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1 STATE OF FLORIDA
CONSTITUTION REVISION COMMISSION
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COMMISSION MEETING
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DATE: December 10, 1997
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TIME: Commenced at 9:00 a.m.
11 Concluded at 2:30 p.m.
12 PLACE: The Senate Chamber
The Capitol
13 Tallahassee, Florida
14 REPORTED BY: KRISTEN L. BENTLEY
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
4 ANTONIO L. ARGIZ (EXCUSED)
JUDGE THOMAS H. BARKDULL, JR.
5 MARTHA WALTERS BARNETT
ROBERT M. BROCHIN
6 THE HONORABLE ROBERT A. BUTTERWORTH
KEN CONNOR
7 CHRIS CORR
SENATOR ANDER CRENSHAW (EXCUSED UNTIL 11:00)
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 (EXCUSED UNTIL 10:25)
THE HONORABLE GERALD KOGAN
12 DICK LANGLEY
JOHN F. LOWNDES
13 STANLEY MARSHALL
JACINTA MATHIS
14 JON LESTER MILLS
FRANK MORSANI
15 ROBERT LOWRY NABORS
CARLOS PLANAS
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 (ABSENT)
20 JUDGE GERALD T. WETHERINGTON
STEPHEN NEAL ZACK
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PAT BARTON
22 IRA H. LEESFIELD (ABSENT)
LYRA BLIZZARD LOGAN (EXCUSED)
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1 PROCEEDINGS
2 (Quorum taken and recorded electronically.)
3 SECRETARY BLANTON: All commissioners indicate your
4 presence. All commissioners indicate your presence.
5 (Pause.)
6 SECRETARY BLANTON: A quorum is present,
7 Mr. Chairman.
8 CHAIRMAN DOUGLASS: Come to order, please. Well just
9 a moment here. If you'll bear with me just a minute, I
10 have too many papers on my desk. Will the Commissioners
11 and guests in the gallery please rise for the opening
12 prayer given this morning by Reverend Darden Battle,
13 pastor of East Hill Baptist Church in Tallahassee.
14 Reverend Battle.
15 REVEREND BATTLE: Join as we pray. Almighty and
16 everloving God, we call upon you for your wisdom and your
17 understanding. We pray, Father, that you would be with
18 those that deliberate today, that they would seek not to
19 know what is best for them or their concerns, but that
20 they would know what is best under your wisdom and your
21 guidance. That you would give them the leadership to make
22 those decisions that are best for those for whom they
23 represent. Bless them now, Father. In the name of Christ
24 we pray, amen.
25 CHAIRMAN DOUGLASS: Thank you very much, Reverend.
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1 Commissioner Hawkes, please come forward and lead us in
2 the pledge of allegiance.
3 (Pledge of Allegiance.)
4 CHAIRMAN DOUGLASS: Before we start I'd like to
5 remind you that we have pages. And so you have a yellow
6 button on your desk. If you need something done, like
7 delivering a message or getting a coke or whatever, push
8 your button and the page will come to your desk and be at
9 your bidding.
10 Mr. Buzzett, could you introduce our pages? All you
11 pages, as your names are called, please rise, Mr. Buzzett
12 will identify you. They are in the back.
13 MR. BUZZETT: These students are from the Cobb School
14 in Tallahassee: Rachel Sandler, Forrest Underwood, Linh
15 Trang, Sarah Woodberry, Brett Guido, Justin Sorrell, Helen
16 Travis, Laura Deeb, Carolanna Lawson, Angela Pinder. I
17 hope I got everybody.
18 CHAIRMAN DOUGLASS: Did we get everybody? If we
19 didn't we'll get you later. We appreciate you young men
20 and young ladies for doing this and we look forward to
21 working with you. And is it the Cobb Cougars; is that
22 correct? See, I'm not up on it. The Cubs, okay, that's
23 good. That's one of our old junior high schools here,
24 it's now middle school I guess and that's what it is now.
25 We'll now proceed to the daily order of business,
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1 Commissioner Barkdull.
2 COMMISSIONER BARKDULL: Mr. Chairman, members of the
3 commission, you have on your desk the proposed special
4 order calendar for today. And I would at this time move
5 its adoption and I will make some explanations because
6 some of the matters are going to be pulled off and some
7 are going to be temporarily passed.
8 CHAIRMAN DOUGLASS: All right. You're making a
9 motion then to approve the special order and then you're
10 going to --
11 COMMISSIONER BARKDULL: Make some comments about it.
12 CHAIRMAN DOUGLASS: All those in favor of the motion,
13 please say aye; opposed like sign.
14 (Verbal vote taken.)
15 CHAIRMAN DOUGLASS: Motion carries. You may
16 continue.
17 COMMISSIONER BARKDULL: Thank you. I've been
18 informed that the chairman of the committee to consider
19 the cost factor in the Article V has an announcement to
20 make in reference to that committee. Commissioner Mills.
21 CHAIRMAN DOUGLASS: Commissioner Mills, you're
22 recognized.
23 COMMISSIONER MILLS: Mr. Chairman, that matter is
24 postponed to a time certain, 2:00. So I suppose we would
25 need a motion to waive the rules simply to take up that
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1 motion at this time, which will again be simply to
2 postpone it to Friday.
3 Just to report to the commission, that committee has
4 met twice and members of that committee, Commissioner
5 Ford-Coates, Commissioner Butterworth, Commissioner
6 Thompson and Commissioner Planas have been incredibly
7 diligent. We've had two set of long hearings, the staff
8 has worked hard and I think that we will bring to you a
9 clarified issue with a couple of options.
10 Just for background, if you wish to come to a meeting
11 to be briefed on this, tomorrow at 4:00, we'll announce
12 the room, we will have another hearing on this. Also, the
13 legislative, the committee on intergovernmental relations
14 has done a great job on providing figures and I want to
15 commend them and Billy Buzzett as well. And just to tell
16 you that the issues that you are considering are in terms
17 of basic policy to justice issue of what is the state
18 court system. And a lot of what will happen tomorrow is a
19 definition of what particular functions should be funded
20 by the state, what functions should be funded by the local
21 government. As you know, and heard the debate, there is a
22 distinction now.
23 The other issue is how much annually this would cost,
24 if it is shifted to the state. The figures range between
25 250 million and 600 million at this time, but that
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1 obviously depends on which functions you chose to allocate
2 to the state.
3 I think it's important for us to understand these
4 justice functions are being paid for by taxpayers one way
5 or the other. The issue is whether it should be a state
6 function and therefore perhaps more broadly spread or it
7 should be a local function. And the last issue of the
8 cost is when should it be implemented. The current bill,
9 for your information, says the Legislature can begin
10 implementation in 2001, but the actual effective date is
11 2004. So the effect of that is the Legislature may begin
12 in 2001 but must be up to speed as to whatever the
13 definition is by 2004. So those are the issues you'll be
14 dealing with.
15 You may have heard from the clerks' association the
16 issues of whether clerks' functions should be in or out,
17 local or state. Those are the issues you'll be
18 confronting. If you wish to have more information, we
19 will be meeting tomorrow at 4:00. It is one of those
20 25-year issues so I think you'll have an opportunity to
21 address this. And, again, I want to thank the staff.
22 And I guess, Commissioner Sundberg, I need to make a
23 motion to waive the rules. And with Commissioner
24 Sundberg's permission to postpone the time certain
25 consideration, which was 2:00 today, until Friday.
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1 COMMISSIONER SUNDBERG: I've agreed with Commissioner
2 Mills to that postponement to a time certain on Friday to
3 be set on the special order calendar, Mr. Chairman of the
4 rules committee.
5 CHAIRMAN DOUGLASS: I have a question of Commissioner
6 Mills and Commissioner Sundberg. Have you considered
7 passing it until the next meeting in January?
8 COMMISSIONER SUNDBERG: Not for a moment.
9 CHAIRMAN DOUGLASS: The reason I ask is --
10 COMMISSIONER MILLS: Absolutely.
11 (Laughter.)
12 CHAIRMAN DOUGLASS: -- I attended the committee
13 meeting and it appeared to me you all might still be
14 meeting.
15 COMMISSIONER MILLS: Mr. Chairman, Commissioner
16 Sundberg and I occasionally disagree, but not that
17 directly. I think the committee is at a time where it may
18 be able to sharpen the focus, we may not be able to
19 produce a final product. If not, it would be my intention
20 to come to the floor and report that. If we do have a
21 final product, Commissioner Sundberg wants to be able to
22 consider that.
23 CHAIRMAN DOUGLASS: I understand. In other words, if
24 you haven't concluded to the point where the committee
25 feels it's ready to come forward, you'll come back and
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1 make the same motion that you're making today.
2 COMMISSIONER MILLS: Perhaps, Mr. Chairman, it might
3 be fair to say we could present, pass out to the
4 commissioners, the issues they could expect to confront.
5 CHAIRMAN DOUGLASS: Without objection, the motion to
6 pass this until 9:00, special order meeting on Friday, if
7 that will be the case. Is there any objection?
8 Commissioner Langley.
9 COMMISSIONER LANGLEY: At least one. Yes, sir. I --
10 you know, Friday is sometimes a hard day for some of us to
11 be here. To get this just out of committee on Thursday
12 and expect us all to be ready to vote on it Friday those
13 of us, or you all who might be here, what's the hurry on
14 this particular item? It's one of the most complicated
15 and important items that we're going to have before us.
16 And I respectfully request the honorable commissioner,
17 former chief justice, to not rush to judgment on this.
18 CHAIRMAN DOUGLASS: Commissioner Langley, I assume
19 you're going to be here Friday. You never miss meetings
20 unless you're excused.
21 COMMISSIONER LANGLEY: May I be excused?
22 (Laughter.)
23 CHAIRMAN DOUGLASS: No. We need to discuss the
24 attendance problem. We've been trying to address that,
25 Commissioner Langley, but that's another matter.
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1 I happen to agree with you, and the reason I raise
2 the point, it's my understanding that if they have not
3 completed their work, they are going to move to pass it
4 until January and then it would be in our hands by then.
5 That's the reason I raised the point.
6 Now there has been an objection and there is a motion
7 to waive the rules to defer it to a time certain which is
8 nine -- the meeting Friday this month, this week. All
9 those in favor of that motion, please say aye, all
10 opposed.
11 (Verbal vote taken.)
12 COMMISSIONER MILLS: Can I declare a point of order?
13 If you don't vote the motion, you have time certain until
14 2:00 today.
15 CHAIRMAN DOUGLASS: Let's rule on this and then you
16 can make a motion.
17 COMMISSIONER LANGLEY: If I may, Mr. Chairman, I
18 would like to amend the motion to allow them to have the
19 meeting, but to bring this back before us in the first
20 meeting in January. Again, they don't even know what they
21 are going to do or if they are going to do Thursday.
22 CHAIRMAN DOUGLASS: Do you object to that amendment,
23 Commissioner Mills? Do you object to that amendment to
24 your motion?
25 COMMISSIONER MILLS: No, I don't object to that
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1 because I expect that's what's going to happen, but I want
2 to act in good faith with Commissioner Sundberg whose
3 proposal it is. I suspect that Commissioner Sundberg
4 would not oppose a motion on Friday to postpone --
5 CHAIRMAN DOUGLASS: At the moment there has been a
6 motion to amend the motion before we voted and the -- I
7 guess it's a substitute motion maybe.
8 COMMISSIONER LANGLEY: Amendment is fine.
9 CHAIRMAN DOUGLASS: Okay. And we're going to vote on
10 the amendment which is that we will defer this to a time
11 certain which will be at the January session, the first
12 January session. Is that your amendment, Commissioner
13 Langley?
14 COMMISSIONER LANGLEY: Yes, sir, or substitute
15 motion, whichever.
16 CHAIRMAN DOUGLASS: Whichever it happens to be. All
17 in favor of that say, please say aye. Wait a minute,
18 Commissioner Sundberg wants to address --
19 COMMISSIONER SUNDBERG: Is that a nondebatable
20 motion?
21 CHAIRMAN DOUGLASS: No, you can debate it. I'd like
22 to get us off of this procedural hangup and move on.
23 COMMISSIONER SUNDBERG: I'd be delighted to do that,
24 Mr. Chairman. Quite frankly, I was not quite certain the
25 purpose of your referral of this to a select committee at
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1 the last time that this was done. And -- but I would
2 concede that I think some valuable information has been
3 developed during that period of time. I think it's been
4 presented to this select committee.
5 But I do not see any reason to postpone beyond, and I
6 agreed with Mr. Mills to postpone it to a time certain on
7 Friday. I sense that this body is ready to vote on this
8 issue.
9 Now it may not be in the most exquisite form, but it
10 was my understanding that's what style and drafting will
11 do before it comes back to get a final vote before this
12 body. What we need to do at this time, it occurs to me,
13 is to move this matter forward, and if in fact there is
14 tweaking to be done, because I have already agreed with
15 the chairman of the select committee to some amendments to
16 the language. And as I say, I think we need to move this
17 forward. And so I oppose moving this to the January
18 plenary session.
19 CHAIRMAN DOUGLASS: Okay. I don't want to cut off
20 any other debate. Does anybody else want to address the
21 amendment? The amendment is we defer this one until
22 January. The original motion, which it seeks to amend, is
23 we defer it until Friday of this week. So first of all
24 we'll vote on the amendment. If you favor -- Commissioner
25 Langley.
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1 COMMISSIONER LANGLEY: I didn't close on my
2 amendment.
3 CHAIRMAN DOUGLASS: Close.
4 COMMISSIONER LANGLEY: Just briefly. One, there is
5 no hurry to do this and I don't want to embarrass anybody,
6 but everybody who thoroughly understands what you're going
7 to be voting on, raise your hand. Mine is not up. The
8 chief justice understands it, but it takes twenty-two
9 votes to eventually pass it. I just think we ought to
10 have a full understanding, and not knowing the final
11 product but a few hours before it may be taken up on
12 Friday is not good statesmanship for us in our
13 responsibilities in here.
14 This is a big item. This is maybe a half-a-billion
15 dollar item and it should not one that we rush to and not
16 really understand before we do it. Admittedly, from the
17 committee, they don't even have all the facts yet
18 themselves and there are more numbers coming in. So
19 what's the hurry? I mean, we'll be here until May and
20 this is one of the most important things we have to do.
21 And selfishly, I can't be here Friday. Unless you
22 can intervene for me in the circuit at home, Mr. Chairman,
23 I can't be here.
24 CHAIRMAN DOUGLASS: I'll try that if you give me a
25 shot at it.
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1 COMMISSIONER LANGLEY: I don't think that will pass
2 the ethics requirements. But I think there is no hurry on
3 this, it is one of the biggest items we face. And I
4 respectfully ask the body to continue this until January.
5 CHAIRMAN DOUGLASS: Commissioner Langley, as a matter
6 of an aside, you might be tempting some of these people to
7 make sure they bring this up on Friday.
8 COMMISSIONER LANGLEY: I support it in general.
9 CHAIRMAN DOUGLASS: This is a substitute motion. I
10 think that's the correct, what it is. It's a substitute
11 motion that Commissioner Langley has made, which is to
12 defer this until the January meeting and continue with the
13 committee, select committee. Does everybody understand
14 what they are voting on? The motion before you is to
15 defer it until January, Commissioner Langley's substitute
16 motion. All those in favor, say aye, opposed.
17 (Verbal vote taken.)
18 CHAIRMAN DOUGLASS: It carries, the substitute motion
19 carries. It will be deferred until the January meeting.
20 Commissioner Barkdull.
21 COMMISSIONER BARKDULL: Mr. Chairman, going down the
22 daily order of business that's now been ratified, with the
23 exception of the deferral we just made, let me ask you to
24 turn to your Page 3 of your calendar and I'll go through
25 here and give you some, what I have been informed by
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1 various members of the body that I anticipate will happen.
2 It may not, as you see.
3 The first item that we have is the matter of
4 reconsideration which I put on, which was the magistrate
5 court. And I want to ask that that be temporarily passed
6 until we get beyond some other items that are going to be
7 temporarily passed, pending some amendments being
8 prepared.
9 CHAIRMAN DOUGLASS: Without objection, it will be
10 temporarily passed for this meeting. It will be brought
11 up at this meeting.
12 COMMISSIONER BARKDULL: It will be brought up at this
13 meeting.
14 CHAIRMAN DOUGLASS: So done.
15 COMMISSIONER BARKDULL: The next one is the special
16 committee which we just had that's not been deferred until
17 a report of the committee in January.
18 The next items that we come to are committee
19 substitute for Proposal 66, 61 and Proposal 74, which all
20 relate to Article V in elections. It's my understanding
21 amendments are being prepared on that and that either the
22 committee chairman or Commissioner Langley, somebody has
23 indicated they want that continued, temporarily passed but
24 it will be taken up at this meeting.
25 CHAIRMAN DOUGLASS: Without objection --
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1 COMMISSIONER LANGLEY: It's ready?
2 CHAIRMAN DOUGLASS: If it's ready --
3 COMMISSIONER BARKDULL: If it's ready we'll take it
4 up then. Then we come down to proposition 115 by
5 Commissioner Corr that relates to judicial candidates
6 accepting contributions from The Bar. Then the next item
7 is committee substitute for Proposal 45, which is a merger
8 of the Game and Freshwater and I understand that that's
9 going to be referred also to the committee on the
10 judiciary -- legislative, legislative.
11 CHAIRMAN DOUGLASS: It's been referred to the
12 committee on, the legislative committee for consideration
13 by that committee before it comes to --
14 COMMISSIONER BARKDULL: Then that will be removed
15 from the calendar today.
16 CHAIRMAN DOUGLASS: Commissioner Henderson.
17 COMMISSIONER HENDERSON: Just a clarification there.
18 I think we approved the calendar earlier with this on it,
19 and now I understand that you're referring it to the
20 legislative committee; is that right?
21 CHAIRMAN DOUGLASS: That is correct. And I had
22 announced that to the rules committee before the meeting.
23 And I think it is the chairman's prerogative to refer it
24 to another committee. If you want to appeal the rule of
25 the Chair, you can.
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1 COMMISSIONER BARKDULL: I had indicated when I made
2 the motion there would be some comments about the matter.
3 Maybe I didn't make myself clear, but I had spoken to
4 Commissioner Henderson before and indicated it was being
5 referred to the legislative committee. If you want
6 another motion on it or you want to appeal the ruling of
7 the Chair, I guess that's your prerogative.
8 COMMISSIONER HENDERSON: Mr. Chairman, I'm not ready
9 to do that, but I would -- the question is if -- do you
10 think if it's referred to legislative committee that it
11 will be back before this body by the end of the week?
12 CHAIRMAN DOUGLASS: I can't answer that. The
13 committee will meet and there's a good possibility it will
14 be, but I certainly can't predict what the committee will
15 do.
16 COMMISSIONER HENDERSON: It seems that -- the
17 procedure is a little unsure to me, because we had a
18 committee substitute from the executive committee that
19 came to the full body, which considered it. And so it
20 just seems to me another way of doing this would be if
21 there were some specific issues, objections or concerns,
22 that a select committee could be put together in the same
23 manner as Article V funding to work these things out. I
24 just think we're 90 percent close to closure on this
25 issue.
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1 CHAIRMAN DOUGLASS: Well, I have referred it to the
2 legislative committee, and I don't believe, and I hope
3 not, that after the legislative committee has considered
4 it and comes back to the floor that it will be necessary
5 to have a select committee.
6 I do agree with you and the reason that I did decide
7 to refer it to legislative committee is the importance of
8 the issue, number one. And number two, the way I read the
9 committee substitute after it came out was that it does
10 indeed need legislative scrutiny because it seems to me
11 that one of the things that's done in this proposed
12 amendment is to give certain legislative, or could be
13 interpreted that way, to give now-legislative functions
14 over to this commission. And that may be perfectly
15 permissible, but I think the legislative committee should
16 be able to consider it before it comes to the floor.
17 COMMISSIONER HENDERSON: Mr. Chairman, before
18 deciding whether to move to appeal the order, the ruling
19 of the Chair, could I ask -- could I inquire of the
20 legislative committee chairman?
21 CHAIRMAN DOUGLASS: Certainly. I don't have any
22 problem with that. I'm not sure whether -- that's all
23 right, Commissioner Thompson. We're an open group. He's
24 ready.
25 COMMISSIONER HENDERSON: Mr. Thompson -- Commissioner
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1 Thompson, if I were to represent to you that we were very
2 close to closure on this issue, do you think we would we
3 be able to get a hearing before the legislative committee
4 so that this could be back before the floor on Friday?
5 COMISSIONER THOMPSON: The only problem I have with a
6 hearing is time and notice.
7 CHAIRMAN DOUGLASS: Notice we can give today and it
8 would be sufficient notice.
9 COMISSIONER THOMPSON: I don't know what other
10 measures we have there right now. Is Debbie in here?
11 What else do we have in the legislative committee.
12 MS. KEARNEY: Today?
13 COMISSIONER THOMPSON: No, it's tomorrow.
14 CHAIRMAN DOUGLASS: I think to save time let's assume
15 they can't get it done and complete their work. I'm still
16 referring it to that committee, unless I'm overruled by
17 the commission. Because I feel when the committee reads
18 it, they are going to come to the same conclusion I think
19 that I did, that the legislative committee should consider
20 it. And if it requires putting it over until January, we
21 can live with it.
22 I have the same concerns about this issue that
23 Commissioner Langley raised in his prior question, that I
24 don't believe until the legislative committee considers
25 it, it will be ready for floor action. That's why I
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1 referred it.
2 COMISSIONER THOMPSON: We have a pretty full agenda
3 there now. You know, a lot depends on how much debate we
4 have on the various things. I'll be glad to, within the
5 rules, add it and see if we can get to it, certainly. I
6 would imagine though we could get to it as quickly as a
7 select committee could, formed and deliberating.
8 COMMISSIONER HENDERSON: I'm, of course, hoping that
9 the amendments that will be prepared will demonstrate to
10 the legislative committee it's not a legislative issue. I
11 just want to represent to the commission that there has
12 been a lot of work done on this issue over the course of
13 the last three weeks and we are very close to closure on
14 it. And I'm trying to keep parties focused on the need to
15 reach closure to the issue. And that's my only reason for
16 standing here at this time.
17 CHAIRMAN DOUGLASS: Okay. The Chair has ruled it's
18 referred to the legislative committee and it will be
19 noticed for the Friday meeting.
20 COMISSIONER THOMPSON: Mr. Chairman, Thursday
21 meeting.
22 CHAIRMAN DOUGLASS: Excuse me, Thursday meeting.
23 COMMISSIONER BARKDULL: Mr. Chairman, members of the
24 commission, to continue on with the calendar. We did not
25 receive 144 so that will not be up for consideration. All
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1 the remaining matters on the calendar are available for
2 today.
3 CHAIRMAN DOUGLASS: Very well. Are there any further
4 comments?
5 COMMISSIONER BARKDULL: Yes, sir. We have meetings
6 scheduled obviously for the remainder of this week. We
7 have meetings scheduled for January. And at this time we
8 plan to hold the schedule that was distributed to you for
9 January, which was a five-day week and a three-day week.
10 Obviously we're running short on time.
11 These facilities and the Senate staff is not going to
12 be available to us after the end of February. And in all
13 probability, the sooner we can get out of here towards the
14 end of February the happier I think the Senate is going to
15 be, and I don't blame them. They have got to get ready
16 for the legislative session.
17 Yesterday we had six committee meetings scheduled.
18 We had no quorum for three of them. Those of you that
19 have been here, these comments don't apply to you. Those
20 of you who have not been here or are not here today, they
21 do apply to you. We asked to be on this commission and
22 there were many other people that asked to be on this
23 commission. And I think by virtue of accepting
24 appointments on it, we have an obligation to be here, as a
25 responsibility to the citizens of Florida, as a
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1 responsibility to the people that come up here to appear
2 before our committee meetings, and as a courtesy to the
3 other members of this commission.
4 We had committee meetings yesterday with no quorums,
5 where we had the public present, we had people that wanted
6 to testify and we were able to take some of that, but all
7 the commissioners and the committee members were not able
8 to hear it. Now we have known for a long time when these
9 meetings were. And very frankly, it occurs to me if
10 somebody can't discharge the responsibilities that they
11 took to be on this commission, there are a lot of other
12 people out there that would like to take your place. And
13 I wish you'd think about that.
14 CHAIRMAN DOUGLASS: Thank you, sir. For your
15 information, Commissioner Jennings had to be excused today
16 and called and asked to be excused, as did Commissioner
17 Argiz. I think everybody else is here accept maybe one or
18 two that did not request to be excused and they may be
19 here later, I don't know. Commissioner Morsani.
20 COMMMISSIONER MORSANI: Most of us try to make all
21 the meetings, but the problem that some of us are having,
22 we have businesses to run, of substantial size. To be
23 here five days, and especially twice in one month, is very
24 difficult. I try in my own company to, every Monday, do
25 everything I can do on Monday so I can have Tuesday,
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1 Wednesday, Thursday and Friday for this commission or for
2 any other outside activities that I get myself, these
3 high-paying jobs, involved in.
4 And it's very difficult for everybody else to work
5 their schedules around mine in Tampa, Florida, even though
6 they have been pretty good about it, just so I have Monday
7 free. Now I'm only one of 37, and I understand that, but
8 somehow we need -- there are some pressing issues that do
9 happen to us that have hundreds of employees every week
10 that we have to address. And I can't do that and be here
11 two or three Mondays a month, sir. I can't do that.
12 CHAIRMAN DOUGLASS: Well right now the one we're
13 talking about started on Tuesday and I think the other
14 meetings are going to do the same thing.
15 COMMISSIONER MORSANI: That's not what the schedule
16 says.
17 CHAIRMAN DOUGLASS: We'll see about that. I'll take
18 that into consideration when we go further.
19 But the one thing I want to point out I was told by
20 the appointing authorities, all of them, that they
21 informed everybody that was appointed they would have to
22 be here and they could devote probably one-half of their
23 working time to these meetings or more.
24 And I know that was true with the appointing
25 authority from those of you that were appointed by the
24
1 Governor. And I've been told by Commissioner Jennings
2 that that's what she said and also what the Speaker said.
3 And I know the Chief Justice made that clear.
4 So when we took this, as Commissioner Barkdull
5 pointed out, we knew we were going to have some
6 difficulties, but I certainly want to accommodate those
7 people as best we can that can't be here. On the other
8 hand, one person that can't be here will not and should
9 not keep the commission from meeting.
10 I think Commissioner Barkdull's comments were
11 directed to the fact that we had these meetings scheduled
12 and we couldn't get quorums in a committee and I think
13 we'll take care of that in a different fashion. We'll
14 have these meetings first and we'll vote on things. So if
15 you want to miss those, you can miss them. But the
16 committee meetings are extremely important, very
17 important. I think that's what Commissioner Barkdull is
18 talking about.
19 Commissioner Marshall, I see you are standing. You
20 are recognized, sir.
21 COMMISSIONER MARSHALL: Yes, thank you, Mr. Chairman.
22 To go back to the calendar, if I'm in order, Proposal 40,
23 which we temporarily passed in November, I believe
24 requires more attention by the education committee. I
25 think that was the consensus of the members of the
25
1 committee. I wanted to clear that with Commissioner
2 Jennings, but she's not here this morning. I believe it
3 was the intention of the committee to treat that matter
4 further.
5 And with regard to 131, Proposal 131, that was voted
6 down yesterday by the committee on ethics and elections.
7 COMMISSIONER BARKDULL: Page 131?
8 COMMISSIONER MARSHALL: Page 5, Commissioner,
9 Proposal 131.
10 CHAIRMAN DOUGLASS: They are on the calendar right
11 now, they're not on special order, that one isn't. 131 is
12 on the calendar, but hasn't been placed on special order.
13 So that would be considered by the rules committee as to
14 whether it goes on special order on Friday. Am I right,
15 Commissioner Barkdull?
16 COMMISSIONER BARKDULL: Yes, sir.
17 CHAIRMAN DOUGLASS: So 131 is not on special order,
18 Commissioner Marshall, but Proposal 40, which relates to
19 authorizing certain counties to be divided into more than
20 one school district, is on the special order as approved
21 by the committee on education. And as I understand it,
22 what you are suggesting and asking is that it be
23 temporarily passed until the next meeting.
24 COMMISSIONER MARSHALL: The vice chairman of the
25 committee is here and may want to comment on that.
26
1 CHAIRMAN DOUGLASS: Commissioner Riley, you're
2 recognized.
3 COMMISSIONER RILEY: What I understood you to ask was
4 that this be sent back to the committee, which is meeting
5 between now through Friday and perhaps we could come to a
6 conclusion and then bring it back Friday, rather than pass
7 it again until January.
8 CHAIRMAN DOUGLASS: So are you making a motion, one
9 of you, to temporarily pass it until Friday's meeting?
10 COMMISSIONER RILEY: I so move.
11 CHAIRMAN DOUGLASS: All in favor say aye; opposed.
12 (Verbal vote taken.)
13 CHAIRMAN DOUGLASS: It is so done. The Secretary
14 reminds me it's referred back to the committee for
15 consideration on Thursday. So you may want to change your
16 order and take that up early in your meeting to make sure
17 it comes back on Friday. And that is the case. All
18 right, Commissioner Barkdull.
19 COMMISSIONER BARKDULL: I am through with the
20 comments in reference to the calendar and the changes that
21 have been made. I suggest we proceed.
22 CHAIRMAN DOUGLASS: All right. The first proposal
23 for consideration is Proposal No. 61, I believe.
24 Commissioner Wetherington? Commissioner Wetherington, I
25 think you are chairman of the judiciary committee and the
27
1 first proposal to come before the body today is out of the
2 judiciary committee. Would you make the presentation of
3 that, please, sir, or you could yield to someone else to
4 do it if you like.
5 COMMISSIONER WETHERINGTON: Proposal 61, you say?
6 CHAIRMAN DOUGLASS: Sixty-six, excuse me. You have
7 got 66 and then we go to 61.
8 COMMISSIONER WETHERINGTON: Thank you very much.
9 CHAIRMAN DOUGLASS: That's the correct one.
10 COMMISSIONER WETHERINGTON: Thank you, Mr. Chairman.
11 That's why I was looking down at my papers. In terms of
12 the function of judiciary in the state of Florida and our
13 country, there are two important principles; one is the
14 principle of independence of the judiciary, the other is
15 the principle of accountability.
16 The judicial role as defined as far back by Roscoe
17 Pound and Judge Oliver -- Justice Oliver Wendell Holmes
18 requires the judges to apply the law to the cases that
19 come before them in a fair, objective and impartial
20 manner, and to exercise their judgment based upon what
21 they deem to be the law that applies in that particular
22 case and not to be influenced by any other factors, either
23 their personal prejudice, bias or outside influences.
24 Therefore, one of the big factors involved in
25 judicial independence and accountability is the method of
28
1 selecting and retaining judges. No system of selecting
2 and retaining judges, in my opinion, is perfect. There
3 are criticisms that can be made of the merit retention and
4 selection system. And those arguments that have been put
5 forth are that to some extent you are changing one form of
6 politics to another. And you're perhaps allowing special
7 interest groups, maybe the media in some instances to have
8 an undue influence on judiciary. There are a lot of
9 objections to merit retention, some of them are good
10 objections.
11 There are a tremendous number of objections to
12 electing judges, having to do with the independence of the
13 court, and the court's ability to properly perform its
14 function, all kinds of other considerations such as sums
15 of moneys that are raised from attorneys and other
16 unseemly things that happen in judicial elections.
17 And as a consequence, the issue of electing judges or
18 selecting judges by merit retention has been coming up
19 time and again in Florida. As you know, it was voted on
20 in 1978 and narrowly defeated the merit retention
21 proposal. The proposals have been introduced and the
22 question of whether or not we should address the merit
23 retention has been put forth.
24 I think probably on balance the merit retention
25 system is best, although not perfect. But I recognize
29
1 probably in the state of Florida that doesn't reflect the
2 point of view of the great majority of people, it probably
3 doesn't reflect the majority of commissioners.
4 Therefore, in our committee on the judiciary we have
5 a proposal which would work as follows and that is, there
6 would be the ability of the circuit to opt to have merit
7 retention, if it so selected. If it wanted to retain the
8 elected system with respect to trial judges, it could do
9 so. If it wanted to select merit retention, it could do
10 so. So it would be a local option proposition. The
11 option would apply both to circuit judges as well as
12 county judges.
13 It seems to me that circuits that believe that the
14 best method of selecting judges is through a merit
15 selection and retention system should have that
16 opportunity. Those that wish to retain an elected system
17 should have that opportunity. This proposal would permit
18 this type of option. It would provide at least a basis in
19 our Constitution for merit retention in those areas that
20 feel, based upon their local consideration, that merit
21 retention is the best method for them to follow. That's
22 basically what this proposal is. This proposal was also
23 passed favorably by the judiciary committee.
24 CHAIRMAN DOUGLASS: All right. There are three
25 amendments on the table. First of all, I'll ask -- I
30
1 forgot to ask the clerk to read the matter, he reminded me
2 as I looked at him. Would you read Proposal 66?
3 READING CLERK: Committee substitute for Proposal 66,
4 a proposal to revise Article V, Sections 10 and 11,
5 Florida Constitution, providing for circuit court judges
6 and county court judges to run for reelection unless the
7 electors within the circuit or within the county approve a
8 local option whereby the circuit court judges or the
9 county court judges are selected by merit selection and
10 are subject to a vote of retention.
11 CHAIRMAN DOUGLASS: All right. The presentation has
12 been made. There are three amendments on the table.
13 Amendment No. 1 is authored by Commissioner Langley.
14 Commissioner Langley, you're recognized to offer your
15 amendment. He has it and he will read it.
16 READING CLERK: By Commissioner Langley, on Page 2,
17 Line 28, strike 2004 and insert 2000.
18 COMMISSIONER LANGLEY: This was an oversight in
19 drafting, and I think the way the proposal is currently
20 worded, there will be an election in '98. And so it will
21 become effective in 2000 rather than 2004. I think there
22 is no objection to that, no debate.
23 CHAIRMAN DOUGLASS: Is there any debate on the
24 amendment? If not, all those in favor of amendment No. 1,
25 which is on your desk, signify by saying aye; opposed like
31
1 sign.
2 (Verbal vote taken.)
3 CHAIRMAN DOUGLASS: It carries. Now we move to
4 amendment 2. Would you read amendment 2, please.
5 READING CLERK: By Commissioner Langley, on Page 2,
6 Line 31, after the period insert, any future election to
7 exercise the local option to select circuit court judges
8 by merit selection and retention rather than by election
9 shall be invoked by filing with the secretary of state a
10 petition signed by the number of electors equal to at
11 least 10 percent of the votes cast in the circuit in the
12 last preceding election in which presidential electors
13 were chosen. Any future election to exercise the local
14 option to select county court judges by merit selection
15 and retention rather than by election shall be invoked by
16 filing with the secretary of state a petition signed by
17 the number of electors equal to at least 10 percent of the
18 votes cast in the county in the last preceding election in
19 which presidential electors were chosen.
20 CHAIRMAN DOUGLASS: Commissioner Langley.
21 COMMISSIONER LANGLEY: Thank you, Mr. Chairman. This
22 was, you know, after we had worked out the compromise of
23 the opt in/opt out, this was an afterthought. What if a
24 county voted to continue to elect their judge in 19 --
25 pardon me, in the year 2000 but became unhappy with that,
32
1 how would they ever get it back to the people to go to
2 merit selection.
3 And to do this, this amendment says that it would
4 take 10 percent of the electors in that county to ask that
5 it be put back on the ballot so that they could at that
6 time choose to go to merit selection. Now for those of
7 you who may be interested, this does not provide for the
8 reverse of that. It does not say we chose merit selection
9 and now we can get 10 percent and get out and reelect our
10 county judge, it doesn't do that. It is solely an opt in,
11 a belated opt in, it is not a belated opt out. That's
12 another issue.
13 CHAIRMAN DOUGLASS: Commissioner Sundberg -- do you
14 yield -- I guess you yield to the Commissioner.
15 COMMISSIONER SUNDBERG: I have a question.
16 CHAIRMAN DOUGLASS: Commissioner Langley yields.
17 COMMISSIONER SUNDBERG: Commissioner, I'm sympathetic
18 to this amendment and I think it is appropriate. I'm a
19 little concerned about the line, using the term "future."
20 That could not be construed to apply to the first election
21 that is to take place after the adoption. Let's assume
22 that this is adopted in '98. The first, essentially, the
23 election that we've all agreed this will be required after
24 this is adopted will be in the future from the time this
25 is adopted in '98. Am I making any sense to you?
33
1 COMMISSIONER LANGLEY: You always make sense. If I
2 understand what you're saying there may be some language,
3 you know, there about any election after the year 2000.
4 COMMISSIONER SUNDBERG: Right, because future could
5 be construed by somebody to mean, well, this first
6 go-around has to be, you know, you need that. If we may
7 include language like that, I'd like to support this
8 amendment.
9 CHAIRMAN DOUGLASS: Commissioner Smith, do you have a
10 question?
11 COMMISSIONER SMITH: Yes.
12 CHAIRMAN DOUGLASS: Do you yield? Commissioner
13 Langley yields.
14 COMMISSIONER SMITH: Commissioner Langley, I was very
15 pleased to see this amendment. I discussed this matter
16 last night with the chair of the judiciary committee.
17 I want to know, however, what I see is a frustration
18 among the people about how judges are elected. Sometimes
19 what happens is, as Commissioner Wetherington said, you
20 have two bad systems but because people only see one side
21 of the bad system, they want to change. And sometimes
22 when they change, they find out, I jumped out of the
23 frying pan and into the fire and I want to go back. So
24 I'd like to know what the rationale is for allowing
25 individuals to opt back in but not allowing them to opt
34
1 back out.
2 COMMISSIONER LANGLEY: As I stated, Commissioner
3 Smith, I think that's a perfectly debatable option and I
4 would welcome an amendment to do that, if that's what you
5 wish. We've had two instances in my home county where we
6 went to an appointed superintendent, got a bad one and the
7 people voted to go back to elected. Well, also, many of
8 you know we went to nonpartisan school board elections for
9 a couple of times and backed out of that in some counties.
10 So you're right, until they taste the grass on the
11 other side of the fence, it may not be what they think.
12 If you'd like to prepare that and offer it, that's fine.
13 It is not, as I explained, it is not a subject of the
14 amendment I'm offering now and would not be contradictory
15 to the amendment I'm offering now. It would be another
16 alternative.
17 CHAIRMAN DOUGLASS: Commissioner Langley, that raises
18 the question, which I'm going to leave the chair and ask
19 it because I'm not a proponent or opponent of this. But
20 since this is a merit retention proposition, there would
21 be an election every four years to turn the rascals out,
22 would there not, assuming they are rascals?
23 COMMISSIONER LANGLEY: Whatever the merit retention
24 system provided, yes. None of them have ever been turned
25 out.
35
1 CHAIRMAN DOUGLASS: Well, that doesn't mean they will
2 not be --
3 COMMISSIONER LANGLEY: I understand.
4 CHAIRMAN DOUGLASS: -- we hope, because there are
5 some that probably should be from time to time.
6 My question is, this is a different situation, is it
7 not, from a school superintendent where you don't have
8 retention? In other words, everybody that's appointed
9 under this system, if I understand it, and the way it
10 works with the Supreme Court and Appellate Courts at the
11 present, has to stand before the public for retention and
12 then you vote yes or no. If you got one that was
13 sufficiently bad that the public wanted to turn them out,
14 they would have that opportunity; would they not? That is
15 a distinction; isn't it?
16 COMMISSIONER LANGLEY: Yes, sir. As you know, the
17 state of California turned three out at one time on the
18 Supreme Court.
19 CHAIRMAN DOUGLASS: That would be the distinction
20 between this and your school superintendent.
21 COMMISSIONER LANGLEY: Yes, sir.
22 CHAIRMAN DOUGLASS: Commissioner Smith.
23 COMMISSIONER SMITH: I'd just like to make a comment
24 on that. California turned three out because they were
25 highly controversial. The problem is we can have people
36
1 who are incompetent but well-liked and not controversial
2 and so therein lies the difference.
3 In California, you know, they were saying, we're not
4 going to have any death penalty, we're going to change all
5 the laws. And because of that widespread controversy, the
6 populous was informed as to their philosophy and what they
7 were doing and said, we don't like it. But we can have
8 totally incompetent judges that the public doesn't know
9 about because they won't do anything controversial.
10 CHAIRMAN DOUGLASS: Commissioner Smith, I'm not going
11 to rule you out of order, but you're debating the main
12 motion at the moment. I think the issue before us is the
13 amendment.
14 COMMISSIONER SMITH: I tried to respond to the
15 chair's comment. And if I was out of order, I shall sit
16 down.
17 CHAIRMAN DOUGLASS: Mine wasn't meant to be a comment
18 because I may be on your side.
19 Commissioner Sundberg.
20 COMMISSIONER SUNDBERG: Mr. Chairman, I'd like to
21 offer a technical amendment to the amendment to address
22 the issue about the question I put to Commissioner
23 Langley.
24 CHAIRMAN DOUGLASS: Could you place it on the desk
25 please?
37
1 COMMISSIONER SUNDBERG: I can.
2 CHAIRMAN DOUGLASS: Would the clerk please read the
3 amendment to the amendment offered by Commissioner
4 Sundberg?
5 READING CLERK: Amendment to the amendment by
6 Commissioner Sundberg: On Page 1, Line 1 and Page 1, Line
7 5, strike "future election" and insert "election after the
8 year 2000."
9 COMMISSIONER SUNDBERG: Pardon me, there is another
10 line. The amendment should also address the fifth line
11 where it talks about -- oh, you announced both lines. I'm
12 sorry, fine. I offer that amendment.
13 CHAIRMAN DOUGLASS: Does everybody understand the
14 amendment? Commissioner Langley, do you understand his
15 amendment?
16 COMMISSIONER LANGLEY: Yes, sir, it's clarifying. I
17 have no objection.
18 CHAIRMAN DOUGLASS: All those in favor of the
19 amendment to the amendment signify by saying aye; opposed,
20 like sign.
21 (Verbal vote taken.)
22 CHAIRMAN DOUGLASS: The amendment to the amendment is
23 adopted and now we revert to the amendment. The
24 proponent, Commissioner Langley, has spoken.
25 COMMISSIONER BARKDULL: There is an amendment on the
38
1 desk.
2 CHAIRMAN DOUGLASS: There's another amendment on the
3 desk. I think we need to take this one up first. Is it
4 an amendment to this amendment?
5 COMMISSIONER BARKDULL: No, sir, I thought you were
6 going --
7 CHAIRMAN DOUGLASS: No, we haven't voted on this
8 amendment yet. All right. We are on Commissioner
9 Langley's amendment No. 2 as amended by Commissioner
10 Sundberg's amendment to the amendment. And we will now,
11 unless there is -- does anybody want to speak in
12 opposition to the amendment?
13 If not, we will proceed to vote. All those in favor,
14 push your button. And this is on the amendment as
15 amended. It is not on the main motion.
16 (Vote taken and recorded electronically.)
17 CHAIRMAN DOUGLASS: Everybody voted? Announce the
18 vote.
19 READING CLERK: Thirty-one yeas and zero nays,
20 Mr. Chairman.
21 CHAIRMAN DOUGLASS: The amendment has been adopted.
22 There's a third amendment on the desk. Would you read the
23 amendment by Commissioner Barkdull.
24 READING CLERK: By Commissioner Barkdull, schedule of
25 this proposal. If adopted in 1998 then in all circuits
39
1 and counties wherein this proposal received the majority
2 vote of approval there, it shall be a merit retention
3 election for all circuit and county judges in such
4 circuits and counties at all subsequent general elections.
5 CHAIRMAN DOUGLASS: Commissioner Barkdull, on your
6 amendment.
7 COMMISSIONER BARKDULL: Mr. Chairman, members of the
8 commission, to explain the amendment. As the proposal is
9 before us now, there will be a vote in '98 to whether the
10 counties should have the local option to vote in 2000 to
11 have merit retention. In those counties and circuits in
12 which that would pass in 2000, then the people that are up
13 for election in 02 would be the first ones that would be
14 subject to merit retention.
15 There are a number of offices that become vacant in
16 2000. If we're going to adopt this procedure it seems to
17 me that if a circuit or a county -- if the state votes
18 this proposal in by majority vote statewide and there is
19 within a circuit or within a county a vote of a majority
20 of the people that approve it, we have a number of
21 circuits that are one-county circuits in which they would
22 be able to go into, if this amendment was proposed -- as
23 proposed was passed, that they would have the merit
24 retention elections in the year 2000 rather than waiting
25 to the year 2002, and having to have an additional
40
1 election system that we have now.
2 The purpose of it is if a circuit or a county
3 approves by a majority vote in '98, then in the year 2000
4 those judges that came up for election in that year will
5 be subject to merit retention. And they would thereafter,
6 in the circuits or counties in which a vote was not passed
7 by majority in '98, they would continue to vote whether
8 they wanted merit retention for the future of their
9 circuits and counties. I yield for questions.
10 CHAIRMAN DOUGLASS: You yield to Commissioner Hawkes?
11 COMMISSIONER BARKDULL: Yes, sir.
12 COMMISSIONER HAWKES: Well, Mr. Chairman, actually I
13 think I rose to speak against the amendment, but maybe
14 it's a question.
15 CHAIRMAN DOUGLASS: It's a little bit early.
16 COMMISSIONER HAWKES: Let me phrase the question and
17 make sure I understand it then. I thought that the
18 question that would be put before the voters was going to
19 be, do you think that circuits and counties ought to have
20 a right to go to merit selection if they wish to. And I,
21 in my rather rural area of the state, might think that,
22 well, I hear about problems in South Florida and maybe
23 they ought to have a right to do that, but maybe we don't
24 want to do it where we know our county judge and might
25 want to elect him.
41
1 And what this does, I think, and correct me if I'm
2 wrong, is it prevents me from voting to give perhaps Dade
3 or Broward County an option I think they may appreciate
4 without committing myself to doing it in my district and I
5 may not want to do it in my district.
6 COMMISSIONER BARKDULL: No, sir, that's not the
7 purpose of this amendment and I don't think it does what
8 you say. Because if your county votes not to have it in
9 year '98, they will not have it until they vote it in.
10 COMMISSIONER HAWKES: Wonder if a majority of the
11 citizens in my county want to give the option to Dade but
12 they don't necessarily want to elect their county court
13 judge -- I mean, I think that what you're doing is you're
14 preventing people from voting for the amendment if they
15 want to allow a choice without also committing to doing it
16 themselves. I mean, it's one thing to say, give people a
17 choice, it's another step, I think, to make the choice.
18 COMMISSIONER BARKDULL: I understand your point.
19 CHAIRMAN DOUGLASS: All right. Any further questions
20 or any further proponents of the amendment? All right.
21 Opponents? Anybody want to speak in opposition to
22 the amendment? Does everybody understand the amendment or
23 do you want it reread? Read it again, the amendment,
24 please. I'm not sure I understand it.
25 READING CLERK: By Commissioner Barkdull, if adopted
42
1 in 1998 then in all circuits and counties wherein this
2 proposal received the majority vote of approval there it
3 shall be a merit retention election for all circuit and
4 county judges in such circuits and counties at all
5 subsequent elections.
6 CHAIRMAN DOUGLASS: All right. Proponents, any?
7 Commissioner Barkdull.
8 COMMISSIONER BARKDULL: It's been explained and I
9 think in response to Mr. Hawkes' question that certainly
10 is a problem and it's a legitimate concern. And so I
11 think the body ought to understand what Mr. Hawkes'
12 position was. My position is if the majority of people
13 within a county or a circuit think they should have merit
14 retention, then they should not have to go through a
15 second local option provision. There is obviously merit
16 to the other side and I think Commissioner Langley
17 probably is going to speak to it.
18 CHAIRMAN DOUGLASS: All right. Opponents?
19 Commissioner Langley.
20 COMMISSIONER LANGLEY: I think Commissioner Hawkes is
21 imminently correct that in those of you that like merit
22 selection probably don't like this amendment because
23 you're going to force people, like myself who would vote
24 for the people having the choice but not necessarily vote
25 for, especially on a county judges level, not necessarily
43
1 vote for merit selection of a county judge.
2 But I certainly think people in the county ought to
3 have that right to choose. So you're going to lose that
4 middle ground of people who say voting yes now is voting
5 yes then so I'm going to have to vote no now.
6 COMMISSIONER BARKDULL: Do you yield for a question?
7 COMMISSIONER LANGLEY: Certainly. You have a very
8 impish expression your face, but --
9 CHAIRMAN DOUGLASS: That's not unusual.
10 COMMISSIONER BARKDULL: If I took out counties would
11 you support it?
12 COMMISSIONER LANGLEY: Don't box me in.
13 COMMISSIONER BARKDULL: Because I think there is
14 merit in your position and Commissioner Hawkes'. And I
15 would be willing to strike the word "counties" and just
16 leave it to the circuit situation.
17 CHAIRMAN DOUGLASS: Is that a motion to amend your
18 amendment?
19 COMMISSIONER BARKDULL: I'm trying to get more
20 support over here.
21 CHAIRMAN DOUGLASS: Did you get an answer to your
22 question?
23 COMMISSIONER BARKDULL: He doesn't want to be locked
24 in.
25 CHAIRMAN DOUGLASS: That's an answer. Commissioner
44
1 Sundberg.
2 COMMISSIONER SUNDBERG: As unaccustomed as I am to
3 being on the other side from Judge Barkdull, I have to
4 agree with those who oppose this. What you're essentially
5 doing is building in an implied compound question. They
6 are really two different issues.
7 One issue is do you believe it appropriate to have
8 local option, circuit by circuit and county by county with
9 respect to merit retention and selection of judges. The
10 other issue is do you, in fact, in this county want to
11 have merit selection. And I just think that it would
12 be -- it's in fact misleading and I have to agree with you
13 that what it's going to do is make the 1998, or pardon me,
14 the year 2000 election, you're going to anticipate it in
15 '98. And I just think that's bad business. I speak
16 against it.
17 CHAIRMAN DOUGLASS: Any other opponents? Would you
18 like to close, Commissioner Barkdull?
19 COMMISSIONER BARKDULL: Well I'd like to get an
20 amendment up there to strike the word "county" out of it.
21 Can I make oral an amendment?
22 CHAIRMAN DOUGLASS: Go ahead.
23 COMMISSIONER BARKDULL: I move that we strike, for
24 purposes of consideration, any reference to counties and
25 that this proposal only relate to circuits.
45
1 CHAIRMAN DOUGLASS: Now, write it out and bring it up
2 here, please, so we can comply with the rules.
3 Read the amendment to the amendment.
4 READING CLERK: On Page 1, Lines 2 and 6, strike the
5 word "counties".
6 CHAIRMAN DOUGLASS: Does everybody understand the
7 amendment to the amendment? He's going to take out the
8 counties and leave it only as the circuits. That if they
9 pass the amendment by majority vote, then they would
10 proceed to merit retention in '98; is that right?
11 COMMISSIONER BARKDULL: 2000.
12 CHAIRMAN DOUGLASS: 2000, all right. Everybody
13 understand the amendment as amended? All in favor of the
14 amendment say aye; opposed like sign.
15 (Verbal vote taken.)
16 CHAIRMAN DOUGLASS: It fails.
17 COMMISSIONER BARKDULL: I'd like to withdraw
18 amendment three.
19 CHAIRMAN DOUGLASS: It's too late. I'm going to take
20 a vote anyway. We'll let you withdraw it.
21 I understand we have a fourth amendment. Who is
22 offering it? Commissioner Smith is offering amendment
23 No. 4 which is not on the table yet. Do you want to go
24 ahead and tell us what it is while they're getting it
25 here? It won't be before the body until it's in writing.
46
1 COMMISSIONER SMITH: Yes, thank you, Mr. Chairman. I
2 think -- first of all, I really think that we've come a
3 long way with regard to this very, very difficult issue
4 that continues to come up, came up in Article V and just
5 keeps coming up. I really believe in the spirit of what
6 the judicial committee did, and that is to say, look,
7 let's let the people decide. We're not any wiser than the
8 people and we understand this is a diverse state.
9 I would like to make an amendment that would allow
10 people to opt in or opt out. And the language will
11 basically say that people will be allowed, with that
12 10 percent of the electors, to select circuit court judges
13 by merit selection and retention or to select circuit
14 court judges by election. I think by leaving it with only
15 opting for merit selection, we show our, quote, bias, end
16 quote, toward the merit selection system. People should
17 be able to experiment with it.
18 Additionally, for those who really favor merit
19 selection, what you could be doing in a closed vote is
20 making people who are not sure vote against it by saying,
21 I'll be stuck with this forever. So there are people who
22 might say, I'll vote for this and if it doesn't work, we
23 can come back and change it later.
24 So basically it's an opt in or opt out and I think
25 this will really improve the proposal. Thank you.
47
1 CHAIRMAN DOUGLASS: The amendment is not on the
2 table, so we don't know exactly what it says yet. Anybody
3 want to ask any questions while we're waiting?
4 Commissioner Morsani.
5 COMMISSIONER MORSANI: Mr. Chairman, I agree with
6 Mr. Smith at this point as far as at least his
7 explanation. I think one of the purposes that I hope this
8 commission can do is continue to create flexibility in
9 this Constitution. And it seems like this opt in and opt
10 out amendment is where I hope we are in our state because
11 some of the counties that were small counties five years
12 ago are now large counties and so on and so forth.
13 And I would continue we hope to endeavor to have
14 flexibility in what we create in this document. And I
15 would, I realize Commissioner Langley's amendment is, and
16 I agree with Mr. Smith that I think we can't have a bias
17 toward one or the other because it is dynamic. And I
18 would strongly want to support an opt in and opt out
19 provision.
20 CHAIRMAN DOUGLASS: All right. The reading clerk has
21 something there. Can you read what you think you have,
22 sir?
23 READING CLERK: On Page 2, Line 31, after the period
24 insert, "Any election after the year 2000 to exercise a
25 local option to select or elect circuit court judges by
48
1 merit selection and retention or election rather than by
2 election shall be invoked by filing with the secretary of
3 state a petition signed by the number of electors equal to
4 at least 10 percent of the votes cast in the circuit in
5 the last preceding election in which the presidential
6 electors were chosen.
7 "Any election after the year 2000 to exercise the
8 local option to select or elect county court judges by
9 merit selection and retention or election rather than by
10 election shall be invoked by filing with the secretary of
11 state a petition signed by the number of electors equal to
12 at least 10 percent of votes cast in the county in the
13 last preceding election in which presidential electors
14 were chosen."
15 CHAIRMAN DOUGLASS: Commissioner Langley, this is
16 what you left out of yours; wasn't it?
17 COMMISSIONER LANGLEY: I do not claim any authorship
18 of this amendment. I think we're passing the sense of
19 that I certainly -- and we've discussed this with
20 Commissioner Sundberg. This certainly needs to be more
21 artfully drafted and I think the drafting committee can do
22 this. But the sense of it is to allow the counties, if
23 vote in 1990 to go to merit, then they can in '92 or
24 thereafter go back --
25 CHAIRMAN DOUGLASS: Us older people don't recognize
49
1 2000. We're still in 1990.
2 (Laughter.)
3 CHAIRMAN DOUGLASS: It's 2000 and 2002.
4 COMMISSIONER LANGLEY: Right, thank you.
5 CHAIRMAN DOUGLASS: All right. Everybody understand
6 this amendment? This amendment would change it from the
7 original amendment that was made and passed. So I'm not
8 sure how to treat this. This is an amendment to your
9 amendment really, which has already passed.
10 COMMISSIONER LANGLEY: Yes. It is an amendment to
11 the bill as amended is what it would amount to. But
12 basically it's another option is all it is. It doesn't
13 contradict, as I said when I explained the first
14 amendment, it doesn't contradict the first amendment, it
15 adds to it. It says not only can you opt in, you can opt
16 out.
17 CHAIRMAN DOUGLASS: Well, regardless of how we get
18 there, what this amendment does is allow, after they adopt
19 the provision for merit retention, that a county can opt
20 in or out after the year 2000 by getting 10 percent of the
21 people, electorate that voted in the last election on a
22 petition and then it will come up in the next election on
23 that issue. Is that correct, Commissioner Smith?
24 COMMISSIONER SMITH: That is correct. And let me
25 thank staff for trying to assist me with drafting this. I
50
1 was trying to keep up with the debate on the other motions
2 but I will be happy to be more precise in the drafting.
3 CHAIRMAN DOUGLASS: I presume Commissioner Barkdull
4 wants to ask you the same question that he asked
5 Commissioner Langley in which he said he was keeping his
6 options open.
7 COMMISSIONER BARKDULL: I don't have any questions
8 for Commissioner Smith, I think he's doing fine.
9 CHAIRMAN DOUGLASS: Very well. Anybody want to speak
10 in favor? Commissioner Evans.
11 COMMISSIONER EVANS: I have a question. This new
12 language, Commissioner Smith, could that in any way be
13 construed that the people have to take some kind of
14 action? If the people want to maintain the status quo,
15 maintain the current election system, do they have to take
16 some kind of action to opt in? I would like to think the
17 answer to that -- I mean to opt out. I would like to
18 think the answer to that is no, that they can maintain the
19 status quo by doing nothing.
20 COMMISSIONER SMITH: That's correct; that's correct.
21 CHAIRMAN DOUGLASS: Okay. Anybody else want to be
22 heard on this amendment? Commissioner Wetherington.
23 COMMISSIONER WETHERINGTON: I think it's an
24 improvement. I would support it.
25 CHAIRMAN DOUGLASS: Anybody else want to be heard?
51
1 Then we'll proceed to vote. This is to the proposal as
2 amended. Does everybody understand it? We'll go over it
3 again if you don't.
4 Wait a minute. I'm telling you we're on amendment
5 four. I already passed that. All in favor of amendment
6 four, the last one, say aye; opposed, like sign.
7 (Verbal vote taken.)
8 CHAIRMAN DOUGLASS: It carries. Now we'll vote on,
9 as you're already doing, on the motion to adopt the
10 proposal as amended. Anybody that doesn't understand it
11 now, let me hear from you. Commissioner Barkdull.
12 COMMISSIONER BARKDULL: Mr. Chairman, I think there
13 are people that want to debate this. As I understood,
14 Commissioner Wetherington was explaining what the proposal
15 did.
16 CHAIRMAN DOUGLASS: Close the machine. We'll start
17 over. Erase all those green things off and we'll have,
18 whoever wants to speak for this will have an opportunity
19 to do so. For the amendment -- I mean for the motion as
20 amended. Any proponents?
21 Any opponents? Commissioner Connor.
22 COMMISSIONER CONNOR: Yes, sir. Thank you,
23 Mr. Chairman. I appreciate very much the work
24 Commissioner Wetherington and the judicial committee did
25 on this issue. And certainly as far as I'm concerned this
52
1 kind of proposal, as amended, is the most acceptable form
2 in which this could be offered.
3 I rise however, Mr. Chairman, to oppose the proposal
4 because of my opposition to the merit retention system.
5 The effect of this amendment would in effect be to expand
6 the merit retention system for trial judges, both county
7 and circuit judges.
8 The basis for this kind of proposal in part is that
9 it would help depoliticize the process. I would suggest
10 to you for those who believe that merit retention
11 depoliticizes the process, that they are naive and
12 unfamiliar with the process. The effect of the merit
13 retention system, I would suggest to you, is to simply
14 concentrate political power in the hands of fewer people.
15 It has the tendency, rather than keeping the politics
16 above the ground, to drive the politics under the ground.
17 The people in whom political power becomes
18 concentrated, typically, are large law firms, contributors
19 to the Governor and the media. Because frankly the
20 appointing authority is typically more sensitive to the
21 media perspective regarding an appointment than the public
22 is, I would suggest, to an election.
23 The effect of merit retention has been that we have
24 not taken out of office a single judicial officer under
25 the process. I think there are very good reasons for
53
1 that. First of all, without an opponent running against a
2 particular judge, there is no one to sharpen the issues or
3 sharpen the concerns that may be involved with the
4 retention of a particular candidate.
5 Secondly, the voters don't know who will replace that
6 candidate. They simply have no idea who that would be.
7 And I would submit to you the public opts typically then
8 to dance with the devil they know than the one that they
9 don't.
10 So the effect of the merit retention system in our
11 state has been to ensure the perpetuation into office of
12 whomever is the beneficiary of the merit retention
13 process. And I would submit to you that it's not a
14 process that we ought to expand. I am not suggesting that
15 we contract it, I'm suggesting simply that we don't expand
16 it.
17 In closing, I would just make this observation from a
18 column from the St. Pete Times, which was authored by one
19 who is in support of the merit retention process who has
20 indicated the way in which this process can be abused.
21 And I would suggest to you it was abused in its worst form
22 in Palm Beach County.
23 With regard to the nominee from the judicial
24 nomination committee for a circuit judge proceeding, the
25 author made this observation, but Sachs, referring to the
54
1 nominee, but Sachs would be a dubious choice even if she
2 were qualified; she isn't. That's because her husband,
3 Boca Raton lawyer Peter S. Sachs, used his clout as a
4 member of The Florida Bar's Board of Governors to ensure
5 her nomination.
6 "Two of The Bar's three representatives on the
7 nine-member commission were his choices. One of the
8 Governor's three representatives, lawyer Ted Bovin
9 [phonetic], is a former chairman of the county's
10 Democratic party, whose candidates Peter Sachs has often
11 supported.
12 "Still another commission member belongs to a large
13 law firm that helped bankroll Maria Sachs when she ran
14 unsuccessfully for a county judgeship last year. Small
15 wonder then that the commission insisted on nominating
16 Mrs. Sachs even after she had been caught fudging her
17 trial experience."
18 I would submit to you, ladies and gentlemen, very
19 simply that we ought not to expand this process. It does
20 not depoliticize the process and, in fact, rather than
21 fostering a system of accountability, I would submit to
22 you, it provides an unhealthy insularity for judges who
23 ought not to be beyond the removal by the people. Thank
24 you.
25 CHAIRMAN DOUGLASS: Further debate? Commissioner
55
1 Brochin.
2 COMMISSIONER BROCHIN: I rise, too, to oppose this
3 proposal, but for different reasons than those expressed
4 by Commissioner Connor. I think the Constitution has some
5 very fundamental aspects to it. And the way you select
6 your executive branch, your legislative branch and your
7 judicial branch is perhaps the most fundamental purpose of
8 the Constitution.
9 And to write a Constitution that allows counties to
10 opt in and opt out, elect circuits, elect county court
11 judges, is not a uniform system in the state of Florida
12 that should be a part of our Constitution. I'm in favor
13 of merit retention. I think that's a positive thing to
14 do, not because it depoliticizes the system, in fact it
15 does not.
16 What it does do is it produces highly competent
17 judges in an effective way so the judicial branch can
18 perform its function. And it is not a representative body
19 of the people, but it is rather a protector of the
20 Constitution.
21 But nevertheless to write into our Constitution a
22 system that allows you to go to Dade County and appear
23 before an elected judge and then go 30 miles north and
24 appear before a judge that's subject to merit retention,
25 and then continue up the coast and maybe have county or
56
1 circuit court judges opted in or opted out, in my humble
2 estimation is not appropriate for our Constitution. We
3 should either have it done one way because what's good for
4 one county should be good for the other.
5 Trial judges affect the people of the state of
6 Florida. What a trial judge says in Leon County will
7 affect a court perhaps in Volusia County. And our
8 Constitution ought to be uniform in that respect, if
9 nothing else. So for different reasons I'll oppose this
10 and vote against it.
11 (Commissioner Thompson assumes the Chair.)
12 COMISSIONER THOMPSON: Commissioner Zack.
13 COMMISSIONER ZACK: I would like to elect the judges
14 who I appear before in Dade County. That by far would be
15 my choice. However, our concern here today when we look
16 at this question is how do we have the best possible
17 judiciary, whether in Dade County or Broward County or
18 Leon County. How do you have the best possible judge to
19 appear before?
20 And frankly, there are different issues that affect
21 Dade County -- and I'll only express my view regarding
22 Dade County because that's where I primarily practice --
23 and other parts of the state.
24 I don't know how many of you had the opportunity to
25 read a Miami Herald article a number of years ago, and I
57
1 highly recommend it to each of you, called the Jurist
2 Impurist. And I would like to talk to you about that
3 article and what was said in that article.
4 And I personally witnessed everything that appeared
5 in that article. I have had the privilege of serving on
6 the Judicial Nominating Commission in the 11th Circuit,
7 Dade County, which was the bottom up, and being special
8 counsel to Governor Graham, which is, I guess, the top
9 down when you receive the three names. And I can assure
10 you that everything that was discussed in the article is
11 absolutely correct.
12 What you have in Dade County is 100-plus judges who
13 appear on the ballot after numerous other local and state
14 races. There is little or no knowledge whatsoever about
15 who you're voting for. The way to get elected in Dade
16 County is to have a good name. And I don't mean a good
17 name based on your reputation as a fine lawyer or jurist.
18 I once wrote an article that you really don't need
19 any money whatsoever to run as judge in Dade County, you
20 just needed to change your name to Juanita Leavenhand Levy
21 because at that point you were assured to get a majority
22 of all votes in Dade County. Because people vote based on
23 a name that sounds vaguely familiar or that sounds like a
24 name that they grew up with, someone in their family, a
25 certain ethnic group. And this is how people are
58
1 selected. That's not how we should select our judges.
2 We need to select judges based on the quality of
3 their intellect, their ethics, their years of experience.
4 And I agree with Mr. Connor, there is no question that
5 there will be politics whenever three people get together.
6 There is no question in my mind that's the case.
7 However, the issue is where do we get the best
8 judges, in what type of format. And I was practicing in
9 Florida as all of you here, I think we're all that old,
10 when appellate judges were elected. And I look back at
11 the reputation of our appellate courts at the time that
12 all our appellate judges were elected. And I look at the
13 court system, the appellate court system today, and see a
14 vast, vast improvement. I don't think that can be
15 questioned by anybody in this room or outside this room
16 who honestly looks at the system.
17 And I consider the appellate rights that are decided
18 by those appellate judges at least as important, and
19 probably more important because they stand for principles
20 that are applied to all cases, than the decisions that are
21 made by trial judges. As Mr. Brochin discussed that it
22 was okay to continue on, Commissioner Brochin discussed,
23 it was all right to have appellate judges determined by
24 merit selection. Well, the same principles apply.
25 And I readily understand that there may be a
59
1 difference in different communities, counties, circuits
2 around the state where there is a small bar association
3 with one or two judges who, frankly, have to practice
4 together, who understand that their word is their bond,
5 who understand that they are constantly seeing each other,
6 case in and case out, and will for the rest of their
7 professional lives, compared to counties where you have
8 15-, 20,000 lawyers in one county. And you may never ever
9 know most of those lawyers who you come in contact with,
10 and certainly you rarely come in contact with most of them
11 more than one time.
12 In any event, it is not a perfect system. I would
13 prefer not to have to have a merit selection system. I
14 like electing judges. However, it just doesn't work in
15 Dade County. And we ought to have the option of
16 explaining that to the voters of Dade County and letting
17 them decide how to select the best possible judge.
18 COMISSIONER THOMPSON: Further debate; further
19 debate? Commissioner Nabors.
20 COMMISSIONER NABORS: Very quickly. I'd like to give
21 a perspective. I've served in a nominating commission at
22 every level, Supreme Court, circuit and trial. And
23 personally I like the merit retention process. My service
24 was positive, I served with commissioners that tried to do
25 the right thing, without political influence, tried to
60
1 send the right names up.
2 However, I think this is an example, and I hate to
3 disagree with my good friend Mr. Brochin, but I think this
4 is an example, and the other example, you have got to
5 recognize the diversity of this state. And we have got a
6 vastly different state in the Panhandle and various small
7 counties than we do in South Florida. I don't consider it
8 a constitutional compromise to recognize that through this
9 process.
10 What I might feel personally in terms of senatoring
11 the Constitutional merit selection, it doesn't bother me
12 that we allow local areas to make changes that are more
13 suitable to their areas. I don't consider this to be a
14 compromise in terms of any kind of Constitutional
15 structure. There are many times we are going to have to
16 recognize that there is areas of this state that are
17 dramatically diverse. We have an unusual state.
18 I travel the state probably as much as anybody in
19 this room and I see Holmes County, Calhoun County, Dade
20 County, Palm Beach County, Manatee County and I know each
21 area has its own personality. And this is a fundamental
22 choice that I don't see anything constitutionally
23 repugnant about allowing that choice to be made at the
24 local level. So I speak in support of the proposal.
25 COMISSIONER THOMPSON: Commissioner Evans.
61
1 COMMISSIONER EVANS: I speak in opposition to the
2 proposal for reasons that have not been expressed yet as
3 well as to address some of the concerns of Commissioner
4 Zack.
5 He spoke to the concern that in Dade County judges
6 are elected on the basis of name recognition because
7 primarily the people do not know the candidates. There is
8 a proposal that is in front of the commission to allow the
9 people to get to know the candidates; that is, to remove
10 the, in my opinion, unconstitutional gag rule. Our
11 Constitution does provide that every person may speak,
12 write and publish his sentiments on all subjects.
13 It additionally states that no law shall be passed to
14 restrain or abridge the liberty of speech. And the gag
15 rule has certainly indeed abridged the freedom of speech
16 of judicial candidates and it also does prevent the people
17 from having the knowledge.
18 Thomas Jefferson stated that if a nation expects to
19 be ignorant and free in a state of civilization it expects
20 what never was and never will be. He continued, I know of
21 no safe depository of the ultimate powers of the society
22 but the people themselves. And if we think they are not
23 enlightened enough to exercise their control with a
24 wholesome discretion, the remedy is not to take it away
25 from them but to inform their discretion by education.
62
1 This is the true corrective of abuses of Constitutional
2 powers.
3 So again, the answer to our problems with the people
4 not having knowledge is to allow the people to have
5 knowledge. It is not to take away from the people their
6 right to vote because they are not knowledgeable enough to
7 vote.
8 I am also reminded of a presentation to the education
9 committee by Mr. Dubois Ausley. I'm not able to recall
10 right now Mr. Ausley's position. Could you help me,
11 Commissioner Jennings?
12 COMMISSIONER JENNINGS: He was there as a member of
13 the Governor's Commission on Education on the governance
14 committee.
15 COMMISSIONER EVANS: Okay, a member of the Governor's
16 Commission on Education as a member of the governance
17 committee speaking to the education committee for the
18 revision commission.
19 And I can't quote exactly, but when asked why did we
20 need a constitutional amendment requiring the appointment
21 of all school superintendents, since we already have the
22 local option, his answer was that we need to make it
23 mandatory throughout the state because the people are not
24 giving up their right to vote voluntarily. So we have to
25 have people in certain parts of the state to force people
63
1 in other parts of the state to give it up.
2 So I can see the progression of thought. First, take
3 away the people's right to know the candidates by invoking
4 the gag rule. Second step, take away the elective choice
5 because they have a lack of knowledge. The third step
6 then is to make it mandatory in all counties and circuits
7 because the people aren't giving it up voluntarily. And
8 then the fourth step would be to take away all the
9 retention choice because, again, of the lack of knowledge.
10 The people still can't hear the judicial candidates
11 on a retention issue as to what their position is in their
12 private lives which definitely influences their position
13 in their public lives. The people have the right to know.
14 So let's not say that the answer to our problems in
15 Dade County is taking away the right to vote on a
16 county-by-county basis and open the door to future attacks
17 on the people. You have to remember the very first
18 sentence of the very first section of the very first
19 article in the Constitution is, "All political power is
20 inherent in the people." It is sad when the people are
21 not educated enough to exercise their political power, but
22 the option is not taking it away. Thank you.
23 CHAIRMAN DOUGLASS: I'd like to interrupt the debate
24 for just a moment. We have with us and going to be
25 presented to us the newest justice of the Florida Supreme
64
1 Court who was just appointed. And I don't know who it is,
2 I haven't seen her yet, so if you would bring her forward.
3 All right, everybody please rise, Justice Pariente.
4 (Applause.)
5 CHAIRMAN DOUGLASS: In just a moment I'll let her say
6 just a few words. But 20 years ago I don't think we would
7 have had a very attractive lady as our justice. What's
8 happened in the last 20 years has greatly improved our
9 system. And Justice Pariente has served on the Fourth
10 District Court of Appeal since 1993 and she comes to this
11 job extremely well qualified in many respects.
12 Justice Pariente, all of us here as you can see are
13 standing, are very pleased with your nomination and your
14 ascendancy to this office.
15 (Applause.)
16 JUSTICE PARIENTE: Please be seated. This is really
17 overwhelming because I got a call yesterday about quarter
18 of 4:00 from J. Hardin Peterson. And usually, for those
19 that know, when you get a call from J. Hardin Peterson
20 that means, you know, thumbs down because you get the call
21 from the Governor if it's, if you get appointed. And Jay
22 does the dirty work, as I guess Dexter did when he was in
23 that position.
24 But Jay said, no, don't think there is a problem, but
25 we need you up here tomorrow morning at 9:30 and it's not
65
1 for an announcement. So I assume that it's not for an
2 announcement. Then I start thinking, what could it be?
3 So I came up on minute's notice and the Governor
4 about I guess a half hour ago asked me if I would like to
5 serve. And then we went into a press conference. The
6 Governor had all these prepared remarks about the
7 appointment and then it got to the end and it said, Judge
8 Pariente remarks. And my remarks weren't written down.
9 So I got my first taste of what it's like to have a press
10 conference. And it was rather overwhelming.
11 Anyway, it's wonderful to be here and see so many
12 people, friends and colleagues that I know serving on this
13 important position. Justice Kogan, I definitely need to
14 speak with you. And it's very exciting and I thank you
15 for your ovation and I'm sure you have very important work
16 to get back to. Thank you.
17 (Applause.)
18 CHAIRMAN DOUGLASS: We were indeed honored to have us
19 be your first public appearance as justice. And she
20 immediately takes office as soon as Justice Kogan can
21 swear her in, I think is the case.
22 COMMISSIONER KOGAN: Actually when she goes upstairs
23 and signs the oath that's it.
24 CHAIRMAN DOUGLASS: So she will be it as soon as she
25 leaves here, then, I guess, assuming the secretary of
66
1 state is in today.
2 COMMISSIONER KOGAN: I won't touch that one.
3 (Laughter).
4 CHAIRMAN DOUGLASS: I'll relinquish the rostrum to
5 Mr. Thompson.
6 COMISSIONER THOMPSON: Continuing our debate on
7 Proposal No. 66. Commissioner Smith, you're recognized.
8 COMMISSIONER SMITH: Thank you, Mr. Chairman.
9 Believing as I do, Article I, Section 1 of the Florida
10 Constitution, that all rights are in fact reserved to the
11 people, that is the reason why I wholeheartedly support
12 this proposal.
13 If you would look at the minutes of the Article V
14 commission proceedings, I think you would agree no
15 individual and no organization opposed merit selection and
16 retention more than I did as an individual and the
17 National Bar Association did as an organization. But I am
18 not here for the purpose of representing H. T. Smith's
19 views. I'm here to try to make a Constitution better for
20 the people of the Florida over the next 20 years.
21 And I wholeheartedly embrace as a philosophy the
22 statement made by my dear friend, Commissioner Morsani, if
23 we believe the Constitution should be a living document
24 and being a descendent of slaves and knowing that slavery
25 was both a part of the federal Constitution and the
67
1 Florida Constitution, I am proud of the fact that our
2 Constitution is alive and vibrant and has a flexibility to
3 one day say, I'm a slave and the next day say, I'm a free
4 man, with the same words being in the Constitution. That
5 was that I was property. So I believe that we definitely
6 should have flexibility in the Constitution.
7 Secondly, it always gives me pause when I find myself
8 on the other side of a thoughtful, insightful
9 knowledgeable person like Bobby Brochin who is very, very
10 sincere. And he says, and I agree, that we can find
11 ourselves in a situation where, for instance, I'm
12 practicing before an elected judge in Dade County and an
13 appointed judge in Broward County.
14 But I point out to my dear friend that I do that
15 every day now in Dade County. I appear before judges who
16 are appointed by the Governor and that same day I go to
17 another judge who ran for election. So I am not that
18 worried about having that problem inter-county when I
19 already have it intra-county and intra-circuit.
20 Thirdly, I oppose merit selection on behalf of the
21 National Bar Association for many of the reasons expressed
22 by my friend, Mr. Connor. Having been a part of a group
23 that very rarely was in the meeting before the meeting
24 which was really the meeting, I am always a little
25 concerned about these nine-member group meetings.
68
1 But the difference that I come to from my good friend
2 Mr. Connor is I don't think it's my prerogative, in terms
3 of discharging my duty on this commission, to push my idea
4 about what I think is best to the people of Clay County,
5 Hillsborough County, Monroe County.
6 And I find myself agreeing with Commissioner Evans
7 but coming up with a different conclusion. And that is,
8 let the people decide. How -- what more democracy can you
9 have than to say, for your branch of government, the
10 judiciary, that you will decide, you will decide how to
11 select the people who will decide the important judicial
12 issues and the important legal issues that affect your
13 lives. This, I believe, will be one of the most important
14 issues that will go before the voters if we approve it.
15 And those who support merit selection and those who
16 support election of judges can say, I can support this
17 because this gives me, this gives us, the people of
18 Florida, the opportunity to make a decision on what we
19 want, not the 37, quote, eggheads, end quote, not The
20 Florida Bar, not the big law firms, not the people who are
21 in the room, but the people of the state of Florida.
22 I urge you in the strongest possible terms to give
23 this decision to the people of Florida by supporting
24 Proposal 66 as amended.
25 COMISSIONER THOMPSON: Further debate; further
69
1 debate? Commissioner Douglass, you are recognized.
2 CHAIRMAN DOUGLASS: Mr. Chairman, members of the
3 commission, in 1978 I made almost the same speech that
4 Commissioner Connor made, sitting almost in the same seat.
5 And I lost, and it went to the ballot. I wrote articles
6 favoring the election of judges, trial judges in The Bar
7 Journal and anywhere else they would print them because I
8 was convinced at that time that that was the way to go.
9 I must admit I was looking at it from the standpoint
10 of a state of a different makeup, a state of a different
11 population, more from a provincial view of a small-town
12 boy who grew up in Florida, which I think Mr. Connor or
13 Commissioner Connor shares with me. If you have that
14 background you tend to want everybody elected because you
15 remember when everybody knew who the people were that were
16 involved in the election and you voted for them on the
17 basis of personal knowledge.
18 Times have changed in the 68 years that I've lived
19 and the 43 years that I practiced law. They have changed
20 so dramatically in the number of lawyers that now pervade
21 our society. They have changed dramatically in the number
22 of judges that are now on the bench. When I started
23 practicing law, and I hate to refer back to history, in
24 1955 I knew the name of every judge in Florida, circuit
25 judge and county judge, the day I got out of law school.
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1 And the Supreme Court was the only appellate court
2 and you had a right of appeal in every case from the
3 circuit court directly to the Supreme Court. I made my
4 mark at the law firm, which was a big law firm at the time
5 of five people, Caldwell, Parker, Foster and Wiggington.
6 I was the fifth one who replaced Mallory Horne who was
7 making $160 a month, and I made 250 a month. And Mallory
8 has never forgiven me for that.
9 But in any event, what I'm trying to say to you is
10 that we are now living in a different state, with
11 different people, with a large, huge population. And our
12 system of justice, if it is to survive, has got to be
13 free, free from the whims as described by Commissioner
14 Zack. Free from the influence of lawyers and large firms,
15 small firms and otherwise when you have a partisan
16 election. It so much greater than it is under the merit
17 retention system that you can't imagine it.
18 If you are appearing before a judge or have an
19 opportunity to think you're going to appear before a judge
20 and you're a lawyer and his man calls you up and asks for
21 $250, you send it. And I can assure you in retention
22 elections that's not the case. I can assure you, however,
23 that that creates in the eyes of the public the concept
24 that the lawyers who contributed that money will receive
25 favoritism when they go before that judge. I like to
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1 think they don't, but most people believe otherwise.
2 And I think that it's important that we address this
3 problem on the trial level where it's more important than
4 it is even on the appellate level where we now have it and
5 it has worked so well.
6 I wish to also, Commissioner Connor, tell you that I
7 am probably more familiar with the Palm Beach situation
8 than the fellow who wrote the article. I was involved in
9 it, and I appointed a special committee, at the request of
10 the Governor, headed by the most respected judges and
11 chaired by one of the most respected lawyers in the state
12 to look into that. And what you described is not exactly
13 what happened.
14 And what came out of it, however, was a full public
15 airing of the Judicial Nominating Commission. And it
16 resulted in the next time someone came up for appointment
17 to that commission, there were 50 applicants to serve,
18 when in some circuits we couldn't even get people to apply
19 to serve on the JNC. So it was eliminated. And it
20 resulted in a great improvement in all of the JNCs in
21 South Florida, primarily because it was publicly aired and
22 commented on by the press.
23 The lady that you talked about was not appointed.
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