Chairman --
23 CHAIRMAN DOUGLASS: On the amendment?
24 COMMISSIONER SCOTT: Well, yes, because I think
25 before we start deciding what to do about amendments,
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1 there is a point that we need to make here. Our staff
2 analysis here, which is -- there's no requirement that it
3 be done like we have in the Legislature, but it doesn't
4 indicate the financial cost of this.
5 But it's my understanding from this having come up
6 with a senator who has introduced this issue before, our
7 staff analysis in the Legislature showed that it costs
8 $560 million a year to mandate that the State take up this
9 cost.
10 And I just want to make the point that this is a very
11 serious matter and we would -- not only would we be
12 considering that amount of money, but we would also be
13 saying, you shall fund whatever it costs, and then the
14 Legislature, who is elected to represent all of the people
15 and the taxpayers wouldn't really have that much choice.
16 So I'm not talking against it. I'm for the idea of
17 the State picking up more of these costs, but I do think
18 that we should not proceed to adopt this measure until we
19 have a substantial chance for more study and input. So I
20 just wanted to make that point. So, to me, before you
21 start doing a lot of amending on it, you know, maybe we
22 ought to address that issue.
23 CHAIRMAN DOUGLASS: Are you opposing the amendment?
24 COMMISSIONER SCOTT: In all candor, I don't know what
25 the amendment does. I am just --
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1 CHAIRMAN DOUGLASS: What the amendment does, he has
2 just explained it, defines, instead of using the word
3 "judiciary," he used the word "courts." And he explained
4 the reason for it, it's already defined, "the courts"
5 word, and "judiciary" is a much broader word that
6 shouldn't be used in the constitutional effort. So it's
7 merely a housecleaning -- housekeeping amendment, as I
8 understand it. Is that correct, Commissioner Sundberg?
9 COMMISSIONER SUNDBERG: Absolutely.
10 CHAIRMAN DOUGLASS: All right. Is everybody prepared
11 to vote on the amendment, not on the proposal? Please
12 vote.
13 (Whereupon, an electronic vote was taken.)
14 CHAIRMAN DOUGLASS: All right. It's recorded.
15 READING CLERK: 24 nays and zero yeas, Mr. Chairman.
16 CHAIRMAN DOUGLASS: Proceed, Commissioner Sundberg,
17 you have a quorum.
18 COMMISSIONER SUNDBERG: Mr. Chairman, I want to
19 assure Commissioner Scott that I recognize the seriousness
20 of this proposal. I don't for a moment perceive it to be
21 frivolous. It has been a serious proposal since 1972 when
22 the judicial article was placed -- or the revised judicial
23 article was placed in our Constitution. The state of
24 affairs prior to 1972 in the State of Florida insofar as
25 its judiciary --
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1 CHAIRMAN DOUGLASS: Commissioner Sundberg, just a
2 minute. Would the commissioners and people who are not
3 commissioners that are standing around please take their
4 seats. And anybody that's not a commissioner, please do
5 not walk the floor while debate is going on. Thank you.
6 Proceed.
7 COMMISSIONER SUNDBERG: Thank you, Mr. Chairman. As
8 I was saying, the state of affairs with regard to the
9 judicial system in this state I think could be fairly
10 characterized as a mess.
11 We had some 13 or 14 different kinds of courts from
12 place to place in this state. We had justices of the
13 Peace, we had civil courts of record, we have got criminal
14 courts of record, we have got felony courts, we have
15 misdemeanor courts, we have county judges' courts, we have
16 county courts. In 1972, however, under the leadership of
17 then judiciary -- House Judiciary Chairman D'Alemberte and
18 his able staff director, Janet Reno, the judicial article
19 was moved forward and adopted by the people.
20 In connection with the adoption of that court reform,
21 and it was a significant court reform, because all of
22 those different courts, and including municipal courts,
23 which were clearly -- I say clearly, in many venues were
24 nothing more than cash registers for local government, and
25 the amount of fines and forfeitures were built into the
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1 municipality's budget as a means of collecting revenue.
2 In any event, in connection with this substantial
3 court reform, it was represented to the people of this
4 state that in exchange for taking away or eliminating
5 these local courts with all sorts of local jurisdiction,
6 that it would be replaced by a uniform state court system.
7 And that system is essentially as we know it today. It is
8 a two-tier trial system made up of county courts and
9 circuit courts with a level of intermediate Courts of
10 Appeal, the District Courts of Appeal, with the Supreme
11 Court. And as our Constitution states, that's all of the
12 courts that may exist in this state.
13 It clearly was a uniform system of courts. It was a
14 model in these United States for court reform. But in
15 order to induce the people to support this uniform
16 statewide system, the representation was made, you are
17 going to lose these local courts, and in many instances,
18 the fines and forfeitures that are generated, but in
19 exchange for that, this, because it's going to be a
20 statewide system, that the cost of that system will now be
21 borne by the State. That was the promise. I can quote a
22 number of editorials. I can quote many instances in which
23 those representations were made to the people.
24 However, that promise never came true because the
25 only cost of this uniform statewide judicial system that
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1 was assumed by the State turned out to be, and in the
2 literal terms of the Constitution, that was accurate,
3 simply the cost of the justices and judges and their staff
4 which make up the state court system.
5 You say, well, what other kinds of costs are we
6 talking about? Justices and judges, that must be the
7 system. The answer to that is, no, that's not the system.
8 The cost of the system is made up of a number of elements.
9 It is made up of witness fees that have to be paid in
10 all criminal cases to witnesses. It's made up of the
11 costs of court reporters, which is a significant cost. It
12 is, in many of our jurisdictions now, court interpreters,
13 it's overhead costs for judges, states attorneys and
14 public defenders. So that local government, the counties
15 have continued to be responsible, in addition to the
16 facilities' costs; and that is the courthouses, the space
17 and security for the court proper, the states attorneys,
18 and public defenders have all continued to be a cost to
19 local government.
20 We have found another cost that has become very, very
21 significant, and that is the cost of appointed counsel,
22 not only when the public defender has a conflict. And the
23 statute provides for that, that when a public defender has
24 a conflict -- say they are codefendants, the public
25 defender can defend one but can't defend both of them,
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1 then the court appoints counsel who act like a public
2 defender for the codefendant. Our Constitution requires
3 that.
4 It also requires that indigents, and we are talking
5 about indigents here, that indigents who are entitled to
6 an appeal of their conviction are entitled to counsel.
7 The Federal Constitution mandates that. We had a case not
8 so long ago in which -- it occurred in the second district
9 area -- in which the public defender who handles all of
10 the appellate work in those -- in that district said, I
11 don't have conflicts, but we are absolutely overwhelmed
12 with a caseload that we cannot adequately represent these
13 indigent defendants who have been convicted and who are
14 entitled to appeal.
15 And so the 2nd District Court of Appeals said, in
16 those instances this overload has to be funded; there has
17 to be counsel appointed to handle this. And they said,
18 local government must bear the cost of now providing, in
19 addition to other costs that they bear, the cost of these
20 appellate attorneys to handle the cases for indigents on
21 appeal.
22 It came to the Florida Supreme Court, and the Florida
23 Supreme Court said, this is really a bummer, the
24 Constitution requires that these indigents be provided
25 counsel and the State ought to be paying for these
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1 counsel. But we perceive that separation of powers,
2 considerations prohibit us from directing the Legislature
3 to pay these costs. And so, once again, local government
4 got caught with those costs.
5 As Commissioner Scott indicates, we are not talking
6 about an insignificant amount. But I suggest to you, that
7 makes my very point. Local government is bearing this
8 sum, whatever it may be, and I'm not sure we have a
9 perfect handle on it. I would accept figures in the range
10 suggested by Senator Scott. And local government is
11 between a rock and a hard place. Over a third of them,
12 I'm told, or I'm informed, are already at their ten mill
13 cap.
14 So the Legislature has said, you may not -- or, you
15 know, by law they may not exceed or levy ad valorem taxes
16 beyond that to defray these costs, many costs, but
17 included amongst them, these escalating costs of the state
18 court system. That is the background in which we found
19 ourselves and was the moving event for the proposal which
20 is before you today.
21 And let me talk a minute about what this proposal
22 does. First of all, I would tell you that this issue has
23 been considered by at least three bodies in the 1990s.
24 And the problem has been recognized and recommendation has
25 been made by each of them that it be addressed.
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1 In 1991, the Judicial Council of Florida recommended
2 a proposal for state assumption of most of Article V
3 costs. The Florida Council of a Hundred, which is a
4 significant, important organization of businesspeople in
5 this state, who recognized the need for supporting our
6 statewide, uniform state court system, urged the
7 Legislature to address the courts' funding needs. And
8 there they spoke particularly with respect to providing an
9 effective criminal justice system. And more recently, the
10 Article V task force of 1995 recommended that the
11 Legislature begin the assumption of specific Article V
12 costs.
13 Under the proposal that's before you, the counties
14 are required to fund the cost of construction,
15 maintenance, utilities, and security for facilities for
16 the trial courts, for the public defenders, for the states
17 attorneys, for the clerks, and for their respective
18 staffs. That has been the traditional role of local
19 government, to provide these kinds of facilities.
20 In days past, it's been perceived to be the
21 traditional role of local government because a number of
22 local government functions, in addition to the state court
23 system, were carried on in those facilities. That doesn't
24 seem to be so much the case now because judicial
25 facilities, states attorneys, public defenders are often
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1 in freestanding structures. But nonetheless, we felt that
2 this significant cost still ought to be borne by local
3 government.
4 Next, the proposal requires the State to pay all
5 salaries, costs, and expenses of the state court system,
6 the public defenders, the state attorneys and the clerks
7 of court when performing court functions.
8 If I can take a moment to explain that for those of
9 you who may not know the kinds of functions that your
10 clerk performs. The clerk really performs two sets of
11 discrete types of functions. One is related to the court
12 system. It provides for filing of documents that initiate
13 litigation, it provides for filing deeds and all manner of
14 documents.
15 On the other hand, it provides a function that is
16 purely local, and essentially a function of the Board of
17 County Commissioners in that county. It has functions
18 with respect to bonding and finance, it has some
19 comptroller functions. The cost which the State is called
20 upon in these proposals or this proposal to undertake is
21 just that, those functions which are in support of the
22 state court system. Those functions which are local in
23 nature, and in effect, county functions under the Board of
24 County Commissioners would continue to be funded by local
25 government.
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1 This provides, in response to Senator Scott's
2 concerns, that it would not be until the year 2004 when
3 the State would assume its portion of the Article V costs,
4 and that's to be pursuant to a phase-in schedule that's to
5 be established by the Legislature under general law. In
6 other words, this doesn't go into effect in one fell
7 swoop.
8 It provides further that the Legislature is not to
9 preclude -- it doesn't require the Legislature to do it,
10 but it does not preclude it from acting to receive the
11 county's fines, costs, and forfeitures that are currently
12 dedicated solely to funding the courts. The premise being
13 of that -- and fines and forfeitures go a lot of places.
14 They go to -- because they are generated from a number of
15 sources.
16 Some come from fines arising out of municipal
17 ordinance violations. Some come from code violations that
18 are either municipal or county code violations. Some come
19 from violation of county ordinances. But those fines and
20 forfeitures are currently appropriated by the Legislature
21 for many, many purposes, among which some is to go back to
22 the county to defray these court costs which I have
23 earlier discussed.
24 What this says is -- nothing in this amendment that
25 in effect says -- or that says that the State takes over
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1 these costs, would preclude the Legislature from
2 continuing to appropriate those funds, and in particular,
3 to utilize the funds that have heretofore gone to the
4 counties on the premise that it's helped to defray those
5 costs. If the State is taking it over, the Legislature
6 will have the power to say, those revenues will now come
7 to the State to help defray the cost that the State will
8 now bear for the state court system. It does not require
9 that, it simply permits it.
10 I urge -- and I don't want to rush to justice on
11 this, Commissioner Scott, but it's been some, how many
12 years since 1972, that we have been easing up on this, I
13 think it's time for us to do something about it. We
14 obviously should do that in a very deliberative way. It
15 is a significant and important issue. But I don't really
16 know what the alternative is.
17 We do have a state court system. Like any other
18 state program, it should be supported by State revenues.
19 The burden of it should not continue to fall ever more
20 heavily on local government, particularly in view of the
21 limitations that they have imposed upon them for raising
22 revenues.
23 I'm hopeful that when our labors are done here, we
24 will be taking to the people some proposition that's going
25 to reform the tax base in this state, but certainly will,
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1 hopefully, provide the wherewithal, without great acts of
2 providing for this state court system.
3 Florida has every reason to be proud of this, of its
4 court system, it is indeed a model to the rest of the
5 states in the United States. It can't continue to be if
6 the funding of this state court system continues to be
7 imposed on local government and on local citizens to be
8 wrung out of their ad valorem taxes year after year, so I
9 urge you to favorably consider this proposition. And I'll
10 entertain any questions, Mr. Chairman, thank you.
11 CHAIRMAN DOUGLASS: Commissioner Sundberg entertains
12 questions. Commissioner Wetherington.
13 COMMISSIONER WETHERINGTON: I just want to speak in
14 support.
15 CHAIRMAN DOUGLASS: He's yielded for questions.
16 Commissioner Evans, over here.
17 COMMISSIONER EVANS: Would moving the judicial
18 functions of the clerk of the court over, I'm wondering in
19 cost, in Section 2, Subsection B, where it says, allowing
20 the Legislature to have the counties remit to the State
21 funds, costs and forfeitures obtained by the counties, I'm
22 wondering, and I don't know all of the funding for the
23 clerk of the court, but correct me if I'm wrong, doesn't
24 the clerk of the court keep the filing fees?
25 And if that's correct, would filing fees that go to
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1 running the judicial functions also fit into this language
2 here or not?
3 I think I view filing fees as something different
4 from costs, and I'm wondering if the clerk of the court
5 would fit under this language that the Legislature, if it
6 so chooses, could have those filing fees or the income
7 that the clerk receives to run the clerk's office,
8 submitted to the State to help offset those state costs
9 too?
10 COMMISSIONER SUNDBERG: I think my answer is no. But
11 my response is, you are absolutely correct. Fines and
12 forfeitures and those kinds are viewed differently from
13 the fees collected by the clerk's office. Those are in
14 the nature of user fees. They are really no different
15 than a number of other user fees, for example, and there
16 is an application fee that must be paid by health care
17 facilities when they seek a Certificate of Need that's
18 intended to pay for the cost of processing that. The same
19 is true with respect to filing fees by the clerk's office.
20 This does not at all address that, that continues.
21 Now, to the extent that the clerk's office is
22 performing a -- you know, it's now going to be performing
23 that as a state function and a state-funded function, the
24 Legislature will have a say, as they do now, over the
25 amount of those fees. But those fees will still go to
25
1 support the costs of operating the clerk's office under
2 this proposal.
3 COMMISSIONER EVANS: I'm just wondering, though,
4 shouldn't the Legislature constitutionally have the power
5 to require the clerk's office to remit those funds to the
6 State to be turned back over? In other words, have more
7 control over the functions that we are now asking the
8 Legislature to control?
9 COMMISSIONER SUNDBERG: I do not -- this proposal is
10 not intended to address filing fees at all. It is
11 intending to address only the fines and forfeiture, which
12 is an entirely, as you have observed, is an entirely
13 different animal than filing fees, which are in the nature
14 of user fees.
15 If you view it this way, Commissioner Evans, if in
16 fact those functions related to the state court system
17 that are performed by the clerks are now going to be
18 funded by the State, the State through the Legislature
19 will have the ability to direct that it be accomplished in
20 any fashion that the Legislature chooses.
21 COMMISSIONER EVANS: Okay. So, the Legislature
22 already has that ability to dictate how those funds are
23 used?
24 COMMISSIONER SUNDBERG: Absolutely, absolutely. And
25 this is not intended to nor do I believe does affect that
26
1 issue.
2 COMMISSIONER EVANS: Okay.
3 CHAIRMAN DOUGLASS: All right. Commissioner Planas
4 was up first. You are recognized. Do you yield?
5 COMMISSIONER SUNDBERG: Absolutely.
6 COMMISSIONER PLANAS: Question. As much as I am a
7 strong supporter of this measure, I have some worries as
8 Commissioner Scott has, that's what we have to study on.
9 Number one is, do we have a study, how much the county, by
10 county, are they receiving, you know, how much they are
11 paying for this, by county?
12 Number two, what would happen with that extra money
13 that the counties will have now? Will they stop raising
14 local taxes? What would happen to that windfall? Some
15 questions that I have.
16 COMMISSIONER SUNDBERG: Well, to -- in seriatim, the
17 answer to your first question is -- your first question
18 is, I'm sorry, I lost it.
19 COMMISSIONER PLANAS: How much money the counties are
20 paying for.
21 COMMISSIONER SUNDBERG: I must tell you that the
22 answer -- that those numbers are, to use Judge
23 Wetherington's term, are inelegant, at best. They have
24 only been captured most recently on any uniform account
25 basis. We do now have numbers and the kinds I think
27
1 Commissioner Scott refers to. I'm assuming he's getting
2 it from those areas. But, yes, those numbers do exist,
3 they will -- we are trying to make them more precise as
4 time goes on through some uniform accounting.
5 What happens to the -- you referred to it as a
6 windfall, I would like to refer to it as what happens
7 after the yoke is lifted off of the backs of local
8 government for these costs. That, of course, will be up
9 to the governing bodies of those local governments as to
10 how they will address those issues. Presumably there are
11 lots of other needs to be met. And to the extent that
12 there's not, golly, they could reduce taxes.
13 CHAIRMAN DOUGLASS: Commissioner Thompson.
14 COMMISSIONER THOMPSON: Yes, I just had one question.
15 I wanted to be sure I understood it, the last part of your
16 comments on your main presentation. I think what I heard
17 you say was, certainly, this is going to cost a lot for
18 the Legislature to budget this amount. And of course
19 Senator Scott made some estimate about $500 million per
20 year recurring, which -- for those of you that know what
21 recurring means, it means that it goes up about 15 percent
22 per year -- and I think what you said is that once you can
23 convince us to support this measure and we go to the
24 ballot with it, you are going to ask us to support
25 something that's going to allow them, because of this
28
1 requirement, to raise taxes commensurate with that; is
2 that right?
3 COMMISSIONER SUNDBERG: No, that's not right at all,
4 Commissioner Thompson. What I said was that I was
5 hopeful -- and this proposal is not interconnected with
6 any other proposal. This proposal is presented on its own
7 merits because -- and you talk about costs, these are not
8 new costs, they are there now. The question is, who ought
9 to bear these costs, all right, to begin with.
10 And it is not interconnected or interdependent with
11 any other proposal. And I didn't say a thing about
12 raising taxes, I thought I said something about tax
13 reform. For example, there's a proposal before us that
14 will eliminate many, many of the exemptions that appear in
15 our sales tax now. And I would hope through that reform
16 there will be revenues generated, not just to fund this
17 type of proposal, but for many of the other proposals that
18 we have before this state, to support education and other
19 needs.
20 COMMISSIONER THOMPSON: Well, you just mentioned the
21 two proposals together, I'm sorry, I misunderstood you.
22 COMMISSIONER SUNDBERG: Okay. Well, I was glad to
23 clarify it for you.
24 CHAIRMAN DOUGLASS: Further questions? Commissioner
25 Ford-Coates.
29
1 COMMISSIONER FORD-COATES: Let me say that I think
2 this is perhaps one of the most important issues we have
3 before us because of the impact I see at the local
4 government level. But I do have a concern in
5 understanding and having the time to understand the actual
6 impact on the clerk's office, on local government of the
7 fines and forfeitures, of that going back to the State. I
8 know that some of the other proposals that I've read from
9 the Article V task force talked about reimbursement.
10 I have a philosophical problem with sending money to
11 the State and the State sending it back to the County, it
12 doesn't seem to be the most efficient way to handle it.
13 I'm not saying that that's my conclusion at this point,
14 this may be more of a question on process.
15 I certainly would like to have an opportunity to look
16 at this and have some time to look at it, and hopefully
17 not necessarily vote on this proposal today. Would the
18 Commissioner be amenable to perhaps temporarily passing
19 this measure until next month?
20 CHAIRMAN DOUGLASS: Let me interrupt and say -- I
21 think I would ask you to wait for that. I think we may
22 come to that, but I think it's appropriate that we get
23 some answers to this before we start doing that, at least
24 what the sponsors say, and that's one reason that I have
25 discouraged temporarily passing this particular provision.
30
1 And I want these questions to be raised, and that's why I
2 asked that you raise them. And you have raised one.
3 COMMISSIONER FORD-COATES: Perhaps he can give me
4 that answer. The only piece to that is, of course, I want
5 to hear the actual dollar impact and the administrative
6 impact at the local level to make sure that it is an
7 efficient process.
8 COMMISSIONER SUNDBERG: Well, if I may respond? And,
9 again, it's much like my response to Commissioner Evans.
10 Fines and forfeitures and fees by the clerk's office, as
11 you surely know, are two different animals. The clerk has
12 the responsibility to collect the fines and forfeitures.
13 And it is my understanding, and I can't give you a precise
14 amount, that some portions -- that there's a formula under
15 which portions of those fines and forfeitures now go back
16 to the municipalities. I think some go to the clerk's
17 office -- the amount, I don't know. And some to the
18 counties. And all this addresses -- that changes none of
19 that; this proposal changes none of that.
20 All it says is that, or what it's intended to convey
21 is that, to the extent that the clerk's office has a cost
22 attached to it, which it surely does, to operate the
23 clerk's functions, some of which are local government
24 functions under Board of County Commissioners, others are
25 court-related functions.
31
1 All it says is, in the future -- and it clearly says
2 this -- in the future, to the extent that there are
3 court-related functions, the clerks will be looking to the
4 State Legislature for the funding of those. Now, it has
5 an offset, as you well know, for the fees that it
6 collects, the user fees. And it also probably -- and, I'm
7 sorry, I don't have a precise answer to you. It probably
8 has gained some portion out of the fines and forfeitures,
9 but it really has two functions.
10 One is that it's supposed to be collecting it, and we
11 have seen figures and heard testimony at public hearings
12 as to why some counties have collected much larger
13 percentages of the fines and forfeitures and other
14 counties have not. The clerks would say to you -- and I
15 don't want to get into that issue -- the clerks would say
16 to you, Well, it is the judges' fault because they don't
17 impose the fines or they suspend them. And Judge
18 Wetherington says, What's the difference, a guy who is
19 packing off for 30 years is going to be -- to the state
20 correctional system is going to be, you know, ill-prepared
21 to respond. But there really are two systems.
22 But this doesn't require any change, all it says is
23 that the cost of the clerk's office is now, rather than
24 being borne by the Board of County Commissioners, it's
25 going to be borne by the State.
32
1 CHAIRMAN DOUGLASS: All right. Commissioner Morsani.
2 COMMISSIONER MORSANI: This is a comment. I think in
3 our Gainesville meeting on this, especially on the
4 numbers, if you remember our Gainesville meeting, I think
5 the figure was like $650 million and it detailed all as
6 far as the clerks, and the fees, and the forfeitures. We
7 have that someplace in our papers, I remember it, but I
8 didn't bring it with me. But I think that that
9 information is available to everyone in this room, so this
10 is not new, to look at how those fees were coming in. So
11 we do have that information.
12 CHAIRMAN DOUGLASS: I think you are absolutely
13 correct on that point. Now, the issue is, do we need
14 additional verification of that, I think is what
15 Commissioner Scott had in mind.
16 And also you have had since your appointment an
17 article that was in the Florida Bar Journal which outlined
18 what the court costs were which were compiled at that time
19 in the various counties, and that came up with some 575
20 million, so we had those figures.
21 But as I understand Commissioner Scott, he feels
22 these should be verified. And we'll reach that point when
23 we conclude this exchange, I think. Any other questions,
24 questions only?
25 COMMISSIONER SCOTT: I don't know how to ask
33
1 questions but --
2 CHAIRMAN DOUGLASS: I'm sure you do.
3 COMMISSIONER SCOTT: Let me make a statement and then
4 ask you a question.
5 COMMISSIONER SUNDBERG: Are you going to want me to
6 disagree or agree with your statement?
7 COMMISSIONER SCOTT: No, I'm going to ask you if this
8 covers -- right now, you know, the Legislature, we sit up
9 here and we have got all of these needs from all over the
10 state, whether it's healthy children, education, last
11 month -- last week we were up here, 2 or $3 billion trying
12 to catch up on educational facilities.
13 What happens now is that, just take judges, they
14 certify their needs in circuit -- and the lawyers in here
15 probably know that, and then they come up and the Supreme
16 Court sends us a certification on how many judges each
17 circuit or district additional they might need.
18 And then the Legislature looks at that and evaluates
19 it. Sometimes they fund it, sometimes they don't. I have
20 always -- or we have always tried to, especially where
21 it's been conservative, and it wasn't always, you know, a
22 couple of years -- we have tried to fund it.
23 We look at the state attorneys, and how much they pay
24 people in their office, how many, how much money they are
25 going to get for Dade and Broward and the other circuits.
34
1 And the same with the public defenders. Now, as I read
2 this proposal, and I'll ask you, does this proposal
3 provide for the kind of oversight and budgetary
4 constraints which now exist with regard to the judiciary
5 along with everything else in this state, you know,
6 whether it's building prisons, or schools, or whatever?
7 It says they "shall" fund it. To me -- you know,
8 does it provide for the kind of oversight on the expenses
9 that now exist, because the Legislature doesn't have a
10 mandate that it shall fund all costs, whatever they are,
11 and who knows, you know, if they are -- I guess I'm asking
12 the question, does it cover appropriations and oversight?
13 COMMISSIONER SUNDBERG: In my view, absolutely,
14 absolutely. Now, it's not going to give the Legislature
15 any more nor any less control over the decision-making
16 process in their district. And Commissioner/Senator Scott
17 has always been very supportive of the state court system,
18 I can attest to that, and he's never been miserly. But
19 Commissioner, yes, if -- to the extent that it's -- you
20 know, it is a Golden Rule; if you are providing the gold,
21 you are going to make the rules.
22 CHAIRMAN DOUGLASS: All right. Any other questions
23 at the moment? I have two questions. Number one, when
24 you say requiring that the counties remit to the state,
25 does that include all of the fines that go to
35
1 municipalities?
2 COMMISSIONER SUNDBERG: No, it does not, just the
3 county. All this addresses is the County's portion of the
4 fines and forfeitures which they get under the formula
5 now.
6 CHAIRMAN DOUGLASS: All right. If you are going to
7 do that -- it's collected by the clerk of the court, is it
8 not, the fines of the cities, municipalities?
9 COMMISSIONER SUNDBERG: It is, it is and then --
10 CHAIRMAN DOUGLASS: If you included municipalities,
11 would not this address and give to the Legislature some
12 oversight over speed traps? It would, wouldn't it, if you
13 included municipalities?
14 COMMISSIONER SUNDBERG: I don't think it necessarily
15 would.
16 CHAIRMAN DOUGLASS: You don't want to do that?
17 COMMISSIONER SUNDBERG: No, I don't want to do that.
18 CHAIRMAN DOUGLASS: We have received some great
19 publicity nationwide that we have got the speed traps
20 where a municipality that had one policemen got 13 and
21 collected more money than the County.
22 COMMISSIONER SUNDBERG: But, respectfully,
23 Mr. Chairman, the issue that was raised by the speed traps
24 was addressed by -- and was attempted to be addressed by
25 Article V in 1972.
36
1 CHAIRMAN DOUGLASS: I was reminded not to debate you
2 from the podium. As an old horse, I have trouble with
3 that.
4 COMMISSIONER SUNDBERG: Yes, I understand.
5 CHAIRMAN DOUGLASS: I appreciate you calling me on a
6 point of order.
7 COMMISSIONER SUNDBERG: But the point is, that those
8 bad vibes we get from the term "speed trap" has to do with
9 the judicial function of imposing those fines, not how
10 they are distributed once they are imposed. And these
11 fines are imposed or not imposed, in many instances, by
12 judges who make up the state court system, and they are
13 not local judges.
14 CHAIRMAN DOUGLASS: Well, we'll take that up later.
15 But the other question I had, which is not to debate you,
16 such items as these new courts that we discussed
17 yesterday, new judges -- this creating of a new system is
18 creating a lot of new judges; would that be covered by
19 this; the State would be required to fund them?
20 COMMISSIONER SUNDBERG: Absolutely.
21 CHAIRMAN DOUGLASS: Also, isn't it true in 1972, when
22 you were involved in working on this, that the general
23 representation was made that the State would bear these
24 expenses?
25 COMMISSIONER SUNDBERG: Thank you for that friendly
37
1 question, Mr. Chairman.
2 CHAIRMAN DOUGLASS: After the debating, I thought I
3 better throw you a softball.
4 COMMISSIONER SUNDBERG: And the answer is yes.
5 CHAIRMAN DOUGLASS: Okay. Any other questions?
6 COMMISSIONER SUNDBERG: Thank you, Mr. Chairman.
7 CHAIRMAN DOUGLASS: All right. Does anybody rise to
8 speak in support? Commissioner Henderson.
9 COMMISSIONER HENDERSON: Thank you, Mr. Chairman. I
10 rise in support of this proposal. As a -- back home,
11 you-all may think you know me for what I do now, but back
12 home they know me as the fellow who left the county
13 commission voluntarily with all of my hair its original
14 color.
15 I'll give you a local government perspective on this.
16 When Governor Askew appeared when we started, it seems
17 like years ago, doesn't it, just a few months back, he
18 talked about the diminution of the federal and local
19 government, where are things happening now, the local
20 government, where people are going to the municipalities,
21 the county commissioners and asking them to try to decide
22 the difficult problems of today. And one of the problems
23 is that they don't have the tools to handle all of the
24 things that they are being asked to do and resolve.
25 And one of the reasons for that is this burden, this
38
1 bill that every year gets bigger and bigger for which they
2 have absolutely no control over, and it is the cost of --
3 their share of the court system. I remember in my first
4 year as commissioner, and I looked at the budget that was
5 presented to us at that time, it was a -- just a little
6 $200 million budget, and having to look at the reasons why
7 we were being asked to raise people's taxes significantly.
8 And most of those were in areas where we absolutely had no
9 control. There were a few million dollars of this that
10 basically came out of making up the deficit in the clerk's
11 system -- the clerk's office, which is really part of this
12 cost.
13 So I said, Well, can we get the clerk over here and
14 talk about this issue? No. And my wiser brethren laughed
15 and snickered and said, No, I don't think that's going to
16 work. And I said, Well, I'll just go talk to him. So, I
17 went across the street and asked to see the clerk and I
18 said, I want to talk to you about your budget. And he
19 said, Why? And I said, Well, because you are basically
20 asking me to raise the taxes on the people of my county
21 for this bill, so I would like to talk to you about it.
22 He said, Commissioner, I would just like you to understand
23 something, it's none of your business.
24 And that signal -- and we were good friends and he
25 was being nice about it, but the point of it is is that
39
1 there was nothing that we could do about it. The other
2 part of it is -- this proposal doesn't go all of the way,
3 it doesn't go half of the way, actually. The biggest
4 cost, the biggest cost at the local level are the
5 facilities.
6 Now, back in the old days -- back in the old days you
7 went to the courthouse and you could register to vote
8 there, you could pay your taxes there, you could buy a
9 fishing license there, and the judge was upstairs. These
10 were all-purpose courthouses. Nowadays, particularly in
11 the urban counties, you have got these big, massive
12 multi-million dollar criminal justice facilities. Because
13 the Legislature and the courts have approved additional
14 judges, additional states attorneys, additional public
15 defenders, and on and on and on.
16 Every other part of state government, when you add
17 employees, add departments, add to the mission, you build
18 a new state office building, you do that, that is the cost
19 of the business. In this area, you say we have supplied
20 another 50, 60 employees, you at the local government have
21 to do that.
22 So in urban counties you will have these massive
23 structures that just house state employees. The only
24 county employee in that building is the janitor, yet the
25 tax bill for that is assumed by the local government.
40
1 So, that is the local perspective on this issue. It
2 is that the largest portion of the budget is at that local
3 level. In almost every urban county -- I know this isn't
4 true to some extent in the rural counties -- but in urban
5 counties, every year, bigger and bigger, and for areas for
6 which there's absolutely no control.
7 Just in the area of court-appointed attorneys, almost
8 every time that there is a codefendant situation, the
9 public defender will take one, and the others, whether
10 it's two, three, or four. In a gang situation that may be
11 three or four. The cost of those others are taken care of
12 by the local government. That is a big bill, that is
13 $100,000 or more -- when I left county government, we were
14 at $100,000 alone just in that program.
15 So I tell you that this is one area where you help
16 local government, it is one area where you help to give
17 promise to local rule, and the fairness works real well,
18 so we all come from a different perspective. This is the
19 perspective of somebody who's had to raise somebody's
20 taxes and had no control over the reason for that. And
21 I'm sure there's county commissioners all over the state
22 serving at this time that would tell you the same thing.
23 CHAIRMAN DOUGLASS: Commissioner Wetherington.
24 COMMISSIONER WETHERINGTON: I would like to add one
25 other dimension, and that is the dimension of equal
41
1 justice, and particularly emphasizing the criminal area
2 where there are constitutional mandates, obviously. There
3 are circuits in the state where I think they don't have a
4 lot of money. They can have substantial cases. Those
5 substantial cases can cost a tremendous amount of money if
6 it's a big case, a murder case, a sensational trial.
7 And then there's the question of the other defenses
8 being provided, the availability of the witness fees, the
9 expert witness. The other matters are involved, and you
10 could have a disparity actually in the disconsolation of
11 criminal justice in the State of Florida based upon the
12 fact that there are unequal funding bases in different
13 circuits. And certainly in these areas equal justice is
14 something we have to be committed to, and I think everyone
15 is committed to. And a statewide funding in this instance
16 would ensure equal justice.
17 And also, to emphasize again, in many areas,
18 particularly in Dade County, if you take a look at the
19 projections, and we have done the master planning in these
20 areas; more and more of the budget is going to be consumed
21 in criminal justice matters, and in the justice system.
22 But you are dealing in a county that's not going to be
23 able to increase its taxes. So, you are heading, in a
24 county like Dade, to a crisis that they can't handle, and
25 they are going to have some relief in this area.
42
1 CHAIRMAN DOUGLASS: Any more proponents,
2 Commissioners, proponent? Commissioner Morsani.
3 COMMISSIONER MORSANI: I don't think we have any
4 other alternative. Commissioner Scott and Commissioner
5 Jennings and all of you folks that are in charge of making
6 our laws up here, I know this is a very, very difficult
7 thing for you to accept. But what Judge Wetherington
8 said, what we have all said about the urban communities,
9 we don't have an alternative. And we all know that the --
10 with our large municipalities that have been created, a
11 half of a dozen of them in our state, where the majority
12 of our population lives in today, and the -- and because
13 of some of the things that Mr. Sundberg said, our tax
14 problems of raising taxes because of our tax system in our
15 state.
16 But one of the things that is missing I think still,
17 is the efficiency that it places. And we talk about --
18 I'm always amused when I get the letter from the
19 gentleman, the congressman or the senator, the
20 Legislature, about swift -- not swift, but the water
21 management districts. When you are -- we are finally, I
22 think, starting, hopefully, in our government -- in our
23 government to apply business management theories and
24 principles, rather than still working in the egalitarian
25 society, and that's moving forward. And I think to them
43
1 having the time, like the year 2004, having some lead time
2 in this type of proposal, gives us an opportunity to
3 arrange our finances for this important part of our state.
4 I think that we must get some relief into the local
5 government areas, and I think that we have a
6 responsibility in the Legislature to make this happen.
7 And I strongly support this proposal and I would hope that
8 we would -- that it would survive and get on our
9 November 1998 ballot.
10 CHAIRMAN DOUGLASS: Commissioner Butterworth,
11 proponent?
12 COMMISSIONER BUTTERWORTH: Yes, sir, proponent.
13 Mr. Chairman, I thank you very much. I also stand as a
14 proponent and a longtime proponent on this.
15 As Commissioner Sundberg stated earlier, the Florida
16 Supreme Court had addressed the issue with the Second DCA.
17 Again, today, we address an issue with the Second DCA.
18 The Second District Court of Appeals has ordered the
19 public defender -- in fact, the court has prohibited the
20 public defender from filing any new cases, because of
21 their backlog, after January 1st of 1998.
22 This means every single appeal in that particular
23 14-county district, which includes a number of wealthy
24 counties like Sarasota, but also some of the poorest like
25 Glades. These counties who have already submitted their
44
1 budgets, they have already -- I believe they are already
2 sending out the tax bills, they will now be hit themselves
3 with the burden upon which they may not be able to
4 withstand, especially counties like Glades and Henry. But
5 they will have to pay now for all of the appeals, at least
6 through the year of 1998 until we don't know when.
7 So, therefore, I would certainly hope that this does
8 get on the ballot and does pass in the Legislature with
9 the certain circumstances, that at least in the area of
10 the public defenders, that those particular dollars be
11 spent quickly, because many of these counties can no
12 longer stand this burden.
13 CHAIRMAN DOUGLASS: All right. Any other proponents?
14 All right, anybody wanting to speak in opposition? What
15 purpose do you rise, Commissioner Thompson?
16 COMMISSIONER THOMPSON: I didn't want to speak in
17 opposition today unless we are going to take a final vote
18 today. But I really think something like this and as
19 complicated as it is ought to be probably thought out over
20 a period, and maybe we take some more time in the
21 committee process for it.
22 And it may be one of those things that lends itself
23 to a group that the chair would maybe help us get together
24 and kind of work on it. Of course, this, as in all
25 things, personally, I feel like a proponent of the
45
1 measure, the person who is moving the measure ought to
2 agree, but my thought is that there are a lot of questions
3 here as to the impact, whether it is -- the amount of
4 money, as Commissioner Morsani has talked about, or what
5 the definitions of a judicial function happen to be, and
6 what the definitions of the functions that the clerks, for
7 example, normally would carry out for their counties and
8 their circuits, and maybe there might be some need for
9 more specifics in the proposal.
10 So, with that in mind, let me just test this.
11 Mr. Chairman, I would move you, sir, that you appoint a
12 select committee to review this matter and bring it back
13 to us at the appropriate time.
14 CHAIRMAN DOUGLASS: Commissioner Smith.
15 COMMISSIONER SMITH: Thank you, Mr. Chair. Is
16 there -- with respect to the request made of Commissioner
17 Thompson, is there any rule that prevents us from moving
18 this forward on -- possibly on a majority vote today and
19 still complying with his request either with the judiciary
20 committee continuing to look at it to answer the
21 questions, or a select committee, understanding that we
22 still have to go through the 22-vote threshold before this
23 mater can get on the ballot so we can move this forward,
24 or stop the business, whatever it is?
25 CHAIRMAN DOUGLASS: I'll answer that for you.
46
1 Obviously, we can move forward and do what the will of the
2 majority is. I think the suggestion would be that it
3 would be very difficult for a lot of members to vote today
4 without further study, am I right, Commissioner Thompson?
5 And I want to wait and see how that goes. I would
6 like to hear from Commissioner Sundberg before we decide
7 how to proceed on that. Are you rising to -- he made a
8 motion, are you rising in opposition?
9 COMMISSIONER SMITH: No.
10 CHAIRMAN DOUGLASS: Or in --
11 COMMISSIONER SMITH: Let me just say what I've said,
12 you can tell me whether it's opposition or not.
13 CHAIRMAN DOUGLASS: Or rising in neutrality?
14 COMMISSIONER SMITH: Well, we are trying to get a
15 feel on this dimension Mr. Sundberg proposed. You asked
16 for the opponents to rise, one person rose. And that's
17 why I made the suggestion I made. If a lot of people had
18 jumped up to rise, I wouldn't have made the suggestion,
19 but I guess you can see better from up there than I can
20 see from down here.
21 CHAIRMAN DOUGLASS: Commissioner Scott.
22 COMMISSIONER SCOTT: Mr. Chairman, I'm not rising in
23 opposition, I think we need to pause here and reflect for
24 a minute. This -- we have got 20-some members here today,
25 this was just put on the calendar yesterday; it is a
47
1 major, major financial issue for starters. I am wondering
2 if you just pass it like it is, if you are not doing
3 exactly what Mr. Henderson is complaining about, you are
4 telling the Legislature, fund $560 that will grow at some
5 8 to 20 -- 8 to 15 percent a year, and, you know, raise
6 taxes if you have to I suppose, or cut something else.
7 And last week we just obligated 180 million a year to help
8 build schools. So, I just think we do need some more
9 thought before we act on this, and especially since it was
10 just put up here yesterday and we have got a number of
11 members not here. And I think we need to develop the
12 financial information.
13 And one thing, for example, I didn't get back up and
14 argue with Commissioner Sundberg, but it is not true -- it
15 does say, you "shall fund all," it doesn't say as the
16 Legislature deems appropriate, it doesn't say whatever
17 they determine the needs are, it's just, you shall fund
18 all judicial, everything that it states.
19 I just think -- I, again, have been supportive of the
20 idea of the State assuming more of the obligation, but I
21 do think that we have to proceed cautiously and one way to
22 do it would be to appoint some sort of a select committee
23 that would get into this, give people a chance to talk
24 about it, some of the clerks -- the lawyers in my office
25 are representing the clerks' concerns about pars of it.
48
1 And I don't know even know -- this was 6:00 last
2 night, I don't even know what their concerns are, so I do
3 think we need some more study on something like this, and
4 we can get back to it at a future meeting. And to proceed
5 it along, you could have some sort of a select committee.
6 CHAIRMAN DOUGLASS: All right. Commissioner
7 Sundberg.
8 COMMISSIONER SUNDBERG: Mr. Chairman, I want to speak
9 in opposition to a select committee. I had conceded that
10 I don't want to rush any commissioner here to a judgment
11 on something if they have genuine concerns on it. And if
12 we need to do that, I suggest we postpone this until a
13 time certain. And a time certain, I would suggest, would
14 be December the 10th, 1997, for consideration. And people
15 who have concerns can study it and address it to the
16 proposers and the proponents of this when we gather next.
17 And I will make myself available to all sundry who have
18 questions, as I'm sure the other proponents of this
19 proposal will. But to create a select committee, that
20 conjures up visions of some very bad things to me, and
21 that has to do with studying things to death.
22 And, you know, the fact of it is, whatever the bill
23 is, it is. We are not talking about creating a new
24 program and committing the Florida Legislature to a new
25 program, this has been with us since the beginning of
49
1 organized government in the State of Florida; we have
2 always had a judiciary.
3 And certainly, the Legislature has to prioritize as
4 between demands that are made. But I suggest to you that
5 justice ought to be pretty high on the priority of the
6 demands that are made on the Legislature to provide for
7 the people of this state. So I would strongly oppose a
8 special study. If there is a need to -- you know, if
9 there's a felt need to postpone, I would suggest that it
10 be postponed until December 10th, 1997.
11 CHAIRMAN DOUGLASS: I think you are entitled to know
12 what the Chair would do if this was the case or not the
13 case. Number one, such a committee would include members
14 of the legislative committee, which I think is pertinent
15 here, and it would probably include not over seven and not
16 less than five members if we did do that.
17 On the other hand, if we don't do that, then I intend
18 to refer this to the legislative committee for its
19 consideration. Because I think the point has been made
20 that when we are considering this matter it requires their
21 input, not just from the judiciary committee. And I'm not
22 saying that the judiciary committee is unqualified to
23 judge these fiscal matters, but I know the legislative
24 committee is designed for that purpose. That would be the
25 intent of the Chair on this.
50
1 Okay. Commissioner Alfonso, you have the floor.
2 COMMISSIONER ALFONSO: Well, just a thought to follow
3 what you said. For that matter, wouldn't you want to
4 refer to the local government committee as well?
5 CHAIRMAN DOUGLASS: Well, I don't want to refer to a
6 bunch of committees, that's what I was trying to avoid,
7 and I think that's what Commissioner Thompson was trying
8 to avoid. But, obviously, a select committee would have
9 input from those who have the most expertise. And the
10 committee would be selected with the consultation with the
11 rules and administration committee.
12 COMMISSIONER THOMPSON: Well, I've got a motion.
13 CHAIRMAN DOUGLASS: Commissioner Thompson.
14 COMMISSIONER THOMPSON: My motion is on the floor,
15 and I guess we would take Commissioner Sundberg's it
16 sounds like was a substitute motion to postpone until a
17 date certain, is what his substitute would have been.
18 And what I think -- I'm trying to remember now if I
19 can move to amend my own motion. I can amend his
20 substitute. I move to amend his substitute to appoint a
21 select committee but continue the terms of his substitute,
22 which would be to postpone to a date certain, which would
23 be the 10th of December.
24 CHAIRMAN DOUGLASS: All right. Everybody understand
25 the motion, substitute motion, amendment?
51
1 COMMISSIONER SUNDBERG: Well, I assume that's in lieu
2 of the Chairman's proposal that this matter be referred to
3 the committee in the Legislature; is that accurate?
4 CHAIRMAN DOUGLASS: Well, I wouldn't refer it. If we
5 have a select committee, then obviously, there wouldn't be
6 any necessity to refer it to another committee.
7 COMMISSIONER THOMPSON: Okay. If folks are saying
8 they don't understand it, then we ought not to proceed
9 beyond that.
10 CHAIRMAN DOUGLASS: Let's see. You haven't spoken
11 today, I'll go with Commissioner Mills and come back to
12 you, Commissioner Scott.
13 COMMISSIONER MILLS: Will the gentleman yield for a
14 question? As I understand the implication of the motion
15 is you retain the intent of Mr. Sundberg to consider this
16 on a date certain, and the select committee would have to
17 report back to the full commission by that date; is that
18 correct?
19 COMMISSIONER THOMPSON: That's my intention.
20 COMMISSIONER MILLS: So, therefore, what you are
21 really doing is adopting both of what you have intended,
22 correct?
23 COMMISSIONER THOMPSON: Yes, it is a combination.
24 Does everybody understand that? What we are talking about
25 is my amendment to his substitute, if adopted, would make
52
1 his substitute read, that we take this measure up on the
2 10th of December, and at that point we would have a report
3 of a select committee that would be appointed by the chair
4 before us. And that's simply all it is, once you go
5 through the parliamentary maneuvers. I move the amendment
6 to the substitute first.
7 CHAIRMAN DOUGLASS: All right. Let me see if we can
8 get this right. Commissioner Sundberg.
9 COMMISSIONER SUNDBERG: Yes, Mr. Chairman, I'm here.
10 CHAIRMAN DOUGLASS: Would you accede to allowing his
11 motion, which continues it as it is to a date certain, but
12 includes the proposal that we appoint a select committee
13 and take a vote on that?
14 COMMISSIONER SUNDBERG: Only because of my strong
15 admiration for Commissioner Thompson.
16 CHAIRMAN DOUGLASS: Then I take that as yes.
17 Commissioner Scott, do you have strong admiration for
18 Commissioner Thompson?
19 COMMISSIONER SCOTT: Of course, I do, but -- well, I
20 mean, I think we need to get real here. Let me just tell
21 you what we're talking about. We have got until whenever
22 to do our product. This is a major issue. To say that
23 you are going to have a select committee, you have got
24 Thanksgiving week coming up, you don't know when they are
25 going to meet, and they are going to be back here by
53
1 December 10th, having all of the clerks and everybody
2 having a chance, that's interested in this, and local
3 governments, to have a chance to -- that's not real.
4 And I'll tell you what I'm concerned about, and this
5 is a concern I know all of you share, it's important that
6 we develop our product with the view towards what's going
7 to be accepted. And this amount of money, which 560 --
8 some people had told me maybe $700 million, we are talking
9 what could -- that's more than a half-penny sales tax in
10 this state. So, you know, where is this money going to
11 come from?
12 So, I think you need to pause and reflect a little
13 bit to see how this is structured and see what we need to
14 do with it and not to think that you are going to come
15 back here on December 10th which doesn't even give them
16 that week to meet, as I'm recalling my calendar, to talk
17 about this. So, I really think, you know, it's fine to
18 say that we are coming back, but the other thing that I'm
19 concerned about is, our procedures here, we don't know
20 what we are going to do on December 10th, or what the
21 rules committee might determine, or the priorities, or in
22 what order we are going to take things up.
23 So, I just think that we need to, you know, if you
24 are going to appoint a select committee, or whatever you
25 are going to do, give them time to look at this when we
54
1 get up here, at least the first day or two.
2 CHAIRMAN DOUGLASS: Commissioner Scott, my
3 interpretation is that even though it was put to
4 December 10th, that the rules committee would set the
5 special order for that four-day session, and how you do
6 that will be determined at the time we do that -- when you
7 meet, so I don't think that's anything that would be of
8 great certain. We are obviously going to have somebody
9 study this before we get around to voting on it.
10 COMMISSIONER SUNDBERG: I'm sorry, Mr. Chairman, I
11 don't know for whose benefits your last remarks were
12 intended, but it's my understanding that procedurally when
13 there is a motion, a motion to postpone to a time certain
14 which is a time when this commission is going to be in
15 session, that on that day it will be taken up.
16 CHAIRMAN DOUGLASS: All right. We'll delay that and
17 you may be right. And you may be fighting a battle here
18 and losing a war, Commissioner Sundberg.
19 COMMISSIONER SUNDBERG: Well, I'm trying to figure
20 out who my friends are, Mr. Chairman.
21 CHAIRMAN DOUGLASS: Well, I think that you have one
22 in -- all of the commissioners are your friends, we love
23 you, most of the time. Commissioner Mills.
24 COMMISSIONER MILLS: Not related to my love for
25 Mr. Sundberg, but we are on an amendment.
55
1 CHAIRMAN DOUGLASS: That's correct, we are on his
2 motion.
3 COMMISSIONER MILLS: We are on his motion. So, you
4 can vote on his motion and then talk about what a time
5 certain means and a date.
6 CHAIRMAN DOUGLASS: Correct.
7 COMMISSIONER MILLS: Because if you pass this
8 amendment, you will have created the select committee and
9 made a reference to it, and then you have his motion,
10 which can be further amended.
11 CHAIRMAN DOUGLASS: That's correct. All right, are
12 we ready to vote? All in favor of Commissioner Thompson's
13 motion, which is that we appoint a special committee and
14 delay the two proposals, which are now committee
15 substitutes, to the December 10 meeting. All in favor,
16 say aye. Opposed, no.
17 (Vote verbally taken.)
18 CHAIRMAN DOUGLASS: It carries. That is now the
19 case. Now, if you want to take up what we mean by
20 December 10, I suggest that you take that up with the
21 chairman of the rules committee at our next recess, which
22 we'll have in just a few minutes. And then if you are not
23 satisfied, bring it back to the floor.
24 With everybody's permission, we'll take a five-minute
25 recess, we'll keep the chamber locked, and you can consult
56
1 with the rules committee chairman. And if you are not
2 happy, bring it back to the floor.
3 (Pause).
4 CHAIRMAN DOUGLASS: What we did, let me make this
5 clear for the record, what we have done is created a
6 select committee, the motion did that, and it postpones
7 the consideration of this until the December 10 meeting.
8 (Brief recess).
9 CHAIRMAN DOUGLASS: We'll come to order. If
10 everybody could take their seats we'll try to get started.
11 SECRETARY BLANTON: Quorum call. All commissioners
12 indicate your presence.
13 CHAIRMAN DOUGLASS: Round them up. We are still
14 short.
15 SECRETARY BLANTON: All commissioners indicate your
16 presence, quorum call. All commissioners indicate your
17 presence.
18 (Quorum taken electronically).
19 CHAIRMAN DOUGLASS: We have a quorum. I think there
20 are a couple that haven't returned to chamber, but we'll
21 proceed. All right. Are there any -- I think what we
22 have done, we have passed this until the December 10th
23 meeting, and Commissioner Barkdull.
24 COMMISSIONER BARKDULL: I don't think so, sir.
25 CHAIRMAN DOUGLASS: His motion included that.
57
1 COMMISSIONER BARKDULL: If that's the ruling of the
2 Chair.
3 CHAIRMAN DOUGLASS: Well, I'll go back and read the
4 motion if you want to, we can do that right here.
5 COMMISSIONER BARKDULL: No, I concede the ruling of
6 the Chair. We will work out a time when it will be heard
7 on the 10th then.
8 CHAIRMAN DOUGLASS: Well, there are many ways to
9 handle that between now and the 10th, Commissioner
10 Barkdull, I think. Commissioner Thompson.
11 COMMISSIONER THOMPSON: What is the question here,
12 whether or not we need to go back to the substitute
13 because we have passed my amendment to the substitute?
14 COMMISSIONER BARKDULL: That is the Chair's ruling,
15 as I understand it.
16 CHAIRMAN DOUGLASS: The Chair's ruling is that we
17 restated his motion, in effect, which he allowed to occur.
18 And your substitute, if you want to call it that, was that
19 we appoint the select committee and that we defer further
20 action on this until December 10th, and that's what
21 passed. If you want to amend it or pass something else,
22 move it.
23 COMMISSIONER THOMPSON: Well, I think he's talking
24 about the motion that's amended, and then the substitute
25 would have been adopted as amended, and that's what he is
58
1 saying, he just kind of did it all in one fell swoop. If
2 that's okay with everybody else, it's certainly okay with
3 me. It is the same thing.
4 COMMISSIONER SUNDBERG: Well, the one thing that the
5 Chair left out, respectfully, is your motion said that it
6 was for the appointment of the select committee which must
7 report back December 10th, correct?
8 SECRETARY BLANTON: That was in the motion.
9 COMMISSIONER SUNDBERG: All right. Then it must be
10 reported back -- it must report back by -- and the Chair
11 is to appoint the select committee, and it must report
12 back by December 10th. And that this matter is postponed
13 and to be considered on December 10th at 2:00 p.m.
14 CHAIRMAN DOUGLASS: Rather than getting balled
15 procedurally, I'll entertain a motion by the Chair of the
16 rules committee that would authorize the select committee
17 to report at the direction of the Chair.
18 COMMISSIONER SUNDBERG: Well, respectfully,
19 Mr. Chairman --
20 CHAIRMAN DOUGLASS: I don't like that word.
21 COMMISSIONER SUNDBERG: -- the motion was not to
22 report at the discretion of the Chair, but to report by --
23 CHAIRMAN DOUGLASS: I asked him to make a motion to
24 that affect.
25 COMMISSIONER SUNDBERG: To what affect, Mr. Chairman,
59
1 I'm sorry.
2 CHAIRMAN DOUGLASS: Make the motion, please,
3 Commissioner Barkdull.
4 COMMISSIONER BARKDULL: I move you, sir, that the
5 select committee appointed to study this judicial cost of
6 Article V, be instructed to file a report by 9 a.m. on
7 December the 10th.
8 CHAIRMAN DOUGLASS: Now you are right back to where
9 we were.
10 COMMISSIONER SUNDBERG: That's where we were.
11 COMMISSIONER THOMPSON: Now, Mr. Chairman, give us a
12 clue, when do you want them to report back?
13 (Laughter.)
14 CHAIRMAN DOUGLASS: After you meet.
15 COMMISSIONER THOMPSON: No need in beating around the
16 bush about it.
17 CHAIRMAN DOUGLASS: I want you to report back after
18 you meet and you feel that you have had sufficient study,
19 whatever committee it is, to report back. I don't want to
20 say, report back, and you come back and say, the report is
21 that we are not ready to report.
22 COMMISSIONER BARKDULL: Excuse me, Mr. Chairman, it's
23 my understanding that now that you have indicated that the
24 primary motion passed, which was Commissioner Sundberg's
25 motion that the matter would be heard on December the
60
1 10th, that the response of the select committees would
2 certainly be in by the time we are going to consider the
3 matter.
4 CHAIRMAN DOUGLASS: I'll proceed under that if that's
5 what the rules committee wants, okay.
6 COMMISSIONER THOMPSON: Well, let me say this, this
7 may solve it, I think the Chair can adhere to our motion,
8 and that is that the select committee report back. Now,
9 the select committee can report back that we don't have a
10 report. So, I don't think that you are putting them under
11 any kind of time line-type of problem, Mr. Chairman, let's
12 let it go like it is and the select committee can make
13 their decision as to what they can report on that day.
14 CHAIRMAN DOUGLASS: That's fine. That's the way that
15 I would interpret it anyway. So, I don't think we need to
16 get balled up on this procedure. I think we can move on
17 to the next item.
18 COMMISSIONER BARKDULL: For clarification to the
19 Commission, it's my understanding that, with no further
20 motions, a select committee will be appointed, a select
21 committee will report by the 10th, and this matter will be
22 heard at 2:00 p.m. on the 10th.
23 CHAIRMAN DOUGLASS: That's okay with me, that's what
24 the motion was and it passed.
25 COMMISSIONER SUNDBERG: Is that your understanding,
61
1 Mr. Thompson? That's my understanding. Thank you, Mr.
2 Rules Chairman.
3 CHAIRMAN DOUGLASS: All right. Unless somebody has
4 another motion on this matter, Commissioner Riley.
5 COMMISSIONER RILEY: With all due respect to all of
6 those involved, I'm not going to know any more at 9:00 on
7 the 10th of December unless the report of the committee
8 comes to me ahead of time than I do right now.
9 So, between now and the 10th of December, if we are
10 looking at revisiting this issue for a vote, I would
11 prefer to have the task force or the select committee get
12 their information to me ahead of time so that I can be
13 prepared for that vote.
14 CHAIRMAN DOUGLASS: They will make every effort to do
15 that. Okay. Let's proceed to the next order, which is
16 committee substitute for proposal by the Committee on
17 Executive and Commissioner Henderson, No. 45, please read
18 it.
19 READING CLERK: Committee substitute for Proposal 45,
20 a proposal to revise Article IV, s. 9, Florida
21 Constitution; creating the Fish and Wildlife Conservation
22 Commission to be composed initially of the existing
23 members of the Game and Fresh Water Fish Commission and
24 Marine Fisheries Commission and providing for the powers
25 and duties of the commission.
62
1 CHAIRMAN DOUGLASS: All right. Commissioner Alfonso,
2 as chairman of the Executive committee, would you proceed
3 to present this?
4 COMMISSIONER ALFONSO: Yes, sir. I will just start
5 with an overview of what we have been through on this
6 issue that we consider a very important issue in our
7 committee, the unification of Game and Fresh Water Fish
8 and the Marine Fisheries Commission.
9 We have heard many speakers on this issue,
10 representing various interests, and including the sports
11 fishing community, the commercial fishing community, The
12 Fruit and Vegetable Association Council, Ports
13 Authorities, et cetera. And in looking at the original
14 proposal, we had some questions that came up regarding --
15 and let me just say, we have been really trying to build
16 consensus on this among other groups that we have been
17 getting presentations from. We had some questions from
18 committee members regarding the Administrative Procedures
19 Act and how this constitutionally independent agency would
20 really work with that.
21 We have distributed information regarding actually
22 the structure, hierarchical structure, as well as the
23 budget implications of unifying these two agencies and --
24 or these two commissions, and also the personnel
25 implications of this unification. We have had three
63
1 meetings regarding this, including a special meeting
2 yesterday morning.
3 And we have introduced two amendments in an effort to
4 build consensus on this. We feel that we are at a point
5 where we can bring this to the general commission. And,
6 again, what I would do now is just yield to Commissioner
7 Henderson to go through the proposal as it stands now.
8 CHAIRMAN DOUGLASS: All right. The Chair recognizes
9 Commissioner Henderson.
10 COMMISSIONER HENDERSON: Thank you, Mr. Chairman, and
11 members. I would like to thank Commissioner Alfonso and
12 members of the committee who have worked very hard and
13 diligently on this. And as our chairman said, we have had
14 three meetings on this to try to build, and we want to
15 continue to try to build a consensus on this issue. This
16 is one of the issues that may be, regardless of what we do
17 today and in the course of our business, is probably going
18 to be on the ballot next year.
19 This started with an initial petition circulated by
20 primarily sport fishing interest in the state. A
21 sufficient number of signatures, 60, 70,000 have already
22 been attained and have gone to the Supreme Court for
23 pre-ballot clearance. That was argued before the Supreme
24 Court very recently.
25 So, this is a very live issue. It is an issue to
64
1 which there's tremendous public interest and support.
2 Someone asked yesterday, Why are we doing this; why is
3 this so important, why do we need to give this
4 consideration in the Constitution? And I said, I can't
5 think of anything that's more precious to me than my right
6 to fish, you know, that's something that's been passed
7 down, you know, from generation to generation; that's my
8 passion. And for a lot of people in this state, it is
9 their passion. And we saw that passion in the 11 public
10 hearings around this state. If you think about it, we
11 probably heard from more people talking about fishing than
12 anything else that we have dealt with in this state, on
13 these hearings.
14 So I'll tell you, this is the kind of issue that if
15 we continue to work, to build, try to build a consensus on
16 it, it's the kind of issue that's going to be -- something
17 that's going to help, all of our efforts, that kind of
18 rising tide to float the rest of the boats that we want to
19 launch out here with our work.
20 And in that regard, I'll tell you that where there's
21 a consensus about one particular issue, and that is that
22 we are to house all of our fisheries regulations under one
23 roof. The way we do it in Florida right now is absurd,
24 the fact that we have an independent constitutional
25 commission that handles freshwater fishing, and the
65
1 trustees, Governor and Cabinet, have the responsibility,
2 they have delegated it to the Marine Fisheries Commission,
3 to handle saltwater fisheries.
4 One of the issues that we are going to handle in the
5 Executive committee is going to deal with recommendations
6 concerning the Cabinet. I think we have heard from former
7 Governors, we have heard from current members of the
8 Cabinet and so many others about the need for Cabinet
9 reform. And we are going to do that. This is one of
10 those issues that helps you do that.
11 I can think of the number of times that I've appeared
12 before the Governor and Cabinet and had to wade through --
13 wade through some discussion about the size of a lobster
14 or the size of a redfish or how many redfish to get. I
15 was at the Cabinet one day on business and had to sit
16 three hours through a discussion about sponges, sponge
17 fishing. It was a heated discussion, everybody lost their
18 temper in the course of the thing. And you walked out of
19 there saying, Is this the way to handle the business of
20 the State of Florida, should the time of the Governor and
21 Cabinet be spent for four hours dealing with sponges.
22 And so this is one of those issues that will help us
23 deal with that. So, there's consensus that we -- I think
24 we have built a broad consensus on the issue of housing
25 regulation for all fisheries under one roof. And that's
66
1 what we -- that is the main thrust of this proposal. The
2 current constitutional status of the Game Commission would
3 be enlarged to carry on the regulation of saltwater
4 fisheries.
5 We would propose to enlarge the size of that
6 Commission from currently five members to seven members.
7 We have proposed a transition period whereby a current
8 membership of marine fisheries and the Game Commission
9 would meet together and work together during a transition.
10 And as members retired, or resigned, or their term of
11 office ended, that that would eventually be whittled down
12 to a seven-member commission and we would no longer have
13 the Game and Fresh Water Fish Commission, it would be
14 re-titled, renamed as a Fish and Wildlife Commission. And
15 that would put us, essentially, in the same place as most
16 of the coastal states in this country that handle wildlife
17 conservation under one roof. So, let's understand, we do
18 have a consensus on that issue.
19 Now, as our Chairman pointed out, we have tried to
20 work with the opponents of this, and those who have had
21 concerns about this, and those concerns are not about the
22 consensus that I just set forth, people agree on that.
23 Where there's some disagreement at, and I want to continue
24 to work with stakeholders on this issue, is the extent to
25 which the authority is expanded in an independent agency
67
1 that deals with other environmental issues.
2 Right now the Game Commission has constitutional
3 authority that's not used, it's not used because it
4 doesn't have to use it. And so, you know, I would say
5 that it's along the same lines, but we are trying to work
6 through that. The committee adopted two amendments
7 yesterday, which is part of the committee substitute which
8 is before you, which narrows that range of interest, that
9 tries to help on that issue narrowing this to not just
10 only dealing with marine resources, but marine aquatic
11 life. Actually, we'll let the committee on style and
12 drafting decide whether such a thing -- whether marine
13 aquatic life is redundant or not, but that's the wording
14 we are using at this point; and also trying to deal with
15 the issue of how regulatory matters of this commission
16 would be viewed.
17 Some people, including myself, feel that in the area
18 of regulatory issues relating to the danger to species and
19 other marine resources, that there should be a point of
20 entry through the Administrative Procedure process that we
21 now have for all other executive functions, and that's not
22 the case for most current Game Commission issues.
23 Under the Administrative Procedures Act, a revision
24 that took place in 1996, when the commission is acting in
25 a constitutional role, that's only reviewable in ports,
68
1 when it's acting pursuant to statutory authority, then
2 that is reviewable, as a matter of course, through the APA
3 as other executive -- as other regulatory functions.
4 So, that is our -- that's where we are. In fact, we
5 are still working with various stakeholders on trying to
6 refine some of this language and we have meetings
7 scheduled in the near future. Our goal is to try to build
8 a consensus for this issue. And so, with that,
9 Mr. Chairman, I am ready. I guess I'm answering questions
10 somebody might have about this.
11 CHAIRMAN DOUGLASS: All right. Commissioner
12 Henderson yields for questions. Commissioner Barkdull.
13 COMMISSIONER BARKDULL: Commissioner Henderson, this
14 is just a friendly, housekeeping question. I'm just
15 reading this thing, and in Section 2 when you talk about
16 notwithstanding the initial terms and so forth which
17 relate to the phase-out of the existing people, I think --
18 don't you think that would be better put in a schedule
19 rather than the body?
20 COMMISSIONER HENDERSON: I really do. I think that
21 when the committee on style and drafting gets this, that
22 that language and what I call, really, the provision in
23 Section B as well as the savings clause which says that
24 current rules and regulations that are in effect relating
25 to marine resources would stay in effect until changed, I
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1 think that would properly be part of a schedule and would
2 become obsolete upon the happening of -- when we finally
3 get it down to seven members.
4 COMMISSIONER BARKDULL: Thank you very much.
5 CHAIRMAN DOUGLASS: Commissioner Barnett. Do you
6 yield? I'm just assuming that you will yield to whoever
7 gets up.
8 COMMISSIONER HENDERSON: I'm happy to yield.
9 COMMISSIONER BARNETT: Thank you. I have just a
10 couple of questions to ask you. I believe that combining
11 the freshwater and marine aspects of executive and
12 regulatory functions is appropriate, that makes sense to
13 me, particularly based on a lot of information we heard at
14 the public hearings. I've always had a question, though,
15 and I've asked it several times, and when I get an answer
16 it makes sense at the moment I get it, and then about five
17 minutes later, I can't remember why -- you know, it's just
18 one of those things that leaves me and I think, Well, now,
19 why?
20 So, here is a basic question I have, philosophically,
21 why does the Game and Fish Commission or the game and the
22 new -- the Fish and Wildlife Conservation Commission have
23 to be a constitutional body? Why is this not
24 appropriately an agency of the State, just like our other
25 state agencies, subject to the same administrative
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1 procedures, the same processes that other state agencies
2 that deal with unique aspects of state government?
3 COMMISSIONER HENDERSON: I think that is a good
4 question. And I also think that that -- I would say, what
5 concerns that we are dealing with out there are concerns
6 related to that central issue. We have had an independent
7 constitutional game commission in this state now for 50
8 years. And the reasons for the establishment of that, and
9 indeed the reasons why the Legislature and ultimately the
10 voters in this state have basically expanded that
11 authority with that independent commission, has been
12 because of a feeling that these issues, dealing with the
13 taking of game, taking of fish, regulations relating to
14 this, were such things that are better handled in that
15 place so that it would be based on science, that it would
16 be de-politicized, try to get it out of the political
17 forum.
18 Anyone who has seen the rather bizarre way that, you
19 know, that we deal with saltwater fisheries before the
20 Governor and Cabinet, will understand that. In the old
21 days, when all of these multitudes of regulations went
22 before the Legislature, it was an odd thing. I think it
23 is a special thing we have in this state that we do have
24 this independent constitutional authority because it tends
25 to focus them on the task at hand, which is the task of
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1 fish and wildlife, which is an extraordinary resource of
2 the State, but it really goes a long way into
3 de-politicizing the process.
4 COMMISSIONER BARNETT: One additional question. In
5 the proposal on Section C, Line 16, it authorizes the
6 Legislature to enact laws. And the phrase that caught my
7 attention is, In aid of the commission not inconsistent
8 with this section. I don't recall seeing that type of
9 language before. And I would like to ask you what that
10 means; what limits that places on the Legislature; and
11 really what kind of a grant of authority is that to the
12 Legislature?
13 COMMISSIONER HENDERSON: Most of that language in
14 that Section C comes right out of the current Constitution
15 in Article IV, Section 9, and that phrase is currently
16 there. The Legislature may enact laws in aid of the
17 commission not inconsistent with this section.
18 And I think that goes to the issue of some
19 administration issues. The Legislature has some budgeting
20 perspective commission. And there's also additional
21 authorities that -- authority that has been conveyed upon
22 the Commission by the Legislature over the years. And so
23 that's where I come to this distinction with the APA, you
24 know, that's where the Legislature has given it authority
25 to act, reviewable by the APA. And we think that would
72
1 continue.
2 CHAIRMAN DOUGLASS: All right. Commissioner Smith.
3 COMMISSIONER SMITH: A friendly question, I hope.
4 COMMISSIONER HENDERSON: I hope so, too.
5 COMMISSIONER SMITH: Okay. You stated that it
6 appears inevitable that there will be this issue on the
7 ballot for unification. And so the question that I have
8 asked, and I'm sure others have asked, why then are we
9 making this proposal? And hopefully the answer is that
10 this proposal is a better proposal for the proponents and
11 others concerned and our fisheries?
12 COMMISSIONER HENDERSON: Well, I think that is a very
13 good question, and I alluded to the tremendous interest
14 that we saw in fisheries-related issues out there this
15 year. But as we know, a lot of adverse because of the
16 very polarizing efforts that came about in the net ban
17 campaign a few years back.
18 This issue, it's coming forward with a lot of the
19 same friends as the limits on marine net fishing. And so
20 what we have tried to do, I think those of us who are
21 involved in this issue, and certainly my purpose of
22 bringing it to the floor here, is to try to get away from
23 that degree of polarization, see if we can address some of
24 the real issues that drive a wedge between the
25 stakeholders and try to find ways that we can accommodate
73
1 those issues.
2 So I think the proposal that's before you today, and
3 in fact, as we hope to continue to refine it, that we will
4 make those edges a little less rougher, more refined. And
5 the idea is to try to build a consensus around this issue.
6 That's the reason for doing it this way.
7 CHAIRMAN DOUGLASS: All right. Any further
8 questions? All right. Anybody that wants to speak as a
9 proponent of the proposal? Does anyone want to speak as
10 an opponent of the proposal? Then we'll proceed to vote.
11 COMMISSIONER HENDERSON: I think Commissioner
12 Thompson wants to be heard on this issue.
13 CHAIRMAN DOUGLASS: Okay, we'll un-proceed with
14 votes. You have got three votes already, but wipe them
15 out, he might change their minds. Commissioner Thompson.
16 COMMISSIONER THOMPSON: I just had the understanding
17 that we weren't going to vote on this today. Not from
18 you, Mr. Chairman, but from the proponent. Otherwise I
19 don't think it would be out of committee right now.
20 CHAIRMAN DOUGLASS: Well --
21 COMMISSIONER HENDERSON: Committee Chairman wants to
22 tell us.
23 CHAIRMAN DOUGLASS: Commissioner Alfonso.
24 COMMISSIONER ALFONSO: We were really -- we don't
25 feel like this language is really all the way there yet.
74
1 And I would like Commissioner Thompson to address some
2 concerns that he had with the language. And I would like
3 to say this did come out of committee with a unanimous
4 approval, but we felt -- first, we weren't sure that we
5 were going to make the calendar for this session.
6 And then we felt that, you know, this language wasn't
7 exactly where we wanted to get, but we did want to discuss
8 where -- how we had come to this point and where we are
9 and the whole consensus-building process.
10 So I don't know that all of the committee members are
11 ready to vote on this today. And Commissioner Thompson,
12 if you could just discuss some of your concerns to the
13 language that you brought up in the committee meeting
14 yesterday.
15 CHAIRMAN DOUGLASS: Commissioner Thompson.
16 COMMISSIONER THOMPSON: Thank you, Mr. Chairman. And
17 to members, let me apologize to begin with for all of the
18 talking that I have done the last couple of days, I'm not
19 like that. I really don't like to talk. My mother
20 thought I would never make it in law school and she was
21 just horrified I was going into politics because I was so
22 bashful, she said. She said, You won't get up and talk in
23 front of people, how could you do that?
24 So, let me give you a feel for this issue. First of
25 all, let me say, I do support it, I supported it in
75
1 committee, but there's a lot to this. And if you will
2 hearken back to our public hearings you saw a lot of
3 people whose lives were impacted by the net ban and we
4 wanted to be real careful here, because number one, I'm
5 afraid we aren't going to be able to do for them what they
6 would like to do in respect to the net ban.
7 Number two, this is going to impact those same people
8 because you are taking the jurisdiction over a big
9 commercial enterprise, people working hard and making
10 their living out there in adverse circumstances and
11 transferring it over to a jurisdiction that has been
12 dealing with folks like me and Mr. Henderson that just
13 like to fish, but on Monday we go to work and we are going
14 to make a living whether or not we were able to fish on
15 Saturday and Sunday.
16 So we want to be very cautious about those people
17 having some kind of an entry level where they could come
18 in and their voices could be heard. So we couldn't hear,
19 our successors in 20 years, and members of the Legislature
20 and others wouldn't hear that they didn't have the
21 opportunity to be heard, and more importantly, that they
22 didn't have the right to challenge on a scientific basis
23 what was being done about the resource that their
24 livelihoods depend upon.
25 At the same time, we wanted to be sure that those
76
1 that make those decisions did that on the basis of
2 scientific research and data and that they didn't just
3 make arbitrary and capricious types of decisions. And so
4 that's what we have been working on within the committee.
5 Now, let me give you a little history, just -- I'm on
6 the floor and I'm talking more than I want to anyway, so
7 let me give you my perspective of some history here
8 because I was in the Legislature when the marine
9 fisheries' issues were decided by local bills, or general
10 bills of local application, and you talking about an
11 unscientific -- a lack of due process way of making
12 decisions, it was pretty difficult.
13 And it was very difficult on those of us that had
14 counties in those areas, which were a lot of us, of
15 course. So we passed special bills on how many mullets
16 you can catch, what time of year, and all of these types
17 of things, and had very little advice on what to do that
18 was based on anything that you could really point to and
19 say was reliable.
20 So while I was in the Legislature, we all decided,
21 Well, let's try to insulate this system just a little bit
22 and let's try to move it over to somebody that can make a
23 little bit more deliberative types of decisions and base
24 those decisions on research and data. So we came up with
25 the idea of the Marine Fisheries Commission.
77
1 And believe you me, I think everybody was against
2 that except for the members of the Legislature. But there
3 was support among sports fishermen at that time because
4 they thought it would work very well. And we all knew
5 that probably if we went to the ballot at that time like
6 we are trying to do now and further insulate it, that it
7 probably wouldn't work, and I don't think we could have
8 gotten that through the Legislature if you think about it.
9 So, we didn't do that, we just went to the Marine
10 Fisheries Commission, as you know.
11 And as that has evolved, it hasn't been all bad. I
12 think there's been a lot of good that's come out of there,
13 but it has been highly controversial. And I think now is
14 the time to move it on over for a little further
15 insulation. And that goes a little bit against my grain
16 because I like for people to be able to vote on people
17 that are making decisions for them, and this removes that.
18 And believe you me, I can remember, and many of you can,
19 when the Game Commission hasn't been the most popular
20 place in Tallahassee to be.
21 And there's been things that they have done that were
22 not based on science and you have to go to court to
23 challenge all of that, is what it boils down to. So what
24 we have tried to do in committee, is we have tried to come
25 up with some ideas, working with people out there that
78
1 have concerns with a way that these people, like the
2 people that have come before us in the public hearings,
3 could have their voices heard, could challenge the basis
4 upon which these decisions are made, and try to do it as
5 inexpensively as is possible under the circumstances. So
6 we are continuing to work on that.
7 And we had people out there worried that, in addition
8 to the marine life, that we were going to try to dump the
9 regulation of the land over into this box and let this
10 constitutional agency have some decision-making authority
11 over the land. We accommodated that by striking water
12 resources and putting in aquatic life, so it's got to be
13 something that's in the water, it's got to be something
14 that's live, it's not your land.
15 But the second aspect of it, as to how people can
16 procedurally really participate is something we continue
17 to struggle with.
18 And Mr. Henderson and I and others are working with
19 people out there to try to come up with some way to
20 resolve that. And so, Subsection D on Page 2 was
21 Mr. Henderson's effort yesterday, which we adopted, to
22 say, We want to do something about this, we want to say
23 that certain regulatory functions like the things that you
24 can't put under the APA because it would just delay
25 implementation for a year or more, would be things like
79
1 bag limit, size limit, year, that kind of thing.
2 But some of the other things that have to be based on
3 science and data would be subject to the APA, and people
4 could come in very early, and hopefully without lawyers,
5 as much as they can, and challenge and work through that
6 with the Commission.
7 So, we think this is a stab at that. But I don't
8 think we want to put in the Constitution that the powers
9 and duties of the Marine Fisheries Commission shall be
10 exercised, blah, blah, blah, because what does that mean?
11 Does that mean the powers and duties now, does that mean
12 the powers and duties established by statute, does that
13 mean the powers and duties established by statute
14 interpreted by case law; what does it mean? That's
15 probably not a good way to draft a provision for the
16 Constitution. Mr. Henderson agrees with that, he's
17 already working on alternative language.
18 So, for those reasons, our understanding, Mr.
19 Chairman, of the committee, Commissioner Alfonso and
20 Commissioner Evans-Jones and all of us decided that we
21 wanted to discuss this with you today, let you know where
22 we were, don't think we need a date certain to take it up,
23 but we are going to work on trying to bring it back to you
24 in a way we can all fully recommend all of the details in
25 December.
80
1 CHAIRMAN DOUGLASS: All right. Commissioner Alfonso.
2 COMMISSIONER ALFONSO: With that presentation made by
3 Commissioner Thompson, I would like to just move that we
4 temporarily pass this to a date certain, December 10th.
5 CHAIRMAN DOUGLASS: How about just temporarily pass
6 it to the next session?
7 COMMISSIONER ALFONSO: Temporarily pass it to the
8 next session, that's fine.
9 CHAIRMAN DOUGLASS: Okay. All of those in favor, say
10 aye. Opposed.
11 (no verbal response).
12
13 CHAIRMAN DOUGLASS: It's passed. Incidentally,
14 Commissioner Thompson, the early part of your presentation
15 was one of the best good ol' country boy speeches I've
16 heard in a long time.
17 COMMISSIONER THOMPSON: Don't tell them.
18 CHAIRMAN DOUGLASS: All right. Our next proposal is
19 Proposal 75 -- I guess I need to leave the Chair. I'm
20 going to move to withdraw it. I'll stay in the Chair if
21 it's not objectionable.
22 COMMISSIONER THOMPSON: I'll move to withdraw it. I
23 think anybody can move to withdraw it without objection?
24 CHAIRMAN DOUGLASS: Right. Commissioner Thompson
25 moves to withdraw this No. 75 without objection.
81
1 (No verbal response).
2
3 CHAIRMAN DOUGLASS: It's withdrawn. The next
4 proposal is No. 69 by Commissioner Riley. Would you read
5 it, please, sir?
6 READING CLERK: Proposal 69, proposal to revise
7 Article IV, Sections 4 and 5, Florida Constitution,
8 providing for the appointment of the Commissioner of
9 Education.
10 CHAIRMAN DOUGLASS: All right. Commissioner Alfonso,
11 of this -- excuse me, Commissioner Jennings is the
12 Chairman of the Education Commission -- Education
13 committee, and if you would present this please?
14 COMMISSIONER JENNINGS: It's Friday, and we are doing
15 education. It seems like I was just here last week doing
16 the same thing.
17 CHAIRMAN DOUGLASS: Every Friday.
18 COMMISSIONER JENNINGS: Every Friday, whether we need
19 to or not. Commissioners, if I could just give you a
20 broad overview, and then, Mr. Chairman, I think you should
21 recognize the individual sponsors to amplify on their
22 issues here.
23 We had an interesting meeting day before yesterday,
24 the Commissioner of Education joined us and we had
25 dialogue about an appointed versus an elected Commissioner
82
1 of Education, and intertwined in that was the issue of the
2 State Board of Education although we have no proposal here
3 before you that deals with that at the moment.
4 I'll share with you that as we go through them, the
5 proposal on the Commissioner of Education, which
6 Commissioner Riley has, the proposal on appointing all
7 school superintendents -- as you know, currently, you may
8 appoint or elect, and the local school district may
9 decide, by referendum, which they would like to do.
10 The issue of what was Commissioner Rundle's proposal
11 on a two-year continuation after the 12 years of public
12 education, and was then amended to contain some other
13 language, and unfortunately, that one was disapproved.
14 Commissioner Rundle knows what to do, don't show up
15 if your stuff is going down in flames. And then they
16 moved to the issue of dividing the school districts, which
17 was Commissioner Marshall's. I will share with you that
18 none received unanimous votes in either direction. The
19 disapproval had some votes. In support and those issues
20 that came out with approval had somewhere two to three,
21 sometimes four votes against. So, we had a little bit of
22 a divided committee as we looked at these.
23 I think in each case, and especially the one that
24 Commissioner Riley is going to take up next, with the
25 elected/appointed Commissioner of Education, there were
83
1 strong feelings on that one that that really was only
2 moving forward as we would look at the whole issue of
3 Cabinet, that we weren't so sure that we wanted to pull
4 that one Cabinet member out as an appointed body unless we
5 looked at the whole issue of the Cabinet.
6 So, I just share those general thoughts with you.
7 And I know the individual commissioners will share the
8 specifics in each of those proposals.
9 CHAIRMAN DOUGLASS: Thank you. You yield to
10 Commissioner Riley who is recognized as the sponsor of
11 this proposal.
12 COMMISSIONER RILEY: Thank you, Mr. Chairman. And I
13 would like to speak very much in favor of this proposal.
14 I agree with Commissioner Jennings, this is, as I would
15 suspect most things that will be passed forward at this
16 stage and at the final stage, interlocking pieces of
17 reorganization, and this is certainly one of them. And I
18 understand that, but I would still hope that we could get
19 through this hoop, and then it must marry then with the
20 reorganization of the Cabinet.
21 However, if it doesn't, it could, in fact, stand by
22 itself, and a -- an appointed Commissioner of Education,
23 could in fact be a change that we could make as one of our
24 final amendments.
25 Just to give you a little bit of background that may
84
1 not be in your packages, I will tell you that the State of
2 Florida is very unique in their educational system in that
3 we have elected folks at every local of the education
4 system, from the local on up to the state, which is very
5 different than most states. In most states you don't have
6 elected people at each level, you have some sort of a
7 combination. There are 26 states in our nation that have
8 a Commissioner of Education that's appointed by a state
9 board. There are other states that, and a majority of the
10 states have a Commissioner of Education that's appointed
11 either by the state board or by the Governor.
12 In many of our committee meetings we have asked the
13 question, how is Florida different than our sister states
14 that are most like us, those being New York, California,
15 and Texas. And I will tell you that only in California do
16 we have the same situation where we have a constitutional
17 Commissioner of Education that's elected by the public.
18 In New York we have a commissioner that's appointed by the
19 b |
