State Seal Calendar

Meeting Proceedings for January 12, 1998


          1                          STATE OF FLORIDA
                             CONSTITUTION REVISION COMMISSION




          6   DATE:                   January 12, 1998

          7   TIME:                   Commenced at 1:00 p.m.
                                      Concluded at 6:15 p.m.
              PLACE:                  The Senate Chamber
          9                           The Capitol
                                      Tallahassee, Florida
              REPORTED BY:            MONA L. WHIDDON
         11                           KRISTEN L. BENTLEY
                                      JULIE L. DOHERTY
         12                           Court Reporters
                                      Division of Administrative Hearings
         13                           The DeSoto Building
                                      1230 Apalachee Parkway
         14                           Tallahassee, Florida













          1                             APPEARANCES


          3   CARLOS ALFONSO
              CLARENCE E. ANTHONY
          4   ANTONIO L. ARGIZ
              ROBERT M. BROCHIN
              KEN CONNOR
          7   CHRIS CORR  (EXCUSED)
          8   VALERIE EVANS
         10   PAUL HAWKES
         12   DICK LANGLEY
              JOHN F. LOWNDES
         13   STANLEY MARSHALL
         14   JON LESTER MILLS
              FRANK MORSANI
              CARLOS PLANAS
         16   JUDITH BYRNE RILEY
         17   SENATOR JIM SCOTT
              H. T. SMITH
         18   CHRIS T. SULLIVAN  (EXCUSED)
              ALAN C. SUNDBERG  (EXCUSED)
              PAUL WEST
              STEPHEN NEAL ZACK
              PAT BARTON
         22   IRA H. LEESFIELD




          1                             PROCEEDINGS

          2             (Roll taken and recorded electronically.)  

          3             SECRETARY BLANTON:  All commissioners indicate your

          4        presence.  All commissioners indicate your presence.

          5        Happy New Year.  (Pause.)  All commissioners indicate your

          6        presence.  All commissioners indicate your presence.

          7             CHAIRMAN DOUGLASS:  All right.  If you will take your

          8        seats, please.  Take your seats please.  Everyone in their

          9        seats.

         10             SECRETARY BLANTON:  Quorum present, Mr. Chairman.

         11             CHAIRMAN DOUGLASS:  I would like to call on

         12        Commissioner Evans to give the prayer.  If everybody would

         13        rise, please.  Let us pray.

         14             COMMISSIONER EVANS:  Our Heavenly Father, we thank

         15        you for your ever presence, thank you for your guidance.

         16        Open our hearts so we will be allowed to vote as you guide

         17        today, amen.

         18             (Pledge of Allegiance.)

         19             CHAIRMAN DOUGLASS:  Before we begin our daily order

         20        of business, I would like to take a few minutes to take a

         21        brief overview of where we are and where we are going as

         22        we start the new year.  The bulk of our work will be in

         23        full commission meetings.

         24             Our aim is to have all preliminary votes taken by the

         25        last week in February so the style and drafting committee


          1        can work on the amendments that have been preliminarily

          2        approved.  In March, we have scheduled three public

          3        workshops to receive feedback on those amendments and then

          4        we'll meet again in the spring to take our final votes.

          5             As you can tell by that schedule, the bulk of our

          6        time commitment is going to be January and February, as we

          7        take preliminary votes on these proposals.  I'm asking

          8        that you clear your calendars accordingly and that you,

          9        over the next two months, and that you renew your

         10        commitment to the commission and its work.  And I thank

         11        you, as chairmen, for the fine work that's been

         12        accomplished thus far.

         13             Before we get to the daily order of business, there

         14        are a couple of announcements that I would like to make.

         15        Commissioner Carlos Alfonso has graced the state of

         16        Florida with another little Alfonso in your absence.  He

         17        has a new daughter named Isabella Katherine Alfonso, who

         18        is his third child.  (Applause.)  We would like to express

         19        our condolences to Dorothy, as we have before, for having

         20        married you, but congratulate her on this fine achievement

         21        and we are very proud of that.

         22             I would like to also recognize the death of one of

         23        our commissioners on the '68 commission, Mr. Joe Jacobs,

         24        Joseph C. Jacobs, an attorney here in Tallahassee, was 74

         25        years old.  He died Saturday with a heart attack.  His


          1        funeral is tomorrow at 3:00 in the First Baptist Church.

          2        Mr. Jacobs was one of the truly outstanding Floridians in

          3        his career.

          4             And I know Commissioner Barkdull served with him in

          5        '68 and has known him a long time.  You might want to say

          6        something in that regard.  Commissioner Barkdull, you are

          7        recognized.

          8             COMMISSIONER BARKDULL:  Thank you Mr. Chairman,

          9        members of the commission.  In reflecting on Joe Jacobs'

         10        service on the '68 constitution, I am reminded of the

         11        wisdom he brought to that body.  In the old Senate chamber

         12        that we had, he sat about where Commissioner Langley's

         13        desk is now.  He was of immeasurable aid to the commission

         14        because there were a lot of knotty problems that got sent

         15        to select committees.

         16             The select committee usually had three people on it;

         17        a strong person for the proponents, a strong person for

         18        the opponents, and the person that was the conciliator was

         19        Joe Jacobs.  And many, many times he got us through many

         20        thorny problems with his quiet wisdom and demeanor.  He

         21        was an ardent student of the Constitution revision.  And

         22        as recently as of last August or September, I had the good

         23        fortune to spend a breakfast with him and receive his

         24        input as to what he thought this commission ought to be

         25        considering.


          1             Florida has lost a true citizen, a true person

          2        interested in government, and interested in government not

          3        only for his clients, but for the good of the people of

          4        Florida.  And he will be sorely missed.

          5             CHAIRMAN DOUGLASS:  Thank you, Commissioner Barkdull.

          6        I would like to ask the commission, if you would please,

          7        for a moment of silent prayer in memory of Joe and for his

          8        survivors.

          9             (Pause.)

         10             CHAIRMAN DOUGLASS:  Before we get started again, I

         11        would like to first call your attention to the group of

         12        articles that occurred in yesterday's Tallahassee

         13        Democrat.  I think they are on your desk.  In spite of the

         14        fact that they had Commissioner Connor and Commissioner

         15        Smith there scaring everybody that picked it up, it was

         16        just an outstanding piece of work.  Incidentally, those

         17        were very good pictures, gentleman.  And it was cleaned

         18        up, as I understand, by having Commissioner Ford-Coates'

         19        picture, which certainly improved that a lot.

         20             But the articles that were written were, without a

         21        doubt, one of the most thoughtful things we had in the

         22        press and well presented.  And I think I would like to

         23        recognize that and recommend that you read it.  And it

         24        gives us a lot to think about too, because articles were

         25        there by law students on certain chosen subjects, as well


          1        as some of the other things in the editorial that we are

          2        considering and recommendations.

          3             They weren't as much recommendations as what you

          4        usually see as they were informative about the subject

          5        matter that we are dealing with.  And it was very much

          6        appreciated.

          7             As far as members that are not present today, there

          8        are some who are excused.  Commissioner Corr was

          9        unavoidably scheduled so that he couldn't get here, and he

         10        will arrive and be here from Wednesday on.  Commissioner

         11        Jennings is likewise, it's impossible for her to be here

         12        today and tomorrow, but she will be here from Wednesday

         13        through the rest of the week.  Commissioner Rundle should

         14        be here shortly.  She had -- was unable to come last night

         15        and was on a plane that should be arriving about now.

         16             Commissioner Sullivan had a death in his family in

         17        Kentucky and we are not sure when he will arrive.  But he

         18        has not returned so that he is in a position to serve here

         19        today.  Commissioner Wetherington is at a function which

         20        requires his absence all week.  Commissioner Mathis, who

         21        is not here today, will be here on Tuesday, tomorrow.

         22             And Commissioner Sundberg, I'm informed that his son

         23        is seriously ill with cancer.  Is that right, Justice

         24        Kogan?  I think he's had it for some time.  You might

         25        report on Commissioner Sundberg, but he's excused.  Take


          1        the mike.

          2             COMMISSIONER KOGAN:  What's that?

          3             CHAIRMAN DOUGLASS:  A little help from Commissioner

          4        Mills, he's showing you where the mike was.

          5             COMMISSIONER KOGAN:  It's very, very, very serious,

          6        about as serious as you can possibly get.  He's there now

          7        and we wish them all the best in everything.

          8             CHAIRMAN DOUGLASS:  All right.  If any of you have an

          9        opportunity, you might want to convey our support and

         10        prayers for Commissioner Sundberg and his family.  Those

         11        are the only excuses that we have.  Others that are absent

         12        are absent without excuses and I presume will appear at

         13        some point.

         14             We are ready, I think, to proceed to the daily order

         15        of business.  Do we have any communications to receive?

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

         17             CHAIRMAN DOUGLASS:  Of course, we don't introduce

         18        proposals, they are all introduced.  And Commissioner

         19        Barkdull is recognized to report from the committee on

         20        rules and administration.  Commissioner Barkdull.

         21             COMMISSIONER BARKDULL:  Thank you, Mr. Chairman,

         22        members of the commission.  You have on your desk the

         23        printed calendar that shows the committee meetings,

         24        blocked out calendar for the week and commencing on Page 4

         25        is a proposed special order calendar for today.  If we


          1        don't complete that, it would be the thought of the rules

          2        committee that this same calendar would go over to

          3        tomorrow.

          4             At this time, Mr. Chairman, I would like to move that

          5        special calendar as proposed and shown in the written

          6        calendar be approved.

          7             CHAIRMAN DOUGLASS:  Without objection the special

          8        order calendar is approved.  It is approved.  Proceed,

          9        Commissioner Barkdull.

         10             COMMISSIONER BARKDULL:  On your desk, Commissioners,

         11        you will find an orange packet.  This packet contains an

         12        explanation of each of the proposals as they come up in

         13        the order in which they are on the special order calendar.

         14        There's one change, which is 151, it's almost at the end

         15        of it, it was a misprint.  The corrected version is

         16        inserted in your packet.  Please hang on to this because I

         17        doubt we will finish it today and you will need it

         18        tomorrow, and this will be -- will not be redistributed.

         19             There will be a supplemental calendar prepared for

         20        tomorrow, which will also have a color binder on it that

         21        will contain the additional items that will be coming

         22        before the commission.  And that will be distributed to

         23        you as we reach those items.

         24             You also have on your desk what you have also

         25        received in the mail, again, the proposed calendar for the


          1        rest of the meetings.  I urge you to consider these.  I

          2        would say to you, as the Chair has indicated, meetings for

          3        January and February are pretty much locked in.  I don't

          4        think they are going to be changed any.

          5             There's a possibility that the public hearings may be

          6        adjusted a day or so, one way or the other, as to what

          7        appears.  We will try to get that information to you as

          8        soon as possible.  One of the problems that we are running

          9        into this time of the year with the tourist influx is

         10        finding sufficient accommodations for the commission to

         11        hold public hearings outside of Tallahassee, which we do

         12        plan to do.

         13             There will certainly be one public hearing in the

         14        Tampa Bay area, one public hearing in Southeast Florida,

         15        and one public hearing in Tallahassee.  That is the

         16        present program.

         17             The select committee on Article V costs is scheduled,

         18        as you see, to meet this afternoon at 5:00.  They will not

         19        meet because of the situation with Justice Sundberg.  They

         20        will meet probably sometime later on in the week, and that

         21        time will be announced when they have decided to have that

         22        meeting.

         23             The rules and calendar committee is scheduled to meet

         24        at 6:00 this evening.  The primary work this afternoon

         25        would be to set tomorrow's calendar.  They have had


          1        distributed to the members of that committee what we would

          2        propose to set for tomorrow and there will be a further

          3        announcement about whether there will actually be a rules

          4        committee meeting as we proceed in the afternoon.

          5             Some of you commissioners have indicated that you

          6        want to withdraw your proposals.  I call to your

          7        attention, as we get to the end of the sessions, that all

          8        of those who think that they should withdraw proposals

          9        should stand up and make such an announcement.  You may

         10        find as we go through the work of the special order, some

         11        of the items you have alive today, you may decide after

         12        the result of what happens in the earlier vote that you do

         13        not want that continued.  If that should occur, please

         14        make a note of the proposal and let's withdraw it.

         15             I understand that Commissioner Nabors has a motion to

         16        correct the journal for one item that was misprinted that

         17        he wished to withdraw, they got the wrong number on it.

         18        If the commissioner would take the floor and give us that

         19        number, we'll get it in the record.

         20             CHAIRMAN DOUGLASS:  I recognize Commissioner Nabors.

         21             COMMISSIONER NABORS:  I also have one I would like to

         22        withdraw.  Do you want me to the wait until the end of the

         23        day?

         24             COMMISSIONER BARKDULL:  Either way.

         25             COMMISSIONER NABORS:  The correction to the journal


          1        would be that I inadvertently withdrew Proposal 65,

          2        Senator Langley's proposal on initiative.

          3             CHAIRMAN DOUGLASS:  Well, he isn't here.

          4             COMMISSIONER NABORS:  It's up to the Chair.  I should

          5        have withdrawn Proposal 175, which is identical to my

          6        Proposal 96 which is on the calendar.  So I would move, I

          7        guess --

          8             CHAIRMAN DOUGLASS:  Without objection, the calendar

          9        shall be so corrected.

         10             COMMISSIONER NABORS:  There's also a Proposal 92,

         11        which is on the agenda for the local government, which is

         12        a proposal relating to noncharter counties, which I would

         13        like to withdraw.  The people that are interested in that,

         14        I have communicated to them and we'll use that as an

         15        amendment if there's an appropriate vehicle.  But it's not

         16        of significant importance that we should have it as a

         17        separate item.

         18             CHAIRMAN DOUGLASS:  Do you know the number?

         19             COMMISSIONER NABORS:  Proposal 92.

         20             CHAIRMAN DOUGLASS:  Without objection, Proposal 92 is

         21        withdrawn from further consideration.  Commissioner

         22        Barkdull.

         23             COMMISSIONER BARKDULL:  At this time, I would like to

         24        defer to Commissioner Connor who has a motion he would

         25        like to make.


          1             CHAIRMAN DOUGLASS:  Commissioner Connor, you are

          2        recognized.

          3             COMMISSIONER CONNOR:  Thank you, Mr. Chairman.  I

          4        rise to request that the body waive the rules and permit

          5        me to file a late-filed proposal.

          6             The commission may recall that there was testimony

          7        during the public hearings in Gainesville on religious

          8        freedom issues and the standard of scrutiny that should be

          9        applied to laws which burden religious practices.  The

         10        Liberty Council's proposal was sent to me while I was

         11        actually in trial down in Sebring, and the deadline for

         12        passage came and went.  And those materials remained

         13        unopened in my hotel room while I was in trial.  So I was

         14        unable to file it within the time line and I would

         15        respectfully request a waiver of the rules to be able to

         16        file that proposal.

         17             CHAIRMAN DOUGLASS:  Without objection the rules are

         18        waived and it will be considered filed and referred to the

         19        declaration of rights committee who will meet again this

         20        week for consideration this week.

         21             Commissioner Smith, I believe, is chairman.  Your

         22        committee met today, too.  You were here before everybody

         23        else at 9:00.  So you have another meeting scheduled this

         24        week and I'll refer it to that, without objection, to that

         25        committee.  Is that agreeable?  It is so done.


          1             Commissioner Barkdull.

          2             COMMISSIONER BARKDULL:  That concludes the report of

          3        the rules and administration.

          4             CHAIRMAN DOUGLASS:  All in favor say aye.

          5             (Verbal vote taken.)

          6             CHAIRMAN DOUGLASS:  Opposed like sign.  Motion very,

          7        very silently carried.

          8             I have been informed that Proposal 17 on the special

          9        order today received and was voted in the declaration of

         10        rights committee.  Correct me if I'm wrong, Commissioner

         11        Smith, to reconsider it in committee; is that correct?

         12             COMMISSIONER SMITH:  That's correct, Mr. Chairman.

         13        There will be a vote for reconsideration tomorrow at the

         14        9:00 to 12:00 meeting.  So we ask that it not be dealt

         15        with today by the full commission.

         16             CHAIRMAN DOUGLASS:  Without objection, we will

         17        temporarily -- well, I guess it would be simpler to

         18        recommit it to the declaration of rights committee for

         19        action on reconsideration tomorrow.  Without objection, it

         20        is recommitted.  That is Proposal No. 17, which was

         21        providing that no person shall be deprived of any right

         22        because of gender or sexual orientation, and that is

         23        recommitted to the declaration of rights committee for

         24        reconsideration tomorrow.  It had been reported

         25        disapproved previously.


          1             Commissioner Riley, Is that your proposal or is it a

          2        combination of yours and somebody else's?

          3             COMMISSIONER RILEY:  No.

          4             CHAIRMAN DOUGLASS:  You have no objection to that?

          5             COMMISSIONER RILEY:  I do not.

          6             CHAIRMAN DOUGLASS:  Commissioner Barkdull, does that

          7        conclude your report?

          8             COMMISSIONER BARKDULL:  Yes, sir.

          9             CHAIRMAN DOUGLASS:  We'll move to the special order.

         10        The first proposal is committee substitute for committee

         11        substitute for Proposal 45 by the committee on executive

         12        and legislative and by Commissioner Henderson.  There are

         13        two amendments on the table.  First I'll ask the clerk to

         14        read the proposal.

         15             READING CLERK:  Committee substitute for committee

         16        substitute for Proposal 45.  A proposal to revise Article

         17        IV, Section 9, Florida Constitution, creating the Fish and

         18        Wildlife Conservation Commission to be composed initially

         19        of the existing members of the Game and Fresh Water Fish

         20        Commission and the Marine Fisheries Commission and

         21        providing for the powers and duties of the commission.

         22             CHAIRMAN DOUGLASS:  All right.  Would you read the

         23        first of the two amendments?  They have been moved already

         24        by Commissioner Henderson and the committee so we'll

         25        proceed with the amendment.


          1             READING CLERK:  By Commissioner Thompson.  On Page 3,

          2        Line 5, after the word "commission" insert "statutes in

          3        effect upon the effective date of this amendment."

          4             CHAIRMAN DOUGLASS:  Commissioner Thompson.

          5             COMMISSIONER THOMPSON:  Thank you, Mr. Chairman and

          6        members.  What this amendment does, and Mr. Henderson and

          7        I have worked this out, is basically nail down the

          8        jurisdiction of this new commission to -- in respect to

          9        marine resources, those that were covered under the

         10        statutes in effect on the effective date of this

         11        amendment.

         12             If you have a copy of the proposed amendment, you

         13        will notice that I have referred to the statute

         14        specifically, and we don't think that's good

         15        draftsmanship.  If there's something that needs to be done

         16        in the schedule as we go to style and drafting, we'll work

         17        through that.

         18             CHAIRMAN DOUGLASS:  Before we proceed, Commissioner

         19        Henderson, this is the proposal that unified the current

         20        Game and Fresh Water Fish Commission in the Constitution

         21        and to combine with that the Marine Fisheries Commission;

         22        is that correct?

         23             COMMISSIONER HENDERSON:  Yes, sir.

         24             CHAIRMAN DOUGLASS:  And this amendment --

         25             COMMISSIONER HENDERSON:  And I have no objection.


          1             CHAIRMAN DOUGLASS:  -- what it does, it's been

          2        explained by Commissioner Thompson, just clarifies the

          3        language to make clear that there's no intent that this

          4        commission be given the power to control things that are

          5        now legislatively controlled that relates to water,

          6        wetlands, things of that nature; is that correct?

          7             COMMISSIONER HENDERSON:  We have already got that

          8        covered, Mr. Chairman.

          9             CHAIRMAN DOUGLASS:  I think it's already covered, but

         10        somebody needs to tell the commission and public what we

         11        are talking about here before we vote on it.

         12             COMMISSIONER HENDERSON:  On the amendment or the

         13        whole proposal?

         14             CHAIRMAN DOUGLASS:  The whole proposal with the

         15        amendment.  You are recognized, Commissioner Henderson.

         16        Commissioner Thompson yields.  Thank you.

         17             COMMISSIONER HENDERSON:  Thank you.  What the

         18        amendment does, Mr. Chairman and members, is to clarify

         19        that what we are dealing with is the current jurisdiction

         20        authority of the Marine Fisheries Commission.  Now, that's

         21        defined in Section 370 of Florida Statutes.  We are

         22        dealing simply with the very narrow aspect of merging that

         23        authority with the new commission.  Other issues relating

         24        to the current authority of the Department of

         25        Environmental Protection as it may be to other things,


          1        some future Legislature is going to have to do.  We are

          2        not addressing that list.

          3             This amendment as offered by Commissioner Thompson

          4        helps define this and it's consistent with all the

          5        agreements that we have reached with all of the other

          6        interested parties.

          7             CHAIRMAN DOUGLASS:  And you support the amendment?

          8             COMMISSIONER HENDERSON:  Support the amendment.

          9             CHAIRMAN DOUGLASS:  Does anybody else want to speak

         10        on the amendment, this amendment?  There's one coming.

         11        The other has been withdrawn?  All right.  So this is the

         12        only amendment under consideration.  Do you rise to speak

         13        on the amendment?

         14             COMMISSIONER BARKDULL:  To ask a question.

         15             CHAIRMAN DOUGLASS:  Commissioner Thompson -- is that

         16        who you want to question?

         17             COMMISSIONER THOMPSON:  I yield.

         18             COMMISSIONER BARKDULL:  Commissioner Thompson, as I

         19        understand it, if this amendment passes what we are doing,

         20        if this proposal passes this November, what we are doing

         21        is locking into the Constitution a statute; is that

         22        correct?

         23             COMMISSIONER THOMPSON:  Locking into the Constitution

         24        a reference to the jurisdiction of the new creation which

         25        is defined by the statutes as they exist at that time,


          1        which hopefully will be the same.  That would be '98,

          2        November of '98.  We do have a legislative session between

          3        now and then.

          4             COMMISSIONER BARKDULL:  In effect what it is, it's

          5        locking what you have got in your hand, the statute book,

          6        into the Constitution, by reference.

          7             COMMISSIONER THOMPSON:  That's right.  370.027 is the

          8        original draft of the amendment before you.  I'm changing

          9        that language because we don't think it's wise to put a

         10        reference to a statutory number in the Constitution, but

         11        that is in fact what we are referring to, 370.027, which

         12        is entitled, Rulemaking Authority With Respect to Marine

         13        Life.  That is a statute under which the Marine Fisheries

         14        Commission has been operating and their jurisdiction has

         15        been defined.  That is very narrowly what we are trying to

         16        transfer over to the new agency by this proposal.

         17             COMMISSIONER BARKDULL:  I'm not trying to be an

         18        opponent, but I'm concerned about the fact that you have

         19        now -- if we do what your amendment proposes and what also

         20        is in the proposal by Commissioner Henderson, where it

         21        makes a reference to a statute, we lock that statute into

         22        the Constitution, the Legislature can't touch it.

         23             CHAIRMAN DOUGLASS:  My question first -- and you

         24        might want a ruling from the Chair on that, Commissioner

         25        Barkdull.  You are objecting, for example, to whether or


          1        not we can do this; is that right?

          2             COMMISSIONER BARKDULL:  No, sir, I'm not objecting to

          3        whether or not you can do it.  I recognize that you can do

          4        it.

          5             CHAIRMAN DOUGLASS:  Well, question:  It's my

          6        recollection from what he said that this will not be in

          7        the Constitution.  That this is a part of the schedule

          8        which in effect defines what can't be done by the new

          9        commission.  That's the way I understood his explanation.

         10        With that regard, I would rule that it does not lock the

         11        statute into the Constitution, if it's presented in that

         12        fashion.

         13             COMMISSIONER BARKDULL:  It was not my understanding

         14        that it was going to be presented in the schedule.

         15             CHAIRMAN DOUGLASS:  Let's clarify it.

         16             COMMISSIONER THOMPSON:  Let me answer the question

         17        based on what I think.  What I'm trying to do and what I

         18        think is being done here is -- I am a little surprised.

         19        If you will hear me out, you will realize what I'm doing.

         20             I don't want the Legislature to come back and be able

         21        to expand the jurisdiction of this constitutional agency.

         22        I want the Legislature to be able to retain the

         23        jurisdiction it now has, other than that specifically in

         24        this statute.  I want that then to go over to the new

         25        constitutional agency, but I don't want the Legislature to


          1        be able to keep transferring things into this agency.

          2             Now, they are going to have a certain jurisdiction.

          3        And my other amendment up there addressed that, but I

          4        think it's already covered and Commissioner Henderson has

          5        acknowledged that it is already covered, that other than

          6        by an act of the Legislature, there will be nothing done

          7        further in respect to regulatory matters and so forth,

          8        than is presently done.  But that can be done in the

          9        future, as the Chairman is pointing out.

         10             But the jurisdiction itself will not go beyond the

         11        jurisdiction of that statute today.  Within that context,

         12        the regular authority will come and go as the Legislature

         13        determines.

         14             CHAIRMAN DOUGLASS:  All right.  There any further

         15        comments on the amendment, for or against?  If not, all of

         16        those in favor of the amendment signify by saying aye.

         17        Opposed, like sign.

         18             (Verbal vote taken.)

         19             CHAIRMAN DOUGLASS:  The amendment carries

         20        unanimously.  We'll now move to the proposal as amended.

         21        Commissioner Thompson.

         22             COMMISSIONER THOMPSON:  Are we there, I want to ask

         23        you one question.

         24             CHAIRMAN DOUGLASS:  I'll give the floor to

         25        Commissioner Henderson, and he'll yield to you -- before


          1        he even says anything -- for a question, if you want him

          2        to.

          3             COMMISSIONER HENDERSON:  Mr. Chairman, I was going to

          4        be brief in my explanation of the amendment, but to make

          5        it even briefer, I would be more than happy to yield to

          6        Commissioner Thompson.

          7             COMMISSIONER THOMPSON:  Thank you, Mr. Chairman.  I

          8        appreciate it.  I didn't know how fast you were rolling,

          9        that's the reason I wanted to --

         10             CHAIRMAN DOUGLASS:  We are rolling, we have got a

         11        long way to go.

         12             COMMISSIONER THOMPSON:  I have heard you say that

         13        several times, that's the reason I jumped up.

         14             Commissioner Henderson, I just want to be sure, my

         15        other proposed amendment, which I have withdrawn, would

         16        require that no other duties or responsibilities of any

         17        division, commission or agency of state government shall

         18        be transferred to the Fish and Wildlife Conservation

         19        Commission except by act of the Legislature, and my and

         20        your understanding is right now that that is covered in

         21        the present language; is that correct?

         22             COMMISSIONER HENDERSON:  That's correct, Commissioner

         23        Thompson.  In fact, I want to commend you for the

         24        explanation that you gave to Commissioner Barkdull just a

         25        few minutes ago because we need to keep in mind that this


          1        is a constitutional commission.

          2             So you are exactly right, the things that we give

          3        this today are that juncture of regulatory and executive

          4        authority which makes this constitutional commission

          5        different.  A future Legislature can transfer other

          6        regulatory authority, but with that would go review by the

          7        Administrative Procedure Act and other things.  So we

          8        believe that we have very narrowly drafted this proposal

          9        which is before you today to address those specific

         10        issues.

         11             CHAIRMAN DOUGLASS:  Any proponents?  Any opponents to

         12        this particular provision?  We have discussed this before.

         13             COMMISSIONER HENDERSON:  Mr. Chairman --

         14             CHAIRMAN DOUGLASS:  Yes.

         15             COMMISSIONER HENDERSON:  -- if I could.  I appreciate

         16        the way that you are trying to move this along and I don't

         17        want to talk myself out of it, but I've got to tell you,

         18        Mr. Chairman, I have tried to tell a story every time I

         19        have taken --

         20             CHAIRMAN DOUGLASS:  Well, we love your stories

         21        because I remember the miracle that occurred in Daytona

         22        Beach.

         23             COMMISSIONER HENDERSON:  It was a miracle.  I've got

         24        to tell you last night -- this is my story from last

         25        night.


          1             It was a pretty night, full moon, my son and I walked

          2        across the street and we convinced a couple of speckled

          3        trout to come out of the water and talk to us last night,

          4        with a rod and reel.  And it got a little chilly and we

          5        came back.  My boy is seven years old.  He said, Daddy,

          6        tomorrow how about picking me up from school and we'll go

          7        fishing.  And I said, Craig, I can't do that because I

          8        have got to go to Tallahassee.

          9             And he said, Dad, you are going to Tallahassee too

         10        many times, too many times.  Tell me, tell me the truth.

         11        Are you really going there to go fishing and you are not

         12        taking me?  I said, Craig, it's more than you would ever

         13        believe, what we're doing.  So let's talk about fishing

         14        and get this done this afternoon.

         15             And somebody else has been quiet over there, a new

         16        daddy.  And I want to thank, of course, Commissioner

         17        Thompson for all of the work that he's put in this

         18        legislative committee, but there's another proud, proud

         19        daddy of this proposal, which is the chairman of the

         20        executive committee, Commissioner Alfonso, who is

         21        passionate about this issue as well.  And I told him that

         22        we were not going to take this up until he got here and

         23        I'm glad he got here to cast a vote in favor of this.

         24             CHAIRMAN DOUGLASS:  Very well, if there's no further

         25        discussion, and if we'll have no more love-ins, then we'll


          1        proceed to vote on this particular proposal, Proposal

          2        No. 45, as amended.

          3             Would you read it again?

          4             READING CLERK:  Committee substitute for committee

          5        substitute for Proposal 45.  A proposal to revise Article

          6        IV, Section 9, Florida Constitution, creating the Fish and

          7        Wildlife Conservation Commission to be composed initially

          8        of the existing members of the Game and Fresh Water Fish

          9        Commission and the Marine Fisheries Commission and

         10        providing for the powers and duties of the commission.

         11             CHAIRMAN DOUGLASS:  All right.  Unlock the machine.

         12        Has everybody voted?  Lock the machine.

         13             (Vote taken and recorded electronically.)

         14             READING CLERK:  Twenty-four yeas and zero nays,

         15        Mr. Chairman.

         16             CHAIRMAN DOUGLASS:  Good work, Commissioner

         17        Henderson, your fishing paid off.

         18             All right.  Proposal 123 by Commissioner Barkdull.

         19        Would you read that, please, sir?

         20             READING CLERK:  Proposal 123, a proposal to revise

         21        Article XI, Florida Constitution, repealing Section 6

         22        relating to the taxation and budget reform commission.

         23             CHAIRMAN DOUGLASS:  Commissioner Barkdull.

         24             COMMISSIONER BARKDULL:  Mr. Chairman and members of

         25        the commission, this is a very simple proposal.  We had


          1        testimony at the Orlando meeting by Pat Turnillo who has

          2        been a member of the only budget and tax commission that

          3        we have had, that he didn't think that it should be

          4        considered continued in the Constitution.  Commissioner

          5        Barnett also served on the only one that we have had and

          6        it was -- my conversations with her other than today was

          7        that she wasn't so sure that it was a good thing.

          8             I particularly don't like the vote system that's in

          9        there because it enables four people to stop what that

         10        body does.  I understand Commissioner Barnett is preparing

         11        an amendment which should be on the desk.

         12             CHAIRMAN DOUGLASS:  It isn't here yet.

         13             COMMISSIONER BARKDULL:  Well, the purpose of her

         14        amendment would be to straighten out the vote problem.

         15        But that still leaves the question of whether we want to

         16        have this as an independent body that calls for

         17        approximately 25 voting members and four nonvoting

         18        members, which is approximately the same size as this

         19        commission, and of course, will require substantial funds.

         20             There was an amendment to the Florida Constitution in

         21        1996, which permits the revision commission, us or

         22        subsequent ones, to take up tax matters.  That was not

         23        true prior to '96 from the effective date of the original

         24        passage of the budget and tax commission.  So, now, there

         25        are two bodies that have this jurisdiction; a


          1        Constitutional Revision Commission and a budget and tax

          2        reform commission.

          3             I don't know whether we necessarily need the

          4        duplicates.  I know one thing, if we were going to

          5        continue it, the proposal, amendment that Commissioner

          6        Barnett is going to offer would at least make it a better

          7        bad provision.  And I urge the passage of it.

          8             CHAIRMAN DOUGLASS:  The present proposal moves to

          9        abolish the tax and budget reform commission and

         10        Commissioner Barnett rises to offer an amendment, which

         11        isn't here yet.  Or is it?

         12             COMMISSIONER BARNETT:  Am I recognized?

         13             CHAIRMAN DOUGLASS:  You are recognized.  You have got

         14        to start getting this done earlier, Commissioner.  I mean,

         15        you know, you are just our star member.

         16             COMMISSIONER BARNETT:  Flatter me before you shoot

         17        me, right?

         18             CHAIRMAN DOUGLASS:  I recognize learned Commissioner

         19        Barnett.

         20             COMMISSIONER BARNETT:  Thank you, Mr. Chairman.  And

         21        I do apologize for the delay of this.  But the staff has

         22        prepared an amendment, let me explain it to you and maybe

         23        give you just a minute of background about my position on

         24        this issue.

         25             I was a little schizophrenic, as Commissioner


          1        Barkdull may have indicated.  I had the privilege of

          2        serving on the taxation and budget reform commission.  And

          3        I found it one of the most educational experiences of my

          4        life.  I do a lot of tax work in my private practice of

          5        law, and I found it to be just enormously helpful to me in

          6        understanding the tax structure of the state of Florida

          7        and the challenges that we have in the state of Florida as

          8        a result of our unique tax structure.

          9             It was also the most frustrating experience of my

         10        professional career for a number of reasons.  But one of

         11        the main reasons, as I've reflected upon it, was not the

         12        frustration with the commission itself, because it is a

         13        tax and budget commission.  Many of the budget proposals

         14        were actually adopted.  Some of them are now being refined

         15        and modified, but many of those budget proposals that went

         16        to accountability of state government were adopted.  None

         17        of the tax proposals, the proposals to restructure the tax

         18        system were adopted.

         19             So it's very frustrating to be a citizen of the state

         20        that was the fastest growing state in the country, and we

         21        really could not address what in many ways is an arcane

         22        and outdated tax structure in a tax commission.  So I

         23        found it frustrating and felt like, well, let's let the

         24        Constitution Revision Commission address it, it is an

         25        appropriate body as well.


          1             I now having been in this commission, serving on the

          2        tax committee, and while that committee has worked hard

          3        and continues to work hard to address some issues that are

          4        important to the tax structure of this state, I do not

          5        believe that there is time in that process, in this

          6        process, to give the thoughtful and much needed review on

          7        a periodic basis of the entire tax and budget structure of

          8        our state.

          9             I think we are in a position where duplication may be

         10        all right in this particular area, that there is much to

         11        be gained from the deliberate and intensive look at the

         12        tax bonding and budgeting aspects of our state government.

         13        And so I have come to the conclusion that it is very good

         14        for Florida, particularly as we go into the, you know, the

         15        next millenium and as our state faces enormous challenges

         16        in terms of funding government, investing in human

         17        capital, and in securing for our citizens the type of life

         18        in this state they want.

         19             What is wrong with this proposal is the cumbersome,

         20        in fact, almost impossible system that the Constitution

         21        places on the voting.  There are, as with us, three people

         22        appoint the members of the commission; the Governor, the

         23        Speaker and the President.

         24             But unlike our commission, the Constitution currently

         25        specifies the minimum number of votes that are required in


          1        order for the proposal to be on the ballot and requires

          2        not only a super majority vote, but that a majority of

          3        each of the members of the appointing body have to also be

          4        in favor.  And as Commissioner Barkdull indicated, that

          5        allows a very small number of people to actually impact

          6        and control what goes on the ballot.

          7             It was done in an abundance of caution, and to make

          8        sure that only considered, consensus positions went on the

          9        ballot.  I think it had the unintended consequence of

         10        really hamstringing the commission in its work and in its

         11        ability to present a proposal to the citizens.

         12             So the substitute proposal that I have prepared

         13        continues the tax and budget reform commission, but

         14        strikes the language in the Constitution, and I'll be glad

         15        to read that language to you, it is Article XI, Section 6,

         16        it strikes the language which requires -- which sets forth

         17        and mandates the voting procedure for the commission.  And

         18        that is in Section 6, Subsection C.  I don't know where it

         19        is, maybe it's coming right now.  And if I keep

         20        filibustering maybe it'll get on the desk by the time

         21        it --

         22             CHAIRMAN DOUGLASS:  It just arrived on my desk.  The

         23        amendment is on the desk and you may now proceed to --

         24        Commissioner Mills, did you rise to question?

         25             COMMISSIONER BARNETT:  I concluded by remarks, unless


          1        someone wanted to ask me a question.

          2             CHAIRMAN DOUGLASS:  Did you want to question the

          3        proponent of the amendment or did you rise to support it?

          4             COMMISSIONER MILLS:  I rise to support it.

          5             CHAIRMAN DOUGLASS:  Commissioner Mills is recognized

          6        to support the amendment.

          7             I have one question that occurred to me when I was

          8        reading this.  Doesn't this also include other items that

          9        are significant to this particular constitutional

         10        provision, such as a 72-hour rule and some of those other

         11        things; or does it?

         12             COMMISSIONER BARNETT:  The 72-hour rule I do not

         13        believe is in Section 6.

         14             CHAIRMAN DOUGLASS:  But it is in the actual provision

         15        though, isn't it?

         16             COMMISSIONER BARNETT:  I was not aware it was in --

         17        it is not my intention to address the 72-hour rule.  I

         18        don't believe it's in Section 6.

         19             CHAIRMAN DOUGLASS:  That's in Article III, then, is

         20        that right, Commissioner Mills?

         21             COMMISSIONER MILLS:  Yes, Mr. Chairman.  I don't have

         22        a copy --

         23             CHAIRMAN DOUGLASS:  That's not involved here.  That

         24        was implied in the summary, is the reason I ask that

         25        question.  I want to clear that up.  The only thing we are


          1        dealing with is the existence of the commission and, as

          2        you have discussed and as Commissioner Barkdull has

          3        discussed, your amendment, as you have explained, would

          4        relate or maybe we would do better to read the amendment

          5        instead of us trying to explain it.

          6             Would you read the amendment, please.  And then,

          7        Commissioner Mills, you will be recognized.  Everybody pay

          8        attention, please, we are going to read the amendment.

          9             READING CLERK:  By Commissioner Barnett, on Page 1,

         10        Lines 2 and 3.  Delete those lines and insert lengthy

         11        amendment.

         12             CHAIRMAN DOUGLASS:  And the amendment then,

         13        Commissioner Barnett --

         14             COMMISSIONER BARNETT:  Let me try one more time.

         15             Article XI, Section 6, creates the tax and budget

         16        reform commission.  In (c), which is a procedural

         17        paragraph, one of the items in (c) sets forth the voting

         18        procedure, mandates a voting procedure for the commission.

         19        This amendment, as you will see on Page 2, Lines 13 to 22,

         20        strikes the language in the current Constitution mandating

         21        an affirmative vote of 22 members of the commission;

         22        and -- it is a cumulative requirement -- and a majority

         23        vote of the members appointed by each of the appointing

         24        authorities.  And that is all it does.

         25             CHAIRMAN DOUGLASS:  It strikes that.  All right.  I'm


          1        going to rule, in view of the fact that Commissioner

          2        Barkdull moves to strike the whole thing, that this is a

          3        substitute proposal and you have amended the present one

          4        by striking this language.  We will proceed on the debate,

          5        because it is a substitute for Commissioner Barkdull's

          6        motion, without objection.  Commissioner Mills.

          7             COMMISSIONER MILLS:  Mr. Chairman, what this does is

          8        simply strike all of the language that was created when

          9        this was initially drafted.  I simply rise to say why this

         10        was initially drafted this way in 1988.

         11             And it was initially drafted this way, I think, for

         12        exactly the reason that you have suggested.  But I think

         13        there was some fear that strange or inadequate proposals

         14        might emerge.  And I think that in the new world where

         15        there is more parity among parties, et cetera, that's

         16        highly unlikely when you have a majority vote of a

         17        commission.  This design really does make it incredibly

         18        difficult.

         19             If we were to continue this commission, I would agree

         20        with Commissioner Barnett that this at least makes it

         21        viable.  Keep in mind, this commission still has to go to

         22        the people with these proposals, just as we would.  And

         23        without this, it makes it impossible.  If you can imagine

         24        how we would have to operate, we have operated as a

         25        commission of hope.  I have seen people vote very


          1        independently, vote their minds and vote their conscience.

          2             But it must be an interesting experience for this

          3        commission to have to divide up by appointees and figure

          4        out if the majority of each of the appointees is in favor

          5        of a position.  That seems to me to be a destructive means

          6        of failure.  So I would favor Commissioner Barnett's

          7        proposal.

          8             CHAIRMAN DOUGLASS:  Any other proponents of the

          9        substitute proposal which has been explained?  Any

         10        opponents?

         11             If not, we'll proceed to vote.  Lock the machine.

         12             (Vote taken and recorded electronically.)

         13             CHAIRMAN DOUGLASS:  Announce the vote.

         14             READING CLERK:  Twenty-two yeas and zero nays,

         15        Mr. Chairman.

         16             CHAIRMAN DOUGLASS:  We are on a roll.  We'll move to

         17        the next proposal, which may end the roll.  The proposal

         18        passed unanimously.  As I understand it, that does away

         19        with the proposal, Commissioner Thompson.  We will vote

         20        now on the proposal.  Do it again.

         21             COMMISSIONER THOMPSON:  But I want to ask a question.

         22             CHAIRMAN DOUGLASS:  You want to ask a question before

         23        we vote?

         24             COMMISSIONER THOMPSON:  I came to my senses.

         25             CHAIRMAN DOUGLASS:  When you saw it was unanimous, it


          1        woke you up; didn't it?

          2             COMMISSIONER THOMPSON:  I wasn't in the Legislature

          3        in '88, I left them in pretty good shape, but now this is

          4        part of the problem that they started developing here so I

          5        just wanted to ask or maybe say a word and maybe vote

          6        against this thing if it really comes up for final

          7        passage.  I know Commissioner Barnett and I'm real

          8        concerned because I don't want to vote against her idea

          9        until I really understand it well.

         10             But the Legislature had a purpose in not just rolling

         11        right to the ballot things that got a simple majority in

         12        an appointed group like this.  Now, I know that's what we

         13        are, and I know how we operate and how we have operated.

         14        I also know that we only meet every 20 years under the

         15        present Constitution.

         16             I'm just wondering how often this group meets, for

         17        example, because if every year everybody in the state is

         18        going to be subject to a panel appointed by somebody going

         19        directly to the ballot to tax them out of business, I'm

         20        going to be concerned about it and I imagine a lot of

         21        people will be.  Tell me that ain't so.

         22             CHAIRMAN DOUGLASS:  Commissioner Barnett.  Do you

         23        yield to her to answer your question?

         24             COMMISSIONER BARNETT:  It ain't so, Commissioner

         25        Thompson; it ain't so.  And the commission has the


          1        authority, just as our commission does, to adopt rules of

          2        procedure and they would have the right to adopt an

          3        extraordinary vote if they felt it was appropriate to

          4        actually send proposals to the ballot.  This commission

          5        meets every 10 years.  And I do not remember when they

          6        meet again, maybe in 2001 or something like that.

          7             But there are restrictions in the Constitution --

          8        protections in the Constitution for the concerns that you

          9        have.  You left the Legislature in good hands and they

         10        acted appropriately.

         11             CHAIRMAN DOUGLASS:  Do you yield to Commissioner

         12        Barkdull?  Commissioner Barkdull.

         13             COMMISSIONER BARKDULL:  If I understand it, what you

         14        have -- the posture that we are in with the ruling of the

         15        Chair, your proposal was a substitute and it's now been

         16        adopted.  I voted for it because I wanted to see what your

         17        reaction was.  What has happened, and I ask you this as a

         18        question, it's now possible that the next tax and budget

         19        commission, by a simple majority, to put on the ballot to

         20        repeal the income taxes.

         21             COMMISSIONER BARNETT:  Yes.

         22             CHAIRMAN DOUGLASS:  It's possible now; is that right?

         23             COMMISSIONER BARNETT:  It's not possible with the

         24        Constitution Revision Commission because of our procedural

         25        rules.  Constitutionally, but for our rules, this


          1        commission could have put that on the ballot.

          2             COMMISSIONER BARKDULL:  That was not my question.

          3             COMMISSIONER BARNETT:  My answer is that with this

          4        amendment, it would be possible for the tax and budget

          5        reform commission to put any proposal on the ballot, on a

          6        simple majority vote of the commission.  I submit that I

          7        believe that would be highly unlikely, set aside a

          8        personal income tax.  But taxes issues in general and

          9        budget issues in general, I believe, that they would adopt

         10        the wisdom in this body in trying to get a super majority

         11        of the body.

         12             The real problem, Commissioner Barkdull, was not the

         13        majority vote, I mean the super majority vote.  The real

         14        problem in the Constitution is the requirement that each

         15        of the appointing bodies, that there be a majority vote of

         16        each of those appointing bodies, as Commissioner Mills

         17        stated.  That would require -- that required the people

         18        who were appointed, for example, by the Governor to caucus

         19        and to talk about issues.

         20             It was a device -- it had the effect of being

         21        divisive because, you know, it made people think, well,

         22        there's something magic about who sent me here as opposed

         23        to the requirement as a public officer to look at what was

         24        in the best interest of the people without regard to who

         25        sent them there.  That's the real kernel of error in the


          1        provision now.

          2             COMMISSIONER BARKDULL:  As I've indicated to you and

          3        I indicated to the commission, I certainly think that that

          4        was a big problem, and I recognized that from the

          5        beginning.  But also, after seeing what this commission

          6        did 20 years ago with a simple majority of one vote

          7        carrying it and putting things on the ballot, I would like

          8        your situation that we're in now -- and one reason I voted

          9        for this is so I can put it on reconsideration.  We would

         10        be better off to lock in a three-fifths vote before they

         11        put something on the ballot.

         12             CHAIRMAN DOUGLASS:  Do you offer that as an

         13        amendment?

         14             COMMISSIONER BARKDULL:  No, sir, not at this point.

         15        I don't have the reconsideration.

         16             COMMISSIONER BARNETT:  It's still available for

         17        amendment.

         18             COMMISSIONER BARKDULL:  The Chair ruled that this

         19        passed; that superseded my proposal.

         20             COMMISSIONER BARNETT:  Now the debate is on the

         21        committee substitute, as I understand it.

         22             COMMISSIONER BARKDULL:  That wasn't my understanding

         23        of what he took the vote on.

         24             COMMISSIONER BARNETT:  You can amend the committee

         25        substitute.


          1             COMMISSIONER BARKDULL:  I understand that.

          2             COMMISSIONER BARNETT:  I'm not the Chair, but --

          3             COMMISSIONER BARKDULL:  I understand that, but my

          4        understanding from the ruling from the Chair, was that we

          5        adopted what you proposed, it was a substitute and would

          6        vitiate my proposal.

          7             COMMISSIONER BARNETT:  It's my understanding that by

          8        adopting that --

          9             CHAIRMAN DOUGLASS:  Nobody contested the ruling of

         10        the chair, which might have been successful, but nobody

         11        did.

         12             COMMISSIONER BARNETT:  It's my understanding what we

         13        now have before us is the committee substitute.  The

         14        amendment has now been substituted for your original

         15        proposal.  That amendment is now available for debate and

         16        for amendment.  That's my understanding of the posture.

         17             CHAIRMAN DOUGLASS:  What it is at the moment, I ruled

         18        it was a substitute for the proposal.  It's subject to

         19        amendment.  If somebody wants to offer an amendment, now

         20        is the time to do it.  And I would like to avoid

         21        reconsideration on these matters if there's consensus, but

         22        certainly reconsideration is available tomorrow for what

         23        we do today.

         24             Commissioner Connor, you rise.  Commissioner Connor,

         25        you have the floor.


          1             COMMISSIONER CONNOR:  Thank you, Mr. Chairman.  I

          2        would seek leave of the Chair to file an amendment, which

          3        would require a super majority requirement of 60 percent.

          4        The rationale being that adopted by this body, first of

          5        all, requiring a consensus of the membership of the body

          6        that makes the proposal is more likely to reflect a

          7        consensus within the state at large.

          8             And, secondly, frankly, I think it ought to be

          9        harder, not easier, to put forth tax proposals to the

         10        people on the ballot.  And I support the notion of a super

         11        majority requirement of 60 percent.  And with the Chair's

         12        leave I'll move to the desk and request that be put

         13        forward.

         14             CHAIRMAN DOUGLASS:  So granted.  Commissioner

         15        Barnett, do you have something?

         16             COMMISSIONER BARNETT:  Just that that amendment is

         17        acceptable to me.

         18             CHAIRMAN DOUGLASS:  We don't have it on the desk so

         19        we can't act on it.  Now it's being moved and prepared.

         20        Commissioner Barkdull.

         21             COMMISSIONER BARKDULL:  Mr. Chairman, I move in light

         22        of that that we temporarily pass Proposal 123 to be

         23        further considered today.

         24             CHAIRMAN DOUGLASS:  All right.  What I'll do is we'll

         25        move to the next proposal while this is being done.  And


          1        if it's prepared and ready when we complete the debate and

          2        action on the next proposal, we'll come back to it

          3        immediately so we don't get too far removed from it.

          4             The next proposal, with that being the ruling, the

          5        next proposal -- oh, without objection, we'll temporarily

          6        pass it until later in this meeting.

          7             The next proposal is proposal 152 by Commissioner

          8        Barkdull.  See, that's why it pays to be chairman of

          9        rules, you get all of your proposals heard first.

         10        Commissioner Barkdull.

         11             COMMISSIONER BARKDULL:  That doesn't mean they are

         12        going to pass, Mr. Chairman.  This one is one that we are

         13        all familiar with with our time constraints at the present

         14        time.

         15             CHAIRMAN DOUGLASS:  Just a moment.  He hasn't read it

         16        yet.

         17             READING CLERK:  Proposal 152, a proposal to revise

         18        Article XI, Section 2, Florida Constitution; amending the

         19        deadline by which the Constitution Revision Commission

         20        must file any proposed revision with the secretary of

         21        state.

         22             CHAIRMAN DOUGLASS:  Now Commissioner Barkdull to

         23        explain the proposal.

         24             COMMISSIONER BARKDULL:  What this proposal does is to

         25        shorten the time within which a subsequent Constitution


          1        Revision Commission, not this one, but the subsequent one,

          2        that will meet in 20 years and so forth, will only have to

          3        file their proposals within 90 days of the general

          4        election rather than 180.

          5             That 180 is really a holdover from the 1885

          6        Constitution; primarily communication was by weekly

          7        papers.  Ninety days should be sufficient with the public

          8        hearings that are held.  And that's all this proposal

          9        does.  But it gives the next commission three more months

         10        to work.

         11             CHAIRMAN DOUGLASS:  All right.  Is there any

         12        questions of the proposer?  Commissioner Scott.  Do you

         13        yield, Commissioner Barkdull?

         14             COMMISSIONER BARKDULL:  Yes, sir.

         15             COMMISSIONER SCOTT:  This would mean that the

         16        proposals would be submitted after qualifying for office,

         17        after whatever is going -- I mean, that three months would

         18        be after people qualified for offices, legislative,

         19        statewide would be -- I don't know if it's after other

         20        initiative petition matters.  I don't know how it relates

         21        to all of those time frames.

         22             COMMISSIONER BARKDULL:  Certainly, the time frames

         23        remain the same as they are now, as far as primaries and

         24        so forth.  It would be after that.

         25             CHAIRMAN DOUGLASS:  Any further questions of the


          1        proposer?  If not, are there any proponents?  Anybody wish

          2        to speak in opposition?  If not, we'll proceed to vote.

          3        Unlock the machines.

          4             (Vote taken and recorded electronically.)

          5             CHAIRMAN DOUGLASS:  Lock the machine, announce the

          6        vote.

          7             READING CLERK:  Eighteen yeas and eight nays,

          8        Mr. Chairman.

          9             CHAIRMAN DOUGLASS:  It carries.

         10             The amendment is not ready yet; is it?

         11             The next proposal by Commissioner Planas.  And would

         12        you read the proposal, please?

         13             READING CLERK:  Proposal 5, a proposal to revise

         14        Article I, Section 2, Florida Constitution; prohibiting

         15        discrimination based on national origin.

         16             CHAIRMAN DOUGLASS:  Commissioner Planas, you are

         17        recognized, sir.

         18   SECTION B

         19             COMMISSIONER PLANAS:  Thank you, Mr. Chairman and

         20        good afternoon.  I rise here to propose to the equal

         21        rights amendment that we have a word of national origin.

         22        Currently, right now, there is a lot of other big states

         23        in which national original is part of the Bill of Rights.

         24        In the state of Florida, in which part of the population,

         25        over 50 percent of the population, is composed of


          1        immigrants, does not have the word "national origin."

          2             For example, if you go back in here we show

          3        California, Connecticut, Louisiana, Massachusetts,

          4        Michigan, Missouri, among other states, every one of those

          5        states have the word "national origin" in part of the Bill

          6        of Rights.  I'm going to everybody's minds and hearts to

          7        consider this proposal.  I think it's needed in the state

          8        of Florida especially in the years coming.  We have more

          9        people in immigration in here coming up in the state.  It

         10        will go ahead and give a positive vote of understanding to

         11        all the population in the state of Florida.

         12             Thank you, Mr. Chairman.

         13             CHAIRMAN DOUGLASS:  All right.  Would you outline

         14        what the present section to which is entitled basic

         15        rights, if everybody would turn to that if they have it.

         16        If not, I think it would be helpful if you read that

         17        proposal and then where you're adding "national origin."

         18        If you don't have it, we can give it to you.  Do you have

         19        it in front of you?  If you would read that, I think it

         20        would make more sense to vote on this proposal with in

         21        mind what it is we are adding.

         22             COMMISSIONER PLANAS:  The Declaration of Rights

         23        reads, it's at Section 2, Article I, Basic Rights.  All

         24        natural persons are equal before the law and have

         25        inalienable rights, among which are the right to enjoy and


          1        defend life and liberty, to pursue happiness, to be

          2        rewarded for industry, and to acquire, possess and protect

          3        property; except that the ownership, inheritance,

          4        disposition and possession of real property by aliens

          5        ineligible for citizenship may be regulated or prohibited

          6        by law.  No person shall be deprived of any right because

          7        of race, religion, national origin, or physical handicap.

          8             CHAIRMAN DOUGLASS:  Now, does anyone -- Commissioner

          9        Barkdull?

         10             COMMISSIONER BARKDULL:  Mr. Chairman, I rise to ask a

         11        question.

         12             CHAIRMAN DOUGLASS:  Commissioner Planas, do you

         13        yield?

         14             COMMISSIONER PLANAS:  I yield.

         15             COMMISSIONER BARKDULL:  Commissioner Planas, the

         16        people you describe, they are national persons; are they

         17        not?

         18             COMMISSIONER PLANAS:  That is correct.

         19             COMMISSIONER BARKDULL:  The opening sentence is that

         20        all natural persons are equal before the law.

         21             COMMISSIONER PLANAS:  That is correct.

         22             COMMISSIONER BARKDULL:  Thank you.

         23             CHAIRMAN DOUGLASS:  Commissioner Morsani?

         24             COMMISSIONER MORSANI:  Commissioner Planas, I'm

         25        sympathetic but I don't understand why we need to -- I was


          1        reviewing, I guess my own heritage, you have -- my family

          2        has been in this country a little longer than yours, but

          3        not too much, and I don't understand why we need to change

          4        a document like the Constitution for this.

          5             I'm really at odds to understand the feeling or the

          6        necessity of using -- changing the terminology that we

          7        already have.  And I guess I need an explanation because I

          8        just don't understand the -- what's driving this momentum

          9        in the state of California or any other state.  I just

         10        don't know why we need to change our Constitution.  And I

         11        haven't heard any argument that convinces me that we're

         12        not already covered regardless of whether we're of Spanish

         13        heritage or Italian heritage or African-American heritage.

         14        I don't understand it.

         15             CHAIRMAN DOUGLASS:  All right.  Commissioner Planas.

         16             COMMISSIONER PLANAS:  Commissioner Morsani, that is

         17        very true, you might not exactly know the reasons why.

         18        The Constitution of the United States says also "national

         19        origin" in the Constitution.  Now, if you -- you're from

         20        Tampa, Commissioner Morsani.  And now we have to find out

         21        what's the meaning of national origin.  I talked to the

         22        EEOC chairman in the Miami area and I was asking her if

         23        there is a need for this type of proposal in this

         24        Constitution.  They said that in the state of Florida --

         25        gentlemen, believe it's 1998.  We're coming to the


          1        year 2000.  In 1998, there's still a tremendous amount of

          2        discrimination against African-Americans, the ancestry,

          3        Germans, French people, Hispanics.  There is still a

          4        tremendous amount of discrimination against them.  And I

          5        think this is something that will continuously protect all

          6        citizens including all national persons.

          7             I do believe that this also would impact in a very

          8        favorable way the amount of people that are continuing

          9        coming to this country by saying we have open hearts.  It

         10        doesn't do anything at all except to protect them in which

         11        there will be no discrimination.  Exactly what it says

         12        that we are talking about when we add it up; the physical

         13        handicap, when we're trying to add age, when we're trying

         14        to add gender.  We just want to make sure that this

         15        Constitution, this great Constitution that we have in the

         16        state of Florida, will protect everybody equally.

         17             CHAIRMAN DOUGLASS:  Commissioner Connor?

         18             COMMISSIONER CONNOR:  Mr. Chairman, I rise in

         19        opposition to the proposal and I would like to offer a

         20        substitute amendment.

         21             CHAIRMAN DOUGLASS:  All right.  Is it on the table?

         22             COMMISSIONER CONNOR:  It is not on the table --

         23             CHAIRMAN DOUGLASS:  We're going to have to get you a

         24        table.

         25             COMMISSIONER CONNOR:  I'm sorry.  Mr. Chairman, I'm


          1        certainly opposed to any form of discrimination based on

          2        national origin.  I dare say every member of this body is

          3        as well.  I think we need to be very, very careful about

          4        the way in which we amend these proposals.  Bearing in

          5        mind that the standard that is used by the Florida Supreme

          6        Court in interpreting amendments to the Florida

          7        Constitution.  The TW case I think is a good example on

          8        that, is the body is well aware Florida has an explicit

          9        Constitution rights privacy, Article I, Section 23.

         10             In interpreting that provision, the court made this

         11        observation.  Since the people of this state exercise

         12        their prerogative and enacted an amendment to the Florida

         13        Constitution which expressly and succinctly provides for a

         14        strong right of privacy not found in the U.S.

         15        Constitution, it can only be concluded that the right is

         16        much broader in scope than that of the Federal

         17        Constitution.

         18             Now the point I make, Mr. Chairman, simply is this.

         19        Is with this laundry list, if you will, of bases on which

         20        may not discriminate, the invitation is to include every

         21        conceivable group, national origin, sex, sexual

         22        orientation, indeed all of those will be coming forward to

         23        this body.  What my proposed amendment does is simply to

         24        strike the last line of Section 2.  I think Commissioner

         25        Barkdull's point is well taken when he observes in the


          1        first sentence of basic rights all natural persons are

          2        equal before the law and have inalienable rights.

          3             Section 9 assures all persons of due process of the

          4        law.  The Section 16 and Section 17 deals with rights of

          5        accused and excessive punishments.  And the point very

          6        simply is this, that I believe we should be very careful

          7        in adding additional language to cover a problem that has

          8        already been -- to cover a matter, and an issue that's

          9        already been solved, under the Federal Constitution, under

         10        the cases that construe the Federal Constitution.

         11             We should recognize, I think, that we invite the

         12        courts to engage in all kinds of initiative.  When we add

         13        gratuitous language to solve a problem that has already

         14        been adequately addressed under the Federal Constitution,

         15        and which is already adequately addressed under other

         16        provisions of the Florida Constitution not the least of

         17        which is the provision which requires or provides that all

         18        persons are to enjoy equal protection of the law.

         19             CHAIRMAN DOUGLASS:  All right.  When it gets here,

         20        then the proposed amendment would strike in Section 2 the

         21        language which reads, "No person shall be deprived of any

         22        right because of race, religion, or physical handicap" for

         23        the reasons you explained.  The amendment technically

         24        isn't here which you're certainly welcome to go ahead,

         25        Commissioner Planas, in the interest of saving time and


          1        oppose it.

          2             COMMISSIONER PLANAS:  Thank you, Mr. Chairman.  I do

          3        consider, Commissioner Connor, your proposal.  However,

          4        let me tell you some negative factors in here.  I, as an

          5        immigrant, I have been here in the United States and I am

          6        so rewarded with the freedom that this country has given

          7        me.  And I'm so rewarded also by the opportunity that has

          8        been given to me in this great state and serve along with

          9        all you distinguished ladies and gentlemen.

         10             However, something I should never forget is the

         11        freedom and liberty that I still go out and try to convey

         12        to everybody what's, you know, what happened when I came

         13        here from a communist country.  And I never saw -- and I

         14        remember way back when I came here in 1960, back in 1960.

         15        When I went ahead and I was just 13 years old and I took

         16        a, for the first time, one of the buses which I was going

         17        to my school, and all of a sudden this black lady came

         18        over and got on the bus.  And I stood up, like I always

         19        was taught by my parents, I stood up and I gave my seat to

         20        this lady, this black lady.

         21             All of a sudden, a couple of gentlemen rose and made

         22        this lady stand up -- and myself, as a 13-year-old, was

         23        pushed back to that seat.  I remember again the days in

         24        which -- remember the days in which I went to court, to a

         25        federal court, because we were applying for some things


          1        for my parents and their citizenship and I remember, I

          2        asked my parents when I was going to a drinking fountain

          3        it says colored and white.  I remember those days.  I'm

          4        sure you remember those days.

          5             There is nothing in this life that is going to stop

          6        me for adding things to a Constitution that's going to

          7        protect the rights of people.  If we have to be one

          8        sentence, two sentence, ten paragraphs, three books,

          9        anything, we must have it.  And we must never stop anybody

         10        of taking away their rights.  It doesn't matter if it

         11        takes three constitutions, we should add everything on it.

         12             I need for you to consider -- let me also go ahead,

         13        and as I was talking about, with the people from the EEOC,

         14        they were telling me it's much easier, it's much easier

         15        for somebody to go to the Supreme Court in the state of

         16        Florida than going to the Supreme Court of the United

         17        States, much easier.  Who can afford going to the Supreme

         18        Court of the United States?  We can't in here.

         19             I don't see any reason why we should jeopardize

         20        because I want to go ahead and just say proposing national

         21        origin.  Why should we go ahead and penalize the race,

         22        religion, and physical handicap.  Thank you, Mr. Chairman.

         23             CHAIRMAN DOUGLASS:  Commissioner Mills?  Commissioner

         24        Brochin, you're next.

         25             COMMISSIONER MILLS:  In opposition to Commissioner


          1        Connor's amendment --

          2             CHAIRMAN DOUGLASS:  Incidentally, the amendment is

          3        now on the table and we can proceed.  It has been moved.

          4        Do you want to read it?

          5             READING CLERK:  By Commissioner Connor, on Page 1,

          6        Lines 19 through 21.  Delete those lines and insert

          7        "prohibited by law."

          8             CHAIRMAN DOUGLASS:  Proceed.

          9             COMMISSIONER MILLS:  Mr. Chairman, this provision of

         10        Declaration of Rights, which particularly what we have

         11        included in the past, no person shall be deprived of any

         12        right because of race, religion, or physical handicap were

         13        established as protected classes for a reason.  They were

         14        established for the reason there was perceived actual

         15        discrimination in our history.  And unless and until we

         16        think those have gone away, the message we send by

         17        removing these is that we intend to do something.

         18             So actually, Commissioner Connor's argument for doing

         19        this is the best argument for not doing it because the

         20        Supreme Court will certainly imply that we meant something

         21        by removing these classes.  They will imply that we in

         22        some way decided that the problem had gone away and I

         23        don't believe we can say that.  In a pure world, and in

         24        fact, in discussions at our Declaration of Rights

         25        Committee, we said we would like to do this, doesn't it


          1        make sense that there shouldn't be a laundry list?

          2             Shouldn't we just say that all people should be equal

          3        before the law?  Well, of course we should.  That hasn't

          4        been the case in the past.  The reason this is in here is

          5        because this wasn't the case in the past.  And unless we

          6        think it's historically over, and unless we want to send

          7        that kind of message to a court which would be compelled

          8        to take notice of the fact that we did something, then we

          9        wouldn't want to vote against this.

         10             CHAIRMAN DOUGLASS:  Commissioner Brochin was next.

         11        You're next Commissioner Nabors.

         12             COMMISSIONER BROCHIN:  I have a question for

         13        Commissioner Connor.  Struggling with this, I noticed that

         14        this amendment was adopted apparently in 1974.  And I was

         15        wondering if you have any understanding as to why those

         16        three categories were chosen in 1974 as compared to

         17        leaving off others and your thought process as to the

         18        progress that has been made since 1974 in each of those

         19        categories.

         20             COMMISSIONER CONNOR:  Thank you, Commissioner.  And

         21        the real purpose of this amendment is to try to make this

         22        point.  The Constitution, in my estimation, has fairly

         23        identified categories and classifications of people who

         24        ought to be protected against discrimination.  Plain and

         25        simple, I think that's the case.  None of us, I believe,


          1        would genuinely affirm the notion that we should have

          2        discrimination based on race, based on the religion, or

          3        based on physical handicap.

          4             The temptation, however, that this Commission has

          5        fallen victim to is to add to a laundry list of -- add a

          6        laundry list of classifications which ought to receive

          7        heightened scrutiny in the Constitutional interpretation.

          8        Now, clearly our Constitution at the federal level

          9        prohibits discrimination on the basis of national origin.

         10        And clearly, I believe, that under the 14th Amendment, you

         11        cannot engage in state action of discrimination of that

         12        character.

         13             Whenever you put a classification like this and add

         14        to this list, you heighten the level of scrutiny that

         15        courts will engage in in reviewing it, typically to a

         16        compelling interest standard.  The court will evaluate,

         17        first of all, whether or not there is a compelling

         18        interest that the state had in passing legislation to that

         19        effect and then it will evaluate whether or not it used

         20        the least -- the narrowist means and least intrusive means

         21        to accomplish that goal.  Now the point I make very simply

         22        is, that we are tempted to add ad infinitum to this list

         23        which limits then the discretion of the Legislature

         24        significantly in this regard.

         25             National origin will be followed by sexual


          1        orientation.  Sexual orientation will be followed by sex

          2        and the list could go on and on.  I make the observation

          3        solely to point out that, for instance, when sex was added

          4        to the list of protected classifications in Hawaii, I dare

          5        say the people of Hawaii never dreamed that their Supreme

          6        Court would say that in consequence thereof, the people of

          7        Hawaii had created a presumption against heterosexual

          8        marriage such that laws that limited marriage to

          9        heterosexuals were presumed to be unconstitutional.  And

         10        therefore, laws that discriminated against same sex

         11        marriages were deemed to be unconstitutional.

         12             Now all of that said, Mr. Chairman, I make the

         13        observation that when we act in this manner, we do so with

         14        great impact and great import.  There are a host of other

         15        proposals that follow.  I ask you to ask yourselves

         16        whether or not under the jurisprudence of this state we

         17        need to expand these classifications.  I think we do not.

         18        That having been said, Mr. Chairman, and this discussion

         19        having taken place, I withdraw the proposed amendment.

         20             CHAIRMAN DOUGLASS:  Well, without objection, the

         21        amendment is withdrawn.  Commissioner Nabors, you had

         22        risen.

         23             COMMISSIONER NABORS:  I rose to speak against the

         24        amendment that's been withdrawn.

         25             CHAIRMAN DOUGLASS:  And do you wish to speak to the


          1        proposal?

          2             COMMISSIONER NABORS:  No.

          3             CHAIRMAN DOUGLASS:  Anybody wish to speak to the

          4        proposal further?  Commissioner Smith?

          5             COMMISSIONER SMITH:  Thank you, Mr. Chairman.  Just

          6        briefly.  As most of you know, a significant number of

          7        proposals, especially dealing with Article I and

          8        Section 2, have been presented to the Declaration of

          9        Rights committee.  As of this moment, only one has

         10        received a favorable recommendation under this particular

         11        section and that was the Planas amendment.  So while

         12        nothing can be killed and Commissioner Connor is correct

         13        that all the proposals will come forward.  At this moment,

         14        the only one favor we recommended is this.

         15             Let me say that -- first of all, let me commend my

         16        good friend Commissioner Connor for invoking such a

         17        brilliant strategy and that is in an effort to prevent

         18        passage of this, recommend something much more severe

         19        where others will feel that not voting for this is not as

         20        bad as what could have come.

         21             Let me just say that I have to admit I have been

         22        somewhat dumbfounded concerning what I consider to be

         23        conservative philosophy.  I know when we argue issues of

         24        race, a conservative philosophy is state's rights.  And I

         25        know that with regard to many of the issues that come up,


          1        we talk about the sovereignty of our government, of our

          2        state, to determine what will be the moral conscious of

          3        the people as evidenced by its law.

          4             It is somewhat confusing to me to hear brilliant,

          5        conservative voices of our state deferring to the federal

          6        government to provide protections for our people.  And I

          7        would ask some of my friends to wink when we're talking

          8        true conservative philosophy and when we're talking

          9        strategy because I'm just getting a little confused.  I

         10        think that the people of Florida deserve to set the

         11        standard for protections of groups that have historically

         12        been discriminated against.  Notwithstanding what Virginia

         13        or Washington D.C. may do, I believe that we have a

         14        responsibility to let the people of the state of Florida

         15        determine what its rights and responsibilities are as

         16        evidenced in the Constitution and that's why in the

         17        Declaration of Rights committee I was proud to vote yea

         18        and why today I will proudly vote yea.

         19             CHAIRMAN DOUGLASS:  Commissioner Brochin?

         20             COMMISSIONER BROCHIN:  I'm going to vote in favor and

         21        I urge you all to do the same primarily for the purpose I

         22        agree with Commissioner Connor, and that is that every

         23        category we add does raise a strict scrutiny test for the

         24        courts to apply.  And with that, we have to be

         25        extraordinarily careful as to which categories we add.


          1        And similarly, we have to be extraordinarily careful as to

          2        which categories we take away.

          3             What makes it difficult, and the reason I'm going to

          4        vote for it, is that we don't have the whole panoply of

          5        categories that are being considered or should be

          6        considered before us and we're ask to vote on these one by

          7        one which makes it difficult.  But by voting for it, it

          8        would at least give me another opportunity to reconsider

          9        the list as a whole and I would be interested in

         10        Commissioner Smith's thoughts on that as to whether his

         11        committee considered that in some holistic view, that is,

         12        as to whether or not the rights of the people in the state

         13        of Florida and to those who should receive the strict

         14        scrutiny have been considered, not only for adding them,

         15        but also for deleting them.  And that's why I asked my

         16        previous question as to the historical origin as to how

         17        the categories came about in the first place because they

         18        are curious that physical handicap is included and

         19        national origin was not.

         20             And until we have a better appreciation, it makes it

         21        very difficult to make any vote that makes any sense as to

         22        what Florida's rights of declaration would be and

         23        therefore, I will vote for it with the idea that it will

         24        give us another opportunity to consider it on a more

         25        holistic view.


          1             CHAIRMAN DOUGLASS:  Any further discussion?

          2        Commissioner Zack hadn't been up.  I'll get to you,

          3        Commissioner Morsani, you're next.

          4             COMMISSIONER ZACK:  I'd like to also urge the support

          5        of this measure.  To begin with, if you look at the

          6        summary, apparently we mentioned national origin about 100

          7        times it says in other places.  And, again, in Chapter 760

          8        of the Florida Civil Rights Act.  So the statement is, you

          9        know, is this going to hurt anything?  Certainly not.  Is

         10        it a statement about what we in this chamber believe?

         11        Absolutely.

         12             Most of you know that I'm a Cuban-American, that my

         13        mother was born in Cuba and my father is American.  But

         14        the fact of the matter is, my grandfather on my mother's

         15        side was born in Russia and moved from Russia because of

         16        discrimination to Cuba.  And then when the liberty in Cuba

         17        went out, we moved to the United States.

         18             And I remember my grandfather's statement when we

         19        were taking a plane over here after having been removed

         20        from the first plane that we tried to get on, and he said

         21        that he was glad that he was coming to the United States

         22        even though he was going to be a refugee for the second

         23        time in his life because he said that he'd never be a

         24        refugee again because if the United States fell, there

         25        would be no place to go.


          1             So I'm not sure whether national origin applies to me

          2        as a Russian descent or Cuban descent or Jewish descent.

          3        So I guess I'm going to benefit and my children, at least

          4        in three different ways.  But as I look around the room

          5        here, we don't have any Native Americans in this chamber

          6        unfortunately.  We do, that's even better.

          7             CHAIRMAN DOUGLASS:  We have a couple there.

          8        Commissioner Henderson has got some.  Commissioner

          9        Barnett.  Will all Native Americans please raise your

         10        hand?

         11             COMMISSIONER ZACK:  I guess you're the only ones that

         12        won't benefit.

         13             CHAIRMAN DOUGLASS:  You better define Native

         14        Americans.

         15             COMMISSIONER ZACK:  But something tells me that

         16        you've got some more in you than just Native Americans.

         17             So I believe that every person in this chamber, every

         18        person in this state, benefits and is protected and should

         19        be protected by this language.  And I am proud to vote for

         20        it.  And if it does nothing more than what is already

         21        there already, so be it.  I'm glad it's there and I'd like

         22        it to be in every place possible that anybody who had any

         23        question of what we intended is clear.  We intend for

         24        people, regardless of their national origin, to be treated

         25        equally.


          1             CHAIRMAN DOUGLASS:  Commissioner Morsani?

          2             COMMISSIONER MORSANI:  I don't argue with any of the

          3        arguments that have been made.  However, unfortunately,

          4        ladies and gentlemen that have so far spoken, other than

          5        myself and Mr. Planas, it seems that whenever something

          6        happens in this Constitution or in statutes, it goes back

          7        unfortunately to your profession.  I'm afraid that we

          8        layman never know how things are going to be interpreted

          9        and are never interpreted the way we think they are going

         10        to be interpreted, ladies and gentlemen.

         11             I have, and wish all of this Commissioner Smith and

         12        Commissioner Douglas.  I wish that all of the issues under

         13        Declaration of Rights can be presented under one thing so

         14        we can really talk about them because I have done a little

         15        bit of work on the -- I don't want to give the same speech

         16        every time, Mr. Smith.  And I'm not, until you force me to

         17        because I have some very distinct problems with this, and

         18        the interpretation years out is not the interpretation

         19        with which -- in the good fellowship, with which they were

         20        meant.  And I have very serious concerns about that.  And

         21        I don't see those being addressed, Mr. Zack, that how we

         22        can cope with this in the future.

         23             I think that we should have a document that does not

         24        require interpretation by our court system.  That's not

         25        the purpose of what we are here, is it?  I question that.


          1        And I am going to vote against this proposal, not because

          2        I want to in many respects, because I think we just don't

          3        know how things are going to be interpreted and we have so

          4        much danger in the interpretation that we get versus what

          5        we feel in our hearts.  And it's with a deep sense of

          6        regret that I do that, but I really feel that we must

          7        examine that and I don't see us examining that, Mr. Smith.

          8             CHAIRMAN DOUGLASS:  Commissioner Freidin.

          9             COMMISSIONER FREIDIN:  I was wondering if

         10        Commissioner Morsani would yield for a question.

         11             CHAIRMAN DOUGLASS:  He yields.

         12             COMMISSIONER FREIDIN:  Can you anticipate some sort

         13        of a interpretation that would bother you on this

         14        particular proposal?

         15             COMMISSIONER MORSANI:  Well, you shouldn't have asked

         16        that.  But in 1906 in Tontitown, Arkansas when 70 families

         17        made up this little community and only one person spoke

         18        English at that time, because they had only come to this

         19        country in 1898, and a judge -- and it came time for the

         20        taxes to be paid on these various communities and they

         21        only had like 20 days to pay their taxes and a priest --

         22        and I happen to be Methodist -- but a priest, Father

         23        Bandini (phonetic), who was the only person who could read

         24        English, was not present.

         25             So when the taxes weren't paid, the judge fined them


          1        and demanded they pay all their taxes.  So when Father

          2        Bandini returned, he went to the judge and the judge

          3        said -- and he ruled against them -- he said, That just

          4        treats those dagos right.  They should have paid their

          5        taxes.  And this was 1906 and this is 1998.  That's only

          6        been 92 years.  But, yes, I can point to that.  And I'm

          7        afraid that other things might happen the same way,

          8        Mr. Planas.

          9             CHAIRMAN DOUGLASS:  Commissioner Freidin, does that

         10        answer your question?

         11             COMMISSIONER FREIDIN:  Well, I think that that -- if

         12        I understood that correctly, the point of that story was

         13        that in 1906 a judge actually felt comfortable enough to

         14        use the word dago?  That's precisely what this provision,

         15        this proposal, would protect against.  That is exactly the

         16        kind of thing.  So it seems to me that's the argument in

         17        favor of it and I urge everybody to favorably support this

         18        proposal.

         19             CHAIRMAN DOUGLASS:  Commissioner Smith?

         20             COMMISSIONER SMITH:  Yes.  Mr. Chairman, I rise to

         21        respond to two questions that were asked with regard to

         22        the committee process.  The first question was whether the

         23        Declaration of Rights Committee considered the Connor

         24        Proposal basically which is since we -- the first sentence

         25        says, "All natural persons are equal before the law."


          1        Whether we need to enumerate in the last sentence "any

          2        categories."  I want you to know that was in fact

          3        considered debated, discussed.  We got constitutional

          4        scholars to give us input on that and we decided to move

          5        forward as we have.

          6             The second consideration that Commissioner Morsani

          7        raised and Commissioner Brochin raised is the

          8        consideration of being able to look at this holistically.

          9        Because our rules allow us to package together proposals

         10        as we see fit in styling and drafting, et cetera, and

         11        because we felt it was important to allow each proposal to

         12        stand or fall on its merits, we allowed proponents of

         13        proposals, if they so chose, to put a proposal together.

         14             But let me tell you why we decided not to do it.

         15        Because if Commissioner Morsani had a proposal, let's say,

         16        to put race in this section, we were not going to force

         17        Commissioner Morsani to have his proposal married with

         18        sexual orientation.  And he had no say-so on it because a

         19        lot of people who would have voted for race may not vote

         20        for sexual orientation.  And we felt it was important to

         21        let each stand on their own and then if any of them

         22        passed, more than one passed, if the commission wanted to

         23        put them together, then the commission could make that

         24        decision.  Thank you.

         25             CHAIRMAN DOUGLASS:  All right.  Any further


          1        discussion for or against?  Close, Commissioner Connor?

          2        This is on the Connor amendment; is that correct?

          3             COMMISSIONER CONNOR:  No, sir, that's been withdrawn.

          4             CHAIRMAN DOUGLASS:  Well, we're still sort of

          5        debating it.  I guess we'll just go ahead and you can

          6        close for the opposition.

          7             COMMISSIONER CONNOR:  Well, actually, I'm not -- I'm

          8        going to surprise you, I think.

          9             CHAIRMAN DOUGLASS:  Okay.  You're going to close for

         10        the proponents?

         11             COMMISSIONER CONNOR:  Well, I'm not going to preempt

         12        the sponsor from closing.

         13             CHAIRMAN DOUGLASS:  Okay.  We'll let him close.

         14             COMMISSIONER CONNOR:  But I rise to make this

         15        observation.  I'm going to vote for the proposal, but I

         16        think the discussion that we've had has been profoundly

         17        important.  And I'm frank to tell you that I think that

         18        having the discussion in the context of the evaluation of

         19        Commissioner Planas' proposal makes it easier for us to

         20        keep our wits about us as we evaluate this issue.

         21             What this proposal does and what it will do is to

         22        create a heightened scrutiny for a new classification of

         23        people that will enjoy protection under our Constitution.

         24        And in a state where we have many new citizens who are of

         25        Cuban origin or Jamaican origin or Haitian origin, I think


          1        that is important.  But I rise to tell you that the --

          2        that this notion that, what can adding a few words -- what

          3        can it hurt?  It can do a lot.  Ask the parents who have

          4        been stripped of their rights to makes decisions for their

          5        minor children in the area of the abortion decision.  Ask

          6        the people of Hawaii, it can do a lot; it's something we

          7        should consider very carefully; it's something we should

          8        sift very carefully, and frankly, I think taking that up

          9        now and in the context of this proposal where I dare say

         10        there's great consensus is a greater advantage than taking

         11        it up in another proposal where there will be a sharp

         12        dispute and dissension.  And this will be the only

         13        classification that I am going to vote for.

         14             CHAIRMAN DOUGLASS:  Okay.  I interpret that to mean,

         15        you are for this one but may not be for the rest of them.

         16             COMMISSIONER CONNOR:  You can count on that, Mr.

         17        Chairman.

         18             CHAIRMAN DOUGLASS:  Commissioner Leesfield.

         19             COMMISSIONER LEESFIELD:  I want to comment on

         20        Commissioner Smith's comments about strategy,

         21        foreshadowing and the domino effect of expanding the right

         22        of people.  We haven't even gotten to the other rights,

         23        but I was very moved by Commissioner Planas' statements

         24        here about nothing would stop him from expanding the

         25        rights of people and protecting the rights of people based


          1        on his own experience.  I appreciate Commission Connor's

          2        remarks and the strategy behind them and the domino effect

          3        that he's trying to stop, but I would also join with

          4        Commissioner Smith in observing the strategic, not the

          5        intellectual but the strategic side of bringing that to

          6        our attention today when we have other votes coming up

          7        tomorrow.  Thank you.

          8             CHAIRMAN DOUGLASS:  All right.  Are we ready to vote?

          9        Okay unlock the machine.

         10             (Vote taken and recorded electronically.)

         11             CHAIRMAN DOUGLASS:  We are going to wait on our

         12        Native American to get there.  Announce the vote.

         13             READING CLERK:  Twenty-three yeas and one nay, Mr.

         14        Chairman.

         15             CHAIRMAN DOUGLASS:  It carries.  We're going to

         16        return now to Committee No. 123, Proposal No. 123 and what

         17        we need to do is to vote now or to consider now to vote to

         18        reconsider the Barnett amendment.  I'm following the

         19        directions of the clerk who overrules me on some of my

         20        rulings, and then we'll take up the Connor amendment to

         21        the Barnett amendment, take a vote on the Barnett

         22        amendment as amended or not amended and then vote on the

         23        proposal as amended on the machine.

         24             So at this moment, we're to vote, according to the

         25        Clerk, to reconsider the vote for the Barnett amendment in


          1        order to get to the Connor amendment.  So, if you that,

          2        voting to reconsider the Barnett amendment is procedural,

          3        it's not for the merits.  If you could hold your debate, I

          4        think that would be appropriate, because we'll go

          5        immediately to the merits of the Barnett amendment, even

          6        if we vote to reconsider it, by taking up the Connor

          7        amendment.

          8             Do you suggest to do that, that we vote not to

          9        reconsider the Barnett amendment?  Madam Secretary, in

         10        order to get to the Connor amendment, should we vote for

         11        or against to reconsider the vote of the Barnett

         12        amendment?

         13             SECRETARY BLANTON:  For it.

         14             (Off-the-record discussion.)

         15             CHAIRMAN DOUGLASS:  All right.  Is that clear to

         16        everybody, as it wasn't to me.  Commissioner Brochin has a

         17        question.

         18             COMMISSIONER BROCHIN:  Yes, I do.  The underlying

         19        proposal was a proposal to strike this Commission.  I

         20        don't understand why we're making amendments when

         21        ultimately we are going to return to a proposal that's

         22        going to strike it in its existence, and maybe I'm just

         23        missing something, but to me it --

         24             CHAIRMAN DOUGLASS:  See, that's what I did, and she's

         25        telling me that under our rules we can't do it that way,


          1        we have got to do it the way she says.  I'm perfectly

          2        happy to do whatever it takes to get here.  If you vote to

          3        reconsider the Barnett amendment, that's the effect of

          4        what we are doing, we are returning to the amending

          5        process, as I'm told.

          6             COMMISSIONER BROCHIN:  I guess that is the part I

          7        don't understand.  What are we amending if the ultimate

          8        vote is to wipe out the whole provision in the first

          9        place?  Why are we spending time --

         10             CHAIRMAN DOUGLASS:  Commissioner Barkdull may can

         11        answer this for the Clerk.

         12             COMMISSIONER BARKDULL:  Mr. Chairman, it's my

         13        understanding that the motion put forth by Commissioner

         14        Barnett was ruled by the Chair to be a substitute, and if

         15        the substitute passed, it laid on the table my proposal.

         16        And therefore, the only thing passed by this body was a

         17        Barnett substitute which has got the provision that

         18        allows, if their rules so provide, a simple majority to

         19        put something on the ballot.  Now, as I understand the

         20        posture, if we pass a motion to reconsider, we're

         21        reconsidering the Barnett proposal, at which time there

         22        will be an amendment offered by Commissioner Connor which

         23        will provide that that body can only put something on the

         24        ballot by a three-fifths vote.

         25             CHAIRMAN DOUGLASS:  Well, you explained it the way I


          1        intended it, which was, when the substitute amendment was

          2        offered -- I mean when the substitute proposal was offered

          3        and passed, that that's what we were dealing with.  I

          4        think we'll proceed that way unless somebody wants to

          5        appeal the ruling of the Chair, which would then allow us

          6        to get in a sensible way to the Connor amendment to

          7        Barnett's proposal.  Has everybody got that?

          8             We're going to overrule the Secretary the only time

          9        I've been able to do this.  All right, here's what we

         10        have, we have the Barnett substituted proposal.  Would you

         11        again tell us what that is, Commissioner Barnett?  It's

         12        Commissioner Barkdull's original proposal, which was to do

         13        away with it.  Your proposal was to keep it, but to revise

         14        or change or delete Section C; is that correct?

         15             CHAIRMAN DOUGLASS:  Yes, sir.  Okay.  So we're now --

         16        that's what we have is we have passed a proposal

         17        substituted that keeps it but strikes Section C of the

         18        existing Constitution.  And Commissioner Connor has

         19        offered an amendment to that proposal which is on the

         20        table, and I'll ask the Clerk to read Commissioner

         21        Connor's amendment.  I'm sorry, Madam Secretary, but I

         22        just did it because we're going to get there.

         23             READING CLERK:  By Commissioner Connor on Page 2,

         24        Lines 1322, delete those lines and insert:  Shall convene

         25        at the call of the chairman.  An affirmative vote of


          1        two-thirds of the full Commission shall be necessary for

          2        any revision of this constitution or any part of it to be

          3        proposed by the Commission.

          4             CHAIRMAN DOUGLASS:  Commissioner Connor on your

          5        amendment.

          6             COMMISSIONER CONNOR:  Mr. Chairman, I had mentioned

          7        60 percent.  Commissioner Barnett was amenable to

          8        two-thirds, which is the current language but which would

          9        still have the effect of eliminating the majority

         10        requirement of the members appointed by each of the

         11        various appointing authorities.  And the point for my

         12        purposes, and which Commissioner Barnett was agreeable to

         13        was that I felt the super majority requirement, and

         14        frankly, the higher the better as far as I was concerned,

         15        was an important safety valve to have before tax proposals

         16        were put on the ballot for a vote by the public.

         17             CHAIRMAN DOUGLASS:  All right.  As I understand your

         18        amendment as presented was not what you stated, but it

         19        would now be --

         20             COMMISSIONER CONNOR:  Two-thirds.

         21             CHAIRMAN DOUGLASS:  You would delete Section C still;

         22        is that correct?

         23             COMMISSIONER CONNOR:  All we would delete,

         24        Mr. Chairman, all we delete are the provisions that relate

         25        to the majority requirements of the members of the various


          1        appointing authorities.  We would retain the two-thirds

          2        threshold requirement, but we would eliminate having to

          3        have a requirement of a majority of each of the members by

          4        each of the appointing authorities.

          5             CHAIRMAN DOUGLASS:  So, the result of your amendment

          6        then is to leave it as it is, but to ad, including the

          7        two-thirds vote, requirement of the members, but eliminate

          8        the provision that's now in the Constitution, delete it,

          9        where you had to get a majority of each one of the

         10        appointing authorities people; is that right?  Does

         11        everybody understand that?  Okay.  So the amendment does

         12        that.  Is there any discussion on the amendment?  Yes,

         13        Mr. Nabors.

         14             COMMISSIONER NABORS:  I'd like to speak against the

         15        amendment.  I think if we are going to keep the tax and

         16        budget reform commission, then I think the proposal by

         17        Commissioner Barnett is wise, to make sure that it

         18        operates as this commission does and not structured by the

         19        appointing body.

         20             However, if dealing with the Constitution we think

         21        it's important to have a tax and budget reform commission,

         22        I think it's also wise to require an extraordinary vote

         23        for recommendations.  After all, we have to trust the

         24        people.  All of these proposals, whether it's our

         25        proposals or it's proposals from the tax and budget reform


          1        commission, go to the people.  And we should leave it as

          2        the proposal by Commissioner Barnett has and let that

          3        commission itself decide whether it wants a two-thirds

          4        vote, a majority vote, or any extraordinary vote.

          5             If we have got a budget reform commission that could

          6        spend time studying the tax structure, why on earth we

          7        want to straddle it in the constitution and require,

          8        absolutely, always has to have a two-thirds vote, I think

          9        that's unwise.

         10             CHAIRMAN DOUGLASS:  Commissioner Scott.

         11             COMMISSIONER SCOTT:  Mr. Chairman, Commissioners, I

         12        would like to briefly speak in favor of the amendment.

         13        The amendment, if the amendment is adopted, will address

         14        the major concern that Commissioner Barnett had about

         15        requiring the majority of each a appointing authority.  It

         16        will leave in place the extraordinary vote.  This

         17        commission, this budget and tax commission -- there could

         18        be a big debate -- some debate of whether they should or

         19        should not continue, but they are going to be meeting in

         20        two or three years and I don't think it's good for the

         21        State to have a simple majority vote of -- we don't know

         22        who is going to be on there to allow them to put stuff on

         23        the ballot that might have severe impacts on this state

         24        for somebody's companies and wherever in the world, or in

         25        the united States that might be thinking about locating


          1        here, I think you should require the extraordinary vote,

          2        so I would support Commissioner Connor's amendment which

          3        in effect keeps the extraordinary vote requirement for

          4        this Commission and addresses the problem that

          5        Commissioner Barnett has raised.

          6             CHAIRMAN DOUGLASS:  Any further debate, discussion?

          7        All right.  All of those in favor of Commissioner Connor's

          8        amendment for the Barnett proposal, say aye.  Opposed.

          9             (Verbal vote taken.)

         10             CHAIRMAN DOUGLASS:  The ayes have it.  The amendment

         11        is adopted.  We now revert to the proposal as amended.

         12        Does everybody understand that?  I think we pretty well

         13        should have it in hand.  Commissioner Barnett, would you

         14        like to close on it?  All right.  Would anybody want to

         15        rise in opposition to it?  Commissioner Nabors.

         16             COMMISSIONER NABORS:  Not in opposition.  I want to

         17        make sure that I -- if I wanted to abolish the tax and

         18        budget reform commission, then I assume I would vote

         19        against this proposal because then it would not be amended

         20        and on the table, would be Judge Barkdull's; is that

         21        correct?

         22             CHAIRMAN DOUGLASS:  That's correct.

         23             COMMISSIONER NABORS:  But if I vote for this and it

         24        passes, then it substitutes for Judge Barkdull and the tax

         25        and budget reform commission stays as amended in this


          1        proposal; is that correct?

          2             CHAIRMAN DOUGLASS:  Commissioner Barnett, that's

          3        correct as I understand it, except for the deletion of

          4        Connor's amendment.  Commissioner Barnett, do you need to

          5        close?  Or do you want to close?  Okay.  Now we'll vote on

          6        the proposal as amended.  Unlock the machine.

          7             (Vote taken and recorded electronically.)

          8             CHAIRMAN DOUGLASS:  Has everybody voted?  Lock the

          9        machine and announce the vote.

         10             READING CLERK:  Nineteen ayes and seven nays,

         11        Mr. Chairman.

         12             CHAIRMAN DOUGLASS:  All right.  We'll move, then, to

         13        the next proposal which is Proposal 14.  Would you please

         14        read it?

         15             SECTION C

         16             CHAIRMAN DOUGLASS:  We will move then to the next

         17        proposal, which is Proposal 14.  Would you please read it?

         18             READING CLERK:  Committee substitute for Proposal 14,

         19        proposal to revise Article I, Section 2, Florida

         20        Constitution; changing the term "physical handicap" to

         21        "physical disability."

         22             CHAIRMAN DOUGLASS:  All right.  The committee

         23        substitute, the committee chairman yields to Commissioner

         24        Freiden to present this; is that correct?  Commissioner

         25        Freidin, you have the floor.


          1             COMMISSIONER FREIDIN:  Commissioners, this is

          2        essentially a housekeeping matter.  In the last 20 years,

          3        since the Constitution was last reviewed, the term

          4        "handicap" has attained significant amount of disfavor

          5        among the disabled population of this state and our

          6        country.  The word "handicap" is considered today to be a

          7        demeaning term and a nonrepresentative term, a term that

          8        doesn't properly represent the condition of people who

          9        consider themselves disabled, but not handicapped.

         10             So, for that reason, I offered this proposal to

         11        simply change the word "handicap" to "disability."  But

         12        there is another reason that really makes as much sense or

         13        more for changing this provision of Article I, Section 2,

         14        and that is in the last 20 years there has developed, not

         15        only in our state, but nationwide, in the federal system,

         16        a large body of case law that defines what a disability

         17        is.

         18             This is not a provision that has had -- this

         19        constitutional provision has not had significant amounts

         20        of litigation surrounding it since its passage in the

         21        state of Florida, but should issues come up questioning

         22        the meaning of the word "handicap," the federal cases and

         23        other Florida cases in the employment sphere would be very

         24        useful to the courts in interpreting this provision.

         25             So for those two reasons, I would urge that we clean


          1        this up, update it a little bit and pass this proposal.

          2             CHAIRMAN DOUGLASS:  Commissioner Evans.

          3             COMMISSIONER EVANS:  I have done just a little bit

          4        more research in this, too.  And I have found that the

          5        term "disability" has also fallen out of favor.  And the

          6        current terminology, because of the negative connotation

          7        of disability, obviously being negative, is special needs.

          8             So, I have a problem with changing the Constitution

          9        every time we have a change in politically correct

         10        terminology when there basically is no change whatsoever

         11        in the effect of the language.  So, even since our

         12        committee considered it, the word "disability" has fallen

         13        out of favor and now the preferred term is "special

         14        needs."

         15             I do wonder, though, about if we were to change it to

         16        special needs, does that change the current law, because

         17        then we would say no person shall be deprived of a right

         18        based upon their special needs.  And a lot of us have a

         19        lot of special needs.

         20             CHAIRMAN DOUGLASS:  Do you speak in opposition?

         21             COMMISSIONER EVANS:  Opposition.

         22             CHAIRMAN DOUGLASS:  Further debate, discussion,

         23        opposition or a proponent?  Commissioner Rundle.

         24             COMMISSIONER RUNDLE:  Just a quick question for

         25        Commissioner Freiden.  I hear the phrase a lot, physically


          1        challenged and mentally challenged used by those

          2        populations and I suppose because it is more of a positive

          3        spin and a term that they really prefer.  And I wonder if

          4        that isn't more favorable language than to use the word

          5        "disabled."

          6             CHAIRMAN DOUGLASS:  Commissioner Freiden.

          7             COMMISSIONER FREIDIN:  The answer to that, really, I

          8        can't give.  I can only respond based on the testimony

          9        that our committee heard and other writings, law review

         10        articles and case law that I have reviewed that indicates

         11        that the appropriate term would be disability.

         12             I, too, have heard the expression, but I have not

         13        heard anybody suggest that that's a legal term of art.

         14        And I think what's important here is that the word

         15        "disability" is a legal term of art.  Handicap does not

         16        have the same extensive body of law defining it that

         17        disability does.  And that, in itself, would be a good

         18        reason to change this provision.

         19             CHAIRMAN DOUGLASS:  Take a seat, please, if you can

         20        spare us a moment.  Commissioner Morsani.

         21             COMMISSIONER MORSANI:  Commissioner Freiden, you

         22        addressed a little bit my concern, and specifically, the

         23        ADA.  As an employer, I am having a lot of problems with

         24        ADA.  And there's a big difference, at least in most of

         25        our minds, I thought if you were handicapped, you were


          1        disabled.  I thought if you were disabled, you were

          2        handicapped, but obviously, that's not the case.

          3             I'm not a lawyer and don't understand that, but I

          4        understand that there is a difference now.  And especially

          5        as an employer and when you may be told that because

          6        someone can't do the work that they are now disabled

          7        because it had nothing to do with the fact that they

          8        don't -- that they have all of their limbs and faculties

          9        and everything, it has to do that we are responsible

         10        because we didn't show them how to do the work good

         11        enough, therefore, they are disabled and we have a

         12        responsibility to handle their emotional things for them,

         13        and their self esteem and build those folks up even though

         14        they don't know come here from sic 'em about what they are

         15        doing.

         16             And so that's where I have a problem with disability

         17        versus handicap.  And I have a lot of problems with the

         18        ADA in how they are starting to enforce things that I have

         19        never heard of in my life and I don't know how to handle

         20        them and I think a whole bunch of other folks don't know

         21        how to handle them either, ma'am.  And that frightens me

         22        having put that in our Constitution so that we can now

         23        have some more legal proceedings to support that.  And I'm

         24        sorry, it's like Mr. Planas, I don't know where some of

         25        these things are leading.  And I'm concerned about it.


          1             CHAIRMAN DOUGLASS:  Commissioner Freidin, the

          2        question is addressed to you.

          3             COMMISSIONER FREIDIN:  Commissioner Morsani, maybe if

          4        we do a really good job here, the federal government will

          5        commission us to come rewrite all of the federal laws;

          6        however, we can't do anything about the ADA, it exists.

          7        What we are talking about doing here is not creating any

          8        new right in the state of Florida, nor are we talking

          9        about giving any higher scrutiny level to an existing

         10        right.  The right is in there.  The term that's now in the

         11        Constitution is physical handicap.

         12             What we are doing, and I'll tell you that my original

         13        proposal, which was amended by the committee, with my

         14        agreement, was to take out the word "physical" and to just

         15        put in the word "disability," which I think deals with, in

         16        large measure, one of the things that you are concerned

         17        about, the emotional issues and where does it stop.

         18             Well, that's not in here.  What we are talking about

         19        here is simply physical disability, it's something that's

         20        there now, it's something that there has been virtually no

         21        litigation over in the state of Florida.

         22             And the only thing we are trying to do here is

         23        clarify exactly what that word "physical handicap" means

         24        in terms that are already established under the federal

         25        law and other state law.


          1             CHAIRMAN DOUGLASS:  Commissioner Barkdull has a

          2        question, do you yield?  She yields.

          3             COMMISSIONER FREIDIN:  Yes, sir.

          4             COMMISSIONER BARKDULL:  Commissioner Freiden, I think

          5        you answered my question right at the end.  And the

          6        purpose of adding this word is to bring within the purview

          7        of the Florida law the Federal interpretations of what

          8        disability means.

          9             COMMISSIONER FREIDIN:  Well I think that that's one

         10        of them, yes.

         11             COMMISSIONER BARKDULL:  So it will be an expansion of

         12        rights beyond what is now present for handicapped people.

         13             COMMISSIONER FREIDIN:  I don't see how it would

         14        expand the rights for what is now present, other than it

         15        will clarify -- it may contract it, it just will conform

         16        it so that there isn't a confusion about the terminology

         17        that we are using.

         18             COMMISSIONER BARKDULL:  When you started out in

         19        response to the question of Commissioner Morsani, I was

         20        very happy to hear it because obviously, hopefully, the

         21        courts in construing whatever change will be adopted will

         22        follow somewhat the debate that's had here.  You had

         23        indicated in the early part of your response to him that

         24        changing this word, as you had suggested, would not change

         25        the law in Florida.  And then you indicated at the


          1        conclusion of your remarks to him that it would put us in

          2        a posture where the definition would be subject to the

          3        federal interpretations.

          4             COMMISSIONER FREIDIN:  I wouldn't agree that it would

          5        be subject to the federal interpretations, but I think

          6        that the federal interpretations could then be used in

          7        interpreting the Florida Constitution.

          8             COMMISSIONER BARKDULL:  Thank you.

          9             CHAIRMAN DOUGLASS:  Commissioner Smith.

         10             COMMISSIONER SMITH:  Thank you, Mr. Chairman,

         11        colleagues --

         12             CHAIRMAN DOUGLASS:  Before you speak, with unanimous

         13        consent, I would like to ask a question of Commissioner

         14        Freiden based on her last exchange.  If nobody objects,

         15        I'll ask from the chair.

         16             What you are really saying, as I understand it, is

         17        that this would conform with the present federal law; is

         18        that right?

         19             COMMISSIONER FREIDIN:  Yes.

         20             CHAIRMAN DOUGLASS:  But if the federal law changed

         21        and it changed to make it more restrictive than it is now,

         22        it would be greater than the then-changed federal law;

         23        would it not?

         24             COMMISSIONER FREIDIN:  Well, I think that the way --

         25        we have to look at what we are talking about here.  The


          1        federal law, the Americans with Disabilities Act, sets out

          2        certain rights and -- rights for people who are disabled

          3        and responsibilities of employers, business owners,

          4        landlords, and people who invite the public onto their

          5        premises.

          6             That, the word "disability" is defined very broadly

          7        and not particularly well in the federal statutes.  There

          8        is then an entire body of case law which is changing every

          9        day as we speak that defines what is a disability and

         10        which kind -- which physical situations fall within the

         11        definition that's in the statute.

         12             All I'm saying is that it would be nice for the state

         13        of Florida, should the need arise to interpret that, our

         14        provision, which is not the same as the Americans with

         15        Disabilities Act, this has really nothing to do with it

         16        other than the fact that it would be nice to have that

         17        body of case law to rely on in order to make an

         18        interpretation of what that means.

         19             CHAIRMAN DOUGLASS:  My question though, I agree with

         20        all of that, but my question is that if we adopt this and

         21        they repeal the Americans with Disabilities Act, then we

         22        would have a law that would be interpreted in accordance

         23        with the repealed Americans with Disabilities Act, under

         24        your proposal.  And the federal government would not now

         25        or then have a disabilities act.  In recognizing the


          1        vagaries of Congressional action, it's certainly not in

          2        the federal Constitution, it is a federal statute; is it

          3        not?

          4             COMMISSIONER FREIDIN:  That's correct.  And I don't

          5        think that a repeal of the act would have any impact on

          6        the Florida Constitution.  In fact --

          7             CHAIRMAN DOUGLASS:  No, no, no, no, that's not my

          8        point.  It would if we adopted your proposal.

          9             COMMISSIONER FREIDIN:  My proposal simply changes a

         10        word.  I don't say anything about federal law or the

         11        Americans with Disabilities Act in the proposal.

         12             CHAIRMAN DOUGLASS:  So there isn't any point in

         13        discussing that, if it doesn't have any application once

         14        it's in the Constitution.

         15             COMMISSIONER FREIDIN:  I'm not sure I understand what

         16        you are saying.

         17             CHAIRMAN DOUGLASS:  I'm trying to get at what

         18        Commissioner Morsani's question was.  And I think stating

         19        it from a lawyer's standpoint, what he's saying is that

         20        federal law shall not be embodied in the Florida

         21        Constitution.  And the reason is that it can be changed in

         22        standard by the Congress and the President doing it.

         23             And that the presentation led him to the conclusion

         24        that Florida would be becoming an ADA constitutional

         25        state.  Is that what I understood you to question?  I'm


          1        only doing it to clarify his question.  I think that was

          2        his point, and I don't think you responded to that.

          3             COMMISSIONER FREIDIN:  Let me just say, and then I'm

          4        going to yield to Commissioner Smith who maybe can state

          5        it better than I can, that there would be -- we are not --

          6        we would not be by making this change in the Constitution,

          7        we would not be adopting the federal law as our own.  We

          8        would simply be using -- having a body of law to which

          9        could be referred by courts that, in order to help define

         10        the term.

         11             CHAIRMAN DOUGLASS:  Now, that's what I was trying to

         12        get you to say.

         13             COMMISSIONER FREIDIN:  Thank you.

         14             CHAIRMAN DOUGLASS:  Commissioner Smith.

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

         16        of all --

         17             CHAIRMAN DOUGLASS:  Wait a minute, I think

         18        Commissioner Barkdull has got another question for

         19        Commissioner Freiden.

         20             COMMISSIONER BARKDULL:  I'm sorry, but at the

         21        conclusion -- would you take the floor again, please?  At

         22        the conclusion of your remarks, as I understand, again,

         23        what you are saying what you want us to do is to change

         24        this so we can use the federal definitions, or federal law

         25        was your words.


          1             COMMISSIONER FREIDIN:  No, no, not so we can use it.

          2        I'm not suggesting that the state of Florida needs to use

          3        federal law.  I'm suggesting simply that because the word

          4        "disability" is the word that is currently being used, not

          5        only by federal courts, but even Florida courts where we

          6        have the word "handicap" in our law, that Florida courts

          7        are still reverting back to the word "disability," let's

          8        make it all consistent.  That's all I'm saying.

          9             COMMISSIONER BARKDULL:  Let me be sure I'm clear on

         10        this.  If it's just to change the nomenclature, I don't

         11        have any objection, but if the purpose is to bring into a

         12        new body of law, I'm opposed to it.

         13             COMMISSIONER FREIDIN:  The purpose is to just change

         14        the nomenclature.

         15             CHAIRMAN DOUGLASS:  Thank you for being patient.

         16             COMMISSIONER SMITH:  Thank you very much.

         17             First of all, please understand that this issue came

         18        about as a result of a concern by members of the disabled

         19        community concerning the word "handicap" as being a

         20        negative.

         21             Commissioner Morsani, lawyers here will tell you that

         22        at one time in Florida law, children born out of wedlock

         23        were called bastards, in law.  And we changed that to

         24        illegitimate.  And just like you say, I don't know

         25        handicap from disabled; it is the same, for all intents


          1        and purposes.  And the word bastard and illegitimate are

          2        basically the same, but one hurts and one doesn't hurt as

          3        much.  So it was with that understanding that we tackled

          4        the issue.

          5             Secondly, it is clear, without any doubt at all, that

          6        the declaration of rights committee has no intention,

          7        whatsoever, to expand the current state of the law in

          8        Florida.  It is not the intention of the declaration of

          9        rights committee or the proponents of the proposal to

         10        adopt federal law.  Those of you who have heard me speak

         11        before know that I don't even agree with that philosophy.

         12        This is the Florida Constitution, and not to incorporate

         13        the ADA.

         14             Once there was a decision, let's try to take on the

         15        issue and make it more palatable, the concern then, we go

         16        from handicap to what?  Special needs probably is the

         17        most, is where people are going now.  But unfortunately,

         18        we don't have any guidance on what that means.  So having

         19        some guidance about what disability means, we adopted

         20        physical disability.  So this is a nomenclature change

         21        only.

         22             And whatever the federal government does has

         23        absolutely no force and effect except for guidance as

         24        Justice Barkdull in his court looks to other courts for

         25        guidance only, but not as a precedent.  It was with that


          1        understanding that this proposal was adopted.  It

          2        initially came up as noncontroversial, but some of you

          3        asked the good questions you have asked today before the

          4        committee, which made it a little controversial.  But

          5        after these questions have been answered now, I hope this

          6        is a noncontroversial item.

          7             CHAIRMAN DOUGLASS:  Any further debate, pro or con?

          8        Are you ready to vote?  All right.  Unlock the machine.

          9        (Pause.)  We have lost some members.  Now, some of them

         10        are showing back up.  Lock the machine and announce the

         11        vote.

         12             (Vote taken and recorded electronically.)

         13             CHAIRMAN DOUGLASS:  Nineteen yeas and five nays,

         14        Mr. Chairman.

         15             CHAIRMAN DOUGLASS:  Incidentally, the matters on

         16        reconsideration, if there are any, will be taken up later.

         17        One of the ones that I understand is going to come up was

         18        one by Commissioner Rundle whose plane didn't get here and

         19        we wanted to wait on her.  So we'll come to that at a

         20        later point in the proceedings.

         21             If I'm correct, the clock that you all are looking at

         22        up there is three minutes fast, so you just need to know

         23        that if you are catching a plane.  You better not be

         24        today.

         25             The next proposal is Proposal No. 17 by Commissioner


          1        Riley, which I think has been withdrawn from the --

          2        Commissioner Riley.

          3             COMMISSIONER RILEY:  The request of the committee was

          4        that we, whatever the proper terminology is, defer this

          5        until later.

          6             CHAIRMAN DOUGLASS:  It's going back to the committee.

          7        I think we have already done that.

          8             The next proposal is 153 by Commissioner Barkdull.

          9        Would you read it please?

         10             READING CLERK:  Proposal 153.  Proposal to revise

         11        Article V, Section 12, Florida Constitution.  Provide for

         12        membership of the Judicial Qualifications Commission.

         13             CHAIRMAN DOUGLASS:  Commissioner Barkdull.

         14             COMMISSIONER BARKDULL:  Mr. Chairman, Members of the

         15        Commission, it was placed on the ballot at the '96

         16        election, a joint resolution that came out of the Article

         17        V task force that increased the membership of the Judicial

         18        Qualifications Commission from 13 to 15.  It added the two

         19        additional lawyers from the Florida Bar.

         20             In the body of the resolution, it was authorized for

         21        15 members.  In the schedule which set for staggered

         22        terms, they only provide provided for three of the four

         23        lawyer members in the schedule.  This was a housekeeping

         24        amendment to make the schedule provide for four lawyers

         25        rather than three, particularly because one of the four


          1        have already been appointed.  So I urge the adoption of

          2        the proposal.

          3             CHAIRMAN DOUGLASS:  Any discussion?  All of those

          4        in -- unlock the machine.  Well, everybody hasn't voted

          5        that's here but -- we are still missing a few, but we are

          6        going to lock the machine.  Announce the vote.

          7             READING CLERK:  Twenty-two yeas and zero nays,

          8        Mr. Chairman.

          9             CHAIRMAN DOUGLASS:  This proposal is Proposal no. 60

         10        by Commissioner Langley.  Would you read it please?  I

         11        don't think the committee can present this.  Commissioner

         12        Barkdull knows what it is.

         13             READING CLERK:  Proposal 60.  Proposal to revise

         14        Article V, Section2, Florida Constitution, providing for

         15        the cross-assignment of judges.

         16             CHAIRMAN DOUGLASS:  Approved by the committee on

         17        Judicial Article V.  Mr. Barkdull.

         18             COMMISSIONER BARKDULL:  Mr. Chairman, Members of the

         19        Commission, this is Commissioner Langley's proposal and

         20        neither Commissioner Langley nor the Chairman of the

         21        judiciary committee are present.  This is another proposal

         22        that is an outgrowth of the Article V task force.  It

         23        permits county judges to be assigned circuit judges,

         24        circuit judges to be assigned county judges and alleviates

         25        the problem that cross-assignments have caused, and I urge


          1        the adoption of it.

          2             CHAIRMAN DOUGLASS:  Any questions?  Commissioner

          3        Rundle has a question.

          4             COMMISSIONER RUNDLE:  Commissioner Barkdull, help me

          5        through this if you would just a minute.  Because I'm

          6        thinking back, in Dade County I know that we have a number

          7        of judges that are temporarily assigned from county court

          8        to, say, circuit court.  How does this change that

          9        procedure?

         10             COMMISSIONER BARKDULL:  It's my understanding that

         11        there's a Supreme Court decision that says there's a

         12        limitation on what you can do on these cross assignments.

         13        And what this will permit is that county judges, when they

         14        are assigned as circuit judges, will be able to be there

         15        for a longer time and possibly have a -- I don't know how

         16        they would expand the jurisdiction, because once they are

         17        acting as a circuit judge, they will act as a circuit

         18        judge.  But I think it is primarily a time limitation

         19        factor.

         20             CHAIRMAN DOUGLASS:  Commissioner Rundle.

         21             COMMISSIONER RUNDLE:  Does this have a provision as

         22        to how long?  I mean, is it indefinitely or --

         23             COMMISSIONER BARKDULL:  I cannot answer that.  I do

         24        not have it in front of us.  I assume that would be

         25        handled by the order of the court that assigned them


          1        because all of the orders that I have seen normally have a

          2        time limitation on how long a judge can serve.

          3             CHAIRMAN DOUGLASS:  Commissioner Zack, do you want to

          4        respond to that?

          5             COMMISSIONER ZACK:  I called during the debate before

          6        the judiciary committee that it was basically unlimited.

          7        And, as a matter of fact, that was one of the judicial

          8        challenges that have been made, is that they are doing

          9        indirectly what they could not do directly, by continuing

         10        to reappoint the same judges for a six-month period.  This

         11        is important -- may I rise to debate this issue?

         12             CHAIRMAN DOUGLASS:  You have the floor.

         13             COMMISSIONER ZACK:  Actually, I haven't made up my

         14        mind about this particular proposal.  We have some very

         15        fine county judges, we have fine retired judges, we have

         16        fine circuit judges, but the citizens vote for a certain

         17        circuit judge and they expect that when they have disputes

         18        that rise above a certain amount of money, that they will

         19        be addressed by a circuit judge.  I know having sat on the

         20        judicial nominating committee and having discussed whether

         21        a particular person should be appointed to the bench --

         22        and I remember numerous discussions, Commissioner Freiden

         23        shaking her head, having participated in some of those,

         24        where we would say, gee, this person is really going to

         25        make a great county judge and needs some experience before


          1        they go on the circuit bench.  As a matter of fact,

          2        sometimes when we have county and circuit openings at the

          3        same time there is -- does Judge Barkdull have a question?

          4             COMMISSIONER BARKDULL:  If the gentleman may yield, I

          5        may shorten something here.

          6             COMMISSIONER ZACK:  I am always happy to yield to

          7        Commissioner Barkdull.

          8             COMMISSIONER BARKDULL:  Mr. Chairman, in view of the

          9        fact that this is not my proposal and I'm not a member of

         10        the judiciary committee, I would like to temporarily pass

         11        this until either Senate -- Commissioner Langley or the

         12        chairman of the judiciary committee can be present.

         13             COMMISSIONER ZACK:  I'm vice-chairman and I would

         14        suggest that a TP would be fine at this time.  I think

         15        quite a few members of the judiciary committee are not

         16        present for various reasons today, and I do think that

         17        this requires some serious thought before we proceed with

         18        it.

         19             CHAIRMAN DOUGLASS:  Without objection, we would show

         20        the matter temporarily passed.  Read the next proposal.

         21             READING CLERK:  Committee substitute for Proposal

         22        108.  Proposal to revise Article VI, s.4, and Article V,

         23        s.10, Florida Constitution; providing that judicial

         24        officers may not hold office for more than eight

         25        consecutive years; reducing the terms of office for


          1        certain judicial officers.

          2             CHAIRMAN DOUGLASS:  All right.  This was recommended

          3        as a committee substitute and disapproved by the committee

          4        on judiciary and it was offered by Commissioner Connor.

          5        And you are recognized Commissioner Connor.

          6             COMMISSIONER CONNOR:  Thank you, Mr. Chairman.

          7        Commissioners, you will recall that in the not too distant

          8        past, the voters in Florida voted overwhelmingly in favor

          9        of term limits.  They made a determination that they

         10        wanted to limit the terms of public officers to eight

         11        years.  They made the determination that they didn't want

         12        career politicians in office.  The net effect of that

         13        change is that members of the legislative branch of

         14        government and members of the executive branch of

         15        government, to wit, the Governor and the Cabinet are all

         16        limited to eight years of service under the current regime

         17        that we have.  It comes to no surprise to you that I have

         18        been a critic in the past and remain a critic in the

         19        present of what's called judicial activism; that is where

         20        courts will on occasion usurp, in my estimation,

         21        legislative or executive powers that belong to other

         22        branches of government.

         23             The net effect of what we have presently is that we

         24        have limited the terms of members of the legislative

         25        branch, we have limited the terms of the members of the


          1        executive branch, but there is no term limit as it

          2        currently applies to judges.  Judges may serve until the

          3        constitutionally, until the age that Justice Sundberg

          4        describes as constitutional senility, which means that

          5        judges may serve in our courts literally for decades.

          6             My concern, very frankly, is that in an era where we

          7        have limited terms of government for executive members and

          8        for legislative members, and in an era where we have

          9        judicial activism, and in my estimation, judicial

         10        activism, whether it comes from the left or the right is

         11        inappropriate and it's destructive of our constitutional

         12        republican form of government.

         13             But in an era where we have limited those other two

         14        branches of government but failed to limit the terms of

         15        members of the judicial branches of government, we run the

         16        risk of skewing the balance of power between what is

         17        intended to be three coordinate co-equal branches of

         18        government in favor of the judiciary, with the net effect

         19        being that over time, if this practice of judicial

         20        activism that some judges extol of being a very positive

         21        virtue on their part, that we will see a skewing of the

         22        balance of power among the branches of government in favor

         23        of the judiciary.

         24             The net effect being that, over time, if this

         25        practice of judicial activism which some judges extol as


          1        being a very positive virtue on their part, that we see a

          2        skewing of the balance of power among the branches of

          3        government in favor of the judiciary, the net effect of

          4        which would mean that the least accountable branch of

          5        government will be the primary effect of public policy.

          6             I think that that's a dangerous and precarious

          7        position to be in.  This is not a term limits proposal in

          8        the sense that I'm advocating that we should have

          9        eight-year term limits or 12-year term limits or whatever.

         10             My point is simply, that where the public has chosen

         11        to limit the terms of service of members of the executive

         12        branch and of the legislative branch, we should give them

         13        the opportunity to similarly limit the terms of the

         14        judicial branch to avoid this skewing of the balance of

         15        power.

         16             CHAIRMAN DOUGLASS:  All right.  Commissioner Barnett.

         17             COMMISSIONER BARNETT:  I would like to speak in

         18        opposition to this proposal.

         19             CHAIRMAN DOUGLASS:  Proceed.

         20             COMMISSIONER BARNETT:  I have a great deal of respect

         21        for the -- Commissioner Connor and his proposal, but I

         22        view the judiciary as certainly one of the co-equal

         23        branches of government, but I view the judiciary as

         24        different than the executive and legislative branches of

         25        government.  Indeed things that might be inappropriate --


          1        might be appropriate for a legislative candidate are

          2        inappropriate for a judicial candidate, whether it is a

          3        trial judge standing for election or an appellate judge

          4        standing for merit retention; they are different.

          5             The essential character of the judiciary is an

          6        independent, well-informed judiciary to interpret the laws

          7        given to us by the Legislature and/or imposed by the

          8        executive branch in a fair manner consistent with the

          9        constitutional requirements.

         10             And I think term limits for judges are particularly

         11        inappropriate.  I frankly think term limits, in and of

         12        themselves, are inappropriate.  And so my concern about it

         13        for the executive and legislative branch is even stronger

         14        when it is applied to the judicial branch of government.

         15             Now our people, the citizens of this state already

         16        have the ability to limit the terms of their elected

         17        officials, and particularly of judges.  That power vests

         18        in the people today.  I believe that there's great merit

         19        and wisdom and benefit that comes from a number of years

         20        on the bench.  I think that it is good that we can attract

         21        good people to the bench and that they can stay for many

         22        years.

         23             I think that is a benefit to the State of Florida and

         24        I think it would be an enormous detriment to the people of

         25        this state to limit our judges to just one term.  I don't


          1        see a benefit at all to the people of this state by that

          2        occurring.  And so, therefore, I am opposed to this

          3        proposal.

          4             CHAIRMAN DOUGLASS:  Further discussion?

          5             CHAIRMAN DOUGLASS:  All right.  Prepared to vote?

          6             COMMISSIONER CONNOR:  Close?

          7             CHAIRMAN DOUGLASS:  You can close, yes.

          8             COMMISSIONER CONNOR:  For clarification, Commissioner

          9        Barnett, this proposal does not limit judges to one term.

         10        It would provide that all judges would serve four-year

         11        terms, and the effect of it would be to limit them to two

         12        terms, in the same manner that we limit members of the

         13        executive branch and of the legislative branch.

         14             I would submit to you that this limitation proposal

         15        in no way effects the independence of the judiciary.  And

         16        all of the arguments about experience and the value of

         17        experience in office, I would submit can apply with equal

         18        vigor to the members of the legislative and executive

         19        branches of government.  My proposal would be 12 years if

         20        the voters had adopted a 12-year term limit.  As I say,

         21        this is not intended to be a term limits proposal in a

         22        vacuum, it is simply designed to try to bring back a sense

         23        of symmetry between the coordinate, co-equal branches of

         24        government.  It in no way limits the independence of the

         25        judiciary, and it in no way treats them in any form


          1        different from the other branches of government.  On the

          2        contrary, as I say, it brings in a sense of symetry that

          3        does not now exist within the Constitution.  Thank you.

          4             CHAIRMAN DOUGLASS:  This has two things in it,

          5        doesn't it?  It changes the terms from six to four?

          6             COMMISSIONER CONNOR:  Yes, sir.

          7             CHAIRMAN DOUGLASS:  And it limits them to two

          8        four-year terms, it doesn't limit them to two six-year

          9        terms?

         10             COMMISSIONER CONNOR:  That's correct.  Because of the

         11        desire to get a multiple of four, inasmuch Floridians had

         12        adopted the "eight is enough" proposal, the Supreme Court

         13        judges currently serve six-year terms, it reduces their

         14        term to four years and then provides, in the same manner

         15        as the members of other branches of government, that when

         16        they served eight, they have to surrender their position.

         17             CHAIRMAN DOUGLASS:  All right.  Any further questions

         18        of the proponent?  If not, we'll proceed to vote.  Unlock

         19        the machine.  Has everybody voted?  Lock the machine.  And

         20        announce.

         21             (Vote taken and recrded electronically.)

         22             CHAIRMAN DOUGLASS:  Four yeas and 19 nays,

         23        Mr. Chairman.

         24             CHAIRMAN DOUGLASS:  All right.  We'll move then to

         25        Proposal 94 by Commissioner Evans, which was disapproved


          1        by the committee on the judicial article.  Read it please.

          2             READING CLERK:  Proposal 94, proposal to revise

          3        Article V, s.10, Florida Constitution; providing that

          4        candidates for judicial office may not be precluded from

          5        taking public position on issues.

          6             CHAIRMAN DOUGLASS:  Commissioner Evans, you are

          7        recognized.

          8             COMMISSIONER EVANS:  The question of whether a person

          9        surrenders his constitutional right to freedom of speech

         10        when he becomes a judicial candidate has been litigated

         11        and it has been decided.  The answer is an unqualified no.

         12        The federal court in the Northern District of Florida, in

         13        1990, states that a state cannot require so much.  The

         14        court further stated that when a state decides that its

         15        trial judges are to be popularly elected, it must

         16        recognize the candidate's rights to make campaign speeches

         17        in the competent right of the public to be informed about

         18        judicial candidates.

         19             This federal court struck down as unconstitutional

         20        the requirement in canon seven that a judicial candidate

         21        should not, quote, announce his views on disputed legal or

         22        political issues.  The court held that, except for

         23        information about the candidate's background, this canon

         24        effectively proscribes announcements on almost every issue

         25        that might be of interest to the public and the candidates


          1        in a judicial race.

          2             Now, even though the members of the Florida Bar must

          3        swear to uphold the Constitution, some of those very

          4        members in a trusted leadership position rewrote the canon

          5        requiring that a candidate, quote, shall not make

          6        statements that commit or appear to permit the candidate

          7        with respect to cases, controversies, or issues that are

          8        likely to come before the court.  This new language is

          9        even more broad, more vague, and more abusive of the First

         10        Amendment than earlier language.

         11             Appear to commit.  This places the judgment solely in

         12        the perception of the beholder.  The candidate can make no

         13        comment on any issues which another person might perceive

         14        as a commitment, whether or not the perception is

         15        reasonable.

         16             Cases, controversies or issues that are likely to

         17        come before the court.  This is everything, everything and

         18        anything is likely to come before the court.  The earlier

         19        canon at least required that the issue already be in

         20        dispute.  The current canon has no restriction whatsoever

         21        on the status of the issue.

         22             The leadership of the Florida Bar is constantly

         23        trying to discern why the public has such a negative

         24        perception of its members.  We assert that we are members

         25        of a dignified profession.  Our public relations experts


          1        point to our mandatory pro bono reporting requirements and

          2        to our two hours of ethics courses every three years as

          3        proof of our dignity.  Our leadership thumbs their

          4        collective noses at the United States and Florida

          5        Constitutions, while the public is clamoring for knowledge

          6        for disclosure of information.  Our leadership fails to

          7        acknowledge that this third branch of government belongs

          8        to the people, not to elite of the Florida Bar.  The

          9        candidates want to give meaningful, relevant information

         10        to their voters and the voters want and need this

         11        information.

         12             No public interest is served through the concealment

         13        of information.  I have heard opponents of disclosure

         14        state that, We can't have our judges going around talking

         15        about the issues.  The presumption, I suppose, is that

         16        discussing the issues is somehow undignified and it would

         17        reflect poorly on the judiciary, thereby, undermining the

         18        public's confidence in the judiciary.

         19             The Federal court in 1990 answered this concern,

         20        finding that the state underestimates the ability of the

         21        public to place the information in its proper perspective.

         22        The court continued, The state wrongly assumes that

         23        members of a respected and learned professional cannot

         24        announce their views on legal and/or political issues

         25        without undermining the public's confidence in the


          1        objectivity of the judiciary.

          2             Well thankfully, at least one member of our Supreme

          3        Court has recently given us a guiding star.  Candidates

          4        have a concrete example to use for their own comments, and

          5        the public has this example to guide their expectations.

          6        I share with you Chief Justice Kogan's comments and the

          7        media perception of his comments as printed in the Orlando

          8        Sentinel, January 2nd, 1998, under an Associated Press

          9        byline.

         10             "'Chief Justice says state death penalty isn't worth

         11        keeping.  He thinks cases dealing with executions are

         12        cumbersome and take up too much of the Supreme Court's

         13        time.  State Supreme Court Chief Justice Gerald Kogan says

         14        the death penalty isn't working and he wants Floridians to

         15        consider whether to abolish it.  Kogan doesn't have a

         16        moral opposition, he said the death penalty simply takes

         17        too much of the court's time.  He suggested life in prison

         18        without parol might be a better sentence, a move unusual

         19        for any judge, Kogan is speaking out with his death

         20        penalty message.  If the person who deals with it on the

         21        daily basis doesn't call the public's attention to the

         22        fact that it's not working, then who will.

         23             Now, as he begins his final six months as Chief

         24        Justice of the Florida Supreme Court, Kogan is traveling

         25        the state to take his message to the public.  I'm just


          1        sharing the observations that I've had over all of these

          2        years, Kogan told the St. Petersburg Times, in a Thursday

          3        story.  Why is it that I should not share my experience

          4        with the public?  Most of them have no where near the

          5        experience with these types of cases that I have.  Kogan's

          6        experience tells him capital punishment in Florida is too

          7        cumbersome and monopolizes the time in Florida's high

          8        court.

          9             He points to the number of people waiting on death

         10        row, about 380, and says the judiciary is bogged down with

         11        capital cases.  Perhaps sentencing inmates to life in

         12        prison without parole is more practical, Kogan said.  Are

         13        we going to spend all of our time on an elite portion of

         14        cases that in the long run do not impact a great number of

         15        people, he asked.

         16             In October, Kogan descended in a four-three ruling

         17        that declared Florida's 74-year-old electric chair a legal

         18        way to execute killers, despite the foot long flame that

         19        broke out during the state's last electrocution in March.

         20             If the question of the chair comes back to Kogan's

         21        court, the outcome could very well be different.  Justice

         22        Steven Grimes, one of the majority in the four-three

         23        ruling retired in November, he was replaced by Barbara

         24        Piontay of West Palm Beach.

         25             Retired Supreme Court Justice Parker Lee McDonald who


          1        chairs the Commission of Administration of Justice in

          2        capital cases said he had not heard of a sitting Justice

          3        publicly criticizing the death penalty system before, but

          4        that he wouldn't criticize Kogan.  Others have thought it,

          5        McDonald said, they just haven't spoken it.

          6             Now, this article brings to mind several observations

          7        and questions.  First, are Chief Justice Kogan's comments

          8        undignified, reflecting poorly on the judiciary?  Well, I

          9        think not, but could others think differently.  If you

         10        were to listen the radio talk shows I've listened to and

         11        read some of the editorial letters to the editors, then

         12        you know that others do think so.  Would the Judicial

         13        Qualifications Commission think so?  Well, we don't know

         14        that answer yet.

         15             Second, do his comments undermine the public's

         16        confidence?  Has he revealed that he can no longer sit

         17        without bias on death penalty issues?  Must he recuse

         18        himself if the question of the chair comes back before the

         19        court?  Remember, if a judicial candidate made these

         20        comments, the standard that the JQC is to apply is,

         21        appears to commit.

         22             The candidate, whether for election, selection, or

         23        retention, if he follows the examples set by the Chief

         24        Justice, he will not know whether he has violated canon

         25        seven until the JQC takes action.  Certainly, such a rule


          1        is chilling of our First Amendment rights to the most

          2        extreme degree.

          3             The Florida Bar has placed a candidate in a most

          4        precarious position.  Should he speak on the issues?  As

          5        allowed by the First Amendment, and as necessary to and

          6        from the electorate.  If he does not, he may very well be

          7        perceived as having something to hide.  The electorate

          8        does not like choosing judges on the basis of biographical

          9        data alone.  He very well may not get elected or retained

         10        if he remains silent on the issues.

         11             On the other hand, the Florida Bar demands compliance

         12        with the rules.  After all, they are the rules.  Even if

         13        the rules are unconstitutional.  To speak to the issues

         14        could cause him to be disqualified as a candidate, or to

         15        be removed from the bench, or to be publicly reminded, a

         16        fact that can and will be used against him in an election

         17        or retention election.

         18             But why must we support this kind of high-handed

         19        behavior on the part of the Florida Bar?  I submit that

         20        all 23 of us who are members of the Florida Bar on this

         21        Commission must vote in favor of Proposal 94, we have

         22        sworn to uphold the Constitution.  I further submit that

         23        the remaining members should want disclosure of highly

         24        relevant information rather than concealment.  Only a

         25        constitutional provision which speaks directly to this


          1        issue will suffice.  Candidates should not be required to

          2        sue over and over and over in Federal court.  The

          3        Legislature cannot act because of the separation of powers

          4        doctrine; we are the only remedy.  Do not sentence the

          5        people to ignorance.

          6             CHAIRMAN DOUGLASS:  Commissioner Kogan, if you need a

          7        lawyer, I bet you could get one.

          8             COMMISSIONER KOGAN:  Mr. Chairman, I don't need a

          9        lawyer, I can assure you of that.  Ms. Evans, Commissioner

         10        Evans, let me ask this question.  Would you propose to

         11        permit candidates for judicial office or city judges to

         12        announce how they will vote on a particular matter that

         13        would come before them --

         14             COMMISSIONER EVANS:  Absolutely not.

         15             COMMISSIONER KOGAN:  -- in your proposal?

         16             COMMISSIONER EVANS:  Absolutely not.

         17             COMMISSIONER KOGAN:  What kind of questions would you

         18        ask them?

         19             COMMISSIONER EVANS:  The proposal is that a judicial

         20        office -- candidate for judicial office may not be

         21        precluded from taking a public position on issues.  So,

         22        I --

         23             COMMISSIONER KOGAN:  Well, I suppose when one of

         24        those candidates goes to a candidate's rally and the

         25        audience is permitted to ask questions, what type of


          1        questions would you indicate or believe would be asked of

          2        the candidates that they, in fact, could answer?  And

          3        could I have some examples of that?

          4             COMMISSIONER EVANS:  Yes, I do help draft questions

          5        in those situations.  And when I do it this time, I will

          6        send to them a copy of the article here to use as guidance

          7        so that they will know things that they can say, they will

          8        know that they can state their opinion on the death

          9        penalty.  We know that just because you are for or against

         10        the death penalty does not mean that you will vote for or

         11        against a certain factual situation in a certain

         12        particular case.

         13             But we also know that there's great discretion in how

         14        you can vote.  And just because you do not speak of your

         15        opinion doesn't mean that your bias will not come through

         16        as you are acting within the lawful discretion of your

         17        office.  We know that judges have great discretion and

         18        some who believe, for instance, that --

         19             COMMISSIONER KOGAN:  Let me ask this.  I understand

         20        where you are coming from.  What else would you ask a

         21        judge or a candidate for judge, as to what their position

         22        is?  What are some other fields or issues you would ask

         23        them?

         24             COMMISSIONER EVANS:  There are a great number of

         25        moral issues that I think are highly relevant.


          1             COMMISSIONER KOGAN:  For example.

          2             COMMISSIONER EVANS:  For example, How do you -- what

          3        is your stand on the issue of abortion?  What is your

          4        stand on the issue of parental consent for abortion?  What

          5        is your stand on the issue of giving people of certain

          6        sexual orientation a higher class of protection?  What is

          7        your position -- I mean, I can go on and on.  What is your

          8        position on this?  Does it mean that, if it's illegal to

          9        do something, that the judge will then be required to do

         10        that, or does it mean that, within his discretion the

         11        voters at least know where where he stands.  Does it bid

         12        him?  No, it doesn't.

         13             COMMISSIONER KOGAN:  You understand that justices and

         14        judges all the time express their opinion on matters, for

         15        example, on guardianship, on dissolution of marriage, on

         16        certain matters concerning tort reform, and are regularly

         17        called to the Legislature to give their opinions on these

         18        particular matters as an exception to the rule that

         19        prohibits judges and judicial candidates from speaking out

         20        on public issues.

         21             One issue that we are permitted to speak out on is

         22        the administration of justice and those matters affecting

         23        the administration of justice, and judges all of the time

         24        talk out on that.  Were you aware of that fact?

         25             COMMISSIONER EVANS:  Yes, I am aware of that.  My


          1        husband has come and spoken in front of Senate committee

          2        hearing on Fourth Amendment search and seizure.

          3             COMMISSIONER KOGAN:  But, that, in fact, is an

          4        exception that you can talk out on those matters

          5        concerning the administration of justice.

          6             COMMISSIONER EVANS:  My concern, Commissioner Kogan,

          7        is for a candidate, in the heat of an election, the line

          8        is very, very vague.  And I have been to many of the

          9        forums where candidates will say, I wish I could answer

         10        your question, I wish I could speak out on, say, my

         11        opinion of Fourth Amendment search and seizure, I wish I

         12        could do that, but unfortunately the Florida Bar will not

         13        allow me to do that.

         14             I can tell you what committees I have served on, i

         15        can tell you where I was born, but I can't tell you my

         16        opinion on any issues because I'm prohibited from doing

         17        that.  Some of those candidates, perhaps they don't want

         18        to talk to the people.  I don't know why they wouldn't

         19        want to, but maybe they don't want to.  Maybe it's just

         20        easier to get up and say, I was born in, name the town and

         21        sit down.  But so many times in the past, candidates for

         22        judge have not even been invited to these forums because

         23        the public is under the perception that the judges can't

         24        answer their questions anyway, so why should they take up

         25        three minutes of their time and give biographical data.


          1             It is very chilling and it is very scary when you are

          2        the candidate to think that if you do the wrong thing, the

          3        JQC is going to step in and snap you up.  It's very

          4        chilling.  I don't know what the purpose of the canon is.

          5        I don't know the purpose, other than to keep information

          6        from the people so that they can intelligently vote.  I

          7        know of no purpose.

          8             CHAIRMAN DOUGLASS:  Commissioner Barnett.

          9             COMMISSIONER BARNETT:  To speak in opposition.

         10             CHAIRMAN DOUGLASS:  Yes.

         11             COMMISSIONER BARNETT:  I would like to start by

         12        saying that I am a proponent of merit retention, and I

         13        am -- would vote for merit retention across the board in

         14        judicial elections in the state.  And some of the reasons

         15        for that relate to the issue before the Commission today.

         16        I also want to say something that I said briefly when I

         17        was talking about a proposal Commissioner Connor had, and

         18        that relates to the independence of the judiciary.

         19             In my judgment, the independence of the judiciary is

         20        the cornerstone of our democracy, it is an essential

         21        element of our government.  A key fact, a key part of the

         22        independence of the judiciary is that judges must be

         23        impartial.  People who come before the court system need

         24        to know that their cases will be tried on the merits,

         25        without regard to the judge's particular personal view


          1        about an issue, on the merits, the law applied to those

          2        facts.

          3             Judges in our society, in our country -- in our

          4        democracy are often called upon to rule on issues that are

          5        not very popular.  In fact, one of the hallmarks of our

          6        system is that our judiciary protects often the rights of

          7        minorities and protects people whose position, at that

          8        moment in time, may not be popular.

          9             Judges are not a, quote, representative body.  Their

         10        job is not to be a representative, to represent a

         11        position.  The role of a judge is to preserve the

         12        constitutional rights, and even if those rights are not

         13        popular at the moment.  That is the role of judiciary, and

         14        that is the strength of this democracy, and that is the

         15        reason, Commissioner Evans, for the canon, to ensure the

         16        impartiality of a judge when that individual is asked to

         17        make decisions to uphold the Constitution and to fairly

         18        apply the laws.

         19             If you read that canon, it is very simple.  It

         20        basically prohibits -- a judicial candidate shall not make

         21        statements -- this is the prohibition that is now in

         22        concern, Shall not make statements that commit or appear

         23        to commit the candidate with respect to cases,

         24        controversies, or issues that are likely to come before

         25        the court.


          1             I submit to you that I do not want my judges making a

          2        commitment in advance as to their position on an issue

          3        that is likely to come before that court, because they

          4        don't have the facts before them of that particular case.

          5        It runs counter to our whole system of justice that a

          6        judge in advance would tell you their position on an

          7        issue, and particularly, in the social moral questions

          8        that Commissioner Evans has identified that are important.

          9        I do not want a judge doing that, and it is not just the

         10        Florida Bar, it is the Bar in every state in this country,

         11        essentially, with some variations, take the position that

         12        judges must be independent and they must be impartial in

         13        order for the citizens of this state to have any

         14        confidence at all in their decisions.

         15             Yes, indeed, the Federal court did throw out one of

         16        the cannons, but that canon simply -- the court stated

         17        that canon was too broad, they couldn't talk about any

         18        legal or political issue.  This one is much narrower and

         19        much more focused.  It talks about cases that might come

         20        before the court, real live cases that are likely to be

         21        before the court.  And we don't want judges taking

         22        positions in advance.

         23             There is a reason judges are treated different than a

         24        candidate for the Legislature, or the Governor, or the

         25        Mayor, or a city commissioner.  We want those people to


          1        tell us what their positions are because they are going to

          2        be making the laws.  It's all right to almost get a

          3        commitment in advance from sombebody for an executive or

          4        legislative office about their position on a particular

          5        issue, to predetermine it and let that be the basis on

          6        which you would vote.

          7             It is not all right, I submit to you, and in fact, it

          8        is wrong to ask or to expect our judiciary to commit in

          9        advance as to how they will rule on an issue or what their

         10        position will be on an issue.  Judges are not under a gag

         11        order when it comes to several issues, such as Justice

         12        Kogan just mentioned, on the administartion of justice.

         13             Justice Kogan's comments that were read by

         14        Commissioner Evans, they went to the process, not whether

         15        there ought to be a death penalty, and there is a very big

         16        difference in that.  So I ask you to reject this

         17        particular proposal.

         18             CHAIRMAN DOUGLASS:  All right.  Any other discussion?

         19        Commissioner Connor.  We are not going to limit decision,

         20        but if we could be brief, I think it would help.

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

         22        in favor of the proposal.  Judge Stafford, in addressing

         23        this issue in the Federal district court, in the previous

         24        iteration of the code of judicial conduct, I commented on

         25        the tension that arises between the importance of


          1        preserving public confidence in the judiciary and the

          2        interest in the public having the information it needs to

          3        make a wise choice with respect to a judicial election or

          4        judicial retention election.

          5             And I think that balancing is a very, very important

          6        balancing that has to be taken into account.  Certainly

          7        you want to preserve public confidence in the

          8        administration of justice, and you want to give the public

          9        information it needs to make an informed choice in the

         10        case of a judicial election.  Judge Stafford in striking

         11        down the previous iteration, which I would submit that the

         12        current iteration suffers from all of the First Amendment

         13        infirmities that Commissioner Evans has commented on, made

         14        these observations.

         15             Florida, while entrusting its citizens with the

         16        responsibility of electing its trial judges has severely

         17        limited the information to be used by those citizens in

         18        discharging that responsibility.  In fact, the electorate

         19        must choose its judges based on little more than

         20        biographical data.  This court believes that here, as in

         21        the advertising arena, the State underestimates the

         22        ability of the public to place the information in its

         23        proper perspective.

         24             The court also thinks that the state wrongly assumes

         25        that members of a respected, learned profession cannot


          1        announce their views on legal and/or political issues

          2        without undermining the public's confidence in the

          3        objectivity of the judiciary.

          4             Ladies and gentlemen, I would suggest to you that it

          5        would be načve to suggest that judge's do not have

          6        opinions on important moral, social, and political issues.

          7        Certainly they have opinions, and they are entitled to

          8        hold those opinions, and there's nothing in the

          9        Constitution that constrains them from holding those

         10        opinions.  The limits that are involved here involve the

         11        expression of those opinions.

         12             Do those opinions in any way affect their rulings, or

         13        reflect upon the way in which they administer justice?  I

         14        don't know the answer to that.  It depends on the

         15        individual, I suppose.  But I will suggest to you that it

         16        would be important and valuable to the public to know

         17        where a judge came down on those kinds of issues in making

         18        a decision about whether or not a judge was to be elected

         19        or to be retained.

         20             Under the current canon that exists in the present

         21        form -- and I will suggest to you that there are those

         22        that might fear or worry or wonder whether or not Justice

         23        Kogan's positions expressed on forefeiture, or abortion,

         24        or on parental rights, or on gay rights, or on gender

         25        issues, or any of the myriad of issues that will come up


          1        before this body will -- whether or not he will be called

          2        upon ultimately to render decisions that address those

          3        very issues on the proposals that come out of this body to

          4        the court.  Should the judge then be foreclosed from

          5        commenting on any of those issues?  I submit to you that

          6        the answer is no, that the First Amendment protects his

          7        right to express his views on those opinions.  And the

          8        First Amendment to protect the right of the public to know

          9        and have insight as it relates to this.

         10             So, I would suggest to you that, contrary to what

         11        Commissioner Barnett has suggested -- and I have great

         12        respect and regard for her views and her legal acumen, but

         13        the current provision is draconian in scope and we would

         14        do well to adopt the provision that Commissioner Evans has

         15        put forth.  Thank you.

         16             CHAIRMAN DOUGLASS:  Commissioner Zack.

         17             COMMISSIONER ZACK:  I would like to speak in

         18        opposition.  You know, for hundreds of years, the symbol

         19        of justice has been the Lady of Justice with a blindfold

         20        and a scale and a sword.  If we pass this, you can throw

         21        away the blindfold, certainly you can throw away the

         22        scale, and all you have to do is have the sword pointed to

         23        whatever she's going to decide ahead of time.  The only

         24        reason that people want a judge to speak out about their

         25        position, that I've heard, is to develop a constituency.


          1        I've heard that, over and over again.

          2             Judges aren't supposed to have constituencies.

          3        Judges are supposed to listen to the facts and apply the

          4        law, period.  The same people who are opposed to judicial

          5        activism seem to be in favor of this particular amendment,

          6        which comes as total surprise to me, though.  I understand

          7        that if you want to have a litmus test as to how a judge

          8        is going to rule on your case, you have got to pin that

          9        judge down before you elect him or her.

         10             You know, when I listen to this proposal, I really

         11        think of the convene in Alice in Wonderland, where she

         12        says, Verdict first, trial afterwards.  We want the

         13        verdict first, we want to know, how are you going to

         14        decide, Mr. or Ms. Judge, on my case, on my issue, on my

         15        concern today.

         16             Now, frankly, if you look at the recusal statutes in

         17        the State of Florida, if the judge tells you that and you

         18        have that issue before that judge, it is an absolute right

         19        of the litigants to recuse that judge.  So you haven't

         20        accomplished even what you think you are trying to

         21        accomplish.  You know, in the final analysis, I have

         22        always viewed a judge in maybe a little different way than

         23        some other people here.

         24             And I kind of -- I've always viewed the judge as the

         25        driver of the Zambonie machine that comes out in the


          1        middle of the hockey game.  And they make sure that the

          2        ice is flat for everybody to skate on, no ruts, nobody

          3        comes in with an unfair advantage, that what you have is

          4        blind justice based on the law and the facts.  And I

          5        suggest to you that if you vote in favor of this proposed

          6        amendment, you will destroy that.

          7             CHAIRMAN DOUGLASS:  Three minutes to close,

          8        Commissioner Evans.

          9             COMMISSIONER EVANS:  The northern district court, and

         10        I am assuming that the case stands because it was not

         11        appealed, it has not been overturned, stated that as to

         12        the relevance of this information, that is, knowing the

         13        views of candidates on legal and/or political issues, that

         14        the Federal court, this court, is acutely aware that

         15        judges routinely exercise their discretion within the

         16        confines of the facts and the law.  How judges choose to

         17        exercise that discretion is a matter of much concern to

         18        litigants, lawyers, and the public alike.  That concern

         19        makes a judicial candidate's views on disputed legal and

         20        political issues anything but irrelevant.

         21             The court found, in summary, that the defendants,

         22        that is, the Florida Bar and the judicial qualifications

         23        committee, had failed to demonstrate that the canon under

         24        dispute here is the least restrictive means for protecting

         25        a compelling state interest.  I submit to you that if the


          1        compelling state interest is to maintain the independence

          2        of the judiciary, the least restrictive means would be to

          3        have a canon that says that a candidate -- that neither a

          4        candidate nor a judge can commit in advance how he will

          5        rule in a specific case that is actually already in the

          6        court.  I believe that was the concern that Commissioner

          7        Barnett had.

          8             Now, that is not what the canon states.  The canon

          9        states that the candidate cannot make statements that

         10        commit or appear to commit the candidate with respect to

         11        cases, controversies, or issues.  We are not talking just

         12        cases that are actually in court, real live cases,

         13        specifically in court, we are talking about all issues,

         14        everything that could potentially ever be an issue in a

         15        court.

         16             So, the least restrictive means would be to pass a

         17        canon that says a candidate cannot commit in advance how

         18        he will vote on a specific case.  Now, I don't know how a

         19        candidate would know that he might even have a specific

         20        case that is actually already in process.  He won't know

         21        what his assignment is, whether that be his docket, or

         22        whatever, he won't know that.  But suppose there's a

         23        specific case, somebody has, say, committed a murder, and

         24        people want to know, Okay, if he's convicted, are you

         25        going to send him to the chair.


          1             Well, you can have a canon that speaks to that, and

          2        that will solve your problems, that will solve your

          3        concerns.  So, we have got to go to the least restrictive

          4        means, especially when we are dealing with something that

          5        is and has been ruled unconstitutional already.  Do we

          6        have the right to sit here as a Commission and say, We are

          7        going to be blind?  After all, justice is blind, we are

          8        going to be behind too, and we are going to allow this

          9        unconstitutional behavior to continue.  You get to live

         10        with your decision.

         11             CHAIRMAN DOUGLASS:  All right.  Are you ready to

         12        vote?  Unlock the machine.

         13             (Vote taken and recorded electronically.)

         14             CHAIRMAN DOUGLASS:  Everybody voted.  Announce the

         15        vote.

         16             READING CLERK:  Four yeas and 21 nays, Mr. Chairman.

         17             CHAIRMAN DOUGLASS:  By Commissioner Freidin.  Please

         18        read it.

         19             READING CLERK:  Proposal 37, Proposal to revise the

         20        Florida Constitution by adopting language that is not

         21        gender-specific.

         22             CHAIRMAN DOUGLASS:  All right.  This was approved by

         23        the committee on general provisions.  Commissioner

         24        Freidin.  I would like -- I'm not cutting anybody off, but

         25        long debates, I don't think, are helping a great deal.


          1             COMMISSIONER FREIDIN:  I don't think this proposal is

          2        requiring a debate.

          3             CHAIRMAN DOUGLASS:  I didn't want to start with you.

          4        I know you didn't have long debate.

          5             COMMISSIONER FREIDIN:  I can make it short.

          6             CHAIRMAN DOUGLASS:  I wasted more time than you're

          7        going to waste by asking not to have long debates.

          8             COMMISSIONER FREIDIN:  Commissioners, did you know

          9        that there are scores, scores of masculine pronouns in our

         10        Florida Constitution?  Every time the governor is referred

         11        to it's he or him.  Every time a judge or Cabinet member

         12        or public defender or state attorney is referred to, it's

         13        he or him.  It is time for "him" to change this.  It is

         14        time to bring us into the 21st century, just as we are

         15        about to get there.

         16             Now, there is, and I want to be right up front with

         17        you so nobody thinks I pulled anything over on anybody.

         18        There is an amendment -- there was an amendment 20 years

         19        ago that was a catchall amendment that says the masculine

         20        should be always considered to included the feminine as

         21        well.  Well, that's not enough very plainly.

         22             It is time to wipe out of vestiges of sexism that

         23        existed when this Constitution was drafted originally.

         24        And at that time, it was unthinkable that a woman could

         25        hold any of these offices.


          1             Today it is not only unthinkable, it is expected that

          2        women will hold all of these offices if they haven't

          3        already in the very near future.  The words "he" and "him"

          4        are not generic.  They are -- they carry with them a very

          5        large message of masculinity.  There has been a lot of

          6        research done on the concept of gender-neutral language

          7        and using gender-neutral language in publications.  And

          8        the research reveals when "he" is used, people think man.

          9        They don't think man or woman.  They don't think a

         10        masculine pronoun is generic in nature.

         11             And these gender-based assumptions lead to implicit

         12        sexual stereotypes which we must now purge from the

         13        Florida Constitution.  Language is very important in the

         14        law.  And so we have to be attuned to the affect that

         15        language has and how it influences thought.  The use of

         16        masculine nouns and pronouns lend a value-laden

         17        perspective to the reader of our Constitution, whoever

         18        that might be.  We now have the opportunity to erase some

         19        of the inaccurate stereotypes that have for too long

         20        encumbered our Constitution.  And I urge you to vote for

         21        this proposal.

         22             The only reason I could think anybody might object to

         23        this proposal is something that came up in the general

         24        provisions committee when we were discussing this and that

         25        is, and you will note when you look in your packet, you do


          1        not have specific amendments, words in front of you.  You

          2        don't have the whole Constitution in front of you.  I

          3        would submit that that would have been a very cumbersome

          4        thing to do to present it all to you.

          5             We have identified all the gender-specific pronouns.

          6        We are working on having and making the appropriate

          7        changes.  And I submit to you that the proper, although

          8        this is an unusual way of handling it, it's not how we

          9        have been handling it.  The proper way to do it would be

         10        to pass this proposal, to -- it then would be referred to

         11        style and drafting who would then review all of the

         12        changes that need to be made, make the changes into

         13        gender-neutral language and ensure that there isn't any

         14        change in the meaning of any of the provisions.

         15             CHAIRMAN DOUGLASS:  Any discussion?  Any questions?

         16        If not, we'll proceed to vote.  Unlock the machine.

         17             (Vote taken and recorded electronically.)

         18             CHAIRMAN DOUGLASS:  Everybody voted?  Announce the

         19        vote.

         20             READING CLERK:  20 yeas and 2 nays, Mr. Chairman.

         21             CHAIRMAN DOUGLASS:  Okay.  We'll move to the next --

         22        where am I?  Proposal No. 27 by Commissioner Riley.  Would

         23        you read it, please?

         24             READING CLERK:  Proposal 27, a proposal to create

         25        Article X, Section 18, Florida Constitution; providing


          1        duties of boards of trustees and fiduciaries of public

          2        employees' retirement systems.

          3             CHAIRMAN DOUGLASS:  Commissioner Riley, you're

          4        recognized.

          5             COMMISSIONER RILEY:  Thank you, Mr. Chairman.  When

          6        we started out our public hearings, all 13 of them in

          7        Panama City, we had a member of the Florida Retirement

          8        Trust Fund, a member of the Florida Teachers Group, as a

          9        matter of fact, who came before us and said we had this

         10        concern, we have a concern to protect our pension fund

         11        from other uses other than its pension funds purposes.

         12        And you will hear from us all around the state.  In fact,

         13        we did.

         14             We heard at every public hearing teachers and other

         15        people from the state who are involved in the pension fund

         16        who hope to retire and take money from that pension fund

         17        who expressed the same concern.

         18             What this proposal does is to put into the

         19        Constitution what is already in the statutes.  And it

         20        provides the stability that would protect the pension fund

         21        for its purposes.

         22             A bit of history, in the last couple of years, there

         23        have been two instances where it was suggested that

         24        perhaps the pension fund might be a source of funds if

         25        general revenue funds were not available and not only in


          1        this state has that been considered but, in fact, it's

          2        happened in northeastern states where general revenue fell

          3        and rather than cut spending or raise taxes, the

          4        Legislature chose to dip into the pension funds with

          5        disastrous consequences and lawsuits.

          6             I would suggest that we, with passing this proposal,

          7        could set at ease the minds of close to a million people

          8        who are either already retired and pulling dollars out of

          9        the pension fund, collecting their pension, or are in the

         10        process of putting their dollars in and hope to retire and

         11        draw from that pension fund.  I'd be happy to answer any

         12        questions.

         13             CHAIRMAN DOUGLASS:  Commissioner Riley --

         14        Commissioner Morsani?

         15             COMMISSIONER MORSANI:  Commissioner Riley, first of

         16        all, I'm not aware, in fact, I think, the facts state that

         17        these funds have never been invaded by the Legislature or

         18        by the governor or by anyone else.  To set up a commission

         19        and to put this on this Constitution for the public to

         20        address, I just don't see where it's necessary.

         21             There's never been any indication that our

         22        Legislature was going to do anything about these funds

         23        except continue them.  I would like to hear from members

         24        or former members of our Legislature of their attitude

         25        about this.  We've got a smorgasbord now of things that


          1        are going to make our work extremely difficult in the next

          2        eight weeks.  And to add something that has not been a

          3        factor, it just doesn't seem like this is the proper venue

          4        to address this.  And we all heard the arguments but I

          5        think they are shallow arguments.

          6             I think that we should -- yes, we went out to the

          7        public because we wanted their views.  But we can't accept

          8        everything that they wanted.  And I find this a very

          9        shallow point that we would take up this Constitution for

         10        this endeavor.  And I would like to hear from some of our,

         11        as I said, current legislators or former legislators and

         12        administrators of our state on what their opinions are,

         13        please.

         14             CHAIRMAN DOUGLASS:  Commissioner Scott?

         15             COMMISSIONER SCOTT:  Mr. Chairman and Commissioners,

         16        since I'm the only current one that's present today, let

         17        me say that under no circumstances would the Legislature

         18        that I've served in and continue to serve in, ever

         19        consider affecting these pension funds in any way.  Beyond

         20        that, I mean, when this was first broached by the people

         21        at the various public hearings and, you know, I think we

         22        probably made that same statement then to them, I know

         23        that this has been threatened in some states or may have

         24        occurred, I'm not sure of the details, but we -- I'm not

         25        sure that if there is authority, there may be -- I didn't


          1        get a chance to look -- I didn't know I was going to be

          2        speaking on this -- to look at the staff summary.

          3             But under no circumstances, would we invade these

          4        pension funds for the expenses -- the operating expenses

          5        of government.

          6             CHAIRMAN DOUGLASS:  Are you speaking for it?

          7             (Off-the-record comment.)

          8             CHAIRMAN DOUGLASS:  Commissioner Riley?

          9             COMMISSIONER RILEY:  Just to point out that, in fact,

         10        in '97 the Legislature did at some level of legislation

         11        look to this pension fund as a possibility of where to

         12        solve the educational problems.  They ended up getting it

         13        and leveraging the Lottery dollars.  But this was

         14        certainly put out as a possibility.  We're not talking

         15        about a few people, we're talking about close to a million

         16        people that are already involved in this pension system.

         17        And what we were asked to do when we went out in the

         18        state, was to listen to what the concerns of the public

         19        were.  This was one of those concerns.

         20             I don't think -- in the scope of the world it may not

         21        be a great deal.  However, to the close to a million

         22        people that are involved in it, what I heard them say to

         23        us was, Give us a measure of protection that lets us know

         24        when the time comes, our pensions will be there.  It's

         25        happened in other states.  If it's happened in other


          1        states, we may learn from other people's mistakes.  But 20

          2        years is a long time.  If we put it in the Constitution,

          3        it won't happen.

          4             THE WITNESS:  Commissioner Anthony?

          5             COMMISSIONER ANTHONY:  Mr. Chairman, I rise in

          6        opposition to the proposal.  This proposal did come before

          7        the general provisions committee and was passed out

          8        favorably.  However, I guess my concern would be not only

          9        does it have an impact on the state, it also has an impact

         10        on local governments that are a part of the Florida

         11        Retirement System.  And we have a large number of local

         12        governments that really would feel that this would be a

         13        mandate that would be presented and created by this

         14        commission and thus would have the impact of our

         15        retirement systems or those local governments that are a

         16        part of this Florida Retirement System having to abide by

         17        and not have flexibility in making decisions on the local

         18        level.  So I just wanted to state that as a part of really

         19        the challenge in that local governments have had with this

         20        proposal.

         21             CHAIRMAN DOUGLASS:  Can they use the funds now?

         22             COMMISSIONER ANTHONY:  Pardon?

         23             CHAIRMAN DOUGLASS:  Can they use retirement funds

         24        now?

         25             COMMISSIONER ANTHONY:  No.  But a number of the City


          1        of West Palm and other communities have had to -- the

          2        overage of investment of those funds have looked at ways

          3        in which to not overfund those plans.

          4             CHAIRMAN DOUGLASS:  So to that extent they do use

          5        them now and they are therefore against this proposal; is

          6        that right?

          7             COMMISSIONER ANTHONY:  That would be correct.

          8             CHAIRMAN DOUGLASS:  I understand the proposal would

          9        prevent any use of them other than for retirement; is that

         10        right?  Is that your understanding, Commissioner Scott?

         11        That this proposal would permit the use of retirement

         12        funds for anything except for retirement including the

         13        overage he talked about?  I want to get that clear before

         14        we vote on this.  Is that right?  Everybody understand

         15        that?

         16             (Commissioner Scott nods affirmatively.)

         17             CHAIRMAN DOUGLASS:  Commissioner Marshall rises.

         18             COMMISSIONER MARSHALL:  Thank you, Mr. Chairman.  I

         19        rise to raise a question with Commissioner Riley.  When I

         20        saw this proposal for my first reaction was similar to

         21        that of Commissioner Morsani.  Why is this necessary and

         22        have there been any abuses?  Then upon reading the staff

         23        report summary, it seems to me there are -- I believe

         24        there have been at least two threats and I'm curious to

         25        know if you want to say any more about those.


          1             It seems to me, if I read accurately on Page 77,

          2        those are very substantial threats to the integrity of the

          3        system.  And there's a second question, Commissioner

          4        Riley, could not this be accomplished by statute?

          5             COMMISSIONER RILEY:  It is, in fact, in statute.  The

          6        purpose of this proposal is to give more stability to that

          7        statute.

          8             COMMISSIONER MARSHALL:  I want to respond to the

          9        first question.  What I want to know is, is the threat as

         10        serious as I seem to read under effective proposed

         11        changes?

         12             COMMISSIONER RILEY:  Well, Commissioner, I don't know

         13        what the future brings.  All I can tell you is, if it's in

         14        statute, it could be changed.  And that's the concern of

         15        the people who have put all of their dollars in here and

         16        hope to retire on those dollars.  Their concern is that if

         17        the need arises, and again pointing to last year and the

         18        need for educational construction dollars, at least it was

         19        considered as a possibility.  And it has, in fact,

         20        happened in other states where they have dipped into the

         21        pension dollars and they have used those funds and have

         22        ended up in court because of it.  Does that answer your

         23        question?

         24             CHAIRMAN DOUGLASS:  Commissioner Barkdull?

         25             COMMISSIONER BARKDULL:  Commissioner Riley, at the


          1        present time, if the Legislature wanted to change the law

          2        and declare that there was an overage in certain

          3        retirement funds, is it my understanding that they could

          4        then permit whichever authority that the fund was being

          5        administered for, whether it was a city or a county, or

          6        even a state fund, that they could remit, in effect, those

          7        overages back to the employing authority?

          8             COMMISSIONER RILEY:  Again, I would assume the answer

          9        to that is yes.  I would also like to point out that part

         10        of the proposal, it speaks to sound, actual assumptions.

         11        If that is true, there is nothing to say in this proposal

         12        that overages in a pension fund could not be used as long

         13        as the requirements of that pension fund are covered.

         14             COMMISSIONER BARKDULL:  What concerns me is most of

         15        the pension funds are today invested a great deal in what

         16        we commonly refer to as stock equities.  Well, we all know

         17        what the stock market has done in recent years and the

         18        inflation in those assets, I'm sure, has made overage

         19        above what the original actuaries predicted.  And probably

         20        any fund that's been in existence for 20 years or more has

         21        probably got overages beyond what the actuaries had

         22        originally predicted.  And of course as the market goes

         23        up, it can go down.

         24             CHAIRMAN DOUGLASS:  Which it did last week.

         25             COMMISSIONER RILEY:  And I'm afraid to ask what it's


          1        doing today.  That's true.

          2             CHAIRMAN DOUGLASS:  Any further discussion?  Are we

          3        ready to vote?  All right.  Unlock the machine.

          4             (Vote taken and recorded electronically.)

          5             CHAIRMAN DOUGLASS:  Announce the vote.

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

          7             CHAIRMAN DOUGLASS:  All right.  We'll move to the

          8        next proposal by Commissioner Zack, Proposal 56,

          9        disapproved by the Committee on Declaration of Rights.

         10             COMMISSIONER ZACK:  Mr. Chairman, I'm moving to

         11        withdraw that proposal based on the questions regarding

         12        funding that were raised at the committee.  I would though

         13        state that I do still believe that how our society treats

         14        the very young and the very old is how our society is

         15        judged.  And if we do not take care of the medical needs

         16        of children, they are just going to cost us a lot more as

         17        they become adults.

         18             However, this particular issue, I think, needs to be

         19        fully studied by the Legislature particularly in light of

         20        what we're unable to determine the funding needs would be

         21        or where those monies would come from at this time.

         22             CHAIRMAN DOUGLASS:  All right.  Without objection,

         23        this proposal will be withdrawn on the motion --

         24        Commissioner Zack, it is withdrawn.  We'll move to

         25        Commissioner 95 (sic) by Commissioner Evans.  Disapproved


          1        by the Committee on Judiciary.  Please read.

          2             READING CLERK:  Proposal 95, a proposal to revise

          3        Article I, Section 16, Florida Constitution; Requiring

          4        that the State reimburse a person charged with a crime for

          5        the cost of a successful defense whenever the charges are

          6        dismissed or the person is acquitted.

          7             CHAIRMAN DOUGLASS:  All right.  Commissioner Evans?

          8             COMMISSIONER EVANS:  Okay.  I want to speak on it

          9        just briefly.  And then, if permissible, turn it over to

         10        Commissioner Smith if he's here.

         11             CHAIRMAN DOUGLASS:  He isn't here or he's not in the

         12        chamber.

         13             COMMISSIONER EVANS:  Let me just give you a brief

         14        overview of it.  This proposal applies only in a very

         15        significant minority of criminal cases.  Formal charges

         16        are either dismissed before trial or the accused person is

         17        found guilty by a judge or a jury.  So that's the only

         18        place that this proposal applies.  It addresses the

         19        fundamentally unfair and often devastating financial

         20        burden which an unfounded criminal charge places upon one

         21        who is not guilty of any criminal offense but is forced to

         22        defend himself.

         23             The current state of the law is that an acquitted

         24        defendant can recover only witness fees, that's lay

         25        witness fees, sheriff's expenses and clerk of the court


          1        expenses.  He cannot recover expert witness fees, which

          2        are just as and sometimes more necessary than lay witness

          3        fees.

          4             The fundamental unfairness that is imposed by the

          5        current state of the law is that one who is found

          6        guilty -- whether one is found guilty or not, if one is

          7        indigent, then one is entitled not only to their costs but

          8        also to their full attorneys' fees paid by the State in

          9        every instance, guilty or not.  So if one is not indigent

         10        prior to the charges, one can be rendered indigent by the

         11        defense and can recover nothing more than maybe 6- or $700

         12        out of the thousands that are expended on actual costs.

         13             And again, we're talking cost, we're not talking

         14        attorneys' fees even though that would possibly be even

         15        more fair.  But given budgetary constraints, we wouldn't.

         16        So basically what we're talking about here, is the

         17        fundamental right to defend one's liberty, putting it in

         18        the Constitution as are say civil cases such as imminent

         19        domain, putting it in the Constitution so that it is

         20        beyond the basic budgetary restraints placed by the

         21        Legislature.

         22             Commissioner Smith wanted to speak on it because he

         23        actually practices in this area and has a lot more

         24        knowledge than I on this issue.  And I don't know where we

         25        go from there since he's not here.


          1             CHAIRMAN DOUGLASS:  Okay.  If there's any questions

          2        or any further debate?  If not, prepare to vote.

          3        Everybody hasn't voted.  Let's vote.  I guess everybody

          4        has voted that's going to vote.  Lock the machine.

          5             (Vote taken and recorded electronically.)

          6             READING CLERK:  7 yeas and 17 nays, Mr. Chairman.

          7             CHAIRMAN DOUGLASS:  It fails.  All right.  Proposal

          8        120.  Get alert.  Our Native American is rising here for

          9        providing a statewide millage cap.  Proposal 120 approved

         10        by the committee on general provisions.  I'll have it read

         11        first.

         12             READING CLERK:  Proposal 120, a proposal to revise

         13        Article VII, Section 9, Florida Constitution; Providing a

         14        statewide millage cap for water management purposes.

         15             CHAIRMAN DOUGLASS:  Commissioner Henderson?

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

         17        wish there were an appropriate war dance or war chant I

         18        could give on this issue but I can't.  But I can tell you,

         19        you know, I would never have thought that this issue was

         20        as important and significant as what the Miami Herald said

         21        in today's paper.  But I'm going to tell you what the

         22        Miami Herald said about this issue.  That this is the best

         23        recommendation that the Revision Commission could make to

         24        the voters, the best.

         25             Now, when I got up this morning, I didn't think that


          1        this was actually the best recommendation we could make to

          2        the voters.  But I read the Miami Herald this morning.

          3        What is this?  This is taking care of a tiny little

          4        problem.  This is tax equity here.  There are five water

          5        management districts in the state of Florida.  Four of

          6        those water management districts have the authority to

          7        levy a .10 millage.

          8             The fifth water management district, the one in which

          9        we're in which extends west to that great sovereign state

         10        of Alabama, is allowed only to levy .05 mills.  Now there

         11        is a long story about why that happens.  I won't tell the

         12        story, I'll just mention that there is one of these

         13        portraits on the wall that has a fellow on a horse on

         14        that.  And I think it's related to the fellow on the

         15        horse.

         16             But what this would do is take care of that inequity.

         17        Now why is this important?  Why is it important to

         18        everyone else?  Why is it important to people of south

         19        Florida?  I want you to look at the material that we

         20        supplied to you, the staff report.  Look at Page 90,

         21        there's a chart there.  It says in the northwest district

         22        3.7 percent of the budget is paid for by the taxpayers of

         23        the district.  In other words, the other 96 percent is

         24        paid by the rest of us, the people who don't live in the

         25        Northwest Florida Water Management District.  $43.4


          1        million of that budget is paid for by the rest of the

          2        taxpayers of the state of Florida.  So this is a simple

          3        matter.

          4             There may have been some reason way back when to say

          5        that the Panhandle was different.  But you look at the

          6        Panhandle today.  We drove through it on the way to

          7        hearings in Panama City and Pensacola.  There's a big

          8        development on the beach, water problems just like the

          9        rest of the state.  There are pollution problems which are

         10        having to be addressed in each of the bays, Chocta,

         11        Escambia, Perdido, St. Andrews.  It's just like the rest

         12        of the state of Florida.

         13             It's a simple matter.  It is tax equity.  And on

         14        behalf of all the rest of the people in the state of

         15        Florida who are paying the taxes in the Panhandle, I would

         16        suggest that we approve this matter.

         17             (Commissioner Scott assumes the Chair.)

         18             COMMISSIONER SCOTT:  Commissioner, you should have

         19        made an elegant speech like that on that proposal earlier

         20        about merging the Game and Fish Commission.  Any further

         21        discussion on the proposal?

         22             Commissioner Anthony, for what purpose?

         23             COMMISSIONER ANTHONY:  Thank you.  Just to ask a

         24        question of the proposer.

         25             COMMISSIONER SCOTT:  He yields.


          1             COMMISSIONER ANTHONY:  Commissioner Henderson, I know

          2        that the Miami Herald has been mandated to be nicer to

          3        people so I don't know what credence I give to that --

          4             (Laughter.)

          5             COMMISSIONER SCOTT:  Who mandated that?

          6             COMMISSIONER ANTHONY:  There was a distinguished

          7        mayor in that community mandated that they are nicer.  How

          8        much money -- this is a revenue issue, of course, in order

          9        to deal with the many issues that you identify.  How much

         10        money potentially -- is there a difference between south

         11        Florida in comparison to a north Florida millage rate that

         12        you're anticipating this would raise?

         13             COMMISSIONER HENDERSON:  Thank you, Commissioner

         14        Anthony.  If you look at the table there, you'll notice

         15        that there are a number of programs that each of the water

         16        management districts are mandated to do by Legislature.

         17        There's land acquisition.  There's a Slim (phonetic)

         18        program, ecosystem management, a whole range of these

         19        things.  But the revenues are insufficient to take care of

         20        those programs.

         21             So where you live, there on the southern shores of

         22        Lake Okeechobee, not only are you paying tax to the South

         23        Florida Water Management District for water purposes, not

         24        only are you paying a tax to the South Florida Water

         25        Management District to restore the Everglades, but you and


          1        everyone else in south Florida are subsidizing those in

          2        the Panhandle to the tune of $43.4 million to take care of

          3        those other needs.

          4             COMMISSIONER ANTHONY:  Mr. Chairman, I would like to

          5        make a comment in support of this proposal.

          6             COMMISSIONER SCOTT:  You're recognized.

          7             COMMISSIONER ANTHONY:  And, Commissioner Henderson,

          8        we gladly in south Florida deal with our environmental

          9        issues.  And I say to the members of the commission that

         10        this is an important piece of legislation or proposal.  I

         11        agree with the Miami Herald that this is one of the most

         12        important environmental agencies that we have in our state

         13        dealing with issues that we cannot deal with as a local

         14        government or a state legislature.  But there is a

         15        specific body that will deal with the management of our

         16        water in our state and I think we should support this

         17        proposal wholeheartedly.

         18             COMMISSIONER SCOTT:  Further discussion?

         19        Commissioner Riley, you're recognized.

         20             COMMISSIONER RILEY:  To speak also in favor of it, if

         21        I may.  As a lifelong -- or native, mostly lifelong

         22        resident of the Florida Panhandle, I'm reminded that what

         23        we're doing here is looking at 20 years in the future.

         24        And I'm extremely concerned that because of the politics

         25        of what happened when the inequitability of the water


          1        management district in the northwest was put in the

          2        Constitution that because of that, we're going to not only

          3        be hindered but really could really be hurt in the

          4        Panhandle as we go 20 years in the future.

          5             Separate from the fact that the water management

          6        district is mandated and required to do certain things

          7        that this district simply cannot do because of the lack of

          8        funding, at any point, the state, I think, could come in

          9        and say, Sorry, we're not going to do that anymore.  And

         10        we would really be in massive trouble.

         11             The environment and the Panhandle is as precarious as

         12        it is in other areas.  We have growth in the Florida

         13        Panhandle that is increasing constantly.  We have --

         14        whereas before in the past the state maps may have left

         15        off northwest Florida, it seems as though they have not

         16        only put us on the map but a lot of people have discovered

         17        us.  We have a lot of pressure on our environment and we

         18        can't protect that environment in the quality of life

         19        that's there if they don't have the resources to do that.

         20             I'd like to also tell you that the water management

         21        district board unanimously passed a resolution in support

         22        of this and also to remind you that logistically passing

         23        this, were it to go on the Constitution and hopefully were

         24        it to be passed by the voters, doesn't mean that

         25        automatically the dollars are there.  What it means is


          1        that it's their option.  It still has to go through the

          2        Legislature just like all the other water management

          3        districts have to do.  What this does is to make it

          4        equitable and protect the future of the Panhandle.  I

          5        would strongly ask your support for this.

          6             COMMISSIONER SCOTT:  Commissioner -- Chairman

          7        Douglass is recognized.

          8             CHAIRMAN DOUGLASS:  I rise primarily to defend

          9        Senator Barren who was referred to, not by name, but

         10        having been someone who opposed him on occasions and, in

         11        fact, almost defeated him and ruined my entire legal

         12        career in 1967 and made him what he is today --

         13             (Laughter.)

         14             CHAIRMAN DOUGLASS:  I rise here to defend him.  In

         15        1978 he single-handedly kept those who wanted to amend

         16        this constitutional provision from doing so.  He did so in

         17        spite of the then Miami Herald editorial which said it was

         18        the single most important piece of legislation they would

         19        pass.  And I'd like to tell you what he said then because

         20        it's probably still applicable now.

         21             About the only people in northwest Florida who

         22        support raising this tax provision are those that serve or

         23        work for the water management districts.  There are really

         24        very few people that you will meet that know what it is.

         25        When you tell them that the potential is to raise their ad


          1        valorem taxes which they now look and see they pay

          2        something to a water district which they don't know exists

          3        and you're going to raise them or at least have the

          4        opportunity to raise them by other legislators than their

          5        own three times what they are today.

          6             I think when you do that, you're going to create for

          7        our product a built-in group who will oppose this so much

          8        that they may do what was done in '78.  That they may, in

          9        spite of some of the other lesser important things that

         10        we're dealing with such as our judicial selection.

         11             Many of these, the combining the Game Commission and

         12        the fisheries and all of those other issues which are

         13        lesser important apparently at least in the views of some

         14        people far removed from this part of the state, they are

         15        all that important.

         16             And I'm sure that Commissioner Thompson will probably

         17        support my observation that there aren't many people that

         18        are going to vote to give anybody the opportunity to raise

         19        their taxes from a quarter of a mill, whatever it is, to a

         20        full mill, or particularly those that every year call me

         21        and when I see them go, What is this thing that I'm paying

         22        taxes for?

         23             And I think we must -- and while I don't view this as

         24        important or unimportant because I do have faith that the

         25        Legislature will see that the funds that are now being


          1        generated for this water district are adequate for the

          2        current operation, I do think that we should be aware,

          3        whether we follow this or not, that when we do this we

          4        will raise a significant opposition that does not now

          5        exist to some of the lesser important issues that we all

          6        want to deal with.

          7             So to be told that this is one of those things we

          8        should have, I would suggest to you while it might be

          9        desirable to have uniformity in the Constitution, it is

         10        not necessarily practical politically.  And our job, I

         11        think, as a commissioner, I think, is to produce a product

         12        that has a chance of having statewide support or not at

         13        least offending or singling out one area of the state

         14        against the other.  And I don't think this necessarily

         15        intends to do that, but I think that's the type opposition

         16        that we'll face.

         17             So when you vote, be aware that I think the ghost of

         18        the man on the horse will ride strongly again and remind

         19        you that that gentleman may have had many faults, but he

         20        was truly a populist who understood the people where he

         21        came from.  And I think we should recognize that when we

         22        do this.  And while we're just a small part of the

         23        population of the state and as part of the state, we are

         24        old and have been here a long time.  And we're now

         25        undergoing a lot of the growing pains of course that other


          1        parts of the states have already had.  And this would be

          2        one place, just one place, that we could meet some of

          3        those growing pains but we could probably meet them

          4        without a water district if we had to.  There would be

          5        other legislative solutions.

          6             So I bring to your attention those matters to defend

          7        my old friend and adversary and also to suggest that we

          8        recognize that this is not all it's cracked up to be from

          9        support from the people.

         10             Thank you very much.

         11             COMMISSIONER SCOTT:  Further discussion?  Further

         12        debate.  Do you want to close, Commissioner Henderson?

         13             COMMISSIONER HENDERSON:  Ever so briefly,

         14        Mr. Chairman.  Let me just remind, we're not being asked

         15        to raise anyone's taxes.  What we're being asked to do is

         16        to solve an inequity amongst the five water management

         17        districts to give the Legislature, made up of elected

         18        folks and the water management district made up of fine

         19        public servants like Commissioner Riley, the tools to take

         20        care of their problems in the face of significant growth.

         21             And I remember the old days in the Panhandle and we

         22        are all old-timers, but the new days of the Panhandle, as

         23        it is, the growth that's occurring there is occurring just

         24        as fast as in a place like south Florida where you live,

         25        Mr. Chairman.  And so this is an opportunity to do that,


          1        to fix it, to do right, and we ought to take the

          2        opportunity to do that.

          3             COMMISSIONER SCOTT:  Okay.  Commissioners, prepare to

          4        vote.  Unlock the machine.  Have all commissioners voted?

          5        Have all commissioners voted?  Lock the machine and record

          6        the vote.

          7             (Vote taken and recorded electronically.)

          8             READING CLERK:  19 yeas and 8 nays, Mr. Chairman.

          9             COMMISSIONER SCOTT:  So the measure is reported

         10        favorably.  Read the next proposal.

         11             READING CLERK:  Committee substitute for Proposal 21,

         12        a proposal to revise Article I, Section 22, Florida

         13        Constitution; Providing that a party to an action to

         14        establish paternity does not have the right to a trial by

         15        jury.

         16             COMMISSIONER SCOTT:  Commissioner Rundle is

         17        recognized.

         18             COMMISSIONER RUNDLE:  Thank you.  I have filed the

         19        amendment.  I hope it's on everyone's table.  Let me sort

         20        of see if I can explain why I'm bringing this before the

         21        commission for consideration.  It really has to do with

         22        potential physical impact particularly in funding for

         23        women, children, and families in Florida and it really has

         24        very little to do with trying to take away the right to a

         25        jury trial for someone in a paternity case because I'm a


          1        big believer in the jury trial system.

          2             But as best as I can explain this, and this is not an

          3        area that I have much expertise in, what I understand may

          4        be facing in Florida and is facing all other states around

          5        the United States, is a new welfare reform bill that went

          6        into effect in 1996 which specifically says that states

          7        around -- that all states should eliminate the right to

          8        trial by jury in paternity cases and the theory behind

          9        that is to streamline the process of getting child support

         10        monies for children in child support cases.

         11             As a practical matter, there are very few if any, I

         12        can't think of any in Dade County where we've actually had

         13        a jury trial in a paternity case.  But the theory, I

         14        think, of the federal government is that if you have the

         15        ability to do that and a deadbeat dad wants to fight, that

         16        he might use that as a delayed tactic.  And therefore, and

         17        they are trying to streamline this process, they have

         18        said, We don't want to have any delay tactics available.

         19             Now, some people have raised, and Commissioner Riley

         20        isn't here, but she raised a lot of good points at the

         21        committee because she said, Why is the federal government

         22        telling us what to do?  And that's a very legitimate

         23        question.  In this particular case, as I understand it,

         24        the federal government, in an effort to ensure that there

         25        is uniformity in child support cases throughout the


          1        country, because as you may know, these cases last the

          2        life of a child, rather I should say from birth to 18

          3        years.

          4             So people move.  And to have one jurisdiction be able

          5        to enforce an order from another jurisdiction required

          6        some kind of federal uniformity.  And their goal was to

          7        make this as quick as possible to make sure that children

          8        got the support that they needed.  So what they did was

          9        they established an incentive program with all the states

         10        around the United States.  And every state participates in

         11        this partnership with the federal government.  And in

         12        doing so, as the incentive to the states, the federal

         13        government provides quite a lot of money.

         14             For instance, in the state of Florida, as I

         15        understand it, to actually run the program throughout the

         16        entire state is around $201 million, of which, the

         17        government funds two-thirds of that which is approximately

         18        $138 million, that's based on fiscal year 1997, '98.

         19             In addition to this, I'm told by some representatives

         20        within the federal government, it's kind of hard to pin

         21        them down, but they also say that other federal grant

         22        assistance monies may be threatened.  If you don't

         23        participate and comply with their requirements which could

         24        mean, potentially, that we would not receive or we would

         25        receive substantially less than the $562 million we


          1        currently receive in funds called family assistance grants

          2        to the Department of Children and Families.

          3             So it is for this reason that I bring this before

          4        this body to really think about whether or not this is

          5        something that you feel just based on fiscal -- for fiscal

          6        reasons, good fiscal reasons, three-quarters of a million

          7        dollars, whether or not we should put this on the ballot.

          8        And I would also like to add that the Legislature in 1986

          9        did try to change the law and to say that there should not

         10        be a right to jury trials in paternity cases.  And

         11        particularly with DNA and the advent of blood testing

         12        today you don't need it.

         13             But the Florida Supreme Court struck that down and

         14        said they could not do that because the state of Florida

         15        had, prior to its Constitution, a law that specifically

         16        provided for jury trials in paternity cases.  And in a

         17        recent case by the Florida Supreme Court, they said

         18        specifically that the only way it could be eliminated is

         19        through a constitutional change.  So, it is for that

         20        reason I bring it before this body to consider this.

         21        Obviously, I don't think any of us would ever want the

         22        unintended effect of losing three-quarters of a billion

         23        dollars to children and families in this state.

         24             Can it be done by the Legislature?  Don't know,

         25        probably.  My best guess would be they could probably put


          1        it on the ballot but that's a risk you need to take and

          2        think about.  Additionally, this is the first -- every

          3        state, by the way, is given up to five years to change

          4        this law, and if they don't, that's when it clicks in.

          5        We're already in year two so we have three years left to

          6        do something about this particular constitutional right.

          7             I have phrased the right, as you might see there, in

          8        terms of what it does for children throughout the state of

          9        Florida.  And I open it up for any questions anybody may

         10        have.

         11             COMMISSIONER SCOTT:  Questions?  Okay.  Further

         12        debate?  Commissioner Connor is recognized.

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

         14        in opposition to the proposal.  Thomas Jefferson once

         15        stated, The natural progress of things is for liberty to

         16        yield and government to gain ground.  I think this is a

         17        classic example of the truth of that statement.  The

         18        federal government, in effect, wants to put the sword of

         19        Damocles above our head and say that if you don't cave in

         20        and give away or surrender your birthright, if you don't

         21        give up on this right to trial by jury, we're going to

         22        withhold a half a billion or three-quarters of a billion

         23        dollars, or whatever the case that it may be in this

         24        particular case.

         25             I think it's outrageous frankly that we would allow


          1        the federal government to dictate to the state of Florida

          2        that as a condition preceded to participating in a federal

          3        program you're going to have to surrender your

          4        constituents' rights to trial by jury.  I think that's an

          5        outrage.  I'm astonished that the Academy of Florida Trial

          6        Lawyers is not shouting from the housetops their

          7        opposition to this proposal.  But maybe it's because in

          8        effect it involves potential deadbeat dads.

          9             Now, I would make the observation that this provision

         10        eliminates the rights to trial by jury to the parties,

         11        that means both sides, in a paternity proceeding.  We have

         12        seen the skill and ability of our governor in negotiating

         13        with the federal government.  The federal government tried

         14        to put its hands on the monies that he recouped from the

         15        tobacco companies and he very effectively prevented them

         16        from doing so.

         17             Rather than giving up our right to trial by jury,

         18        let's put the burden back on the governor.  Let's put the

         19        burden back on our senators and on our congressional

         20        delegations to say, Look, the people of Florida are

         21        unwilling to surrender their right to trial by jury and we

         22        recognize the affect of letting the camel's nose in the

         23        tent.  Remember, ladies and gentlemen, that we have a

         24        congress that's dominated by the Republican Party, that's

         25        my party, a party of which I'm very proud.


          1             But I will tell you, that I think the Republican

          2        Party, by and large, is sadly informed and wrongly

          3        positioned on the issue of trial by jury.  And if the

          4        Congress succeeds in extorting the people of Florida into

          5        giving up their right to trial by jury as a condition

          6        preceded to receiving federal funds, you can bet that the

          7        message we'll send them is that they need to condition

          8        other federal funding projects on the same kind of

          9        condition and you're going to see it chipping away and

         10        stripping away of a right to trial by jury.

         11             The trial by jury is a bulwark of freedom and I think

         12        we ought to resist with all vigor that we can muster this

         13        attempt to cause the people of Florida to surrender it up,

         14        to surrender, if you will, up their birthright for a

         15        federal bowl of potage, as in the case of Esau Jacob.  I

         16        object to it.  I think it's wrong.  I think we ought to

         17        tell the federal government to stick it, and we ought to

         18        ask our congressional delegation to go up there and hang

         19        tough and make sure that the Congress does not come down

         20        and strip away our right to trial by jury because of the

         21        money that they will offer us if we'll do that.

         22             COMMISSIONER SCOTT:  Okay.  To get us in the proper

         23        posture, we have an amendment which is basically a

         24        rewording of this proposal which I'm going to ask the

         25        clerk to now read.  That will get us in the proposal of


          1        what the mover wants his proposal to be.  Read the

          2        amendment.

          3             READING CLERK:  By Commissioner Rundle, on Page 1,

          4        Lines 16 through 18, delete those lines and insert, Shall

          5        be fixed by law in order to protect the right of children

          6        to an expedited determination of child support the parties

          7        to an action to establish paternity are not entitled to a

          8        trial by jury.

          9             COMMISSIONER SCOTT:  Okay.  Commissioner Rundle, this

         10        is the version that you were discussing in your statement.

         11             COMMISSIONER RUNDLE:  Correct.  That's correct.

         12             COMMISSIONER SCOTT:  Okay.  As there questions on

         13        this amendment, essentially the changed language which

         14        adds the part about an expedited determination for child

         15        support?  Are there questions on that amendment?  Does

         16        anybody object to that amendment?  Without objection, show

         17        that amendment adopted.

         18             Now we're back on the proposal as amended.  And

         19        Commissioner Morsani and then Commissioner Douglass.

         20             COMMISSIONER MORSANI:  I would like for Commissioner

         21        Kogan and Commissioner Butterworth to please address this

         22        issue in detail.  And Mr. Butterworth sometimes under

         23        duress and detail, I would like a lot more detail on

         24        Commissioner Butterworth's.

         25             COMMISSIONER SCOTT:  Commissioner Morsani, if you


          1        keep doing that, they are going to start doing that to

          2        you.

          3             (Laughter.)

          4             COMMISSIONER SCOTT:  They are going to say, Now, I

          5        want your opinion on this judicial matter.  So if they

          6        wish to speak on it, the Chair would suggest, fine.  If

          7        they don't, you might not want to get in the habit of

          8        singling them out.

          9             So Commissioner Butterworth, for what purpose?

         10             COMMISSIONER BUTTERWORTH:  Thank you, Mr. Chairman,

         11        I'll be glad to respond if Commissioner yields.  Anything

         12        you pass, I will defend with great vigor in front of

         13        Justice Kogan.

         14             COMMISSIONER KOGAN:  Without committing myself as to

         15        how I would vote on this, first of all, I have to agree

         16        with Commissioner Connor, the jury trial is inviolate in a

         17        democracy.  And I, of course, have always opposed any

         18        attempt to prevent people from getting jury trials whether

         19        they be criminal or civil matters.  I think that's what

         20        separates us from the other nations of the world.  We have

         21        a strong jury system and we should preserve it.  There is

         22        one comment though that I want to make.  There is a new

         23        method of DNA which is now coming to the forefront which

         24        makes it easier to collect samples for DNA.

         25             The only thing is, with the new DNA, it takes the


          1        odds down from you're not being the one that did it from

          2        like one in a million, down to 4 percent that may not have

          3        done it.  In other words, in Dade County, if you have a

          4        million males that are capable of fathering a child,

          5        4 percent of that is 40,000.  In other words, so it's not

          6        like the DNA, that you have now where you can say, Well,

          7        it's only one out of that whole million.

          8             And whether or not the new DNA method will catch on,

          9        and chances are it will, because it's more able to collect

         10        specimens for DNA.  I think that's a problem you may look

         11        at.  Because if you're using the argument on DNA and this

         12        new system comes to the forefront, and if you're talking

         13        about 40,000 out of a million males that could father this

         14        child, I don't know if we want to say it's open and shut

         15        and it doesn't make any difference what the defense

         16        presents that it's going to be conclusive because DNA is

         17        really not that conclusive.

         18             And also, a DNA, even today, using the old system as

         19        you well know from your experience and we all know from

         20        just watching television, certainly is not resting in the

         21        hearts of jurors in such a way where they automatically

         22        will accept it.  There are so many ways to attack the

         23        selection of the DNA.  And I just think this whole idea of

         24        giving up the right to a trial by jury, even if there is

         25        out there one person that wants the trial by jury and


          1        you're right, I don't know of any case I've ever heard of

          2        in south Florida where a punitive father has asked for a

          3        jury trial.  The fact of the matter is, should we

          4        foreclose that right.  I don't think we should foreclose

          5        that right.

          6             COMMISSIONER SCOTT:  Okay.  Commissioner Douglass,

          7        for what purpose?

          8             CHAIRMAN DOUGLASS:  I was going to say approximately

          9        the same thing Commissioner Kogan said.  But I wanted to

         10        add to that that anytime we undertake to take away a right

         11        to a jury trial, we are eliminating the difference between

         12        a citizen's right to remain free and a right not to remain

         13        free.

         14             While it might not be a criminal case, it subjects

         15        this person who might be found on some scientific evidence

         16        to be the father to giving up his right to look at a jury

         17        and say he's not and recognize also that all scientific

         18        evidence is suspect depending on who the scientist is

         19        who's testifying about it.

         20             And we see from time to time how things that are so

         21        definite in science become totally discredited over a

         22        period of time.  I'm not an expert on DNA but I know

         23        enough about trials to know that if we're going to have

         24        trials based on who has the best expert to interpret the

         25        evidence then we don't need courts, we can do that with


          1        professors who are on tenure or whatever they may be.  And

          2        we must give attention, I think, to Commissioner Connor's

          3        comments.  This is one other step on the part of somebody

          4        to take away the rights of others.

          5             And if I were an African-American, I would never vote

          6        for anything that took away the right to trial by jury now

          7        that African-Americans are guaranteed that there will be

          8        those of their race that have to be considered for being

          9        on the jury.  I also question the flat statement that the

         10        federal government will not send the money if you don't

         11        give up your right to a trial by jury.  I don't believe

         12        that.  I don't care what somebody in Washington wrote and

         13        said.  I think when the chips are down, when you say,

         14        We're not giving up our right to a trial by jury, that

         15        they won't send the money that we're entitled to in this

         16        state from the taxes that we pay.

         17             And our senators and our representatives, if they

         18        should allow to be enticed in such foolish conduct would

         19        indeed have term limits imposed at the next election.  And

         20        if we're going to have any form of what we believe in to

         21        remain this one little thing which sounds so good, you

         22        know, you can get a billion dollars if you'll just give up

         23        your right.  Well, I bet you that that's where all loss of

         24        freedom begins.  And if you want to sell it, we can sell

         25        it.


          1             I agree, without Commissioner Kogan saying how he's

          2        going to vote, I agree with most of his comments.  And

          3        even with Commissioner Butterworth who will then carry

          4        them out.  But also, I do commend Commissioner Connor for

          5        bringing, in a very vigorous manner, this to us.  And I

          6        urge each of you to vote against this and let's see how

          7        much test we can be put to and let's see how much freedom

          8        means to us and retain the right to trial by jury even in

          9        paternity actions.

         10             Commissioner Kogan, I have defended paternity actions

         11        in trials before a jury.  And I want to assure you that

         12        there weren't but one or two.  Because usually when they

         13        have to face the jury, somebody chickens out.  And I think

         14        that still will be the case.  I don't believe it's a major

         15        problem, but I believe to take away a right in our

         16        Constitution would be a major disaster and I urge you to

         17        vote against it.

         18             COMMISSIONER SCOTT:  Further discussion?

         19             Commissioner Rundle, you wish to close?

         20             COMMISSIONER RUNDLE:  Yes, believe me, I share a lot

         21        of the same concerns that you do when you strike such a

         22        basic fundamental right.  You should -- if I said that

         23        they were not going to provide us with the money, then I

         24        want to restate that because I think as I stated to you,

         25        Mr. Chairman, is that in my heart of hearts, I can't


          1        believe they wouldn't continue to give this money to the

          2        state of Florida.  And I hope what I was representing to

          3        the commission was that it's a risk.

          4             And also, I would just like you to know that there

          5        are only four states that have not eliminated this

          6        provision and we're one of those four.

          7             COMMISSIONER SCOTT:  Okay.  Unlock the machine.

          8        Commissioners, prepare to vote on Proposal 21.

          9             (Vote taken and recorded electronically).

         10             COMMISSIONER SCOTT:  Have all commissioners voted?

         11        Lock the machine, record the votes.

         12             READING CLERK:  3 yeas and 24 nays, Mr. Chairman.

         13             COMMISSIONER SCOTT:  So the proposal is defeated.

         14        Read the next proposal.

         15             READING CLERK:  Proposal 24, a proposal to revise

         16        Article IV, Section 8, Florida Constitution; Requiring

         17        that a state prisoner serve at least 85 percent of his or

         18        her term of imprisonment, unless granted pardon or

         19        clemency; prohibiting the reduction of a prisoner's

         20        sentence by more than 15 percent; requiring that a state

         21        prisoner sentenced to life imprisonment be incarcerated

         22        for the remainder of his or her natural life, unless

         23        granted pardon or clemency.

         24             COMMISSIONER SCOTT:  Commissioner Rundle?

         25             COMMISSIONER RUNDLE:  Well, I don't know.  Actually,


          1        this is very appropriate timing that we have filed an

          2        amendment.  And it is cosponsored by Commissioner Mills

          3        and Commissioner Butterworth.  And seeing how successful I

          4        was on the last one, I think what I'll do is ask

          5        Commissioner Mills to present the amendment.

          6             COMMISSIONER SCOTT:  See Commissioner, if you were in

          7        the senate, we would pass some bills for you before we

          8        defeated one.  Actually, we would never schedule it for a

          9        hearing.  Seriously, Commissioner Mills, she's deferred,

         10        do you want to present the --

         11             COMMISSIONER MILLS:  Mr. Chairman, I have an

         12        amendment.  Yes, there is an amendment on the desk.

         13             COMMISSIONER SCOTT:  Okay.  Further -- any questions

         14        at the moment?  Let's get the amendment.  Read the

         15        amendment.

         16             READING CLERK:  By Commissioner Rundle on Page 2,

         17        Lines 9 through 16, delete those lines and insert lengthy

         18        amendment.

         19             COMMISSIONER SCOTT:  Commissioner Mills, recognized

         20        to explain the amendment.

         21             COMMISSIONER MILLS:  I think you may have had the

         22        text of this passed out to you.  If you haven't, then I

         23        think it should be done.

         24             COMMISSIONER SCOTT:  Has this been passed out, do we

         25        know?


          1             COMMISSIONER MILLS:  Yes, I think, it is in the

          2        packets.  That is -- the language that you have in the

          3        packet is, in fact, the amendment.

          4             Now, this is very interesting as to how I came to be

          5        supporting this.  I analogize this to a blind date that

          6        you have when you're 15 that has been set up by your aunt,

          7        you are not anticipating really liking this experience.

          8        And the more familiar I became with this proposal in the

          9        declaration of rights committee, the more it became clear

         10        to me that this was in fact, the logical and right thing

         11        to do for one of the two or three most important things we

         12        do in this state and that is ensure the public's safety.

         13             We know the public is concerned about criminal --

         14        their own personal safety and criminal activity.  That

         15        isn't a mystery, we don't even need polls.  What this does

         16        is ensure that when the criminal justice system has

         17        charged, convicted and sentenced somebody that, in fact,

         18        the public can have faith and know that they have been

         19        told the truth about what the circumstance is of our

         20        criminal justice system.  And that isn't the case today.

         21        The data that you will see will show that if someone is

         22        convicted, they are likely to serve 50 percent of the

         23        sentence.

         24             Now, why does it make sense to do it at this phase?

         25        The criminal justice system is a wide range of activities.


          1        The criminal justice system starts with the Legislature

          2        making something illegal.  The state attorney and the law

          3        enforcement components of our system detain someone and

          4        charge them.  The judges convict and then sentence.  That

          5        is a lot of activity.  There is a good deal of flexibility

          6        in what a state attorney may charge.

          7             Now, if at least one part of this system is certain,

          8        at least one part of this system, we know that 85 percent

          9        will be served, it makes the entire more certain.  And I

         10        think Commissioner Rundle will be able to explain that

         11        from her perspective as someone who has to charge someone

         12        hoping that the rest of the system will, in its distorted

         13        way, end up doing justice.  But if you have certainty as

         14        to what ultimately will be served, then the rest of the

         15        system can become more honest and there's truth in

         16        sentencing.  What the Legislature decrees as law, what the

         17        prosecutor seeks and prosecutes and what the judge charges

         18        will be what's happens.  And that isn't what happens now.

         19        People are only serving half of their sentence.

         20             As to any impact that this may have in terms of cost,

         21        I served at one time as chairman of the HRS criminal

         22        justice appropriations committee in the Legislature.

         23        Corrections is such a small part of the state budget

         24        realizing that the entire criminal justice system is only

         25        7 percent.  I can't think of anything that the public


          1        charges us with that's more basic and that is public

          2        safety.  So, if it costs more, so be it.

          3             But what this is, is a constitutional guarantee that

          4        what the Legislature decrees as law, what prosecutors

          5        prosecute successfully, and what judges decree is a fair

          6        sentence will be served.  So therefore, it justifies its

          7        title, truth in sentencing.  And this amendment simply

          8        changes some of the wording of Commissioner Rundle's

          9        original proposal.  So, Commissioner Rundle, I think now

         10        would be a good time for you to stand up.  I believe that

         11        this previous vote, not that the --

         12             CHAIRMAN DOUGLASS:  Do you ask for relief; is that

         13        what you are doing?

         14             COMMISSIONER MILLS:  No.  No.  I think that what

         15        Commissioner Rundle doesn't realize about collegial bodies

         16        is now there's an enormous wellspring of wanting to

         17        support Commissioner Rundle at which point she now needs

         18        to the stand up and take advantage of that opportunity

         19        because of the good proposal which she has before the

         20        commission.

         21             CHAIRMAN DOUGLASS:  Commissioner Rundle, now that

         22        you've been rehabilitated --

         23             COMMISSIONER RUNDLE:  Thank you very much,

         24        Commissioner Mills, I appreciate that.

         25             Let me just -- Commissioner Mills mentioned what it's


          1        like to be working in the system and what we see.  And he

          2        is correct, it is one of the most frustrating occurrences

          3        to have to look at a person, a victim and say, I don't

          4        know how this guy got out.  I can see this rap sheet, it's

          5        as long as this hallway, he's been in and out, in and out,

          6        and, yes, he only served 25 percent or 30 percent of his

          7        time, why?  And citizens will look and ask you why.  And

          8        there is really no legitimate answer to that if you have

          9        ever tried to do it.

         10             Judges, when they are in courtrooms, it is really an

         11        embarrassment of the entire system to have to watch judges

         12        who struggle every day with extraordinary caseloads.  They

         13        have a person's life before them, their liberty, they have

         14        victims and victim impact statements facing them.  And

         15        they have to ask a correction officer in a courtroom, Does

         16        anybody know how much time they are serving now in state

         17        prison?  And everyone looks to a corrections officer to

         18        tell the Court so the Court then can make its appropriate

         19        decision on what it thinks is the right sentence based on

         20        how much time they are serving that particular week or

         21        that particular month.

         22             Prosecutors, we make a lot of our charging decisions

         23        from the front end based on what we think is going to

         24        happen on the back end.  We do the same thing.  We say,

         25        Well, let's see, if we charge this, then he's looking at


          1        this much time.  But then they are only serving this much

          2        time, so we'll charge these crimes to get us to whatever

          3        point it is that we're hoping to see.

          4             Citizens have lost so much confidence in our criminal

          5        justice system.  And I submit to you that one of the

          6        reasons is because of the revolving door out of our state

          7        prison system.  A lot of commissioners have asked me, What

          8        about the fiscal impact?  And that's a very legitimate and

          9        important question.  We have to face that on all of these

         10        issues, whether it's Article V.

         11             If we commit to something and we are going to put

         12        that on the ballot and we are going to pay for it, that

         13        means that we are going to have to do that.  And this

         14        falls into that same category.  There's one exception here

         15        that there may not be in other areas.  And that is, that

         16        when it comes to sentencing, there are other ways that the

         17        Legislature can deal with sentencing which also has a

         18        fiscal impact.  And that is, the Legislature determines

         19        the appropriate sentence per crime.  They also determine

         20        what the guidelines are for the courts.  So they will

         21        always be able to adjust their sentences as they see

         22        appropriate.  The courts will still be able to maintain

         23        their discretion because ultimately it's their decision as

         24        to what sentence applies.

         25             And so what we are hoping to do, what we are hoping


          1        to accomplish here, is to have at least one piece of all

          2        of those moving parts certain so that no matter what the

          3        sentence is going in, everyone will serve that time,

          4        whether it's one year, two years, five years or ten years.

          5        The average sentence, so some of you will know, I think

          6        it's almost 60 percent of those going into the state

          7        prison system is just under three years I'm told by the

          8        Department of Corrections.

          9             I think you will have tremendous support for this.

         10        This initially started as a victim's initiative.  It got

         11        almost -- I believe General Butterworth can tell us, but

         12        if my memory serves me correctly, they received almost all

         13        the petition votes that it required.  It has tremendous

         14        support.  This was grassroots, this was citizens.  No

         15        lobbyists, no fancy campaigns, just heart and soul,

         16        people, citizens saying, Please, make it a time certain,

         17        make it 85 percent, that's fair, that's what the federal

         18        government requires, that's what most states require.

         19             And by the way, there is a funding potential for

         20        Florida, because those states that have 85 percent the

         21        federal government provides extra funding too.  Let's do

         22        this for the people of Florida.  They want us to do this.

         23        They wanted to do it for themselves.  We can do it for

         24        them.

         25             CHAIRMAN DOUGLASS:  Commissioner Leesfield and then


          1        Commissioner Scott and then Commissioner Zack and then

          2        Commissioner Kogan in that order, if I can remember it.

          3             Commissioner Leesfield?

          4             COMMISIONER LEESFIELD:  Mr. Chairman, my inquiry, is

          5        dealing with the minimum mandatory sentences by Congress.

          6        We have had over a decade to evaluate how that's worked.

          7        It was passed by a congressional legislative body, not an

          8        amendment to the Federal Constitution, I imagine we can do

          9        the same thing in our Florida legislative body.  But what

         10        is the net result?  We have empirical data now.  What has

         11        the net result been of minimum/mandatory sentencing?  Are

         12        the federal prosecutors happy with it?  Is society

         13        benefiting from it?  Is it working?

         14             COMMISSIONER BARKDULL:  Commissioner Rundle?

         15             COMMISSIONER RUNDLE:  Thank you, sir.  This doesn't

         16        have anything to do with minimum/mandatory sentences, but

         17        I respect the question in terms of what impact it will

         18        have overall on the population of the prison system.  I

         19        think that you would find that there's generally a

         20        deterioration in the number of minimum/mandatory sentences

         21        being imposed and provided by law.  We, in the state of

         22        Florida, have also changed and we are moving away from

         23        minimum/mandatory sentences.  Those would still apply

         24        like, for instance, in the state of Florida, the use of a

         25        firearm in the commission of a felony is it has a


          1        three-year minimum/mandatory attached to it.  But a lot of

          2        the other drug type, minimum/mandatories that we had, we

          3        have very few of those remaining.

          4             CHAIRMAN DOUGLASS:  All right.  Commissioner Scott?

          5        Do you want to question or do you want to speak?

          6             COMMISSIONER SCOTT:  No, I want to speak in favor.

          7        This issue, three or four years ago, we initiated in the

          8        Senate, basically, initiated the effort to require service

          9        of 85 percent of sentences by statute.  We went through --

         10        I mean, they said, What does it cost?  And then somebody

         11        would say, Well, it's going to be $40 billion in prisons,

         12        and 60 -- 32 billion and all of these numbers.  And I

         13        said, and many of us on this end of the hall said, We

         14        don't care because it is a -- the really number one

         15        priority of government is the protection of its citizens.

         16             And the message is -- has been so gentle.  They were

         17        serving, I believe, and I wasn't prepared for this debate,

         18        39 percent of their sentences, maybe less than that.  And

         19        everybody knew it.  And we had policemen that came to the

         20        committee and they came to my office and they would say,

         21        You should be on an arrest where there's a Federal officer

         22        along and they are all there and they are getting

         23        arrested, who have committed a drug crime or whatever and

         24        then they find out it's a Federal officer and they say,

         25        Oh, no, this is not a Federal.  Well the Federal was


          1        requiring them to serve 85 percent of their sentences.

          2        And yet at that time in the state only like one-third of

          3        their sentences were being served.

          4             So, we kept -- I've been through this in great

          5        detail, the financial aspects of trying to show -- and we

          6        even -- we would say, Well, there is a deterrent affect.

          7        Well, but, you know, the revenue estimators don't want to

          8        make -- well, then, how about these repeat offenders that

          9        wouldn't have been out?  So then we started with some

         10        numbers.  In the end, long story short, we have, we have a

         11        statute on that.  We could not -- the reason the average

         12        is still not up there, there was -- and correct me if I'm

         13        wrong -- but it was to make it retroactive, but we

         14        couldn't really make it retroactive as to the ones who had

         15        been sentenced or convicted previously.

         16             But I think this is a great idea.  I don't think the

         17        people -- I mean, they knew that two or three years ago.

         18        I think General Butterworth supported it.  They knew we

         19        did it, but now they -- so I think it would be great to

         20        have this on the ballot and to put it in the Constitution

         21        so it can't be changed if somebody comes along and wants

         22        to change it in the future, at least without a vote of the

         23        people.

         24             So I just want to speak in support of it.  And I

         25        think it's really good to have it.  And we have tried,


          1        actually, to get a constitutional amendment on it, and

          2        with all due respect, couldn't get it through the House.

          3        But in any event, you weren't there.  Don't worry, Speaker

          4        Mills.  So I hope we'll all vote for it and let's put that

          5        on the ballot as part of our package.

          6             CHAIRMAN DOUGLASS:  Commissioner Zack?

          7             COMMISSIONER ZACK:  I'm very much in favor of the

          8        proposal.  But would you yield to a question?

          9             CHAIRMAN DOUGLASS:  Commissioner Rundle?

         10             COMMISSIONER RUNDLE:  Yes.

         11             COMMISSIONER ZACK:  When I served as Governor

         12        Graham's counsel, the first thing we did every morning was

         13        check the prison population.  That was the first thing as

         14        we walked into the office because we were under a Federal

         15        order at that time that Judge Black in the northern

         16        district had entered about prison overcrowding.  And we

         17        had to make some decisions on a day-to-day basis, almost

         18        prisoner-by-prisoner basis.  And at that time, I went

         19        around to the various prisons.

         20             And frankly, I lost track on where we are in that

         21        process.  And would this cause us some problems if we face

         22        that situation again?  You know, as I said, I'm very much

         23        in favor.  I would like to see 100 percent.  Or if the

         24        Federal was 85, we would have 90.  But in any event, I'm

         25        just concerned about how that puts us in the Federal


          1        courts.

          2             COMMISSIONER RUNDLE:  May I respond?

          3             CHAIRMAN DOUGLASS:  Yes.

          4             COMMISSIONER RUNDLE:  I'm told, Commissioner Zack, by

          5        the Department of Corrections, that in fact right now,

          6        there are approximately 7,000 beds that are built and they

          7        are not actually occupied at this point.  And a lot of

          8        people believe that that does have to do with a variety of

          9        different strategies that are working.  But one of those

         10        is maintaining the prisoners inside for a longer period of

         11        time as we are approaching closer to 40 and 50 percent of

         12        time served.

         13             There are a number of studies, and I apologize

         14        because I wasn't prepared to debate this today either,

         15        thinking it was going to come up, we figured, Wednesday or

         16        Thursday, so I didn't bring those materials with me.  But

         17        there are a substantial number of studies that show that

         18        prisoners who serve closer to their full time actually

         19        repeat and become recidivists much -- substantially less

         20        than they do when they are released early.  It also

         21        assists with rehabilitation because they are in there long

         22        enough to be able to get the kind of rehabilitation, what

         23        limited amount there is, inside the state prisons.

         24             CHAIRMAN DOUGLASS:  All right.  Now Commissioner

         25        Kogan.


          1             COMMISSIONER KOGAN:  I think you are going to find

          2        that the longer somebody stays incarcerated, the less

          3        rehabilitated they become.  When you're put into a system

          4        where you have to respond, as an animal living in the

          5        jungle might, in order to preserve your dignity as a human

          6        being, it tears down your dignity as a human being and you

          7        become like everybody else becomes in the prison system.

          8        That's why we have 65 percent recidivism.

          9             Well, this goes far above and beyond that.  The

         10        question here is whether or not this ought to be part of

         11        our Constitution.  We already have a statute which

         12        mandates 85 percent.  I read the materials that were put

         13        out on this.  And the materials say, If you make it a

         14        constitutional amendment, then the Legislature will not

         15        have the ability to change this.  And if the Legislature

         16        cannot change this, then you're not going to have to worry

         17        about prison overcrowding because the Legislature will go

         18        ahead and constantly provide enough beds to prevent a

         19        crisis and therefore, people won't be let out.

         20             The only thing wrong with that is, as long as the

         21        Legislature has the right and the authority to set the

         22        guideline sentences, that's how they can do it.  And if

         23        the Legislature decides, Heck, there's a constitutional

         24        amendment here, got to put them in for 85 percent of the

         25        time, we don't want to spend the money to do that, what


          1        can we do?  Very simply, they lower the guidelines.  So

          2        somebody whose guideline sentence should be ten years is

          3        now five years, four years, three years, two years.  And

          4        what you are going to see is that this thing just will not

          5        work the way you intend it to work.

          6             I think that if we are going to have this, it ought

          7        to be statutory.  I don't think you ought to bind the

          8        hands of the Legislature.  But I think certainly, that we

          9        should not delude ourselves into believing that the longer

         10        somebody stays in prison the more they become

         11        rehabilitated, they don't.  As a matter of fact, many of

         12        these people come out and truly they don't commit the

         13        violent crimes again.  Because if you go in at the age of

         14        25 and you do 25 years in prison, when you come out you're

         15        50, you're a little bit too old to go out and commit those

         16        violent crimes.

         17             And you and I know that.  You and I both know from

         18        all of our years in the criminal justice system that the

         19        overwhelming majority of violent crimes is committed by

         20        people between the ages of 18 and 25, we know that.  And

         21        what really happens is after long prison terms, they've

         22        really, for want of a better way to describe it, they've

         23        matured, they've grown up, and they don't have the

         24        physical capability anymore to commit the violent crimes

         25        that they committed before.


          1             So that's why so many of them coming out may not go

          2        back to prison for a violent crime.  But I'm not saying

          3        they won't go back to the jail for little petty crimes or

          4        something like that.  I think we have it in the statute.

          5        I think that's sufficient.  If you put it in the

          6        Constitution, the Legislature is going to be able to

          7        circumvent it the same way they can circumvent it now.

          8             CHAIRMAN DOUGLASS:  Commissioner Smith?

          9             COMMISSIONER SMITH:  Thank you, Mr. Chairman.  During

         10        our very fine debate and protracted debate we had on the

         11        bicameral Legislature Senator Scott made probably one of

         12        the more powerful arguments against a unicameral

         13        Legislature and he was not able to convince me, but he

         14        advised me today that the House would not vote for this

         15        constitutional amendment.  Had he said that then, I might

         16        have voted against unicameral because that's one of the

         17        best reasons I can see for us to have a bicameral

         18        Legislature, so that this type of proposal doesn't slip

         19        through.

         20             First of all, let me commend Commissioner Rundle for

         21        her stewardship of this proposal through the Declaration

         22        of Rights Committee.  As a Chair, this was the only one

         23        that surprised me.  It passed 4-3.  I didn't think it had

         24        a chance.  But with her adept advocacy and persuasion it

         25        passed.


          1             I rise to oppose this for three reasons.  One, as has

          2        been said, we had a problem but the Legislature fixed it

          3        with the 85 percent time statutorily.  Two, we said

          4        initially, we would start off by asking a threshold

          5        question, What are the items that we want to put in our

          6        Constitution?  And when this question was asked at the

          7        Declaration of Rights Committee, Commissioner Rundle,

          8        correct me if I'm wrong, the question was asked, Does any

          9        state have in their Constitution a specific period of time

         10        that is mandated to be served?  At that time, the answer

         11        was no.  Yeah, the answer was no other state has in its

         12        Constitution a provision that requires that a sentence of

         13        a specific period of time be served.

         14             Third, in a way, I was sort of surprised of Senator

         15        Scott's position favoring this because I really think it's

         16        important, as we deal with this issue, the Lottery issue.

         17        You know, people saying set aside 40 percent of the budget

         18        for education.  I really think it's important that we

         19        allow some flexibility with our Legislature as they

         20        grapple with issues in 2016 and one of the 2017 when we

         21        meet again.  And for that reason, and other reasons stated

         22        by Commissioner Kogan, and I'm sure as you were speaking,

         23        Commissioner Kogan, some people were saying, Well, we

         24        don't care about rehabilitation, we just want them to be

         25        in prison.  And legitimate vengeance or retribution,


          1        that's a legitimate purpose.

          2             But the issue is, if they are there now as a result

          3        of a statutory amendment, is it worth ensuring for the

          4        next 20 years that this will stay on the books,

          5        understanding that we are taking away from our Legislature

          6        the flexibility to deal with a tremendous number of other

          7        very, very, very important issues that they will face over

          8        the next 20 years?  And in the balance, I come down on the

          9        side of no.

         10             CHAIRMAN DOUGLASS:  Commissioner Morsani?

         11             COMMISSIONER MORSANI:  I greatly respect Judge

         12        Kogan's comments.  A number of years ago, I was privileged

         13        to serve with Chief Justice Berger for a number of years

         14        on prisoner rehabilitation in his prison without fences.

         15        And maybe a number of you are familiar with his desires

         16        to -- for rehabilitation.

         17             And I, like Justice Kogan, just --

         18             CHAIRMAN DOUGLASS:  That's Commissioner Kogan.

         19             COMMISSIONER MORSANI:  Commissioner Kogan.

         20             CHAIRMAN DOUGLASS:  Right.  We have to defrock him

         21        when he comes in here.

         22             COMMISSIONER MORSANI:  I think we aren't doing the

         23        job of rehabilitation.  I know we all talk about money.

         24        That's one aspect of our prisons.  In this nation we have

         25        done a poor job.  Certainly, it sounds good to have


          1        85 percent of your time.  That really sounds nice.  I

          2        happen to think though, having over with the Legislature

          3        and having it under statutes makes so much more sense than

          4        to making it something permanent with our Constitution.

          5             And many of you, I'm sure, in the justice system have

          6        visited prisons.  I find it very interesting.  One of the

          7        main things that's happening, as the new prisons that are

          8        being built today, no longer do we have to warehouse

          9        prisoners as we have in the past.  All you have got to do

         10        is drive the roads of Florida and look at these

         11        correctional institutions in the counties.  And so many of

         12        them are 1950 buildings where they are all lined up, and

         13        you go in prisons and you've got these halls.  And there's

         14        nothing in there for them to do and so on and so forth,

         15        versus the brand new prisons that we are building, that

         16        way you have control of prisoners where you can do

         17        something with prisoners in an entirely different way.

         18             Certainly, when you go to -- I can't think of the

         19        names of those places that I go in, but where you really

         20        have the hard cases and it's really -- the psychological

         21        problems in there with some of them, it is a deplorable

         22        pit, there's no other way to describe it, that's true.

         23        And those people, unfortunately, they deserve to be in

         24        those pits, and that's a terrible thing to say.  But the

         25        majority of those people that we put in prison can be


          1        rehabilitated.  I don't know what the citizen guidelines

          2        are.  I don't know, you know, I never have had a handgun.

          3        If you had my vote, you wouldn't be getting one for 90

          4        days because I don't have any use for them, or don't know

          5        why people have to have them.  But that's another issue.

          6             But I do think that we need to have guidelines and I

          7        think that should be left to the Legislature.  I don't

          8        think it should be part of our Constitution.  I know it

          9        sounds good, it would probably pass.  It would probably

         10        pass.  The population would probably approve it.  But that

         11        doesn't make it right.  And I challenge you, I think we

         12        should not have this on our ballot.  We should leave it

         13        where it is in the Legislature.  Thank you.

         14             CHAIRMAN DOUGLASS:  Commissioner Butterworth?

         15             COMMISSIONER BUTTERWORTH:  Mr. Chairman, thank you

         16        very much.  I appreciate the comments of Commissioner

         17        Morsani, I was going to ask his advice but since he spoke

         18        first I do not have to do that.

         19             (Laughter.)

         20             CHAIRMAN DOUGLASS:  He's already given it.

         21             COMMISSIONER BUTTERWORTH:  That's very good advice,

         22        sir, I agree with that.  I've been involved in this

         23        business now for perhaps my entire adult life, ever since

         24        1969 in the criminal justice system in various capacities

         25        and have been a prosecutor, a judge, a sheriff, and now as


          1        attorney general.  And I cannot think of anything that

          2        really caused the public to lose complete confidence in

          3        the criminal justice system and perhaps government than

          4        what happened in this state in the area of prisons.

          5             For a period of time this state was not building

          6        prisons at a point in time when maybe we should have, we

          7        were building everything else.  At the same time, we were

          8        getting tough on crime.  And I can recall speeches on the

          9        floor of this particular House and of the House down the

         10        hall where people would stand up and say, Mr. Speaker,

         11        Mr. President, I wish to move, sir, my minimum/mandatory

         12        sentence of 400 years for selling whatever it might be

         13        within 1,000 feet of a school or a nursery, and it would

         14        pass overwhelmingly.

         15             And then it would come up to, Well, maybe, we should

         16        also build some prisons, No, no, we are fiscally

         17        conservative.  We are tough on crime and we have passed

         18        these real tough laws.

         19             What ended up happening, those of us running for

         20        office in 1986, at the statewide level, found that the

         21        most pressing issue was that of the criminal justice

         22        system and how were we going to deal with the fact that

         23        for a point in time there, an inmate or a person sentenced

         24        to let's say under sentencing guidelines even if we get

         25        10, 15, or 20 years, to find out that they only served


          1        5 percent of that sentence.  Or even a couple of years

          2        after that, we found out that the system got to be so bad,

          3        and Commissioner Rundle can articulate on this much better

          4        than I can on this, where you will have the prosecutor

          5        asking for probation.

          6             And you would have in most cases the public defender

          7        asking for prison time because the public defender knew

          8        that his or her client could not make probation, and

          9        therefore has to come back and do his sentence.  But they

         10        knew even if they received a three or four-year sentence,

         11        they'd be out literally in two or three months and they

         12        could do that, as the inmate would say, Standing on my

         13        head.

         14             We needed to know how to address that particular

         15        issue.  But none of us knew that it was going to be a very

         16        difficult issue to address.  And many of us really put our

         17        heads together, how are we going to address this and how

         18        is the issue actually addressed?  The way that this

         19        government addressed the issue of prison overcrowding was

         20        do something that none of us ever thought of, none of us

         21        who campaigned in '86 ever even thought of the most

         22        easiest solution, we'll just let them go, that will

         23        resolve the prison overcrowding problem.  And that was it.

         24             We decided that, when, in fact, the prison hit a

         25        certain 97 percent of capacity, in accordance with the


          1        lawsuit, that we would then, if we had to release 200

          2        people tomorrow, we would determine how many days off we

          3        would have to give to every single person in the whole

          4        system for 200 inmates to be let go.  And if that ended up

          5        being 30 days, or 60 days, 90 days, everybody in the

          6        system received that much time.  Until where it got to be

          7        absolutely a joke, a flat-out joke, where someone -- we

          8        started advocating, Let's pass the legislation, say, Let's

          9        get truth in sentencing.

         10             So, when the person was either found guilty or pled

         11        guilty, the judge would say, In accordance with the

         12        sentencing guidelines in the state of Florida, you are

         13        going to receive ten years' incarceration on your offense.

         14        But due to prison overcrowding and good time or gain time

         15        or whatever, someone going in today, the Department of

         16        Correction predicts that you will be out tomorrow.

         17             At least let everybody know what the truth is.  We

         18        couldn't get that passed because that was not politically

         19        the right thing to do.  What this does here, I believe, as

         20        Commissioners Rundle and Mills stated, this puts truth in

         21        sentencing right up there, up front, the day that the

         22        person is sentenced, so that the victims will know what

         23        that particular sentence might be.

         24             The Legislature is the one that determines what the

         25        sentences will be through the actual number of years for a


          1        particular offense, they don't have to stay with 5, 10,

          2        15, 20 years, whatever it went to on that, and also on

          3        guidelines.  When a person receives that sentence, they

          4        will serve 85 percent of that unless they earn their way

          5        out, unless they earn their way out, because in the

          6        proposal it allows us to do that, for a clemency board to

          7        hear the cases.

          8             Let's let a clemency board be a clemency board.

          9        Let's let everyone know the victims as well as defendants,

         10        you will receive 85 percent of that sentence.  As

         11        Commissioner Rundle stated, in most cases, it's three

         12        years or less.  You will serve 85 percent of that but you

         13        can earn your way out, by convincing the parole

         14        commission, or in this case, the clemency board, that you

         15        deserve to get out early.

         16             What does imprisonment mean?  It may not mean behind

         17        the brick and mortar.  Imprisonment could mean something

         18        else, such as that halfway house, such as perhaps even the

         19        ankle bracelet or whatever.  But you are at least allowed

         20        in the beginning for everyone to know it's 85 percent.

         21        And then let the rest of the system do what they're

         22        supposed to do and let us rehabilitate those that we can.

         23             And 95 percent can be habilitated in the appropriate

         24        way.  But let's let them earn their way out.  Let's have

         25        the entire system work and let's bring confidence back not


          1        to only criminal justice system, but in government in the

          2        state of Florida.

          3             CHAIRMAN DOUGLASS:  I would like to, if we can,

          4        curtail the debate a little bit because I think we've

          5        almost finished this special order calendar, if we do.  At

          6        least the next three we might be able to get.  If anybody

          7        feels constrained to speak further on this -- to close, is

          8        that what you're going to do?  Okay.

          9             Commissioner Mills?

         10             COMMISSIONER MILLS:  I will close very briefly.

         11        There were a couple of points that were made that are

         12        worth repeating.  Commissioner Kogan suggested that the

         13        Legislature could change sentences and therefore might

         14        frustrate the intent of this.  Actually, because that is

         15        true, it's one of the reasons why I think this is a good

         16        idea.  Again, it's another moving part.  If the

         17        Legislature wants to change the sentence, they can.  But

         18        they will know that 85 percent of that will be served.

         19             Now, nobody knows, the stories that Commissioner

         20        Rundle and Commissioner Butterworth told you are horror

         21        stories for the public, for the victims, who believe that

         22        a criminal justice system, I guess, načvely, when they

         23        convict and sentence someone, that they will serve it.

         24        This simply says that that decision made by the

         25        Legislature, imposed by the courts, 85 percent will be


          1        served.  And I think that they are entitled to expect

          2        truth in sentencing, and I think if we pass this, we'll

          3        find overwhelming support for this principal public issue.

          4             CHAIRMAN DOUGLASS:  All right.  We are on the

          5        amendment.  We have to adopt that before we can vote on

          6        the proposal.  All in favor of the amendment say aye.

          7        Opposed like.  Motion carries.

          8             Now, we will proceed to vote on Proposal 24, as

          9        amended.  Unlock the machine.  Has everybody voted?  Lock

         10        the machine and record the vote.

         11             (Vote taken and recorded electronically.)

         12             READING CLERK:  17 yeas and 9 nays, Mr. Chairman.

         13             CHAIRMAN DOUGLASS:  So it carries.  We will now move

         14        to Proposal 39, disapproved by the Committee on Bonding

         15        and Investments by Commissioner Henderson.  Would you read

         16        it, please?

         17             READING CLERK:  Proposal 39, a proposal to revise

         18        Article X, Florida Constitution; Creating the Florida Land

         19        and Water Conservation Trust Fund and providing for its

         20        source of funds and purposes.

         21             CHAIRMAN DOUGLASS:  Commissioner Henderson?

         22             COMMISSIONER HENDERSON:  Mr. Chairman, I want to try

         23        to simplify this.  There are actually three proposals that

         24        have been kind of working their way through and came

         25        through the Committee on Bonding and Investments.  39,


          1        which is here, 151 by Commissioner Barkdull, and then

          2        there was Proposal 64, which is at the committee

          3        substitute actually for 64, which is the proper vehicle

          4        and was favorably reported by the committee.  And in just

          5        a minute, I'm going to invite Commissioner Nabors to

          6        announce the amendment, which will be the committee

          7        substitute.

          8             CHAIRMAN DOUGLASS:  The amendment is on the table.

          9             COMMISSIONER HENDERSON:  Has it been distributed?

         10             CHAIRMAN DOUGLASS:  It has been distributed.  It is

         11        Amendment No. 1, the Proposal 39, to be moved -- and it's

         12        apparently moved by Commissioner Nabors, as you said.

         13             COMMISSIONER HENDERSON:  Right.

         14             CHAIRMAN DOUGLASS:  How would you suggest we proceed,

         15        Commissioner Nabors present his amendment?

         16             COMMISSIONER HENDERSON:  Let me yield to the

         17        committee chairman, if I could, Commissioner Hawkes.

         18             CHAIRMAN DOUGLASS:  Commissioner Hawkes?

         19             COMMISSIONER HAWKES:  Mr. Chairman, I think what we

         20        would like to do, if it's okay with Commissioner Nabors,

         21        is go ahead and make this a committee substitute for both

         22        this proposal and the next proposal and also the proposal

         23        that's not on the -- I don't know if we can do the one

         24        that's not on the calender today.

         25             CHAIRMAN DOUGLASS:  We can't do that.  You will have


          1        to just act on this one and when we come to the other one,

          2        you can kill it.

          3             COMMISSIONER HAWKES:  If we make it a committee

          4        substitute for both of these two, can we take up both of

          5        these and make this --

          6             CHAIRMAN DOUGLASS:  You can't do that.

          7             COMMISSIONER HAWKES:  Okay.

          8             CHAIRMAN DOUGLASS:  Let's get going.

          9             COMMISSIONER HENDERSON:  Mr. Chairman, we can

         10        simplify, we want to put our energy into the amendment

         11        that Mr. Nabors is about to propose, understanding that's

         12        what the committee recommended.  And then I'm certainly

         13        going to withdraw 39 and I'm sure Commissioner Barkdull

         14        will withdraw 151 as well.

         15             CHAIRMAN DOUGLASS:  Commissioner Barkdull, why don't

         16        we do this --

         17             COMMISSIONER BARKDULL:  Why don't we waive the rules

         18        and take up Commissioner Nabors?

         19             CHAIRMAN DOUGLASS:  Okay.  Without objection, we'll

         20        take up Commissioner Nabors -- I guess, it is a proposal

         21        now.  First of all, we'll have to adopt it as an amendment

         22        to --

         23             COMMISSIONER BARKDULL:  To 39.

         24             CHAIRMAN DOUGLASS:  -- to 39.  And all in favor of

         25        the amendment, please -- well, read it, it says the same


          1        thing.

          2             READING CLERK:  By Commissioner Nabors, on Page 1,

          3        delete everything after the proposing clause and insert

          4        lengthy amendment.

          5             COMMISSIONER NABORS:  Members of --

          6             CHAIRMAN DOUGLASS:  Wait a minute, let's just --

          7        everybody that's for the amendment, without objection, the

          8        amendment is passed.  And we will now be dealing with

          9        Proposal 39, as amended, which, in effect, is a substitute

         10        proposal.  And therefore, we are now on the proposal as

         11        offered in this amendment by Commissioner Nabors and you

         12        have then yielded to Commissioner Nabors to present this

         13        amendment, which is the proposal.

         14             Commissioner Nabors?

         15             COMMISSIONER NABORS:  Members of the Commission, I

         16        hope you have the language in front of you which is an

         17        amendment to the Proposal 39.  This is the Preservation

         18        2000 issue that we heard testimony on.  Briefly, the

         19        Florida Constitution says that any state bonds, payable

         20        from state tax revenues, require voter approval.  The

         21        Preservation 2000 bonds are basically done because they

         22        are grandfathered in under the old 1885 Constitution.

         23             Those bonds have a, under the grandfather provision,

         24        have a limited maturity of like another seven years.  So

         25        we struggle with these three proposals to deal with that.


          1        And what you see is language that came out of the Bonding

          2        and Investment Committee.  Basically what it does is it

          3        directly deals with this issue by amending the

          4        Constitution in Article VII to allow the state to issue

          5        bonds either full faith and credit or by a designated

          6        revenue source to fund the Preservation 2000 project so

          7        it's a direct attempt to directly deal with that issue as

          8        opposed to dealing with the old 1885 language.

          9             You should note that this language has been by

         10        reviewed by both the people and concern with preservation.

         11        It also -- we met with those that are concerned with water

         12        resources.  And we have added some language on Line 17,

         13        Page 2, of the amendment dealing with water resource

         14        development, which is acceptable to everyone.  We've also

         15        clarified the fact, as is the case of the 1885

         16        Constitution, that bonds could be issued for multiple

         17        purposes within the corners of this language.

         18             So, our hope is that this directly addresses the

         19        issue of the Preservation 2000 from a constitutional

         20        standpoint.

         21             CHAIRMAN DOUGLASS:  I have a question.  I rule this

         22        amendment could come in as a proposal without determining

         23        how it differs from the proposal.  And I think that might

         24        be leading us to confusion.  If I understand what you've

         25        said, you have added to the present Constitution items


          1        that can been covered under these bonds, pledging the full

          2        faith and credit that are now not in it; is that correct?

          3             COMMISSIONER NABORS:  Well, the only thing we've

          4        added is the language -- you know, from the current 1885

          5        Constitution we added the language, water resource

          6        development --

          7             CHAIRMAN DOUGLASS:  My point is, what do we have now

          8        in the language that authorizes the P2000 bonds?  And I

          9        don't want to talk about 1885 or any other time.  I think

         10        we are entitled to know here, if we are going to be adding

         11        some matters that can be bonded with the full faith and

         12        credit of the state.  And I'm not a bond lawyer, but I

         13        understand bond lawyers, and I want to know if we are

         14        expanding the language in any fashion that allows the

         15        pledging of the full faith and credit.  And I'm not

         16        speaking for or against it.  But I think as the Chair,

         17        since we all of a sudden here are trying to wrap three

         18        amendments into one, that we don't pass a tobacco bill.

         19             COMMISSIONER NABORS:  Of course I'm not a bond lawyer

         20        either, I'm a lawyer.  I can tell you what the language

         21        says.  And what you have in front of you is a proposed

         22        substitute for Proposal 39 if that passes.  And then I

         23        assume then we would take up and withdraw the others if

         24        that's necessary.

         25             All I can tell you is if you look at the language,


          1        the new language on Lines 12 through 20, the only language

          2        that's different in terms of what can be done now in the

          3        existing bonding for Preservation 2000, is the additional

          4        language, water resource development.  That's the only

          5        additional language from what appears there now.

          6             CHAIRMAN DOUGLASS:  Then, I think somebody ought to

          7        tell us what that means, at least.

          8             COMMISSIONER NABORS:  Well, this is a language that

          9        was talked about.  It allowed, that, for example, if you

         10        had land that was acquired under this program, there was a

         11        recharge area, there was an area involved in aquifer

         12        recharge that potentially, if the Legislature allowed it

         13        to be done, it could be used for water supply purposes.

         14        It doesn't change the nature of the land as built for --

         15        to be done for conservation and for water resource

         16        development.

         17             CHAIRMAN DOUGLASS:  Commissioner Barkdull?

         18             COMMISSIONER BARKDULL:  I have some reservation.  One

         19        of these to be substituted is my proposal that would have

         20        done nothing but extend the date for refunding and that

         21        was as far as I wanted to go.  I was not in favor of

         22        expanding the authority.  And from the colloquy that I've

         23        just heard, I get the impression that this does expand the

         24        opportunity for the issuance of additional securities and

         25        that was not the intent of what I had intended in my


          1        proposal that's on the calendar.

          2             CHAIRMAN DOUGLASS:  Let me ask this question.  We are

          3        talking about three proposals now, right?  No, no, no.

          4        You said you wanted to combine 151.  You are combining

          5        yours and you are combining Barkdull's.  What I'm going to

          6        do is recommit all three of these to the committee to come

          7        out with a committee substitute.  And you have got another

          8        meeting and there's no point in not doing this with

          9        Commissioner Barkdull having made his last statement.

         10             This is what bothered me because Commissioner

         11        Barkdull proposed one simple thing, which is what we heard

         12        in the public hearings; which was that you eliminate the

         13        language 2013 and leave everything like it is.  Now, we

         14        don't need any other amendments unless we are doing more

         15        than that.

         16             Commissioner Barkdull?

         17             COMMISSIONER BARKDULL:  Well, my purpose of my

         18        amendment was to do only that.  Now, these other

         19        amendments, the explanation that they have given me, that

         20        did not expand the authority.  And I am not prepared at

         21        this point to support that proposition.  All I want to do

         22        is expand the ability to refund it.

         23             CHAIRMAN DOUGLASS:  Commissioner Hawkes, is that all

         24        it does?  Why do we need the other language?

         25             COMMISSIONER HAWKES:  I almost said Your Honor, but


          1        Mr. Chairman, the words "water resource development" were

          2        intended as clarification because water is a more

          3        important problem in Florida today.  And that was just to

          4        give the Legislature the power, if they wanted to, to do

          5        purely water sources kinds of issues.

          6             In other words, where are we going to get the water

          7        for Pinellas County?  Where are we going to get the water

          8        for Hillsborough?  Do we need to issue bonds to maybe make

          9        a desal (phonetic) plan or produce -- you know, it was

         10        that -- but it wasn't -- probably that authority would

         11        have existed anyway.

         12             Other than that, this amendment, in essence, is

         13        Commissioner Barkdull's amendment that gave the

         14        Legislature an extended date except we don't ever end it.

         15        I mean, the Legislature can issue bonds to 2013.  If they

         16        want, they can issue bonds to 2025.  You know, the

         17        Legislature decides what is in the best interest of the

         18        State on how long to issue the bonds.

         19             The other proposal that this is -- this proposal is

         20        the one that got the favorable recommendation out of

         21        committee.  It is offered as an amendment to Commissioner

         22        Henderson's proposal just to simplify things because this

         23        one was not favorably recommended because it basically

         24        dictated what would happen with this money, how much would

         25        be spent.  And the committee felt uncomfortable doing that


          1        and thought that would be best left with the Legislature.

          2             CHAIRMAN DOUGLASS:  Commissioner Nabors?

          3             COMMISSIONER NABORS:  Mr. Hawkes, as I understand

          4        what happened at the committee was, we had basically the

          5        proposal of Commissioner Henderson, which this is being

          6        amended to.  We also had Commissioner Barkdull's proposal.

          7        And both of those were unfavorable.  This language was

          8        reacted favorable to a proposal that is down with the

          9        special order; is that correct?

         10             COMMISSIONER HAWKES:  That's correct.  This is the

         11        one that was favorable out of a committee.  And we thought

         12        that if we went ahead and substituted this on Commissioner

         13        Henderson's, and he had no problem with that, we could

         14        pass it out.  And then when we got down the road, we could

         15        just withdraw it and we would save time.

         16             CHAIRMAN DOUGLASS:  So what you are doing is moving a

         17        proposal that was not on special order?

         18             COMMISSIONER HAWKES:  Well, we're moving the

         19        language, not the proposal.

         20             CHAIRMAN DOUGLASS:  All right.  I'm going to rule

         21        that that's out of order and we temporarily pass this.

         22        We'll take them up on the next special order on the

         23        proposal that you're trying to move and we will go forward

         24        with the next proposal.

         25             Commissioner Henderson?


          1             COMMISSIONER HENDERSON:  The rule of the Chair.

          2             CHAIRMAN DOUGLASS:  All right.  There's been an

          3        appeal of the ruling of the Chair.  That's non-debatable.

          4        Do you understand the ruling of the Chair?  The ruling of

          5        the Chair?

          6             COMISSIONER THOMPSON:  I just wanted to know what it

          7        was.  Yes, what was the ruling of the Chair?  I thought

          8        you just said you deferred it until tomorrow.

          9             CHAIRMAN DOUGLASS:  What I said was, number one, we

         10        started off with a proposal and then they got up and said,

         11        We want to amend the proposal to make it another proposal.

         12        And then they said what they were really doing is amending

         13        these proposals to be the third proposal which is not on

         14        special order.

         15             And I ruled that since they were, in effect, using

         16        the rule or motion to bring up a proposal that is not on

         17        special order, that I was going to rule that it was out of

         18        order and then we could temporarily pass these other two

         19        until we reached that one on the special order tomorrow.

         20             COMISSIONER THOMPSON:  Well, let me ask you this,

         21        Commissioner Henderson.

         22             CHAIRMAN DOUGLASS:  I'm going to allow you to do this

         23        although this is not debate.  You're just asking a

         24        question, right?

         25             COMISSIONER THOMPSON:  First, I had an inquiry of the


          1        Chair.  And I wondered if you would let me inquire --

          2             CHAIRMAN DOUGLASS:  Oh, yes, sir.

          3             COMISSIONER THOMPSON:  What I would recommend to you,

          4        instead of doing all this challenging and so on and so

          5        forth that we don't understand, I don't even understand

          6        what we're talking about.  And I think that's part of the

          7        Chairman's problem although he's certainly a lot smarter

          8        than I am.  But I don't understand -- I think you started

          9        off by saying you're going to take half the dock stamps

         10        and dedicate it somewhere.

         11             Then there's another proposal here that I've finally

         12        seen that came out of committee which looks fairly benign

         13        to me, I don't know.  Then Commissioner Barkdull has got

         14        an idea that's been floating around ever since one of our

         15        meetings.  So what I'm trying to do, if I can't put a

         16        little oil on the water here, I thought I'd just talk

         17        until 6:00 and we would leave.

         18             I don't want to get in the middle of somebody

         19        challenging, this that and the other.  So what I'd really

         20        like to do is let's just wait until tomorrow and talk

         21        about this.  Maybe we can talk about it and understand it

         22        at that time.  How does that sound?

         23             COMMISSIONER HENDERSON:  Mr. Thompson, I appreciate

         24        your attempts to put oil on the water and I'd agree with

         25        you and I'd also tell you I can't believe we've even


          1        raised voices over this because what's before us is

          2        absolutely benign.  So I don't mind spending the evening

          3        trying to convince my colleagues that this is benign and

          4        worthwhile.  So with that, I withdraw my appeal.

          5             CHAIRMAN DOUGLASS:  I want to explain my ruling, it

          6        was not to raise voices.  We're late in the day and we're

          7        well after 5:00.  This is not a subject that's familiar to

          8        everybody on this commission as it is to the three of you

          9        who have been telling us what to do and it's benign and

         10        all this.  And what I was trying to tell you is, that we

         11        don't need to be voting at this time of day on something

         12        where we're combining all these proposals, whether they

         13        are the same or not, until somebody has had an opportunity

         14        to look at it other than y'all.

         15             And therefore, I rule as I did in order to get it on

         16        track so that tomorrow you may present it in an orderly

         17        fashion without referring to him to refer to him to refer

         18        to him.  And to TP it is the way I prefer to go.  Does

         19        anybody move to TP it?  All right.  All in favor say aye,

         20        to TP.

         21             Commissioner Barkdull.

         22             COMMISSIONER BARKDULL:  Mr. Chairman, I suggest that

         23        we consider that we've concluded the special order today

         24        and we now have announcements, motions for

         25        reconsideration, and so forth.


          1             CHAIRMAN DOUGLASS:  All right.  We only have -- I

          2        don't think we have time to take up the other two that we

          3        have on special order.  We'll continue these until

          4        tomorrow's special order; is that what you're proposing?

          5             COMMISSIONER BARKDULL:  Yes, sir.

          6             CHAIRMAN DOUGLASS:  All right.  So we'll now revert

          7        to matters on reconsideration or to move matters for

          8        reconsideration.

          9             COMMISSIONER BARKDULL:  Commissioner Zack --

         10             CHAIRMAN DOUGLASS:  Commissioner Zack.

         11             COMMISSIONER ZACK:  Mr. Chairman, I move to

         12        reconsider Proposal No. 1.

         13             CHAIRMAN DOUGLASS:  I didn't --

         14             COMMISSIONER ZACK:  I move to reconsider Proposal

         15        No. 1, Proposition No. 1.

         16             CHAIRMAN DOUGLASS:  Okay.  Commissioner Zack has --

         17        now everybody pay attention, please.  Commissioner Hawkes,

         18        let's finish up here.  It's been moved by Commissioner

         19        Zack to reconsider the Proposal No. 1, when the action was

         20        taken at the last meeting.

         21             Commissioner Scott?

         22             COMMISSIONER SCOTT:  Mr. Chairman --

         23             CHAIRMAN DOUGLASS:  Wait a minute, I guess we should

         24        read it, or should we?

         25             COMMISSIONER SCOTT:  No, Mr. Chairman.  I think his


          1        motion carries over until tomorrow when he makes the

          2        motion.  He just had to make the motion and then it's the

          3        order of business tomorrow; am I right about that?

          4             CHAIRMAN DOUGLASS:  That's correct.  We'll leave it

          5        pending and tomorrow we will take up Commissioner Zack's

          6        motion to reconsider Proposal No. 1.

          7             Commissioner Barkdull?

          8             COMMISSIONER BARKDULL:  All right.  Now a couple of

          9        announcements.  There will be no judicial committee

         10        meeting tonight.  There will be no Bonding and Investments

         11        Committee tonight.  I understand Commissioner Hawkes has

         12        got a motion to withdraw a proposal in reference to a

         13        Criminal Court Committee and have it placed on the

         14        calendar.  If that's correct, he can make it or I'll make

         15        it.

         16             CHAIRMAN DOUGLASS:  What have we got?

         17             COMMISSIONER BARKDULL:  I would move the body that we

         18        withdraw Proposal 169 from the Judiciary Committee and

         19        place it on calendar, it relates to the creation of a

         20        criminal court of appeals.

         21             CHAIRMAN DOUGLASS:  Without objection, it will be so

         22        moved.

         23             COMMISSIONER BARKDULL:  All right.  There will be no

         24        Bonding and Investments Committee meeting tonight --

         25        excuse me, tomorrow.  Only has one matter that's before it


          1        and that's Proposal No. 129 by Commissioner Marshall.  And

          2        I understand that you want to leave it pending for a

          3        while.  The -- I would like now to have people that want

          4        to withdraw matters to speak up so we can get them

          5        withdrawn.

          6             CHAIRMAN DOUGLASS:  Commissioner Evans-Jones?

          7             COMMISSIONER EVANS-JONES:  I move, sir, that we

          8        withdraw Proposal 177, unicameral legislature from further

          9        consideration.

         10             CHAIRMAN DOUGLASS:  Without objection, that proposal

         11        is withdrawn.

         12             Commissioner Henderson?

         13             COMMISSIONER HENDERSON:  Mr. Chairman, without

         14        objection, I would like to withdraw Proposal 93 relating

         15        to homesteads.

         16             CHAIRMAN DOUGLASS:  Without objection, Proposal 93

         17        relating to homestead -- is that what it was?  Is

         18        withdrawn.

         19             Commissioner Mills?

         20             COMMISSIONER MILLS:  Mr. Chairman, without objection

         21        I move to withdraw Proposal 110 relating to intangible

         22        taxes and 111 relating to education as a fundamental

         23        right, there's another similar proposal.

         24             CHAIRMAN DOUGLASS:  Let's move them one at a time.

         25        The first one?


          1             COMMISSIONER MILLS:  110.

          2             CHAIRMAN DOUGLASS:  All right.  It's moved that

          3        without objection 110 is removed.

          4             COMMISSIONER MILLS:  And then, Mr. Chairman, 111.

          5             CHAIRMAN DOUGLASS:  Without objection, Proposal 111

          6        is withdrawn.  Any further motions to remove items from --

          7        all right.  Commissioner Barkdull?

          8             COMMISSIONER BARKDULL:  Mr. Chairman, there will be

          9        no rules committee meeting at 6:00 tonight.  There will be

         10        one tomorrow.  You will have an additional special order

         11        calendar tomorrow which will include the items we did not

         12        finish today and the other items that are on the calendar

         13        are the recurring committees.  We're scheduled to convene

         14        in the morning at 8:30 for a half-hour session and then

         15        the committee meetings are from 9:00 until 12:00, I

         16        believe.  And we start at 1:00 tomorrow with another

         17        afternoon session.  Commissioner Freidin, question?

         18             CHAIRMAN DOUGLASS:  There is a question or two here.

         19        Commissioner Kogan first.

         20             COMMISSIONER KOGAN:  My question is, why are we

         21        meeting from 8:30 to 9:00 tomorrow morning?

         22             CHAIRMAN DOUGLASS:  Well, we could possibly bring on

         23        the matters for reconsideration.

         24             COMMISSIONER KOGAN:  Because we have our committees

         25        that start at 9:00 in the morning.


          1             CHAIRMAN DOUGLASS:  That's right.  And this should be

          2        from 8:30 to 9:00.  It's my understanding the TV cameras

          3        get turned on at 8:30 so you better be here wide awake.

          4             COMMISSIONER KOGAN:  Not necessary, I have those over

          5        in my building too.

          6             CHAIRMAN DOUGLASS:  You're not on time full time

          7        on-line I don't think on the satellite.

          8             COMMISSIONER KOGAN:  Only on it 150 hours a year,

          9        that's all.

         10             CHAIRMAN DOUGLASS:  That's not necessary, but it

         11        seemed to me the committee -- rules committee must have

         12        something for us to consider at 8:30 or we wouldn't be

         13        meeting, am I correct, Commissioner Barkdull?

         14             COMMISSIONER BARKDULL:  Excuse me?

         15             CHAIRMAN DOUGLASS:  We have something to consider

         16        here at 8:30 or we wouldn't be meeting; is that correct?

         17             COMMISSIONER BARKDULL:  Yes, sir, we do.  And the

         18        special order, for your information, is being

         19        distributed -- will be distributed as we have it.  And we

         20        hope to have for you in the morning when you come here at

         21        8:30 so you'll have an opportunity to look at it before we

         22        come in for the full session, a packet that explains the

         23        items that are on special order.

         24             CHAIRMAN DOUGLASS:  All right.  So are you

         25        recommending that we reconvene in the morning at 8:30, at


          1        which time we will proceed with the items presented by the

          2        rules committee or others at that time?

          3             COMMISSIONER BARKDULL:  Yes, sir.

          4             CHAIRMAN DOUGLASS:  And we will adjourn promptly at

          5        9:00 to start the committee meetings that are scheduled.

          6             COMMISSIONER BARKDULL:  That's right, because we've

          7        got people scheduled to come to those committee meetings

          8        at 9:00.

          9             CHAIRMAN DOUGLASS:  Okay.  Anybody have anything

         10        else?  If not, Commissioner Barkdull moves something.

         11             COMMISSIONER BARKDULL:  I'm getting ready to move

         12        that we adjourn until 8:30 tomorrow morning except to tell

         13        you that the staff is passing out a preliminary draft of

         14        the special order committee, a special order calendar that

         15        you will have available for tonight to look at.  And I now

         16        move that we adjourn until 8:30 tomorrow morning.

         17             CHAIRMAN DOUGLASS:  Without objection, we're

         18        adjourned to 8:30 tomorrow morning.  Thank you very much.

         19        It's been a good day.

         20             (Session adjourned at 6:15 p.m.)







          1                             CERTIFICATE


          3   STATE OF FLORIDA:

          4   COUNTY OF LEON:

                        WE, JULIE L. DOHERTY, KRISTEN L. BENTLEY and
          6   MONA L. WHIDDON, court Reporters, certify that we were
              authorized to and did stenographically report the foregoing
          7   proceedings and that the transcript is a true and complete
              record of our stenographic notes.

          9             DATED this ______ day of ____________, 1998.


         12                      JULIE L. DOHERTY, RPR


         14                      _________________________________
                                 KRISTEN L. BENTLEY

         17                      MONA L. WHIDDON
                                 COURT REPORTERS
         18                      DIVISION OF ADMINISTRATIVE HEARINGS
                                 1230 APALACHEE PARKWAY
         19                      TALLAHASSEE, FLORIDA  32399-3060
                                 (850) 488-9675