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7 STATE OF FLORIDA
8 CONSTITUTION REVISION COMMISSION
9 Meeting of June 16, 1997
10 The Senate Chamber
11 The Capitol
12 Tallahassee, Florida
13 10:00 a.m.
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19 Reported by:
20 RAY D. CONVERY
21 Court Reporter
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1 P R O C E E D I N G S
2 THE CHAIRMAN: If the members would take their
3 seats, we'll try to be punctual. It's my preference
4 that we be punctual as often as possible. I'm not --
5 well, I'm not sure I wanted it to be that quiet, but,
6 pursuant to Article IX, Section 2 of the Florida
7 Constitution, I hereby call this Constitution Revision
8 Commission to order.
9 Before we begin the business of revision, I would
10 like to introduce the person who will lead us in
11 prayer today. I've asked Dr. Glenn Bass, the pastor
12 of Faith Presbyterian Church in Tallahassee, to lead
13 us in prayer.
14 Will the Commission members and the guests in the
15 gallery please rise for the prayer?
16 Dr. Bass?
17 DR. BASS: Let us pray.
18 Gracious God, beneath whose eye and within whose
19 patience the story of our years is told, compose us in
20 your presence and help us to pray more nearly as we
21 should. Bless the courts and these leaders assembled
22 here. Give them the spirit of wisdom and
23 understanding that they may perceive the truth and
24 administer the law impartially as instruments of your
25 divine will. When you have plans for us and the power
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1 to make them happen, give the legal community, the
2 Legislature, government workers, executives the
3 knowledge of your will for their work, and let them
4 remember that they serve a public trust beyond
5 personal gain and glory. May they see that no city,
6 state or nation lives for itself alone, but is
7 responsible to you for peace and for the well-being of
8 all your children. Amen.
9 THE CHAIRMAN: Please remain standing and
10 Katherine Fernandez Rundle will lead us in the Pledge
11 of Allegiance.
12 Would you come to the podium, please?
13 (The Pledge of Allegiance.)
14 THE CHAIRMAN: Please be seated.
15 We're called here pursuant to Article XI, Section
16 2, which provides that within 30 days after the
17 adjournment of the regular session of the Legislature
18 convened in the tenth year following the adoption of
19 the 1968 revision and each 20th year thereafter, there
20 shall be established a Constitution Revision
21 Commission composed of 37 members.
22 The last Constitution Revision Commission was
23 convened in 1977, completed its work in '78. With 20
24 years having passed, a Constitution Revision
25 Commission has been established for the years 1997 and
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1 for 1998.
2 The Constitution provides for four appointing
3 authorities, including the Governor appointing 15
4 members, the President of the Senate and the Speaker
5 of the House appointing nine members, the Chief
6 Justice of the Supreme Court appointing three members,
7 and the Attorney General automatically serves.
8 At this time I would like to invite each of the
9 appointing authorities in the order found in the
10 Constitution to call the roll of the persons they
11 appointed and to provide a brief background statement
12 on each member.
13 First, however, I would like to introduce the
14 first person named by the Constitution to serve
15 automatically on the Commission, the Attorney General
16 for the State of Florida.
17 General Butterworth, would you please stand?
18 Thank you, sir.
19 General Butterworth is the 32nd Attorney
20 General. He's had an extensive record of public
21 service. Actually, after reviewing his resume, it
22 appears there are very few offices he hasn't filled.
23 General Butterworth has served as an Assistant State
24 Attorney, Broward County judge, circuit judge for the
25 17th Judicial Circuit in Broward County, Broward
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1 County Sheriff, Director of the Department of Highway
2 Safety and Motor Vehicles, mayor of Sunrise Beach and
3 the Attorney General.
4 We're pleased to have the State's chief legal
5 officer advising and participating in this Commission.
6 I now will call on the Honorable Governor of the
7 State of Florida, Lawton Chiles, to call the roll of
8 the 15 members he selected to serve on the Commission.
9 Governor, if you would come stand at the podium
10 where the secretary is, we would be delighted to have
11 you, sir.
12 GOVERNOR CHILES: Yes, your worship.
13 THE CHAIRMAN: I finally caught him.
14 GOVERNOR CHILES: Good morning. I am pleased to
15 introduce my Constitution Revision Commission
16 appointees, and I'll ask them if they'd stand when I'm
17 introducing them, while I'm introducing them.
18 First is Clarence Edward Anthony. Clarence is
19 the mayor of South Bay. He's an engineer by trade,
20 and he served as president of the Florida League of
21 Cities, is currently an officer of the League. His
22 real claim to fame is he's the father of Reidel.
23 Our next appointee is Martha Walters Barnett.
24 Ms. Barnett is a partner in the Holland & Knight law
25 firm. She's served on numerous boards, including the
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1 Human Relations Commission, the Ethics Commission and
2 the Taxation and Budget Reform Commission.
3 The next is the Honorable Thomas H. Barkdull, Jr.
4 Judge Barkdull is the only person who will have served
5 on all of the revision commissions that have met
6 during our lifetime. He might have been on the '85
7 Commission, but he was on '68, '78 and will now serve
8 on the present Commission. Judge Barkdull recently
9 retired from his long service as a judge of the Third
10 Circuit Court of Appeals.
11 Robert M. Brochin. Bobby Brochin is a partner in
12 the Morgan, Lewis & Bockius law firm. Bobby served as
13 counsel with me in the Governor's Office, served as my
14 chief inspector general until 1993 when he returned to
15 the private practice of law.
16 Barbara Williams Ford-Coates. Ms. Ford-Coates is
17 the tax collector for Sarasota County. She's already
18 been active in constitutional revision through her
19 services on committees on that subject within the
20 Florida Tax Collectors' Association and the League of
21 Women Voters.
22 Ellen Catsman Friedin. Ms. Friedin is a partner
23 in the Akerman, Senterfitt & Eidson law firm. She's
24 been active in Bar activities and has served on her
25 circuit's Judicial Nominating Commission as well as
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1 the Florida Bar and the Judicial Nominating
2 Procedures Commission.
3 William Clay henderson. Clay is president and
4 CEO of the Florida Audubon Society. He served as the
5 city engineer for the City of Edgewater and Oak Hill,
6 was a member of the Volusia County Commission, and was
7 a member of the governing board of the Florida
8 Communities Trust.
9 Jon Lester Mills. Jon is the director of the
10 Center for Governmental Responsibility at the
11 University of Florida College of Law, served for ten
12 years in the Florida House of Representatives and was
13 Speaker from 1986 to 1988.
14 Robert Lowry Nabors. Bob is a partner in Nabors,
15 Giblin & Nickerson. He served as general counsel to
16 Governor Graham, also served on the Growth Management
17 Task Force and the Ad Hoc Work Group on Affordable
18 Housing and the Florida Telecommunications and
19 Taxation Task Force. He is now an adjunct professor
20 at Florida State University, where he teaches state
21 constitutional law.
22 Judith Byrne Riley. Ms. Riley is a senior vice-
23 president of Valparaiso Realty Company, serves as a
24 member of Enterprise Florida Jobs and Education
25 Partnership, chair of the National Association of
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1 Private Industry Councils, vice-chair of the Florida
2 Council on the Status of Women, and is a member of the
3 Northwest Florida Water Management District.
4 Katherine Fernandez Rundle. Kathy is the State
5 Attorney for the 11th Judicial Circuit, which
6 comprises Dade County. She served as president of the
7 Cuban-American Bar Association, a member of the
8 Florida Association of Women Lawyers. She served as
9 Chief Assistant State Attorney to Janet Reno prior to
10 her appointment and subsequent election.
11 H.T. Smith. H.T. is a lawyer in private
12 practice. He served as president of the National Bar
13 Association from 1994 to 1995, knows something about
14 boycotts.
15 James Harold Thompson. James Harold is a partner
16 in the Ausley law firm here in Tallahassee. He served
17 as a member of Florida House from '74 to 1986, the
18 last two years as Speaker. He served as general
19 counsel to the Gadsden County School Board and
20 Tallahassee Community College.
21 Steven Neal Zack. Mr. Zack is a partner in the
22 firm of Zack, Sparber & Kosznitsky, Spratt & Brooks.
23 He served as special counsel to Governor Graham, a
24 member of the Cuban-American Bar Association, served
25 as president of the Florida Bar in 1989 and 1990.
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1 I've chosen two alternate members in the event
2 any of the members I've appointed are unable to serve
3 for the duration of the Commission's operations, and
4 they are Lyra Blizzard Logan -- Ms. Logan is an
5 attorney for the Florida Education Fund. She serves
6 as the first vice-president of the Equal Opportunity
7 Board of Dade County. She also has served as co-chair
8 for the Community Relations Board and Small and
9 Minority Business Advisory Council; and Ira Leesfield.
10 Ira is a partner with Leesfield, Leigton & Rubio,
11 serves as an adjunct professor for the University of
12 Miami, served as chair for the Third DCA Judicial
13 Nominating Commission, is presently serving on
14 President Clinton's Council on Physical Fitness and
15 Sports.
16 Mr. Chairman?
17 THE CHAIRMAN: Thank you, Governor Chiles.
18 Next I would like to move to the next appointer
19 in order of constitutional order. I would like to
20 recognize the Speaker of the House of Representatives,
21 the Honorable Daniel Webster, for the purpose of
22 introducing his nine selections to the Commission.
23 While the Speaker is coming to the podium, I
24 would like to take this opportunity to publicly thank
25 Speaker Webster for his assistance in the formation of
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1 this Commission. His office and staff has provided
2 the Commission with its office, and they have greatly
3 facilitated the organization, particularly Sergeant
4 Wayne Westmore has been most helpful at your
5 direction, and we sincerely appreciate Speaker
6 Webster.
7 Speaker Webster?
8 SPEAKER WEBSTER: Thank you, Mr. Chairman.
9 It's my pleasure to introduce the nine appointees
10 that I have selected.
11 First of all, Carlos Alfonso, Jr. Carlos is from
12 Tampa, Florida, born in Havana, Cuba. He's an
13 architect, president of Alfonso Architects. He has a
14 B.S. from the University of Florida and also a Master
15 of Arts in architecture from the University of
16 Florida, a licensed commercial multi-engine pilot and
17 a Class A general contractor.
18 Ken Connor.
19 Maybe I should state your age, too. Carlos is
20 42.
21 Ken Connor is 50 years old. I just wanted to say
22 it so I can say Dick Langley's age.
23 Ken is from Tallahassee. He's an attorney, a
24 partner in Connor & Gwartney, has a J.D. from Florida
25 State University with honors, and he's a 1990
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1 gubernatorial candidate.
2 Chris Corr. Chris is 33 years old. He's from
3 Maitland, Florida, in Orange County. He works with
4 Walt Disney Company in Walt Disney Imagineering where
5 he's the senior manager. He has a B.A. from the
6 University of Florida. He's attended the Harvard Real
7 Estate Institute, the Wharton School of Business.
8 He's a former member of the Florida House of
9 Representatives.
10 Valarie Evans. Valerie is 47 years old. She's
11 from Orlando. She's a housewife. She's also an
12 attorney. She does pro bono adoptions. She has a
13 J.D. from Florida State University and she's a former
14 high school teacher.
15 Paul Hawkes, he's 40 years old. He's from
16 Crystal River in Citrus County. He's an attorney and
17 self-employed, much like the chairman used to be, has
18 a similar contract with the Speaker to advise him as
19 the chairman had advised the Governor. He has a J.D.
20 from Florida State University, a former member of the
21 Florida House of Representatives and a former State
22 Attorney from the Fifth Judicial Circuit.
23 Dick Langley, 60 years old. He's from Clermont,
24 in Lake County. He's a farmer and an attorney. He's
25 self-employed. He has an L.L.D. from the University
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1 of Florida, formerly served as a member of the Lake
2 County School Board, the Florida House of
3 Representatives and the Florida Senate.
4 Stan Marshall, 74 years old. He's from
5 Tallahassee, the chairman and CEO of the James Madison
6 Institute, has a Ph.D. from Syracuse University.
7 He's a former president of Florida State University.
8 Jacinta Mathis, 40 years old, from the Speaker's
9 district in Orlando. She's an attorney with the
10 Mathis law firm. She has a J.D. from Florida State
11 University. She's on the executive board of the
12 Greater Orlando Chamber of Commerce, a former member
13 of the Judicial Nominating Commission and a member of
14 the UCF Board of Directors.
15 Paul West, 45 years old. He's from Broward
16 County, Fort Lauderdale, a real estate broker, owner
17 of Freedom Industries, Incorporated, educated at
18 Florida State University, received a B.A. from
19 American Christian College.
20 Those, Mr. Chairman, are my nine appointees.
21 THE CHAIRMAN: Thank you very much, Mr. Speaker.
22 Mr. West, I can't help but remark that you're a
23 graduate of Leon High School and you're coming home,
24 and that's not to single you out too much, but to also
25 thank the Governor for not revealing the ages of his
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1 appointments. Certainly Commissioner Marshall is the
2 oldest here. Judge Barkdull is glad to know that, of
3 course, as am I.
4 Continuing now in the order established in the
5 Constitution, I want to recognize the Honorable Toni
6 Jennings, President of the Florida Senate, the first
7 lady to hold that job.
8 Before President Jennings comes forward -- am I
9 wrong? I am wrong.
10 SENATOR JENNINGS: Gwen is looking down on you.
11 THE CHAIRMAN: Oh, Gwen --
12 SENATOR JENNINGS: And you'll hear from her
13 probably in about five minutes.
14 THE CHAIRMAN: Okay. Well, one mistake's not too
15 bad, Senator, Commissioner you are now.
16 Before -- I do want to thank you, though, Senator
17 Jennings for the great assistance that you and your
18 staff have given us to get this under way. You very
19 graciously provided the Commission with your chambers,
20 with the use of all the facilities that are
21 available. In addition, you have really helped us
22 tremendously by authorizing Faye Blanton, your
23 secretary, to be our secretary when we selected her
24 for that purpose, and the Sergeant-at-Arms, Wayne
25 Todd, to protect us as he has in the Senate. Thank
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1 you for your help. And because of your contribution
2 to the Commission, we've been able to begin timely and
3 efficiently even with just one mistake so far.
4 Madam President, if you would introduce your
5 selections to the Commission, we'll be most honored.
6 SENATOR JENNINGS: I would be happy you to. Thank
7 you, Mr. Chairman, and we are pleased to provide you
8 with the chamber. We guarantee you that it will be
9 cooler from now on. In an effort to be frugal, of
10 course, we in state government turn things off, and we
11 turn off the air-conditioning during the summer over
12 the weekends, and we forgot to remind them that we
13 would have a group here early this morning, so when
14 you first walked in, if you felt it was a little warm,
15 it was just the beginning of all the hot air that will
16 probably be exchanged around here.
17 In alphabetical order -- and if you think I'm
18 going to list ages, Mr. Speaker, I don't do that.
19 Tony Argiz. Tony is from Miami. Tony is the
20 managing partner-elect with Morrison, Brown, Argiz &
21 Company, a CPA firm, of course, in Miami; is very
22 active in the Cuban-American community. When I called
23 Tony and we discussed his appointment, he was telling
24 me the story of coming to our country, living for a
25 long time in Tampa without his family, growing up
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1 there in Tampa, and then eventually moving to Miami,
2 and it's a story that I hope all of you will -- it's a
3 story several in our group can tell, but it's a story
4 I hope all of you will hear.
5 Tony is the former chairman of the Florida Board
6 of Accountancy. He has held numerous positions with
7 both the Florida Institute of CPAs and the American
8 Institute of CPAs, and is one of the founders of the
9 Kiwanis Club of Little Havana which originated the
10 Calle Ocho Festival, and if you've been to Little
11 Havana during Calle Ocho, you will know what I mean.
12 My second appointee isn't here, and for those of
13 you that know Senator Crenshaw, you'd say, well,
14 that's about par for the course. Ander is -- had a
15 commitment out of the state over the weekend and will
16 be with us either late this evening or first thing in
17 the morning. When we changed the date on him, he
18 couldn't change the date to be with us.
19 As you know, Ander Crenshaw was the first
20 Republican president of the Florida Senate since
21 Reconstruction. He served during our split Senate.
22 We had a 20-20 Senate in 1992 and '93, and we have the
23 two pictures here. Sentator Crenshaw served one year
24 and Senator Thomas served the other.
25 Senator Crenshaw now earns an honest living with
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1 the nationally recognized investment banking firm of
2 William R. Huff out of Pinellas County.
3 Marilyn Evans-Jones. Marilyn represented Brevard
4 County in the Florida House of Representatives for a
5 decade. Marilyn and I were elected the same year, in
6 1976, and we have been friends before that and ever
7 since.
8 During her time in the Legislature, Marilyn was
9 the sponsor of the Safe Drinking Water Act, the Clean
10 Indoor Air Act and numerous bills involving elderly,
11 mental health and child safety, a -- just a committed
12 legislator in all that she did.
13 Marilyn was also the '86 candidate for lieutenant
14 governor with then-Congressman Lou Frey, and Marilyn
15 served on the Citizens Commission for Cabinet Reform
16 in 1995.
17 Marilyn is from Nassau County now, and I'm just
18 so pleased that she can be with us during these
19 deliberations. She will bring a unique perspective.
20 John Lowndes. John's wife Rita was laughing, I
21 said I've known John all my life, and that's just
22 about the truth. John and I have been friends -- I
23 guess once you reach the age of adulthood you can then
24 be friends with folks -- we've been friends for over
25 30 years, and I'm just so pleased that John has agreed
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1 to give of his time to do this.
2 John is the founding partner in Lowndes,
3 Drosdick, Doster, Kantor & Reed, one of our area's
4 largest -- probably is the largest law firm in
5 Orlando, having 80 partner members. He also is a
6 partner in Greater Construction, one of the largest
7 homebuilders in the central Florida area.
8 John brings a unique perspective to everything we
9 do. He is a lawyer but he is a business lawyer, among
10 other things, and I think that is an appropriate way
11 to move forward.
12 John has held leadership positions on the Orlando
13 Museum of Art, and if you have not seen the tombs of
14 China yet, I'll put in a plug for it, right, John? I
15 think the terra cotta soldier is still guarding my
16 door over at the entrance to the Senate, so if you'd
17 like a little preview of it, please come in and look
18 at it.
19 He's also worked with the University of Central
20 Florida, Winter Park Memorial Hospital, the Orange
21 County Bar Association, and just recently was
22 recognized by Junior Achievement of Central Florida,
23 the Mid-Florida Business Hall of Fame, with its Spirit
24 of Achievement Award. John, thank you so much for
25 giving of your time to do this.
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1 Frank Morsani. Frank has had a lot of jobs.
2 He's been a busy man. Frank, as you know, is from the
3 Hillsborough County/Tampa area, from Lutz. All of us
4 know where Lutz is, and Frank's previously been the
5 chairman of the Board of Directors of the United
6 States Chamber of Commerce. He was a delegate to the
7 White House Conference on Small Business. He has been
8 on the Small Business Administration Advisory Council,
9 was a member of the Council on Foreign Relations, a
10 director of the American Red Cross, chairman of the
11 South Florida Endowment Fund for the University of
12 South Florida, and just myriad other achievements, but
13 first and foremost, Frank is a smart businessman, and
14 I thought that was an important asset for us to have
15 as we move forward, and I appreciate you giving of
16 your time, Frank, to be with us.
17 Carlos Planas. Carlos operates the largest
18 Chrysler dealership in south Florida, and I think
19 that's important to say. Among other things, Carlos's
20 has been recognized as one of the largest Hispanic
21 businesses in all of our country, in all the U.S. He
22 is president of the South Florida Automobile Dealers
23 Association, is on the board of the Orange Bowl
24 Committee, is a native of Cuba, and also came to our
25 country and made it his own, and I'm just pleased to
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1 have Carlos with us today. Thank you so much, Carlos.
2 Senator Scott probably all of you know. Senator
3 Jim Scott was my predecessor as president of the
4 Florida Senate. We have served lo these going-on-22
5 years. Wow, it's a long time. As you see, Jim is now
6 resting in his place of honor up here. He's up there
7 but he's working down here, and he is going to be an
8 integral part of all that we do.
9 As you may have noticed, I felt it important to
10 -- because it has been a long time, in a nonpartisan
11 but a partisan way -- it was a number of years before
12 we had a Republican president of the Senate, and I
13 asked that the two previous ones serve with me on this
14 Commission, so Senator Crenshaw and Senator Scott are
15 here to lend that particular length of expertise and
16 their knowledge to the process.
17 Jim is a native of Kentucky, as he will remind
18 you usually around Derby Day, and has held all the
19 important positions in the Florida Senate and has been
20 just a key leader in our state for a number of years
21 and is my good friend.
22 Chris Sullivan. Chris many of you may already
23 know. Chris's background is in restaurant management
24 and is a real innovator. He was one of the original
25 developers of Chili's and now the phenomenally -- I
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1 can't say that -- successful, the really successful
2 Outback Steakhouse. Chris is a general partner in the
3 Tampa Bay Devil Rays and on the Board of Directors of
4 the Florida Council of 100, the Tampa Bay Partnership,
5 the Florida Chamber of Commerce and the Tampa Bay
6 Performing Arts Center, and we're just real excited to
7 have Chris with us as well. Thank you so much.
8 And last but not least is my alternate -- our
9 alternate, Pat Barton. Pat could not be with us today
10 but will be with us as we continue our deliberations.
11 Pat found out last week that she had to have a little
12 surgery, and this is the week that they had scheduled
13 it. They needed to do it quickly, but it is -- she
14 will be in good shape afterwards.
15 Pat has held a number of positions dealing with
16 drug abuse, alcohol and mental health. She was one of
17 the founding members of the National Federation of
18 Parents for a Drug-Free Youth, Florida Informed
19 Parents and Naples Informed Parents, which is a
20 prototype parent group of the drug-free youth, and was
21 also the vice-president of the National Federation of
22 Republican Women.
23 Mr. Chairman, we've got a lot of folks here who
24 are ready to work. Thank you.
25 THE CHAIRMAN: Thank you very much, President
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1 Jennings.
2 I would like to say, Mr. Sullivan, did we all get
3 a ticket that means we don't have to stand on the
4 porch at the Outback?
5 MR. SULLIVAN: It depends on the operator.
6 THE CHAIRMAN: Okay. A very fine group, Senator
7 Jennings, and -- Commissioner Jennings. We're going
8 to have to get used to calling each other
9 Commissioner, because that's the way it is, and all of
10 these titles are lost when you're in the chamber.
11 Everybody is the same here, each Commissioner.
12 The next appointing authority -- and I say that
13 advisedly -- is the Chief Justice of the Supreme
14 Court. I call on the Honorable Gerald Kogan, Chief
15 Justice of the Supreme Court of Florida, for the
16 purpose of introducing his appointees to the
17 Commission.
18 Chief Justice Kogan, soon to be Commissioner
19 Kogan?
20 COMMISSIONER KOGAN: Thank you very much, Mr.
21 Chairman.
22 As you know, I received three appointments, one
23 of which was myself. By following after Senator
24 Jennings, I thought it was a good idea, if I'm
25 appointing somebody, I ought to be here myself.
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1 Let me introduce my two appointees. First of
2 all, Alan Sundberg. Alan?
3 Alan Sundberg is currently the General Counsel
4 with Florida State University. He was a partner in
5 the law firm of Carlton Fields, one of the outstanding
6 trial and appellate lawyers in the state of Florida.
7 Alan was at one time in my position. He's a former
8 chief justice of the Florida Supreme Court. I've had
9 the pleasure of serving with him on numerous
10 commissions and committees dealing with the law,
11 dealing with Bar work.
12 In addition to that, I've had the pleasure of
13 sitting and listening to his arguments before the
14 Court during the last ten and a half years that I've
15 been on the Court, sometimes, Alan, ruling with you,
16 other times ruling against you, which shows that, of
17 course, my appointment of you to this particular
18 position is completely impartial.
19 Alan will be a tremendous asset. In my opinion,
20 he's one of the leading constitutional lawyers in the
21 state of Florida. Thank you, Alan.
22 And last but not least, Gerald Wetherington.
23 Gerald Wetherington is also a person that I've worked
24 with for many, many years. At one time he was my boss
25 when I sat as a circuit court judge in Dade County.
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1 He was a circuit judge in Dade County for over 20
2 years. Ten of those years he served as the chief
3 judge, and it's not an easy job riding herd over 90-
4 some-odd judges the way you have to do if you have
5 that position in Dade County, and I was privileged to
6 work with him while on that court.
7 He also is one of the leading constitutional
8 authorities in the state of Florida and he has taught
9 at numerous law schools, among which have been the
10 University of Miami, Duke University, Hastings College
11 of Law, and more recently this last semester in the
12 South Texas College of Law.
13 He is the senior partner in the law firm of
14 Wetherington, Klein & Hubbard in Miami, and we welcome
15 you to the Commission as well.
16 Mr. Chairman, those are my appointees.
17 THE CHAIRMAN: Thank you, Commissioner Kogan.
18 I now would like to call on a former chief
19 justice and currently the longest serving justice on
20 our Supreme Court, a friend, a constitutional scholar
21 who teaches the constitution at FSU Law School, has
22 written many law review articles and is a member of
23 the 1978 Constitution Revision Commission. He sat
24 next to me right where -- I sat where Ms. Rundle,
25 Commissioner Rundle is sitting, and he sat where
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1 Commissioner Brochin is sitting, and as a result of
2 that, I lost four straight cases in the Supreme
3 Court. He did not think that I treated him fairly
4 while he was here, but he treated me fairly and he
5 always has, and now he's a native of Green Bay, though
6 he's been in Florida most of his life. His wife
7 Marilyn is one of our most charming residents of
8 Tallahassee.
9 Justice Overton, if you would please move down
10 front and I believe your preference is that we swear
11 in the members five at a time. So we will call on you
12 by rows to come up front so that a photograph can be
13 made of the Chief Justice swearing each of you in. So
14 we will start with the row -- the first row on my
15 right, which includes this group right here. Would
16 you please come forward and, if you would place them
17 where they go there, Chief Justice?
18 JUSTICE OVERTON: Face your other Commission
19 members. The rest of you take note as to how they've
20 formed themselves.
21 Would you raise your right hand and repeat after
22 me. I -- and state your respective names -- do
23 solemnly swear or affirm that I will support, protect
24 and defend the Constitution and the government of the
25 United States and of the State of Florida, that I am
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1 duly qualified to hold office under the Constitution
2 of the State, and that I will well and faithfully
3 perform the duties of a member of the Constitution
4 Revision Commission on which I am about to enter, so
5 help me God.
6 (Commissioners responded in the affirmative.)
7 JUSTICE OVERTON: Congratulations.
8 THE CHAIRMAN: All right. The next row, please,
9 that would come up. Incidentally, they will give you
10 a form which is a written oath of office which we have
11 notaries here to execute for you, and they will be
12 passed out to you as you return to your seats.
13 The next row coming up, Mr. Justice Overton is
14 the one on your right.
15 JUSTICE OVERTON: So you know what's going on,
16 you have to sign your oaths, and they have notaries
17 over there to sign your oaths.
18 (Commissioners sworn.)
19 JUSTICE OVERTON: Congratulations.
20 THE CHAIRMAN: Thank you. Would you have the
21 next row -- they're going this way, Judge, if we're
22 going to avoid a traffic jam in the back. Justice
23 Kogan -- excuse me -- if Commissioner Kogan's row
24 will please come forward?
25 (Commissioners sworn.)
26
1 THE CHAIRMAN: Commissioner Mills, would you
2 bring your row forward, please?
3 I think you better place Commissioner Sundberg in
4 the middle.
5 (Commissioners sworn.)
6 THE CHAIRMAN: The next row, please, will be
7 Commissioner Connor's row.
8 (Commissioners sworn.)
9 THE CHAIRMAN: All right. The next group will
10 -- let's see, Ms. Rundle, is it your group or have you
11 already been? I'd like to ask everybody in the
12 chamber, it's perfectly fine to visit and move around
13 when we're doing this, but would you please try to do
14 it quietly, which I think is being done so far? Thank
15 you very much.
16 (Commissioners sworn.)
17 THE CHAIRMAN: Commissioner Butterworth's row I
18 believe would be next. The alternates should wait.
19 They will be sworn separately. Also, the two of you
20 can come up, Commissioner Barkdull and Commissioner
21 Lowndes, and that will -- and then, Commissioner
22 Coates, you come on up. We'll try to get six in this
23 picture, and the alternates will come next
24 separately. Can you handle six, Judge?
25 JUSTICE OVERTON: We can handle six. We've got
27
1 to take care of you, too.
2 (Commissioners sworn.)
3 THE CHAIRMAN: Now the alternates, please.
4 Commissioner Thompson, would you take the chair
5 while I go down and get sworn after this group,
6 please?
7 (Commissioners sworn.)
8 JUSTICE OVERTON: Mr. Chairman, would you repeat
9 after me, I -- and say your name -- do solemnly swear
10 or affirm that I will support, protect and defend the
11 Constitution and government of the United States and
12 of the State of Florida, that I am duly qualified to
13 hold office under the Constitution of the State and
14 that I will well and faithfully perform the duties of
15 Chairman of the Constitution Revision Commission on
16 which I am about to enter, so help me God.
17 THE CHAIRMAN: I do.
18 Thank you, Commissioner Thompson.
19 I'd appreciate it if everybody would take their
20 seats and we will come back to order.
21 Before we start with the presentations from the
22 appointing authorities, I would like to deliver to you
23 -- take the personal liberty of making a few personal
24 comments and comments to the Commission as we start.
25 First of all, I want to thank Governor Chiles for
28
1 appointing this group of 15 that he appointed, and
2 particularly I want to thank him for appointing me
3 chairman of this group. I've known Governor Chiles
4 longer than we admit. I've known he and Mrs. Chiles
5 for well over 40 years, 45 years, and I can assure you
6 that he is not only a friend, but he is one of the
7 most honorable public servants that I've ever known,
8 and I'm honored to have been appointed by him to this
9 post. I will try to make your selection a good
10 judgment, Governor.
11 Now that the distinguished authorities have
12 presented their selections and been sworn to perform,
13 and we've been sworn to perform this office, I want to
14 say a few things in my role as chairman.
15 First, I'll conduct the business of this
16 Commission with impartiality and fairness. All
17 legitimate views will be given a full hearing so long
18 as they are presented in a reasonable way in keeping
19 with the rules of common courtesy and decorum.
20 The committees appointed by me as chairman will
21 be selected with the advice and counsel of a rules and
22 procedures committee which will be composed of members
23 from each appointing authority with no single group
24 having a majority of that committee.
25 I believe, as we become the Constitution Revision
29
1 Commission of 1997-98, that that the thing we all
2 share is to study and consider any needed improvements
3 which will make us a collegial, impartial -- and I
4 capitalize that word -- group. We will find when we
5 hold the public hearings, as the Constitution
6 requires, that our understanding and appreciation of
7 the vast variety of people, business, the land and
8 environment, the religion and the hopes and fears of
9 our fellow Floridians will mold us and lead us to the
10 path for making the 21st century for Florida even
11 better than we dream now that it will be.
12 Parenthetically, I'd like to remark that much is
13 said these days about diversity in selecting groups
14 like ours, and this is indeed a diverse group,
15 diversity as to religion, gender, race, political
16 parties and geography. While this is important before
17 the group is selected, it is not after the group is
18 installed. We are all in the common pursuit of the
19 same goal, perhaps in different ways, but that's the
20 truth of the matter.
21 For the job at hand, we're the ones to do it, and
22 I'd like to illustrate a little by looking back to
23 1787 -- I hate to go that far, but it's the best place
24 to go -- to the U.S. Constitutional Convention held in
25 the wicked city of the day, Philadelphia, and it was.
30
1 It was lawless, it was unsanitized. It was rife with
2 gambling and drinking and all of the good things that
3 the Quakers were said to have done.
4 Our founding fathers were indeed fathers, and
5 they were rich white males with a majority being
6 lawyers. Of the 55 delegates, four of them were owed
7 money by the Continental Congress and 15 owned
8 slaves. They met in total secrecy in the hot summer
9 with the windows boarded and packed with felt so that
10 no word could be heard by, as it was stated by someone
11 at the time, the rabble-rousing press. Today we would
12 call this entire setup intolerable, but out of this
13 group came the greatest blueprint for freedom the
14 world has known, the American democratic republic.
15 The delegates accomplished such long-range goals
16 that now we have a stable monetary system, universal
17 suffrage, including granting women the right to vote,
18 oh, just recently to some of us, in 1920. My father
19 was a freshman or a sophomore at the University of
20 Florida then. Due process we have, jury trials. A
21 person cannot be sent to jail without a jury
22 convicting him. That's different than many countries,
23 and all citizens are the same before the law. These
24 are now our rights, which we take for granted.
25 If they could do that as encumbered as they were
31
1 with a lack of any diversity, save intellectual
2 differences, we will be remembered not for our makeup
3 but for our accomplishments, even though we're a truly
4 diverse group. I would like to quote Benjamin
5 Franklin at the close of this great meeting. He wrote
6 this and had it read. He was pretty old. He was
7 older than anybody here, I think he was in the 80s,
8 and he had a delegate named Wilson read this to them.
9 I'm only going to read part of it.
10 He said, "Mr. President, I confess that there are
11 several parts of this Constitution which I do not at
12 present approve, but I am not sure I shall never
13 approve them, for, having lived long, I have
14 experienced many instances of being obligated by
15 better information or fuller consideration to change
16 opinions even on important subjects which I once
17 thought right but found to be otherwise. It is
18 therefore that the older I grow, the more apt I am in
19 doubt of my own judgment and to pay more respect to
20 the judgment of others. Most men, indeed as well as
21 most sects and religions, think themselves in
22 possession of all truth, and that wherever others
23 differ from them, it is so far error. Though many
24 private persons think almost as highly of their own
25 infallibility as of that of their sect, few express
32
1 it so naturally as a French lady who, in a dispute
2 with her sister, said, 'I don't know how it happened,
3 sir, but I meet with nobody but myself that is always
4 right.'
5 "In these sentences, sir, I agreed to this
6 Constitution with all its faults, if there are such,
7 because I think a general government is necessary for
8 us, and there is no form of government but what may be
9 a blessing to the people if well administered, and
10 believe further that it is likely to be well
11 administered for a course of years and can only end in
12 despotism as many other forms have done before it when
13 the people shall become so corrupted as to need
14 despotic government, being incapable of any other. I
15 doubt, too, whether any other convention we can obtain
16 will be able to make a better Constitution."
17 Incidentally, when he -- this is not all of
18 that. There was about four or five more paragraphs of
19 it, but when he finished and they were sitting there
20 and they were voting and deciding then to go -- all go
21 up and sign this document, he turned to the fellow
22 next to him and said, "I've been sitting here through
23 this whole thing, and there's a picture of the sun
24 that I keep looking at behind the president," and he
25 said, "Like most painters, they can never distinguish
33
1 between a rising sun and a setting sun," and he said,
2 "I've been sitting here the whole time wondering which
3 way this sun was moving." And he turns to him and he
4 says, "I am now convinced that it is a rising sun,"
5 and indeed it was.
6 I hope when we end our task that we can echo
7 these words of Dr. Franklin about considering the
8 views of others and by accepting things that we may
9 not agree with, by changing our mind upon
10 consideration, but be assured as your chairman I am
11 going to try my best to do what is right for this
12 group and for the people of Florida and to be
13 honorable and fair after receiving input from you on
14 all phases of my chairmanship. Together we can and I
15 feel certain will offer a well considered final
16 product.
17 Now, with these remarks, I'm indeed privileged to
18 ask for some remarks from some people who have a great
19 perspective of what's right for the people of Florida,
20 whether we agree with them or not, and I would like to
21 first call on Governor Lawton Chiles to present
22 remarks to the Commission.
23 Incidentally, we are running exactly on time.
24 Governor Chiles, you may come up here if you'd
25 like or y'all may speak from -- whichever you prefer.
34
1 You can either speak from there or up here.
2 GOVERNOR CHILES: You did have to mention that
3 about time just as I came up, that we were on time.
4 I thank you, Mr. Chairman, and Commissioners.
5 I'm delighted to be here as you launch your work for
6 the Constitution Revision Commission.
7 Napoleon once said that constitutions should be
8 short and vague. I guess that's because he appointed
9 all the judges so he could take out the vagaries in
10 that time.
11 Florida's Constitution is a living document that
12 provides a strong framework to address the hopes, the
13 wishes and the dreams of our state's citizens. In
14 President Washington's farewell address, he said, "The
15 basis of our political system is the right of people
16 to make and to alter their constitutions of
17 government." How true. Constitutions must be
18 flexible. They must be capable of changing to meet
19 the needs of a new generation of Floridians.
20 Our Constitution also has to reflect our ideals
21 as well as our goals. Your task is to conduct a
22 review and to recommend changes that need to be made.
23 I had an opportunity to serve on the 1968
24 Revision Commission. This was the first comprehensive
25 revision of the Constitution since 1885. We saw that
35
1 the needs of our state had changed much since the 19th
2 century and we set out to bring our Constitution, with
3 Florida, out of the late 20th century.
4 You have an historic opportunity to shape a
5 document that addresses the Florida of a new
6 millenium. This Constitution Revision Commission
7 certainly can learn a lot from the past efforts. The
8 1978 Commission marked the last time that we reviewed
9 our Constitution. Chairman Douglass served on that
10 Commission as well as Judge Barkdull.
11 Back in '78 the Commission had an ambitious set
12 of reforms. It proposed some 59 changes and seven
13 different amendments. Among those recommendations
14 they would eliminate an elected cabinet and replace
15 the state Board of Education with a nine-member
16 citizens' board, included sex as a protected class
17 under the declaration of rights, provided an appointed
18 Public Service Commission, provided for merit
19 selection and retention of trial judges, established
20 the right to privacy.
21 A number of those things later passed, but we
22 know that the good work of the '78 Commission came to
23 naught because it was turned down. There were too
24 many proposals, and we had just reviewed the
25 Constitution in 1968.
36
1 I trust that we will learn by that former
2 experience. The '78 proposals did reflect the
3 optimism of the public. I'm not sure that we still --
4 we sit with a public that is quite as optimistic
5 perhaps as it was in '78, but these are hurdles that
6 the Commission must clear.
7 In the '78 Commission, it was thought that we
8 needed an overhaul of government. I think maybe we'd
9 be better off to work on a tuneup. I want to see the
10 Commission be able to do some good work. I think that
11 work needs to be focused.
12 I'd like to suggest just two things that I hope
13 you will address. One is the initiative process,
14 support allowing citizens to gather signatures and
15 place issues before the people. I support that, but
16 I'm concerned about the number of groups trying to buy
17 their way onto the ballot. Our government is one of
18 the people and for the -- by the people and for the
19 people, not one of the dollar, by the polls and for
20 the big money special interests. I think our
21 Constitution reflects that.
22 When we placed the citizen initiative selection
23 into the Constitution -- and we did that in '68, and I
24 was a member of the group that did that -- we never
25 imagined that people would pay to put initiatives on
37
1 the ballot. We never imagined that there would be the
2 kind of propositions that would come before us under
3 special interests that would be able to set those up.
4 This practice flies in the face of what representative
5 democracy is all about.
6 In a representative democracy, we elect officials
7 to act on behalf of the people. That's an important
8 concept for us to understand. In discussing the
9 importance of representative democracy in the
10 constitutional convention of 1787, Alexander Hamilton
11 said, "Real liberty is neither found in despotism or
12 the extremes of democracy but in moderate
13 governments." The framers of the U.S. Constitution
14 knew the value of representative democracy.
15 We can't and shouldn't put every issue to a vote
16 of the people. It undermines the framework of
17 representative democracy. It weakens the
18 Legislature. It is bad for the state and the country.
19 Another issue that I hope the Commission will
20 tackle is the structure of the executive branch of
21 government. In 1995, we empaneled a citizens'
22 commission on Cabinet reform. Governor Askew chaired
23 that commission, which was a good, bipartisan
24 commission with representatives of both parties
25 meeting on that. That commission looked at a number
38
1 of items designed to make the executive branch serve
2 the people better. It presented many worthwhile
3 ideas to streamline and simplify the Governor and
4 Cabinet's duties.
5 Being constitutionally prohibited from seeking
6 another term, this doesn't affect me. It does impact
7 on the people of Florida. I hope you will take a hard
8 look at the Askew Commission's work and improve the
9 Governor and Cabinet system.
10 Each you have a number of ideas about what needs
11 to be changed in our Constitution. There are
12 certainly more items that I could list to you this
13 morning that I'd like you to review, but this is a
14 long process, and today is just the beginning.
15 You have a major responsibility. Your work in
16 the coming months will be difficult. It will be long,
17 but it will also provide you an opportunity to know
18 and to serve the people of the state of Florida. I'm
19 confident that it will be something that you will look
20 back on and say that you're proud that you had an
21 opportunity to make this service. I trust it will be
22 a rewarding experience, and I thank you for giving
23 your time and energies to this endeavor.
24 Thank you, sir.
25 THE CHAIRMAN: Thank you very much, Governor.
39
1 Our next speaker in order of the appointing that
2 they did, I would like to call on again the second
3 lady president of the Senate who is, however, the
4 first Republican lady president of the Senate, the
5 very outstanding president who served so well in her
6 first term that's made these appointments, and is one
7 of our Commissioners for which we're indeed very
8 thankful that you chose that choice. Commissioner
9 Jennings, would you please come forward?
10 COMMISSIONER JENNINGS: I just say it feels more
11 comfortable being up here.
12 It's wonderful to look out and see your faces,
13 see your energy, see your expertise that you are going
14 to share with each of us. We have a fairly daunting
15 task ahead of us, if you think about it. We are going
16 to evaluate the very foundation upon which all of our
17 laws are built, and when you think about how you build
18 a house or you build a building, the foundation is the
19 solid part of it. You may change, you may add on, you
20 may even demolish and start again, but usually the
21 foundation remains the same, and I think first and
22 foremost we should not be predisposed to change.
23 Just because the Constitution says we will have a
24 Constitutional Revision Commission every 20 years,
25 because we are here we should not immediately believe
40
1 that it is important to change that basic document.
2 That being said, we also want to make sure that we
3 look at all of those ideas that come before us and
4 make sure that we adopt a document that can last for
5 another two decades and on into the future. I think
6 that's what your chairman was saying as we were
7 talking about our the founding fathers, if we think
8 about the intellect, the foresight that it took to
9 prepare us for where we are today in our U.S.
10 Constitution.
11 First and foremost, that document should include
12 our shared beliefs that move us forward and eliminate
13 anything that holds us back. Think about what this
14 state was like 20 years ago when we did this before,
15 and 20 years sounds like such a long time until
16 Senator Scott and former Represenative Evans-Jones and
17 former Senator Langley and I remember that we were
18 here. We were not part of the Commission, but we were
19 here, and we hope we're somewhere still around 20
20 years from now.
21 But 20 years ago we were the eighth largest
22 state, not the fourth as we are today. Our population
23 was somewhere in the neighborhood of nine million
24 people, it is now fourteen, and if we are to believe
25 the Census Bureau, by 2015, right before we get ready
41
1 to do this again, we will be the third largest state
2 in the nation.
3 If someone had asked me 20 years ago about my
4 home page, I would have thought perhaps they were
5 talking about a book with pictures of my house in it.
6 Think of what technology has done for us. We were
7 discussing that earlier, and as we think about these
8 changes, we need to prepare ours to look forward, and
9 this is the vision -- sometimes we in the Legislature
10 do well to look to the next year. When you think we
11 are looking two decades ahead, that is a true vision
12 that we are asking you to share and to find for us as
13 we approach this task, just where we may be.
14 Twenty years ago, 17 percent of our population
15 was over the age of 65 here in Florida. Today, a
16 fifth of our population is over the age of 65, and 20
17 years from now it is said that one in four will be
18 over the age of 65. Just that one tangible part as we
19 look to the future could change a great deal of our
20 perspective.
21 Tomorrow we'll discuss the rules, and in thinking
22 about that, I have a couple of suggestions. The last
23 year in the Florida Senate -- well, for a number of
24 years, but in the last year especially, we have tried
25 to focus on what we call smart government. Now, there
42
1 are those that say that's an oxymoron to say smart
2 government, but we've tried to focus on deliberative
3 democracy, and for us in the Senate that meant maybe
4 doing things a little bit differently, quitting on
5 time, not coupling many issues together in what we
6 call trains, taking a diverse amount of issues and
7 putting them in the one bill and moving them on,
8 rolling bills over to the next day when we've amended
9 them so that we will have the time to look at them and
10 debate them. And I think, as I look at what we will
11 be doing, Mr. Chairman, that brings me to the thought
12 that there are some of those things we should share
13 here with this group.
14 The issue of single subject I think should be
15 very important to us as we debate. We found -- and
16 the Governor mentioned it -- that in the last Revision
17 Commission nothing passed. Now, there are lots of
18 reasons as to why, other than the people just didn't
19 think we needed those kind of changes, but again, if
20 we make sure we provide a single, easy-to-understand
21 subject, instead of coupling things together, that
22 might be the best thing of all.
23 As we look at our body -- and we have here a
24 chairman who is fair and good and honest and
25 understands the need to build consensus and to have
43
1 all of us involved. I think we need to make sure that
2 we spread the power amongst us, and the chairman and
3 have I talked about that, and I know that's importnt
4 to him as well.
5 And as we look at the issues, it is almost
6 superfluous to say we need to concentrate on those
7 issues that should be in the Constitution. The last
8 four years -- and you all know there are other ways to
9 amend the Constitution: The Legislature may put those
10 issues on the ballot by an extraordinary vote of the
11 Legislature, the initiative petition method that the
12 Governor mentioned, and what we are doing here today.
13 In the last four years of the Legislature there have
14 been 121 resolutions to change the Constitution. Some
15 of them have passed both houses. Five of them, only
16 five, have actually passed in the last four years. I
17 think that should tell us something.
18 In the last 20 years, there have been
19 approximately 87 that have actually been on the
20 ballot. Sixty-one of those have passed. Today we
21 have 29 initiative petitions, petition initiatives
22 before us. Some the court has before them right now
23 on that single subject issue. They are of such
24 monumental matters as should denture treatment be able
25 to be provided by denture technicians only, or what
44
1 are the holidays -- which holidays should state
2 workers have.
3 I submit to you that those are not the kinds of
4 issues that need to be in the foundation of all that
5 we have here before us. If we think about building up
6 from the ground, we remember where we want those
7 strongest, broadest issues, and that is in that
8 foundation.
9 So some say we should be cautious and some say we
10 should be bold, and I guess I share with you that
11 whatever we do, we should be smart and we should be
12 deliberative and everything that we do should only
13 have the goal to move our state ahead for the next two
14 decades.
15 Thank you, and thank you for the opportunity of
16 being able to serve with you.
17 Mr. Chairman?
18 THE CHAIRMAN: I was thinking when I was
19 listening to you that -- Justice Overton will remember
20 this because he was on the style and drafting
21 committee -- I supported a different ballot
22 configuration than we had in '78, and I was supported
23 only by one other Commissioner, who happened to be
24 Governor Collins, and we felt that you could group
25 them like they did, but we should have a separate, if
45
1 we needed it, paper ballot which dealt with each
2 single issue, and it was decided since we had those
3 old voting machines in those days where you couldn't
4 put everything on the ballot, they'd go with the
5 grouping, but having been around as you have, when you
6 group matters, you destroy the integrity of the
7 ballot, in my opinion, if you group too many. I mean,
8 you can group some things, perhaps, that have to go
9 together, and so I share your views on that subject,
10 and I think, as we go along, we will see that whatever
11 we have, that we will have a vote by the people on
12 what we are proposing, not that you have to take this
13 or that in order to get this, which we see, and the
14 Governor's very familiar with. He's presented with a
15 bill he very much favors but with an amendment he very
16 much opposes. We're all very familiar with that.
17 I didn't mean to respond, but I thought your
18 remarks were very appropriate.
19 I would like to now call on our Speaker, Mr.
20 Daniel Webster, if he would come forward please and
21 give us his remarks. Speaker Webster?
22 SPEAKER WEBSTER: Thank you, Mr. Chairman and
23 Commissioners. This is my last shot. I don't get to
24 stay like the Chief Justice and the Senate President,
25 but I have three things I'd like to bring to your
46
1 attention today, and this will be the last word you
2 hear from me.
3 First of all, I'd like to tell you one thing
4 about how I selected the CRC appointees. When I first
5 became a member of the Steering Commission, in the
6 first meeting there was a video shown presenting an
7 announcement to the public that the Constitution was
8 going to be revised and that we needed to be involved,
9 and it asked me to be informed that actually this
10 process took place every 20 years. It was an idea and
11 a way to inform the public. However, there was one
12 message that I noticed through the video that I though
13 was a little bit discomfiting, and that was it gave, I
14 guess, the perception that the Constitution needed to
15 be revised, and I felt like maybe that was something
16 we wouldn't want to tell the public, and I guess we
17 went back and the chairman got the Constitution out --
18 maybe it was Judge Barkdull -- somebody read it, and
19 it said that -- I think the basis was that only if
20 needed would the Constitution Revision Commission
21 suggest changes to the Constitution.
22 From that I came up with a question to ask
23 people, once I whittled my list down to a group of
24 people, especially the lawyers, I wanted to ask, and I
25 asked them the question: "What do you think of the
47
1 Florida Constitution?" I remember that was the first
2 question I asked when I called Ken Connor and he had a
3 quick, rapid response, and it was a good response.
4 Some said that it's a flawed document. Some said
5 it might need some changes here, there, I have this
6 pet peeve or that pet peeve about it, but I loved his
7 answer, and I can't remember exactly what he said, but
8 he said it was a sound document. I do remember that,
9 and I believe that, and that was the answer I was
10 looking for, and it has served us well and it does
11 contain the basic principle of law. That was the
12 answer I was looking for, people that gave an answer
13 similar to that when I spoke with them over the phone
14 or in person.
15 And the other thing that was said by some was it
16 should not contain substantive law. That's left for
17 the Legislature, and I would challenge you to leave it
18 that way.
19 Then the second thing which has already been
20 mentioned are the rules. I think they're the basis of
21 operation. I think they're a document that defines
22 the process for me. I was, 16 years of my 17 years in
23 the House, I was in the minority, I was on the back
24 row. Actually James Harold and Jon Mills are here,
25 they moved from a position similar to where they are
48
1 to the front. I moved all the way from the back row
2 to the front, and so I observed the operation of the
3 House maybe a little bit differently than even they
4 did when they were here. I saw a pyramid of power
5 which I wanted to push down and spread out. I wanted
6 to involve as many members as possible into the
7 process, and I would encourage you with your rules to
8 do the same.
9 I had a very strong desire to include anyone who
10 wanted to be player. Everyone who -- as has been
11 mentioned, there is diversity on this Commission, and
12 every one of you have certain abilities and
13 capabilities and thoughts, and I think all of those
14 thoughts need to be brought to the table at one time.
15 I would also encourage you to include in the
16 rules not just the provision for open meetings, but
17 even more specifically, there ought to be accurate and
18 specific announcements of when the meetings would be
19 held, but not only that, but what would be discussed,
20 and there would be opportunities to receive the
21 documents before the discussion takes place on
22 proposals and amendments to those proposals, and I
23 would encourage you to place those in the rules.
24 Then third is the basis for the CRC. Review
25 carefully, review rigorously, but revise cautiously.
49
1 Maybe the best revision is no revision.
2 THE CHAIRMAN: Thank you very much.
3 And, Commissioner Kogan, if you would please come
4 to the podium and give us your wisdom, sir?
5 COMMISSIONER KOGAN: Mr. Chairman, I hope I can
6 impart some words of wisdom, but, as you know, when
7 you follow everybody else and you're the last speaker
8 for the day or at least for that particular section,
9 sometimes everything has been said before you get
10 here.
11 There are certain things, however, I want to call
12 to your attention. First of all, let's remember that
13 the Constitution that we're talking about is the
14 organic law of this particular state, and from that
15 everything else springs, and consequently, it's our
16 duty to look at that very cautiously, very carefully.
17 One of the things that we might consider, and
18 that is the possibility of streamlining some of the
19 things that are now in the Constitution. I think
20 President Jennings touched upon some of the
21 initiatives that have come up. Well, unfortunately,
22 some of those initiatives over the years have made it
23 onto the state Constitution, and there are such things
24 in there as gill nets and how we use them for fishing
25 and things of that nature which really are not the
50
1 organic law of the state of Florida. Essentially
2 that's the law that should be left in the hands of the
3 state Legislature in their wisdom to decide, and these
4 are things that we certainly ought to look at, along
5 with others that I will not mention at this time, but,
6 of course, we will be discussing as we go along.
7 The important thing in my looking at any document
8 that is a Constitution are two things: Number one,
9 how we define the powers of government in that
10 particular document, what it is that government has
11 the power to do and what it is that the government
12 should not have the power to do; and secondly, what
13 are the rights of our citizenry, what rights do we say
14 that our citizens have, and what rights do we reserve
15 to the State, itself? And these are things for us to
16 consider and look at very, very cautiously.
17 I found it very interesting when you were talking
18 about, Dexter, the grouping of things on the ballot.
19 This is something that we deal with all the time in
20 our court. We call it the single subject matter, and
21 that's the whole purpose of single subject. You can
22 take three or four different items and group them
23 together, but the problem with that is, when somebody
24 looks at that, they may be in favor of three of those
25 but opposed to the fourth and automatically they'll
51
1 say, "I have no choice but to vote down because I
2 don't like the fourth one, although I like three." So
3 I think that's something that we have to consider,
4 putting these things on the ballot as single subject,
5 single issues to let people take a look at.
6 I also say that because we are a Commission, that
7 doesn't mean that it's necessary for us to go ahead
8 and in fact do a complete overhaul of the state
9 Constitution. If it's not called for, let's not do
10 it. Let's address those things that we feel need to
11 be addressed and not just meet here for the purpose of
12 changing everything.
13 And one final word that I'd like to add to all of
14 this, and that is, remember now that this is not
15 something that we are doing together along party
16 lines. No one should take a party line. No one
17 should take a particular stand because their
18 particular political party or affiliation demands
19 they take such a stand.
20 We are here for the purpose of putting together a
21 Constitution for the people of the state of Florida,
22 and their best interests are our best interests. Our
23 political party affiliations should be put aside.
24 That's not why we are here. We are here to put our
25 collective minds together to produce a document that
52
1 we believe will best serve this state in the future.
2 One of the things we talk about -- and this is
3 the last item I want to discuss with you -- on our
4 court's collegiality, we have seven people on the
5 court who come from different backgrounds, many
6 different philosophies, political and otherwise, but
7 yet we have to deal with each other on a day-to-day
8 basis and therefore we adopted a doctrine of
9 collegiality.
10 Collegiality is very, very simple. It means
11 this. It means that we get together and we agree that
12 we can disagree with each other but in an agreeable
13 manner, so if all of us keep that in mind and we
14 realize that we are agreeing to disagree on different
15 points with each other but yet in an agreeable manner,
16 then I'm sure we will establish a Constitution or
17 revisions that we can be proud of, that the people of
18 this state can be proud of, and offer them a real
19 choice when they go to the ballot box in November next
20 year.
21 So, Mr. Chairman, I thank you again for allowing
22 me to speak to everyone, and I'll turn it back to you.
23 THE CHAIRMAN: Thank you very much.
24 I would at this time like to introduce a few
25 people before -- we're a little ahead of schedule and
53
1 this is the way I hope that we can run our Commission,
2 that we can stay on track and get things done,
3 Senator, like you did, and Mr. Speaker, like you did.
4 I took that to heart. You did a great job.
5 First I would like to ask you the privilege of
6 introducing my wife. She's put up with me for --
7 well, we're going into 42 years. I married her when
8 she was just a little girl, but we met at the
9 University of Florida and when I was a senior in law
10 school, and I fell in love with her, and she's put up
11 with me. My wife, Therese.
12 And one of the products of our love is with us
13 today, my youngest daughter, who runs the office in
14 the Justice Department very strongly, in Washington,
15 D.C. My daughter Lee Douglas.
16 I thank for you indulging me in that moment.
17 I would like to also now present to you the
18 people that will -- that I am recommending will be our
19 staff and who will direct our activities so you will
20 know them.
21 First of all, I would like to call on -- or to
22 rise and be recognized or come forward, Mr. Billy
23 Buzzett. Mr. Buzzett has served as the executive
24 director of the Article V Revision Commission. You
25 can come out front where they can see you, Billy. And
54
1 I think Senator Scott and others would recognize that
2 he was the most efficient person we ever had in that
3 job, and he had I think $280,000, and when he
4 finished, he had $100,000, which is unheard of in
5 these things. So we believe he will serve us well.
6 Billy?
7 And also the secretary of the Senate who we hope
8 to designate, at the pleasure of the President of the
9 Senate, secretary of the Commission, Faye Blanton.
10 Faye, would you please stand?
11 Faye, incidentally, 20 years ago sat up here,
12 around there. She served as the staff person for the
13 Senate who staffed the '78 Commission. So I'm
14 delighted to see her back. She looks just as young
15 and pretty now as she did then, and we're delighted to
16 have her expertise and quality.
17 Also the Sergeant-at-Arms, Wayne Todd, in the
18 back, he is responsible, along with his people, those
19 of you who are familiar with the Senate know that he's
20 a no-nonsense, as are his assistants, in conducting
21 order and decorum.
22 Also I would like to introduce Debbie Kearney,
23 who is over here. Most recently Debbie's General
24 Counsel in the Governor's legal staff, where she did
25 all the work that I didn't do, which was most all of
55
it, and I'm delighted to have her over here.
I have been castigated by the Governor for taking
3 her, but I didn't. She wanted to come and we're just
4 very, very fortunate to have somebody with her
5 background. She was also in the General Counsel's
6 Office for Governor Martinez, and she's a very
7 professional, able and competent lawyer and will serve
8 us well.
9 We have two other staff members, and that's about
10 it. Sue Ellen Cone, who is back in the back, has
11 served me well as the assistant in the legal office
12 for a number of years. She's probably been more
13 involved in the judicial appointments than anybody
14 else connected with our office, and she's well-known
15 throughout the state for that purpose, and I'm
16 delighted to have her.
17 The Governor personally -- really, he never said
18 anything real bad to me, but when he found out Sue
19 Ellen was going with me, we were in an airplane flying
20 somewhere, and he threatened to throw me out of the
21 airplane. So that's how valuable she is.
22 And Jay Peterson, who is replacing me, coming out
23 of retirement, almost didn't because I took Sue Ellen.
24 Lynne Imhoff, who is a Billy Buzzett's major
25 assistant, comes to us from the House of
56
1 Representatives where she has served for a number of
2 years and is quite well-versed in all the matters that
3 we'll be dealing with. She will be one of our very
4 principal people involved in this.
5 So that would be those that would be our staff,
6 and we don't believe -- we might have to have some
7 others but not on any permanent basis.
8 I would like to also point out as Faye just
9 reminded me, that like her in 19 -- like she did in
10 1978, a number of the Senate staff will be backing us
11 and serving in this room as they are right down here
12 now over here. They keep us straight. They do the
13 bill drafting. They engross them. Their committee
14 staffs are available for you for backup support, and
15 I can't tell how much -- I keep saying this, Senator
16 Jennings, but we really -- without these wonderful
17 things that are being provided, we probably would not
18 be able to function very well.
19 Now, we're ahead of schedule, and as most of you
20 know, we do have a luncheon scheduled at noon on the
21 22nd floor of the Capitol, and we'll be going there
22 from here, and it is a lunch where we will have seats
23 and be seated and have an opportunity to socialize and
24 get to know each other a little better before we come
25 back.
57
1 We're going to, with the permission of the group,
2 come back at 1:15 -- let me see, is that correct?
3 Yes, at 1:15, instead of 1:30 as it might appear on
4 your agendas, and we can go from here to there.
5 Also, I would like for those staff people I named
6 to please join us for lunch.
7 If there is nothing else at the moment, Judge
8 Barkdull, I would entertain your motion, sir.
9 COMMISSIONER BARKDULL: I move we recess until
10 the hour of 1:15.
11 THE CHAIRMAN: All in favor say aye.
12 Opposed, like sign.
13 Carried.
14 See you at lunch.
15 (Lunch recess.)
16 THE CHAIRMAN: All right. The Commission will
17 please come to order. All those who are not seated,
18 please try to find your seats.
19 Will the secretary please call the roll?
20 Incidentally, this will be set up for electronic
21 voting later, and they've been working on it, but --
22 they have everybody's name up there, but we will learn
23 how to do that at another meeting and our President of
24 the Senate will tell us how to do it.
25 SECRETARY BLANTON: Alfonso.
58
1 COMMISSIONER ALFONSO: Here.
2 SECRETARY BLANTON: Anthony.
3 COMMISSIONER ANTHONY: Here.
4 SECRETARY BLANTON: Argiz.
5 COMMISSIONER ARGIZ: Here.
6 SECRETARY BLANTON: Barkdull.
7 COMMISSIONER BARKDULL: Here.
8 SECRETARY BLANTON: Barnett.
9 COMMISSIONER BARNETT: Here.
10 SECRETARY BLANTON: Brochin.
11 COMMISSIONER BARNETT: Here.
12 SECRETARY BLANTON: Butterworth.
13 Connor.
14 Corr.
15 COMMISSIONER CORR: Here.
16 SECRETARY BLANTON: Evans.
17 COMMISSIONER EVANS: Here.
18 SECRETARY BLANTON: Evans-Jones.
19 COMMISSIONER EVANS-JONES: Here.
20 SECRETARY BLANTON: Ford-Coates.
21 COMMISSIONER FORD-COATES: Here.
22 SECRETARY BLANTON: Friedin.
23 COMMISSIONER FRIEDIN: Here.
24 SECRETARY BLANTON: Hawkes.
25 COMMISSIONER HAWKES: Here.
59
1 SECRETARY BLANTON: Henderson.
2 COMMISSIONER HENDERSON: Here.
3 SECRETARY BLANTON: Jennings.
4 COMMISSIONER JENNINGS: Here.
5 SECRETARY BLANTON: Kogan.
6 COMMISSIONER KOGAN: Here.
7 SECRETARY BLANTON: Langley.
8 COMMISSIONER LANGLEY: Here.
9 SECRETARY BLANTON: Lowndes.
10 Marshall.
11 COMMISSIONER MARSHALL: Here.
12 SECRETARY BLANTON: Mathis.
13 COMMISSIONER MATHIS: Here.
14 SECRETARY BLANTON: Mills.
15 COMMISSIONER MILLS: Here.
16 SECRETARY BLANTON: Morsani.
17 COMMISSIONER MORSANI: Here.
18 SECRETARY BLANTON: Nabors.
19 COMMISSIONER NABORS: Here.
20 SECRETARY BLANTON: Planas.
21 COMMISSIONER PLANAS: Here.
22 SECRETARY BLANTON: Riley.
23 COMMISSIONER RILEY: Here.
24 SECRETARY BLANTON: Rundle.
25 Scott.
60
1 COMMISSIONER SCOTT: Here.
2 SECRETARY BLANTON: Smith.
3 COMMISSIONER SMITH: Here.
4 SECRETARY BLANTON: Sullivan.
5 Sundberg.
6 COMMISSIONER SUNDBERG: Here.
7 SECRETARY BLANTON: Thompson.
8 West.
9 COMMISSIONER WEST: Here.
10 SECRETARY BLANTON: Wetherington.
11 COMMISSIONER WETHERINGTON: Here.
12 SECRETARY BLANTON: Zack.
13 COMMISSIONER ZACK: Here.
14 SECRETARY BLANTON: Chairman Douglass.
15 THE CHAIRMAN: Here. There is a quorum. We
16 will proceed.
17 Our next order of business are the remarks of
18 former Constitution Revision Commission chairmen. In
19 this case it will be Mr. Chesterfield Smith, the
20 Honorable Chesterfield Smith, who served as chairman
21 of the historic '65 through '68 Constitution Revision
22 Commission.
23 For those of you that don't know Chesterfield, he
24 has been, among other things, one of the great leaders
25 of our state for many years. He has also been one of
61
1 the great leaders of our country for many years. He's
2 had a distinction and a distinctive service as
3 president of the American Bar Association and is known
4 throughout the entire legal profession as one of the
5 most astute thinkers in our profession, who has a sort
6 of a touch at finding out what's best for the people.
7 He probably got that when he was growing up in
8 Arcadia. He's -- other than the cattle, he's one of
9 the great things that left Arcadia, but he grew up
10 there and then he went to practice law with the late
11 Senator -- U.S. Senator Spessard Holland, and he took
12 that firm himself and built it into one of the great
13 legal institutions not only of Florida but of the
14 entire country, and he's recognized by everyone as
15 being a great constitutional scholar, a man of vision
16 who age has not tempered. He was much the same when I
17 first knew him 45 years ago as he is today.
18 If there's one fault that Chesterfield has, if it
19 is a fault, if you ask his opinion, he will give it to
20 you unvarnished and straight from the shoulder.
21 It is my great pleasure to present to you for his
22 remarks to this Commission the Honorable Chesterfield
23 Smith.
24 If you would take the podium where the Secretary
25 is, Mr. Smith, that would be greatly appreciated.
62
1 Let's give him a good welcome.
2 MR. SMITH: Hello. It's pleasing to be here on a
3 historic day before this august group assembled for a
4 singularly important purpose. I had the privilege, as
5 you would suppose, of addressing previous Constitution
6 Revision Commissions, and the honor today is
7 particularly significant. The convening of this
8 particular Florida Constitution Revision Commission
9 will undoubtedly be my last.
10 The eminent chair of this Commission, Dexter
11 Douglass, has advised me that I have an absolute
12 maximum of 15 minutes in which to address this group.
13 This allotment of time reflects a decision, probably a
14 considered decision, buttressed over the years on
15 personal experience, that he should make me shut up
16 quicker and sit down sooner.
17 Back in nineteen hundred and sixty-six, when I
18 was chair of Florida's Revision Commission, I had
19 unlimited time to say whatever I wanted to say and I
20 did say it. Dexter Douglass, Mr. Chairman, remember,
21 it's good to be king, but in your dealings with me,
22 please remember that you too will someday be an ex-
23 king.
24 In the nineteen hundred and seventy-seven
25 Revision Commission I had 30 minutes to address the
63
1 Commission and I used it all. I intend to use much
2 less here today than in nineteen hundred and sixty-six
3 and nineteen hundred and seventy-seven, and I also
4 will make a bold prediction. Some may say I am prone
5 to do that. I promise, I commit that I will not
6 address the next Constitution Revision Commission,
7 which will convene in the year 2017, the year in which
8 I celebrate my 100th birthday.
9 Admittedly, my presence or absence here makes no
10 difference, for no single person, no single idea, no
11 single issue is more important to this Commission than
12 any other person or idea or issue. What matters most
13 in the grand scheme of things, as I see it, is simply
14 this: that we live in a place and a time when the
15 people of this great state can exercise the sovereign
16 power of self-governance, focusing the attention of
17 their best and brightest or some of their best and
18 brightest on the solemn task of examining and re-
19 examining the legal instrument that provides bedrock
20 principles of government in this state.
21 I charge you as a group, as you get about your
22 work, and I charge you collectively, collegially and
23 individually to take this torch, hold it high and
24 carry it forward with confidence and with reverence.
25 Your task, though it may not seem it during the day-
64
1 by-day debate, is overwhelmingly important.
2 Quite obviously I'm also going to urge you, as
3 you have already concluded to do, I know, to apply
4 your knowledge and your experience to the tasks before
5 you in a way that will better carry this great state
6 into the next millenium with the constitutional rights
7 being the very best that people can have.
8 Florida is a sovereign state, and as a sovereign
9 state, its people, of course, are all-powerful. "We
10 the People," Article I, Section 1 of the Constitution,
11 says it simply. All political power is inherent in
12 the people. The people's Constitution is what you're
13 working on, and you will do well to remember that it
14 is just that with which you are about to tinker.
15 Truly, it is primarily a restriction on
16 governmental power. The people of the sovereign state
17 of Florida simply have all power unless and until it
18 is restricted in the Florida Constitution. The United
19 States Constitution is, of course, the opposite. The
20 federal government has no power except that which is
21 granted in the United States Constitution. For that
22 reason, the United States Constitution is much, much
23 smaller in size than the usual state constitutions,
24 much scantier in words by far than Florida's
25 Constitution and, frankly, in my personal opinion, not
65
1 as good as our Constitution, particularly with regard
2 to the all-important protection of its people in the
3 declaration of rights.
4 Indeed, I consider the crowning achievement of
5 our present Constitution to be its declaration of
6 rights, although, of course, that is not the exclusive
7 source of human rights in Florida. Human rights also
8 arise from the common law principles on which this
9 country was founded. Our Declaration of Independence
10 establishes fundamental principles of individual
11 rights such as all people are created equal,
12 government of the people, by the people and for the
13 people, and other truths in which our founders
14 believed but which are not adopted into law.
15 I charge you to be ever mindful of these
16 individual rights, perhaps to expand them and even
17 specifically to include some of them in the
18 declaration of rights, at least to consider it, to
19 reflect modern life and developing trends such as the
20 Internet, the globalization of Florida's economy, the
21 new, improved communication with computerized
22 knowledge systems.
23 Indeed, on all issues before the Commission, I
24 urge -- suggest that you make the human rights of
25 Florida's people your prime guide, your direction, as
66
1 you consider possible revisions to the fundamental law
2 of Florida.
3 No other single area of the law has an equal
4 impact on the day-to-day lives of Florida's citizens
5 as does the area of constitutional human rights.
6 Consider a small sampling of issues that have come
7 before the courts recently, and think about how those
8 issues affect real people in real ways every single
9 day: whether a minor must have parental consent to
10 obtain an abortion; whether competent but terminally
11 ill individuals have a right to medically assisted
12 suicide; whether an employer has a right to refuse to
13 hire smokers; whether same sex couples should be
14 allowed to adopt children.
15 We, of course, can do much with the individual
16 freedoms now protected under Florida's Constitution,
17 but it is probable or at least possible that those
18 specifics can be improved.
19 To protect the rights of the individual citizens
20 of Florida, you must know what they are. Each of you
21 should read them and reread them periodically and
22 often. Consider them carefully: the right to enjoy
23 and defend life and liberty; the right to pursue
24 happiness; the right to be rewarded for industry; the
25 right to acquire, possess and protect property;
67
1 freedom of religion; freedom of speech and of the
2 press; the right to assemble peacefully; the right to
3 instruct representatives; the right to petition for
4 redress of grievances; the right to work; the right to
5 bear arms; the right to due process.
6 And other restrictions that we all know so well
7 in criminal cases: the right to trial by jury; the
8 right to privacy, to be left alone; the right to a
9 uniform system of free public schools and institutions
10 of higher learning; and, of course, many, many more
11 that we as Americans all know and feel comfortable
12 with and like, both explicit and implicit.
13 Now, in Florida's Constitution many that are not
14 specifically contained you will find in the United
15 States Constitution, and we need it, or in the
16 constitutions sometimes of other states. Largely
17 because of these express rights, most people feel that
18 the Florida Constitution protects them as individuals,
19 and generally it does; but even so, we sometimes see
20 in areas of this United States of America notable and
21 tragic exceptions where this Commission in my mind
22 should have as its primary mission the protection and
23 enhancement of the great document that now so well
24 protects our people to ensure that it continues to do
25 even more effectively.
68
1 This Commission will almost certainly be asked to
2 consider dozens of issues. You already have had some
3 suggested, such as the structure of state government;
4 funding for public education; the use of
5 constitutional initiatives or the creation of
6 statutory initiatives; selection and retention of
7 judges; the retirement age of justices; whether the
8 state or local government should pay to operate our
9 trial court system; fiscal home rule powers for local
10 government; keeping or abolishing the homestead
11 exemption and limitations on the device of homesteads;
12 choices in health care providers; the scope of the
13 right to privacy as it affects abortion; assisted
14 suicide; the workplace and the exchange of information
15 over the Internet; and making the Florida Constitution
16 a well-written document, neutral in gender, free of
17 legislative-style enactments. Many other issues will
18 arise.
19 In nineteen hundred and seventy-seven, I took the
20 liberty of giving what to me was then the new
21 Commission my personal views on a number of matters
22 that I thought would come before the Commission. I do
23 not do that day. It has been a long time, not because
24 I lack opinions, which can never be true, but because,
25 as I said in my opening, one person's opinions are
69
1 much less important than the integrity of the process
2 and the care taken to protect and preserve a
3 wellspring of individual rights.
4 I thus urge you foremost and first to make this
5 great state of Florida a leader, a pioneer among
6 states of expanding and protecting human rights.
7 Governmental structure is important, but in its
8 finality not nearly so important as human rights.
9 So, in closing I remind you that in nineteen
10 hundred and seventy-eight the voters of Florida
11 rejected all of the Commission's proposed revisions.
12 I submit that the outcome of that vote was not a
13 failure, and that the work that they did was hard and
14 effective and valuable. It was not a failure, far
15 from it, because the hard work of the Commission
16 provided invaluable insight into the most serious and
17 far-reaching issues facing the state at that time.
18 Happily, many of that Commission's proposals have
19 since found their way somewhere into the law of
20 Florida. Doing the work, doing it right, doing it well
21 thus lays a foundation for long-term success even if
22 it is used in ways not contemplated at its
23 origination.
24 You are called in a great and glorious way to
25 serve the people of Florida in a year-long journey
70
1 into the basic law of the state. Take with you then
2 the heart of a servant, the wisdom of a god, the savvy
3 of a politician, the nurturing care of a parent; for
4 beginning today you are the potential mothers and
5 fathers of Florida's Constitution, foster parents,
6 perhaps, but only for a time, because it does end.
7 Use your time well and you will never, never be
8 sorry. This will be the important assignment of your
9 life. You will never forget the Commission and your
10 colleagues that you grow so fond of as you serve with
11 them.
12 Thank you very much.
13 THE CHAIRMAN: Chester, if I'd known you were
14 going to be that good, I would certainly have given
15 you five more minutes.
16 MR. SMITH: All right, I'll take it.
17 THE CHAIRMAN: Well, you can, if you'd like. I
18 don't want to be accused of cutting anybody off. If
19 you'd like to extend your remarks, I have no
20 objection.
21 Thank you very much.
22 At this time we were going to hear from Sandy
23 D'Alemberte, the '78 Commission chairman. I even
24 asked him to do what Ben Franklin did, which was to
25 write a speech and send it by his general counsel who
71
1 could read it, and he informed me that he was not too
2 secure whether his general counsel could read it. So
3 we're going to miss him today, but I'm sure at some
4 point during our service, when he is available, he
5 will appear before us. He had to go to Europe, I
6 believe. Is that not correct? So he could not be
7 here.
8 The former Commission members that are present, I
9 saw Kenny Plante here earlier today. Is he here? Ken
10 Plante, back up here, let's welcome Ken Plante, who is
11 with us here today.
12 I think other than Justice Overton and myself and
13 Judge Barkdull, I don't believe there are any other
14 '78 members present, or '68, other than the speakers.
15 So at this time we would like to move on to
16 comments by former Commissioners and, out of order,
17 first I will -- in date, at least -- I will ask
18 Justice Ben Overton, who was a Commissioner in 1978,
19 to -- who's already been introduced -- to come forward
20 and give what remarks he feels appropriate.
21 Justice Overton? Please welcome Judge Overton.
22 JUSTICE OVERTON: As you note, I'm more or less
23 the representative of the '78 Commission. I didn't
24 get a chance to go to London which, by the way,
25 Florida State University, as Stan knows, has a part of
72
1 their campus in London.
2 Mr. Chairman, members of the Commission, I'm
3 honored and privileged to have this opportunity to
4 speak to you today. Each of you by your appointment
5 has a very significant responsibility in really
6 defining the way of life for the citizens of this
7 state.
8 Most people really do not understand that our
9 state constitutions are an extremely important
10 document in how we operate in this country. The
11 United States Constitution by design was an incomplete
12 document, written with the complete understanding that
13 it could work only within the framework of then-
14 existing state constitutions. Constitutional scholars
15 have made it very clear that under this federal/state
16 constitutional structure, that the people have the
17 most direct opportunity to structure their own affairs
18 and manage their daily lives in their state
19 constitutions.
20 The establishment of our state government, more
21 particularly, our educational structure, local
22 governmental entities, including county commissions,
23 school boards, local officials, together with our tax
24 structure, how we provide services, what services we
25 are to provide, all of which are defined to a very
73
1 large degree by what is contained in our state
2 Constitution.
3 In these remarks I'd like to just briefly state
4 to you two items that I believe are significant
5 issues, and they are issues that I have been involved
6 with to a considerable degree. The first is
7 technology and its effect on our privacy, and the
8 second, which you have already heard some about, is
9 the initiative process for amending our Constitution.
10 I might say to you that there have been 32 proposals
11 under the initiative process, and I have sat on the
12 court on 31 of those 32 proposals.
13 Technology has already impacted our governmental
14 structure. Because of technology, the public can now
15 hear, see and instantly respond to what public
16 officials are doing.
17 You know, it's kind of interesting -- and I did
18 have an opportunity to make remarks also to the '78
19 Constitution Revision Commission as the appointing
20 authority at that time, and in those remarks at that
21 time I stated this: "Another factor that should be
22 recognized is that changes in our way of life occur
23 very rapidly. Thomas Jefferson said that this country
24 was, quote, 'advancing rapidly to destinies beyond the
25 reach of mortal eye.' That quotation is very true in
74
1 this day and time. Our technology advances continue
2 to surpass our imagination, but our political and
3 economic problems are also increased with the
4 advancement, and who, ten years ago" -- and that was
5 in '77 -- "really understood that personal and
6 financial data on a substantial part of our population
7 could be collected by government or business and held
8 for easy distribution by computer-operated information
9 systems? There is public concern about how personal
10 information concerning an individual citizen is used,"
11 end quote.
12 At the time I made those remarks, the major
13 concern was how to prevent government from intruding
14 into the lives of individuals. Additionally, even
15 though there was concern regarding technology
16 intrusions, few if any of us at that time could have
17 envisioned the advancements in technology that have
18 occurred in the last 20 years. As a result, the
19 public is now looking at a new challenge: the right
20 to be let alone from commercial as well as government
21 intrusion.
22 Recent polls reflect that 80 percent of Americans
23 believe they have lost control of their personal
24 information, and 90 percent favor legislation to
25 provide additional protection. The reason for this
75
1 concern is the direct result of sophisticated
2 technological advances that make it both cheap and
3 easy to categorize and track what was once thought to
4 be private information. Who knows what about you?
5 Technology has made it possible to pry into
6 almost every area of our lives. Where we were once
7 warned to watch out for "Big Brother," the government,
8 we are now being cautioned to look out for little
9 brother, meaning private parties and entities.
10 Just how is our privacy invaded in this respect?
11 Consider these examples.
12 Whenever you use an automatic teller machine,
13 purchase something from a store, purchase an airline
14 ticket, rent a movie or a hotel room, surf the
15 Internet or simply use the telephone, an electronic
16 record is generated. All of these activities can be
17 traced and included in various databases which act as
18 storage banks for this information. Through a process
19 called data matching, a compilation of your purchases
20 and activities can be sorted and matched to form
21 a profile listing your personal tastes, buying
22 patterns and lifestyle.
23 As one author has stated, "The information is
24 digitized, linked, packaged, sold and resold." New
25 technology has made access to this type of personal
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1 information very accessible, and let me give you an
2 example. With very -- before I do, but with very
3 little effort, information can be obtained regarding
4 your credit files, driving records, health records,
5 employment files, vehicle registrations, Social
6 Security information, believe it or not, warranty
7 registrations, music club purchases, charitable
8 donations, magazine subscriptions, mail-order and
9 catalogue purchases and frequent flier records, and
10 the list goes on.
11 Details of our finances and family structure are
12 also available on some databases. While restrictions
13 are placed and are being placed, at this time
14 obtaining some of this information with relatively
15 minor effort is an easy task.
16 In writing a Law Review on this subject, we
17 tested the type of information that is available by
18 using a very basic database that the lawyers know
19 about, Weslaw, called Information America. We put in
20 my name. In less than 15 minutes, we had my full
21 name, the address of my Tallahassee residence, my
22 telephone numbers, date of birth, Social Security
23 number, and the same information for my wife. They
24 had my wife's birthdate in two locations. She was 20
25 years younger in one of the dates. She wanted to keep
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1 that one. The median income for my neighborhood,
2 which was approximately right, the median value of the
3 homes in my neighborhood, which was approximately
4 right, the names of my ten closest neighbors, their
5 addresses and telephone numbers, similar information
6 on a condominium that I own in St. Petersburg,
7 together with the names, addresses and telephone
8 numbers of five neighbors in the condominium, and all
9 that information, including the names, addresses and
10 telephone numbers of the neighbors, was correct.
11 In addition, we were able to obtain information
12 from the county property appraiser reports on the
13 Internet detailing the property values, square
14 footage, mortgage value of my property, and by placing
15 into the computer my address and ZIP code, we were
16 also able to obtain a map to my residence with the
17 details of how to reach my home, and the details they
18 gave included the shortcut that I take that I don't
19 ordinarily give to people when they drive to my house.
20 Now, today we use a vast array of electronic
21 communication gadgets, such as cell phones, portable
22 phones, pagers and computers, that are all creating
23 avenues for privacy invasions. While technology has
24 made our lives easier and in many respects has
25 provided our lives with useful information, and that
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1 can be received basically at the touch of a button, it
2 has also opened wide a door for our privacy to be
3 invaded.
4 Why, you ask, should you be interested in this
5 subject matter? The reason is because the United
6 States Supreme Court has declared that the protection
7 against invasion of privacy by non-governmental
8 entities is a state, state responsibility. In
9 distinguishing an individual's privacy from
10 governmental intrusion, the United States Supreme
11 Court said this: "The protection of a person's
12 general right to privacy, his right to be let alone by
13 other people is, like the protection of his property
14 and his very life, left largely to the law of the
15 individual states. As a result, any constitutional
16 protections from intrusions by private persons or
17 commercial entities in the area of informational
18 privacy in this new age of technology will have to
19 come from the states."
20 Clearly, privacy concerns in the age of
21 technology are in their infancy. How we should
22 protect those concerns is in an evolutionary state.
23 And the next whatever is done, it has to be done with
24 the understanding of our existing public records
25 constitutional provision in Article I, Section 24.
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1 While our Constitution does contain an explicit
2 privacy provision to protect individuals against
3 government intrusion, it does nothing to protect
4 against intrusions by non-government intrusion.
5 To correct this omission, I suggest that it is
6 important for the Commission to consider a provision
7 that would expand our current privacy provision to
8 include the right to be let alone and free from
9 private intrusions as well as government intrusions.
10 How to craft that is not easy, and it will have to
11 provide adequate protection yet be flexible enough to
12 maintain our open public records philosophy and also
13 allow technology to develop in a manner that benefits
14 us all.
15 Now, I might say Katherine Giddings and I have
16 written a Law Review article that sets forth and
17 details this problem with the citations and some of
18 the comments that I've made, in which there's some
19 suggested solutions, and it will be made available to
20 you by Florida State University in their September
21 constitutional revision Law Review article.
22 The second subject is one you've already heard
23 about, and you're probably going to hear more about it
24 than you want to hear about it, and that's the
25 initiative process for amending the Constitution. At
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1 this time both proponents and opponents of
2 constitutional initiatives, when they're before the
3 court, seem to me unhappy about how that process has
4 worked. This is especially true, I'm sure, about
5 those who have had proposals rejected from placement
6 on the ballot after expending a substantial amount of
7 time, money and effort.
8 Others believe that most proposals should be
9 considered as statutes rather than constitutional
10 amendments, and that proposers have no understanding
11 about how a particular proposed initiative will affect
12 other provisions of the Constitution.
13 As I noted to you, there have been 32 proposals
14 presented to the Supreme Court of Florida for approval
15 for presentation on the ballot. As I stated, during
16 my tenure, I've sat on 31 of those decisions. In 13
17 of those cases we have rejected a proposal for the
18 ballot.
19 I think you should understand that under the
20 present Constitution, the Court's responsibility is
21 very limited. It's limited to two issues. First, the
22 Court must review whether the proposed amendment
23 embraces more than one subject, and second, the Court
24 must review whether the ballot title and summary
25 describing the proposed amendment is misleading.
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1 The initiative process is one of five ways that
2 the Constitution may be amended. It is, however, the
3 only method that requires a proposed amendment embrace
4 but one subject. That single-subject requirement was
5 determined to be necessary by the drafters because,
6 unlike the other amendment procedures, the initiative
7 amendment procedure does not provide a filtering
8 legislative process for the drafting of any special
9 proposed constitutional amendment. The other methods
10 afford public hearing and debate, not only on the
11 proposal itself, but also in the drafting and content
12 of the proposal in and full consideration about how it
13 affects other existing provisions of the Constitution
14 without expressly referring to them in the proposed
15 amendment.
16 It has been a major, major concern for me that
17 proponents of constitutional amendments would freely
18 admit in oral argument that they do not know, do not
19 know how important parts of their proposals would be
20 applied and that it should be left to the discretion
21 of the Court to make that determination. In one
22 instance, the proponent stated that not only did they
23 not know which constitutional provisions were amended
24 by their proposals, but it was the responsibility of
25 the Court to identify and redraft the amended
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1 provisions by judicial construction after the people
2 adopted the proposal.
3 I just don't think the '68 Constitution Revision
4 Commission had that idea for the Court in mind when
5 they put this proposal within the Constitution.
6 How a proposed constitutional amendment is going
7 to be integrated into the Constitution as a whole is
8 extremely important, and the public needs to know what
9 parts of the existing Constitution are going to be
10 affected by any proposal. In my view, the initiative
11 process must remain in some form. I believe any
12 proposal to eliminate the process would be totally
13 unsuccessful.
14 I do suggest the following for your
15 consideration. You're going to have your multiple
16 alternatives, and I think that's part of our
17 responsibility and process. First, the initiative
18 process would begin as it currently is structured, by
19 requiring the collection of the necessary signatures
20 from the required congressional districts. The second
21 step would be the presentation of the proposals to an
22 independent body, such the Constitution Revision
23 Commission, such as this group here, that would be
24 convened every four to six years. That Commission
25 would then have the authority to review and modify a
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1 proposal so that it could be integrated into the
2 present Constitution appropriately or, in the
3 alternative, write it as a statute. The Commission
4 would then place the proposal as either a statute or a
5 constitutional amendment on the ballot.
6 Now, the second issue that the Court has in its
7 responsibility is the problem with misrepresentation
8 contained in either the ballot title or ballot
9 summary. We have taken a number of provisions off the
10 ballot because that -- not the substance part of it,
11 but because that ballot title and ballot summary
12 misrepresents what |
