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7 STATE OF FLORIDA
8 CONSTITUTION REVISION COMMISSION
9 Meeting of June 17, 1997
10 The Senate Chamber
11 The Capitol
12 Tallahassee, Florida
13 9:30 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: Please go ahead and call the
3 roll. You can note Justice Kogan asked to be excused
4 and was excused today, he can't be here today, and Mr.
5 Butterworth is in Washington and asked to be excused,
6 and he's excused.
7 SECRETARY BLANTON: Alfonso.
8 COMMISSIONER ALFONSO: Here.
9 SECRETARY BLANTON: Anthony.
10 COMMISSIONER ANTHONY: Here.
11 SECRETARY BLANTON: Argiz.
12 Barkdull.
13 COMMISSIONER BARKDULL: Here.
14 SECRETARY BLANTON: Barnett.
15 COMMISSIONER BARNETT: Here.
16 SECRETARY BLANTON: Brochin.
17 COMMISSIONER BROCHIN: Here.
18 SECRETARY BLANTON: Connor.
19 COMMISSIONER CONNOR: Here.
20 SECRETARY BLANTON: Corr.
21 COMMISSIONER CORR: Here.
22 SECRETARY BLANTON: Crenshaw.
23 Evans.
24 COMMISSIONER EVANS: Here.
25 SECRETARY BLANTON: Evans-Jones.
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1 COMMISSIONER EVANS-JONES: Here.
2 SECRETARY BLANTON: Ford-Coates.
3 COMMISSIONER FORD-COATES: Here.
4 SECRETARY BLANTON: Friedin.
5 COMMISSIONER FRIEDIN: Here.
6 SECRETARY BLANTON: Hawkes.
7 COMMISSIONER HAWKES: Here.
8 SECRETARY BLANTON: Henderson.
9 COMMISSIONER HENDERSON: Here.
10 SECRETARY BLANTON: Jennings.
11 COMMISSIONER JENNINGS: Here.
12 SECRETARY BLANTON: Langley.
13 COMMISSIONER LANGLEY: Here.
14 SECRETARY BLANTON: Lowndes.
15 COMMISSIONER LOWNDES: Here.
16 SECRETARY BLANTON: Marshall.
17 COMMISSIONER MARSHALL: Here.
18 SECRETARY BLANTON: Mathis.
19 COMMISSIONER MATHIS: Here.
20 SECRETARY BLANTON: Mills.
21 COMMISSIONER MILLS: Here.
22 SECRETARY BLANTON: Morsani.
23 COMMISSIONER MORSANI: Here.
24 SECRETARY BLANTON: Nabors.
25 COMMISSIONER NABORS: Here.
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1 SECRETARY BLANTON: Planas.
2 COMMISSIONER PLANAS: Here.
3 SECRETARY BLANTON: Riley.
4 COMMISSIONER RILEY: Here.
5 SECRETARY BLANTON: Rundle.
6 COMMISSIONER RUNDLE: Here.
7 SECRETARY BLANTON: Scott.
8 COMMISSIONER SCOTT: Here.
9 SECRETARY BLANTON: Smith.
10 COMMISSIONER SMITH: Here.
11 SECRETARY BLANTON: Sullivan.
12 Sundberg.
13 COMMISSIONER SUNDBERG: Here.
14 SECRETARY BLANTON: Thompson.
15 COMMISSIONER THOMPSON: Here.
16 SECRETARY BLANTON: West.
17 COMMISSIONER WEST: Here.
18 SECRETARY BLANTON: Wetherington.
19 Zack.
20 COMMISSIONER ZACK: Here.
21 SECRETARY BLANTON: Chairman Douglass.
22 THE CHAIRMAN: Here.
23 Has anybody that didn't answer the roll come in?
24 Over here, Commissioner Crenshaw is here. The
25 Secretary announced you were always late.
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1 In order to proceed at this time I'd like to call
2 on Father David P. McCreanor, pastor of the St. Louis
3 Catholic Church in Tallahassee, to come forward and if
4 you would give the prayer, Father? He's known to his
5 parishioners as Father Dave.
6 FATHER McCREANOR: Thank you, sir.
7 THE CHAIRMAN: Everybody please rise.
8 FATHER McCREANOR: Almighty God, we thank you for
9 the freedom we enjoy in our nation and state. We
10 thank you for this gathering today that seeks to
11 assure and preserve the God-given freedoms for the
12 citizens of Florida into the 21st century. The men
13 and women who have accepted the responsibility of
14 making constitutional recommendations come in need of
15 a higher power than the human mind to help them in the
16 decision-making process. We call on you today,
17 Almighty God, to provide that power in all the
18 proceedings of this Commission, anoint each person
19 here with the spirit of wisdom, knowledge,
20 understanding and judgment. Grant them the vision to
21 deal with the issues that affect the ever-changing
22 needs of this fast growing state. May the decisions
23 of this committee both preserve and enhance the
24 quality of life we now enjoy.
25 We give you thanks, Almighty God, for the wisdom
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1 of those inspired to call for a Constitution Revision
2 Commission to meet every 20 years and for all those
3 who served in the past and for those present today.
4 We ask your special blessing on Dexter Douglass,
5 who chairs this Commission, and all the Commission
6 members with their families. Keep them safe during
7 the year ahead and protect them with your love.
8 Amen.
9 THE CHAIRMAN: Thank you.
10 Would Commissioner Crenshaw please come forward
11 and lead us in the Pledge of Allegiance?
12 (The Pledge of Allegiance.)
13 THE CHAIRMAN: Commissioner Crenshaw, if you will
14 remain there or walk around front, the Secretary will
15 administer the oath to you so that you can be
16 officially a member of this Commission.
17 You can do it wherever you want to.
18 THE SECRETARY: We're getting a Bible.
19 THE CHAIRMAN: And we're going to use the Bible
20 in this instance.
21 THE SECRETARY: Raise your right hand.
22 (Commissioner Crenshaw sworn.)
23 THE CHAIRMAN: Thank you.
24 Welcome, Commissioner Crenshaw. First let me
25 thank Father McCreanor for being with us this morning,
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1 and then let me thank the Commissioner -- where did
2 she go -- Commissioner Jennings for the wonderful
3 dinner we all had last evening, and we certainly all
4 enjoyed the pleasure of the reception and getting to
5 see each other. I enjoyed seeing you there.
6 What we're going to do today is partially
7 ceremonial. We'll have the -- part of the program
8 this afternoon will be Governor Reubin Askew
9 addressing the group, and he will do that after our
10 noon recess, and this morning we're very fortunate to
11 have with us Professor Robert F. Williams, a
12 distinguished professor of law at Rutgers University
13 of Law in Camden, New Jersey.
14 Professor Williams received his law degree from
15 the University of Florida and he served as a
16 legislative assistant to the Legislature during the
17 1967 Constitution Revision Commission.
18 Professor Williams is known nationally and
19 throughout the country as one of, if not the foremost
20 authority from his writings in state constitutional
21 law. We're pleased to welcome this native son of
22 Florida back to the Sunshine State and to address this
23 Commission.
24 Professor Williams, if you would come forward,
25 please, we would be delighted to hear your remarks,
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1 sir.
2 Professor Williams?
3 PROFESSOR WILLIAMS: Thank you very much,
4 Chairman Douglass, Commissioners. I think you could
5 have heard me anyway. I'm deeply honored to be
6 invited to come here and talk to you. It's a terrific
7 opportunity for me to return to my home state, to my
8 home Capitol building, even though I got started as
9 many of you did in the old Capitol building and the
10 Holland Building and those places. I've had a chance
11 to see friends and classmates and mentors and a whole
12 range of people that I remember since I've been here
13 the last 24 hours or so.
14 And I want to say at the outset, I envy you. 20
15 years ago when I was involved with the '78 Commission
16 essentially as a lobbyist, and 30 years ago when I was
17 involved with the Legislature as it worked with the
18 product prepared by that Constitution Revision
19 Commission, I sort of dreamed that maybe this year I'd
20 be sitting out there where you are now, and if I'd
21 worked hard and continued my career here, I thought I
22 might have had that opportunity, but instead I took a
23 different route. I'm one of the three or four people
24 who have moved from Florida to New Jersey and reversed
25 the flow of the usual migration, and I've been --
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1 spent the last 18 years studying and teaching and
2 writing about state constitutions.
3 Why would I do such a thing? It's because of
4 what I learned here in Florida, the ideas I got from
5 the people you know and have heard about in '67, '68
6 and '78, and I'm still pursuing those ideas and I hope
7 to continue to do it, but I would like to just say
8 that -- I want to make an early application here.
9 Some of you will be appointing authorities in 2017,
10 and I would like to have a chance to sit out there,
11 and I'm still a dues-paying member of the Florida Bar
12 and I'm going to keep paying those dues for the next
13 20 years, and in 2017 I'm going to be practicing law
14 in the state of Florida and I hope you'll remember me.
15 1997 is actually a very big year for state
16 constitutions in this country, as some of you know,
17 and, of course, the main reason why it's a big year is
18 because this Commission is sitting, but you're sharing
19 your enterprise with a number of people around the
20 country. As some of you know, New York voters will
21 vote in November on whether to call a full-blown
22 constitutional convention in that state. California
23 just completed a constitution revision commission
24 which has filed its report. New Mexico recently, in
25 the last year or two, completed a constitution
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1 revision commission. It's the 100th anniversary of
2 the Delaware state constitution. It's the 50th
3 anniversary of our New Jersey constitution, my home
4 state now. Montana is celebrating its 25th
5 anniversary. So there's a fair amount of activity
6 going on around the country with respect to state
7 constitutions, and I hope that you will try to get in
8 touch with those people and stay in touch with them,
9 because, as unique as Florida's Constitution is and
10 the problems and potential of Florida are, you do
11 share a number of things in common, I think, with
12 others working on state constitutions in this country.
13 So this morning I want to see if I can paint a
14 picture for you of your place in the broad national
15 context of state constitution-making and also link
16 what you're doing to the deep historical roots of this
17 enterprise of state constitution-making. Then I want
18 to talk a little bit about the unique and special
19 characteristics of state constitutions, and then
20 finally reflect on the processes of state
21 constitutional revision in the 1990s.
22 Now, I'm not going to make any substantive
23 recommendations to you. I'm sure you're glad of
24 that. I think everybody's full of ideas already and
25 expect you to have your whole agenda formed in your
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1 mind, and I don't think you should do that.
2 I'm a little hesitant because I think opening
3 speeches to constitutional conventions or
4 constitutional commissions are kind of like graduation
5 speeches where the next day nobody remembers what was
6 said, but I know that you know graduation speakers
7 always say that. They always say, "I know you're not
8 going to remember what I said. I don't remember what
9 the graduation speaker said at my graduation," but
10 then they go on and talk to you anyway and try to be
11 the one speaker who's different, and that's what I'm
12 going to try to do. I hope I'll be able to succeed
13 with you, if you'll bear with me.
14 You're taking your place or you took your place
15 yesterday as the next step in a, what's now a 221-year
16 history of state constitution-making. It began in
17 1776, in wartime. Our New Jersey state constitution
18 was adopted on January -- on July, excuse me, July 2,
19 1776, an interesting date it seems to me, during
20 wartime.
21 The state constitutions of that period were the
22 domestic political language of the revolution. That
23 was what the debates were about: How should we
24 structure our governments, now that we've declared
25 independence? Even while we're still fighting a war
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1 for independence, who should participate in our
2 governments? What should our institutions look like?
3 What kind of rights guarantees should be in these
4 constitutions? This was the topic of debate during
5 that ten years while we fought the war, won the war
6 and struggled trying to get a federal constitutional
7 convention together.
8 So the roots of this Commission reach deeply into
9 that history, directly to James Madison, Ben Franklin,
10 John Jay, all men in those days, of course, white men,
11 who learned about constitution-making working on state
12 constitutions a decade before they got famous and
13 worked on the federal Constitution.
14 These roots are not only deep but they're wide.
15 They spread all across the United States to all the
16 states which have adopted and revised state
17 constitutions, and they also -- these roots also
18 spread around the world to federal systems all around
19 the world. There are 18 or 20 systems that use sub-
20 national component units, or states, the way we do.
21 Most countries don't, of course. It's too
22 inefficient, it's too much trouble, but -- so you're
23 now engaged in an enterprise that is being worked on
24 in South Africa as they draft the provincial
25 constitutions there, the equivalent of state
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1 constitutions. The former East German states, called
2 lander, have just finished a process of revising their
3 sub-national constitutions, most of them with the help
4 of constitutional commissions, by the way. So the now
5 reunified Germany is made up of component units, each
6 of which have state constitutions.
7 These processes are also going on in Russia.
8 Brazil the last decade completed this process of
9 revising, and I think actually we have a lot to learn
10 from each other even around the world, not just in
11 other states in the United States.
12 This sub-national or state constitution-making in
13 a federal system is experimental. You've heard states
14 referred to as the laboratories of federalism, the
15 laboratories of experiment, and since the beginning of
16 our country we have recognized state constitution-
17 making as experimental, trial and error, and even as
18 early as 1778, the famous Tom Paine -- he's famous
19 because he advocated independence from England, but he
20 was also a very important state constitutional thinker
21 and architect in Pennsylvania. He applauded, in 1778
22 he applauded the happy opportunity, quote, "happy
23 opportunity of trying a variety in order to discover
24 the best. By diversifying the several constitutions,
25 we shall see which states flourish the best, and out
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1 of the many posterity may choose a model," close
2 quote.
3 So down through this 221 years, this tradition of
4 experimentation has come to us. We've had hundreds of
5 state constitutional conventions in this country and
6 state constitutional commissions, thousands of state
7 constitutional amendments, about 150 separate state
8 constitutions; and from the beginning those
9 experiments in the 13 original states served as models
10 for the federal constitutional convention.
11 Actually, if you ever got so bored that you
12 wanted to sit down and read the debates of the federal
13 constitutional convention, you'd see that a lot of
14 what those debates were about was whether we should
15 follow the New York model or the Massachusetts model.
16 Nobody wanted to follow the Pennsylvania model and
17 nobody wanted to follow the New Jersey model. It's
18 very interesting, and it's no accident that literally
19 the first line of the Federalist Papers addressed to
20 the people who were worried about this new federal
21 Constitution said, "New Yorkers, don't worry, this new
22 federal Constitution, it really looks a lot like the
23 New York state constitution." It might be the second
24 line of the Federalist Papers, but it's right up
25 front.
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1 After the federal Constitution was adopted, the
2 state constitutional convention continued on its own
3 course, different from the developments in federal
4 constitutional law, and through this period of time,
5 of course, state constitutions were both cursed and
6 praised, but there's one thing that's clear about this
7 process of evolution of state constitutions and
8 experimentation. It gave a chance for voices to be
9 heard in constitution-making, voices that were never
10 heard in the federal constitutional process.
11 The 55 white men who drafted the federal
12 Constitution were not a diverse group. State
13 constitution-making, though, has heard the voices of
14 women, African-Americans, native Americans, Latino
15 people. All kinds of people in our country have had a
16 chance to be involved in one level or another with
17 state constitution-making, and of course that's
18 continued in this Commission today.
19 And states still continue to be the laboratories
20 of experiment in the federal system. States continue
21 to copy ideas one from the other or to reject ideas
22 that have been tried in other states and haven't
23 worked, and, of course, the federal government
24 continues to look to the states for models to emulate.
25 One only has to look at the current debates over
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1 line item veto in Washington. That was invented in
2 the states. Balanced budget, that was invented in the
3 states. Term limits, invented in the states.
4 Victims' rights provisions in constitutions, invented
5 in the states, just to name a few of the current ideas
6 that are circulating in Washington as proposed federal
7 constitutional amendments, and you're the direct
8 descendants of this two decades of experimentation.
9 Now, these experiments, these processes that
10 we've seen unfold over two centuries -- did I say two
11 decades -- two centuries, have had two sorts of kinds
12 of experimentation. One has been with the content or
13 the substance of the state constitutions, and that I'm
14 not going to talk about. What should be in there,
15 what kinds of institutions, what kinds of rights,
16 that's not -- I'm very interested in that, but it's
17 not my interest with you here today.
18 The other kinds of experiments, though, on the
19 other hand, have been procedural or process-oriented
20 experiments. Throughout these two centuries the
21 debate has focused on, well, how can you change the
22 state Constitution? Should you be able to change the
23 state Constitution? How easy should it be? How often
24 should you do it? So the question that's asked by one
25 group is, how stable should the state Constitution be?
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1 And asking the question that way suggests an answer,
2 but the other way to ask that same question is, how
3 rigid should a state constitution be? And asking the
4 question that way seems to suggest a different sort of
5 way of looking at the state Constitution.
6 One of them is, keep it the way it is.
7 Stability's important. The other one is that if it's
8 rigid, it can block our progress, and of course we've
9 seen that in many states, including Florida before
10 1968 and even today, possibly.
11 The first state constitutions didn't provide for
12 their own amendment and revision, and the New Jersey
13 Constitution of this July 2, 1776, which is the date
14 we all like to talk about in New Jersey, you can
15 imagine, beat the Declaration of Independence by two
16 days -- that constitution amazingly said, "Look, if we
17 settle with the British, we settle this current
18 controversy," as it was called, "this constitution
19 will be null and void," okay. It didn't say anything
20 about, "What if we lose?" because they knew what would
21 happen. They'd be hanged as traitors, but it also
22 didn't say anything about what would happen if we won.
23 So we did win the Revolution, and in New Jersey
24 we were stuck for 80 years with a constitution that
25 nobody knew how to change. Finally, after a lot of
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1 debate, people realized the Legislature could pass a
2 bill calling for a state constitutional convention, so
3 we did have a convention in 1844.
4 But this whole process question about how you
5 revise or modernize a state constitution has bothered
6 Americans since the beginning, and it still bothers
7 us. I suspect it bothers you somewhat, how much
8 change, how quickly, these kinds of things.
9 So we began in -- our New Jersey state
10 constitution was drafted by the state legislature, if
11 you could call it that. It was really a revolutionary
12 congress. It really didn't have the attributes of
13 higher law that we think of for a constitution now.
14 Pretty quickly, though, Delaware, Pennsylvania
15 invented the constitutional convention. It's one of
16 America's great contributions to the constitutional
17 learning of the world, and this was refined in
18 Massachusetts in 1780 where they had both an elected
19 convention and they submitted their product to the
20 voters, literally to the voters, who adopted it. They
21 had voted down a constitution in 1778, during wartime,
22 partly because it came from the state legislature and
23 not from an elected convention.
24 So that was one model, the elected convention
25 with submission to the voters for ratification.
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1 Pretty quickly we developed the limited
2 constitutional convention. The limited constitutional
3 convention is a terrific creative response to the
4 forces of status quo. It's a way of saying there are
5 certain things that are too politically difficult to
6 tackle, so let's just take them off the table and
7 let's work on some other things, okay, that we would
8 have never gotten -- we'd still have the 1776
9 constitution in New Jersey if we hadn't had the
10 ability to have a limited constitutional
11 convention which protected the equal representation
12 for counties in the Senate prior to one-person/
13 one-vote. That was a very important thing, and
14 frustrated change.
15 About 120 years ago we saw the advent of the
16 constitutional commission, originally limited
17 constitutional commissions, like, say, the Article V
18 Task Force here. I would say that was a limited
19 constitutional commission, focused on one topic.
20 Utah fairly recently has invented the continuous
21 revision mechanism and has a permanent commission.
22 Alaska's considering that now, but in Florida in 1968,
23 we invented something new under the sun, the
24 appointed, automatic Constitution Revision Commission
25 which has direct access to the ballot, access to the
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1 ballot.
2 This Commission that you're on today is the
3 culmination of this process of trial and error of
4 trying to deal with the question of whether the state
5 Constitution should be immutable or mutable,
6 changeable or static, and this automatic idea, for
7 many years I thought this was the idea of Chesterfield
8 Smith or Sandy D'Alemberte or somebody like that, and
9 as some of you know, there's another guy who had the
10 idea first, and it was Thomas Jefferson.
11 Jefferson thought that the Constitution should
12 reflect the views of the living generation, quote, "so
13 the Constitution can be handed on with periodical
14 repairs from generation to generation," close quote.
15 Now, Jefferson hated the 1776 Virginia
16 constitution, so he of course wanted periodic revision
17 of it. So I think in some ways your answer to the
18 question, should the Constitution be stable, draws on
19 what you think of the current Constitution, obviously.
20 So I guess you can trace your roots directly to Thomas
21 Jefferson, which I think is probably a buoying
22 feeling, depending on what you think about Jefferson.
23 On the other hand, he basically would probably
24 call you repair people, repairing the Constitution to
25 pass it on to the next generation. The alternative to
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1 this was John Locke. John Locke drafted -- having no
2 problems of limited ego, did a draft constitution for
3 the Carolinas that provided it would stay in effect
4 forever, an amazing sort of idea. It was never
5 adopted.
6 Anyway, like New York, about 15 states now have
7 this automatic vote on whether to have a
8 constitutional convention or not, but you're quite
9 unique in this Commission that you have now. It's --
10 interestingly it has not been copied by any other
11 state in 30 years. The experiment, I take it, is
12 still under way. The final results aren't completely
13 in, it seems to me, but this process has certainly
14 stood the test of time in Florida.
15 If I remember correctly, there was an amendment
16 on the ballot to abolish the Commission, and that was
17 voted down. The Commission has been emulated -- is
18 that wrong? I knew I should have checked that, but
19 maybe it was proposed and it wasn't put on the ballot.
20 I forget, but if you remember, after '78, there was
21 some agitation to get rid of this animal.
22 The Tax and Budget Reform Commission emulates
23 this process, it seems to me, and has worked all right
24 depending on how you look at its product, I guess.
25 So all through this process we see changes in
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1 state constitutions both with respect to what they
2 contain and changes with respect to the processes by
3 which they will be updated or changed.
4 The Englishman James Bryce came to the United
5 States and observed American governmental institutions
6 and commented in the 1880s that the American state
7 constitutions are a gold mine of instruction for the
8 natural history of Democratic communities. An
9 American 40 years later, James Dealy, said that one
10 might almost say that the romance, the poetry, and
11 even the drama of American politics are deeply
12 embedded in the many state constitutions.
13 So I think whether you like natural history or
14 whether you like romance and poetry, there's something
15 in the state constitutional tradition for you; and
16 certainly looking into the Florida state Constitution
17 you can see both poetry and romance and natural
18 history, and some other things, of course.
19 So this Commission is the latest gadget, it seems
20 to me, the latest invention in the technology of state
21 constitutional change. It operates to shift the
22 burden of inertia, to shift the burden of political
23 inertia away from the status quo toward the
24 possibility of change. It's an alternative to a
25 constitu have to
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1 vote whether they want a convention at all, as we'll
2 see in New York later this year, but I think you
3 really should consider yourself -- now that you're
4 appointed and sworn in, you should consider yourself a
5 constitutional convention because you will now operate
6 from here forward with all of the attributes of a
7 constitutional convention in the traditional sense,
8 except that you don't have an elective constituency,
9 and maybe that's a good thing. For a lot of you, it's
10 probably a relief, but each one of you, as I see it,
11 now slightly from afar, have a statewide constituency,
12 which in other respects is I guess only shared by the
13 Governor, the Cabinet members and the United States
14 Senators from Florida.
15 And I believe what we've learned about the way
16 constitutional conventions operate can inform us about
17 how you're likely to operate and how possibly you
18 would take the your responsibilities.
19 The 1978 Constitution Revision Commission, to my
20 way of thinking, was the most open, deliberative and
21 well-documented process of state constitutional
22 revision country, and that even
23 took place before the Internet, e-mail, most kinds of
24 video and all these sorts of things, and I don't think
25 today we see it as the failure that we once saw it.
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1 I remember that crushing feeling that next
2 morning. Some people remember the feeling of elation,
3 I'm sure, when that package was voted down, and as you
4 know now, that kind of set the agenda for this next
5 generation of state constitution-making and ultimately
6 was not a failure at all.
7 This Commission promises to be even more open and
8 more interactive from the things I've heard now with
9 the technology that we have, and I think, frankly, you
10 may have to be more interactive with the public if you
11 want to be successful. I'll talk about that in a
12 couple of minutes, but you've got this terrific
13 groundwork laid already by the Collins Center on
14 Public Policy, the Article V Task Force, the
15 Constitution Revision Commission Steering Committee,
16 the Florida Bar, probably some others, all kinds of
17 people have offered their assistance to you, and I
18 think yo in other states are
19 watching this. People are very curious about this
20 process.
21 Even when I came here, people asked me, is it
22 true, are we unique? Yes, you are. And for that
23 reason people are very, very interested in how this
24 process is going to work, and it remains to be seen
25 whether the state of Florida will become one of Tom
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1 Paine's states that flourish the best or whether the
2 experiment ultimately will fail; but I think we're in
3 kind of a crisis of state constitutional change in
4 this country now, and so it's more important than ever
5 that this experiment serve to teach people around the
6 country, because yours is an unlimited Commission. I
7 think that's good and bad.
8 I mean, you have an open mandate, but it means
9 you'll have to focus, you'll have to set priorities,
10 you'll probably have to limit yourselves. This is
11 part of the mandate to you from the generation of
12 1968.
13 Once you're appointed, you set the agenda for
14 what yoThe public climate is as
15 follows, I think, once again from afar from Florida,
16 but I was just in Miami last month for two days, so
17 maybe that counts.
18 The public is generally unaware of the state
19 Constitution. There was a survey ten years ago that
20 indicated over half of the public didn't even know
21 that they had a state Constitution, and I think about
22 half the lawyers don't know there's a state
23 Constitution. The judges know, but even sophisticated
24 professionals are not very conversant with the state
25 Constitution in any level of detail.
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1 So I think you have a dual task. One is to
2 thoroughly educate yourselves about the state
3 Constitution and its processes of change, and then to
4 help educate the public about this.
5 Well, what are these state constitutions we're
6 talking about? They're -- because they're called
7 constitutions, people think, well, they must be like
8 the federal Constitution. They're little federal
9 constitutions. They're clones of the federal
10 Constitu not.
11 American state constitutions occupy a unique
12 place in the legal and political technology of our
13 constitutional federal system. They're unique in
14 their origin, they're unique in their function, and
15 they're unique in their hierarchical place in the
16 pecking order of our legal system. They're chameleon-
17 like, oddly enough. They -- within the state, there's
18 the supreme law of the state. They're constitutional
19 documents. They take precedence over all other forms
20 of state law. At the same time they're subservient.
21 They're lesser forms of law. They give away to any
22 contrary federal law, even federal common law. Even
23 federal administrative regulations, if they're valid,
24 trump the state Constitution. So it's a funny kind of
25 animal.
27
1 They also include things ranging all the way from
2 what we think of as the great ordinances of
3 constitutions, the due process and equal protection
4 requirements and separation of powers, they range from
5 that all the way to including trivial, lesser kinds of
6 constitut, and
7 for this a lot of people have poked fun at state
8 constitutions as not really being constitutions.
9 My own view is they really are constitutions but
10 they're different from the federal Constitution, and
11 people have to understand that and accept that.
12 Well, how are they different? Let's look at this
13 uniqueness for a minute. They're different in their
14 legal and political function, okay, and you heard
15 yesterday from Chesterfield Smith this basic notion
16 that, in contrast to the federal Constitution, which
17 enumerates delegated powers and then has the Bill of
18 Rights as kind of an afterthought or really a deal to
19 get the federal Constitution adopted, the state
20 constitutions by contrast limit otherwise plenary or
21 residual power that the states never gave away to the
22 federal government, so that you don't have to find
23 something in the legislative article that authorizes
24 the Legislature to pass a divorce law, a law about
25 wills, a criminal statute. That's within the reserved
28
1 plenary power of the state Legislature, unlimited
2 state Constitution and by the federal
3 Constitution.
4 Now, this is slightly overstated. If you look
5 carefully at any state constitution, you'll go, no,
6 that isn't right or it's not 100 percent right,
7 because there are enumerations of power in the state
8 Constitution, for example, to the Supreme Court. The
9 Supreme Court has the power to promulgate rules of
10 practice and procedure. It has the power to regulate
11 the Bar, okay. That's a grant of authority. The Game
12 and Fish Commission has the legislative and executive
13 power to regulate hunting and fishing. These are the
14 grants of power, these are enumerations of power.
15 Sometimes you'll see an enumeration of power to
16 overcome a judicial decision interpreting the state
17 Constitution to prohibit some exercise of power. The
18 way to overcome that is to grant the power, but
19 interestingly, almost all of these things, lo and
20 behold, transform themselves from grants of power to
21 limits on the Legislature, okay.
22 The power of the Supreme Court to promulgate
23 rules of practice and procedure limits the
24 Legislature. The authority of the Game and Fresh
25 Water Fish Commission limits the Legislature. The
29
1 last I looked, the way to figure out if you can hunt
2 on Sunday is to look at the regs of the Commission,
3 not the statutes. So that operates as a limit on the
4 Legislature.
5 If these constitutions have a different function,
6 if they work differently, I wonder if they look
7 different? Yes, they do. They are longer. They have
8 a different form. They're layered. They reflect this
9 natural -- mine of natural history of democratic
10 communities and poetry and all that stuff. They have
11 specific limits in them.
12 If you look at your legislative article, for
13 example, it's filled with procedural restrictions on
14 the Legislature. If the United States Constitution
15 had the Florida legislative article, we wouldn't have
16 had the shenanigans over the last month about the
17 unrelated government shutdown rider being attached to
18 a disaster relief bill, but they don't have it.
19 They've got this slim, brief, thought-to-be-model
20 Constitution, and it's so cool because it's short.
21 Well, I'm not so sure it's better in that respect.
22 The detailed finance and tax article, local
23 government article, education article, all of these
24 deal with matters that are uniquely within the
25 reserved powers of the states. You don't have to have
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1 them at all. You don't need a finance and tax
2 article. You don't need an authorization to the
3 Legislature to levy taxes or borrow money. I'm not
4 sure how comfortable all of us would feel without
5 those articles, no offense.
6 People believe in the states that those are
7 things that should not be left exclusively to the
8 Legislature. So we have this ballooning -- those
9 weren't in the original state constitutions. They
10 grew up over the years, and so we have this expanding
11 state Constitution that ends up to be pretty long, and
12 every time you want to do something within those
13 areas, you've got to make an exception. It makes it
14 longer, okay. So it doesn't meet this vision of what
15 a real constitution should look like when people think
16 about that in an one-dimensional way, modeling on the
17 United States Constitution.
18 Well, if they work differently and they look
19 differently, maybe there had be a different way to
20 change them, and of course there is, as you know and
21 as we've discussed. This -- and so the text of the
22 state Constitution is much more volatile, fluid than
23 the federal Constitution. The federal Constitution's
24 essentially unchangeable with some few exceptions.
25 That's not true at all for the state Constitution,
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1 yielding a slight paradox. These are thought to be
2 constitutional documents, protecting rights, yet they
3 can be changed by a majority vote.
4 In any event, these constitutions are tools of
5 lawmaking. They're instruments of government, and
6 it's clear that state constitutional revision does
7 take -- none of you need to be told this, but state
8 constitutional revision does take place within the
9 larger mechanisms of state politics, and I think we
10 have to be aware of that. The state constitutions are
11 political. State constitutional revision is
12 political, and that's fine.
13 Just a few more points about what I think is the
14 current climate for state constitutional change. I
15 don't think it's a pretty picture, frankly. Public
16 discontent with government is what I think is one of
17 the things that fuels the initiative movement. It's
18 thought to be independent of government. The problem
19 with it, as everybody pointed out, it doesn't have the
20 deliberative compromise potential that the regular
21 institutions of government have.
22 There's a political scientist called Gerald
23 Benjamin who was research director for the New York
24 Constitution Revision Commission that laid the
25 groundwork for this vote coming up in November on
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32
1 whether they should have a constitutional convention
2 or not. He identified this paradox that we have in
3 current government discussion now, quote, "The public
4 wants big change in government but has rejected the
5 most thoughtful and deliberative methods of achieving
6 such change." They've rejected the calls for
7 constitutional conventions in Illinois in 1990,
8 essentially all of the states that have had these
9 automatic calls.
10 You -- in Florida, you -- we get to jump over
11 that hurdle, okay, but the question really, I think,
12 is quite clearly whether you as a Commission can
13 operate in a way that will convince the public that
14 you are independent of the regular processes of
15 government. I think the Commission has the potential
16 to do that. This Gerry Benjamin says again, quote,
17 "to channel the public discontent now targeted at
18 state government, we need a method of constitutional
19 revision independent of existing government
20 institutions," close quote, and I wonder if this
21 Commission may be such an instrument. It is
22 independent of regular government institutions, and it
23 does have that potential, I think. You're going to
24 need to consider testing the waters for potential
25 change possibly before you reach your final
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33
1 conclusions.
2 The public hearing process may help in that
3 respect, but I think there are lessons to be learned
4 from the initiative process that probably some polling
5 -- there's a thing called the deliberative opinion
6 poll which is supposed to model what the public would
7 think about something if they were fully informed. It
8 sounds to me like a fancy focus group, I'm not sure.
9 Focus groups may be useful, I don't know. The
10 interactive process, a two-way flow of information
11 that would merge this direct democracy instinct for
12 independence from regular government institutions with
13 the deliberative consensus-building process that you
14 have available to you. Obviously it's very important
15 to try to gauge opposition or status quo instincts
16 ahead of time.
17 A massive study of seven constitutional
18 conventions concluded, quote, "Just as the delegates
19 and political activists in each state tend to break
20 down ultimately into reformers and supporters of the
21 status quo, so the electorate divides in a similar
22 fashion. In sort, constitutional revision potentially
23 polarizes state communities or the attentive portions
24 of them along predictable lines, change and reform --"
25 blah, blah, blah. I won't read the whole thing.
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34
1 So I think -- just to close -- I think I'm going
2 to meet my deadline. I try to do that.
3 I think there are a list of things that you're
4 going to have to try to think about doing, and it's
5 nice to just be able to give this free advice and go
6 back to my law school, but I hope you'll think about
7 some of these things.
8 You've heard some of them already from some of
9 the speakers, but I think your most important job is
10 to try to keep an open mind for now. Give yourself
11 time to come to understand this state Constitution. A
12 lot of you know a lot about it already, I know that,
13 but you may not have thought about it in every
14 possible way.
15 Try to assess how the Florida Constitution really
16 touches the lives of Florida people, where it touches
17 those lives and how, and where it touches government
18 and how, because obviously much of what goes on in
19 government is not dependent on the state
20 Constitution. Maybe if there are problems there, they
21 don't need to be remedied using the state
22 Constitution, but until you really fully get a picture
23 of at what places the government and the people touch
24 the state Constitution, I don't think you can tell
25 what, if anything, needs to be done.
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35
1 I think you've got to give yourself time to come
2 together as a collegial body. This is a different
3 institution from the Legislature. It's a different
4 institution from a City Commission or anything like
5 that. I think with but two exceptions, all of you are
6 freshmen in this. I think it's two, with two
7 exceptions. And you may have done a lot of things in
8 politics, but you haven't done this before, and it's
9 different. This body will develop a collective
10 personality, group dynamics and all of that, different
11 from other political bodies. You don't have to run
12 for reelection, obviously, you don't need me to tell
13 you that. You didn't run for this body. You didn't
14 have to run a campaign to get here, at least an
15 election campaign.
16 What I'm really suggesting is that you try to
17 transform yourself into Commissioners from what you
18 were the day before yesterday and what you'll go back
19 to as this process continues. That's partly why I
20 think the Chairman asked you to from now on call
21 everybody Commissioner, not Chief Justice or President
22 or whatever. It's -- it seems like a surface tactic,
23 but it actually has some potential to bring you
24 together in a different way.
25 Try if you can to distance yourself somewhat from
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36
1 your current regular constituency. You do have this
2 statewide constituency now, and if you can, distance
3 yourself from your appointing authority, at least in
4 some respects, and I think you need to do this not
5 only to make the inside job work, to -- not only to be
6 able to work together over the next almost-year in
7 this process, and I think it's going to go beyond the
8 next year if you think about the election campaign, if
9 you suggest any changes; but you need to have this
10 independence to work inside this chamber together and
11 also to present an independent face to the public,
12 because I think in 1978, the -- one of the -- there
13 are a lot of reasons, there's been at lot of analysis
14 as to why those recommendations went down, including
15 some them were bad ideas probably, but that -- I think
16 it was the beginning really of this negativism about
17 government. 1978 was the year of Proposition 13, and
18 I think it's just gotten worse.
19 I think people are not willing to trust what
20 people tell them, government officials tell them all
21 the time; and if you can begin to take on the identity
22 of independent Commissioners rather than government
23 officials and government as usual, I think you'll have
24 a better chance of convincing the public to do what
25 you want them to do.
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37
1 You know, if you don't feel like statespeople
2 right now, you don't feel that, wait a little bit,
3 hang on. The studies show that a high percentage of
4 you will become statespeople, will rise above the
5 direct constituent kind of things, not all of you, but
6 some of you, okay. So try to wait, seek consensus,
7 build on the combined strength of this body.
8 Maybe you don't need a whole lot of ideas. Maybe
9 you only need a couple of good ideas that everybody
10 can pull behind. If you combine the clout in this
11 room together with that of your appointing
12 authorities, I'll bet you could do anything you think
13 the state needs, but if you instead spread yourself
14 out, if you are beguiled by the unlimited nature of
15 your mandate, you may end up accomplishing nothing.
16 A couple more technical points. There's general
17 agreement about this idea. I heard it in our
18 conversations at the reception last night. There's
19 general agreement that the state Constitution should
20 be limited to fundamentals and not legislative
21 detail. Of course, your fundamentals might be my
22 legislative detail, or when I was representing clients
23 in front of the Commission in '78, my fundamental
24 ideas were told to me to be legislative detail. So
25 it's not an easy dichotomy, but it's one that most
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38
1 people agree on. So most people that speak to
2 constitutional conventions and commissions say, stick
3 to fundamentals, keep it short, and I don't think
4 that's exactly the right way to go.
5 Use some words if you need them. Brevity isn't
6 any sort of special virtue, it seems to me. Of
7 course, you don't want to load up the Constitution
8 with rigid detail, but putting something in the state
9 Constitution at the one time elevates it to the
10 highest legal position in the state and it also puts
11 it beyond change by ordinary legal processes, and you
12 know these things, and that is good sometimes and it's
13 bad sometimes, right, taking something out of the
14 normal processes of legal change, and what studies
15 have shown are that the good things are usually
16 anticipated; the good that you get from putting
17 something in the state Constitution you usually can
18 imagine. The bad things are usually unanticipated.
19 There are things you couldn't imagine or you couldn't
20 predict, hard as you thought about it. So the
21 unanticipated negative consequences of putting
22 something in the state Constitution really ought to be
23 considered.
24 You might want to consider developing something
25 called -- this is my cutesy idea -- some sort of a
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39
1 constitutionalization impact statement to try to force
2 yourself to think beyond the pros and cons of the
3 policy that you're, you know, discussing, but also to
4 think of it, if it's a good idea, do you need it in
5 the Constitution? You might, but what are the costs
6 and benefits of that?
7 You need to work on some of these technical
8 questions: Will a provision be self-executing, will a
9 court enforce it without implementing legislation? If
10 a court won't, why are you putting it in the
11 Constitution? Maybe it sounds good, maybe it's a good
12 idea, but you've got to worry about the problem of
13 negative implication. The expression of one thing
14 sometimes is read as a limit on others. So people put
15 into state constitutions that widows of veterans got a
16 tax exemption. It sounds like a good idea. They
17 found out later, the courts told them the Legislature
18 can't pass a statute giving widowers of veterans a tax
19 exemption when our society changed, okay. What seemed
20 like a good idea turned into a limit on the
21 Legislature.
22 Putting things in the state Constitution
23 delegates a lot of decisionmaking to the judiciary
24 often. You don't always have to do that. We just
25 amended our constitution in New Jersey, one of these
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40
1 local government mandate protections, and the people
2 didn't want the court adjudicating that. So the
3 commission was created and the decisions of the
4 commission are non-justiciable, they're not reviewable
5 by the courts, but by and large when you put something
6 in the state Constitution, you delegate a decision
7 about it to the courts.
8 Some people would say, what's wrong with that?
9 But others might say, well, gee, I don't know if I
10 want to do that. You need to think about it ahead of
11 time.
12 What about Sunset provisions? Sunset provisions
13 could be used in state constitutions. Do you think
14 it's a good idea? Well, let's try it for a
15 generation. Let the next generation muster a majority
16 to keep it. That's a possibility. The Sunshine
17 amendment adopted here showed us another mechanism.
18 Parts of that went into effect but they could be
19 changed by statute. How could do you that? Because
20 it says so in the amendment, okay. So that's an
21 interesting mechanism, it seems to me.
22 In any event, the real question is, is the loss
23 of flexibility worth it? Try to develop ideas for
24 assessing these impacts as you debate, you know, what
25 will the state be like in the next generation.
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41
1 I've heard some current debate about changing the
2 public housing laws around the country, and almost all
3 of that debate is state constitutions won't let us do
4 it. There's an idea to go to more mixed income
5 housing and some privatization and, oh, the state
6 constitutions were amended 100 years ago to say the
7 state can't lend its credit to private corporations
8 and all that sort of thing. So you need to think out,
9 do we have things in the state Constitution that limit
10 what we ought to be doing for citizens?
11 Techniques for presenting the recommendations to
12 the public, we saw in '78 that the separation of
13 questions on the ballot didn't necessarily protect the
14 non-controversial provisions. People just voted
15 against all of them. Maybe all of them were
16 controversial. I don't think they all were, but
17 anyway, if you can manage your unlimited mandate
18 carefully and wisely, pull together, give yourself
19 time to develop this identity as really a
20 constitutional convention, I think you'll be
21 successful.
22 Most people who give these kind of speeches say
23 you've got to try to provide for the next 100 years.
24 In Florida, you don't have to do that. You can kind
25 of guess till the next generation, there will be
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42
1 another Commission, and remember, I want to be on it.
2 For better or for worse, you don't really have to try
3 to make a Constitution for the next 100 years, but I
4 think if you do a good job people will remember you
5 for 100 years.
6 I want to just leave you with the words of
7 Governor Alfred Driscoll of New Jersey as he opened
8 the 1947 constitutional convention in New Jersey --
9 which we still have that constitution 50 years later,
10 and everybody says don't change it -- he said, "The
11 rights --" quote, "The rights you exercise in this
12 convention were won in 1776 and protected in memorable
13 struggles through the years. May you be blessed with
14 clearness of vision, soundness of purpose and
15 successful accomplishment to the end that citizens of
16 this state 100 years hence will repeat your names with
17 pride and call you devout and wise and just."
18 Yours, ladies and gentlemen, is the opportunity
19 of a century. Now, I know once again a couple of you
20 have had more than one chance to serve in this body,
21 but most of you won't get that chance. This is your
22 shot, and most people say that this kind of experience
23 is their most meaningful public -- piece of public
24 service in their career. So I hope you'll be able to
25 leave an enduring legacy.
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1 I think you're privileged. I wish you the best
2 of luck, and I'll see you in 2017.
3 Thank you very much.
4 THE CHAIRMAN: Thank you very much, Professor
5 Williams.
6 We're going to take -- not right this moment,
7 before we do -- we're going to take a short recess,
8 but I'd like to recognize a couple of people in the
9 gallery, with your permission.
10 First, the president-elect of the Florida Bar,
11 Mr. Bloomberg, is up here. I'd like to thank him for
12 the work the Bar did on the Bar Journal that y'all
13 received which had various issues that were
14 discussed. He tells me they will have another issue
15 at some time if we need it.
16 I would also like to recognize -- thank you very
17 much for being here, sir.
18 I'd like to recognize someone that's been around
19 me for a long time and take a personal moment to
20 recognize Janice Piotrowski who sits up here. She's
21 been my assistant for 39 years this month, and anybody
22 that can last that long with me certainly has to be
23 noticed. My wife has lasted almost 42 years. The
24 remarkable thing is that they put up with me that
25 length of time, but I'm very happy to introduce Janice
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44
1 to you.
2 We're going to take a recess for -- well, let's
3 come back at ten minutes till, but before that, I'd
4 like to point out the lawyer for the Speaker wanted to
5 pass out some substitute amendments on the rules which
6 we will take up shortly. They have not been passed
7 out. I think he indicated that one of the members
8 wanted to pass that out, and I would suggest to that
9 member, if there is one, that they can put it on the
10 desks or give it to the secretary and she will place
11 it on the desks.
12 The proper way to do this, I guess, of anything
13 for those that are listening, is any items that you
14 want distributed to the Commission while it's in
15 session should go to the Secretary and not to --
16 directly to the floor. That's not to restrict
17 anybody, because any member, obviously, that wants
18 anything distributed can have that done. On the other
19 hand, people who are not officially with the
20 Commission do not do that. They take it to the
21 secretary.
22 Without -- with everybody's permission, I'll
23 entertain a motion that we take a recess until 10:50.
24 COMMISSIONER BARKDULL: So moved.
25 THE CHAIRMAN: There's a motion.
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45
1 Anything that is distributed will have the
2 Commissioner's name on it and number for the secretary
3 to distribute it.
4 There was a motion that we recess until 10:50.
5 COMMISSIONER BARKDULL: I move we do recess at
6 this time until 10:50, Mr. Chairman.
7 THE CHAIRMAN: All in favor say aye.
8 (Chorus of ayes.)
9 THE CHAIRMAN: Opposed, like sign?
10 (Recess.)
11 THE CHAIRMAN: The Commission will please come to
12 order.
13 THE SECRETARY: There is a quorum present, Mr.
14 Chairman.
15 THE CHAIRMAN: All right. We will proceed at
16 this time to call on Commissioner Barkdull, who was a
17 member of the Steering Committee, which consisted of
18 Speaker Webster, Senator Scott, myself, Commissioner
19 Barkdull and General Butterworth.
20 The attempt was made to, primarily by
21 Commissioner Barkdull, to come up with rules that
22 followed pretty much the '78 and '68 pattern with some
23 changes, and I think he's made even other changes that
24 have probably been -- or if they haven't been, he can
25 now discuss them with us. I would like to call on
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46
1 Judge Barkdull for the purpose of presenting proposed
2 rules.
3 Judge Barkdull?
4 COMMISSIONER BARKDULL: Thank you, Mr. Chairman,
5 members of the Commission.
6 So far we have operated without any rules, and we
7 need to get some rules for several reasons, primarily
8 to get us organized, and secondly, to have the
9 authority for the Chair to employ people and to
10 arrange for them to be paid and also to arrange that
11 the Commissioners here can be reimbursed their
12 expenses in connection with this meeting, because
13 until such time as we get formally organized, we'll
14 have a problem with the Comptroller.
15 What I'm going to recommend is this procedure,
16 and the reason for it is to try to give everybody on
17 the Commission an opportunity to address these rules,
18 and I have seen -- had laid on my desk but I've not
19 had an opportunity to read it, what purports to be a
20 substitute amendment to be offered by some
21 Commissioner which would address, I'm sure, the entire
22 rules as it looked to me like it was a substitute of
23 the entire package.
24 I propose to offer a motion that we adopt these
25 rules that are before you that have the date of June
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47
1 the 12th on them, except Rule 5, and also that the
2 provision that provides for two-thirds amendment of
3 the rules be delayed until the conclusion of the next
4 meeting, at which time the rules will be under
5 consideration and can be amended by a majority vote,
6 if that's the procedure that is the will of the
7 Commission. That leaves alive the opportunity for any
8 change in the proposed rules by a simple majority vote
9 through the next meeting, which will include all the
10 provisions of the present rules as well as what will
11 be submitted as a redraft of Rule 5.
12 I think that all of us recognize that Rule 5 has
13 got some problems with it, and I'm not talking about
14 the numerical numbers as much as the grouping and many
15 other parts of it, and I think for proper
16 consideration of the Commission of Rule 5, a proposal
17 has got to be redrafted and be submitted.
18 So it is the intention and would be the hope
19 that, if it's the Commission's will, to adopt these
20 rules today subject to the situation that Rule 5 is
21 not included and the effect of the provision that
22 calls for two-thirds for amendment would be delayed
23 until the conclusion of a regular scheduled meeting
24 called for the purpose of considering rules, which
25 will probably be our next meeting.
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48
1 And also we would request, assuming that the
2 motion passes, that all members of the Commission send
3 to the Commission any proposed changes that you want
4 in the rules so that they can be disseminated back to
5 every member of the Commission and they will have an
6 opportunity to see them before you come back to the
7 meeting and don't have a packet dropped on your desk
8 at the last moment to try to analyze, and we will try
9 to help with all of the suggestions that are received
10 by having the staff correlate them as to what rule
11 they might be applicable to and send them out to you.
12 It's not to limit what anybody can do when they
13 come here, but it's to -- as a courtesy to your fellow
14 Commissioners to give them an opportunity to see what
15 you would suggest as a form of an amendment.
16 Now, with that explanation, Mr. Chairman, I would
17 like to move that we adopt the proposed rules except
18 Rule 5, subject to being amended at a scheduled
19 meeting by a majority vote, notwithstanding the two-
20 thirds rule which I request be delayed until the
21 conclusion of the next meeting.
22 THE CHAIRMAN: Discussion?
23 Commissioner Langley?
24 COMMISSIONER LANGLEY: Thank you, Mr. Chairman.
25 I wish Commissioner Barkdull -- I've got to get
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49
1 used to that, Judge -- but I wish that you would
2 enlarge upon that to use this time we have today to
3 discuss some of the members' problems with the present
4 rules and with the hope that if we reach some
5 consensus here today, though it not be formal, that
6 perhaps we can give some enlightenment to whomever is
7 drafting those rules to come back with a re-draft that
8 will have -- there are a lot -- in discussions around
9 the floor, there are a lot of changes that I don't
10 think we have a single vote in opposition. A lot of
11 them I think were inadvertent, i.e., not adopting
12 Robert's Rules of Order. I think we need some basis
13 upon which to proceed. I don't know if that was
14 inadvertent or what, but I don't think anybody
15 disagrees that we should have that in a rule.
16 I don't think anybody disagrees that the showing
17 of three hands in this body should entitle us to a
18 record vote. There are several things. I don't think
19 that anybody disagrees that -- well, that's part of
20 Article V, but in the draft -- the majority vote's
21 been changed in that draft until the final product.
22 I wish that we could go over some of these things
23 and have a general discussion today and perhaps, as a
24 result of that, have a consensus from which you could
25 come back with a set of rules that may well be totally
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1 uncontroversial.
2 COMMISSIONER BARKDULL: Commissioner Langley, I
3 think that's a very good suggestion, and I think we
4 should utilize the time.
5 I've got to say to you, when I read the final
6 draft and saw that Robert's Rules was dropped out of
7 it, I was surprised myself. I went back last night
8 and I found out it appears that, in using the Senate
9 rules, it appeared that the Senate rules had dropped
10 out Robert's Rules and that's the way I assume that's
11 what happened here, because the last people that
12 looked at this were to compare the rules to a Senate
13 draft, and that's the only explanation that I can
14 give, because I didn't realize until I got up here and
15 looked at the last set that Robert's Rules had been
16 dropped, and that's the best explanation that I can
17 get for it, and that's my guess. Commissioner Scott
18 could maybe enlighten me on that.
19 THE CHAIRMAN: Mr. Langley, could the Chair ask
20 you a question?
21 Is it your suggestion that Commissioner Barkdull
22 just refer to the rules -- everybody has them before
23 them -- and then if there's any discussion on a
24 particular rule that we have that? Is that what
25 you're suggesting?
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1 COMMISSIONER LANGLEY: Well, I think we should
2 stay in the open process. I know that one of the
3 Commissioners is going to offer a general amendment,
4 and that, I think, will throw these issues open before
5 the Commission, and I think that's a good way to get
6 to it, frankly, and again, I -- Mr. Chairman, I see no
7 acrimony here. It's a bunch of people that really
8 want to do something for their state, and I think we
9 can reach an accord without any great hassle about it.
10 THE CHAIRMAN: Commissioner Jennings?
11 COMMISSIONER JENNINGS: Mr. Chairman and
12 Commissioners, we had discussed this sort of
13 informally a minute ago. Perhaps, Commissioner
14 Barkdull, we could just go through them one by one,
15 and we've got some time and I think all of us are
16 concerned. These are the rules we're going to have to
17 live with for a year or so, and of course a number of
18 our members aren't quite as familiar with them as
19 maybe some of the legislative members, especially the
20 Senators, because these are more like the Senate rules
21 than anybody else's, and as we go through each one,
22 then perhaps, Mr. Chairman, there would be
23 Commissioners who would be interested in just asking a
24 question, discussing. Some may not actually be as
25 clear as to what the intent of the rule is, and we
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1 just have some general discussion before we even
2 accept any proposed amendments. It might make us all
3 feel a little more comfortable about where we're
4 headed.
5 Do you feel comfortable in doing that?
6 THE CHAIRMAN: I feel very comfortable with that.
7 And then any motions or amendments would be
8 directed after we went through the rules.
9 COMMISSIONER JENNINGS: And perhaps we've got
10 some time. I see we're not scheduled for lunch until
11 about 12:30, so we do that, and maybe we break for
12 lunch and we continue to talk, and then we come back,
13 and we might be in a posture at that point to feel
14 comfortable to move forward with either substantive
15 amendments or knowing which ones we want to delay for
16 a later time.
17 THE CHAIRMAN: I would suggest that Commissioner
18 Barkdull withdraw his motion and proceed to discuss
19 the rules as we called on him to do, and then
20 everybody note in there as he goes -- Commissioner
21 Scott, did you have -- did you seek to rise?
22 COMMISSIONER SCOTT: Mr. Chairman, what I was
23 going to say, to try to get this started maybe, with
24 Rule 1, there's two, three things that many of -- I
25 think most all of us feel that we might want to
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1 clarify and just, you know, sort of -- I don't know
2 that we've got to go through every single subdivision
3 and say does anybody have a problem, but if -- you
4 know, we could start either with Rule 1 or wherever
5 and try that.
6 COMMISSIONER BARKDULL: Well, with the suggestion
7 from the Chair, I'm happy to withdraw the motion.
8 I would suggest, following up on Commissioner
9 Scott's point and Commissioner Jennings' point, that
10 we take up part 1, which starts with Rule 1, and if
11 there is some comment on the floor about any part of
12 that, I think it would be in order then, if that --
13 and we'll be discussing it really as a committee of
14 the whole, which is fine.
15 THE CHAIRMAN: Very well.
16 COMMISSIONER SCOTT: Well, Mr. Chairman, I
17 learned not to volunteer when I was in the service,
18 but let me just say that, regarding Rule 1, there are
19 two or three things that we think probably we need to
20 clarify. For example --
21 COMMISSIONER MATHIS: Mr. Chair, before we get
22 into that, could I ask just one question for
23 clarification?
24 THE CHAIRMAN: Certainly. The procedure is to
25 ask the person on the floor if he will yield.
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1 COMMISSIONER MATHIS: Commissioner Scott, will
2 you please yield to me on a question of procedure and
3 timing?
4 THE CHAIRMAN: And also speak into the mike.
5 COMMISSIONER MATHIS: And speak into the mike,
6 okay. No, I'm not familiar with this process.
7 THE CHAIRMAN: You will be in a few meetings.
8 COMMISSIONER MATHIS: Commissioner, I'd just like
9 to know when it would be appropriate to offer the
10 substitute amendment on the proposed rules that have
11 been drafted basically with issues involving opening
12 up this process and making sure that the Commissioners
13 are empowered and that it's a fair proceeding, and I
14 would just like to know from you when it would be
15 appropriate to offer that substitute amendment.
16 THE CHAIRMAN: It would be appropriate -- now
17 that there's no motion before the house, it would be
18 appropriate to offer it after this discussion and
19 somebody makes a motion, then it would be appropriate
20 to offer whatever. So I think that Senator -- excuse
21 me -- Commissioner Scott had the floor, was going to
22 discuss Rule 1, and we were going to go down the rules
23 that way before we made any motions.
24 COMMISSIONER MATHIS: Thank you.
25 THE CHAIRMAN: Senator -- Commissioner Scott, I'm
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1 going to learn to remember that, too, so --
2 COMMISSIONER SCOTT: I'm having a little trouble
3 with "Mr. Chairman," too.
4 THE CHAIRMAN: So do others, not all of them
5 members of this Commission.
6 COMMISSIONER SCOTT: Okay. Let me just say, for
7 example, for some reason in one of the drafts we have
8 just cause for excused absence. It might have come
9 from the 20 years ago when they were worried that
10 maybe people wouldn't come, and we don't really think
11 that we need to have "for just cause." If a
12 Commissioner needs to be excused, you know, he needs
13 to let the Chairman know and we'll operate. That's
14 one.
15 Then a 72-hour notice provision --
16 COMMISSIONER BARKDULL: Excuse me, Commissioner.
17 Are we on Rule 1?
18 COMMISSIONER SCOTT: Right. 1.17 and 1.18 were
19 the two relating to the excused absence, and then
20 there's a couple of suggestions. I'm not sure that
21 they're -- in 1.23, for example, to add a 72-hour
22 notice provision for the agenda, excluding Saturdays
23 and Sundays for the Commission, and that there's --
24 THE CHAIRMAN: A question, Commissioner Scott.
25 You're on part 3 of Rule 1, is that correct, on page 5
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1 of my draft --
2 COMMISSIONER SCOTT: I was going by the numbers
3 of 1.23.
4 THE CHAIRMAN: Is that correct?
5 Okay. If everybody will turn to page 5, and 1.17
6 is part 3 of Rule 1, which presently reads, "Unless
7 excused for just cause." What you're suggesting is
8 that we eliminate the language, "for just cause," in
9 1.17, is that right?
10 All right. And then you moved to 1.18 and said
11 that one was already all right, I believe.
12 What was your next one?
13 COMMISSIONER SCOTT: Well, we have 1.23, which
14 relates to open meetings, and I think this point has
15 been picked -- or at some it's appropriate to add the
16 72-hour -- you know, the notice provision.
17 THE CHAIRMAN: Is the notice provision in the
18 rule somewhere else?
19 COMMISSIONER BARKDULL: Yes, sir. Yes, it is.
20 THE CHAIRMAN: When you get to that one, I guess
21 we can take it up, but, Commissioner Langley -- are
22 you through with number 1, Commissioner Scott?
23 COMMISSIONER SCOTT: Yes, and I would yield.
24 THE CHAIRMAN: Okay, you yield.
25 COMMISSIONER LANGLEY: Mr. Chairman, on 1.18,
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1 which you passed over as all right, I take it, too,
2 that the proposal there says that the Commission shall
3 excuse any member upon a request in writing from that
4 member. In other words, if I could not make the
5 meeting because I had a trial or a death in the
6 family, I would write to you and say, "Mr. Chairman,
7 please be advised I'll not be able to attend the
8 meeting of July 31st," and at that time you shall, not
9 you may?
10 THE CHAIRMAN: Right. "The Commission Chair
11 shall excuse any member from attendance at any
12 Commission meeting and such excused absence shall be
13 noted in the Journal," you would add that --
14 COMMISSIONER LANGLEY: Upon written request, yes.
15 THE CHAIRMAN: And "request in writing" --
16 COMMISSIONER LANGLEY: And "shall --"
17 THE CHAIRMAN: "Shall" and "request in writing."
18 COMMISSIONER LANGLEY: Yes.
19 THE CHAIRMAN: And that would be on Rule 1.18.
20 Any objection to that from anyone? If there are
21 any objections, stand up and give them.
22 COMMISSIONER SUNDBERG: Mr. Chair?
23 THE CHAIRMAN: Commissioner Sundberg?
24 COMMISSIONER SUNDBERG: It seems to me that's
25 incongruous to have a written request for an act that
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1 must be performed. If it's not going to require any
2 action on the part of the Chair, just change it to a
3 notice that simply says within so many days, a
4 Commissioner who will not be able to attend shall
5 notify the Chair.
6 THE CHAIRMAN: Well, let me say that one of the
7 reasons that that excuse thing was in there in '78, as
8 I recall, is because we didn't want to do that. We
9 wanted everybody to feel that they had to attend
10 unless they had some real reason, and I'm certainly
11 willing to assure you that if I'm exercising any
12 prerogatives, that any reason you give other than, "I
13 just don't want to show up," would be agreeable. I
14 think that's -- I'm not too concerned with this at
15 this point.
16 If we have people who just don't show up, then
17 maybe we should keep it a little more mandatory.
18 COMMISSIONER SUNDBERG: Mr. Chairman, I'm not
19 speaking to the substance of the motion. I'm simply
20 saying that I think what the people who spoke to this
21 are suggesting is simply a notice requirement as
22 opposed to seeking permission, or it just seems to me
23 it doesn't make sense to require a written request for
24 something that the Chair must do. No, I'm not saying
25 I'm in favor of that position, but if we're going to
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1 do it, let's clean it up where it says you simply
2 notify the Chair.
3 THE CHAIRMAN: What is -- does someone else have
4 a comment on that? Do you follow what he was talking
5 about, Commissioner Langley? Does that cause you any
6 problems?
7 COMMISSIONER LANGLEY: It's a tempest in a
8 teapot, because there's no -- nothing happens if
9 you're not here. I mean, there's no punitive measures
10 whatsoever. So I don't know that it really matters at
11 all. It's just that, to try to let the Chairman know
12 that you're not going to have a quorum or that, you
13 know, who's going to be absent from a certain
14 committee, at least that way -- whether it be a notice
15 or the written request, at least there'd be some
16 notice for the administration that there might be a
17 problem.
18 THE CHAIRMAN: Well, then, would you agree with
19 Commissioner Sundberg that we just say that on
20 absences, when any member is going to be absent for
21 any reason, he shall give written -- he or she shall
22 give written notice to the Chair prior to the meeting?
23 COMMISSIONER LANGLEY: My Commissioner to my left
24 says why "written?" Why not just "notify?" I mean,
25 you know, it was maybe the last minute and so, why not
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1 just --
2 THE CHAIRMAN: I don't have any objection to
3 that. If you're not here, you're not here. I agree
4 with that. So do you want to just leave it out, or
5 just have in the rules that every Commissioner should
6 make every effort to attend the meetings?
7 COMMISSIONER LANGLEY: That would be agreeable.
8 THE CHAIRMAN: Any objections to that?
9 Commissioner Connor?
10 COMMISSIONER CONNOR: Mr. Chairman, I would just
11 make an observation about the need for a technical
12 amendment of Rule 1.1. I think we have miscited the
13 authority of the Governor to appoint the chair, and I
14 think that should be Article IX, Section 2(b), as in
15 bravo, rather than 2(a).
16 THE CHAIRMAN: Why don't we just say Section 2?
17 Is that agreeable?
18 COMMISSIONER CONNOR: That's fine.
19 THE CHAIRMAN: You're absolutely right, however.
20 I thank you for noting that.
21 We're just saying, at Rule 1.1, I was appointed
22 by the Governor pursuant to Section 2 instead of
23 2(a). Is that agreeable? All right.
24 Anybody else? We're on Rule 1 at this point.
25 Commissioner Hawkes?
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1 COMMISSIONER HAWKES: Thank you, Mr. Chairman.
2 I was curious as to, in Rule 1.17, I think
3 there's another place in the rules as well, the
4 language that required the disclosure of a conflict as
5 provided in Section 286.012, Florida Statutes. It was
6 in the previous draft of the rules. It is consistent
7 with what other public entities do, and I was
8 wondering why that language was taken out of this
9 draft and whether or not we -- to maintain as much
10 public confidence as possible, if we maintain that
11 language, it would seem as though we would assist the
12 public in having confidence in what we do, and I was
13 just wondering the reason why it was stricken in this
14 provision or this draft.
15 COMMISSIONER BARKDULL: It was because the
16 correlation with the Senate was dropped out.
17 THE CHAIRMAN: Well, does anybody object to
18 including that? Then let's include it, because I
19 think it's very appropriate that we do.
20 Does everybody understand the proposed -- or what
21 he was talking about is that we have a provision in
22 there that refers to the statute, that it did in the
23 draft before, which is the conflict of interest
24 statute, which makes it applicable to us, which means
25 if you have a conflict of interest, you're supposed to
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1 reveal it.
2 Any objections to that?
3 If not, anything else on Rule 1?
4 Commissioner Morsani?
5 COMMISSIONER MORSANI: Mr. Chairman, my concern
6 is I agree with what's gone on previously, but the
7 other parts of 1, the 1.12, 1.13, 1.19 and the 20, 21
8 and 22, I must say I object to and I would hope they
9 wouldn't be in there. I don't think that -- we don't
10 want to manage your business and we don't want to --
11 that's not why we're here is to micromanage what goes
12 on, and I really object to those other provisions. I
13 think the others here I certainly endorse.
14 COMMISSIONER SCOTT: Will you yield for a
15 question?
16 THE CHAIRMAN: Commissioner Scott asks you to
17 yield.
18 COMMISSIONER SCOTT: Commissioner, let me be sure
19 that we understand what you're saying. Your concern
20 was as to this proposed substitute changes that would
21 change that authority to employ the executive director
22 and so forth, in other words, you were supporting the
23 rule as it's set up that the chairman would elect --
24 when you said you were opposed to the rule, I just
25 wanted to clarify that it was that you were opposed to
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1 a change in the rule that would affect the way the
2 chairman conducted his business. Is that correct?
3 COMMISSIONER MORSANI: That's correct.
4 COMMISSIONER SCOTT: Thank you.
5 THE CHAIRMAN: Let me suggest this and we might
6 move along a little quicker. Let's take each one of
7 these, for example, Rule 1.1, and Commissioner
8 Barkdull, you moved that, and let's take a vote and
9 see how many people agree with Rule 1.1 as changed.
10 All in favor say aye.
11 (Chorus of ayes.)
12 THE CHAIRMAN: Opposed, like sign?
13 Proceed.
14 COMMISSIONER BARKDULL: All right. I move the
15 adoption of 1.2.
16 THE CHAIRMAN: We haven't adopted 1.1.
17 COMMISSIONER BARKDULL: I thought you just did.
18 THE CHAIRMAN: Oh, I thought you had to make a
19 motion.
20 COMMISSIONER BARKDULL: Well, you all were a
21 little ahead of me and took a vote, and I didn't argue
22 with it.
23 THE CHAIRMAN: Commissioner Barkdull moves that
24 we adopt the provisions of Rule 1.1 as amended,
25 correcting the section referenced in the rule.
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1 Commissioner Thompson?
2 COMMISSIONER THOMPSON: Mr. Chairman, what do you
3 mean by adopting? Do you mean adopting as in adopting
4 rules that we're going to have to live by from now on,
5 or -- I mean, we -- first of all, some of these things
6 are not in writing before us.
7 My thought is that we probably ought to adopt
8 something that's in writing before us today, and I
9 liked his first motion, even though he withdrew it
10 temporarily, I was hoping we'd get back to that
11 eventually, and if somebody else has something in
12 writing or really specific at that point that we want
13 to do, we might do it, but by leaving the second part
14 of his motion standing and hopefully adopting that, we
15 could come back at the next meeting and by a simple
16 majority adopt these detailed matters.
17 I think we need to study on these things a little
18 bit, as they say where I come from. You know, we've
19 had some of these things to study on, but I think it
20 would be best for all concerned if we took a little
21 bit more time to do that and not -- I mean, if you
22 want to go through every rule and every detail today,
23 it's going to take a while.
24 THE CHAIRMAN: Well, I think, obviously, Rule 1.1
25 as amended, I don't think anybody objects to that.
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1 It's just a recitation of the fact, and I was just
2 trying to get that off the table.
3 COMMISSIONER THOMPSON: But wouldn't we adopt
4 that when we adopt -- on the question of whether we
5 adopt rules or not?
6 THE CHAIRMAN: That's true.
7 Okay. Let's go ahead like we started, unless
8 somebody wants to make a motion to the contrary.
9 COMMISSIONER BARKDULL: Well, we've got to get
10 rid of the motion that was just passed, then.
11 THE CHAIRMAN: We didn't pass it.
12 COMMISSIONER BARKDULL: Okay, if that's the
13 ruling of the Chair.
14 THE CHAIRMAN: The Chair rules we didn't pass
15 it. That's what Commissioner Thompson told me.
16 COMMISSIONER BARKDULL: Well, now, as I
17 understand it then, we're back to the Chair's
18 direction. There are no motions on the floor?
19 THE CHAIRMAN: Correct.
20 COMMISSIONER BARKDULL: We go through these
21 items and we listen to any comment by a member of the
22 Commission that they may want to address to a
23 particular section.
24 Now, does anybody else, then, if that's the
25 procedure we're following, have any other suggestions
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1 as to Rule 1?
2 THE CHAIRMAN: Commissioner Langley or --
3 COMMISSIONER LANGLEY: I think it's the same.
4 And this is an important thing for the Commissioners
5 individually, and that is in -- let me find the right
6 one now. I lost it -- in Rule 1.19, and the argument
7 against this, of course, is that it's not up to the
8 Commissioners to micromanage the Commission, but there
9 is in our Commission budget some $200,000 that's
10 designated to hire consultants.
11 Now, we have here on our Commission the Chief
12 Justice, the President of the Senate, two former
13 Presidents of the Senate, two former Speakers of the
14 House. We have the entire legislative staff and the
15 court system behind us, so to speak. Why do we need
16 more consultants? I mean, we've been -- we can hear
17 this out our ears.
18 COMMISSIONER BARKDULL: Commissioner Langley, I
19 agree with you, and I don't see that in 1.9.
20 COMMISSIONER LANGLEY: Well, what it has in 1
21 point -- 1.19, sir --
22 COMMISSIONER BARKDULL: 1.19.
23 COMMISSIONER LANGLEY: Yes, sir. It has the
24 unbridled authority of the Chair to go hire anybody he
25 wants to hire, and I don't think -- Mr. Douglass is
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1 not known as a flaming liberal, and I don't think he's
2 going to go out and spend a lot of our money, but I do
3 think that we have the responsibility as Commissioners
4 to see that these funds are not wasted and that we
5 should have some approval before outlandish
6 expenditures are undertaken.
7 The language is, "No member of the Commission
8 shall incur any obligation payable from Commission
9 funds without the prior written approval of the
10 Chair."
11 COMMISSIONER BARKDULL: Right. What do you want
12 to add to that, Commissioner?
13 COMMISSIONER LANGLEY: That no expenditure for
14 consultants or other contracts in excess of $5,000
15 will be incurred without the consensus of the body.
16 COMMISSIONER BARKDULL: Would that include
17 employment of our executive director or personnel that
18 he would have to pay?
19 COMMISSIONER LANGLEY: No, sir, it would -- I
20 think the amendment proposed actually excludes
21 payroll.
22 COMMISSIONER BARKDULL: Well, that was the first
23 thing that came to my mind. I haven't seen a
24 proposal, so I don't know.
25 COMMISSIONER LANGLEY: But, again, we're just
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1 broaching ideas, and think that is a matter of content.
2 THE CHAIRMAN: Will you yield to Commissioner
3 Sundberg?
4 COMMISSIONER SUNDBERG: And this is really a
5 point of order. I'm really not sure what posture
6 we're in, and I thought I understood after James
7 Harold's comments that we were simply going to discuss
8 these.
9 Are we going to get in a debate posture,
10 because --
11 THE CHAIRMAN: We'll get into a debate posture
12 after lunch.
13 What we were thinking about doing and offered to
14 do here is to go through the rules without motions and
15 get everybody's comments or objections noted, and then
16 we can come back after lunch and the speeches after
17 lunch and we can go back to the rules and then motions
18 would be in order.
19 COMMISSIONER SUNDBERG: So we're not -- those who
20 may not agree with these comments that are made are
21 not to debate those comments at this point, is that
22 correct?
23 THE CHAIRMAN: Well, you can certainly state your
24 opinion. I don't consider it debate. I think that,
25 obviously, we will be able to debate these items
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1 later. I think what we were trying to do now is just
2 isolate the objections, because I've been led to
3 believe that most of the rules are acceptable to 90
4 percent of the Commission.
5 COMMISSIONER SUNDBERG: Okay, thank you. Thank
6 you, Mr. Langley.
7 COMMISSIONER BARKDULL: Anything else on --
8 THE CHAIRMAN: Something on this, Commissioner
9 Connor, on this particular rule, Rule 1?
10 COMMISSIONER CONNOR: On Rule 1, yes, sir.
11 If I may, Mr. Chairman, Rule 1.5, there has been
12 a suggestion, and I think that the suggestion may be
13 well taken, that appeals from a ruling of the Chair
14 would be decided by a majority vote of the entire
15 Commission rather than the Chair's ruling being
16 totally dispositive. That may be something we want to
17 give consideration.
18 THE CHAIRMAN: I have absolutely no objection to
19 that. If there's a ruling of the Chair and the
20 majority votes to overrule it, then as chairman, I
21 expect to follow that, whether it was in the rules or
22 not.
23 COMMISSIONER BARKDULL: Anything else on 1?
24 COMMISSIONER HAWKES: Mr. Chairman?
25 COMMISSIONER BARKDULL: Commissioner Hawkes.
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1 THE CHAIRMAN: Commissioner Hawkes.
2 COMMISSIONER HAWKES: Thank you, Commissioner.
3 I was concerned about Rule 1.23, the notice
4 requirements, and I did want to say that I don't think
5 that we should adopt any rule today that does not
6 spell out clearly what kind of notice we're going to
7 give the public, and I don't think it ought to be one
8 of those things that we can come back and fix later.
9 I think it ought to be something that we start off on
10 the right foot with, and if it is taken up someplace
11 else -- I think it mentions 24 hours someplace else.
12 I'm not sure if 24 hours is enough notice.
13 I think it would be nice if we could give the
14 public enough time to participate in the issues that
15 they are concerned with. Maybe they're really
16 compelled to become involved in Cabinet reform but
17 they don't care much about what they do with Article
18 V. So if we're going to discuss Cabinet reform and
19 they want to be there and they want to participate,
20 and if we gave them some kind of notice, like three
21 days, they would be able to more readily participate,
22 and I would really hope that anything we do today
23 addresses the notice of both the meeting that's going
24 to occur and also the proposed agenda that will be
25 taken up at that meeting.
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1 THE CHAIRMAN: Commissioner West?
2 COMMISSIONER WEST: Thank you. First of all, I'm
3 very nervous to say anything because I feel humbled to
4 be in a meeting with so many distinguished people.
5 I just -- just in looking over the rules, I just
6 came up with two basic concepts. Number one is that
7 I think the members of the Commission would feel very
8 comfortable if the powers of the Commission were
9 spread out over the Commission in a very general way,
10 and secondly that we want to do something that's going
11 to increase the public confidence. If the end result
12 is going to be something that's going to be on the
13 ballot -- I mean, when I go back to Orlando, you know,
14 people that know I'm on this Commission are going to
15 wonder whether or not they really had an opportunity
16 to have some input. So when Commissioner Hawkes talks
17 about, you know, a sufficient period of time to be
18 able to let the public be involved, I really think
19 that's the high road.
20 I think that we need to carefully consider all
21 these things. I feel very uneasy when they say, okay,
22 does anybody have any other objections to it, to Rule
23 1. Does that preclude us from -- after lunch from
24 addressing any others?
25 THE CHAIRMAN: Absolutely not.
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1 COMMISSIONER WEST: Okay. So really, again,
2 nervousness notwithstanding, I just think that we need
3 to make sure that whatever we do is going to be a
4 mechanism that will increase public confidence, make
5 sure that the public feels that they've had an
6 opportunity to have input in this, and I think that
7 all of us would feel very comfortable going back to
8 our respective homes and telling our people that -- or
9 our people telling us, thank you for the opportunity
10 that you gave me.
11 THE CHAIRMAN: Thank you. I think what we're
12 trying to do, though, is keep this on the track of the
13 specific rules at this point and discuss them.
14 From what I understand, the ideas of notice and
15 everything are included in other rules. We haven't
16 gotten there yet. The basic statement is that all
17 proceedings and records of the Commission shall be
18 open to the public, and I think that's as far as it
19 goes there, but further on there are notice
20 requirements which we can deal with.
21 Commissioner Nabors?
22 COMMISSIONER NABORS: Mr. Chairman, let me make
23 sure that my mind's straight. I want to -- I heard
24 Commissioner Thompson, and it seems to me that what
25 we're doing today is going through and getting a
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1 general consensus of some changes that may be needed
2 to be made. As long as at the end of the day we
3 preserve the right that whatever we adopt today, that
4 at the next meeting we have a -- by the same majority
5 have the right to make specific amendments, then we
6 can come back at the next meeting with specific
7 amendments relevant to the rules, and maybe between
8 now and then the people that worked on the rules can
9 incorporate some of those that are obvious so that the
10 draft we're dealing will have those changes made, but
11 I think if we try to get into a debate today or if we
12 try to get into some kind of a -- without specific
13 language in front of us, there could be
14 miscommunication. As long as we recognize that if
15 adopt these exact rules today, under some kind of
16 motion they can be amended by a majority rule next
17 time, that we always have the ability then to draft
18 specific language and know what we're voting on.
19 So I think that the observation of Commissioner
20 Thompson was wise and we ought to keep that in mind,
21 that we're not doing anything in concrete today if we
22 do it within the context of getting the sentiment of
23 the body and then coming back with a majority vote and
24 then cleaning them up at our first meeting.
25 THE CHAIRMAN: All right. So we don't get too
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1 far afield, what we're really doing here is asking for
2 people to express their known objections to the rules
3 that have been distributed as we go down them, Rule 1,
4 and then we'll go to Rule 2. There will be no votes.
5 This afternoon we'll be in a better position to
6 move forward and perhaps take votes, and then the idea
7 of whether or not it takes a majority vote to amend
8 them at the next meeting will be one of the items that
9 will be considered.
10 So what I would like to do is to proceed and get
11 the objections, specific objections at least stated
12 before us now before we go to lunch on -- as far as we
13 can go, and not get bogged down on the general rules
14 at this point, if that's possible, and I'll proceed
15 with that in mind.
16 Are there any other notations anyone wants to
17 make to specific rules in Rule 1?
18 Commissioner Evans?
19 COMMISSIONER EVANS: Mr. Chairman, I particularly
20 liked what you said yesterday in your comments, that
21 you don't even want the appearance of anyone running
22 this Commission other than the Commissioners, and in
23 light of that commitment on your part, I have a
24 concern with Rule 1.3 as it's presented on the June
25 12th proposal, and I particularly like Commissioner
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1 Mathis's proposal, the wording there, in that in this
2 case the Commissioners themselves with plenty of
3 advance notice would be able to make the committee
4 assignments rather than having any one person having
5 that power vested.
6 THE CHAIRMAN: All right. Your objection is
7 noted.
8 Any other objections to -- in Rule 1?
9 Commissioner Mathis?
10 COMMISSIONER MATHIS: Commissioner, what I'd like
11 to do is just -- in order to save time, just to
12 propose that everyone take note of the proposed
13 objections on the proposed rules changes chart, and
14 that way I wouldn't -- no one would have to restate
15 them, if they cared not to, and we would -- I think
16 that would be clear, but I think there are objections
17 to Rule 1 that are included on the proposed rules
18 changes that I'd like to put before the body, and it's
19 clearly in writing before them today.
20 THE CHAIRMAN: Okay. Commissioner Mathis, we
21 will consider those your objections, and I don't want
22 to cut anybody else off from objections which that
23 might do. So we will proceed. If anybody has any
24 objections -- that would save you from having to get
25 up every time and object, of course.
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1 Are there any other objections to Rule 1,
2 specific objections as to specific rules?
3 Yes, sir, Commissioner West.
4 COMMISSIONER WEST: I know I wasn't too specific
5 last time and I apologize, but I have some concern
6 with 1.20, 1.21 and 1.22, mainly because of what was
7 previously said about this being -- you know, the
8 power being vested in the Commission as opposed to the
9 Chair, understanding your commitment to having this be
10 a very open process, that as opposed to the executive
11 director works at the pleasure of the Chair, he would
12 work at the pleasure of this entire Commission, the
13 same thing with the Commission staff in those three
14 sections, 1.20, 1.21 and 1.22.
15 THE CHAIRMAN: Thank you.
16 Any other objections to Rule 1 that anybody wants
17 to note?
18 If not, we'll move to Rule 2.
19 Commissioner Barkdull?
20 COMMISSIONER BARKDULL: Well, I don't think a
21 motion is in order under the --
22 THE CHAIRMAN: No motion. Just keep going.
23 COMMISSIONER BARKDULL: Has anybody got any
24 comment on Rule 2?
25 THE CHAIRMAN: Commissioner Byrne.
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1 COMMISSIONER RILEY: Mr. Chairman, my question is
2 I'd like some definition or some explanation from the
3 Steering Committee exactly what the purpose of
4 miscellaneous and what might be the catchall for that.
5 THE CHAIRMAN: It sounds like a financial
6 statement, doesn't it, Mr. Morsani, the one I give to
7 the banks?
8 COMMISSIONER BARKDULL: This was an addition --
9 this was an addition that was added when we were
10 correlating these rules with the Senate rules.
11 Well, there is a miscellaneous article in the
12 Constitution.
13 THE CHAIRMAN: I thought that's what it was, it
14 was the miscellaneous article. These trace the
15 articles.
16 COMMISSIONER BARKDULL: The substantive
17 committees generally trace the articles of the
18 Constitution. They're not quite in numerical order.
19 THE CHAIRMAN: And there is a miscellaneous
20 article, which I think that was the purpose of that.
21 COMMISSIONER BARKDULL: That's Article X of the
22 Constitution.
23 THE CHAIRMAN: Commissioner Langley?
24 COMMISSIONER LANGLEY: Mr. Chairman, if you
25 please, doesn't the following language, "additional
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1 standing committees may be named by the Chair,"
2 doesn't that cover that?
3 THE CHAIRMAN: I think it covers it. The
4 miscellaneous there, though, was intended to track the
5 Constitution, which has an article, and then there are
6 committees for each article, and then the issue of
7 additional committees would be another issue, I think.
8 COMMISSIONER SCOTT: Mr. Chairman?
9 THE CHAIRMAN: Commissioner Scott.
10 COMMISSIONER SCOTT: I think the suggestion is
11 maybe we don't really need to have a committee with
12 that title, but if you're going to have it, then
13 Commissioner Langley wants to be chairman of it
14 because he could take up anything he wanted.
15 THE CHAIRMAN: Commissioner Langley, we may have
16 to elect the chairman of that one by the whole body.
17 Everybody may want it.
18 No, actually it really applies only to the
19 constitutional provision is my understanding of the
20 rule.
21 Commissioner Mills?
22 COMMISSIONER MILLS: Mr. Chairman, we had a lot
23 of discussion yesterday of initiatives, and that's
24 under Article XI. Since you were tracking articles, I
25 was wondering if you had planned putting those issues
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1 somewhere else. I mean, we have nothing under -- we
2 have all ten articles tracked and we have no Article
3 XI committee.
4 THE CHAIRMAN: I don't know. Let's visit that at
5 lunch. I don't know what it means. We'll find out.
6 COMMISSIONER BARKDULL: Do you want to include a
7 sub -- if you want a substantive committee that's on
8 amendments, I have no problem with that.
9 COMMISSIONER MILLS: Mr. Chairman, you had
10 tracked the Articles I through X, and that's why X is
11 miscellaneous because X is miscellaneous.
12 THE CHAIRMAN: Right.
13 COMMISSIONER MILLS: And there is an Article XI,
14 which includes, if you wanted to amend this
15 Commission, amend initiatives, amend conventions, that
16 if you want a jurisdiction to track articles, then you
17 would have --
18 THE CHAIRMAN: Your suggestion is we add No. XI,
19 Article XI --
20 COMMISSIONER MILLS: Yes.
21 THE CHAIRMAN: -- which includes those items. I
22 think that's well taken.
23 Any other objections to any other parts of Rule
24 2, other than Ms. Mathis has noted in her written
25 documents?
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1 Commissioner Hawkes?
2 COMMISSIONER HAWKES: I would like to
3 specifically comment on one of Commissioner Mathis's
4 objections. You know, again, in one of the notice
5 provisions it says -- uses the term "if possible." I
6 think our rules ought to take out terms like "if
7 possible." There's no definition of what defines
8 "possible" or what doesn't define "possible," and --
9 THE CHAIRMAN: What rule was that?
10 COMMISSIONER HAWKES: That's 2.15.
11 THE CHAIRMAN: Proceed.
12 COMMISSIONER HAWKES: And also I am kind of fond
13 of Commissioner Mathis's 2.17 proposal where basically
14 it requires a majority of the Commission to approve
15 the rules and administrations calendar, and again,
16 maybe because I was a minority member of the
17 Legislature, I remember times where my bill might rest
18 on a part of the calendar that we were never going to
19 get to even if we did go to two o'clock in the
20 morning, and this basically, again, I think, does two
21 things: one, it restores the Commissioners'
22 confidence that if their proposal has some other
23 interest amongst the Commission and it doesn't have
24 interest with the rules and administrations committee
25 agenda, that they can at least vote and bring it up
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1 that way; and I think it restores some confidence in
2 the public that there isn't gamesmanship that says
3 that you're on the calendar but you can't be brought
4 up. There is a mechanism to bring it up, and it makes
5 the Commission act more as a collegiate body and
6 allows every Commissioner to fully participate, which
7 obviously the Chair has expressed and --
8 THE CHAIRMAN: I don't think these rules give the
9 rules committee the authority to keep anything from
10 being considered. They're not like the Legislature.
11 We're not going to have the system you had in the
12 Legislature where the rules committee says exactly
13 what you can vote on. We're only here like two days
14 at a time and this sort of thing. I think -- it's not
15 my understanding of the rules that the rules committee
16 can control anything other than setting the agenda of
17 those that are before it.
18 COMMISSIONER HAWKES: Then if that's the case, it
19 would be easy to adopt this amendment and restore the
20 public confidence and no Commissioner would ever feel
21 that his proposal was sitting on the special order
22 calendar and was never going to get to --
23 THE CHAIRMAN: We don't have a special order
24 calendar under these rules, Commissioner Hawkes, not a
25 special order calendar. It's a misunderstanding of
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1 this function to think -- to compare it to that type
2 of legislative process. I think Mr. Langley
3 understands that and others that have served in the
4 Legislature.
5 COMMISSIONER HAWKES: We have an order of
6 business that makes reference to the special order.
7 We have --
8 THE CHAIRMAN: Commissioner Langley?
9 COMMISSIONER LANGLEY: I think the confusion, Mr.
10 Chairman, is on page 17 at the top of the page, Item 8
11 in the order of business does refer to special orders
12 as determined by the rules and administration
13 committee. So, you know, having been in this
14 environment, that assumes that there would be a
15 special order, and what we're saying here is that if
16 that committee comes out with a special order, that by
17 a majority vote the body could add to that special
18 order just by a majority vote on the floor.
19 Otherwise, you -- I know in the Legislature, if you
20 get a b |
