1 STATE OF FLORIDA
CONSTITUTION REVISION COMMISSION
DATE: January 14, 1998
TIME: Commenced at 8:30 a.m.
11 Concluded at 12:15 p.m.
12 PLACE: The Senate Chamber
13 Tallahassee, Florida
14 REPORTED BY: MONA L. WHIDDON
KRISTEN L. BENTLEY
15 JULIE L. DOHERTY
16 Division of Administrative Hearings
The DeSoto Building
17 1230 Apalachee Parkway
2 W. DEXTER DOUGLASS, CHAIRMAN
3 CARLOS ALFONSO (EXCUSED)
CLARENCE E. ANTHONY
4 ANTONIO L. ARGIZ
JUDGE THOMAS H. BARKDULL, JR.
5 MARTHA WALTERS BARNETT
ROBERT M. BROCHIN
6 THE HONORABLE ROBERT A. BUTTERWORTH
7 CHRIS CORR
SENATOR ANDER CRENSHAW
8 VALERIE EVANS
9 BARBARA WILLIAMS FORD-COATES
ELLEN CATSMAN FREIDIN
10 PAUL HAWKES
WILLIAM CLAY HENDERSON
11 THE HONORABLE TONI JENNINGS (EXCUSED UNTIL 11:21 a.m.)
THE HONORABLE GERALD KOGAN
12 DICK LANGLEY
JOHN F. LOWNDES
13 STANLEY MARSHALL
14 JON LESTER MILLS
15 ROBERT LOWRY NABORS
16 JUDITH BYRNE RILEY
KATHERINE FERNANDEZ RUNDLE
17 SENATOR JIM SCOTT
H. T. SMITH
18 ALAN C. SUNDBERG (EXCUSED)
JAMES HAROLD THOMPSON
19 PAUL WEST
GERALD T. WETHERINGTON (EXCUSED)
20 STEPHEN NEAL ZACK
IRA H. LEESFIELD c(ABSENT)
22 LYRA BLIZZARD LOGAN
2 (Roll taken and recorded electronically.)
3 SECRETARY BLANTON: All unauthorized visitors, please
4 leave the chambers. All commissioners indicate your
5 presence. (Pause.) Commissioners, indicate your
6 presence. Quorum present, Mr. Chairman.
7 CHAIRMAN DOUGLASS: Okay. If everyone will be seated
8 please. If everyone will please rise for the opening
9 prayer given this morning by Reverend Larry Perry, pastor
10 of the First Assembly of God Church in Tallahassee.
11 Reverend Perry.
12 REVEREND PERRY: Romans Chapter 15, Verse 1 says: We
13 who are strong ought to bear with the failings of the weak
14 and not to please ourselves.
15 Each of us should please his neighbor for his good,
16 to build him up. For even Christ did not please himself,
17 but, as it is written, the insults of those who insulted
18 you have fallen on me. For everything that was written in
19 the past was written to teach us, so that through
20 endurance and the encouragement of scripture we might have
21 hope. May the God who gives endurance and encouragement
22 give you a spirit of unity among yourselves.
23 Heavenly Father, we thank you for this day that you
24 have given us, and I pray that you would help us to use it
25 to the benefit not of our ownselves, Lord, but to those
1 that we represent, those that you have called us to serve.
2 Lord, I pray not for the work today of this committee, but
3 for each and every individual in this place, that you by
4 your grace would support, sustain and strengthen and give
5 wisdom and instruction.
6 Some may be suffering at home, Lord. Some may need a
7 special touch today. And I ask you, Lord Jesus, to touch
8 by your presence, by your Holy Spirit. Bless this day.
9 Bless this work, Lord. In Jesus' name, we pray. Amen.
10 CHAIRMAN DOUGLASS: Commissioner Barnett, would you
11 please come forward and lead us in the pledge?
12 (Pledge of allegiance.)
13 CHAIRMAN DOUGLASS: We'll now proceed. Commissioner
15 COMMISSIONER BARKDULL: Mr. Chairman, members of the
16 Commission, you have on your desk a calendar for today.
17 We have, on the front page of it, you have the committee
18 meetings that are scheduled for this afternoon. Please
19 note that two have been canceled -- or one has been
20 canceled. And there's one committee meeting that's not on
21 Thursday's calendar, which is the Declaration of Rights,
22 which is scheduled for 6:15 tomorrow afternoon -- tomorrow
24 You have on your desk the orange book which we have
25 been using. We will continue to use it for a short period
1 today. You have the blue book, which we will go into and
2 use. You will be distributed, as we reach those portions
3 of the calendar, additional colored binders by the staff.
4 They are going to distribute them now and there will be a
5 yellow binder. And then this goes for -- I guess that's
6 gold, and this goes for garnet. We have orange and blue,
7 and gold and garnet. I don't know how that happened, just
8 that the staff has certain sentiments, apparently.
9 The rules committee met yesterday and wanted to alert
10 the Commission that on our next meeting, which commences
11 on Monday the 26th at 1:00 o'clock, that it is scheduled
12 to -- in your calendar, to adjourn at 1:00 p.m. on that
13 Wednesday. Because this is a very short meeting, we have
14 decided to alert you that it'll probably go until 5:00 on
15 Wednesday, not 1:00.
16 We have had a lot of inquiry about this Friday. And,
17 very frankly, until we see what comes out of the
18 committees this afternoon and what progress we make this
19 morning and tomorrow morning, we cannot tell about the
20 Friday calendar, but at the present time it is still
21 scheduled. For convenience, the lunch will be served both
22 today and tomorrow in the lounge.
23 Obviously, I do not anticipate that we will go until
24 2:00 o'clock and commence committee meetings at
25 2:00 o'clock. There will be some break between the
1 session and the scheduled committee meetings, although I
2 know there are certain committee meetings that have
3 witnesses that are coming from out of town and they are on
4 tight plane schedules. So I anticipate that we will break
5 on time so that the committees can meet on time to
6 accommodate the witnesses that they have requested to come
7 in. Other than that, Mr. Chairman, we are ready to move
8 with the special order.
9 CHAIRMAN DOUGLASS: I have two inquiries. Does
10 anybody have any information, Commissioner Nabors, I
11 understood you had made a call this morning to determine
12 the status of Commissioner Sundberg's son?
13 COMMISSIONER NABORS: I have no information, I'm
14 trying to make some calls now to see what I can find out.
15 I'll keep trying to find out in the morning.
16 CHAIRMAN DOUGLASS: So you know, for those of you who
17 were not here earlier in the week, Commissioner Sundberg's
18 son is seriously ill with cancer, and he's been absent
19 this week. And we all give him prayers for that in our
20 respective ways and continue to do so for Commissioner
21 Sundberg and his family.
22 Also, I understand that there are certain members of
23 the Commission that are not in good physical condition
24 this morning from having stayed up too late with the
25 DoubleTree gang. If anybody would like to report on that,
1 we would be glad to hear it, but probably it would be
2 better that it be done individually to us. I think the
3 leader of that group, or the two leaders were Commissioner
4 Freiden and Commissioner Mills. We welcome you this
5 morning, but we will also understand any problems you
6 might have. I did leave out Commissioner Smith, correct.
7 And if any of you want to join that group, I think they
8 have open membership for members of the Commission. Oh,
9 no, they just closed it. All right, so it's time to get
10 going. Yes, Commissioner Anthony.
11 COMMISSIONER ANTHONY: I am not a member of that
12 group, I was working and reading my documents last night.
13 But I would like to rise and recognize one of our members
14 that is celebrating his 40th birthday today, and that's
15 Commissioner Scott. And I would like for us to, with you
16 in the lead, Mr. Chairman, to sing happy birthday to
17 Commissioner Scott.
18 COMMISSIONER SCOTT: Can we make sure the cameras are
20 CHAIRMAN DOUGLASS: We believe in proof in packaging
21 here. The 40 receives some skepticism, Commissioner
22 Scott. That meant you went to the Florida Senate when you
23 were 12 years old, and we are all proud you are so well
24 preserved; it works all right. Close enough for
25 government work he says. Well, I'm not much at singing,
1 you know, but I'm willing to do it. Or we can wait and do
2 it tonight when we are in a more jovial mood, whichever
3 you prefer.
4 All right, we have taken care of all of the pleasures
5 now, I think. Commissioner Barkdull, am I right that the
6 matters on reconsideration are going to be taken up later
7 in the day?
8 COMMISSIONER BARKDULL: Yes, sir, I move that they be
9 deferred until later in the calendar at the call of the
11 CHAIRMAN DOUGLASS: Without objection, it is so
12 ordered. According to what I've been furnished, our first
13 proposal for consideration today is 123 by Commissioner
14 Barkdull, which is in the orange book; is that correct?
15 COMMISSIONER BARKDULL: That's what I've got on the
16 calendar here.
17 SECRETARY BLANTON: That's on reconsideration.
18 CHAIRMAN DOUGLASS: That's on reconsideration?
19 COMMISSIONER BARKDULL: Yes, special order starts on
20 the next column.
21 CHAIRMAN DOUGLASS: Okay. Proposal 91 by
22 Commissioner Hawkes, disapproved by the Committee on
23 Bonding and Investments, and it's on special order. Okay.
24 Would you read it please?
25 READING CLERK: Proposal 91, proposal to revise
1 Article VII, s.4, Florida Constitution; providing for
2 certain pollution control devices to be classified by
3 general law and assessed solely on the basis of character
4 or use.
5 CHAIRMAN DOUGLASS: All right. Does anybody rise in
6 support of that? (No audible response.) Anybody wants to
7 speak in opposition? (No audible response.) If not,
8 unlock the machine and we'll proceed to vote. Lock the
9 machine and count the vote, announce the vote.
10 READING CLERK: One yea, 22 nays, Mr. Chairman.
11 CHAIRMAN DOUGLASS: Proposal fails. Now, Proposal
12 116 is the next one on special order and it's in the blue
13 book, it's by Commissioner Corr. And it was recommended
14 as a committee substitute and disapproved by the Committee
15 on Education. Would you read it, please?
16 READING CLERK: Committee substitute for Proposal
17 116, a proposal to revise Article IX, Florida
18 Constitution, revising Section 6 to provide funding for an
19 educational scholarship fund, adding Section 7 to
20 authorize the creation of an educational scholarship fund.
21 CHAIRMAN DOUGLASS: All right. Commissioner Corr,
22 you are recognized on this proposal, sir.
23 COMMISSIONER CORR: Thank you, Mr. Chairman. This is
24 the proposal that expands the ability of the Legislature
25 to allocate state school funds to an educational
1 scholarship fund. Currently, the Constitution limits the
2 funds only to the support and maintenance of free public
3 schools. What this proposal will do is also add the
4 words, And the educational scholarship fund. I have
5 finally found that in the blue book and it gives me some
6 time to get organized here.
7 So what this would allow, Mr. Chairman, is their
8 state funds to go into an educational scholarship fund.
9 The fund would be established by the Legislature. The way
10 the funds would be allocated out of that fund would also
11 be established in general law by the Legislature as well.
12 CHAIRMAN DOUGLASS: All right. Anybody have any
13 questions of Commissioner Corr? Any other proponents of
14 this proposal? Are there opponents that wish to be heard
15 on this proposal? If not, then we'll proceed to vote.
16 Open the machine. All right, lock the machines and
17 announce the vote.
18 (Vote taken and recorded electronically.)
19 READING CLERK: Ten yeas, 15 nays, Mr. Chairman.
20 CHAIRMAN DOUGLASS: So, Proposal 116 fails. The next
21 proposal is Proposal 135 by Commissioner Henderson that's
22 in the blue book, approved by the committee on finance and
23 tax, and consideration was deferred until today. Would
24 you read the -- read it please?
25 READING CLERK: Proposal 135, proposal to revise
1 Article VII, s.4, Florida Constitution; adding lands used
2 for conservation purposes to those lands that may by law
3 be assessed for tax purposes on the basis of their
4 character or use.
5 CHAIRMAN DOUGLASS: All right. Commissioner
7 COMMISSIONER HENDERSON: Mr. Chairman, I am ready,
8 but my only question is whether or not Mr. Mills is going
9 to offer an amendment on his proposal. And if we are
10 still working on it, we'll TP it, otherwise we'll put it
11 on the board.
12 COMMISSIONER MILLS: Mr. Chairman, yesterday we
13 discussed the definition of conservation and we had two --
14 we have a lower assessment and we have an exemption both
15 being considered. And I know Senator Scott's staff is
16 working on that. I would suggest that maybe we TP it
17 until we get that definition back because I think with
18 what was raised --
19 CHAIRMAN DOUGLASS: All right. Commissioner Scott,
20 do you think your staff will have information ready for
21 this afternoon?
22 COMMISSIONER SCOTT: Mr. Chairman, no, we won't,
23 because what we are doing is we are having a meeting of
24 finance and tax week after next at which we are going to
25 take up this proposal as the one regarding the tax use has
1 a major tax impact. So, I don't think we are going to
2 have a definition ready for today. I think the point is
3 the same words are used, the word conservation, and they
4 want to have words consistent with both his proposal and
5 Commissioner Mills' proposal.
6 CHAIRMAN DOUGLASS: Commissioner Henderson.
7 COMMISSIONER HENDERSON: Mr. Chairman, this is not a
8 pressing issue. Without objection, I would like to have
9 it removed from the special order calendar, place it on
10 the calendar, and we'll get all of the ducks in a row,
11 come back from committee and ask that it be put on special
13 CHAIRMAN DOUGLASS: Without objection, that will be
14 done. It is done. Okay, Proposal No. 119, by
15 Commissioner Corr, disapproved by the committee on
16 education. Would you read it, please?
17 READING CLERK: Proposal 119, a proposal to revise
18 Article 9, s.6, Florida Constitution; amending the
19 eligibility requirements for receiving state school funds.
20 CHAIRMAN DOUGLASS: Commissioner Corr.
21 COMMISSIONER CORR: Thank you, Mr. Chairman. This
22 proposal would expand the way we can appropriate state
23 school funds. Again, currently, it is limited to the
24 support and maintenance of free public schools. This
25 would allow the funds to also be allocated to any
1 pre-kindergarten, kindergarten through grade 12, or any
2 school that accepts public funding and meets certain
3 standards of excellence that would be prescribed by the
5 COMMISSIONER BARKDULL: All right. Any proponents?
6 Anybody from the committee want to respond? If not, we'll
7 proceed to vote.
8 (Vote taken and recroded electronically.)
9 COMMISSIONER BARKDULL: Has everybody voted?
10 Announce the vote.
11 READING CLERK: Fourteen yeas, 14 nays, Mr. Chairman.
12 COMMISSIONER BARKDULL: It fails. Move next to
13 Proposal 107 by Commissioner Connor, which was disapproved
14 by the Committee on Declaration of Rights. Would you read
15 it, please?
16 READING CLERK: Proposal 107, a proposal to revise
17 Article I, Florida Constitution; providing that the State
18 Constitution does not restrict the right of parents to
19 consent to medical treatment for their minor children.
20 CHAIRMAN DOUGLASS: Commissioner Evans, is this the
21 proposal that you wanted to be heard in conjunction with a
22 later proposal or following a later proposal?
23 COMMISSIONER EVANS: Just that it be heard first.
24 CHAIRMAN DOUGLASS: All right. So, you are willing
25 to proceed then?
1 COMMISSIONER EVANS: This is Commissioner Connor's,
2 and I needed his to go first.
3 CHAIRMAN DOUGLASS: Commissioner Connor, you are open
4 to present the proposal.
5 COMMISSIONER CONNOR: Thank you, Mr. Chairman.
6 Ladies and gentlemen, my wife and I have four children.
7 Two are prone to get headaches and two are prone to give
8 them. Since we are on television, I won't tell you which
9 ones do what, but if you are watching at home, you know
10 who you are.
11 But ladies and gentlemen, I can tell you that it has
12 been a common occurrence for those kids who get headaches,
13 for me to get a call at the office from the school nurse.
14 And when I come on the line, a very nice lady will
15 typically say, Mr. Connor, I'm sorry to disturb you at
16 home, but so and so is in the clinic, and they are lying
17 down with a headache, and I wonder if it would be all
18 right for me to give them some Tylenol.
19 Whenever my kids go off on a school field trip, my
20 wife and I always have to sign a written consent
21 authorizing them to go and to participate on that trip.
22 Amazing though it may be, if a minor child wishes to
23 obtain an abortion in the State of Florida, she does not
24 need her parents' consent. Indeed, there's not even a
25 requirement in Florida that her parents be notified.
1 But in the event that child suffers complications
2 arising out of that abortion, before the hospital will
3 treat that child, she has to receive her parents' consent.
4 And of course, her parents are responsible for the bills.
5 Ladies and gentlemen, common sense tells us that that
6 ought not to be. What this bill does -- what this
7 proposal does, very simply, is to provide the
8 constitutional footing for the Legislature of the State of
9 Florida to pass parental consent legislation if it chooses
10 to do so.
11 Now, most ordinary folks would be surprised to learn
12 that the Legislature does not have the requisite
13 constitutional footing to pass such a law, but it does not
14 because in 1989 the Florida Supreme Court ruled in the TW
15 case, in the process of striking down a parental consent
16 statute, that the State lacked a compelling interest
17 sufficient to warrant the passage of parental consent
19 And the hue and cry about parents' rights to consent
20 to medical treatment for their child, particularly as it
21 relates to abortion, has not died down in the decade that
22 has followed, and understandably so. Because most
23 Floridians, in fact, back at the time that this bill was
24 passed, about 78 percent of Floridians were shown to be in
25 support of a parental consent bill.
1 Most Floridians believed, the overwhelming majority,
2 believed that the people who know their children best and
3 love them most, the parents, ought to be permitted under
4 the law to give their consent prior to the rendition of
5 medical treatment for that child. And you all heard the
6 testimony, I thought very compelling testimony, of Dr.
7 James down in Gainesville about the important role that
8 parents play about providing medical history and other
9 information with respect to the treatment of that child.
10 Ladies and gentlemen, by today we have received over
11 five -- we have heard from over 5,000 Floridians who have
12 urged us to pass Proposal No. 107. I'm not aware that we
13 have heard from that many on any other single issue. This
14 is an issue that's very easily understood by the people of
15 Florida, this is an issue that requires a constitutional
16 fix in light of the ruling of TW, and this is a provision
17 that reason and common sense dictate that we ought to
19 And ladies and gentlemen, I would submit to you that
20 there is no, and ought to be, no more important priority
21 before this body than taking the necessary steps to
22 restore the rights of parents to make this important
23 decision on behalf of their children.
24 What this amendment does, very simply, is as follows:
25 It creates a new Section 26, Article I, which reads as
1 follows, Nothing in this Constitution shall be deemed to
2 restrict a parents' right to consent to medical treatment,
3 included but not limited to abortion for a minor child, as
4 permitted by the United States Constitution. This state
5 has a compelling interest in protecting the rights of
6 parents to make such decisions for their minor children.
7 Ladies and gentlemen, this provision is not
8 self-executing. If you pass this proposal, it will not
9 require parental consent before a minor can obtain an
10 abortion in the State of Florida, but it will put the ball
11 in the Legislature's court and we can have the public
12 debate and we can hear the kind of testimony that we ought
13 to hear and all of the various people that have interests
14 in this legislation can come before the Legislature, let
15 their voices be heard, the democratic process can operate
16 and the Legislature can and will act in accordance with
17 its wisdom having been duly instructed by the people on
18 this issue.
19 But because of the TW case, the hands of the
20 Legislature are tied, and the Legislature simply lacks the
21 constitutional foundation to go forward. And so the hue
22 and cry continues.
23 Ladies and gentlemen, yesterday we talked about the
24 partial birth abortion procedure. I was interested in,
25 Mr. Zack, to read last night in U.S. News and Report,
1 commenting on nonmedical, late term, partial birth
2 abortions that are carried out. And one southern clinic
3 stated, Our biggest group is 10 to 18-year olds in total
4 denial. In other words, these are young folks who just
5 don't accept, can't accept, haven't accepted the fact that
6 they are pregnant, find themselves at a late stage of
7 pregnancy, and then without a parent's knowledge or
8 consent, an abortionist can perform a late-term, partial
9 birth abortion.
10 I would submit to you, ladies and gentlemen, that
11 that just doesn't make sense, plain and simple. We in
12 Florida are concerned about the breakup of families, we in
13 Florida have expressed our concern about the affects of
14 dysfunctional families and the impact on our society, and
15 I would submit to you that government has contributed, in
16 part, to the breakdown of the family. And the TW decision
17 is an example of how that occurs, even I would suggest,
18 perhaps, with the best of motives on the part of our
20 But when you strip away a parent's rights to make a
21 decision of a medical nature on behalf of their child,
22 then government has interposed itself into the family and
23 come between the traditional parent/child relationship and
24 significantly altered the family dynamics that
25 historically and traditionally have taken place.
1 Ladies and gentlemen, that ought not to be. We ought
2 to reestablish the traditional relationship that's existed
3 from time out of mind in which parents make these kinds of
4 important decisions for their children. I think it's
5 important for you to understand that under the
6 constitutional regime of cases established by the United
7 States Supreme Court, the United States Supreme Court has
8 declared that states may enact parental consent
10 And under the case of Bellotti versus Baird, the
11 court has said, In order to pass Federal constitutional
12 muster, any parental consent legislation must provide for
13 what's known as a judicial bypass mechanism where a young
14 girl can dispense, with the permission of the court, with
15 her parents' consent to an abortion. One of two things
16 has to be established. First of all, the Court has to
17 find that the child is sufficiently mature to make her own
18 decision in that regard, or secondly, in the alternative,
19 that it is in the child's best interest that the abortion
20 take place.
21 Mr. Zack asked me earlier about instances where the
22 child was fearful of retribution or violence and that sort
23 of thing. And the Bellotti case and its prodigy has said
24 that this judicial bypass system is required to pass
25 Federal constitutional muster.
1 In the TW case, the Florida Supreme Court identified
2 two additional requirements that would be necessary beyond
3 what was provided in the statute that was at issue there,
4 and that was that there be a record of the proceeding and
5 that there be a provision for the appointment of counsel.
6 Bellotti requires an expedited proceeding. The Florida
7 statute, as I recall, had a 24-hour period. Perhaps it
8 was 48 hours within which the hearing had to take place.
9 Ladies and gentlemen, because we have an explicit
10 privacy right, and because the Court concluded that since
11 the parental consent statute burdens a minor's decision
12 making -- even before the child is viable, that it was
13 unconstitutional and the State did not have that
14 compelling interest.
15 I ask you, ladies and gentlemen, what more compelling
16 interest could the State have than of protecting the
17 rights of parents to make decisions for their minor
18 children in this very, very important area of medical
19 care. We know that abortion is a surgical procedure, that
20 it's fraught with risks, that there are physical and
21 psychological consequences that may flow out of that
23 We simply must do the right thing here. And the
24 right thing is to protect the rights of parents in making
25 these decisions. A minor child in 1988 when this bill was
1 passed, believe it or not, a minor child would go into a
2 clinic for an abortion, which from a regulatory standpoint
3 did not have the health and sanitation requirements of a
4 veterinary clinic in the State of Florida. And the reason
5 for that, very simply, is that almost all regulations that
6 had been passed by the Legislature or the administrative
7 bodies had been -- with respect to abortion clinics, had
8 been enjoined from enforcement.
9 Ladies and gentlemen, this just doesn't make sense.
10 Parents are the people who know their children best and
11 who love them most. There is a provision in the rare case
12 where parents are to -- where it's determined that parents
13 couldn't be involved or shouldn't be involved or where
14 it's in the best interest of the child to dispense with
15 the consent of the parents or where she's deemed to be
16 sufficiently mature to make that decision.
17 Any bill the Florida Legislature passes in this
18 regard must meet those requirements. It must meet the
19 other due process requirements that are set forth by our
20 Florida Supreme Court, but it can do nothing unless we
21 provide the constitutional foundation.
22 Chairman Smith of the Declaration of Rights Committee
23 has rightly posited a question on this floor and it's been
24 posited over and over again in our Declaration of Rights
25 Committee, about whether or not the Constitution is the
1 appropriate vehicle to effect the change that is at issue.
2 We are not a super Legislature and we shouldn't be
3 carrying forth a legislative agenda.
4 Ladies and gentlemen, a constitutional fix is
5 required. The people of Florida earnestly want it, they
6 understand it, and we ought to do it. Thank you. Thank
7 you, Mr. Chairman.
8 CHAIRMAN DOUGLASS: Commissioner Freiden.
9 COMMISSIONER FREIDIN: Mr. Connor, Commissioner
10 Connor, I agree with one thing that you said, we must do
11 the right thing here. I disagree with almost everything
12 else that was just said. And I rise at this moment to
13 urge you all to vote against this proposal. This proposal
14 presents a drastic incursion into the right of privacy of
15 girls in the State of Florida. And I submit to you that
16 it really does nothing to increase the rights of parents
17 that already exist, because parents in our state do have
18 presently the right to consent to medical treatment for
19 their children.
20 Now, what we need to start out with is, what are we
21 talking about here? We are not talking about parents
22 being involved in decision-making of their children, what
23 we are talking about, and I wrote down very carefully what
24 has been said by the proponent of this measure. What we
25 are talking about is we want -- is whether parents have
1 the right to make decisions for their children. And what
2 we are talking about here and what you are being asked to
3 vote on is a provision that would give to parents the
4 right to make a decision for a girl who may be about to
5 bear a child that is going to be her daughter and her
6 responsibility for the rest of her life, or who she is
7 going to then have to give up for adoption and live with
8 that trauma for the rest of her life.
9 So, we are not talking here about having parents --
10 about requiring the parents be involved in a decision, we
11 are talking about having parents be able to make a
13 Let's talk about what the law is at the present time.
14 In the State of Florida, an abortion cannot be performed
15 without the informed consent of the woman seeking the
16 abortion. Under Florida Statute 390.0111, a termination
17 of pregnancy can't be performed unless there is an
18 informed consent, a voluntary and informed written consent
19 of the pregnant woman. Or in the case of somebody who is
20 not competent to consent, a court-appointed guardian.
21 Now, of course, that could be a parent, and in the
22 vast majority of cases, it is the parent that consents to
23 the abortion. Let's talk about those numbers. You know,
24 this is not a situation where this is -- this is something
25 that we don't have any data on. There is experience, we
1 have experience in states like ours where informed consent
2 is not required. We have experience in states like ours,
3 like other states, like Minnesota, like Massachusetts,
4 where consent -- where parental consent is required. And
5 we know from that experience that, in both kinds of
6 states, states that have parental consent law and states
7 that don't have parental consent laws, that about
8 60 percent of all abortions of girls under the age of 18
9 are performed with parental involvement.
10 Now, we say 60 percent. Well, gee, what about the
11 other 40? The reality is, let's first talk about what the
12 numbers are. Your concern, I know, is about that 10, 11,
13 12, 13-year old child. Over 90 percent of those girls
14 have parental involvement in their abortions, those girls.
15 And it happens to be, by the way, a very small number of
16 the abortions that are performed on very young girls. In
17 the under 16 years old, it's 75 percent. So we are
18 talking, again, about a very small percentage of the
19 abortions that are performed.
20 Now, let's talk about why the girls who don't get
21 their parents involved don't get their parents involved.
22 The reasons are clear, they are fearful, their parents are
23 ill or alcoholic, or not there, they are afraid of hurting
24 their parents, they are afraid of what their parents might
25 do to them. In one-third of the girls who don't involve
1 their parents, there has been family violence inside their
2 home, and they fear that that violence will be directed
3 toward them. And that fear is statistically borne out,
4 because the statistics with regard to family violence
5 establish that in -- that during times of pregnancy in a
6 household violence increases dramatically; it is the most
7 stressful time in a household. So the likelihood of
8 violence toward children in a household where there is
9 violence increases dramatically in situations where the
10 child is pregnant.
11 The other thing that I found interesting as I was
12 researching this and reading articles on it is that in
13 more than 90 percent of the cases where girls don't
14 involve their parents, they do involve some other
15 responsible adult who is not a clinic -- a person from the
16 clinic, not a clinic personnel. So, again, we are talking
17 about a very, very small percentage of the girls.
18 Now, we have heard about the argument that we require
19 consent for an aspirin in school, but we don't require
20 consent for an abortion. I submit to you that that's
21 really not -- it is a false argument in the sense that --
22 a child could go to the drugstore and buy aspirin, that's
23 simply a liability issue. And that really isn't -- it
24 isn't an argument that you should be relying on.
1 CHAIRMAN DOUGLASS: Commissioner Mills.
2 COMMISSIONER FREIDIN: I'm taking a deep breath, sir.
3 CHAIRMAN DOUGLASS: Excuse me, I was engaged in a
4 conversation there.
6 COMMISSIONER FREIDIN: We have heard that we should
7 be concerned about the breakup of families in our state.
8 I submit to you that our approval of this amendment to go
9 on the ballot would have absolutely nothing to do with the
10 breakup of families in this state and would not help one
11 iota. The numbers of girls who communicate with their
12 parents are virtually identical in states that have
13 parental consent laws and in states that don't have
14 parental consent laws. You cannot legislate, you cannot
15 constitutionally require, nor can the Legislature
16 legislate a -- that a daughter talk to her parents. Girls
17 that are inclined to talk to their parents are going to
18 talk to their parents. The ones that aren't inclined to
19 talk to their parents are going to take matters into their
20 own hands and handle it with -- to the best of their
21 maturity and their ability.
22 Now, how does that -- what do we know about what
23 happens in other states? We know that in the State of
24 Massachusetts, in the first eight months of their parental
25 consent law, that approximately 30 percent of the girls
1 who had -- who became pregnant went out of state to get
2 abortions. In Massachusetts, that's easy, and in North
3 Florida that's easy too. We also know that when
4 abortion -- when girls can't obtain legal abortions in
5 clinics or from their physicians, we know from the history
6 that we, I think all of us in this room have lived
7 through, that they pop up all over the place, illegal ways
8 of getting abortions.
9 And we know that when those illegal abortions are
10 available and the girls get them that they are fraught
11 with danger, that they don't have the -- they were often
12 performed by people who aren't even physicians. And that
13 puts our daughters at tremendous risk, physical risk, that
14 they would not otherwise experience if they could go and
15 have a legal abortion.
16 We also know that if we require -- and we know this
17 from the experience in the states that have it, that
18 requiring parental consent causes girls to delay getting
19 an abortion. The medical evidence -- it is absolutely
20 clear that the later the term, the later in the term, in
21 the pregnancy that the abortion is performed, the more
22 dangerous it is and the riskier it is to the girls who are
23 getting the abortions.
24 If a girl is required to go to court or to -- and
25 needs to, and finds impediments to getting the abortion at
1 an early stage, she runs the risk of being forced into a
2 second trimester abortion, which then becomes quite
4 Now, what we are doing here, if we were to pass this,
5 and then the Legislature -- and if the Legislature then
6 would follow up with legislation, would be to put a court
7 in a position where the Court could make the decision for
8 a young woman to have an abortion, whether or not she
9 could have the abortion. The Court's decision would be
10 based on the girl's maturity and whether it was in her
11 best interest, but it would not require parental
13 I don't see -- I cannot imagine what this has to do
14 with how this would advance family relationships or
15 parental rights because it would then be the Court that
16 makes the decision. What we are doing, simply, because we
17 now have a situation where the doctor makes the decision
18 about the maturity and the competency of the girl, and if
19 she's not competent to consent, she obtains a -- she gets
20 a legal guardian. What we are doing is we are simply
21 substituting a court's judgment for the judgment of the
22 pregnant girl and her physician. What that is is an
23 intrusion into her rights of privacy.
24 You have also heard about the risks of an abortion.
25 The risk of an abortion is infinitesimal compared to the
1 risk of a pregnancy. The risk of an abortion is about
2 half of the risk of getting a shot of penicillin or having
3 your tonsils out. It is not a particularly risky
5 Now, we have heard that parents know their children
6 best and they love them the most. I could not agree more
7 that that's true. I guess there were two things that were
8 said that I agree with. But the parents who love their
9 children the most and know them the best are not the
10 parents that this is going to affect, because those
11 parents are going to be in the 60 or 75 or 90 percent of
12 the parents whose children do come to them, do involve
13 them in the decision, do consult with them.
14 The parents -- the children who are going to be very
15 negatively impacted by this, the girls who are going to be
16 very negatively impacted by this are the girls of parents
17 who can't be consulted, either they are not around, the
18 children are living with somebody that's not their parent,
19 they are -- I think that this particular proposal is
20 somewhat vague and would cause concern about, what if a
21 child was living with one parent and the other parent --
22 does the other parent then have the right to consent?
23 What if the other parent isn't around, the child hasn't
24 seen the other parent and the parent shows up and wants to
25 consent? It's fraught with all kinds of problems that
1 would come up if we allow this to be on the ballot.
2 I submit to all of you that we must do the right
3 thing in this case. The right thing in this case is to
4 preserve the right to privacy of all of the women of this
5 state and especially of the girls of this state, with
6 regard to this proposal. Thank you.
7 CHAIRMAN DOUGLASS: Commissioner Mills.
8 COMMISSIONER MILLS: Mr. Chairman, members of the
9 Commission, slightly unlike Commissioner Freiden, I agreed
10 with a great number of things that Commissioner Connor
11 said. I first agree that no group is better, no unit is
12 better than the family to deal with the issues of the
13 family, no one -- no possible advice could be better.
14 I secondly agree that younger people, whether they be
15 men or women, don't always make the best judgments. I
16 third agree that common sense should control how we act on
17 issues of this import. Fourth, I agree that government
18 shouldn't be intervening in our private lives. And I
19 agree with those that say judicial intervention is not the
20 answer to personal family issues.
21 Let's first determine exactly what this proposal
22 does. It doesn't only authorize parental consent, if you
23 look at the language, it says, Including but not limited
24 to abortion. I think, and I submit to you, this leaves an
25 area of uncertain and undetermined consequences which we
1 have to think about, even ones that might be totally
2 opposite of those intended by the proponents. What if a
3 young girl, living apart from her parents, was pregnant
4 and wanted to have a child and she needed medical
5 procedures in order for her to have that child? What if
6 her parents didn't want her to have that child? What if
7 they didn't consent? What if I, as a parent, sit down
8 with a daughter who may be pregnant and say, I believe we
9 should discuss this as a family thoroughly, however,
10 ultimately it's your decision and I'll support you in
11 whatever you do?
12 Now, you are going to tell me that the government is
13 going to tell me now I have to go and sign the consent
14 form. It seems to me, that's telling me that's how to run
15 my family by the Constitution. Let me give you a little
16 bit of history how parental consent got here because I
17 happen to know this one very well. House Bill 1668,
18 June 2nd, 1988, I was in the chair right down the hall
19 here and an amendment was introduced, the very statute
20 that we are considering, the word statute that in re TW
21 considered, parental consent. It was amended to abortion
22 licensing provisions.
23 There was a question as to whether that was in order.
24 And I could have ruled it out of order. I did not because
25 it was in order. There were a series of amendments that
1 were offered to that particular proposal which would have
2 basically weakened it or taken out the parental consent
3 provision. They all failed, the parental consent
4 provision passed. I ended up voting for the entire
6 How else was I involved in this? I have heard a lot
7 about the history of privacy. The privacy amendment,
8 House Resolution 387, in 1978 was introduced. I
9 introduced it with the support of some very interesting
10 people, including Dempsey Barron, including Curt Kiser,
11 including Lee Moffitt, a fairly diverse group of people,
12 all believing that individual privacy was something
13 important enough to put in Florida's Constitution.
14 The Supreme Court took that privacy provision, which
15 by the way, was most of the discussion related to
16 informational privacy? Probably. Was there any
17 discussion that related to abortion? Absolutely.
18 Senator Dunn who pointed out several times, and I
19 think ultimately voted against it, said this issue will
20 deal with abortion. Was the Court right when it said that
21 the people of Florida wanted to have additional privacy
22 protections? I think so. I think so. And was its
23 decisions correct? I think so as well.
24 So, that puts us in a position to be considering
25 whether to overrule this history, both of the privacy
1 amendment and of the Court's decision and interpretation.
2 If it were logical to do so, maybe we should consider it.
3 But what I have heard Commissioner Freiden say and what I
4 also believe is the logic of telling a pregnant child that
5 she has to communicate with her parents has little impact
6 that she's not going to do it. We can't look to the
7 statute books to solve problems of our family, of our
8 community and of our state. It is illogical to think that
9 our passing statute will change the conduct of a young
11 Our society has much higher responsibilities to do
12 that, and maybe you did a good job with that when we
13 talked about education yesterday. So, what will she do?
14 She'll do exactly what Commissioner Freiden suggested. If
15 she can't seek a legal abortion, she'll seek an illegal
16 abortion. And as shocked and horrified as I was yesterday
17 to hear the details of partial birth abortion, I think we
18 would be as shocked and horrified to hear the details of
19 illegal abortions.
20 So, we are condemning our young girls to face as bad
21 as we heard yesterday. I think it is the responsibility
22 of this Commission to be logical, to stay out of
23 intervening with the family, and to adhere to a principle
24 I heard many of you articulate. And that is, the
25 Constitution is not a place for us to intervene in family
2 I read -- I almost feel like Commissioner Brochin
3 sometimes -- I didn't really read the whole thing. These
4 are the Bill of Rights. They spent all of their time
5 talking about how to protect people from government, not
6 about how in the Constitution to tell people how to live
7 in their private lives. And it also seems to me the
8 principle that you-all have talked about and we have
9 shared, judicial intervention; what could be more judicial
10 intervention than to have a bypass proceeding dealing with
11 the personal life of a young girl? That's judicial
13 But lastly, if you really consider what the Bill of
14 Rights is about and what the Declaration of Rights is
15 about, it's about protecting those that need protection.
16 It is not the 5,000 letters, it is not the polls, it is
17 maybe those few girls, maybe it was TW, maybe it was the
18 girl that we heard about in Gainesville who couldn't go to
19 her parents because the parents, the father, the abusing
20 father, was the cause of the pregnancy.
21 Our duty is to protect them, our duty is to protect
22 those that can't be protected. And the only way that we
23 can do that is maintain their right to privacy, not
24 intervene in their personal lives and to defeat this
1 CHAIRMAN DOUGLASS: Commissioner Langley.
2 COMMISSIONER LANGLEY: I would like to speak in favor
3 of the amendment. You know, Commissioner Mills, the
4 problem is, that young woman, be her, 11, 12, 13, 14, 15,
5 isn't competent to make that decision. And if she were,
6 she probably wouldn't be in that problem to start with.
7 And I would submit to you that she has a lot more problems
8 than just that pregnancy, she has deep emotional problems,
9 she has perhaps psychiatric problems. It isn't going to
10 be cured by that abortion. And, you know, six months
11 later she's going to be back in the same position.
12 If she isn't competent under the proposal that
13 Commissioner Connor is proffering, the judicial bypass is
14 there. If a parent, as in the Gainesville case, is so
15 involved, and he in fact were the father, judicial bypass
16 is there, and she would be advised of that.
17 You know, this child can't make any other decision.
18 She can't drive a car, she can't vote, she can't hold a
19 license to fly an airplane or sell real estate or do
20 anything else, she can't choose the public school that she
21 attends, she can't choose her teachers, she can't even
22 choose to take an aspirin at school if she wanted one.
23 She can't choose her own physician for any other medical
24 purpose, but for this, she can choose to do this.
25 And the counseling, and, Commissioner Freiden,
1 informed consent is a joke when the counselor is on the
2 payroll of the doctor that is going to do the abortion,
3 who has car payments, and mortgage payments, and overhead,
4 and competition. If many of those nurses turned away
5 these children, there wouldn't be a business there and
6 that nurse wouldn't last very long as counseling for
7 informed consent.
8 There's an interesting case that followed the TW case
9 that some of you may not know about. Both of these cases,
10 ironically, originated in Lake County where I'm from, and
11 both came out of the Circuit Court Judge Locket. And
12 Judge Locket made the original decision, had another case
13 come before him where there were two 15-year old girls had
14 run off for the weekend with two 19 or 20-year old boys,
15 and they had cohabited over at Daytona Beach and had a
16 good time, but when they got back, the parents of the
17 girls did not think they should have had such a good time,
18 and they brought statutory rape charges against the boys.
19 Now, if you were Judge Locket, who rendered and had
20 the Supreme Court render the TW decision, is it not only
21 logical that, surely, if a 13-year old girl could choose
22 to have an abortion under the right of privacy, she
23 certainly could choose to have sex under the right of
24 privacy without parental intervention or state
25 intervention. But somehow, this same court decided that,
1 no, that's different, that she cannot choose to have sex
2 at 15, but she can choose to have an abortion at 13.
3 What was really at issue is the prevailing political
4 currents of the right of choice. But anyway, Commissioner
5 Freiden, it's amazing that you can talk so casually about
6 percentages. Let me suggest to you, you say 10 percent of
7 these children -- only 10 percent don't have parental
8 consent anyway. Let me suggest to you, if that child was
9 your child, that statistic is 100 percent, and that is the
10 child that suffers.
11 You know, it may well be by requiring the parental
12 consent, by requiring that youngster to either go to a
13 judge or to go to her parents to have consent, this may be
14 the crisis that brings that family back together, this may
15 be parents who are so busy in their world that they don't
16 realize their child has these problems. They need to know
17 that. They need to have this confrontation. And in most
18 families, I would suggest to you, that there would be a
19 reconciliation of that family and a working out of those
21 You know, the right of choice for an adult woman is
22 something that's pretty much water over the dam. And I
23 don't really understand the adult woman fearing this as
24 being an intrusion into that right. I don't agree with
25 that right, never have, but it's there and that's morally
2 But, you know, there's -- Mr. Mills, Commissioner
3 Mills, you talk about government intervention. Clarence
4 Thomas, I guess, talks a lot about the natural law.
5 Government intervened when it said TW could have an
6 abortion, that was the first government intervention,
7 because the natural law says that that parent has the
8 right to make those decisions for that child. All we are
9 trying to do is lessen that government intervention and
10 give those rights back to the parents where they naturally
12 Commissioner Freiden, you use the word "adoption"
13 like it is a bad word. Let me tell you from the practice
14 of law, that is one of the most joyous things a lawyer
15 gets to do, is to have an adoption. And there are
16 thousands and thousands of families waiting right now,
17 good, solid families who would give good homes to these
19 When I first started practicing in the small town of
20 Claremont, I would get six or seven of these unwanted
21 pregnancies a year where I would come in and help place
22 the children. And, by the way, I do it without a fee. I
23 think it is a great thing, it is great for the kids, it is
24 great for the parents who receive them.
25 Now, I think I had one this last year, and before
1 that, it's been years since I have had one because they
2 are all going down to the clinic and disposing of them,
3 and those families aren't getting those children and those
4 children aren't getting life.
5 Is it a constitutional issue, Commissioner Mills, it
6 certainly is because it was the Constitution upon which
7 the good Justice relied to say that TW could have the
8 abortion. So, definitely it is a constitutional issue.
9 We are not passing that, we are just saying to the people
10 of Florida, the same things you are going to hear a
11 thousand times between now and May, let the people decide.
12 This is an issue whereby the Constitution has been
13 used as a groundwork to take away a natural right of
14 parents, let's put the right in there, if the Legislature
15 so chooses, to reverse that and give that natural right
16 back to the parents. Thank you.
17 CHAIRMAN DOUGLASS: Commissioner Riley.
18 Well, she has a question of Commissioner Langley.
19 COMMISSIONER EVANS: Commissioner Langley, if a
20 13-year old child has been impregnated by her stepfather,
21 or by an adult male, is there any provision in the law
22 that requires the abortion provider to turn that
23 information in to the authorities?
24 COMMISSIONER LANGLEY: I don't know. I know that if
25 school authorities have that knowledge they have to turn
1 it in. I do not know whether or not the abortion clinics
2 are so regulated.
3 COMMISSIONER EVANS: So if someone does not turn in
4 this situation, then this is a protection against child
5 abusers and statutory rape?
6 COMMISSIONER LANGLEY: I would think so. And again,
7 by requiring parental consent, if the child sought
8 judicial intervention, which can be constitutionally met,
9 then the facts would come out in front of the Judge and
10 charges against that abusive parent would follow.
11 COMMISSIONER EVANS: Thank you.
12 CHAIRMAN DOUGLASS: Now Commissioner Riley.
13 COMMISSIONER RILEY: Commissioners, this is not a
14 problem in a perfect family because in a perfect family
15 there are no pregnancies except those within that family.
16 However, we all know that there are no prefect families,
17 and that it doesn't matter how many bedrooms your house
18 has and how many square feet it has, unwanted pregnancies
19 happen everywhere. And in a perfect family, no matter
20 where that pregnancy happens, this is not an issue because
21 in a perfect family, there is communication. And in a
22 perfect family, the child can go to her parents and say, I
23 have got a problem and I need your help.
24 And as Commissioner Freidin said, in children under
25 16, 90 percent of those girls do that. As you get into
1 the 16 and 17-year olds, it is up to 80 percent do that.
2 I fail to see how putting roadblocks in the way of a young
3 girl who does not come from a family that can communicate,
4 who does not come from a family that she has no fear that
5 telling her parents about a pregnancy is not going to
6 result in harm to her. I don't understand how putting
7 those roadblocks in the way of that young girl is going to
8 make communication in that family any better.
9 Commissioner Langley talks about adoption. Adoption
10 is a joyful, wonderful thing. I have a nephew who is
11 adopted, I know children who are adopted. But it is
12 joyful for the receiving end. It is not a joyful
13 experience for the child that has to bear that baby; that
14 is not where the joy is. I have read letters from young
15 girls, letters were sent to me by a friend of mine who is
16 executive director of a women's health clinic. And they
17 were written by the girls that we are talking about.
18 And the young girls say, Thank God I had this option.
19 I wanted to tell my parents, I could not tell my parents.
20 My father was not there, my mother was not there, I was
21 fearful that if anything -- if I were to tell my parents,
22 they would kill me. Now that could mean physical abuse
23 and really hurting that child, or it could mean that they
24 would have been so incredibly disappointed that they would
25 be hurt. But the child's perception was that they simply
1 could not do that, and they were very glad that they had
2 an option.
3 There is nobody in this room that is not concerned
4 with the family. There is nobody in this room that
5 doesn't believe that if your daughter, and I have five of
6 them, if your daughter is pregnant they are going to come
7 to you because you have that relationship with your
8 daughter, you have a more perfect family than the other
9 people that would be affected by this. And those that are
10 affected by this are not going to be helped by this
11 proposal, they are not going to be helped by putting in
12 the Constitution a requirement that says the government is
13 going to tell you who you have to involve in your
15 I'm telling you, this is not the place in this
16 Constitution to put communications in a better light and
17 make better communications in the family. That is not
18 what this does, this makes it harder. And I can't think
19 of more pressure on a family, if you have already got a
20 precarious situation, than for a young girl to come home
21 and say, I'm pregnant. That's not going to help anything,
22 that's going to make it worse. And I think we do, the
23 children and the citizens of this state, a disservice if
24 we were to put this on the ballot, and I strongly suggest
25 that we do not.
1 CHAIRMAN DOUGLASS: Commissioner Evans.
2 COMMISSIONER EVANS: Another question. Commissioner
4 CHAIRMAN DOUGLASS: She yields for a question.
5 COMMISSIONER EVANS: Would you believe that a mother
6 giving up her child for adoption can indeed be a great
8 COMMISSIONER RILEY: Oh, I'm sure that's true.
9 COMMISSIONER EVANS: Okay.
10 COMMISSIONER RILEY: But I can almost guarantee you
11 that the majority of the young women that give their
12 babies up for adoption are not joyful about that
14 COMMISSIONER EVANS: Okay. Let me give you two
15 specific cases that I know of. One happened two years ago
16 almost, this April, where the young girl in the hospital
17 room handed her little baby girl over to the adoptive
18 parents, good friends of mine, and with tears in her eyes
19 she said, Please take good care of my little girl. She
20 was so happy that she had given life to her child and that
21 she was giving her child a happy life.
22 The second example is my own situation. The birth
23 mother of my daughter Susan said, I love this child so
24 much, the least that I can do for her is to give her a
25 chance in life.
1 I submit that adoption is joyful on both sides. I
2 don't know how much joy a young mother takes in knowing
3 and living with that knowledge that she herself has killed
4 that life, how much trauma she goes through. But I know
5 from personal experience, and I deal with a lot of
6 adoptive families. I must admit, I don't know about the
7 families that have to live with abortion, necessarily,
8 because they choose to live with that terror in silence
9 for many years, but I do know -- and I would like you to
10 believe that.
11 COMMISSIONER RILEY: I do believe that. And the
12 beauty of that is that those women who had those children
13 were able to have those children, were able to give those
14 babies up for adoption, and at the beginning of their
15 pregnancy they had a choice. That's what's beautiful
16 about that.
17 CHAIRMAN DOUGLASS: All right. Commissioner Connor,
18 do you want to close? Excuse me, Commissioner West wants
19 to be recognized.
20 COMMISSIONER WEST: Thank you, Mr. Chairman. You
21 know, 7 months ago I was sworn in as a Commissioner and
22 you got -- you know, especially this past week I have
23 looked over bills, I am kind of a layman at this. And I
24 see a lot of expertise in so many different areas. Areas
25 that have to do with the state attorneys, areas that have
1 to do with the judiciary, water management districts,
2 things that I'm just, you know, I'm just an average,
3 everyday guy. And I'll tell you, what I had to do,
4 Commissioner Anthony, is I had to go back and look at the
5 bill and rely very heavily on, you know, what the staff
6 said would be the effects of the changes.
7 There is not a lot of this that I really have a lot
8 of expert, you know, feelings about. I'm going to tell
9 you something about a dad. See, I disagree in an area
10 with some of the comments that were made because, to me,
11 this is not an issue of abortion. What this is is the
12 issue of a parent's right, you know. And the State
13 Supreme Court has ruled that a minor child can have a
14 medical procedure without parental consent.
15 What if you had a minor son -- let's forget about
16 abortion, let's talk about a minor son. You have a son
17 that's maybe 12 or 13-years old and he is sexually active.
18 And his buddy at school says, Hey, go get a vasectomy, you
19 get a vasectomy you don't have to worry about getting
20 anybody pregnant. In real life, I can picture that
21 happening. Does that young man get to go and get this
22 vasectomy without parental consent?
23 The United States Supreme Court has set out the
24 guidelines. It is not as if what we are trying to do is
25 real radical or anything. The U.S. Supreme Court has
1 said, If these two provisions -- if I'm correct,
2 Commissioner Connor -- if these two provisions are in --
3 or these two things are provided for then it would pass
4 constitutional muster. And this is with the present day
5 United States Supreme Court.
6 I'm going to tell you something. I don't know
7 exactly how this body is going to vote, but I'll guarantee
8 you how it will fare in the marketplace. Because I'm
9 telling you, for 15 years I have worked -- I have worked
10 with children in children's ministries, outreach
11 ministries, that cover a wide gamut of children. These
12 aren't just children from functional families, the
13 majority are children from dysfunctional families.
14 And I'll tell you what, the issue of parental
15 consent, and that to me is what this issue is. The issue
16 is not abortion. It affects abortion, it affects many
17 other medical procedures, but basically what it involves
18 is parental consent.
19 If you vote today -- really, I'm really glad about
20 the debate because you have made it very clear, there are
21 two schools of thought here. There is one school of
22 thought that says that kids are the responsibility of the
23 parent and there is another school of thought that says
24 that they are the responsibility of the State.
25 And I'll tell you what, I want to apologize to all of
1 the parents that I have worked with over the past 15 years
2 for being unable to be eloquent like many of you guys are,
3 but I'll tell you what, today when you place your vote,
4 you are placing it for parental consent. You are not
5 placing it for abortion, against abortion. Basically what
6 you are saying is that, you know, Paul West, and the rest
7 of you, you have -- you are the ones that we are going to
8 charge to be responsible for the upkeep of your kids and
9 you have the right to discuss any medical procedure that
10 has such severe consequences.
11 Now I urge you, I urge you to vote on the side of the
12 parents and not on the side of the State.
13 CHAIRMAN DOUGLASS: Commissioner Mathis. I don't
14 want to cut debate off, but if we could hold our remarks.
15 And that was a very appropriate argument. If we could
16 hold our remarks to two, three, four minutes it would be
17 helpful. Commissioner Mathis.
18 COMMISSIONER MATHIS: And, Mr. Chairman, I have only
19 looked at if there was a new point to be made in the
20 debate to make that.
21 CHAIRMAN DOUGLASS: I understand that.
22 COMMISSIONER MATHIS: And the point that I want to
23 make is who decides what's appropriate for a family and
24 what's not? Right now, we have a counselor in a school
25 who can decide what's a perfect family and what's not and
1 facilitate a young girl going to get an abortion,
2 subverting parental responsibility and authority. But let
3 her have a complication from that procedure and it would
4 be the parents' responsibility to handle that procedure,
5 to take care of that young girl, physically, to provide
6 her medical attention, physically. It is the parents'
7 responsibility then.
8 And I'm saying government has intervened all too
9 often. I have a daughter, and I don't want a counselor
10 deciding because my daughter is scared that I might punish
11 her, that she somehow can take her off and do -- and
12 facilitate getting her an abortion and bringing her back
13 to me to deal with the trauma, to deal with the
14 psychological effects, to deal with the long-term
15 consequences of that issue.
16 I am a parent and I think we ought to give the
17 parents a foundation upon which to deal with individual
18 issues. Not just parents, it is not just parents that are
19 affected when a young girl is pregnant, grandparents,
20 aunts and uncles, are all affected. And when you take
21 that out, when you take out that information flow from the
22 family to be able to deal with the true issues of the
23 minor children, you are allowing government to intervene
24 when government will not be able -- will not continue to
25 deal with all of the issues, but you are allowing them to
1 intervene and jump out. And I'm saying a parent should be
2 there whether the young girl is pregnant, whether she gets
3 an abortion, whether she has complications for the medical
5 Let's let them and allow them to be there when
6 decisions -- the decisions are made in the forefront. And
7 so I would vote, and I would urge you to vote in favor of
8 this. The other point I want to make again is we are not
9 voting up or down on an absolute. We are saying, this
10 issue is important; let the people of Florida decide if
11 parents should have constitutional authority to consent to
12 medical treatment for their children.
13 CHAIRMAN DOUGLASS: Commissioner Zack. And you are
14 next, Commissioner Rundle.
15 COMMISSIONER ZACK: If Commissioner Freidin will
16 yield to a question.
17 COMMISSIONER FREIDIN: Of course.
18 COMMISSIONER ZACK: What is the experience in states
19 that have this legislation when minors went to court? Do
20 you have any statistics as to tell us what the courts did
21 in those cases?
22 COMMISSIONER FREIDIN: I have information from
23 Massachusetts and Minnesota, that in 12,000 court
24 petitions, 21 were denied and 10 of the denials were
25 overturned on appeal.
1 COMMISSIONER ZACK: In other words, only 21 times did
2 it come to court?
3 COMMISSIONER FREIDIN: No, 12,000 petitions.
4 COMMISSIONER ZACK: 12,000 and only 21 had been
6 COMMISSIONER FREIDIN: That's the information I have.
7 COMMISSIONER ZACK: So 10 total?
8 COMMISSIONER FREIDIN: More or less.
9 COMMISSIONER ZACK: And of those 10 cases, what
10 happened in those cases is that the child wanted an
11 abortion and the parents said, You can't have an abortion,
12 and the child was in fact forced to carry?
13 COMMISSIONER FREIDIN: No, I don't think so, because
14 I don't know the details of those 10 cases. But what I
15 understand to be the case is the parents aren't involved
16 in these judicial interventions.
17 See, this doesn't -- that's the thing that's
18 important about this is that the Supreme Court of the
19 United States has held that if you are going to have one
20 of these laws, you have got to allow a judicial bypass
21 bypassing the parent. That's why it is called judicial
23 So what you are doing here is you are taking whatever
24 percentage of girls don't want to talk to their parents
25 and you are providing them a means where they don't have
1 to talk to their parents. And this really isn't about
2 what I said earlier, it is not about fostering
3 communication with families.
4 COMMISSIONER ZACK: I'm trying to understand what
5 happened to those 10 cases. In effect, the Court told a
6 child that went to court without notifying the family
7 that -- and the Court said, You cannot have an abortion,
8 you have to carry this child. And in those cases I don't
9 know if there was any follow-up as to whether the child
10 ultimately had conversations with the parents and decided
11 what to do that was different than the court decision, or
12 is there any information whatsoever regarding what
13 actually happened in those cases?
14 COMMISSIONER FREIDIN: I don't have any information.
15 COMMISSIONER ZACK: But if we pass this, a child
16 would be required to carry, a minor would be required to
17 give birth even if the minor, a 17-year old, chose that
18 they did not want to? If you have a parental consent law
19 to abortion, that's what I'm trying to be very clear
20 about -- and that would apply to everyone under 18?
21 COMMISSIONER FREIDIN: Yes.
22 COMMISSIONER ZACK: And you have a 17-year-old who
23 gets pregnant and goes to -- and wants an abortion and the
24 parents say, No, you can't have one, that 17-year-old has
25 to have the child, if we pass this; is that correct?
1 COMMISSIONER FREIDIN: That is correct.
2 COMMISSIONER ZACK: That's what I'm trying to
3 understand. I hear no and I hear yes. I would like to
4 understand this before I vote on a very important
6 CHAIRMAN DOUGLASS: Commissioner Zack has the floor
7 and he yielded to Commissioner Freidin. Do you want to
8 speak, be recognized? Commissioner Kogan.
9 COMMISSIONER KOGAN: Let me just answer your question
10 as to what happened under the old Florida law that was
11 declared unconstitutional. It did not require the girl to
12 go to the parent at all and said that if the girl was
13 afraid to go to the parent and didn't want the parent to
14 know about this, that she could go directly to the Court
15 and then the Court could give the permission or deny the
16 permission. So the parents were not involved at all.
17 That's the way the old law worked.
18 COMMISSIONER ZACK: Are there states that have
19 parental notification as opposed to parental consent?
20 COMMISSIONER FREIDIN: Yes.
21 COMMISSIONER ZACK: How many states have parental
23 COMMISSIONER FREIDIN: I don't know the answer to
24 that, but it is a handful.
25 COMMISSIONER ZACK: Mr. Chairman, I'd like to speak
1 to this issue.
2 CHAIRMAN DOUGLASS: You have the floor.
3 COMMISSIONER ZACK: Frankly, I was not going to say
4 anything. I know that -- but when Mr. West made his
5 comments, I really feel necessary to rise to state my
6 position as it relates to this issue.
7 I know a lot of people didn't sleep for various
8 reasons last night but I will tell you that I didn't sleep
9 myself very much because of this particular issue. I
10 personally find this to be the most difficult issue that I
11 have had to deal with during the course of what have been
12 many, many very difficult questions, important questions
13 for our state.
14 And I have two children, now adult children, but I
15 know from my experience, and I think all parents
16 understand that it is not easy to raise children. And
17 sometimes communication with children leaves a lot to be
18 desired, no matter how hard a parent tries. But I do
19 believe parents have to earn parental rights everyday that
20 they are a parent, whether they have minor children or
21 adult children.
22 I also strongly believe in the Ten Commandment's
23 admonition to honor your parents, and I believe in
24 parental rights. And for that reason, my vote on this
25 issue has been of great concern to me.
1 I have listened and I have walked in today and I have
2 had a number of people ask me what I was going to do. And
3 I said I didn't know. And as I walked in here today I did
4 not know. The one thing that I have been incredibly
5 impressed by during my service on this committee is the
6 quality and genuineness of the debate.
7 In many organizations, that we all have been part of,
8 people basically prepare their cross examination and come
9 into a room knowing and know precisely how they are going
10 to vote. But here I do believe that one person's opinion,
11 one person's comments can actually change the course of
12 this debate because I believe we come in here without an
13 agenda, and trying to do what is best for the people of
14 this state as we understand it.
15 In light of that background, I do not agree,
16 Commissioner West, with your statement that there are two
17 kinds of people, those who vote for this believe the State
18 should be responsible for children, rather than those who
19 oppose it and those who vote for it believe that the
20 parents are responsible. I believe that the parents are
21 always responsible for their children.
22 And, as I said, I believe that the parental rights
23 that we have and that we enjoy we have to earn, the State
24 doesn't give that to us. And I don't believe anything we
25 do here today is going to give us the respect of our
1 children. What I do believe is we have to educate our
2 children and communicate with our children and respect our
3 children and come to a mutual decision that the State does
4 not interfere with, and that this matter should not be in
5 the Constitution of the State of Florida, it should be in
6 our homes and should remain in our homes.
7 CHAIRMAN DOUGLASS: Commissioner Rundle had asked to
8 be recognized before you, Commissioner Langley.
9 COMMISSIONER LANGLEY: I have a question of
10 Commissioner Freidin.
11 CHAIRMAN DOUGLASS: Commissioner Rundle.
12 COMMISSIONER RUNDLE: Commissioners, I want to
13 address a population with you that I am concerned about
14 and we haven't really discussed this morning, and that has
15 to do with a group of young girls that are really somewhat
16 disenfranchised from families, from communities, who don't
17 feel empowered, who are abused in their homes.
18 Now I am sure that I felt like all of you when you
19 listened to those parents, and I'm a parent and surrounded
20 by teenagers. I think we are all very blessed and I think
21 our children are very blessed. And I would like to think
22 that my children would come to me when they have to make
23 very serious decisions like this one that we are talking
24 about, and I do believe they would.
25 But my concern deals with the population that I see
1 as a state attorney. So, trying for a moment not to
2 relate to our own personal lives, putting aside what we
3 are concerned about with our own children. I know that's
4 very hard to do because we immediately think about our own
5 personal relationships. I'd like for you to just think
6 about the girls that we see that come in and out of our
7 office who live nightmares; who have stepfathers, fathers,
8 grandfathers, who rape and abuse them regularly.
9 Sometimes this results in a pregnancy.
10 These women, these girls, don't always go to the
11 police, they stay there for a long time. Not all, but
12 many. They don't feel they can go anywhere. They are
13 afraid to go to their mothers for a whole variety of
14 reasons. Sometimes they come into the system and we see
15 them because a friend, an aunt, a teacher, someone has
16 spotted it, reported it, and it does trigger a system, but
17 it usually is not the girls coming in on their own.
18 So what I ask you to think about is do you really in
19 your heart of hearts think that these girls are going to
20 go into the downtown courthouse on Flagler Street where
21 there are thousands of people -- most people who are
22 empowered can't get to the courthouse, don't feel they
23 have access -- they are going to file something with the
24 clerk's office and then go ask a judge for some kind of
25 bypass? They are not going to do it. Not the girls that
1 I see coming and going. These girls need a support
2 system, and this, my concern is, that you are going to
3 drive these girls into illegal activities.
4 They are either going to lie about their ages --
5 those that have money are going to leave, they are going
6 to go somewhere else where they don't need parental
7 consent, where they don't need to go to mom, whose
8 boyfriend or new husband -- and tell her what's happened
9 to her and face the embarrassment, or maybe be kicked out
10 of her house or may be beaten up by this guy.
11 She is going to go find some other way to do it. If
12 they have money, they will leave the state like they did
13 in the '70s. What about the girls that don't have any
14 money? Where are they going to go? They are going to go
15 to the street, they are going to find somebody who is
16 illegally going to perform this procedure. They have no
17 other option. And that's the population I just want you
18 to think about for a moment as you vote on this.
19 Try to put aside your own daughters and I know a lot
20 of you have daughters, but just think about this other
21 population of young girls that maybe none of you ever see
22 and how this will impact their lives and their children's
24 CHAIRMAN DOUGLASS: Commissioner Langley.
25 COMMISSIONER LANGLEY: If Commissioner Freidin would
1 rise to answer a question.
2 CHAIRMAN DOUGLASS: Commissioner Freidin.
3 COMMISSIONER LANGLEY: On your statistics from the
4 State of Massachusetts I think you said there were 12,000
5 appeals or requests for judicial intervention and only 12
6 of those were turned down, and 10 of those 12 were
7 overturned; is that not correct?
8 COMMISSIONER FREIDIN: That's not correct. It is
9 kind of correct. It was Massachusetts and Minnesota, it
10 was in the course of a very long period of time, I think
11 it was over a decade. And of the 12,000, 21 were denied
12 and 10 were overturned, 10 of the denials were overturned
13 on appeal.
14 COMMISSIONER LANGLEY: So there were only 11 out of
15 12,000 where the child actually was not allowed to get the
16 abortion with this procedure in place?
17 COMMISSIONER FREIDIN: Correct.
18 COMMISSIONER LANGLEY: So all these horribles that
19 were paraded by Commissioner Rundle and yourself were only
20 to that 11,000, and you have no statistics on how many
21 families got together and how many abortions were dealt
22 with within the family that never reached those
24 COMMISSIONER FREIDIN: That is not correct. First of
25 all, the cases that Commissioner Rundle was talking about
1 are cases of young girls who are, as she said,
2 disenfranchised, who do not feel empowered, who do not
3 understand the system, who do not know how to work their
4 way through the system and would not feel comfortable
5 going to the courthouse. Who would not feel -- they can't
6 trust anybody in their lives because they have been
7 brought up in abusive, untrustworthy homes. They are
8 often abandoned, and if they are not abandoned they are
9 treated poorly. They aren't going to go trust some judge.
10 So that's not the group we are talking about here.
11 CHAIRMAN DOUGLASS: Commissioner Mathis, you have
12 been recognized once. Do you rise for a question? Who is
13 it addressed to?
14 COMMISSIONER MATHIS: Would Commissioner Rundle yield
15 for a question?
16 CHAIRMAN DOUGLASS: Commissioner Rundle.
17 COMMISSIONER MATHIS: Does allowing these young girls
18 to get an abortion without parents' knowledge address the
19 issue of their abuse?
20 COMMISSIONER RUNDLE: I think that what happens, what
21 you have to look at is the continuing victimization of
22 this person. It obviously doesn't obviate what's happened
23 to her in terms of the abuse, but for many of these girls
24 it would be further abuse, it would be aggravating and
25 continuing and invigorating their victimization by
1 requiring them to go back to the source of this abuse.
2 COMMISSIONER MATHIS: The judicial bypass for those
3 young girls who feel like, that she couldn't get parental
4 consent or are abused, or are in these just horrendous
5 situations, having them go before a judge and speak to a
6 judge on that, wouldn't that get them help, not only for
7 one medical procedure, but for the underlying cause, the
8 underlying horrendous issues that they are dealing with?
9 COMMISSIONER RUNDLE: No doubt, and that's what you
10 and I would hope and all of us would hope that. We would
11 hope that these girls would have available to them a whole
12 host of support services, physical, emotional, financial,
13 all of those services. But the question is, how does she
14 get to that point? And how do we encourage her to do
15 that? We would encourage her to do that, but the reality
16 is many will not.
17 COMMISSIONER MATHIS: The other issue about the
18 disenfranchised. Disenfranchised young ladies who are
19 poor and cannot afford abortion are still forced to deal
20 with the pregnancy full term, correct? There are no state
21 funds that allow for those of lower economic means to get
23 COMMISSIONER RUNDLE: I'm not as familiar with that
24 and what the availability is and what the costs are, but
25 my sense of that would be that there are a number of
1 clinics that would access these women and where they would
2 feel comfortable going to on a private basis.
3 COMMISSIONER MATHIS: My point here is that this
4 pregnancy is not the full-blown issue with these young
5 ladies that you spoke of. There are more -- there are
6 other issues that if their family is not dealing with,
7 then a judicial bypass would allow the government to
8 intervene even further. But if the family is positioned
9 to deal with this, with the information of having to get a
10 consent, in fact that might encourage a healing and would
11 provide support that a medical procedure does not take
12 into issue.
13 COMMISSIONER RUNDLE: The problem with that thinking
14 is that there is a big if in there. And you know, I will
15 share with you that in our office we have one unit that's
16 called, we call it the sexual battery unit, which is the
17 legal phrase for rape cases. And that unit does nothing
18 but rapes against young people. Our adult, most of our
19 adult rape cases, are handled by other divisions. And I
20 would dare to say that about 80 percent of those rape
21 cases on young people are incest cases.
22 And we see these girls all the time. Most of them
23 are girls. And they will tell you, I didn't know where to
24 go, I didn't want to go talk to anybody, and it is just by
25 happenstance, by the blessings, that we got these girls.
1 We don't even know the number of girls we don't get. I do
2 not believe they would go to a court on their own.
3 (Commissioner Thompson assumes the chair.)
4 COMMISSIONER THOMPSON: Okay. For what purpose,
5 Commissioner Mills?
6 COMMISSIONER MILLS: Will Commissioner Rundle yield
7 for a question?
8 COMMISSIONER THOMPSON: She yields.
9 COMMISSIONER MILLS: The question is, in your
10 judgment you said you didn't believe the girls that you
11 encountered would go to court?
12 COMMISSIONER RUNDLE: I do not believe that they
14 COMMISSIONER MILLS: And I guess that's what we said,
15 there are 12,000 cases of courts making this decision
16 rather than parents, at least -- but your, what is your
17 judgment as to, if they don't have a legal option; do you
18 really believe that that 90 percent of the people you are
19 talking about will seek the illegal option since they
20 can't afford it and they won't go to court?
21 COMMISSIONER RUNDLE: I really do because I can't see
22 any other way out for them. I mean, I really believe that
23 they will not go to a circuit court in their own downtown.
24 Many of these girls can barely survive day-to-day with
25 what they are already handling.
1 Secondly, where else can they go? They are going to
2 have to either go somewhere where it is legal and not
3 required, and if they don't have the money to do that,
4 what other options are there? I mean, in my mind I come
5 to this conclusion simply because I can't think of any
6 other options for them.
7 COMMISSIONER THOMPSON: Commissioner Evans, for what
9 COMMISSIONER EVANS: Question for Commissioner
11 COMMISSIONER THOMPSON: Will you yield to a question
12 from Commissioner Evans? She yields.
13 COMMISSIONER EVANS: Commissioner Rundle, what
14 percentage of cases that you prosecute where you have
15 incest on a minor child and there is absolutely no
16 physical evidence of that incest, it's a matter of
17 believing somebody's word over somebody else's words, what
18 percentage of those cases do you win, do you get a
20 COMMISSIONER RUNDLE: I don't know, Commissioner
21 Evans, I have never really looked at it that way. I know
22 that clearly there are a lot of cases where we do try to
23 work within the family if it is workable. Oftentimes it
24 is not.
25 COMMISSIONER EVANS: Would you believe that my
1 husband has sat on the criminal bench and that the
2 percentage of cases that have come before him when there
3 is no physical evidence, that the percentage of conviction
4 is zero percent?
5 COMMISSIONER RUNDLE: You are right, I would find
6 zero hard to believe, but I would believe --
7 COMMISSIONER EVANS: Would you believe that what I am
8 saying is true in this case?
9 COMMISSIONER RUNDLE: Oh, I absolutely -- there is no
10 doubt in my mind that you believe that and that may be
11 occurring in your jurisdiction, but it is true --
12 COMMISSIONER EVANS: But the point is --
13 COMMISSIONER RUNDLE: Wait, you asked me a question,
14 if I may. It is true that the successful prosecution,
15 whatever that really means, is lower in cases of that
16 nature in almost all kinds of what we call one-on-one
17 cases; they are extremely difficult. And oftentimes what
18 you are really seeking is some kind of sexual offender
19 treatment program for the offending party, and if you can
20 resolve the case in that way, I consider that a success.
21 I don't know what your definition of success may be.
22 COMMISSIONER EVANS: We are talking about the
23 defendant goes to trial and he is found not guilty by a
24 jury verdict.
25 COMMISSIONER RUNDLE: And your point is, I'm sorry?
1 COMMISSIONER EVANS: The point is, wouldn't your case
2 against child abusers be much more powerful if you had
3 physical evidence, and would not a live baby provide a
4 basis for physical evidence? We are talking about trying
5 to get rid of child abusers.
6 COMMISSIONER RUNDLE: First of all, you are assuming
7 that we have them in the system.
8 COMMISSIONER EVANS: That we have child abusers in
9 the system?
10 COMMISSIONER RUNDLE: No, we are assuming that we
11 have been able to intervene in an abusive situation and we
12 now have a case against the abuser. One of the toughest
13 decisions that prosecutors have to make is to put a child
14 through greater victimization through the process. And I
15 will share with you when we interview lawyers for the job,
16 we actually do a hypothetical, What if you knew you had a
17 person who is abusing a child but everybody tells you if
18 you use that child as a witness, you will further the
20 COMMISSIONER EVANS: I'm not talking about --
21 COMMISSIONER RUNDLE: But I am.
22 COMMISSIONER EVANS: -- talking about DNA testing.
23 COMMISSIONER RUNDLE: But I think that -- your
24 thought process, to force her -- to produce a child for
25 evidence in a criminal trial is abusive of itself. It is
1 further victimization. And so everyday we confront that
2 issue about minimizing her victimization. And so I think
3 my answer to you would be I think that would be furthering
5 COMMISSIONER EVANS: Okay. So we are talking about a
6 situation where the child, the minor child, has -- who is
7 pregnant or who has been pregnant and has delivered a live
8 baby, we are talking about a minor child who has chosen to
9 come forward, who has decided to go to a trial, we are
10 talking about a trial situation, we are not talking about
11 any kind of putting a baby on a witness stand, I'm just
12 talking about DNA testing that we do to determine
13 paternity. And you view paternity testing as being
14 traumatically abusive of the child?
15 COMMISSIONER RUNDLE: When it exists we do use it.
16 In fact, we have cases pending now. One was recently in
17 the news, and of course we are going to utilize whatever
18 evidence is available to us, but again, our goal is to
19 continuously reduce the victimization of this victim.
20 Now you also say she has come forward. It isn't
21 always that way, you know, it isn't that she necessarily
22 came -- went to the police and triggered the process.
23 Oftentimes it happens incidental and she becomes almost a
24 forced witness, if you like, in a case.
25 COMMISSIONER EVANS: The basic question then is, in
1 trial, would you prefer to have DNA evidence or not?
2 COMMISSIONER RUNDLE: I can have DNA evidence
3 without --
4 CHAIRMAN DOUGLASS: I am going to rule this
5 discussion is out of order. We are not talking about DNA
6 evidence. Are you rising to a question, Commissioner
7 Smith, to Commissioner Rundle who still has the floor?
8 COMMISSIONER SMITH: I'm rising to speak when you
9 recognize me.
10 CHAIRMAN DOUGLASS: You are recognized, she is
12 COMMISSIONER SMITH: Thank you, Mr. Chair. I had not
13 intended to speak on this issue, I'm going to watch the
14 clock to make sure I stay under two minutes. The first
15 issue I want to bring to the attention of the body, which
16 you probably know, but it needs to be in the record, is
17 that one of the greatest problems that we have in the
18 African-American community are little black babies who are
19 waiting to be adopted. I served as president of the
20 National Bar Association and one of my number one
21 initiatives was to coordinate with the associations of
22 social workers to organize an adoption program, and I'm
23 proud to tell you that over a three-year period we were
24 able to secure about 40 -- I'm sorry, 14,000 new parents
25 for adoption.
1 So I don't know what's happening in other parts of
2 America and other parts of Florida, but I can tell you in
3 terms of just handing over a little black baby to be
4 adopted, that's not happening. There are not people
5 standing in the delivery room, fortunately like your
6 situations, saying, give me your little baby because I
7 want to give it a home. There is a tremendous backlog,
8 number one.
9 Number two, the number one fundamental principle of
10 natural law is that natural persons have control of their
11 natural bodies, and so natural law does not support this
13 Thirdly, this is not a debate over good and evil and
14 neither side should take the position that this is so
15 clear cut that anybody who disagrees with my position has
16 got to be off the wall. This is one of the toughest
17 decisions that we have to make.
18 I represent the people that Kathy Rundle's office
19 sees, the least, the last, the left out, the looked over,
20 the down and out, people who are getting beat and raped
21 and just the most unspeakable kinds of things we can think
22 of. And if anybody really believes that these people even
23 know about, would even know about bypass or will subject
24 themselves to that kind of scrutiny, honestly, you are not
25 living in the real world.
1 The position that the proponents are trying to
2 advance is a position that we all should understand and
3 believe in. The problem is that, one, I don't want the
4 courts involved in this decision. And number two,
5 Commissioner Langley, I was so happy you asked the
6 question of Commissioner Freidin, and your question was
7 21,000 times, young kids went and asked for abortions and
8 only 12 of them they said no. I don't want 21,000 judges
9 making these decisions, I want what you want, I want the
10 families to do it. And the reason why I can't support
11 this is because I don't want to change the decision over
12 to some change like Judge Locket. That's why I vote no.
13 CHAIRMAN DOUGLASS: Do you rise for a question?
14 COMMISSIONER CONNOR: Yes, Mr. Chair.
15 CHAIRMAN DOUGLASS: Commissioner Smith, do you yield?
16 COMMISSIONER SMITH: Of course.
17 COMMISSIONER CONNOR: Mr. Smith, I ask you this
18 question as an adoptive parent myself and member of the
19 governor's partnership for abortion and one who does pro
20 bono adoptions and has encouraged adoption as a loving
21 alternative to abortion. You talk about the numerous
22 black children in this state who are waiting for adoption
23 and who at least have a chance for the future because of
24 the hope of life.
25 Do you intend to advocate that they would have been
1 better off to be extinguished in the mother's womb and
2 never given this chance?
3 COMMISSIONER SMITH: Absolutely not. First of all,
4 let me commend you as an adoptive parent. I have two
5 daughters. My point was, I just wanted to make sure the
6 record was clear that although we have wonderful
7 situations like Commissioner Evans expressed with a
8 loving, adoptive parent in the room taking the child as
9 soon as the child is born to provide that kind of loving
10 environment, and we have the Connors family out there
11 taking on these children, I want the record to reflect
12 that there are hundreds, not tens, hundreds of thousands
13 of little children who are not being adopted, yes, and we
14 should step forward.
15 All I am saying is, this proposal is not going to
16 help those little children get adopted. I am looking for
17 solutions, and I see a solution -- a situation where
18 parents, with parental consent we are going to have
19 parents in situations where they are preventing, even as
20 Commissioner Mills says, children from getting adopted
21 because if a child needs a medical procedure and the
22 parent doesn't want them to have a child because it is
23 embarrassing to the parents' status in life, the parents
24 say, I am not going to approve of that medical procedure
25 now, you have to have the abortion.
1 COMMISSIONER CONNOR: Brief follow-up question,
2 Mr. Chairman. You would agree then, would you not,
3 Commissioner Smith, that death ought not to be an
4 acceptable social solution to a compelling social problem?
5 COMMISSIONER SMITH: Absolutely.
6 COMMISSIONER CONNOR: Thank you.
7 COMMISSIONER SMITH: And if this proposal prevented
8 that I would be the first to support it. What I am
9 concerned about is reintroducing the coat hanger to the
10 death process.
11 CHAIRMAN DOUGLASS: All right. Commissioner Morsani.
12 COMMISSIONER MORSANI: I am ready to vote.
13 CHAIRMAN DOUGLASS: Oh, you are ready to vote. Is
14 everybody ready to vote? Commissioner Connor to close.
15 COMMISSIONER CONNOR: Thank you. Mr. Zack, as
16 sympathetic as I am to the difficulty you had sleeping
17 last night, I take heart by the fact that you were
18 grappling with this issue.
19 Ladies and gentlemen, I know that this is a difficult
20 issue and I take heart that each of you are, in your heart
21 of hearts and in your consciences wrestling with this
22 issue. I thank the Lord for it.
23 And I can tell you that for a long time in our
24 Legislature, legislators did not have to grapple with
25 these issues. You know why Mr. Mills indicated that he
1 had to rule on a point of order about whether or not that
2 parental consent bill was germane to a clinic regulations
3 bill? Because for years this kind of discussion and
4 debate was stifled by the committee process of the
5 Legislature, where these kinds of proposals were killed
6 year after year after year.
7 And so I commend this body on its wisdom in a
8 committee process that doesn't permit us to kill these
9 kinds of proposals. These are gut-wrenching issues. And
10 I am not comfortable in having necessarily to be the
11 person who puts it forward. But shouldn't we struggle
12 with these issues? Shouldn't we struggle with who makes
13 the choices in the case of a minor child?
14 Ladies and gentlemen, I would submit to you that
15 children do not make decisions in the same way that adults
16 do. There is a great body of sociological evidence that
17 affirms that. Children are much more short term in their
18 thinking. They tend to ratchet matters up to crisis
19 proportions much more readily than adults would do. They
20 tend to have unreasonable fears about the consequences of
21 what may happen in their lives. They tend to fail to take
22 into account long-term consequences that may flow out of
23 their decisions. They are much more amenable to a
24 short-term solution to cure an immediate problem without
25 taking into account the long-term effect.
1 Our Governor and our state Legislature have
2 recognized the incapacity of minors to make decisions for
3 themselves as it bears on their condition of health by
4 outlawing the -- by criminalizing the sell of tobacco
5 products to minor children. Now I ask you, which do you
6 think poses a greater risk to a minor child, smoking one
7 cigarette or undergoing one abortion?
8 And I don't recall about the hue and cry, about the
9 Legislature being paternalistic in making this decision
10 for underage minor girls and boys. I haven't, I didn't
11 hear Ms. Freidin or the Academy of Florida Trial Lawyers
12 or anybody else say, Oh, my goodness, you are encroaching
13 on a private decision to be made by a child. No, we have
14 made Joe Camel into the biggest bugaboo in the state.
15 Now ladies and gentlemen, I submit to you that we
16 need some kind of sense of proportionality. We have all
17 heard the adage and we know as lawyers that hard cases
18 make bad law. Over and over in this body and in the
19 Legislature we hear about the hard cases, the difficult
20 cases. I would submit, in response to Ms. Rundle's
21 observations, that a pattern of abuse, abortion, abuse,
22 abortion, abuse, abortion is not a cycle that we want to
23 perpetuate in the dysfunctional family where some
24 God-Awful father is abusing his child.
25 And indeed I would submit that at least the
1 opportunity to break that cycle, Commissioner Rundle,
2 arises when that child presents herself before a judge.
3 Certainly she has found her way to Flagler Street or
4 somewhere, wherever your office is, we know that she is in
5 the system, that's why you are dealing with her. At least
6 when and if that child comes before a judge, he may well
7 determine that it is in that child's best interest to be
8 permitted to make that abortion. There can be a follow-up
9 of a responsible person in authority to break that
11 I don't like to deal with polls. And I don't like to
12 deal with statistics. I don't think we ought to base our
13 decision based on polling data and necessarily the
14 majoritarian view. There are some issues that we put
15 beyond the ken of public debate. In days gone by there
16 would have been a period of time where Commissioner Smith
17 and Commissioner Mathis would not be on the floor of this
18 body, they would be in the balcony maybe, probably in a
19 segregated section, because this was the majoritarian
20 view. We should not act on the basis of just what the
21 majority wants.
22 There are some matters that ought to be beyond debate
23 and that we ought to decide on the basis of right and
24 wrong. But without a doubt, as H.T. Smith has indicated,
25 reasonable people can disagree and reasonable people do
1 disagree on controversial issues.
2 And we have a disagreement and what we are trying to
3 fashion though here is a Constitution, and we are trying
4 to do the right thing. And what I would submit to you is
5 that within our democratic processes, that the affect of
6 the TW decision has been to take this issue off the table
7 from the democratic process.
8 And so part of the reason this issue continues to
9 boil and we have such a fulmination of emotion and
10 frustration is because people are not able to come
11 together in the process and work out a balanced solution.
12 I don't know if Commissioner Freidin or Commissioner
13 Mills is aware or recalls, but the Florida Legislature
14 didn't require the consent of both parents in the statute
15 that was stricken, the Florida Statute required the
16 consent of a parent or a legal guardian.
17 And those are the kinds of issues that -- what if,
18 should both parents be required to consent or only one?
19 Well, you wrestle and grapple with those issues in the
20 democratic process if you have the opportunity, but
21 because of the Court's ruling in TW, you don't have the
22 opportunity, the Legislature does not have the
24 And what I am saying, ladies and gentlemen, very
25 simply is, let's give the democratic process an
1 opportunity to work. Let's give constitutional footing to
2 the Legislature so it can evaluate what kind of foundation
3 it wants to build, how it wants Florida's family to order
4 their lives. Do we want the big, fat nose of the Florida
5 Supreme Court interposed between parent and child and have
6 the Court say to the child, Go and do as you choose, you
7 be quiet, you don't have the right to know, you can't
8 participate? Oh, but by the way, honey, if you get in
9 trouble and there is a problem, Mr. Husband, Mr. Wife, Mom
10 and Dad, you are going to be responsible for it, you know.
11 My advice to them, send the bill to the Florida Supreme
13 Please, please, please let's restore the democratic
14 process. This proposal does not require parental consent.
15 This proposal simply gives the opportunity for the people
16 of Florida, through their representative elected
17 officials, to take this debate and carry it forward and
18 address the issue in the venue where it ought to be
19 addressed. I encourage you to provide that opportunity.
20 Thank you, Mr. Chairman.
21 CHAIRMAN DOUGLASS: All right. Further debate? If
22 not, unlock the machine and we will vote.
23 (Vote taken and recorded electronically.)
24 CHAIRMAN DOUGLASS: Has everybody voted? Announce
25 the vote.
1 READING CLERK: Twelve yeas and 18 nays,
2 Mr. Chairman.
3 CHAIRMAN DOUGLASS: It fails.
4 Okay. I have a couple of announcements before I
5 proceed with the next item. I've been informed that we
6 have been in touch, in the president's office, with
7 Commissioner Sundberg. And his family faces a very grave
8 situation that does not appear hopeful. He is going to
9 try to be here tomorrow for a while and then he has to go
10 to Orlando I think to make some arrangements there. And I
11 just want all of you to know that we all, and I'm sure we
12 all join in this, pray for his and his family's well-being
13 during this period of a very difficult time.
14 Also, a more pleasant and yet sad thing to tell you
15 is that Commissioner Sullivan, because of his duties, has
16 resigned from the Commission and is unable to continue to
17 serve. And when Commissioner Jennings arrives this
18 morning, I'm going to appoint a committee, and you can be
19 prepared. I haven't told you that you are on the
20 committee yet, all of you, to escort our new Commissioner
21 who has been with us all of the time anyway, she just
22 couldn't vote. But Commissioner Marshall, Commissioner
23 Ford-Coates and Commissioner Evans-Jones, when
24 Commissioner Jennings does arrive and can introduce our
25 new Commissioner, you can introduce her as well.
1 And our own Commissioner Kogan who is an expert at
2 issuing and giving an oath will administer the oath. And
3 you will be able to vote after that, Commissioner.
4 All right, we need to move on. Commissioner Langley,
5 for what purpose do you rise?
6 COMMISSIONER LANGLEY: Welfare of the House.
7 CHAIRMAN DOUGLASS: Good, we need some welfare.
8 COMMISSIONER LANGLEY: Commissioner Connor talked
9 about sending a bill to the Supreme Court. I would like
10 to know where to send my fax paper bill to Ms. Rundle for
11 Article 167 faxes. I came in Monday morning and I was
12 literally out of fax paper and it's like this (indicating)
13 and I just want to know who to send the bill to for those.
14 COMMISIONER RUNDLE: I suggest that you send the bill
15 to the NRA.
16 COMMISSIONER LANGLEY: They didn't generate the
19 CHAIRMAN DOUGLASS: Well, that's debatable and we are
20 not going to get into that one yet. I think you will get
21 your opportunity to explain your membership to the NRA,
22 Commissioner Langley, so we'll get there sooner or later.
23 All right. The next item on special order is
24 Proposal 23 by Commissioner Rundle. If I'm right, it is
25 in the yellow book. Would you read it, please?
1 COMMISIONER RUNDLE: Excuse me, Mr. Chairman, I think
2 I can save time. I believe this proposal was withdrawn on
3 an earlier date.
4 CHAIRMAN DOUGLASS: It was not noted. If you want to
5 withdraw it.
6 COMMISIONER RUNDLE: I do.
7 CHAIRMAN DOUGLASS: Okay.
8 COMMISIONER RUNDLE: Thank you.
9 CHAIRMAN DOUGLASS: Okay. Without objection,
10 Proposal 23 is withdrawn. The next one is Proposal 50 by
11 Commissioner Anthony. I thought you withdrew that, too.
12 COMMISSIONER ANTHONY: Yes, I did.
13 CHAIRMAN DOUGLASS: Isn't that correct? It's been
14 withdrawn. It doesn't reflect that, but if not, without
15 objection, it is withdrawn. We'll just withdraw it again.
16 The next provision, and the Chairman is not here, but
17 it's committee substitute for Proposal 69 by the committee
18 on executive and commission --
19 COMMISSIONER BARKDULL: Mr. Chairman, in the absence
20 of the Chairman, I think it would be appropriate that this
21 be temporarily passed until we reach the Cabinet matter
22 which is in the process of being prepared to arrive here.
23 CHAIRMAN DOUGLASS: Without objection, it'll be
24 temporary passed. The next proposal is 72 by Commissioner
25 Mills, disproved by the committee on general provisions.
1 Commissioner Barkdull.
2 COMMISSIONER BARKDULL: I would recommend the same
3 thing as to this until we get constitutional initiative
4 before us, which will also be heard by committee this
5 afternoon and we anticipate will be available tomorrow.
6 CHAIRMAN DOUGLASS: By unanimous consent, Proposal 72
7 is temporarily passed. Then we get to Proposal 118 by
8 Commissioner Corr, which was approved by the committee on
9 education. Commissioner Corr is here. Would you read the
10 title, please? Read the bill.
11 READING CLERK: Proposal 118, proposal to revise
12 Article X, s.15, Florida Constitution; providing that
13 lotteries may be operated by the State for the sole
14 purpose of raising proceeds to enhance funding for public
15 education programs; providing that proceeds be
16 appropriated directly to school advisory councils for the
17 sole purpose of enhancing school programs.
18 CHAIRMAN DOUGLASS: Commissioner Corr, you are
19 recognized to present the proposal.
20 COMMISSIONER CORR: Thank you, Mr. Chairman. Not to
21 break our pattern. I have been requested by some of the
22 other commissioners and some of the members of the
23 committee of education to temporarily pass this. There
24 are some other proposals on the Lottery and we are trying
25 to sort of combine forcing and see if we can get one
2 CHAIRMAN DOUGLASS: I'm going to ask, for the future,
3 that the rules committee try to group these if you can. I
4 realize it is a difficult job, but it might be helpful
5 rather than having to go through them and TP them.
6 Commissioner Riley.
7 COMMISSIONER RILEY: Just to reiterate what
8 Commissioner Corr was saying, there are four proposals on
9 Lottery funds, and the intent of the committee is to pull
10 them all together and come to an agreement on all four of
11 them and bring forward one as a committee substitute.
12 CHAIRMAN DOUGLASS: Is that meeting this afternoon?
13 Yes, it is.
14 COMMISSIONER RILEY: Yes, it is.
15 CHAIRMAN DOUGLASS: So, you will have those ready,
16 you believe then, for tomorrow?
17 COMMISSIONER RILEY: Hopefully.
18 CHAIRMAN DOUGLASS: Proposal 161 by Commissioner
19 Brochin, was disapproved by the committee on the
20 legislative article. Would you read it, please?
21 READING CLERK: Proposal 161, proposal to revise
22 Article III, s.4, Florida Constitution, deleting the
23 authority of each house of the Legislature to be the sole
24 judge for the interpretation, implementation, and
25 enforcement of section 4 of Article III of the
2 CHAIRMAN DOUGLASS: Commissioner Brochin, you are
3 recognized to present the proposal.
4 COMMISSIONER BROCHIN: This was a public proposal
5 from one of our hearings. Essentially it's got two
6 aspects to it dealing with Article III of the Legislature.
7 The Florida Constitution and statute requires government
8 in the Sunshine, and that, in the executive branch has
9 been a fairly uniform application.
10 What this proposal does is twofold. One, it strikes
11 the last sentence from Subsection E, which delegates to
12 that legislature itself the ability to be the sole judge
13 as to whether or not there's been a violation and places
14 the Legislature on equal footing with the other two
15 branches of government, in terms of interpretation,
16 violations of government in the Sunshine.
17 The second facet of the proposal is that it strikes
18 words that deal with prearranged gatherings and would make
19 those subject to meetings in the Sunshine to any
20 gatherings. I would note though, it's gatherings that
21 deal with action to be taken by the Legislature at a
22 subsequent time.
23 So if the legislators meet and discuss anything other
24 than the action of the Legislature, it would not come
25 under the ambit of this particular constitutional
1 provision. It also strikes the words, Formal from
2 legislative action. That is, if there's going to be
3 meetings to discuss legislative action, the fact that
4 it's, quote, formal or not would no longer enter into the
5 equation. So, that's essentially what this proposal does
6 in striking those particular terms.
7 CHAIRMAN DOUGLASS: All right. Does anyone want to
8 speak on this proposal? Commissioner Thompson.
9 COMMISSIONER THOMPSON: Well, as chairman of the
10 legislative committee, maybe I should say a little bit
11 about our concern about that, this, and that is that it
12 just seemed to violate the separation of powers. And, you
13 know, rules of the Legislature are just that, they are
14 just rules within and they have got to be interpreted, I
15 think, by the people that make them.
16 We used to have a saying in the Legislature when I
17 was there that democracy got us here. But once you get
18 there, you have got to have some kind of organization, set
19 of rules or administration or nothing would ever happen.
20 Now you say, Well, this situation that we are in here with
21 the Constitution Revision Commission seems to be working
22 very well and, you know, we are pretty well interpreting,
23 making and interpreting our own rules, so I think the
24 Legislature works pretty well that way too without a lot
25 of outside influences. But they have a job to do that we
2 In other words, if we don't do anything in this
3 20-year cycle, really there's no harm done. I guess
4 that's debatable to some extent, but we don't have to pass
5 a budget, we don't have school systems and others
6 depending on that kind of thing. So, the Legislature has
7 to, I think, have the responsibility for making its own
8 rules and for carrying them out and enforcing them.
9 And I think that they should be allowed to continue
10 to do that based on our -- all of our concepts of the
11 separation of the branches of government. The other
12 aspect of this about the meetings, I don't remember too
13 much about the debate about that. Some of those of you
14 that are current in the Legislature know more about that.
15 That wasn't a rule or a constitutional provision when I
16 was there. I always had the attitude that anybody could
17 sit in on any of my meetings if they could catch me.
18 But I think that this Constitution Revision
19 Commission requires that these folks, if they have
20 prearranged gatherings where they are going to talk about
21 what's going on, would certainly be submitted to public
22 scrutiny. You have got to remember, there are 160 members
23 of the Legislature, so they are liable to be together
24 like -- we may have a couple here today later on. So they
25 do bump into one another in ways that are not necessarily
1 formal or prearranged, so for those reasons I think the
2 committee reported this measure unfavorably.
3 CHAIRMAN DOUGLASS: Commissioner Hawkes.
4 COMMISSIONER HAWKES: Thank you, Mr. Chairman. I
5 guess this is one of those proposals that in part sounds
6 good and then in reality operates with much more
7 difficulties. And what I want to talk about is when two
8 or more legislators get together to talk about
9 legislation. Maybe I feel a proposal to make it so that
10 local governments can regulate handguns. I think that is
11 a really good idea and I want to share my views with
12 perhaps a legislator from the next county over and he's
13 going to give me a ride up to Tallahassee and I just try
14 to explain the bill to him and I ask him if he will
15 cosponsor that bill so that I have more support and I am
16 building a bigger coalition to move it forward.
17 Well, if this is going to become the meeting's
18 requirement, of course, we would have to tell the press
19 ahead of time that we were going to do this, we were going
20 to discuss it, and obviously it becomes very impractical
21 for the legislative process to work. Also I might go to a
22 legislator on the floor and say, You know, four bills from
23 now my bill is coming up and I know I heard you say
24 something before that might give you a concern about my
25 bill, and I wanted to explain why what you said doesn't
1 apply to my bill.
2 And so I just think that this is really impractical
3 when it comes to the Legislature because of what
4 Commissioner Thompson mentions, the sheer size of the
5 Legislature. So I would ask you to, with all of that
6 said, I would ask you to vote against the proposal. Thank
8 CHAIRMAN DOUGLASS: Commissioner Anthony.
9 COMMISSIONER ANTHONY: Commissioner Hawkes to yield
10 for a question. Do you think that -- do you agree that
11 this type of requirement is good for local government?
12 COMMISSIONER HAWKES: Truthfully, I don't. I think
13 that it has caused a lot of problems with local
14 government, but it is a little more workable because you
15 are dealing with five or seven members, but it's had an
16 awful lot of problems even in that size context. And the
17 ill that was trying to be addressed, obviously it was
18 addressed in requiring local governments to do that. And
19 if there was a less restrictive way to avoid that ill I
20 would certainly support that.
21 But I think that your mentioning it in local
22 government certainly pointed out the problems. And if you
23 magnify that to, you know, to 160 members, two different
24 bodies, legislative comings and goings, amendments, it
25 just -- you know, if you have a delegation hearing and all
1 of a sudden you are with these three members and then you
2 have another delegation meeting a few days later in
3 another county and you are with different legislative
4 members, it just -- I don't believe it would work.
5 CHAIRMAN DOUGLASS: Commissioner Scott. Commissioner
6 Rundle, you are next. Commissioner Barkdull, you are
7 behind Commissioner Rundle. Commissioner Scott.
8 COMMISSIONER SCOTT: Mr. Chairman, Commissioners, the
9 two issues here, the first one, the issues of the
10 Sunshine, a number of years ago, I think Bob Crawford was
11 president of the Senate and I was his rules chairman, we
12 pushed through, and some of my fellow Senators will
13 remember a lot of debate about this. Senator Langley was
14 here. The idea of having legislative gatherings and
15 whatever, if they are prearranged, that they be in the
16 Sunshine. And we passed a rule to do that in the Senate.
17 Subsequently, a year or two later, it was put on the
18 ballot, I think, when Senator Margolis was president of
19 the Senate to require that.
20 What happens up here is, you are walking to wherever
21 and you run into -- a House member says, Please -- or
22 another Senator says, Will you support so and so, or let
23 me tell you about my bill coming from the committee this
24 afternoon. And it might be in the cafeteria, or it might
25 be in some restaurant, or it might be in Clyde's, or it
1 might be wherever. To say that they couldn't discuss that
2 would just put a total monkey wrench in everything; we
3 just don't have enough time up here.
4 Now, if they come in the times when I was president
5 of the Senate, I don't think the press corps will
6 necessarily -- you don't hear them clamoring because they
7 are happy with what we are doing up here because now what
8 we do, when we are discussing the budget, we give them
10 When the subcommittee chairman of education in the
11 Senate is talking to the subcommittee chairman in the
12 House, they get noticed. If they walk in in the Senate
13 side, at least, and I believe it is this way in the House,
14 they are free to walk in and free to walk up. It's like
15 Representative Thompson, the former Speaker Thompson said,
16 If they could catch them, they could listen. And so I
17 think everything is going pretty well on that, and I would
18 hope that you wouldn't -- would eliminate the word
19 prearranged, because that would mean that we couldn't talk
20 about anything where the press was not present.
21 Now, as far as the other, this is very important.
22 Unlike local government, and I have a lot of sympathy for
23 this problem that one member of a council or a commission
24 can't talk to another one or so forth, and what they do is
25 they talk to the staff and the staff talks. It is a
1 little bit, perhaps, ridiculous at times.
2 But the Legislature is the sole control. And there
3 are three branches of government of the purse strings of
4 this state and you need to leave the Legislature to judge
5 its own qualifications. We sat the budget on the
6 judiciary. So, we are going to let the judiciary, you
7 know, judge our qualifications. I mean, that's just one
8 example. And while I would have no hesitancy about the
9 current members over there, I don't think my colleagues
10 would appreciate that, you know, if they asked for
11 100 percent in their budget and we said no, that they are
12 the ones that would be judging whether we could hold
13 office or whether we have done something that would
14 require our removal.
15 So, I think the ideas are good that Commissioner
16 Brochin has raised, the principles of them, but I would
17 urge you not to adopt them because I think it would be a
18 detriment to the independence of the Legislature and to
19 the operations.
20 CHAIRMAN DOUGLASS: Commissioner Scott, would you
21 believe that we don't have the Capitol Press Corps
22 covering us very much? Associated Press covered us
23 exclusively this morning, and that's good. And the Miami
24 Herald just walked in because the publisher is coming
25 today to appear before the education committee.
1 Unfortunately or fortunately, our Sunshine is somewhat
2 limited by what people will use from Associated Press.
3 So, you know, it doesn't really -- the same doesn't apply
4 to us, there's no commercial television coverage and this
5 sort of thing, so it's not quite like the Legislature that
6 we are serving in. Commissioner Rundle.
7 COMMISIONER RUNDLE: I really wanted to ask
8 Commissioner Brochin a question with respect to, to whom
9 does this law apply as it presently exists? And is part
10 of your goal to achieve some kind of equity for all
11 legislative bodies around the state?
12 COMMISSIONER BROCHIN: Actually, I think that is the
13 source of the idea in the sense that government in the
14 Sunshine, as Commissioner Anthony I think has alluded to,
15 applies to everybody else but the Legislature. And there
16 are legislative bodies on a local level, on a county
17 level, who all have to comply with the government and the
18 Sunshine. So the only, to my knowledge, branch that has
19 that exception, I believe, is the legislative branch.
20 CHAIRMAN DOUGLASS: Doesn't the judicial branch have
22 COMMISSIONER BROCHIN: To some extent, yes.
23 COMMISIONER RUNDLE: Just an observation, because
24 again, violating the Sunshine Law results in criminal
25 charges or civil action, and oftentimes our office is
1 called upon to investigate those. In the experience, at
2 least that I've had with it, at distance, down in Dade
3 County, it applies to a lot more, for those of you that
4 don't know, it applies to a lot more than legislative
5 bodies, it also applies to boards that are a part of
6 legislative bodies.
7 And so I've heard, I guess, the argument that size
8 was the reason that the Legislature legislated this and
9 mandated it for everyone else but themselves was based on
10 size. In Dade County, we have boards, a criminal justice
11 coordinating council, we have juvenile assessment center
12 boards, we have a children's services council, domestic
13 violence oversight boards, all kinds of boards. And I
14 happen to sit on a majority of those boards, made up of
15 40, 50, 60 people who are also governed by this particular
17 So, I'm glad that you answered that question for me.
18 And it is interesting to note that this is a law the
19 Legislature passed for everybody else but itself.
20 CHAIRMAN DOUGLASS: All right. Further debate,
21 Commissioner Barkdull.
22 COMMISSIONER BARKDULL: Mr. Chairman, members of the
23 Commission, I think it is a very dangerous proposal in two
24 instances. First, what you were to do if you were to
25 adopt the first part of it where it talks about
1 prearrangement, what you are going to do then is to drive
2 the communication into the control of people who are not
3 in the Legislature that can communicate with a legislator,
4 be it Commissioner Thompson if he's serving, and then
5 convey whatever that conversation is or whatever that
6 commitment may be on a particular bill to Senator Scott,
7 but they can't talk to each other. The lobbyists are
8 going to love it. And in the interpretation of the rules,
9 what you are going to do is to take one branch of
10 government and make it subservient to the judiciary,
11 because that's where it would turn. And I think both of
12 these are very bad proposals.
13 CHAIRMAN DOUGLASS: Commissioner Evans-Jones.
14 COMMISSIONER EVANS-JONES: Thank you, Mr. Chairman.
15 Commissioner Rundle I think made an excellent point, that
16 the Legislature in its wisdom made all of these laws for
17 everybody but themselves. And in a way I kind of feel
18 like, Well, it would serve them right if we passed this,
19 but in reality it is not a good thing for us to do, I
20 think it is an impractical thing for us at this point in
21 time. But I would hope that maybe the Legislature would
22 think about the problems with local government, that it
23 really is a problem and that you might need to readdress
24 some of these issues that create problems on the boards
25 that Commissioner Rundle and many of us serve on.
1 It is a pain in the neck, I want you to know. And I
2 would hope that maybe some of the members in here who are
3 in the Legislature and who have influence would really
4 consider relooking at some of these things and talking to
5 the people on these boards at local government. So I will
6 vote no and hope that the Legislature will address these
8 CHAIRMAN DOUGLASS: Commissioner Smith.
9 COMMISSIONER SMITH: I rise for a question of
10 Commissioner Anthony. Commissioner Anthony, would it be
11 of benefit to local government if we prepared an amendment
12 to add local government to this, and then vote it down and
13 have an expression or desire that this should be equally
14 applied to local government as well as to the Legislature
15 that made the law and exempted itself?
16 COMMISSIONER ANTHONY: That is a difficult question
17 because I think open government is good government and I
18 think that government in the Sunshine laws were developed
19 because there were private, quote, unquote, meetings in
20 places that were not noticed for the normal citizen to be
21 able to go to; and therefore, I think there needs to be a
22 Sunshine law and there needs to be open government.
23 I don't support this proposal, because I'm living
24 this proposal. This proposal would make it very difficult
25 to carry out public policy effectively and efficiently.
1 Would I change what local government has in place? I'm
2 sitting here or standing here saying, I don't know the
3 answer to that question right now. And I don't know which
4 way I would vote on that. Because I do think that we
5 should have an open process as much as possible.
6 CHAIRMAN DOUGLASS: Any further debate? Would you
7 like a close, Commissioner Brochin?
8 COMMISSIONER BROCHIN: I would.
9 CHAIRMAN DOUGLASS: Proceed.
10 COMMISSIONER BROCHIN: Florida distinguishes itself
11 because of its government in the Sunshine. And yes,
12 Commissioner Hawkes, it does sound good, and yes, it is
13 very difficult and unpractical at times to have our
14 government in the Sunshine. A lot of us have been
15 subjected to it. But because it's difficult, it doesn't
16 make it a bad idea. Because it has certain
17 impracticalities to it, like you have to eat lunch with
18 the press watching you, doesn't make it a bad idea. What
19 makes it a good idea is that -- it's not that you can't
20 talk to each other, sure you can. And it's not that you
21 can't discuss legislative action with each other, sure you
23 The idea is that you have to do it where the public
24 can watch you, and listen to you, and judge you on those
25 discussions so when you vote and do the people's work,
1 they know how it came to be.
2 That is the purpose of this proposal. That is the
3 purpose of government in the Sunshine. And I do agree
4 that it has significant impracticalities on all of us, and
5 on all levels it ought to be addressed into a practical
6 way to do it so that we do operate government in the
8 But to have a policy that suggests that it's good for
9 everyone but the people who make our laws is an inherent
10 inconsistency that needs to be fixed. And that's what
11 this proposal will do, and that's why I brought it
13 CHAIRMAN DOUGLASS: No further discussion or debate,
14 we'll unlock the machine and vote. (Pause.) Well,
15 everybody hasn't voted. We are still a few short.
16 (Vote taken and recorded electronically.)
17 CHAIRMAN DOUGLASS: Lock the machine and announce the
19 READING CLERK: Eight yeas and 16 nays, Mr. Chairman.
20 CHAIRMAN DOUGLASS: All right, so it fails. We'll
21 now move to Proposal No. 169 by Commissioner Hawkes that
22 was referred to the Committee on Judicial Article and was
23 withdrawn January 12th to come to the floor. Commissioner
24 Hawkes. Wait a minute, read it please. This is long so
25 you might as well pay attention to this one.
1 READING CLERK: Proposal 169; proposal to revise
2 Article V, ss. 1 and 4, Florida Constitution; establishing
3 courts of criminal appeals; providing for a court of
4 appeals to be located in each of three regional divisions;
5 providing for justices of the courts of criminal appeals
6 to be appointed by the Governor and be subject to
7 confirmation by the Senate; providing for compensation of
8 the justices; providing for terms of office; providing for
9 the courts to final appellate jurisdiction of criminal
10 appeals, appeals of capital cases, and appeals based on
11 habeas corpus or other post-conviction claims; providing
12 for the courts to convene an en banc panel to hear capital
13 cases and to resolve conflicting rulings; authorizing the
14 courts to issue specified writs; providing for the
15 appointment of clerks for the courts; providing
16 applicability of rules.
17 CHAIRMAN DOUGLASS: Commissioner Hawkes.
18 COMMISSIONER HAWKES: Thank you, Mr. Chairman.
19 CHAIRMAN DOUGLASS: Commissioner Kogan.
20 COMMISSIONER KOGAN: My copy is missing Page 3, and I
21 know Commissioner Barnett's copy is missing Page 3 also.
22 CHAIRMAN DOUGLASS: Is everybody missing Page 3?
23 COMMISSIONER KOGAN: I guess so, looking around the
24 room. If we could have Page 3?
25 COMMISSIONER HAWKES: That's where all of the good
1 stuff is.
2 COMMISSIONER KOGAN: I gathered that.
3 CHAIRMAN DOUGLASS: No, we can proceed with the
4 presentation and we will get your Page 3 for everybody.
5 Thank you, Commissioner Kogan.
6 Commissioner Hawkes, I think you can explain this
7 without Page 3. Proceed.
8 COMMISSIONER HAWKES: Thank you, Mr. Chairman. I
9 guess I'll start off with explaining why it was pulled
10 from the judiciary committee. It was scheduled for the
11 judiciary committee and the judiciary committee this week,
12 because of various absences, was not going to have a
13 quorum, which would have continued it over, and I thought
14 this proposal was going to be called up next time we met,
15 which would have allowed an opportunity for those people
16 who wish to testify before the committee to provide
17 letters so that you would at least have some letters
18 available to you.
19 What this does, in essence, is separates Florida's
20 appellate jurisdiction between civil and criminal. And I
21 think there's several reasons or benefits in doing that.
22 One I think is time management. Obviously we have all
23 been read the Chief Justice's comments about how much time
24 it takes, the District Courts of Appeal are also under a
25 tremendous workload, as that is the primary appellate
1 jurisdiction for criminal cases.
2 And I think that also, besides the workload though,
3 the benefit that we achieve is that we have justices who
4 have applied for a position, obviously, to be nominated,
5 which means that they have an interest in serving in that
7 Also, I would assume that if the Governor is going to
8 nominate them, they also have some skill and expertise in
9 that area so you have judges who are not only experienced
10 in and interested in criminal law, serving on your
11 criminal bench, then you have a judge who is more
12 qualified. I know there are Supreme Court opinions or
13 viewpoints from the Court stressing the importance of
14 judges who are going to handle capital cases and those
15 kinds of things to have some experience and training.
16 Also, I think that you have a much more accountable
17 court. And I think accountability in all aspects of
18 public service is good. The Court is accountable because
19 it is nominated by the Governor and subject to
20 reappointment. It is the system, in fact, used by other
22 Texas has a criminal court of appeals, Oklahoma has a
23 criminal court of appeals, and because of that their
24 systems have worked better. And we go back to
25 accountability. They have more of a public trust. And I
1 think that we have lost some of the public trust in our
2 court system.
3 And I would submit that that public trust is the most
4 critical element of a court's system. No matter how well
5 it's working or how good of a job it's doing, if it
6 doesn't have public confidence, then we have failed. And
7 this is the step, if the people of the State of Florida
8 decide they want to do it this way, this is a step to move
9 us toward that kind of accountability system. And I would
10 ask for your favorable consideration and I would certainly
11 answer any questions, Mr. Chairman.
12 CHAIRMAN DOUGLASS: Commissioner Butterworth.
13 COMMISSIONER BUTTERWORTH: Thank you very much,
14 Mr. Chairman. Commissioner Hawkes, I'm not opposed to
15 what you are trying to do, I'm just concerned about it. I
16 mean, is it possible for us to accomplish what you are
17 attempting to accomplish within the structure that we have
19 COMMISSIONER HAWKES: I don't believe so unless I am
20 missing something. I mean, this is a separate court and
21 the Constitution defines the court. So I think it has to
22 be a constitutional amendment for the Legislature to be
23 able to add a court.
24 COMMISSIONER BUTTERWORTH: Well, let's say, before
25 you add a court, is there anyway to accomplish what you
1 are attempting to do within the system; such as, within
2 the appellate districts is there anyway that we could
3 maybe have criminal panels and have judges designated to
4 the criminal panels so you don't have to build three
5 additional courthouses and have three additional courts
6 and staff?
7 COMMISSIONER HAWKES: I think that would be a partial
8 achievement of the positive that this does. Of course,
9 the reality is, is that the Florida Supreme Court right
10 now is seven justices who have indicated that this is
11 taking up a tremendous amount of their time and keeping
12 them from doing other things that they need to be doing.
13 So what this also does is it has the death penalty appeals
14 going to this criminal court of appeals as well.
15 So, although we could maybe partially achieve some of
16 the goals by dividing the DCAs, we still don't achieve the
17 goal of dividing the court. And the other aspect of this
18 court is uniformity. And I think that that's achieved
19 because we, in essence, have one court sitting in three
20 regions, we don't have three separate courts, or five
21 separate courts. This is one court, three regions, with
22 those justices selecting their en blanc panel to decide
23 their conflicts. So I think cases would move faster,
24 conflicts would resolve quicker and I think that there
25 would be uniformity of opinion.
1 COMMISSIONER BUTTERWORTH: Let me, if I could
2 continue, Mr. Chairman, with one additional question. On
3 capital cases, would there be a way under present law to
4 have those capital cases heard either by the appellate
5 courts or just one appellate court in this state such as
6 we do worker's comp in here in Tallahassee administrative
8 COMMISSIONER HAWKES: I believe that the Supreme
9 Court opinions -- the U.S. Supreme Court opinions dictate
10 that the chief court, or the highest court in a criminal
11 jurisdiction, resolve those. And I thought that that's
12 why we had all capital cases appealed immediately to the
13 Florida Supreme Court versus going through the DCAs and
14 then to the Supreme Court.
15 COMMISSIONER BUTTERWORTH: Well, could, my question
16 again would be, is there a way under the present
17 Constitution, or making minor changes to the Constitution,
18 which would allow the Supreme Court to have even a segment
19 of the Supreme Court handle it or add additional justices
20 as opposed to doing a whole new additional court system?
21 That's my only concern is that, I'm not opposed to
22 where you are attempting to go and I totally agree with
23 that, I just wonder whether or not this is the most -- it
24 is the easiest, most efficient way.
25 I think we both agree, justice delayed is justice
1 denied. And this will, I think, not delay justice and
2 it'll give us a specialty whereby hopefully it will not
3 take as long to get the final answers.
4 CHAIRMAN DOUGLASS: Okay. We don't have a quorum.
5 COMMISSION SECRETARY: Quorum call. Quorum call.
6 All Commissioners report to the chamber. All
7 commissioners report to the chamber.
8 CHAIRMAN DOUGLASS: I think we have 18 now, maybe 19.
9 Look at the board and let's see if we have got them.
10 COMMISSION SECRETARY: Quorum, this is a quorum.
11 CHAIRMAN DOUGLASS: Quorum call. We were running
12 short. We need one more. We do not have a quorum. Wait
13 a minute, there's Commissioner Mills hiding in the back;
14 we can count him. Now we have a quorum.
15 (Quorum taken and recorded electronically.)
16 CHAIRMAN DOUGLASS: All right, Commissioner Rundle
17 was up first, I think. Do you want to ask a question?
18 COMMISIONER RUNDLE: Sir, I will yield to
19 Commissioner Barkdull.
20 CHAIRMAN DOUGLASS: Commissioner Barkdull.
21 COMMISSIONER BARKDULL: Commissioner Hawkes, in light
22 of information for the body, I would like to pose these
23 questions. Do you realize, sir, that there's a provision
24 in the Constitution that all capital cases must go to the
25 Supreme Court?
1 COMMISSIONER HAWKES: Well, this obviously is the
2 Supreme Court for capital cases, and if we need to change
3 the -- style and drafting can cure that.
4 COMMISSIONER BARKDULL: No, I'm talking about the
5 present Constitution. In other words, there was some
6 questioning about whether we could, within the present
7 framework, move capital cases. And my question is, sir,
8 that there is a provision that all capital cases must go
9 to the Supreme Court, and it appeared to me that we would
10 have to amend that to move it to any of the districts. Do
11 you agree with me, sir?
12 COMMISSIONER HAWKES: I would agree with you, yes.
13 COMMISSIONER BARKDULL: All right. Do you also agree
14 that there's a provision in the Constitution that says
15 that the Supreme Court cannot sit in divisions?
16 COMMISSIONER HAWKES: I would accept that as well.
17 COMMISSIONER BARKDULL: Yeah. I wanted to point that
18 out for the clarification of the body. Do you agree with
19 me, sir, that if a criminal court of appeals was created,
20 that they could utilize the facilities of the district
21 courts of appeal that are geographically spread out
22 throughout the state to hold their hearings?
23 If they were to, say, build it within Tallahassee and
24 there were three districts, or however you want to set it
25 up, that they would not necessarily have to have new
1 facilities in the outlaying areas; they would obviously
2 have to have a headquarters in the capitol, but as they
3 went about considering the business of the court in the
4 several areas, that they could utilize the hearing
5 facilities of the DCAs?
6 COMMISSIONER HAWKES: I had not realized that, but I
7 think that that is an excellent point.
8 COMMISSIONER BARKDULL: Thank you.
9 CHAIRMAN DOUGLASS: Now, Commissioner Rundle.
10 COMMISIONER RUNDLE: Thank you, Mr. Chairman. I
11 wonder, Commissioner Hawkes, if you would consider TP'ing
12 this for a while for those of us that think that there's a
13 lot of merit to where you are trying to get. I think that
14 I share the same thoughts as General Butterworth, that
15 there's some good concepts here and very good benefits to
16 be gained. I think that all of us who work in the
17 criminal justice field recognize that the number of
18 appeals in the criminal area are increasing in staggering
19 amounts and that specialization is becoming a greater need
20 for the courts.
21 I'm just not really informed enough on this, and I
22 should be, to be able to really take a position. And so
23 what I would suggest to you, if you would agree that we TP
24 this, and maybe Judge Barkdull and a number of us can work
25 on this and see if there's a way to accomplish this, if
1 that's what we all desire to do. But I think it's going
2 to take some time.
3 CHAIRMAN DOUGLASS: Well, first of all, let me tell
4 you, the issue here is not the structure, as I understand
5 it, is what is going to be the determining vote; it's
6 whether or not we create a whole new court with 27
7 justices. And I don't think TP'ing it is going to help
8 that one way or the other.
9 It would be my suggestion, if we are going to move,
10 to quit TP'ing things that we don't have to. And this one
11 can be voted on, I think. Now, that is my view. And
12 without a better reason, I certainly would suggest that
13 you not TP it. He's already presented it, presented it
14 very well and the issue is pretty clear. Commissioner
16 COMMISSIONER HAWKES: Mr. Chair, I hate to go against
17 the Chair's recommendation but --
18 CHAIRMAN DOUGLASS: No, that's fine, I am just saying
19 my job is to move this, and if you want to be here all day
20 Friday, that's fine.
21 COMMISSIONER HAWKES: Well, Mr. Chairman, I did
22 believe that it was going to come up, not this week when
23 the judiciary committee couldn't meet, but that it would
24 come up two weeks hence, which would give both the public
25 opportunity to provide information to the body and for the
1 body to have -- normally the process takes place in the
2 committee meeting. And I was a little surprised to see it
3 on today's docket. And I know that, obviously,
4 Commissioner Rundle is in a unique position to evaluate
5 the proposal, as is Judge Barkdull, and the Attorney
7 And I certainly -- and truthfully, Mr. Chairman, if
8 people have questions, they tend to vote no. If I can
9 resolve their questions, then there is a better chance
10 that they will vote yes. And if they vote no because all
11 of their questions have been answered, at least the
12 process has worked better. And I really wouldn't object
13 if it was TP'd until next time we met.
14 CHAIRMAN DOUGLASS: Let me tell you, the process
15 would work better if everybody was here at every meeting
16 all of the time. And I think if we start TP'ing and we
17 have people that are absent that are not absent now, for
18 this type reason, that we won't finish. And that's my
19 statement from the Chair. Now, if it's the will of the
20 body, we'll TP it. Commissioner Barkdull, you might want
21 to comment on this.
22 COMMISSIONER BARKDULL: Well, obviously, we have got
23 to stop TP'ing items because we are running out of time.
24 And I think that it might be wise, I might offer maybe an
25 intermediate situation, to test the sentiment of the body
1 as to whether there was a sentiment to go forward with
2 this proposition or not. If the sentiment was to go
3 forward, then I think we should consider TP'ing it. But
4 if the sentiment is not to go forward, then I think we
5 should take a vote on the merits.
6 CHAIRMAN DOUGLASS: All right. Then I take that as a
7 motion that we vote on whether or not we go forward, if
8 you think it's necessary. Commissioner Butterworth.
9 COMMISSIONER BUTTERWORTH: Question of the Chair?
10 CHAIRMAN DOUGLASS: Yes.
11 COMMISSIONER BUTTERWORTH: I may very well be very
12 much in favor of what Commissioner Hawkes is attempting to
13 do. I may not agree that it should be done through a new
14 court system, but I believe that something has to be done.
15 By voting for this concept, it'll go forward, we will
16 still be able to change it to be, maybe, not a third or
17 fourth court system, but to effectuate the result but by a
18 different way?
19 CHAIRMAN DOUGLASS: So you are voting to go forward
20 but not to make it part of the constitutional court system
21 as chief judges?
22 COMMISSIONER BUTTERWORTH: I am voting to go forward
23 to see if we could present something to this body which
24 will resolve, I believe, to be a very gray issue in the
25 State of Florida. By not going forward the issue will be
1 dead and I am very concerned about that.
2 CHAIRMAN DOUGLASS: I think we are going to wind up
3 doing that, so if you want to TP it, let me have a motion.
4 COMMISIONER RUNDLE: Mr. Chairman, I move that we TP
5 Proposal 169.
6 CHAIRMAN DOUGLASS: Okay. All in favor, say aye.
7 Opposed, no.
8 (Verbal vote taken.)
9 CHAIRMAN DOUGLASS: It'll be TP'd and it'll be on
10 special order tomorrow. It'll be on special order Friday.
11 Commissioner Kogan.
12 COMMISSIONER KOGAN: Mr. Chairman, let me say this:
13 Many years ago, I was one of the original persons who
14 advocated setting up this kind of a court. Now that's
15 many years ago. There are only two states in the United
16 States, Texas and Oklahoma, that now have the concept and
17 actually have a criminal court of appeal. You can't rush
18 ahead with this, you are going to have to study what
19 happened out in Texas and Oklahoma. There are great
20 problems that are involved in this thing, and I'm just
21 throwing this out for information for everybody; it's not
22 an easy issue.
23 There's a major issue involved, for example, there
24 are two particular lines of law. In other words, if you
25 are interpreting, for example, hearsay testimony, if you
1 are on the civil side, you kind of have one definition, if
2 you are on the criminal side, you may have something
3 entirely different. Rules of evidence can be very, very
4 different as far as the Court's interpretation.
5 This is not an easy issue, this is something that
6 requires a great deal of study. So you can't put it on
7 for Friday because they will never get --
8 CHAIRMAN DOUGLASS: All right. Then I will ask that
9 the judiciary committee be authorized to meet because this
10 should have been considered in committee, all of this
11 should have been done, and it has not been done. And
12 that's why I'm frustrated, because all of the other issues
13 that come here don't come directly to the calendar, and we
14 shouldn't have to do what the committees do, and that's
15 why I'm really concerned with this type of situation. I
16 think the rules committee should reauthorize the judiciary
17 committee to meet.
18 COMMISSIONER BARKDULL: Sure, you can commit this to
19 the judiciary committee and ask them to take it up and
20 report back within a time certain.
21 CHAIRMAN DOUGLASS: All right, I'll do that. This
22 will be committed, with the approval of the body, to the
23 judiciary committee to come back before us either at the
24 next weekly meeting at some point which -- or at --
25 COMMISSIONER BARKDULL: Or not later than the first
1 February meeting.
2 CHAIRMAN DOUGLASS: Correct, no later than the first
3 February meeting. That can be changed if they don't
4 complete their work. Without objection, it'll be
5 committed to the judiciary committee and they will now
6 consider it. And I think any other thing that we have
7 like that, we should be very careful not to have to deal
8 with it on the floor. The type questions that are being
9 asked are not floor questions, the committee should have
10 dealt with them before we got here.
11 We'll move to the next one on special order, which is
12 committee substitute for Proposal 64. Did you withdraw
13 that, Commissioner Nabors? Where's he? Did you withdraw
14 committee substitute for Proposal 64?
15 COMMISSIONER NABORS: No, we tabled that --
16 Mr. Chairman, we tabled that to the calendar until such
17 time as the provisions dealing with the Lottery funds are
18 going to be dealt with.
19 CHAIRMAN DOUGLASS: That will be tomorrow, so then
20 you move to --
21 COMMISSIONER NABORS: Well, we don't know when
22 that -- we talked to rules about that. We have some
23 problems with that because Mr. Sundberg has issues dealing
24 with the Lottery.
25 CHAIRMAN DOUGLASS: It's on special order. All I
1 want you to do is say TP it until tomorrow.
2 COMMISSIONER NABORS: I thought we had already done
3 that yesterday.
4 CHAIRMAN DOUGLASS: Without objection, it'll be TP'd.
5 All right. Oh, by the way, we have a pleasant thing to
6 do, other than TP'ing something at the moment.
7 Commissioner Jennings, you are here.
8 COMMISSIONER JENNINGS: Present and accounted for.
9 CHAIRMAN DOUGLASS: We would like for you to come
10 forward, please, and present and tell us who your new
11 appointee is to the Commission so we can have her
12 installed. We have a committee that's going to escort
13 her, but I think first you should have the opportunity to
14 present her.
15 COMMISSIONER JENNINGS: Where would you like us to
17 CHAIRMAN DOUGLASS: Wherever you would like, this is
18 your house. You can come right here, if you would like.
19 Okay, you have the permission, you can use the mike, if
20 you would.
21 COMMISSIONER JENNINGS: Commissioners, you may or may
22 not be aware, Commissioner Sullivan, due to a number of
23 business obligations, has had to regrettably resign. He
24 truly was regretful in the fact that he could not
25 continue. He said this has been a most stimulating and
1 interesting time to serve.
2 And based on that, of course, I had included in our
3 group of appointees, an alternate, and Pat Barton, as you
4 all know, has been at most of our -- all of our meetings,
5 most of our public hearings. The only thing she missed
6 was our opening session, as a matter of fact, because she
7 had just had some surgery, so she was not with us that
8 day, but she was, of course, with us soon after that.
9 So, based after -- I haven't talked from this mike in
10 a while, they put that sucker back in there. Based on
11 whatever authority I have or you have, might I then
12 recommend that I have a resignation from Commissioner
13 Sullivan that we will accept with regret, and I would
14 like, pursuant to Article XI, Section 2, of the
15 Constitution, appoint our alternate, Pat Barton, in
16 Mr. Sullivan's place?
17 CHAIRMAN DOUGLASS: Without objection, the
18 resignation is accepted. And I would ask Commissioners
19 Marshall, Ford-Coates and Evans-Jones to escort our
20 newest, full-pledged voting member to be sworn in by the
21 Chief Justice, who is our own Commissioner Kogan.
23 CHAIRMAN DOUGLASS: Commissioner Hawkes moves to
24 temporarily pass this.
1 (Commissioner Barton sworn by Commissioner Kogan.)
2 CHAIRMAN DOUGLASS: All right. We are going to have
3 lunch in a little bit and it's back in the back and we can
4 all congratulate her at that point. I'm at your pleasure
5 here. If you want to break for lunch now, we will come
6 back at 12:45. Is that what you want to do, or go another
7 30 minutes? Mr. Smith.
8 COMMISSIONER SMITH: Mr. Chairman, I was rising for a
9 personal point of privilege.
10 CHAIRMAN DOUGLASS: Well, you can. But let me get
11 order before you do. Please come to order and take a seat
12 as soon as you can.
13 COMMISSIONER SMITH: As chairman of the declaration
14 of rights committee, let me tell you, I am a little
15 surprised because Pat Barton has been so diligent in her
16 attendance and her service, I thought she was already a
17 full-fledged member, so I have no doubt that her service
18 will be tremendous. Because with regard to the
19 declaration of rights committee, she has been fully
20 engaged, and I'm sure now she's very happy that she gets a
21 chance to vote. So I'm very happy to say welcome.
22 COMMISSIONER BARTON: Thank you.
23 CHAIRMAN DOUGLASS: Very well. We'll move her to the
24 front row at the recess and put her up here to keep tabs
25 on -- that's why we want you on the front row, keep you up
1 here so you can keep up with Commissioners Nabors, Evans
2 and Freiden, and occasionally, Commissioner Jennings, you
3 can watch her too. Commissioner Barnett.
4 COMMISSIONER BARNETT: I would like to move for
5 reconsideration of a matter, please. Proposal 91, I was
6 on the prevailing side. This was the proposal that had
7 been filed by Commissioner Hawkes and that was taken up
8 during, I think, the first minute or two of our session.
9 CHAIRMAN DOUGLASS: All right. I got you.
10 COMMISSIONER BARNETT: He simply was not here for
11 debate, and I would like to move for reconsideration.
12 CHAIRMAN DOUGLASS: Okay. You were on the prevailing
13 side because the vote was 22 to 1, I recall.
14 COMMISSIONER BARNETT: And I was not that 1.
15 CHAIRMAN DOUGLASS: That's right, you were in the 22.
16 It's been moved that Proposal No. 91 be reconsidered on
17 reconsideration. Do you want to go forward with it, to
18 vote on it now?
19 COMMISSIONER BARNETT: I thought I would move it and
20 leave it pending, however I will not be able to be here
21 tomorrow, so if we need to do this today --
22 CHAIRMAN DOUGLASS: We don't have to, but I was
23 thinking, we have done it, we took it up this morning;
24 everybody knows what it is. We could just put it on
25 reconsideration, let Commissioner Hawkes have his
1 presentation, and vote again. Okay. Commissioner Scott.
2 COMMISSIONER SCOTT: Mr. Chairman, I know those of us
3 that have been around are aware of it, but reconsideration
4 for members that might not have served -- since we are
5 using the Senate rules as a base here, unless you waive
6 the rules, when you make a motion to reconsider, then it
7 becomes an order -- a continuing order of business for the
8 following meeting, and then anybody can then bring it up
9 at some time during that meeting. But to do otherwise
10 would require a waiver of the rules.
11 CHAIRMAN DOUGLASS: A waiver of the rules. I was
12 going to do it without objection or we weren't going to do
14 COMMISSIONER SCOTT: One thing that can happen is,
15 especially in committee is, someone thinks something is
16 going to be reconsidered, and then they leave the room and
17 then all of a sudden the votes change of who is present.
18 So you need to know, you know, that it would be brought up
19 at a regular time, which would be tomorrow.
20 CHAIRMAN DOUGLASS: Right. What I was going to do is
21 say without objection we were going to do it, which would
22 be a waiver of the rules, and then it could be dealt with
23 now before lunch. And if there's objections to proceeding
24 with it now, then obviously it wouldn't be a waiver of the
1 He does not object and he's ready to proceed.
2 Without objection, we'll proceed on the reconsideration.
3 All of those in favor of reconsidering this, signify by
4 saying aye. Opposed like sign.
5 (Verbal vote taken.)
6 CHAIRMAN DOUGLASS: Okay. We move, by waiver of the
7 rules, to reconsider the vote by which Proposal No. 91
8 failed. And I'll recognize Commissioner Hawkes.
9 COMMISSIONER HAWKES: It is in the first book we were
11 CHAIRMAN DOUGLASS: It is in the orange book, and
12 it's Proposal 91, disapproved by the committee on bonding
13 and investments. We need to read it again. Read it,
15 READING CLERK: Proposal 91; a proposal to revise
16 Article VII, s.4, Florida Constitution; providing for
17 certain pollution control devices to be classified by
18 general law and assessed solely on the basis of character
19 or use.
20 CHAIRMAN DOUGLASS: It's on Page 138 of the orange
21 book. Commissioner Hawkes.
22 COMMISSIONER HAWKES: Thank you, Mr. Chairman. And I
23 find myself in an uncomfortable position to disagree with
24 you yet a second time. But that's the only two times I
25 ever have, Mr. Chairman, and that is that --
1 CHAIRMAN DOUGLASS: That's great.
2 COMMISSIONER HAWKES: -- is that the members already
3 understand the issue. Because I would submit that if you
4 understood the issue you would vote for it. At least
5 that's my position. And if you can allow me to support
6 that position, I would proceed to do so now.
7 First of all, some of you may have gotten Mr.
8 Shebel's letter from Associated Industries of Florida.
9 And I would submit that, contrary to what the letter says,
10 Mr. Shebel and I agree. Maybe that's not as often as I
11 agree with the Chairman, but certainly we agree in his
12 outline in his letter.
13 In his letter, he says that it has been the public
14 policy to move to encourage people to install and utilize
15 pollution control equipment. In his letter he points out
16 that pollution control equipment, and I will quote,
17 "renders no financial gain to the company installing the
19 In other words, if you put a scrubber on a
20 smokestack, it doesn't make your plant more productive, it
21 doesn't mean that you can charge more money for your paper
22 towels or whatever you are producing, it merely means that
23 the air that comes out of the smokestack is a little more
24 breathable and a little bit better for our environment.
25 Now, the reason that I have this constitutional
1 amendment proposal is because there is currently no
2 authorization under the Florida Constitution to allow the
3 assessment or evaluation of pollution control equipment
4 any differently than what they value your house, or what
5 they value your company, or what they put any property on
6 the tax roll for because as, if you will read in the first
7 page of your committee analysis, Article VII, s.4 of the
8 Florida Constitution, provides that all property must be
9 assessed at just value. And the Legislature is supposed
10 to come up with rules to result in the just --
11 CHAIRMAN DOUGLASS: Commissioner Hawkes, those of you
12 that are standing with your backs to the speaker and
13 blocking the view of others, it would be appreciated if
14 you could take your seat. Commissioner Hawkes has the
15 floor, and it would be appropriate that he and I agree
16 that you should give him attention. Commissioner Hawkes,
17 you may proceed.
18 COMMISSIONER HAWKES: That all property be assessed
19 at just value, and the Supreme Court and the District
20 Courts of Appeal have repeatedly said, and I think they
21 even cite some cases in the committee analysis, that just
22 value, in essence, is the same as market value; that if
23 you have market value, you have just value, and vice
25 And, for instance, they point out that in the
1 Constitution there's some exceptions, and those exceptions
2 are agricultural land, in other words, the Green Belt;
3 high-water recharge; noncommercial recreational land;
4 homestead; property held for sale as stock in trade or
5 inventory, and in fact, I think Commissioner Henderson
6 even has a proposal that would add yet another category of
7 property that could be appraised at something else other
8 than just value.
9 And to support my position, I have a Supreme Court
10 opinion that I think explains it a little clearer, if I
11 can find it. It is a 1977 Supreme Court opinion Enwach
12 (phonetic) in the states where the Court -- basically
13 there was a -- the Legislature passed a law that said if
14 you have not sold 60 percent of your lots in a plotted
15 subdivision, all of the lots will be assessed at the -- at
16 basically the vacant land value and not for just value,
17 and this was the Legislature trying to, I would imagine,
18 encourage a development, and those kinds of things;
19 probably good public policy, and the Court said, No, you
20 can't do that because the Constitution says just value and
21 anything else is not just value.
22 I wish Justice Sundberg was here today, or former
23 Justice Sundberg, Commissioner Sundberg, was here because
24 he wrote an opinion that basically declared
25 unconstitutional something that we used to have in Florida
1 called Polk's Law, and what that did was it allowed a
2 different way to determine just value. In other words, if
3 the property appraiser put your house on the tax rolls at
4 a certain dollar amount and you didn't believe that that
5 was appropriate, you could have him do an auction and if
6 no one bid higher than what you said, then your value
7 would prevail.
8 And Justice Sundberg pointed out that that was not
9 just value of market value because market value is always
10 defined as what a willing buyer would pay a willing
11 seller, neither under coercion to sell or to buy. And he
12 said, obviously, that is a make-believe sale, different
13 pressures come to bear, and so that would not be just
14 value, and therefore it would be unconstitutional.
15 So, the bottom line is that if we want to allow the
16 assessment of pollution control equipment, and we
17 currently do in Florida under a statute, we have to have a
18 Constitution to enable that. If we don't pass this and
19 the Court reviews this issue, I believe under the case law
20 and clear understanding of the Florida Constitution, it
21 would be declared unconstitutional.
22 Now, if we put this on the November ballot and the
23 people of the State of Florida decide that they wish to do
24 this, then nobody loses anything because our assessment
25 date is January 1st. And this January I believe that
1 virtually all of the industry in Florida has in fact
2 received their pollution control assessment, but now the
3 property appraisers are talking about it, they understand
4 that in fact they may not be allowed, in keeping their
5 constitutional oath, to follow their obligations. They
6 may not be allowed to put it on the tax roll next year.
7 If the Court rules it unconstitutional then,
8 obviously, next January nobody gets it. And depending on
9 what part of the cycle we are in, the Legislature won't be
10 able to put it on the ballot, if it comes to a vote, after
11 '98 until 2000.
12 So, industries could go two years without being able
13 to get the break that at least I believe, and I would
14 think that most people believe is good public policy, and
15 that is to allow them something for that which they
16 install which does not increase productivity or add to
17 their bottom line.
18 Mr. Chairman, that is kind of the proposal in a
19 nutshell. I would ask for your favorable consideration
20 and I would be happy to answer any questions. Thank you.
21 CHAIRMAN DOUGLASS: Commissioner Barkdull. You yield
22 for a question, Commissioner Hawkes.
23 COMMISSIONER BARKDULL: Commissioner Hawkes, I'm not
24 familiar, of course, with all of the types of pollution
25 controls that might be adapted for a factory of such, but
1 what concerns me, some of the pollution control devices I
2 would believe would become permanent fixtures to the real
3 estate, and my question is, how would you segregate or
4 expect the tax assessors to segregate that out as an
6 COMMISSIONER HAWKES: What currently happens in
7 Florida is, let's say that you are installing a scrubber.
8 I don't know a lot of pollution control devices, but I do
9 know that there's this thing that you put on smokestacks
10 to keep emissions down. And that scrubber is now -- it
11 costs you a certain amount of money to buy it, it costs
12 you a certain amount of money to install it. That
13 installed cost would be the cost that the tax appraiser or
14 the property appraiser would look at in determining what
15 to put on the tax roll in a normal course of events.
16 But however, the Florida Legislature has said, if
17 it's pollution control, what they would like to do is have
18 it assessed at salvage value, so in other words, if that
19 scrubber costs you a million dollars to put in but was
20 only going to be worth 100,000 at the end of its useful
21 life, then you would only be taxed on that value which you
22 would be able to recover at the end of its useful life,
23 that is, 100,000. That is the character of use language
24 that is put on the end.
25 So, they currently are able to segregate it. They
1 would be allowed to continue to segregate it. And what we
2 are talking about, obviously, are the improvements to real
3 property, not the real property.
4 CHAIRMAN DOUGLASS: Commissioner Connor, do you rise
5 to question?
6 COMMISSIONER CONNOR: Yes.
7 CHAIRMAN DOUGLASS: He yields.
8 COMMISSIONER CONNOR: Thank you. Commissioner
9 Hawkes, I can envision that there are any number of
10 expenditures that a business has to make which is mandated
11 because of health and safety considerations, and for which
12 businesses, arguably, under this logic, ought to get the
13 benefit of some kind of tax break. My question is whether
14 or not this proposal, which is obviously very narrow in
15 scope, is really appropriate for inclusion in the
16 Constitution as opposed to legislative -- the legislative
17 body, number one.
18 Number two, whether or not this narrow cast exception
19 wouldn't be sort of a classic example of the special
20 interest exemption that so many of us are concerned about
21 and I know Commissioner Nabors is concerned about in our
22 system today. So, do we -- would you respond to that for
24 COMMISSIONER HAWKES: Yes. First of all, the purpose
25 of this proposal is to enable the current statute that
1 exists to continue to function. Up until a little while
2 ago, no one recognized the fact that this exemption exists
3 in Florida law right now, and the procedure that's used is
4 basically, if you are a company, you make application to
5 the Department of Environmental Regulation and say, I've
6 installed this for pollution control, they certify that,
7 they do whatever they need to do. They report it to the
8 Department of DOR. Department of Revenue then reports it
9 to the local property appraiser, and that's how it's
10 determined to be pollution control. It's just not your
11 say-so or it's not the property appraiser who is required
12 to determine if it's pollution control; he receives a
13 certification from the State.
14 What will happen, if you read in your committee
15 analysis, is, I forget how much money, but it is a fairly
16 large amount of money that currently is off of the tax
17 rolls because of pollution control. The reason it has to
18 be in the Constitution is because we cannot, under our
19 current Constitution, have any classification of property
20 that is different than just value except for those that
21 are specifically enumerated in the Constitution. And
22 that's what the Supreme Court said in Interlocken Estates
23 versus Snyder, and that was 304, So.2d 433.
24 Justice Irwin at the time wrote that Article IV --
25 Article VII, s.4 of the 1968 Constitution requires that,
1 by general law regulation shall be prescribed which
2 secures just evaluation of all, and all is capitalized in
3 the opinion, property for ad valorem tax provided, and
4 then it has the exceptions, agricultural land or land used
5 exclusively for noncommercial, recreational purposes.
6 Now, if you look at the committee analysis you will
7 notice that our current Constitution does not read exactly
8 as it did when this opinion was written, and that's
9 because we have added high-water recharge areas. And I
10 think we did that in 1980 or somewhere thereabouts, we
11 recognized the value of that and we wanted to create a tax
12 exemption, so to create that good public policy, we had no
13 alternative but to put it in the Constitution.
14 And of course, they also talked about the property in
15 the state. And then the Court goes on to say that r the
16 1985 Constitution, we had held that the legislature could
17 tax different classes of property on a different basis as
18 long as the classification was reasonable. The people in
19 the state, however, by enumerating in their new
20 Constitution which classifications they want have removed
21 from the Legislature the power to make others.
22 It's true the Constitution revision allows the
23 Legislature to prescribe regulation for the purpose of
24 securing the just value of all property, but such
25 regulations must apply to all property and not to any one
1 particular class. The regulations contemplated by the
2 Constitution are those which establish the criteria for
3 valuing property. And all property in those four classes,
4 and now I think it's up to six or something, specifically
5 enumerate in the Constitution must be measured under the
6 same criteria. The statute was examining ways of
7 classification for taxation purposes, and therefore, it is
9 And so, if we want to continue to allow this, then it
10 has to be in the Constitution to do so. And that's why I
11 really viewed this proposal from the beginning as a
12 technical one. And then I think some people misunderstood
13 my intentions. And Mr. Shebel is writing the same thing I
14 am saying in telling you to vote no, when I think that if
15 you read what he is saying, he should have encouraged you
16 to vote yes.
17 COMMISSIONER HENDERSON: Mr. Hawkes, I am trying
18 to -- I think I've got it, but you would agree that this
19 is consistent with Article II, s.7, of the Florida
20 Constitution which says a policy of the state to abate air
21 and water pollution.
22 COMMISSIONER HAWKES: I think it helps fulfill that
23 policy, yes.
24 COMMISSIONER HENDERSON: I agree with that. Now,
25 help me with this because I'm not sure about this. Are we
1 talking about evaluation of the real property, or are we
2 talking about tangible personal property?
3 COMMISSIONER HAWKES: Well, when we talk about ad
4 valorem taxes we are talking about all property that is
5 subject to ad valorem taxation. And although I suppose
6 technically you could have a piece of real property that
7 somehow serves as pollution control, I'm not aware of any.
8 I mean, normally what we are talking about is either
9 tangible personal property or it becomes part of the real
10 because it is permanently affixed to a structure that's
11 built on the real property, so it would appear on the real
12 property tax roll.
13 COMMISSIONER HENDERSON: Okay. And right now they're
14 being assessed at salvage value or at just value?
15 COMMISSIONER HAWKES: They are being -- right now,
16 what's currently happening in Florida is it was assessed
17 at just value. Just to give you a little more history,
18 what happened is this statute came about in 1967. When
19 this statute came about, allowing the assessment of
20 pollution control equipment, the Legislature went to great
21 lengths to say -- and they defined pollution control
22 equipment and everything. And it happened in 1967 when
23 the same body as we are in now was meeting to discuss and
24 decided to do a new Constitution, the 1968 Constitution.
25 And they are both going down the road at the same
1 time, and the '68 Constitution was adopted, but the new
2 statute, 1967 statute, becomes inoperative, technically,
3 because of the new Constitution.
4 So the public policy was frustrated but no one
5 recognized that until just recently. And I believe you
6 have already had some property appraisers do it, and I
7 think there will be more next year because they obviously
8 took an oath to uphold the Constitution and if they think
9 the Constitution doesn't allow them to do it, even if it
10 would be good to do it, they obviously don't have the
11 authority to do it.
12 CHAIRMAN DOUGLASS: All right. Commissioner Thompson
13 and then Commissioner Barkdull, do you have a question?
14 COMMISSIONER THOMPSON: Just a question, yes.
15 CHAIRMAN DOUGLASS: Okay, go ahead.
16 COMMISSIONER THOMPSON: Just a question. I think
17 several of us don't quite understand. I'm trying to get
18 it into terms that even I can understand. And what I
19 don't understand is why we need to separate it out. So I
20 want you to follow this and see if my thought process is
21 correct or incorrect.
22 Right now if you are a utility and you have pollution
23 control equipment on your plant and your plant is worth
24 $10 million and you put this pollution control equipment
25 on it, in your evaluation for ad valorem tax purposes your
1 plant is still worth $10 million.
2 Now if your amendment passes and you have got a
3 $10 million plant and you put $1 million worth of
4 equipment on it, then what's going to happen?
5 COMMISSIONER HAWKES: Then, well, obviously the
6 Legislature, in adopting the regulations to secure just
7 value, have required the property appraisers to look at
8 three different approaches to value. One would be the
9 market approach, which is what you discussed. Two would
10 be the replacement cost. And three would be the income
12 If the property produces so much income, it is worth
13 X number of dollars, or if it is going to cost X number of
14 dollars to build, that's how much it's worth, or whatever
15 a willing buyer will pay.
16 Some forms of property are very appropriate to value
17 by market approach, perhaps your home. We have a lot of
18 homes and we can say people are paying so much for
19 three-bedroom homes, so that's usually the best value for
20 a home.
21 Other properties, the income approach is more
22 appropriate. When we get into industrial plants though,
23 the typical methodology, and obviously one property that
24 the property appraiser is required to look at is the
25 replacement cost. And if it cost X number of dollars to
1 put that scrubber on your smokestack and that makes it so
2 that you can continue to operate in business, obviously
3 that smokestack is a real cost and adds real value to the
4 plant. But instead of assessing you, this allows the
5 property appraiser to say, What's it worth when you are
6 done with it; what is the salvage value, because that's
7 what the Legislature decided was the best way to approach
9 So I would answer your question by saying, Yes, I do
10 think this is necessary, that's why the Legislature passed
11 the statute in '67 before our Constitution required what
12 it requires now, and that's why I would ask for -- this
13 amendment does nothing but to allow the status quo to
15 COMMISSIONER THOMPSON: So follow-up question, are
16 the taxes of those utility plants or industrial plants
17 going to go up or down as a result of this amendment?
18 COMMISSIONER HAWKES: If this amendment passes, I
19 would submit that those industrial plants, those paper
20 companies and things, you know, their assessment would
21 stay the same. It would not go up or down because of
22 this. But what might happen if we don't do this, if this
23 issue comes before the court, and I'll tell you there are
24 a couple cases pending in the state of Florida right now,
25 so it is going to come before the court I think it is
1 reasonable to say, and the court says, Yes, in fact, the
2 Constitution doesn't allow it because the court isn't
3 allowed to say, Well, this is good public policy or bad
4 public policy, they have to say, This is what the
5 Constitution says or this isn't what it says.
6 And so if they were to rule, and let's say that they
7 were to rule in December of this year, that the
8 Constitution requires, and it clearly does, then what
9 happens is on January 1 when property appraisers go out to
10 make the assessment, they have to put that number that's
11 in the committee analysis, and the committee analysis is
12 listed at, one, two, three, four, five, six, seven, eight,
13 nine -- I guess it is like 3« billion; is that right? A
14 lot of them.
15 They would have to put that back on the tax roll.
16 And then the Legislature, obviously, would be concerned
17 because that hurts industry, so they would, I would
18 imagine, propose a constitutional amendment in their next
19 legislative session, but that wouldn't go on the ballot
20 until November of 2000, so the best case scenario wouldn't
21 be until 2001 until these companies could again have the
22 tax break for installing the pollution control equipment,
23 so this avoids serious future problems. And it does not
24 change the status quo.
25 CHAIRMAN DOUGLASS: Commissioner Thompson.
1 COMMISSIONER THOMPSON: Now, did the taxes go up or
2 down as a result of this? I mean, is that as simple as
3 you can explain it?
4 COMMISSIONER HAWKES: This is real simple.
5 COMMISSIONER THOMPSON: Let me ask you this. There
6 are court cases going on today on this issue; is that
8 COMMISSIONER HAWKES: Yes.
9 COMMISSIONER THOMPSON: All right. Have decisions
10 been made by lower courts at this point?
11 COMMISSIONER HAWKES: No.
12 COMMISSIONER THOMPSON: So, it is in the state of
13 question, at least?
14 COMMISSIONER HAWKES: I'm saying, let's remove this
15 question from the table, let's not have this question on
16 the table because even if the court were to decide it was
17 unconstitutional on January 1 of this year, it is not
18 going to affect it because that's the date and everybody
19 that got it is going to continue to get it. So, to answer
20 your question, do they go up or down, no, they don't go,
21 they don't go down, we protect them.
22 CHAIRMAN DOUGLASS: Commissioner Mills, you may ask a
24 COMMISSIONER MILLS: This is a question. Did I
25 understand, if I understood you, were you saying that it
1 would, in the absence of this, the taxes might go up?
2 COMMISSIONER HAWKES: Yes.
3 COMMISSIONER MILLS: And that in the presence of this
4 they would not?
5 COMMISSIONER HAWKES: Yes.
6 CHAIRMAN DOUGLASS: Commissioner Ford-Coates.
7 COMMISSIONER FORD-COATES: Commissioner Hawkes, I
8 have two questions. I see that this was disapproved by
9 the committee on bonding and investments. I would be very
10 interested to hear the discussion from those people on
11 that committee as to why they voted to disapprove.
12 And in addition, did any property appraisers testify
13 on this issue, as to the administration, is this an
14 efficient method, what are the objections? I guess I'm
15 kind of surprised it didn't come before finance and tax
16 since it does affect Article VII, and I'm confused at this
18 COMMISSIONER HAWKES: Well, to answer one of your
19 questions, no property appraisers came to testify. To
20 answer the second part of that question, would it be easy
21 to administer, yes, it would be exactly what they are
22 doing right now, but what they won't be able to do in the
23 future if we don't fix it.
24 COMMISSIONER FORD-COATES: But I'd like to know what
25 the other members of the committee that voted to
1 disapprove it, why they voted to disapprove. I have heard
2 explanations, but I still have not yet heard the other
3 side of the issue and I'd appreciate those committee
4 members speaking up.
5 CHAIRMAN DOUGLASS: Commissioner Hawkes was on that
6 committee. You can tell them why it was voted down.
7 COMMISSIONER HAWKES: Well, you know, at that
8 committee basically business came and said, Well, gosh, we
9 think everything is working fine right now, we don't want
10 to upset the applecart. But truthfully, in my own lax
11 preparation, I haven't done the research to actually find
12 the case law that very clearly says that you cannot
13 classify property to allow a separate taxation unless it
14 is in the Constitution.
15 And I'll be happy to show you the case, but there are
16 other ones as well. And that's why I wish Justice
17 Sundberg was here because he actually ruled on one of
18 those and said, No, that's not just value, therefore it
19 can't be.
20 CHAIRMAN DOUGLASS: All right, anybody else?
21 Commissioner Corr.
22 COMMISSIONER CORR: Thank you, Mr. Chairman.
23 Commissioner Thompson helped me an awful lot, and he
24 almost got me there. And I'm going to continue because
25 I'm a little slower yet, but if you would, please,
1 Commissioner Hawkes, just nod yes or no because when you
2 talk I get more confused, so just -- let me try to walk
3 through this, okay? And that's, again, because I just
4 can't understand.
5 The way it works now is the Legislature is using
6 salvage value as an valuation method in order to provide
7 sort of a special interest, not really an exemption but an
8 encouragement to the installation of these pollution
9 control devices; so that's correct?
10 COMMISSIONER HAWKES: Yes.
11 COMMISSIONER CORR: Nice job. So, if we put this in
12 the Constitution, it is going to protect that sort of
13 special interest, good special interest exemption, which
14 isn't really an exemption and allow us to continue to
15 encourage the installation of pollution control devices
16 and so an appraiser or whoever, some court later on can
17 come back and sort of turn the Legislature's opinion
18 around and require the real value to be assessed, and
19 thus, when you would have pollution control devices, they
20 would be discouraged from being installed by those
22 COMMISSIONER HAWKES: Yes.
23 COMMISSIONER CORR: So, if we do this, we protect
25 COMMISSIONER HAWKES: We need that, yes.
1 COMMISSIONER CORR: I think I've got it. Okay.
2 Close the debate.
3 CHAIRMAN DOUGLASS: Anybody else? Anybody want to be
4 heard? All right, do you consider you have closed or do
5 you want to --
6 COMMISSIONER HAWKES: Based on what Representative
7 Corr said, Mr. Chairman, I have closed.
8 CHAIRMAN DOUGLASS: Okay. All right, we will proceed
9 to vote again on reconsideration of No. 91.
10 (Vote taken and recorded electronically.)
11 CHAIRMAN DOUGLASS: Has everybody voted? All right.
12 Announce the vote.
13 READING CLERK: Sixteen yeas and 11 nays,
14 Mr. Chairman.
15 CHAIRMAN DOUGLASS: Okay. We are now going to go to
16 lunch and come back at 12:45 and conclude at approximately
17 2:00 after we come back. Lunch is in the back right back
18 here so you won't need to take any time. We will keep the
19 room secure so you can leave anything you want to leave in
21 (Lunch recess at 12:50 p.m.)
22 SECRETARY BLANTON: All unauthorized visitors please
23 leave the chamber. All commissioners indicate your
24 presence. All commissioners indicate your presence.
25 (Quorum taken and recorded electronically.)
1 SECRETARY BLANTON: Quorum present, Mr. Chairman.
2 CHAIRMAN DOUGLASS: We will come to order. Could
3 everybody take their seats, please? We are not doing too
4 good. Call them. Mr. Sergeant, can you go seat them?
5 Commissioner Kogan and Commissioner Connor, you are under
8 CHAIRMAN DOUGLASS: But not for Connor, right, not
9 for Connor. All right. We will come to order, please.
10 The secretary tells me that we have a camera here and we
11 want to recreate the swearing in of our newest member, so
12 we will do it all over again. And we will ask
13 Commissioner Jennings to -- well you can stand there.
14 And then we will ask for Commissioner Marshall,
15 Ford-Coates and Commissioner Evans-Jones to -- and, yes,
16 and Commissioner Kogan, we are going to recreate this for
17 the camera, the swearing in.
18 (Commissioner Barton re-sworn by Commissioner Kogan.)
19 CHAIRMAN DOUGLASS: All right. Commissioner Mathis,
20 I think you wanted to be recognized; is that correct?
21 Somebody told me you wanted to withdraw something?
22 COMMISSIONER MATHIS: Oh, yes.
23 CHAIRMAN DOUGLASS: Everybody that sits next to
24 Commissioner Anthony gets confused and forgets what it was
25 they were going to do. He is very persuasive, you have to
1 be careful. Commissioner Mathis.
2 COMMISSIONER MATHIS: I would like to propose the
3 withdrawal of Proposal No. 42, which dealt with the recall
4 of elected officials and judges.
5 CHAIRMAN DOUGLASS: All right. Without objection,
6 Proposal 42 is withdrawn. Please come to order, lunch is
8 COMMISSIONER MATHIS: I would also like to propose
9 the withdrawal of Proposal No. 139 that prohibited
10 county-wide election of school board members. That also
11 is a public proposal.
12 CHAIRMAN DOUGLASS: Without objection, Proposal No.
13 139 is withdrawn.
14 COMMISSIONER MATHIS: And in light of our
15 comprehensive adoption of the proposal yesterday dealing
16 with education, I would like to withdraw Proposal No. 140
17 that dealt with free public schools and universities.
18 CHAIRMAN DOUGLASS: Without objection, Proposal 140
19 is withdrawn.
20 COMMISSIONER MATHIS: Thank you.
21 CHAIRMAN DOUGLASS: All right. We will now proceed
22 to the special order. And I believe the next item on
23 special order is in your red book and it's committee
24 substitute for Proposal 51 by the committee on finance and
25 taxation by Commissioner Anthony, and it was recommended
1 as a committee substitute and approved by the committee on
2 finance and taxation.
3 Just a moment, before we get to that, one of our more
4 important members has returned to us who keeps one of our
5 other members straight and informed, Rita Lowndes is back,
6 we are delighted to have her back. John, you can leave
7 now. Commissioner Scott, I have been informed you want to
8 be recognized before we consider Proposal 51.
9 COMMISSIONER SCOTT: We have the matter on
10 reconsideration that's Judge Barkdull's bill and I was
11 going to move to take up that motion for reconsideration
12 at this time.
13 CHAIRMAN DOUGLASS: All right. Judge Barkdull,
14 that's 123?
15 COMMISSIONER BARKDULL: 123 on the -- by original
16 proposal to abolish the budget and tax commission. I
17 agree with Commissioner Scott, I would like to see a
18 motion for reconsideration decided now. And if the motion
19 should prevail, I think we will move to leave it pending.
20 CHAIRMAN DOUGLASS: Commissioner Scott.
21 COMMISSIONER SCOTT: Right. Mr. Chairman --
22 CHAIRMAN DOUGLASS: We don't want to debate this, but
23 you can explain it.
24 COMMISSIONER SCOTT: Well, that is debatable, whether
25 it is debatable.
1 CHAIRMAN DOUGLASS: You can explain it.
2 COMMISSIONER SCOTT: I think if the original matter
3 was debatable, you can debate a motion to reconsider. But
4 regardless of that, some of us who voted for this are
5 having some second thoughts about the whole issue of this
6 budget and tax commission, which we have been, for
7 example, working real hard on a lot of the -- on the same
8 identical issues in our committee for the past several
9 months, so they would meet again in two or three years.
10 So the whole issue we think we ought to rethink it.
11 So if we could move to -- the Commission would adopt
12 the motion to reconsider it, then he would temporarily
13 pass it and it would come back before us, probably, I
14 assume, in a couple meetings.
15 CHAIRMAN DOUGLASS: All right. It has been moved
16 that this be reconsidered. All in favor of
17 reconsideration, say aye. Opposed?
18 (Verbal vote taken.)
19 CHAIRMAN DOUGLASS: It carries. It is on
20 reconsideration. Commissioner Barkdull, you are
22 COMMISSIONER BARKDULL: I now move that it be
23 temporarily passed to be considered at a later date.
24 CHAIRMAN DOUGLASS: All in favor, say aye. Opposed,
1 (Verbal vote taken.)
2 CHAIRMAN DOUGLASS: It passes. It will be considered
3 at a later date. All right. We will now proceed to
4 Proposal 51 which we have already talked about. Would you
5 read it, please? It is in your red book.
6 READING CLERK: Committee substitute for Proposal No.
7 51; proposal to revise Article VII, s. 4, Florida
8 Constitution, regarding the assessment of improvements to
9 real property which occur between assessment dates.
10 CHAIRMAN DOUGLASS: All right. Commissioner Anthony,
11 you are recognized.
12 COMMISSIONER ANTHONY: Thank you, Mr. Chairman. This
13 Proposal 51 is related to partial-year assessment of real
14 property. As the members of the commission know, ad
15 valorem taxes are specifically reserved in the
16 Constitution for local government. They are reserved
17 specifically for us as local governments to carry out the
18 responsibility that we have as local government officials.
19 That is to provide law enforcement, that is to provide in
20 some form or fashion, if it is a county government, health
21 and social services, to provide all types of services that
22 the local government is charged with providing.
23 This primary source, in many ways, has been cut in
24 half in terms of the revenue generated oftentimes by
25 partial-year assessment or lack thereof of a process of
1 partial-year assessment.
2 It is costing local government some $121 million
3 statewide of revenue because we are not able to get the
4 funds or get the revenue for construction of properties,
5 not, quote, unquote, substantially complete by January
6 1st. There being development houses, whether it is
7 housing or commercial development that receives services
8 from the local government without paying any revenue to
9 that local government.
10 At the finance and taxation committee meetings, this
11 proposal, Proposal 51, was approved by this committee with
12 an amendment that I'll ask Commissioner Nabors to share
13 with you. But the bedrock of local government in carrying
14 out our responsibilities lies in this proposal, and I
15 would urge, really urge you to consider supporting this
16 proposal, and again allowing the voters to recapture and
17 not allow the loophole that we have in our present law as
18 it relates to partial-year assessments.
19 Commissioner Nabors, did you want to talk about your
21 CHAIRMAN DOUGLASS: Commissioner Barkdull has a
22 question for you.
23 COMMISSIONER BARKDULL: Commissioner Anthony.
24 COMMISSIONER ANTHONY: I yield.
25 COMMISSIONER BARKDULL: Let me see if I understand
1 the situation. If you have a lot that's vacant on
2 January 1, and somebody commences a house on January 10th
3 and it should be completed on September 30th, how would it
4 be assessed?
5 COMMISSIONER ANTHONY: It will be assessed the
6 following year.
7 COMMISSIONER BARKDULL: The following year because it
8 is a completed house?
9 COMMISSIONER ANTHONY: That is correct.
10 COMMISSIONER BARKDULL: But during the year of
11 construction it would not be assessed?
12 COMMISSIONER ANTHONY: That is correct.
13 COMMISSIONER BARKDULL: At the present time, if there
14 is a house under construction on January 1 --
15 COMMISSIONER ANTHONY: Commissioner Barnett was
16 assisting me on this matter. Am I correct?
17 (Off-the-record discussion.)
18 COMMISSIONER BARKDULL: If you have a house that's
19 under construction on January 1 and it is substantially
20 completed, I believe is the language now, it then goes on
21 the tax roll; is that correct?
22 COMMISSIONER ANTHONY: That's correct.
23 COMMISSIONER BARKDULL: Now, how would your proposal
24 alter -- and what I'm really concerned about is what date
25 do you pick for placing it on a tax roll, a partially
1 completed residence for sell?
2 COMMISSIONER ANTHONY: Commissioner Nabors, your
3 amendment may speak to that.
4 CHAIRMAN DOUGLASS: Commissioner Nabors.
5 COMMISSIONER NABORS: Let me address that specific
6 question, Commissioner Barkdull. And then I'm going to
7 talk about the amendment and then maybe the merits to it.
8 As you know, just to summarize generally, what the current
9 status of the law is, is that on real property, the
10 property has to be substantially completed prior to
11 January the 1st in order to be valued for the ensuing,
12 really, budget year.
13 In other words, if the property is substantially
14 completed on January the 1st, then those improvements can
15 be valued in the assessed value of that property to take
16 into consideration the millage that's levied until the
17 next October the 1st. There is always a lag because our
18 property taxes relate to the substantial completion to the
19 prior January the 1st.
20 What this amendment does, it allows the Legislature
21 to deal with this problem with no prejudgment of how they
22 would do that; that they will have the ability on a
23 partial-year basis to come up with a partial-year roll by
24 legislation by general law. There have been a lot of
25 proposals to deal with that that will work out the
1 mechanics, but they run into some problems for reasons
2 which I can explain in more detail.
3 What this would allow is, would go into the
4 Constitution to allow either on a uniform statewide basis,
5 or on a county basis, for the Legislature by general law
6 to take into consideration the value of improvements on a
7 partial-year basis rather than -- it wouldn't have to be
8 on January the 1st, the way it is now.
9 CHAIRMAN DOUGLASS: Commissioner Barkdull.
10 COMMISSIONER BARKDULL: I'm sorry, sir, I don't --
11 I'm not as informed of this to be able to ask questions,
12 but what worries me is whether you are going to have 364
13 days to pick a date to evaluate partial completion.
14 CHAIRMAN DOUGLASS: All right. Well, let me
15 suggest -- your question suggests another problem. What
16 is a partially completed house worth on January the 1st?
17 It is worth zero in many instances because you can't live
18 in it.
19 COMMISSIONER NABORS: Mr. Chairman, let me go through
20 a further explanation of what the proposal says and then
21 maybe it will answer some of the questions.
22 CHAIRMAN DOUGLASS: Is this dealt with by law now or
23 is it dealt with in the Constitution?
24 COMMISSIONER NABORS: The reason why you need the
25 amendment is there have been numerous proposals over the
1 years to deal with the partial assessment of improvements
2 so that you don't have to use the value of January the
3 1st. Many proposals --
4 CHAIRMAN DOUGLASS: You mean statutory proposals?
5 COMMISSIONER NABORS: Statutory proposals. The
6 problem with it is it runs into two problems. In the
7 Legislature, statutorily, one problem is most people feel,
8 constitutionally, you can't have a distinction between
9 tangible, personal property and real property. That's one
11 The second problem is, in many small counties -- in
12 many small counties it would cost more to implement a
13 partial-year roll than it would yield revenue, so there is
14 a problem with small county property appraisers objecting
15 to this.
16 So, what's happened is it passes various processes
17 during the process but always ends up unable to control
18 those two issues. What this proposal is intending to do
19 is, in language that is fairly clear, it authorizes the
20 Legislature -- the Legislature may authorize -- it doesn't
21 mandate anything -- may authorize taxation improvements of
22 real property, real property, so it allows it to be done
23 to real property not to any personal property, solves the
24 one problem.
25 Between assessment dates, uniformly, all of the local
1 county options -- so it really, constitutionally, it
2 empowers the Legislature, if they want to, to deal with
3 this issue. Now, as to whether or not they would use the
4 still substantially complete concept and just move the
5 date or whether they will have some other process to deal
6 with that, I'm not familiar with all the details of
7 various proposals that have been made statutorily. So
8 what this does is it puts in a constitutional framework
9 the ability of the Legislature, if it wants to, to deal
10 with this issue.
11 Second issue is, why would you want to do this? Why
12 would you want to do this? And I would argue that the
13 arguments that are made is that there is always a lag.
14 First let me argue why you would want to do it just
15 to real property and not tangible personal property. The
16 argument I would make there is it is the improvements to
17 real property which create the demand for services --
18 which creates the demand for services. The existence of
19 valued tangible personal property doesn't necessarily
20 create the demand for services like improvements that
21 occur to new homes or new commercial establishments. It
22 could create the demand for new schools, potentially,
23 create the demand for police, law, the other general
24 government functions. So it is the real property
25 improvements which create that demand.
1 The problem is for those who advocate partial-year,
2 which will be a debate in the Legislature, is there is
3 always a lag between the value of those improvements going
4 on the roll, and therefore the creation of demand for
5 those services and the ability of the government to pay
6 for it.
7 If the improvement is substantially completed on
8 February the 1st for a new house which creates five new
9 kids in school, which creates, you know, additional demand
10 for services, it doesn't appear -- the value of that on a
11 uniform millage doesn't appear until the subsequent
12 October the 1st. There is always a lag.
13 So the thought is that by limiting it to real
14 property, it is fundamentally fair; it solves the problem
15 in the Legislature, plus it surgically deals with issues
16 as to what improvements on a partial-year basis creates a
17 demand for the services.
18 The argument made against, politically it's made, and
19 from a policy standpoint in the Legislature, against
20 partial year, is the fact, Well development already pays
21 high impact fees. Which is true. That varies by
22 different areas of the state. So, the question is that in
23 some urban areas of the state there are very high impact
24 fees which the government has to pay. The argument
25 against that is, which I think the Legislature ought to be
1 able to deal with, is impact fees, goes to infrastructure,
2 capital improvements, that the creation of the growth
4 Impact fees cannot be used for general governmental
5 services, whereas property taxes can. So this allows you
6 the ability to get some relief to the existing property
7 payers in terms of the demand for services. The other
8 reason on impact fees is the reason a lot of development
9 communities hate impact fees.
10 In fact, it's paid usually at the time of a building
11 permit of CO, certificate of occupancy, whereas this would
12 just be a part of the value of individual properties which
13 would be in the property tax rolls and appear the next
14 year, it wouldn't be a charge paid any different than the
15 other charges.
16 What would happen if you assume that the county or a
17 city would have the same budget for a particular fiscal
18 year, would have the same millage, what this would mean is
19 that certain properties would pay greater contributions on
20 the same millage because of the value of the improvements
21 and others would pay less. It really is an equity issue
22 which allows the legislature the flexibility to deal with
23 the issue of partial year. Without this, without this, if
24 you have got to try to do a partial year on tangible as
25 well as real property, you lose your policy underpinning
1 for doing that and you create political problems with
2 utilities and other people, substantial earnings of
3 tangible, personal property.
4 And also you have got to be able to do it on a local
5 option basis, none of which you can do under the current
7 CHAIRMAN DOUGLASS: Let me ask you this. One of the
8 unspoken things you have said is if you adopt this you
9 will increase the amount of taxes that are paid for ad
10 valorem taxes on real property in the county, correct,
11 assuming the Legislature does it?
12 COMMISSIONER NABORS: Absolutely not.
13 CHAIRMAN DOUGLASS: Why not? If these aren't on the
14 rolls, if you are not raising the taxes, why put them on
15 the roll?
16 COMMISSIONER NABORS: We can debate that,
17 Mr. Chairman. What I am telling you would happen is if
18 you assumed that a county X has a budget of $5 million
19 then that equates into a -- that $5 million then is
20 divided among all the assessed value, that's converted
21 into a millage rate. As certain properties' values
22 increase, then that means the overall millage goes down.
23 It affects different taxpayers, but it doesn't create,
24 necessarily, new dollars to the local government. It is
25 more of an equity issue than it is an issue of new funds.
1 In other words, you always, when property values go
2 up, there is always, the millage then goes down -- when
3 property values go up in the aggregate, the millage goes
4 down, but the different property appraisers feel burdened
5 based upon whether theirs went up or whether theirs stayed
6 the same.
7 So, it doesn't mean it creates new revenues for local
8 government, it is an equity issue primarily.
9 COMMISSIONER BARKDULL: As I understand -- will the
10 gentleman yield for a question?
11 COMMISSIONER NABORS: Yes.
12 COMMISSIONER BARKDULL: Commissioner Nabors, then
13 with the explanation you have given, it looks to me like
14 still we can have 67 counties having different days of
15 deciding whenever they are going to determine the value of
16 a piece of real estate, and I don't know, we have got
17 300-and-some-odd cities, although I think many of them use
18 the county appraisals, but we are going to have no --
19 rather than to have one particular day we know that that's
20 the evaluations that are going to be used, it looks to me
21 like you are going to have a diverse number of days to fix
22 the total evaluation within the counties.
23 COMMISSIONER NABORS: Yes. I mean, we would have to
24 assume that nothing in this proposal dictates that, it
25 just authorizes the Legislature to allow a mechanism for
1 partial -- for considerations of value of improvements
2 other than on a January the 1st date. We have to assume
3 the Legislature, by general law, would operate statewide;
4 even though it might be a local option, we would have to
5 assume that the Legislature would be wise in this area,
6 which all the proposals in the past have done, to have the
7 system operate uniformly statewide except as on a local
8 option basis.
9 COMMISSIONER BARKDULL: One last question, does the
10 Statewide Property Appraisers Association have a position
11 on this?
12 COMMISSIONER NABORS: Well, I think it varies. Most
13 of them -- some like it, some don't. I mean, I don't know
14 the property appraisers in the state have ever agreed on
15 anything as a unanimous position. I think generally what
16 you will find is the urban property -- some of the urban
17 property appraisers like it, all of the small ones hate
18 it. And that's why we really have to do a local -- and
19 the reason -- there is a lot of debate among property
20 appraisers, even those that like it, whether they want to
21 do it or not.
22 But I would argue that it makes good sense in public
23 policy that the property appraiser is charged with the
24 duty of valuing property, and that's a debate that ought
25 to be happening in the Legislature.
1 CHAIRMAN DOUGLASS: All right. Now I am going in
2 this order. Commissioner Connor was first, then
3 Commissioner Langley is next, and Commissioner Ford-Coates
4 is third. And you are recognized, Commissioner Connor.
5 COMMISSIONER CONNOR: Mr. Chairman, I think some of
6 the logic that we have heard may be described as Alice in
7 Wonderland logic. My objection is more fundamental than
8 the explanation that we have had. I have not had one
9 person write me, call me, fax me or E-mail me to tell me
10 that they were not paying enough in taxes to any
11 governmental entity.
12 The fact of the matter is that we know that
13 government has an insatiable appetite for money. We know
14 that government grows directly in proportion to the amount
15 of money available to it. And we know that there is an
16 inverse relationship between the size of government and
17 the amount of freedom and individual liberty that people
19 In my estimation, when a person, a young couple is
20 building their first house and it is substantially
21 complete but they cannot get a certificate of occupancy to
22 occupy it, they are likely in one of the most strained
23 financial positions they have ever been in because they
24 are trying to take care of the rent or the mortgage
25 payment on the building that they occupy, they have got
1 expenses associated with the construction of this new
2 property, and while there may be a theoretical increase in
3 value to it, in fact they have never been in a greater
4 financial strain ever.
5 And now, under this proposal, we will let government
6 place an even greater burden on them, make the strain all
7 the greater. Why? Because the local government needs
8 more money to offset the services associated with that.
9 I'm sorry, I disagree with that and I'm going to take my
10 stand on behalf of the taxpayer rather than the tax
11 collector in this instance.
12 CHAIRMAN DOUGLASS: Now, Commissioner Langley.
13 COMMISSIONER LANGLEY: Sort of a question and also a
14 comment on it. How is this going to fit in, if you-all
15 are familiar with the trim bill and its notice
16 requirements; how does it fit in with the value adjustment
17 board that meets when you contest the appraisers? And
18 they only meet once a year. They are under -- in fact,
19 the backup date here is getting these tax notices out.
20 Before then you have got to have it affirmed -- confirmed,
21 and before then you have got to have your DAV board meet
22 on it to confirm those that are contested. Before then
23 you have got all of your trim notices.
24 All of this is a pretty tightly packed schedule right
25 now. How does staggering, if that's what you are going to
1 do, these assessment dates, how in the world is all of
2 that going to work within those counties?
3 And secondly, picking up Commissioner Connor's
4 couple, or anyone else, that house that I can't live in in
5 January 1st is absolutely of no value to me. I don't care
6 how much I have got in it, it is of no value to me because
7 I am in a rented house or somewhere waiting to move in my
8 home. That house is of no value. And why should it be
9 taxed? And what is the equity if I started a month before
10 the January 1st and they come in and tax and my neighbor
11 waits until January the 2nd to start his house and he pays
12 nothing at all?
13 I'll tell you, it is Pandora's box, you really don't
14 want to open it. And, yes, there is a variation in the
15 property appraiser's opinion, it runs from terrible to
16 horrible. That's about the only variation.
17 CHAIRMAN DOUGLASS: All right. Commissioner
19 COMMISSIONER FORD-COATES: I rise with great
20 trepidation to discuss this issue because it affects two
21 areas of local government with which I work on a daily
22 basis, one is the county commission and the other is the
23 property appraiser.
24 So let me share with you what I believe their
25 positions are. The Florida Association of County
1 Commissioners considers this a prime issue as being
2 important to county commissions around the state. In most
3 cases, as Commissioner Nabors said, it would not raise
4 more revenue because the budget is adopted; that budget is
5 compared against the assessed value, the taxable value;
6 that's how the millage rate is determined. So if the
7 taxable value goes up, the budget is still over here;
8 there would be basically no change.
9 In small counties that have reached the ten mill cap,
10 however, it might have an affect on the amount of money
11 that they can raise in those counties because they are
12 dealing with very significant problems of revenue, in
13 dealing with that ten mill cap, the number of properties
14 that are exempt in many of those rural counties. So this
15 is an issue that county commissioners across the state
16 support with great enthusiasm.
17 On the other side, I would echo what Commissioner
18 Langley said. I have yet to meet a property appraiser
19 that thinks that this is workable in any format. And I
20 must tell you that my colleagues, the tax collectors, have
21 similar concerns.
22 The administration of a change, a move to
23 partial-year assessments is very difficult according to
24 the proposals that we have seen introduced in the
25 Legislature over the last several years. Some of those
1 problems have been delineated, what day are we going to
2 assess? Will there be two tax bills instead of one? Will
3 there be a second tax roll? Will we assess it on the next
4 year's tax roll? How do you do notice? How do you do
5 value adjustment board, et cetera?
6 I can share with you that my property appraiser and
7 several others' property appraisers have said to me that
8 if the words "substantially complete" were deleted from
9 the current statute, which does again raise the question
10 of can you deal with real property separate from tangible,
11 that that would solve the problem. Back in the, I want to
12 say, the '60s, properties in Florida did not have to be
13 substantially complete.
14 They were valued on January 1 as to whatever value
15 that had. And for instance, in our county we have a large
16 condominium being built. It has gone through its second
17 January 1st with no assessment on the roll. According to
18 the way this is being proposed, it would still not be on
19 the roll on January 1 because it is still not
20 substantially complete.
21 So, it is a bigger issue. I can't tell you right now
22 which way I'm going to vote, I'll tell you when I push my
23 button because I'm not sure, I have great concerns about
24 it, but on the other side it is very important to the
25 counties and to the state of Florida.
1 So I'm glad I added so much to the confusion on the
2 issue, but I needed to share my concerns.
3 CHAIRMAN DOUGLASS: We had, in the '78 Commission, we
4 had a commissioner who would get up and say, Well I'm
5 51 percent for this but I'm 49 percent against it; and you
6 haven't decided which one is which, is that correct?
7 COMMISSIONER FORD-COATES: (Nods affirmatively.)
8 CHAIRMAN DOUGLASS: Any other discussion?
9 Commissioner Evans.
10 COMMISSIONER EVANS: A question of Commissioner
11 Ford-Coates. The staff analysis said, says, if this
12 proposal had been fully implemented statewide in fiscal
13 year 1997, it would have generated approximately
14 $121.7 million in local revenue. Does that mean that
15 it -- is this new revenue or is it -- the 121.7 would
16 already have been there, just somebody else is paying it?
17 I don't understand how this is not a tax increase.
18 COMMISSIONER FORD-COATES: I would assume that what
19 they are doing is basing that upon the millage rate if the
20 assessed value, taxable value, increased across the state
21 and the millage rate was not lowered, then that would
22 increase -- that would generate that much revenue. But as
23 Commissioner Nabors said, that's not how taxing bodies
24 determine their budget. They do their budget and they do
25 their -- compare that to the taxable value. It is not
1 quite as simple as it sounds, so they might not even
2 choose to raise that additional revenue.
3 There have been a great deal of studies; there have
4 been task forces put together; a report was done back in
5 1995 from the Advisory Council on Intergovernmental
6 Relations. They did not comment, as I read it, to a
7 specific conclusion.
8 Again, sincere problems, sincere benefits. Good
10 CHAIRMAN DOUGLASS: All right. Anything further,
11 Commissioner Anthony, to close?
12 COMMISSIONER ANTHONY: Mr. Chairman, as I close on
13 this matter, let me tell you a story, if you will. I got
14 a call from, and the name had been changed to protect the
15 innocent, I got a call from a Mr. Rundle.
16 CHAIRMAN DOUGLASS: Mr. who?
17 COMMISSIONER ANTHONY: Mr. Rundle at my house one
18 night as I was looking at a football game. I think it was
19 either the game that University of Florida beat Florida
20 State, I think that was the game I was looking at that
21 night. And Mr. Rundle said to me, Mayor Anthony, could
22 you please help me with this immigration law because it is
23 really hurting our community. You need to do something
24 about that at City Hall.
25 And I said to Mr. Rundle, I said, Mr. Rundle, I am a
1 mayor, Congress people deal with immigration laws, you
2 should call your Congress person. And Mr. Rundle says to
3 me, in a very sincere fashion, You mean, I have got to
4 call my Congressman; I thought I would just start at the
5 top. I thought I would just start at the top. I thought
6 I would just start at the top. Well, that's the
7 expectation that our citizens have of local government.
8 They also have an expectation, Commissioner Connor,
9 that we are going to run our cities like the private
10 sector. And that is oftentimes what we say in local
11 government, we should have more efficiency, more
12 accountability, and more responsibility to our citizenry.
13 The demands of local government every week increases,
14 increases over and over again. The services that we are
15 expected to provide also have that same level of increase
16 and expectation by the citizens. If this body expects, as
17 many of us do in our own business, our own corporations,
18 the same level and quality of service, local government
19 must have the revenue to carry out that business function
20 and responsibility and quality of service.
21 If a house is empty and it is being constructed,
22 believe me, it does require local government service. An
23 example, if an empty house is sitting there in most of our
24 communities in which we live, it will require police
25 protection and police service. And if you don't think
1 that that is accurate, you start a home in any of our
2 communities and just leave it there for six months,
3 everyday, and don't let one police officer go by. I will
4 tell you that vandalism perhaps most likely would occur to
5 that house.
6 The day in which that construction starts drives a
7 demand on service from your local government. Give this
8 business, if you will, the tools to carry out the
9 responsibility that you charge us as corporate leaders,
10 because local government is a business, like it or not, it
11 is a business. I run South Bay, my administrators are
12 expected to make recommendations to that policy board that
13 have business principles within it.
14 Give local government the tools to run that
15 corporation like you would like the tools and resources to
16 run your organization. And allow Mr. Rundle, if you will,
17 the opportunity to know that that mayor can truly respond
18 to him about immigration issues, as well as those service
20 That $121 million that you talked about, Commissioner
21 Evans, is needed in order to run and provide quality
22 services in Orlando. It is needed, Commissioner Connor,
23 here in Tallahassee to provide you the services that you
24 need. And if we want to give the voters the opportunity
25 to provide us with those tools, let's support this
1 proposal. Thank you.
2 CHAIRMAN DOUGLASS: Commissioner Rundle, doesn't
3 Mr. Rundle have a green card; he wouldn't need to call
4 about that, would he? That was a hypothetical, I presume?
5 COMMISSIONER ANTHONY: There is no Mr. Rundle except
6 her father, of course. Is that correct, Commissioner
8 COMMISSIONER RUNDLE: (Nods in the affirmative.)
9 CHAIRMAN DOUGLASS: Having closed, we will proceed to
10 vote on the proposal. Open the machine.
11 (Vote taken and recorded electronically.)
12 CHAIRMAN DOUGLASS: Has everybody voted? Close the
13 machine and announce the vote.
14 READING CLERK: Thirteen yeas and 14 nays,
15 Mr. Chairman.
16 CHAIRMAN DOUGLASS: It fails. We will move to the
17 next proposal.
18 COMMISSIONER KOGAN: I spotted Commissioner
19 Sundberg's name with a vote on it and he is not here.
20 CHAIRMAN DOUGLASS: Well there was nobody by his
21 desk. They have moved them. Just a moment, they have
22 moved the names to put Commissioner Barton's name up so
23 they -- and Thompson is locked out and now he is Sundberg.
24 COMMISSIONER KOGAN: Oh, is that how it is?
25 CHAIRMAN DOUGLASS: You can get away with a lot of
1 votes today, Commissioner Thompson, and blame them on
2 Commissioner Sundberg. That is correct, isn't it? Well I
3 know he didn't vote, but he appeared on the --
4 Would you explain, Madam Secretary, to the body what
5 happened? Why it shows on the board as Sundberg when it
6 is actually Thompson that's voting.
7 (Off-the-record discussion.)
8 CHAIRMAN DOUGLASS: The recorded vote does not have
9 Sundberg voting, it has Thompson voting. And that is the
10 correct way that it was. And they will correct the board
11 so it will reflect what is showing on the machine.
12 COMMISSIONER ANTHONY: I'm from a small town, so I am
13 kind of confused. Could I ask for a revote on that matter
14 based upon that confusion that I may have on this matter?
15 CHAIRMAN DOUGLASS: You can ask for it.
16 COMMISSIONER ANTHONY: I am requesting a revote,
17 verification of the vote.
18 CHAIRMAN DOUGLASS: Verification is what you want.
19 COMMISSIONER ANTHONY: Okay.
20 CHAIRMAN DOUGLASS: I'll tell you what we will do, we
21 will have a roll call. Call the roll. That's the only
22 way we can verify it.
23 I think the Secretary has tried to assure you that
24 the vote is accurate, but if you want to do it, we have to
25 verify it with a roll call because they haven't changed
1 the names up there yet.
2 (Roll call taken and vote recorded electronically.)
3 CHAIRMAN DOUGLASS: You are going backwards.
4 Announce the vote.
5 SECRETARY BLANTON: Thirteen yeas, 15 nays,
6 Mr. Chairman.
7 CHAIRMAN DOUGLASS: All right. Just to test this,
8 Mr. Thompson, push your button, please. Open the machine
9 and let Mr. Thompson push his button.
10 See, he is Sundberg. Now, Barton, would you push
11 your button, Commissioner Barton? She is Commissioner
12 Barton. So until they change the thing, Thompson's vote
13 is being recorded on Sundberg's name. But it is being
14 recorded on the machine.
15 All right, we are going to move on. The next
16 proposal is 170 by the committee on executive. And,
17 Commissioner Mills, it was disapproved by the committee on
18 executive. And would you read it, please?
19 Oh, Commissioner Mills, you are recognized.
21 CHAIRMAN DOUGLASS: You are recognized, but you are
22 coming through silently.
23 COMMISSIONER MILLS: I know. Mr. Chairman, I have
24 spoken with the rules committee chairman. The provision
25 that you have in your packet, the committee amended it,
1 and that provision is not in there. And so I would
2 request to temporarily pass this until the proper
3 provision was accurately in the packet.
4 CHAIRMAN DOUGLASS: All right. It will be
5 temporarily passed pending giving you the right thing in
6 your packet.
7 We will move on to Commissioner -- well, Commissioner
8 Sundberg is not here. I would suggest that we temporarily
9 pass it since he is going to be here tomorrow. Without
10 objection we will do so. Or he plans to be here, you
11 know, that doesn't mean he will be.
12 Then we will move to committee substitute for
13 Proposals 112 and 124 by the Committee on Finance and
14 Taxation, Article VII. And Commissioner Mills and
15 Ford-Coates -- was recommended as a committee substitute
16 and approved by the Committee on Finance and Taxation.
17 Please read it.
18 READING CLERK: Committee substitute for Proposal
19 Nos. 112 and 124; proposal to revise Article VII, s.3,
20 Florida Constitution; providing for an exemption from ad
21 valorem taxation for certain tangible personal property.
22 CHAIRMAN DOUGLASS: All right. We have two of you up
23 that are both joint. All right, who wants to go first?
24 Commissioner Mills, all right.
25 COMMISSIONER MILLS: I'll just introduce this
1 concept. This comes from testimony we heard from the
2 public suggesting that tangible personal property tax
3 below a certain level was actually from the point of view
4 of appraisers and collectors almost just a nuisance rather
5 than an actual, positive cash flow. And the committee,
6 and particularly Commissioner Ford-Coates, spent a good
7 bit of time drafting an approach that would provide local
8 option, give legislative discretion, and I would ask, Mr.
9 Chairman, if you will recognize Commissioner Ford-Coates
10 to further explain it.
11 CHAIRMAN DOUGLASS: Commissioner Ford-Coates.
12 COMMISSIONER FORD-COATES: Gee, I hesitate to speak
13 on the same issue of ad valorem taxes after the last
14 moments. But we do have in Florida a very efficient
15 method of levying and collecting ad valorem taxes. You
16 are all probably aware of it, but let me just reiterate
17 the property appraisers, one in each of the 67 counties,
18 according to state guidelines, assesses all property,
19 certifies that information, plus the millage rates that
20 are certified to him or her, as the tax roll to the tax
21 collector, that the tax collectors then, in all of the
22 counties, mail out one bill representing taxes for the
23 county, the cities, the school boards, special districts,
24 hospital boards, water management districts, et cetera.
25 So it appears to the taxpayers as one simple bill once a
1 year. Mr. Chairman, do we have a quorum on the floor?
2 CHAIRMAN DOUGLASS: Yes.
3 COMMISSIONER FORD-COATES: In the area of tangible
4 personal property there are --
5 CHAIRMAN DOUGLASS: They are not paying attention,
6 but they are all on the floor, that's correct.
7 COMMISSIONER FORD-COATES: Then I assume they are all
8 going to vote for this anyway.
9 CHAIRMAN DOUGLASS: Either that or they are all going
10 to vote against it, we don't know yet.
11 COMMISSIONER FORD-COATES: There are three kinds of
12 tangible personal property. There are those levied on
13 business equipment and furnishings, those on attachments
14 to mobile homes which are the carports, the screened rooms
15 and the Florida rooms attached to mobile homes. And on
16 rental furnishings of properties, condominiums and houses
17 that are let out for rents.
18 Two of these areas, mobile home attachments and
19 rental furnishings, basically brings in in most counties
20 very little revenue, in some cases less revenue is coming
21 in than it is costing to assess and collect that
22 individual tax bill. What we have done is we have got a
23 proposal before you and it is required that it is done in
24 the Constitution, this cannot be done by the Legislature,
25 provides that mobile home attachments and rental property
1 furnishings for rental units of 10 or less will be exempt
2 at the county's option.
3 Therefore, if there is a county that for some reason
4 is managing to collect this tax and actually generate
5 revenue, they can choose to keep on taxing at that rate.
6 The figures that we got from the Department of
7 Revenue showed that in most cases most counties would opt
8 not to be taxing in this area; many counties have none of
9 these accounts on rental furnishings and other taxes.
10 This is a subject that has driven me crazy for my 20
11 some years working in the tax collector's office because I
12 can't imagine, and I'm sure you would agree with me,
13 anything more frustrating than mailing out a bill to
14 someone, getting their money back in, and knowing it is a
15 wash. It makes no sense whatsoever to tax someone just
16 for the sake of taxing.
17 And in this day and age where we hear that we want to
18 see government reinvented, we want to see government work
19 smarter, we want to see government work more like a
20 business, I submit to you there is no profit margin in
21 these kinds of tangible taxes, and it is time to make
22 government work more like a business, and I urge your
23 support of this good proposal.
24 CHAIRMAN DOUGLASS: All right. Commissioner Scott.
25 COMMISSIONER SCOTT: Just briefly. The finance and
1 tax committee passed this I think unanimously; it is a
2 great idea. It will help cut down on some unnecessary
3 processing and government expense.
4 CHAIRMAN DOUGLASS: Commissioner Scott, this might be
5 something that would be included on the ballot along with
6 others that were noncontroversial; is that substantially
8 COMMISSIONER SCOTT: Well, that would be up to --
9 CHAIRMAN DOUGLASS: I know, but I'm just asking your
10 opinion, is it noncontroversial in that sense?
11 COMMISSIONER SCOTT: Well, there wasn't any
12 controversy or opposition that we know of.
13 CHAIRMAN DOUGLASS: Okay.
14 COMMISSIONER SCOTT: But I don't know whether it
15 would be included.
16 CHAIRMAN DOUGLASS: Are you ready to vote? So we
17 will vote. Open.
18 (Vote taken and recorded electronically.)
19 CHAIRMAN DOUGLASS: I told you we had a quorum, just
20 barely. Commissioner Thompson is walking around pushing
23 CHAIRMAN DOUGLASS: Close the machine and announce
24 the vote.
25 READING CLERK: Twenty-six yeas and zero nays,
1 Mr. Chairman.
2 CHAIRMAN DOUGLASS: Commissioner Barkdull.
3 COMMISSIONER BARKDULL: Mr. Chair, Members of the
4 Commission, I suggest that we conclude the special order
5 at this time and go into announcements and withdrawals and
6 so forth.
7 CHAIRMAN DOUGLASS: After this is adjourned, we go to
8 committee meetings, as most of you know. But the next
9 item on the special order would have been, if we go
10 forward with the proposal relating to equal opportunity to
11 employment, housing, public accommodation and public
12 education, et cetera, which would probably carry us well
13 into the afternoon in debate.
14 And following that one, providing persons may not be
15 deprived of their rights because of gender, so those are
16 two items that we will start with fresh in the morning,
17 assuming that Commissioner Barkdull's suggestion is taken.
18 And without objection, it shall be. And, Commissioner
19 Rundle, do you rise for some specific question or purpose?
20 COMMISSIONER RUNDLE: Mr. Chairman, it appears again
21 we have run out of time, we have had a busy day. I would
22 like to make sure that the reconsideration of the
23 proposal, the one dealing with forfeitures is carried over
24 until tomorrow.
25 CHAIRMAN DOUGLASS: Okay. Without objection, it is
1 carried over. We have waived the rules. We have waived
2 the rules, without objection, we have waived the rules.
3 Commissioner Kogan.
4 COMMISSIONER KOGAN: Mr. Chairman, I'd like to remind
5 the following Commissioners that they do have proposals
6 pending in front of ethics and elections. And they are,
7 Mr. Chairman, public financing of election campaigns.
8 Let's see -- well I don't know if Commissioner Langley is
9 still here, he has got election of judges. Of course,
10 Commissioner Sundberg has something. Commissioner
11 Thompson has limiting political contributions.
12 Commissioner Riley has nonpartisan county elections.
13 Commissioner Connor has electoral participation. And
14 Commissioner Mills has improper conduct in connection with
16 Now, to all the Commissioners, we are meeting in Room
17 C in the Senate Office Building. And that is, go to the
18 ground floor and go on down one. Now, if we get all of
19 you there, we can dispose of all of these things and my
20 committee will be very, very happy that they won't have to
21 meet again. Thank you.
22 CHAIRMAN DOUGLASS: Commissioner Barkdull.
23 COMMISSIONER BARKDULL: Mr. Chairman, I have been in
24 discussion with Commissioner Mills and I think he may have
25 an announcement in reference to the Article V select
1 committee on costs.
2 CHAIRMAN DOUGLASS: Yes, Commissioner Mills.
3 COMMISSIONER MILLS: Mr. Chairman, in discussions of
4 this issue with those on our committee and others
5 involved, it would seem to make sense to call a meeting of
6 Article V select committee tomorrow afternoon upon
7 adjournment to get a status report. We hope Commissioner
8 Sundberg will be here at that time. And furthermore, we
9 have had staff, Mr. Buzzett and others, have been working
10 on some ideas, so we can get an update of where we are.
11 CHAIRMAN DOUGLASS: Do you have any estimate about
12 how you are coming? Are you going to have this ready for
13 the next meeting?
14 COMMISSIONER MILLS: I don't think we will know that
15 until we have that meeting.
16 CHAIRMAN DOUGLASS: Okay. We need to probably try to
17 expedite it if we can, maybe have another meeting before
18 the next meeting if you need it.
19 COMMISSIONER BARKDULL: The morning of the 26th if
20 they have to.
21 CHAIRMAN DOUGLASS: Correct.
22 COMMISSIONER BARKDULL: I think having a meeting
23 tomorrow afternoon to find out where they are going would
24 be a pretty good idea.
25 CHAIRMAN DOUGLASS: He is doing that. Is there
1 anything else? Commissioner Barkdull.
2 COMMISSIONER BARKDULL: I want to remind the members
3 of the Commission that we waived the rules in permitting
4 Commissioner Connor to introduce Proposition No. 187 which
5 has been referred to the declaration of rights committee,
6 and the declaration of rights committee is scheduled to
7 meet tomorrow afternoon at 6:15 or upon adjournment. Does
8 anybody else have any matters that they would like to
10 There will be no rules committee meeting this
11 afternoon. And I now move that we recess until the hour
12 of 8:30 tomorrow morning.
13 CHAIRMAN DOUGLASS: All right. Without objection, we
14 will recess until, what time, 8:30?
15 COMMISSIONER BARKDULL: 8:30.
16 CHAIRMAN DOUGLASS: Okay.
17 (Session recessed at 1:50 p.m., to be continued at
18 8:30 a.m., on January 15, 1998.)
2 STATE OF FLORIDA:
3 COUNTY OF LEON:
4 I, JULIE L. DOHERTY, MONA L. WHIDDON, and KRISTEN
L. BENTLEY, Court Reporters, certify that I was authorized
5 to and did stenographically report the foregoing proceedings
and that the transcript is a true and complete
6 record of my stenographic notes.
7 DATED this ______ day of ____________, 1998.
JULIE L. DOHERTY, RPR
12 MONA L. WHIDDON
KRISTEN L. BENTLEY
15 Court Reporters
Division of Administrative Hearings
16 The DeSoto Building
1230 Apalachee Parkway
17 Tallahassee, Florida 32399-3060
(850) 488-9675 Suncom 278-9675
18 Fax Filing (850) 921-6847