State Seal Calendar

Meeting Proceedings for January 27, 1998


          1                          STATE OF FLORIDA
                             CONSTITUTION REVISION COMMISSION



                                    COMMISSION MEETING



              DATE:                   January 27, 1998
              TIME:                   Commenced at 9:00 a.m.
         11                           Concluded at 5:00 p.m.

         12   PLACE:                  The Senate Chamber
                                      The Capitol
         13                           Tallahassee, Florida

         14   REPORTED BY:            KRISTEN L. BENTLEY
                                      JULIE L. DOHERTY, RPR
         15                           MONA L. WHIDDON
                                      Court Reporters
         16                           Division of Administrative Hearings
                                      The DeSoto Building
         17                           1230 Apalachee Parkway
                                      Tallahassee, Florida








          1                             APPEARANCES


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





          1                             PROCEEDINGS

          2             SECRETARY BLANTON:  All unauthorized visitors, please

          3        leave the chambers.  All commissioners indicate your

          4        presence.  All commissioners indicate your presence.

          5             CHAIRMAN DOUGLASS:  We have a fair quorum.  If you

          6        could get everybody into the chamber.

          7             SECRETARY BLANTON:  All commissioners indicate your

          8        presence.  Quorum call.  Quorum call.  All commissioners

          9        indicate your presence.

         10             (Quorum taken and recorded electronically.)

         11             SECRETARY BLANTON:  Quorum present, Mr. Chairman.

         12             CHAIRMAN DOUGLASS:  All right.  We'll come to order,

         13        please, Commissioners.  Okay.  If everybody would take

         14        their seats, we are going to get underway.

         15             SECRETARY BLANTON:  All unauthorized visitors, please

         16        leave the chamber.  All commissioners indicate your

         17        presence.

         18             CHAIRMAN DOUGLASS:  If you haven't signed in, sign

         19        in.  All right, if everybody will take their seats, we

         20        will begin our session this morning.  Before we start, let

         21        me say how happy and pleased we are that Commissioner

         22        Sundberg is back with us.  And also, Commissioner

         23        Sundberg, you need to know that everybody in this group

         24        has prayed for you and your family and we are just

         25        grieving with you.


          1             But we are also delighted to have you back and know

          2        that as you get into this work, this will help some to

          3        relieve a lot of what you have gone through.  That's not

          4        to say that what you will have happen to you here is bad,

          5        but it is time-consuming and interesting.  But I think all

          6        of us want you to know that we are and were with you

          7        during your time of trial and we are glad that you are

          8        back.

          9             COMMISSIONER SUNDBERG:  Thank you, Mr. Chairman.

         10             CHAIRMAN DOUGLASS:  So, if you would all rise, I will

         11        ask Reverend Candice McKibben, the singles minister of

         12        East Hill Baptist Church in Tallahassee to give the

         13        opening prayer.  Reverend McKibben.

         14             REVEREND:  Would you join your heart with mine in

         15        prayer.  Dear God, our creator, our parent ruler of the

         16        universe, remind us that there is a power beyond our own

         17        power on which we may rely when called upon to make

         18        critical judgments that affect many lives, not only today

         19        but in the years and decades ahead.

         20             Father, grant wisdom, discernment, compassion and a

         21        sense of justice to these who review the Constitution of

         22        this great state.  Grant each a clarity of thought and

         23        expression so that communication is open and purposeful.

         24             May the revisions made, O God, uphold goodness and

         25        truth and the welfare of all who call themselves


          1        Floridians.  Amen.

          2             CHAIRMAN DOUGLASS:  From Nims Middle School here in

          3        Tallahassee, as I call your names, if you would come

          4        forward and stand in front here and then you can lead us

          5        in the pledge.  Alfred Scruggs, Jamichael James, Sherry

          6        Bass, Amber Gordon, Matt Rogers, Cassie Willis, Rebecca

          7        Lambright.  Just spread across the front there.  Shalanda

          8        Johnson, Kiara Wesley and Gracie Mosely.  We are delighted

          9        to have these young people to lead us this morning.  If

         10        you will turn and face the flag and lead us in the Pledge

         11        of Allegiance please.

         12             (Pledge of Allegiance.)

         13             CHAIRMAN DOUGLASS:  These young men and women will be

         14        our pages today.  So, remember you have a page button when

         15        you need a Coke or a glass of water or to send a note,

         16        they are available to work for you and we are delighted to

         17        have them.  We'll now proceed to the daily order of

         18        business and I'll recognize the chairman of -- rules

         19        chair, Commissioner Barkdull.

         20             COMMISSIONER BARKDULL:  Thank you, Mr. Chairman.

         21        Members of the Commission, you have on your desk a yellow

         22        packet which has proposals and explanations by the staff.

         23        This will follow the purple packet we had yesterday.  And

         24        if you want to mark on your calendar where the break

         25        occurs, it is on Page 5 on the right-hand side above


          1        Proposal No. 169 commences the yellow packet.  Until we

          2        reach that area, we will be using the purple-covered one

          3        that we used yesterday.

          4             CHAIRMAN DOUGLASS:  Commissioner Barkdull, my packet

          5        has Proposal 148 as the first one in the yellow packet.

          6             COMMISSIONER BARKDULL:  I'm following the

          7        instructions of the director.  I see that the packet says

          8        148, and I'll find it in the appropriate place on the

          9        calendar.  The schedule for this week is on your desk on

         10        the front page of the calendar, and you will note that we

         11        have committee meetings tonight, finance and tax in the

         12        entrance lobby, select committee on initiatives in Room

         13        301 tomorrow morning.  Tomorrow morning, 8:00 a.m., style

         14        and drafting in 309.  Noon tomorrow, select committee on

         15        sovereign immunity in Room 309.

         16             You will receive, during the course of today, a block

         17        calendar which indicates the public meetings, this type --

         18        which indicates a change from the original one, as I

         19        indicated yesterday, that backs up a hearing from a Friday

         20        to a Thursday in St. Petersburg.

         21             You will also receive, or it's on the back of this,

         22        is your hotel information that has the hotels that the

         23        block of rooms have been reserved in and the appropriate

         24        number to call for reservations.  A copy of this is also

         25        being sent to your home office.


          1             Please note that on these hotel reservations, because

          2        of the season, they are only going to be held to about --

          3        one of them is February the 13th, the other one is

          4        February the 11th.  So, if you are going to plan to attend

          5        the public hearings, you need to get your reservations

          6        made and that will be our individual responsibilities to

          7        do it.

          8             CHAIRMAN DOUGLASS:  Commissioner Barkdull, it is my

          9        understanding, the Windham in Fort Lauderdale, if we don't

         10        do it by a certain date, there won't be any there, it is

         11        very hard to make reservations.

         12             COMMISSIONER BARKDULL:  That's what I just announced,

         13        Mr. Chairman.

         14             CHAIRMAN DOUGLASS:  That one is particularly

         15        difficult, the other one is not.

         16             COMMISSIONER BARKDULL:  Well, both of them have got

         17        deadlines.

         18             CHAIRMAN DOUGLASS:  Correct.

         19             COMMISSIONER BARKDULL:  That's it, Mr. Chairman.  And

         20        I remind people, some people have mentioned to me, they

         21        want to withdraw proposals.  They can do it at the end of

         22        the calendar or when we reach them today in the calendar,

         23        they can announce that they wish to withdraw them.  That

         24        concludes the report of the rules committee.

         25             CHAIRMAN DOUGLASS:  Commissioner Barton, you rise.


          1             COMMISSIONER BARTON:  Mr. Chairman, I had a question

          2        relative to the public meetings.  Do we know the times

          3        those will be held because that might make a difference

          4        whether somebody needed a hotel reservation or not.

          5             COMMISSIONER BARKDULL:  I assume that they will start

          6        at 9:00 in the morning.

          7             CHAIRMAN DOUGLASS:  I think one of them starts in the

          8        afternoon, I believe the one here.

          9             COMMISSIONER BARKDULL:  I'm talking about the ones

         10        other than the one here.  Which I assume the one here will

         11        be the afternoon before a session of some type.

         12             CHAIRMAN DOUGLASS:  That's correct.

         13             COMMISSIONER BARKDULL:  The other two, the one in St.

         14        Pete and the one in Fort Lauderdale will be at 9:00 in the

         15        morning.

         16             COMMISSIONER BARTON:  My other question is, what

         17        would be the order -- or the discussion subjects that we

         18        would be covering?

         19             COMMISSIONER BARKDULL:  I can't tell you at this

         20        point.  I think that the committee and the Chair will work

         21        that out after the style and drafting committee begins to

         22        put some of these proposals together.  If that's not

         23        possible to be availed, well then we will have to make a

         24        selective of topics because we certainly will be expected

         25        to have a freewheeling public hearing such as we have had


          1        in the past.

          2             I think it is the Chair's thought that as we get --

          3        for instance, merit retention for trial judges, which we

          4        have had, would have a pro and con speaker.  If we go to

          5        the reduced Cabinet, that would probably have a pro and

          6        con speaker, and so forth, on certain items that were

          7        thought to be of major concern of the citizens.  It'll be

          8        a structured public hearing.

          9             CHAIRMAN DOUGLASS:  Commissioner Morsani, you rose.

         10        Oh, she answered your question.  Commissioner Ford-Coates.

         11             COMMISSIONER FORD-COATES:  If I could ask a follow-up

         12        question.  Will there be a beginning and ending time

         13        publicized on those hearings?

         14             COMMISSIONER BARKDULL:  We will have an ending time

         15        publicized, certainly.

         16             COMMISSIONER FORD-COATES:  So we could get that as

         17        soon as possible I would hope.  Also, the comment on the

         18        public hearing in Tallahassee would probably start in the

         19        afternoon; according to this calendar, we are not

         20        scheduled for any kind of session the day after the public

         21        hearing in Tallahassee.  We are scheduled the following

         22        weekend.

         23             CHAIRMAN DOUGLASS:  That may be changed.

         24             COMMISSIONER BARKDULL:  Tallahassee can be adjusted.

         25             COMMISSIONER FORD-COATES:  I would just reiterate,


          1        you know, as soon as possible is helpful because many of

          2        us are trying to make commitments for March and would like

          3        to finalize that.  Thank you.

          4             CHAIRMAN DOUGLASS:  Any further questions of

          5        Commissioner Barkdull?  Okay.  We have a matter on

          6        reconsideration, the matter that we had yesterday,

          7        Proposal 168.  Commissioner Barkdull.

          8             COMMISSIONER BARKDULL:  Corr's proposal from the last

          9        day, not yesterday.

         10             CHAIRMAN DOUGLASS:  All right.  The director asked us

         11        to TP for a minute.  Commissioner Corr just arrived and

         12        they are getting a copy to pass out.  So, we'll move to

         13        the special order, Proposal 105 by Commissioner Planas,

         14        and I see he's been unable to get here today either.  What

         15        is the recommendation of the rules committee on Proposal

         16        105?  Commissioner Barkdull.

         17             COMMISSIONER BARKDULL:  I know you excused him

         18        yesterday for medical reasons, I assume that carries over.

         19             CHAIRMAN DOUGLASS:  Same reason today.

         20             COMMISSIONER CONNOR:  Yes, I talked with him

         21        yesterday and I understand his appointment was actually

         22        going to be today.

         23             COMMISSIONER BARKDULL:  He is going to be here?

         24             COMMISSIONER CONNOR:  No, sir, his appointment, as I

         25        understand, medical appointment, was going to be today.


          1             CHAIRMAN DOUGLASS:  Commissioner, did he tell you

          2        whether or not he wanted us to go ahead and consider this

          3        or did he want us to wait on it?

          4             COMMISSIONER CONNOR:  I'm sorry, he did not indicate

          5        that.  We didn't discuss that, we just talked about his

          6        situation.

          7             CHAIRMAN DOUGLASS:  Is he in reasonably good shape

          8        you think?

          9             COMMISSIONER CONNOR:  I just know that he has

         10        complaints and he's having them investigated is all I

         11        really know.

         12             CHAIRMAN DOUGLASS:  Commissioner Barkdull, what is

         13        your recommendation?

         14             COMMISSIONER BARKDULL:  I recommend that we take them

         15        up as we come to them.

         16             CHAIRMAN DOUGLASS:  All right.  Proposal 105 was

         17        referred to the committee on legislative and withdrawn for

         18        lack of quorum.  I think it was probably discussed there.

         19        Would you read Proposal 105, please?

         20             READING CLERK:  Proposal 105, a proposal to revise

         21        Article III, Section 15, Florida Constitution, and Article

         22        VI, Section 4, Florida Constitution, increasing the term

         23        of office of State Representatives and State Senators,

         24        increasing the number of years such officers may serve.

         25             CHAIRMAN DOUGLASS:  All right.  Would someone on the


          1        legislative committee care to explain this?  Commissioner

          2        Thompson.

          3             COMMISSIONER THOMPSON:  Sorry, I'm not really

          4        prepared to do that at this point.  Let me be sure.  We

          5        discussed this a couple of times and had a potential

          6        amendment.  Debbie, did we have a potential -- now, wait,

          7        you are not staff on that committee.  We had a potential

          8        amendment, and what it boiled down to is, we were

          9        recommending to Commissioner Planas to change his proposal

         10        to allow 12 years of membership in each house of the

         11        Legislature, and I don't think this does that.

         12             CHAIRMAN DOUGLASS:  The title does not.  I am

         13        looking.  I think you are right.

         14             COMMISSIONER THOMPSON:  And I think he had a

         15        potential amendment.  I just don't think we ought to take

         16        this up without him being here.

         17             CHAIRMAN DOUGLASS:  Do you move to TP it, temporarily

         18        pass it?

         19             COMMISSIONER THOMPSON:  Yes, let's do that.

         20             CHAIRMAN DOUGLASS:  Okay.  Without objection, it will

         21        be temporarily passed.  And we may take it up as soon as

         22        possible.  I think this is one we are all pretty well

         23        ready to debate.  All right.  The next proposal is

         24        committee substitute for Proposal 170 by the committee on

         25        executive and Commissioner Mills, recommended as a


          1        committee substitute and disapproved by the committee on

          2        executive.  Would you read it, please?

          3             READING CLERK:  Committee substitute for Proposal No.

          4        170.  Proposal to create Article IV, Section 14, Florida

          5        Constitution; providing for the establishment of a

          6        citizen's advocate to be appointed by the Governor to aid

          7        the public in obtaining redress of grievances arising from

          8        administrative actions of state agencies or local

          9        governments.

         10             CHAIRMAN DOUGLASS:  All right.  Commissioner Mills,

         11        you are recognized.

         12             COMMISSIONER MILLS:  Mr. Chairman, this proposal is

         13        both derived from several, specific suggestions we have

         14        heard and the general context that the citizens in this

         15        state are concerned about access to government, being able

         16        to deal with bureaucracy, but not only that, this concept

         17        of a citizen advocate or really, in some cases, you would

         18        call it an ombudsman, is well tested both in the private

         19        sector and the public sector in higher education.

         20             And not only is it a way to help citizens solve

         21        problems, it is a way to improve the management of the

         22        system.  What is an effective citizens' advocate or

         23        ombudsman will collect data on those agencies about which

         24        citizens complain and provide management data to, in some

         25        cases, corporations, in this case, government, to improve


          1        its performance.

          2             Are there other citizens' advocates anywhere in

          3        Constitutions?  No.  Are there citizens' advocates in

          4        statutes?  A lot.  My position is that it would augment

          5        the status of the citizens' advocate position in Florida

          6        by making it constitutional, by making it appointed by the

          7        Governor, and by allowing that individual to help

          8        citizens.

          9             We have said this is a big state.  We have said this

         10        is a bureaucracy.  It's not going to get smaller.  It

         11        seems to me that this is an opportunity to simply provide

         12        citizens with a way to get assistance.  I think the

         13        concern that I heard expressed in the committee by those

         14        that did not favor it was, why put this in the

         15        Constitution.  Well, my answer to that is it elevates this

         16        function to a status where it has to be recognized on a

         17        continuing basis.  And the function, to me, in terms of

         18        both management and helping the average citizen through

         19        their problems is one that deserves to be in the

         20        Constitution.

         21             Many of us and others have means to obtain help.  You

         22        can go to your Legislature, you can go to people you know.

         23        The average citizen, in dealing with this bureaucracy,

         24        does not have that kind of assistance.  There is a

         25        citizens' assistance office, I have sort of a 20-year


          1        history with this, the citizens' assistance office which

          2        is made by statute exists in the Governor's Office.  I

          3        think it needs increased visibility.  We don't need

          4        duplication.  So language added by the committee removed

          5        that duplication.  I would be glad to respond to any

          6        questions.

          7             CHAIRMAN DOUGLASS:  First question is, if you are

          8        repealing a statute, that shouldn't be in the

          9        Constitution, should it?  You have a statement in there,

         10        the Office of Citizens' Assistance is hereby repealed.

         11        Shouldn't that be in the --

         12             COMMISSIONER MILLS:  Schedule.

         13             CHAIRMAN DOUGLASS:  -- schedule, or somewhere other

         14        than in the Constitution itself?

         15             COMMISSIONER MILLS:  It should be in the schedule.

         16             CHAIRMAN DOUGLASS:  Then you would leave that to

         17        style and drafting?

         18             COMMISSIONER MILLS:  I would leave that to the

         19        excellent style and drafting committee.

         20             CHAIRMAN DOUGLASS:  Of which you are chairman.  All

         21        right.  Commissioner Henderson.

         22             COMMISSIONER HENDERSON:  Mr. Mills, if you will yield

         23        for a question.  Since yesterday we replaced the Cabinet

         24        with a triumvirate.  Don't you think this might be a way

         25        of giving something back to the people for access to their


          1        government?

          2             COMMISSIONER MILLS:  Yes, this would provide a

          3        constitutional means for the public to have access to

          4        government.

          5             CHAIRMAN DOUGLASS:  Commissioner Henderson, you are a

          6        sore loser.  Commissioner Barton.

          7             COMMISSIONER BARTON:  I have a question.  How large

          8        is this office going to be?  I have dealt with a

          9        bureaucracy a lot through the years and I don't think one

         10        person is going to hack it.

         11             COMMISSIONER MILLS:  Well, Ms. Barton, that's why it

         12        says the Legislature will determine that.  What this

         13        relies on is the good faith of the Governor, the

         14        appointment of a good person, and the ability of that

         15        person to advocate it effectively with the Legislature.

         16        And by the same token that means that the Legislature

         17        would keep this from becoming a bureaucracy.

         18             CHAIRMAN DOUGLASS:  All right.  Any further debate?

         19        Commissioner Zack.

         20             COMMISSIONER ZACK:  Commissioner Mills, will you

         21        yield for a question?

         22             CHAIRMAN DOUGLASS:  He yields.

         23             COMMISSIONER ZACK:  Yesterday we did try to make the

         24        Cabinet and particularly the Governor's Office stronger.

         25        And as I see this proposal, if a person didn't vote for


          1        this or this failed, there's nothing to keep the Governor

          2        from appointing such an advocate, is there?

          3             COMMISSIONER MILLS:  That's correct.

          4             COMMISSIONER ZACK:  My concern, if I could rise to

          5        this issue, Mr. Chairman -- I guess I can.

          6             COMMISSIONER MILLS:  Go ahead, and we'll let you know

          7        when you have to stop.

          8             COMMISSIONER ZACK:  My concern is the Wetherington

          9        overriding issue, which is, what are we going to put on

         10        the ballot.  And I think this is important.  Frankly I

         11        would hope that there's a citizen ombudsman in various

         12        departments.  If we have three Cabinet offices, maybe each

         13        one of them needs an ombudsman.  I'm concerned that some

         14        people will say that they don't have to do anything

         15        further because we have this in the Governor's Office and

         16        therefore it's not an issue they want to concern

         17        themselves with.

         18             My vote, which is for the proposal, but against

         19        probably the ultimate putting it on -- among the things

         20        for the citizens to vote on.  We have talked about a

         21        number of times -- and I think we needed to reemphasize

         22        this earlier today, in view of what's been happening over

         23        the last few meetings where we have had some very, very

         24        good proposals, where I sincerely hope the Legislature

         25        will review and adopt as they did a number of proposals of


          1        the previous Constitution Revision Commissions.

          2             I do think that we have to make sure that we focus on

          3        the major issues of this state that are going to require

          4        the citizens to hopefully vote in favor of what we do,

          5        which in the final analysis is what we have to continue to

          6        focus on if we are to do a good job here.

          7             COMMISSIONER MILLS:  Well, I will gratefully accept

          8        Mr. Zack's vote and then further explain.  Actually, since

          9        I've had the opportunity to review what we have passed,

         10        Mr. Zack, and I think this is important, let's take a look

         11        at what style and drafting is going to do.

         12             The first thing I would suggest to you is that this

         13        commission has done an excellent job.  When we went around

         14        this state the people in this state told us they were

         15        concerned about access, they told us they were concerned

         16        about the elections process, they were concerned about

         17        education, they were concerned about the environment; who

         18        would handle those things.

         19             I think you would be surprised by the 30-some

         20        proposals how many are easily considered as

         21        noncontroversial.  We have had proposals by -- that

         22        Mr. Langley handled dealing with military law.  As you go

         23        through the proposals, you are going to begin to see, it's

         24        possible, of those 30, to group about 19 as one proposal.

         25             It's also possible to group those proposals as


          1        dealing with education, environment, access to government,

          2        the judiciary.  Having said that, there are only going to

          3        be -- I think there's a likelihood that there are only

          4        going to be seven or eight proposals.  So, what I'm

          5        suggesting to you, and why this happens to be appropriate

          6        to this conversation, is while a citizen's advocate

          7        wouldn't be appropriate for a separate proposition

          8        standing by itself, coupled with other provisions dealing

          9        with access to government, it makes sense, it would be

         10        popular, it is the right thing to do.

         11             And I think you need to judge the proposals based on

         12        the overall application of what you are seeing come

         13        through this commission.  And I endorse what you are

         14        saying in terms of saying, think about the majors, think

         15        about what you are going to put in Article V, think about

         16        what you are going to put in the executive.  This is in

         17        the executive branch.  You have just taken away access

         18        from the executive branch.  This improves access to the

         19        executive branch.  So, it's only fair.

         20             I mean, you have just reduced the citizen's access to

         21        the executive branch, and that proposal is going to be

         22        there and this proposal will be with it.

         23             COMMISSIONER ZACK:  I hear a procedure that I'm not

         24        sure I agree with.  When we are down the road, as we are

         25        now, we start thinking about -- I'm sure each of us are


          1        thinking about the voter standing in the poll place, and

          2        I'm not sure that one proposal with 19 subparts is one

          3        proposal, it is kind of like the one interrogatory with A

          4        through Z.

          5             CHAIRMAN DOUGLASS:  This is out of order.  Your

          6        comments were out of order.  First of all, there's been no

          7        determination on this, there's been no -- it's an opinion.

          8             COMMISSIONER ZACK:  As long as it's out of order,

          9        I'll be happy to be seated, but I didn't want it to go

         10        without saying --

         11             CHAIRMAN DOUGLASS:  I'm glad you did.  Because what

         12        Commissioner Mills said is not necessarily the case at

         13        all.  We will debate that at another time.  The debate is

         14        on his proposal to add a citizen's advocate to the

         15        Constitution, and not how we put it on the ballot, if we

         16        do.  First of all, it has got to get enough votes to get

         17        there.  And that's what we need to be debating.  And I

         18        think you are out of order to discuss that, even though

         19        you are chairman of the style and drafting, that's only

         20        one vote.

         21             I would ask that we stay germane.  But you were

         22        correct in raising it, Commissioner Zack.  Is there any

         23        debate or questions on this issue?  Commissioner Barkdull.

         24             COMMISSIONER BARKDULL:  As an opponent.

         25             CHAIRMAN DOUGLASS:  As an opponent, all right.  Is


          1        there another proponent?  All right.  Commissioner

          2        Barkdull, you are recognized.

          3             COMMISSIONER BARKDULL:  Mr. Chairman, Members of the

          4        Commission, I'm not so sure that this is a good idea, but

          5        if it is a good idea and you really mean what it should

          6        be, I think it ought to be a person appointed by the

          7        Governor and the Cabinet and it ought to have a six or

          8        eight or nine-year term and not be subject to the politics

          9        of one administration coming and going as one appointee.

         10        But frankly, we have got it in the statutes, I don't see

         11        any real reason to move it into the Constitution and I

         12        suggest that we leave it in the statutes.

         13             CHAIRMAN DOUGLASS:  Any further discussions?

         14        Commissioner Evans-Jones.

         15             COMMISSIONER EVANS-JONES:  As an opponent.

         16             CHAIRMAN DOUGLASS:  As an opponent.

         17             COMMISSIONER EVANS-JONES:  Members of the Commission,

         18        I don't think that it needs to be in the Constitution.

         19        And I do think that we have the members of the House, the

         20        members of the Senate who should be responding to the

         21        needs of their constituency.  And if they are not

         22        responding to those needs, then they ought not to be

         23        reelected.

         24             And I think that's much closer to the people, much

         25        easier access when they have a problem with the


          1        bureaucracy.  I know many -- I see some of our fellow

          2        legislators nodding that have certainly been in that

          3        position.  We do a great deal of casework and try to help

          4        people.  So, I would suggest that you have all of those

          5        advocates out there doing this work anyway, and I don't

          6        think we need to add to that.

          7             CHAIRMAN DOUGLASS:  Any further discussion before

          8        Commissioner Mills closes?  You are recognized to close.

          9             COMMISSIONER MILLS:  Mr. Chairman, Members of the

         10        Commission, let me first respond to a couple of issues.

         11        The issue of whether members of the Legislature can

         12        adequately represent their constituents on issues before

         13        the bureaucracy is one that I'm familiar with, it's one

         14        that Commissioner Evans-Jones does very well, it's one

         15        that a number of members of the Legislature do very well,

         16        but that depends upon whether you are a member of the

         17        Legislature.

         18             And also, fortunately, or unfortunately, it depends

         19        on your relationship with the member of the Legislature.

         20        Many citizens, because they may have a bad relationship

         21        with their member of the Legislature may not have quite

         22        the same access to that assistance.  With respect to some

         23        legislators, and I know we had some outstanding examples

         24        of that here, they are even-handed and they are going to

         25        devote their time to dealing with citizens' problems, the


          1        more detail the better.

          2             And, Mr. Chairman, with regard to my discussion as to

          3        how things might be grouped, of course that is a decision

          4        of the commission, I was simply responding to a question.

          5        And it seems to me that there are some opportunities or

          6        issues that are related.  And the issue that was brought

          7        up in debate is that there was reduced access to the

          8        executive branch by what we did yesterday, that is we are

          9        going to have less Cabinet activity, but it's relevant

         10        that we balance what we do.

         11             This is in Article IV, this gives increased access

         12        for citizens.  Gives them back something that we may be

         13        taking away.  It might help.  I would urge you to endorse

         14        this proposition.  It should be in the Constitution.  It

         15        is the right thing to do.  It helps balance other issues

         16        that we have proposed.

         17             CHAIRMAN DOUGLASS:  All right.  Everybody ready to

         18        vote?  Unlock the machine and we'll vote.

         19             (Vote taken and recorded electronically.)

         20             CHAIRMAN DOUGLASS:  Has everybody voted?  Lock the

         21        machine and announce the vote.

         22             READING CLERK:  Twelve yeas and 16 nays,

         23        Mr. Chairman.

         24             CHAIRMAN DOUGLASS:  By your vote, you have defeated

         25        the proposal.  I think we are ready now to move back to


          1        Proposal 105.  Commissioner Thompson.  Well, he told me he

          2        was ready and he disappeared.  Here he is.  Proposal 105,

          3        I think you told me that you were ready to proceed on

          4        that?

          5             COMMISSIONER THOMPSON:  I'm sorry, Mr. Chairman, I'm

          6        not ready.  We are trying to come up with the amendment.

          7        Let me explain to you what the situation is there.

          8        Commissioner Planas had talked about a potential

          9        amendment.  We did not have a quorum.  We all conceptually

         10        agreed on an amendment, and basically what it is, so

         11        everybody can start thinking about it is, raise the terms

         12        for House and Senate members from 8 to 12 years, very

         13        simply.  He had some other things there.  He wanted to

         14        change the --

         15             CHAIRMAN DOUGLASS:  Term of office.

         16             COMMISSIONER THOMPSON:  Yes, term of office and so

         17        forth.

         18             CHAIRMAN DOUGLASS:  So, what you are going to do on

         19        behalf of the committee then --

         20             COMMISSIONER THOMPSON:  Is offer that very simple

         21        amendment, but we are trying to get it prepared and

         22        distributed.

         23             CHAIRMAN DOUGLASS:  Okay.  We'll get it considered.

         24        And now we'll go to Proposal 168 by Commissioner Corr on a

         25        motion to reconsider what's pending on and has been voted


          1        to be reconsidered, has it, Commissioner Barkdull?

          2             COMMISSIONER BARKDULL:  It has not.

          3             CHAIRMAN DOUGLASS:  It has not.  Okay, Commissioner

          4        Corr's proposal, would you read the proposal which is on

          5        for reconsideration?

          6             READING CLERK:  Proposal 168, Proposal to revise

          7        Article IV, Section 6, Florida Constitution; providing

          8        that an entity purportedly within an executive department

          9        which is not subject to the direct supervision of the

         10        agency head is a department providing that the amendment

         11        does not affect the status of such entities to issue

         12        revenue bonds before a specified date; and to create

         13        Article XII, Section 23, Florida Constitution; providing

         14        that the amendment does not affect the status of such

         15        entities in existence on the effective date of the

         16        adoption of the amendment.

         17             CHAIRMAN DOUGLASS:  Motion to reconsider by

         18        Commissioner Barkdull.  Commissioner Barkdull, you are

         19        recognized.

         20             COMMISSIONER BARKDULL:  Yes, sir, Mr. Chairman,

         21        Members of the Commission, this matter came up in the

         22        debate yesterday on the downsizing of the Cabinet and

         23        there was some concern about the fact that there would no

         24        longer be availability of collegial responsibility as is

         25        now provided in certain statutes for the Governor and the


          1        Cabinet members.  I know Commissioner Corr's proposal

          2        received a unanimous vote of those of us that were present

          3        at the time.

          4             I certainly think that there's a great deal of wisdom

          5        in having a direct line of responsibility.  And I

          6        generally favor that.  But I do think that there was some

          7        merit to the arguments that I heard yesterday about a

          8        number of the statutes that have put collegial

          9        responsibility on the Governor and the Cabinet or certain

         10        Cabinet officers.  I think that latitude should still

         11        exist and that is the purpose of this motion.

         12             I would suggest that if the motion passes, that the

         13        matter be left pending to further address the Corr issues

         14        to use -- of Commissioner Corr's proposal, and I would ask

         15        at this time for an affirmative vote on the motion to

         16        reconsider.  And if that passes, then we would temporarily

         17        pass reconsideration of the matter.

         18             CHAIRMAN DOUGLASS:  All right.  Commissioner

         19        Henderson.

         20             COMMISSIONER HENDERSON:  Mr. Chairman, I'll support

         21        this motion in the interest of -- I appreciated the humor

         22        and levity that the Chairman made of my being a sore loser

         23        earlier, but I'm obviously interested in having the

         24        ultimate work product of this commission something the

         25        public can completely support.


          1             And I know Commissioner Barnett and I are still very

          2        much concerned about making sure that there's appropriate

          3        access to whatever new creature we have created here,

          4        triumvirate or otherwise.  So that relates to the issue of

          5        the certain appellate capacity with which the current

          6        Cabinet acts.

          7             Now, I do not believe that the Corr proposal as

          8        amended affects that, but it might well be a vehicle for

          9        us to fix this problem as we move down the road and look

         10        at it a little bit more.  So, I think the Corr proposal is

         11        solid.  I think we can tweak it with this and this will

         12        give us the time to do it.  So, I support the motion for

         13        reconsideration.

         14             CHAIRMAN DOUGLASS:  Commissioner Corr.

         15             COMMISSIONER CORR:  Thank you, Mr. Chairman.  I guess

         16        I'm still a little confused.  The original proposal that

         17        passed unanimously just reinforces a limitation that's

         18        already in the Constitution.  So I -- I mean, if there's

         19        something that was created out of another proposal

         20        yesterday, then I'm certainly willing to work together to

         21        sort of figure out what the challenges were.

         22             But this proposal that we passed last time was pretty

         23        straightforward and pretty simple, so I'm expecting that

         24        there's something still that I don't understand.  And

         25        maybe there's a way, Commissioner Barkdull, that you can


          1        help me understand it, or maybe I'm just not that smart.

          2             CHAIRMAN DOUGLASS:  Commissioner Barkdull to reply to

          3        his question.

          4             COMMISSIONER BARKDULL:  In response to Commissioner

          5        Corr's question, in the debate yesterday, it was the

          6        understanding that the impact of your proposal that was

          7        adopted at a previous meeting would prevent the

          8        Legislature from assigning collegial duties to the

          9        Cabinet.

         10             And my purpose is to try to be sure -- I understand

         11        your explanation, but it was the feeling of people here on

         12        the floor that that proposal would have saddled us with

         13        the inability of the Legislature to create collective or

         14        collegial responsibility and we wanted to be sure that we

         15        didn't do that.

         16             CHAIRMAN DOUGLASS:  All right.  Any further

         17        discussion?  This is on the motion to reconsider the vote

         18        by which this passed, which was unanimous when we passed

         19        it, by Commissioner Barkdull.  Unlock the machine and

         20        let's vote.

         21             (Vote taken and recorded electronically.)

         22             CHAIRMAN DOUGLASS:  Lock the machine and record the

         23        vote.

         24             READING CLERK:  Twenty-one yeas and six nays,

         25        Mr. Chairman.


          1             CHAIRMAN DOUGLASS:  All right.  It is voted to be

          2        reconsidered.  Commissioner Barkdull, you are recognized.

          3             COMMISSIONER BARKDULL:  I move that we do not take it

          4        up on the merits at this time, but temporarily pass it

          5        until tomorrow afternoon.

          6             CHAIRMAN DOUGLASS:  Without objection, it is

          7        temporarily passed.  Now we move to Proposal No. 2 by

          8        Commissioner Sundberg.  Would you read it, please?  It was

          9        approved by the committee on declaration of rights.

         10             READING CLERK:  Proposal 2, a proposal to revise

         11        Article I, Section 2, Florida Constitution; providing for

         12        citizens to enjoy equal opportunity to employment,

         13        housing, public accommodations, public education, and

         14        other benefits and authorizing governmental agencies to

         15        take actions to remedy the effects of past discrimination

         16        in certain areas.

         17             CHAIRMAN DOUGLASS:  Commissioner Sundberg, you are

         18        recognized.

         19             COMMISSIONER SUNDBERG:  Mr. Chairman, if you would

         20        indulge me.  This was temporarily passed at our January

         21        meeting because of concerns that Commissioner Connor had.

         22        And I have not had an opportunity to talk to him about

         23        those concerns.  If you could give us a little more time

         24        to see if we can reach some accommodation on that.  In

         25        fact, I saw him earlier, I don't know --


          1             CHAIRMAN DOUGLASS:  He's here, he's back in the

          2        telephone booth conducting business.

          3             COMMISSIONER SUNDBERG:  Maybe I could get him next.

          4        Could we temporarily pass this?

          5             CHAIRMAN DOUGLASS:  We will temporarily pass it

          6        without objection, take it up later in the morning.

          7             COMMISSIONER SUNDBERG:  Thank you.

          8             CHAIRMAN DOUGLASS:  Without objection, it is

          9        temporarily passed until it's called again.  And you can

         10        get with Commissioner Connor.  Proposal No. 135 by

         11        Commissioner Henderson, approved by the committee on

         12        finance and taxation.  Commissioner Henderson.

         13             COMMISSIONER HENDERSON:  I am beginning to think that

         14        we could have passed this about two weeks ago and gotten

         15        it off of the agenda, but, you know, again, the issue is,

         16        this afternoon finance and tax were trying to marry this

         17        to a sister proposal.  And so I ask for it to be deferred

         18        until tomorrow.

         19             CHAIRMAN DOUGLASS:  What is the sister proposal?

         20             COMMISSIONER HENDERSON:  Mr. Chairman, there was a

         21        proposal by Commissioner Mills which is similar.  And F&T

         22        passed out this proposal and has not given full

         23        consideration to that one pending staff analysis by that

         24        committee.  That committee came back yesterday with a very

         25        thoughtful staff analysis and has given us a couple of


          1        options that will -- that will help us better define this

          2        issue.

          3             That is on the committee's agenda for this afternoon.

          4        We have been working closely with Commissioner Scott on

          5        this.  And so we'll hopefully be in a posture tomorrow to

          6        be exactly where we need to have it.

          7             CHAIRMAN DOUGLASS:  Commissioner Mills, is that what

          8        you want to do?

          9             COMMISSIONER MILLS:  Yes, sir.  The staff has

         10        provided us with a couple of options to combine both of

         11        them that I think will make this work.

         12             CHAIRMAN DOUGLASS:  Without objection, it will be

         13        temporarily passed, but it's going to be taken up before

         14        we leave this week.

         15             Proposal 33 by Commissioner Barnett.  Read it,

         16        please.

         17             READING CLERK:  Proposal 33, proposal to revise

         18        Article VII, Section 5, Florida Constitution, eliminating

         19        the prohibition against levying a state income tax.

         20             CHAIRMAN DOUGLASS:  There is an amendment on the

         21        table.  Do you want to speak for the amendment, or is it

         22        your amendment?

         23             COMMISSIONER BARNETT:  It is my amendment, Mr.

         24        Chairman.

         25             CHAIRMAN DOUGLASS:  All right.


          1             COMMISSIONER BARNETT:  It actually was going to be

          2        Commissioner Planas' amendment, but it doesn't appear that

          3        he is going to be here, and so it is an amendment that I

          4        agree with and my name is on there.

          5             CHAIRMAN DOUGLASS:  All right.  Then, we should read

          6        the amendment.

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

          8        Line 18, insert, No tax upon the income of natural persons

          9        shall be levied unless authorized by a two-third's vote of

         10        membership of each house of the Legislature.  There shall

         11        be exempt from any such tax not less than 45,000, which

         12        amount shall be adjusted each year to reflect inflation.

         13             COMMISSIONER BARNETT:  Would you like me to explain

         14        the amendment first?

         15             CHAIRMAN DOUGLASS:  Yes, go ahead.

         16             COMMISSIONER BARNETT:  Is the amendment on the desk?

         17             CHAIRMAN DOUGLASS:  Yes.

         18             COMMISSIONER BARNETT:  This amendment -- the

         19        underlying proposal, it simply lifts the ban that

         20        currently exists in our Constitution on the Legislature

         21        imposing a tax on personal income.  This amendment places

         22        some restrictions on the Legislature in the event that it

         23        chose -- it chooses to actually impose a tax on personal

         24        income; and that is that it requires a two-third's vote of

         25        both houses of the Legislature and exempts the first


          1        $45,000 of income.

          2             That is, the purpose, is to make sure that there's

          3        broad-based support in the Legislature for imposing a tax

          4        on income.  And also, to protect families at the lower end

          5        of the economic scale.  The median income for a family of

          6        four in Florida in 1995 was $44,600.

          7             So, people at a median income level and below would

          8        be, by this amendment, exempt from any tax if the

          9        Legislature ever chose to impose a tax on income.  There

         10        is a language in the amendment also that adjusts that for

         11        inflation.  So, that is the amendment.  And I would ask

         12        you to adopt that before we debate the proposal.

         13             CHAIRMAN DOUGLASS:  All right.  We are on the

         14        amendment before we get to the merits of the proposal.

         15        Does anybody care to address the amendment?  Is it clear

         16        to everybody?  All right, we'll proceed to vote on the

         17        amendment.

         18             All in favor of the amendment, say aye.  Opposed?

         19        The Chair is in doubt, unlock the machine.

         20             (Vote taken and recorded electronically.)

         21             CHAIRMAN DOUGLASS:  Lock the machine and announce the

         22        vote.  I do have good ears.

         23             READING CLERK:  Fifteen yeas and 14 nays,

         24        Mr. Chairman.

         25             COMMISSIONER BARNETT:  For those opposed to a super


          1        majority, and particularly who want to tax those who are

          2        the poorest of the poor if we ever have an income tax.

          3        That is a joke -- meant to be.  This is actually a very

          4        serious debate, and I'm very serious about this proposal.

          5             I would like for you, for a moment, to please put

          6        aside the politics, the political wisdom that this state

          7        will never tax personal income and at least consider, in

          8        this body, the merits of whether we should lift the ban on

          9        a tax on personal income.  I think we have plenty of time

         10        to talk about the politics.  I think that's talked about

         11        all of the time.

         12             I frankly believe that it is a myth that this state

         13        will never tax personal income.  I hope it happens sooner

         14        rather than later, but I think it is a myth, and I think

         15        in our lifetime this myth will be lifted and our

         16        Legislature, in its wisdom, will address this subject.

         17             Let me make it very clear.  If you vote for this

         18        proposal, you will not be voting to impose a tax on

         19        personal income.  You will not be voting to tax income.

         20        All you will be doing, and it's significant, but all you

         21        will be doing is lifting the constitutional prohibition

         22        and giving a grant of authority to the Legislature, in its

         23        wisdom, and at an appropriate time, if there ever is an

         24        appropriate time, to consider income as a potential source

         25        of revenue.  And that is all that you are doing.  This is


          1        simply a lifting of the ban.

          2             I think that Senator Scott, Senator Jennings,

          3        Representative Webster, I think they have --

          4             CHAIRMAN DOUGLASS:  Commissioners Scott and Jennings.

          5             COMMISSIONER BARNETT:  I'm speaking about him in his

          6        capacity as a Senator, Senator Scott, Senator Jennings,

          7        members of the Legislature have been very circumspect in

          8        the last several years in listening to the citizens of

          9        this state on accountability and tax issues and have made

         10        some very, very significant changes.

         11             And I trust them.  I trust them with this authority.

         12        I trust them with the authority to consider income because

         13        I believe that they have a sense of what's right and they

         14        have the responsibility during various times, particularly

         15        times of fiscal crises, to fund state government.  And I

         16        want to give them this tool, and I trust them to use it.

         17        And that is what we are doing.

         18             Florida, and you have all heard me say this several

         19        times, you have heard others say it, I'm not a lone voice

         20        in the wilderness on this, the State of Florida needs a

         21        better revenue system.  Currently we only -- there are

         22        three things that you can look to to fund government, you

         23        can tax property, you can tax consumption, and you can tax

         24        wealth.

         25             And our state has chosen not to tax wealth of


          1        individuals, so it creates a lot of distortions in how we

          2        fund government.  When you take away one leg of a

          3        three-legged school, there's not balance.  And what this

          4        does would allow some balance to come in our revenue

          5        structure.  It would give us the opportunity to look to

          6        all three sources of potential revenue under appropriate

          7        circumstances.

          8             Florida is a very different state today than it was

          9        in the 1920s when these types of provisions, this and the

         10        ban on a corporate income tax, were put into the

         11        Constitution in order to attract business and bodies to

         12        the State of Florida.  In 1973 we lifted, by

         13        constitutional amendment, the ban on taxing corporate

         14        income.  It hasn't had any dramatic negative effects on

         15        the State of Florida.  In fact, the state has flourished,

         16        flourished and thrived since that time.  I think it is

         17        time to now lift the ban on taxing personal income because

         18        our state, today, is the most vibrant, dynamic, growing

         19        state in the country.

         20             Everybody wants to come to Florida.  Many people come

         21        to Florida to retire because of our weather and our

         22        environment and our amenities, but others retire in this

         23        state simply because we do not tax wealth.  And they have

         24        come to Florida to shelter that income.

         25             Now, I'm delighted to have them.  Some of them are


          1        good friends of mine that I have met throughout the years,

          2        but I think that they should participate and share in the

          3        burdens of financing government and pay for the benefits

          4        that they now get by being citizens of this state.

          5             The issue is not the adequacy of the money we are

          6        currently raising to pay for government, it's not that I

          7        think we don't have enough money to fund governmental

          8        functions, that is not the issue to me.  There are other

          9        issues.  The first one I mentioned earlier is a balanced

         10        revenue system, but there are issues such as fairness.

         11        Taxes ought to be fair.  The sales tax on which we rely

         12        dramatically, the sales tax is not fair; it is a

         13        regressive tax.

         14             Commissioner Nabors' proposal to deal with exemptions

         15        and exclusions will help a lot, the Legislature addressing

         16        that will help a lot, but the sales tax is a regressive

         17        tax and it taxes consumption, that's not fair.

         18             Competitiveness.  Our current tax structure does not

         19        create a competitive environment.  Thirty to 40 percent of

         20        the sales tax, I'm told, is paid directly by business.

         21        That doesn't create a competitive environment for business

         22        in Florida.  Almost 20 percent of our sales tax is paid by

         23        tourism.  We talk about exporting it, we export it to

         24        tourist.  Well, I suspect we'll have tourists a long time.

         25        But, again, it is a competitive issue.  That leaves the


          1        balance paid by individuals.  And as I said, it hits

          2        individuals at the lower income levels much higher than

          3        those at the higher income levels.

          4             Another issue to me is responsiveness.  Taxes ought

          5        to be responsive to the changes in the nature of an

          6        economy.  And under our current structure, we don't have

          7        the ability that we should have to respond rapidly to

          8        changes in our economy and to respond to crisis.

          9        There's -- some day there's going to be a crisis in this

         10        state and we don't have the ability to respond.

         11             Ultimately, our taxes, whether they are property

         12        taxes or consumption sales taxes, they are going to reach

         13        a level where the people just won't take any more.  We see

         14        that now with the property tax.  They have about hit the

         15        point on property taxes, people are tired of them, there

         16        is too much, they have about hit the cap.  And we are

         17        getting there with the sales tax.  We need another way for

         18        our Legislature to be responsive to changes and to respond

         19        to the needs of this state.

         20             Reliability is another reason I think we need to look

         21        at the sales tax.  I said earlier, I think that the

         22        current tax structure in Florida is a disincentive to

         23        business development, at least the kind of business

         24        development this state wants and should want to have.  Our

         25        inadequate revenue sources create a lot of problems.  It


          1        creates the distortion in the sales exemptions we have

          2        now.

          3             We try to attract businesses with special interest

          4        exemptions.  And we get a few, but historically all of the

          5        studies show that really doesn't matter, what businesses

          6        want is an adequate, educated workforce.  They want

          7        reliability, they want things that are not just pure

          8        exemptions.  We do not have the money to invest in human

          9        capital in this state in the way we should.  And we have a

         10        large percentage of low-end wage jobs, not high-end wage

         11        jobs.

         12             An educational system, a good, adequate,

         13        comprehensive educational system is what attracts

         14        businesses to the State of Florida, the kind of businesses

         15        we want, and we don't fund adequately the education

         16        system, either the capital side of it, or as I heard

         17        Senator Jennings say the other day and I thought she was

         18        so right, it's now looking at the actual education side,

         19        you know, getting into the education component.  Those are

         20        things that attract businesses.  And that reliability and

         21        those things, I think, come from a balanced revenue

         22        system.

         23             I ask each of you all, how could we afford not to

         24        look at personal income tax?  How can we, as a citizens'

         25        group, representing the citizens of this state, how can we


          1        as a group that really are not in the same awkward

          2        situation I think that sometimes our elected

          3        representatives are, how can we not afford to raise with

          4        the people of this state the real cost to the individuals

          5        of this state as not giving our Legislature a balanced

          6        revenue structure from which they can make decisions and

          7        choose and make public policy choices?  I think that we

          8        are the body that has to look at that.  I think it is our

          9        obligation to take this issue back out on our public

         10        hearings.

         11             Let's at least give it a majority vote and see what

         12        the public reactions are.  I think when the people of this

         13        state are educated about the cost, the real cost to them

         14        individually and as a citizen of this state of not having

         15        this opportunity, there may be a lot more support for

         16        lifting this ban than we think, particularly when it is

         17        combined with the trust and respect they have for our

         18        legislative leaders and what they can do.

         19             So, I ask you to vote in favor of it.  Let the people

         20        comment in the next couple of months.  We'll have another

         21        chance to look at it again before it goes out on the

         22        ballot.  If we don't do this, it will be a long time

         23        before the people get a chance to talk about it.

         24             Taxes are painful, no one likes to pay them, but

         25        people do like roads, schools, police forces, all of the


          1        benefits of government.  And it's our obligation, I

          2        believe, to take our tax structure into the next

          3        millennium, balanced, fair, reliable, and responsible.

          4             I appreciate very much the attention you have given

          5        me this morning.  And I appreciate, Mr. Chairman, your

          6        tolerance on this issue.  And I'll be glad to answer any

          7        questions.



         10             CHAIRMAN DOUGLASS:  Commissioner Wetherington?

         11             COMMISSIONER WETHERINGTON:  I hope we don't have a

         12        need for an income tax in the state of Florida.  However,

         13        there's a very good likelihood that if we're going to

         14        handle our problems in a responsible way that we might

         15        have to do that.  As a consequence, I think the

         16        flexibility should be there to address those needs in

         17        terms of responsible government.

         18             I think a great deal of the problem that we have on

         19        taxes is the fact that there is a widespread cynicism on

         20        the part of the public in terms of how the government is

         21        doing its job.  People resent paying taxes to some extent

         22        because they don't think the job is being done the right

         23        way.  That cynicism, however, among other things, can

         24        change and I hope it does change and our government can

         25        get better.  And I hope that it does get better and there


          1        may be a time in which the people have the sufficient

          2        confidence in the government to know that it's going to

          3        properly spend the money.

          4             It seems to me that we're one of four states I think

          5        in America that don't have an income tax.  That means all

          6        the other states including many very fine states have

          7        decided that they have to have an income tax in order to

          8        properly finance their government and provide the services

          9        and protections that their citizens need.

         10             The same thing can very easily become true in

         11        Florida.  We've been fortunate, I think, overall in not

         12        having to do it but we could have to do it tomorrow if we

         13        should have the means to do is.  We should not have this

         14        constitutional restriction.

         15             Obviously the Legislature is not going to do it

         16        unless there is a tremendous need.  We know just through

         17        the political process that that's a reality.  If that need

         18        arises, the authority should be there.  And for those

         19        reasons, I agree and will support this proposal.

         20             CHAIRMAN DOUGLASS:  Commissioner Brochin?

         21             COMMISSIONER BROCHIN:  They say that this is not

         22        going to pass and that we should rise at least to debate

         23        it.  I think it's an excellent idea.  And I think its time

         24        has come not just to debate it but to pass it.  But for

         25        purpose of the debate, let me offer the following.


          1        Forty-three states in our federal government impose a

          2        personal income tax.  Those Legislatures and Congress are

          3        elected each and every year and each and every year they

          4        go back and they impose an income tax and there's no claim

          5        that it is infringing on their constitutional rights that

          6        some tax is being opposed.  Six states -- seven states

          7        including the state of Florida -- do not have a personal

          8        income tax.  But only one state, that's Florida, has a ban

          9        in its Constitution.

         10             The other six states that prohibit an income tax or

         11        don't have an income tax is not because there's a

         12        constitutional ban, it's because their dually elected

         13        members of the Legislature believe that that is not an

         14        appropriate tool of financing state government at that

         15        particular time.  So 49 states in our federal government

         16        have seen their way fit and clear to give the Legislature

         17        the right to impose that tax.

         18             Commissioner Barnett points out and I underscore,

         19        that this is not a proposal to raise or impose any income

         20        tax.  It is a proposal that is consistent with our mission

         21        to revise the Constitution.  So when the Legislature

         22        convenes over the next 20 years, they have the ability to

         23        finance its state government with another source of

         24        revenue.

         25             Now the finance and tax meeting nobody of course


          1        wants to come up and say they're in favor of this and they

          2        danced around it quite gingerly and diplomatically.  But

          3        every one of them told us that the narrower your tax base

          4        and the higher your rates, the more chaotic your tax

          5        structure becomes as in the state of Florida.  Personally,

          6        I think the Legislature ought to impose an income tax.

          7             For example, if they reduced the sales tax to

          8        3 percent, cut the property taxes in half and imposed the

          9        1 percent income tax to make up the difference, I think a

         10        lot of people may support something like that, then we

         11        wouldn't have one of the highest sales tax rates in the

         12        country.  Our property taxes would not be well above the

         13        national average.  And more important, we could get the

         14        federal subsidy that income taxes bring by taking a

         15        deduction on our income tax just like 43 other states do.

         16        And then we would no longer in the state of Florida

         17        subsidize the states of California state government and

         18        Mexico, Arizona and all the others states that have income

         19        taxes which are all subsidized through the federal tax

         20        structure.

         21             Florida citizens will then enjoy that subsidy as

         22        well.  The other six states that don't impose an income

         23        tax, the only one of any size, is the state of Texas.

         24        Florida is one of the fastest growing states in the

         25        country.  If we don't allow the Legislature another means


          1        of financing our government in the next 20 years, I'm

          2        afraid we will have failed our citizens miserably in not

          3        being prepared.  I voted against the amendment actually

          4        because I was dismayed about the two-thirds' requirement.

          5             It doesn't seem to me that we ought to put in a super

          6        majority in our Constitution for a form of taxation that

          7        43 other states and our federal government impose upon us

          8        day by day.  So I think this idea has not only come to

          9        debate, I think this idea has come as a time to pass.  So

         10        I join in and support it.

         11             CHAIRMAN DOUGLASS:  Commissioner Morsani?

         12             COMMISSIONER MORSANI:  I would like to speak in

         13        opposition if that's now in order.

         14             CHAIRMAN DOUGLASS:  Go ahead.

         15             COMMISSIONER MORSANI:  It pains me to speak in

         16        opposition because Commissioner Barnett did such an

         17        eloquent job in presenting her case.  However, I think the

         18        perception unfortunately in the public's mind becomes

         19        reality.  But let's review history just a little bit and

         20        then move forward with some vision and possibly some

         21        wisdom, not on my part necessarily with the wisdom, but

         22        with this commission's wisdom.

         23             You know, it took from 1845 to 1968 for our budget to

         24        reach $4 billion.  Also, that period of time, we, in 1968,

         25        we had approximately 42,000 state employees.  Four years


          1        later we had a $16 billion budget and 73,000 employees.

          2        The current budget which will probably come out in 1999,

          3        42 to $44 billion in our state budget.

          4             If we continue not to have examples of where money

          5        has changed the thrust of government and public policy.

          6        The current proposals which will be this evening from our

          7        federal government, from our executive branch, that even

          8        though we are going to propose a budget for the current

          9        year in our federal government, rather than pay off any

         10        part of our deficit that we have accumulated for the past

         11        40 years or 30 years, we are going to increase the budget

         12        by probably $100 billion in new programs.

         13             Now that's not the state of Florida.  But that's a

         14        mirror of what we are confronted with in a perception of

         15        our public.  The real problem, and I think that

         16        Mr. Brochin touched on it, in the public's eye, is how

         17        we're developing government services, i.e., the management

         18        of government which is suspect.

         19             We debated a few days ago, a few weeks ago, about the

         20        water management districts and their taxing policies and

         21        the kind of monies they are currently taxing, the various

         22        levels.  I don't think that we can as a commission,

         23        without having the economics and the database to

         24        determine, for example 3 percent sales tax, 1 percent

         25        income tax, so on and so forth, that Mr. Brochin so


          1        eloquently articulated, without having -- if we have that

          2        kind of information, that analytical data, I mean, we

          3        could probably present something to the public.

          4             But I don't think that this body or the economists of

          5        this state or our university systems can produce those

          6        numbers that we could be salesmen for this kind of policy.

          7        Even though I imagine that most of us in this room agree

          8        with the thesis that you have put forth and we want to

          9        agree with that.

         10             But there are other impediments that make this not

         11        the right proposal for this commission.  We want to do the

         12        right thing.  I want to do the right thing for our state

         13        and for this commission.  And even though I'm sympathetic

         14        with the rhetoric, I don't think that it's a proper thing

         15        at this time.  We don't have the data to support our

         16        thesis.  And without that data, we would be suspect in the

         17        public's eye.

         18             Therefore, as much as I want to agree with you,

         19        Commissioner, I must vote against this proposal and I

         20        would hope that the other members would vote against this

         21        proposal.  It's with deep regret that I say that, but

         22        that's where I am.

         23             CHAIRMAN DOUGLASS:  Commissioner Connor?

         24             COMMISSIONER CONNOR:  Mr. Chairman, I rise in

         25        opposition to the proposal.  Commissioner Morsani has


          1        talked about the rhetoric associated with this debate.

          2        Let me suggest to you what the reality is.

          3             The reality is that this proposal is dead on arrival

          4        in the public arena, plain and simple.  And the reality is

          5        that passing this proposal will probably do more to hold

          6        this body in this repute in the eyes of the public than

          7        passing any other proposal before this group.  And it

          8        probably, because of that, will do more to damage the

          9        potential of passing whatever proposals come out of this

         10        group because of the lack of esteem that will be accorded

         11        the work of this commission by the inclusion of this

         12        matter on the agenda.

         13             In Gainesville I remember Professor Little talking

         14        about the purpose of a Constitution being to organize the

         15        functions of government and to limit the powers of

         16        government as it relates to the people.  Limiting the

         17        ability of government to tax the people is most certainly

         18        an appropriate constitutional matter.  It is certainly

         19        within the purview of constitutional jurisprudence, if you

         20        will, to authorize the people to limit government from

         21        imposing the most despicable form of taxes in the eyes of

         22        the public.

         23             The one single agency held in the greatest disrepute

         24        in the federal government is the Internal Revenue Service.

         25        The abuses of the Internal Revenue Service have been


          1        spread upon the pages of the media of late but they are

          2        not new to the public who has dealt with that agency.  We

          3        have, in our state Constitution, Article I, Section 23,

          4        which has become a virtual shrine for many of you.  I

          5        would submit to you that the real purpose of that proposal

          6        was to protect against informational and disclosural

          7        privacy.

          8             One of the reasons the Internal Revenue Service is

          9        held in such low esteem is because it is so intrusive into

         10        the daily lives of people.  Notwithstanding whatever tax

         11        credit we may get, what we do by passing this kind of

         12        proposal and by only authorizing the Legislature to pass

         13        an income tax is that we allow government to stick its

         14        nose into the daily affairs and activities of the public.

         15             Now, it's rather curious, I think, and somewhat

         16        ironic that Commissioner Barnett in effect says, This is

         17        not self-executing, this just provides the constitutional

         18        footing to enable the Legislature to act.  And we ought to

         19        let the people debate that issue.  I guarantee you no one

         20        knows better than I that that argument did not wash with

         21        this body when it came to the parental consent proposal.

         22        And I guarantee you the support of the public is

         23        overwhelming for that kind of proposal compared to this

         24        kind of proposal, overwhelming.

         25             It would be a grave mistake, I believe, for us to do


          1        this.  One of the things that attracts people to Florida,

          2        one of the things you hear about about the fact that we're

          3        one of seven states who don't do this is the fact that

          4        they don't have an income tax in Florida, hurray for

          5        Florida.  Leadership is not finding a parade and getting

          6        out in front of it, Oh, 43 other states are doing this,

          7        let's join the parade.  Let's get out in front and show

          8        what kind of bold leaders we are; baloney.

          9             Leadership, in my estimation, involves tying

         10        government up, locking it down.  Preventing it from being

         11        able to grow by an ever increasing flow of funds because

         12        there clearly is an inverse relationship between the size

         13        of government and the amount of freedom that we enjoy.

         14             If you want government to grow, you pass the proposal

         15        and encourage the Legislature to pass that.  If you want

         16        your freedom to shrink, go ahead and do the same.  But if

         17        you want to have a hue and cry, the likes of which we have

         18        not heard before -- you know, I haven't gotten one letter

         19        that says, Please, Mr. Connor, we should restrict -- we

         20        should lift the restriction on government so that it can

         21        impose an income tax on us.  I haven't gotten one.

         22             Is there a compelling necessity, absolutely not.  Is

         23        it bad public policy, it absolutely is.  Will it

         24        enormously impact our goals as a body to make positive

         25        changes in the Constitution of our state so that the


          1        functions of government are better organized and so that

          2        the powers of government as it relates to the people are

          3        limited, absolutely.

          4             CHAIRMAN DOUGLASS:  All right.  Further debate?

          5             Commissioner Ford-Coates?

          6             COMMISSIONER FORD-COATES:  Not speaking as the tax

          7        collector, no.  Over the last 20 years, I've been involved

          8        with the Women League of Voters in every tax study that

          9        the League conducted in this state and every one of those

         10        came down and said that an income tax is without a doubt

         11        the fairest and most stable form of taxation that the

         12        state of Florida could have.  During that same time frame,

         13        I've heard again and again, over and over, the people of

         14        Florida do not want an income tax, it has no prayer of

         15        passing.  The people have spoken.

         16             And I realized that after appointment to this

         17        commission when I went and spoke to people and they asked

         18        me about the income tax, my response to them was, The

         19        people have spoken, they don't want it.  And I found

         20        myself saying that and then going back and thinking, Wait

         21        a minute, the people haven't spoken.  They haven't had a

         22        chance to vote on an issue which is already in our

         23        Constitution.

         24             Yesterday we took the action to eliminate the Tax and

         25        Budget Reform Commission.  Previously, I had thought,


          1        Well, I would like to see the public have a chance to vote

          2        on this issue.  And some people have said it's not the

          3        time, it may damage the work of the commission.  And I

          4        have those fears also.  But the reality is, there is no

          5        other alternative.  This commission is the only place in

          6        the next 20 years that it's ever going to put this on the

          7        ballot and give the public a chance to look at the issue.

          8             The Tax and Budget Reform Commission perhaps could

          9        have done that.  They do not exist if the proposal as

         10        adopted yesterday is voted on by the people.  I would

         11        suggest that the proposal as amended is very limited,

         12        requires a two-thirds' majority.  It is not a blank check

         13        in no means, by no means, but it does give the option to

         14        the state.  I think it's time that someone stood up and

         15        took the political chance to at least give the public the

         16        opportunity to vote on this issue.  And I think that the

         17        restrictions, as placed in there, pretty much eliminate

         18        the possibility of the abuses that we have seen from our

         19        federal taxing system in that I don't think a two-thirds

         20        majority is going to pass anything but the simplest and

         21        smallest and most efficiently administered of income

         22        taxes.

         23             No Legislature is going to do anything but the best

         24        possible product with these restrictions on it.  And I

         25        strongly urge you to stand up and take the political risk


          1        of voting to give the public a chance to really finally

          2        make their voice heard.

          3             CHAIRMAN DOUGLASS:  Commissioner Scott?

          4             COMMISSIONER SCOTT:  Commissioner Barnett and I agree

          5        on 99.9 percent of the matters, it's just lately we

          6        haven't.  And it's a very eloquent presentation.  And

          7        philosophically in the purest sense, I would be one to

          8        give the Legislature all options and we hear that time and

          9        again on some other things that might come up here.

         10             But I want to address a couple of points that were

         11        made.  First of all, this ideal that, Well, let's just

         12        move this forward and give the public a couple of months

         13        to comment on it and so forth, I would urge you not to do

         14        that, particularly on something like this.  Because what

         15        happens, and I've seen it time and again in the

         16        Legislature, you can start -- let's just take this

         17        proposal if it were in the Legislature.

         18             People go on and on about it.  They read about it,

         19        they start writing letters, they contact all of their

         20        groups, they contact their clubs, their businesses, their

         21        chambers, and whatever.  And then a couple of months later

         22        maybe they amend it so that it's something either totally

         23        different or maybe somewhat innocuous, it doesn't matter.

         24        They are against it and then legislators have a great deal

         25        of trouble, as their representatives, trying to go back


          1        and say, Well, I didn't really support that and so forth.

          2             The point is this.  You put something like this out,

          3        I think that we're doing some pretty good work here in a

          4        number of areas, may not agree with all of them, in fact,

          5        maybe we should save this one to last and then if you

          6        don't like what we're doing, you could put this out there

          7        and kill everything else that we've done here.

          8             We've done a lot of good things in the environment.

          9        I think a number of other areas.  So, let's don't vote for

         10        this.  If you don't think this should go on the ballot

         11        with our package, let's don't vote to move it forward and

         12        put it out there for a couple of months.  Because what

         13        you're going to do is, you're going to have an uproar that

         14        will never be able to reach the people and say, Well, we

         15        didn't really put that on the ballot or at least they will

         16        have a negative impression of our entire package and

         17        that's the way these things happen.  And so I would urge

         18        you not to do that.

         19             I, frankly, don't think it fits Florida.  I'm not

         20        saying at some time it might in the future.  But for right

         21        now, we want people to come here and have businesses.  We

         22        want people that are young in their working years to come

         23        to Florida because we need them, among other things, to

         24        help support a lot of the elderly people who have come

         25        here and who live a long time here and have very high


          1        costs that they often have to rely on government either at

          2        state or federal level.

          3             So what's wrong with taxing them on the money they

          4        spend?  I mean, on the value which we do in property

          5        taxes.  What's wrong with taxing them?  If they are going

          6        to spend, they're going to buy new cars, they're going to

          7        buy expensive cars, they are going to buy -- you know,

          8        what's wrong with that?  At least then they are paying and

          9        contributing something.  You don't take, and going the

         10        opposite direction, take the burden and put it on people

         11        who are working and producing jobs that help make Florida

         12        more balanced and not just a bedroom community or

         13        whatever, we've often been a retirement community.

         14             There is one point that was made and this by

         15        Commissioner Brochin and maybe others.  This idea that it

         16        is a subsidy because the federal government came along a

         17        few years ago and took away the deductibility of the sales

         18        tax.  Well, just because they messed up like that, I don't

         19        think that we should go and try to cure it by then going

         20        to a personal income tax.  So for some of those reasons,

         21        plus I'm back to the main point, is let's don't put it out

         22        there as a trial balloon because I think it could have an

         23        adverse effect that we will have great difficulty

         24        correcting should we decide not to put it on the ballot in

         25        the end.


          1             CHAIRMAN DOUGLASS:  Commissioner Hawkes?

          2             COMMISSIONER HAWKES:  Thank you, Mr. Chairman.  I

          3        suppose that if you had asked me a few days ago, Are you

          4        going to vote for the income tax, I would have said, No,

          5        I'm not going to vote for the income tax.  But as I sit

          6        here and I contemplate and listen to the discussions, I

          7        think that there are some thoughts that deserve your

          8        consideration.

          9             One, I'm not sure that we jeopardize everything we do

         10        if we put an issue on the ballot that the voters of this

         11        state clearly understand and have expressed their personal

         12        views on.  And to give them an opportunity to reassert

         13        their opinion or to change what we think is their opinion,

         14        I don't think it is necessarily bad.  I know, as a member

         15        of the Legislature, the press constantly beat up on me and

         16        said, you know, You're not responsible because we don't

         17        have a sales tax and you need to have a sales tax.  And I

         18        tried to explain to them that my constituents didn't want

         19        a sales tax.

         20             Well, this gives the people of the state of Florida a

         21        chance to clearly say, you know, they do or they don't.

         22        And I don't think it jeopardizes the rest of our product.

         23        If making people mad was going to jeopardize our product,

         24        perhaps Commissioner Rundle's proposal has jeopardized our

         25        product because I've certainly heard far more about 167


          1        than I have anything else.

          2             CHAIRMAN DOUGLASS:  It passed.

          3             COMMISSIONER HAWKES:  So the other thing, of course,

          4        is being personally imposed.  I mean, if it's an issue

          5        that people can understand, I mean, I don't think that we

          6        ought to have appointed judges at the trial court level.

          7        But I understand that in south Florida their situation was

          8        different so I voted for a local option, let people

          9        discuss it, let people decide and let people cast their

         10        opinion.

         11             So if there is any value to a commission like this

         12        where we don't have to worry about unfair taxing, that

         13        we're doing something that we really didn't intend to do

         14        because we're not running for reelection, then I think it

         15        would be to give the people of the state of Florida a

         16        chance to clarify their viewpoints and what they want to

         17        do.  And I happen to think that they are going to say no,

         18        at least if they are consistent with the people as I think

         19        I understand them in my district.

         20             So I don't think it jeopardizes the product.  I don't

         21        think it's a bad thing to put it out there and let people

         22        cast their opinions and I think it clarifies what

         23        direction Florida's leaders and lawmakers ought to go in

         24        depending upon the result of this.  So with that, I'm

         25        going to vote for your proposal, Commissioner Barnett, at


          1        least at this point.  Thank you.

          2             CHAIRMAN DOUGLASS:  Commissioner Barkdull?

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

          4        rise as an opponent of this proposal for several reasons.

          5        First, I attended every public hearing and sat through all

          6        the hours of it.  There may be one or two that commented

          7        on this provision in the Constitution but there was

          8        certainly not any overwhelming demand by the public to

          9        remove this proposal.  And I also have not received, to my

         10        knowledge, any correspondence asking me to vote to remove

         11        this proposal.

         12             I also call your attention to the fact that the

         13        committee that considered this proposal spent a lot of

         14        time going over it and I realize that their votes are only

         15        recommendations and they ought to carry some presumption

         16        and they disapproved this proposal.  I now want to come to

         17        two items that haven't been mentioned.  The proposal says,

         18        Let's tax people above a certain level.  Is that a single

         19        income or dual income?  But more importantly, this is a

         20        wedge in the class warfare.

         21             There is a comment made by Commissioner Ford-Coates

         22        that this was the only way to do it.  Well, it's not the

         23        only way to do it.  I made this same comment 20 years ago

         24        and I don't know that anybody has taken me up on it, but

         25        it's still available and that's constitutional initiative


          1        and it would be a simple initiative not one that has to be

          2        expounded upon in great lengths on approval by the Supreme

          3        Court, just repeal this prohibition, nobody has offered

          4        that.

          5             And last but not least, you want to wreck whatever

          6        proposals we put out there, adopt this proposal.

          7             CHAIRMAN DOUGLASS:  Commissioner Smith?  You're next,

          8        Commissioner Corr.

          9             COMMISSIONER SMITH:  Thank you, Mr. Chairman.  I

         10        think that this proposal definitely shows vision and

         11        courage.  However, I think that we have to balance vision

         12        and courage with reality.  I'm not afraid to put something

         13        on the ballot if it's something that the people want.

         14        This is the people's Constitution.  We are obviously aware

         15        of the fact that this is not something that people like

         16        anyway.  People don't like being taxed and if we're

         17        talking about correcting our tax structure and our tax

         18        system, then I think with regard to that, I think we need

         19        to have the necessary data and information to educate the

         20        public.  We don't have that ability as a commission to do

         21        that.  We simply don't.  We may have five, six, seven,

         22        eight, I don't know how many proposals going out.  We're

         23        not going to have time.

         24             This is not going out, not as a proposal that will

         25        allow the Legislature if there is an emergency or if there


          1        is some need in the future for an income tax, this is

          2        going out to the public.  And here are these elitists

          3        sitting around now trying to find another way to get in

          4        our pocketbook.  And let me just tell you, I'm one who

          5        definitely believes that government should be out trying

          6        to help the least of these.

          7             This matter came to my mind in a way that I could

          8        understand it.  When Miami started dealing with its

          9        homeless problem someone said, Let's tax -- let's impose a

         10        one cent sales tax for the homeless and everybody said,

         11        You've got to be out of your mind, that would never pass.

         12        Then Dade County got sued and then almost every day we

         13        began to find out how serious this problem was and how it

         14        was a drain on our tourism.  And how it was a big, big

         15        problem.  And then the people understood it.

         16             Once the people understood it and they understood

         17        that there was a need to raise the money, Dade County

         18        commissioners voted 13 to zero to impose a one cent sales

         19        tax and there hasn't been one bit of backlash, not one.

         20        The visionaries who proposed this before the people were

         21        educated as to why it was needed were just ahead of their

         22        time.

         23             What I'm saying is, we can wreck things if we're too

         24        far ahead of the people.  If the people understand that

         25        there is a need for this, they won't go to the Legislature


          1        and say, We've got to change this.  They will institute a

          2        citizen's initiative, or they will do whatever is

          3        necessary.  The people are not going to let their state go

          4        under economically.

          5             But until we show fiscal responsibility for the

          6        monies already raised, until we educate the people why

          7        with a combination of other tax proposals this is one part

          8        of making it fairer, making it broader, making it a tax

          9        structure for the future, until we educate the people to

         10        that, I mean, let's be real, this is, in fact, a proposal

         11        destined for failure, destined for ridicule of this

         12        commission, destined to bring other issues that the people

         13        have asked for, the people have told us, Please protect

         14        our environment.  The people have told us, Please, please

         15        do something about our educational system.

         16             The people have told us, Please look at restructuring

         17        our government.  We know it doesn't work now, but see if

         18        you can do something to make it work better.  They've told

         19        us these things.

         20             Hopefully we've heard from people who've told us,

         21        Make the political process accessible to more than just

         22        the two main political parties.  They've talked to us

         23        about human rights issues.  But honestly, honestly, I

         24        mean, intellectually, Commissioner Barnett, Commissioner

         25        Brochin, I believe you're right.  I believe this is


          1        something that's inevitable.  But until the people see

          2        that it's necessary to change their Constitution and until

          3        the people see that there are other proposals that are

          4        going into place to make this a part of not only making

          5        the tax structure fairer, but lessening the burden on

          6        them, until that happens, I strongly suggest that we will

          7        be doing a disservice.  Vision, yes.  Courage, yes.

          8        Reality, no.  And that's why I must vote no.

          9             CHAIRMAN DOUGLASS:  Commissioner Corr?

         10             COMMISSIONER CORR:  Thank you, Mr. Chairman.  Well,

         11        first of all, I keep hearing the song from the Twilight

         12        Zone in my head because I'm sort of shocked that we're

         13        here in Tallahassee in this chamber actually proposing a

         14        state income tax.  I mean, I never thought in my wildest

         15        imagination, being a member of this commission, that

         16        anybody would bring this to pass after the public

         17        hearings, anybody would bring this up on the floor of this

         18        CRC.  But because it is, I guess we're in the position to

         19        have to speak in opposition.

         20             And I think what we've heard so far, is the only good

         21        reason we've heard to put this on the ballot, has been

         22        echoed by Commissioner Barkdull by Commissioner Smith, by

         23        Commissioner Scott, the only reason to put this on the

         24        ballot is if you want to kill everything else.  This, as

         25        Commissioner Connor said, this will seriously cripple the


          1        credibility of the CRC instantly.  If this passes and hits

          2        the newspapers tomorrow, we're done.

          3             There's been no argument even though we're hearing

          4        what sounds like virtues of income tax, no argument here

          5        holds water.  Commissioner Brochin, with all due respect,

          6        the idea that property taxes could come down, that sales

          7        taxes could come down, is noble, but nowhere in this

          8        proposal does it say that.

          9             I would say that once government had the chance to

         10        get the extra income, we'll never see the reducing of

         11        those taxes to bring it down to equity.  There was some

         12        talk about need for more state income.

         13             We've had 4 percent income growth in the last two

         14        years.  We have the highest budget we've ever had in

         15        history.  It's increased every year this decade.  I would

         16        say that we're finally in the Legislature -- and I haven't

         17        been here in a couple of years -- we're finally in the

         18        Legislature in the great position of having a little bit

         19        of extra money to delegate.  President Jennings might

         20        think otherwise, but we've had budget surpluses.  We don't

         21        have a need for more state income.

         22             The argument that this is a better tax, that it's a

         23        fairer tax, would say it's wrong.  Every presidential

         24        candidate on both parties, maybe not every presidential

         25        candidate, but candidates from both parties, have talked


          1        about doing away with federal income tax over the last few

          2        years.  They all see the problems, the challenges within

          3        income tax, not a better tax, do away with it on the

          4        federal level.

          5             In as far as Florida being the only state in the

          6        nation that has abandoned its Constitution, I would say

          7        that that doesn't make us followers, that doesn't make us

          8        backwoods sort of, you know, country bumpkins without, you

          9        know, we've heard talk of vision.  I'd say it's the exact

         10        opposite.  We are leaders.  We are the only Constitution

         11        that bans an income tax.  I'd say that's a model for

         12        others to follow, not for us to follow others.

         13             In closing, because I'm echoing what others have

         14        said, let me just say because we're hearing virtues of

         15        income tax that the exact opposite is true.  An income tax

         16        by its nature is evil.  Commissioner Connor started to say

         17        that.  He talked about it a few minutes ago.  A tax by its

         18        nature is evil to tell somebody that by being successful

         19        that they are going to be penalized is wrong.  We, as

         20        Florida, have never done that.  We've been a state that

         21        has been the growth state as Commissioner Scott has said.

         22        Come to Florida, open a business, be successful, raise a

         23        family with a vision for the future.  Give them a reason

         24        to be successful, that's what Florida is all about.

         25             This proposal is the exact opposite.  I would say we


          1        need a strong show of support against it here.  There is

          2        no virtue in putting it on the ballot whatsoever.

          3             CHAIRMAN DOUGLASS:  All right.  I've been reminded by

          4        the rules chairman on issues with a lot of debate I should

          5        ask for the proponents to be recognized first and let me

          6        know who they are and then the opponents.  And then the --

          7        and I haven't done that much.  So he's right.  Also, he's

          8        keeping time on the ten minutes that are limited in

          9        debate.  So far that's been good.  And now we will go to

         10        the close.  You rise, Commissioner Scott?

         11             COMMISSIONER SCOTT:  Mr. Chairman, I'm not aware of

         12        that rule.  And if it's modeled after Senate rules, in

         13        fact, in the Senate we often go back and forth.  We might

         14        line up debate, but we go back and forth.  I'm not sure

         15        what rule that is.

         16             CHAIRMAN DOUGLASS:  Me either, I just reported what

         17        he told me.  So we'll take that up later.  Obviously, I

         18        have been following the Senate rule, if that's the rule.

         19        I've been doing what you said.  Anyway, we'll take that up

         20        later but I was just reporting.  But the ten-minute rule I

         21        know is in the rules and nobody has violated it in this

         22        debate.  Commissioner Barnett, you may close.

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

         24        I want to thank the members of the commission for the

         25        attention that you've given this issue and what I think is


          1        a very good informed debate.  One of the concerns that I

          2        have that's been expressed in various ways by others, both

          3        as a reason to do this and a reason not to do it, is that

          4        the people of this state have never been educated about an

          5        income tax.  It's a myth about what an income tax does for

          6        the state and doesn't do for the state.

          7             They don't know what options are available if the

          8        Legislature had a balanced revenue system from which to

          9        make its choices.  None of us really know.  We can look at

         10        examples in other states.  We can study tax principles, we

         11        can predict what some of those things will be, but the

         12        people really react to this self-perpetuating myth that we

         13        will never have an income tax and it's bad and, Oh, by the

         14        way, let's don't ruin everything else on our ballot with

         15        an income tax.

         16             I think the people are smarter than that.  I think

         17        the people deserve an opportunity to speak to this.  It's

         18        not going to happen that the people are going to come

         19        forward and say, Tax me.  Please add some more taxes to

         20        me.  The people would repeal the sales tax and the

         21        property tax if we gave them the option, I guarantee you

         22        that would pass, or it would get a lot of attention.

         23             So it's not whether the people want to be taxed on

         24        income.  No one wants to pay taxes.  But I guarantee you

         25        that if we have a balanced revenue system the facts are


          1        available, the data is available to show that the

          2        Legislature has increased options in how it taxes its

          3        citizens and there would be the potential, the real

          4        potential, for savings in areas of property tax, in areas

          5        of sales tax, for changes to the sales tax, for changes to

          6        the intangible tax.

          7             Right now the intangible tax is a real burden on

          8        economic development in this state and the Legislature is

          9        addressing it.  It costs money to make dramatic changes in

         10        the intangible tax, it's a billion dollars of revenue.

         11        Article V, we all want very much, I believe, to do the

         12        Article V cost.  It costs money.  There have to be

         13        options, a broad array of options available to the

         14        Legislature.  I'm not saying tax income, I'm not

         15        advocating that.  And I'm not asking anybody on this floor

         16        to vote to tax income.

         17             What I am advocating is vote for a balanced revenue

         18        structure.  Give the tools, the appropriate tools, to our

         19        elected officials so that they can do their job, so that

         20        they can give the citizens options, some of which will

         21        benefit people who don't make a lot of money, who don't

         22        have a lot of wealth.  It will give them an opportunity.

         23             What are we afraid of?  I ask you what are you afraid

         24        of?  Are you afraid that the people will reject this?  I'm

         25        not.  I'm not a bit afraid that the people of the state


          1        will turn down a personal income tax.  I believe in the

          2        people.  I believe that if they want to do that, and the

          3        facts will come out if this goes forward about the

          4        opportunities for change and betterment, frankly, the tax

          5        situation of a lot of people, but if they reject it, I'm

          6        not afraid.

          7             I'm not afraid that the people will come out in

          8        droves and vote against the rest of our proposals.  I'm

          9        not afraid of that, that's another myth in my judgment.  I

         10        think the people of this state are very smart.  I think

         11        they are very sophisticated about government.  I think

         12        they've done a pretty good job of letting government

         13        officials know what they want and what they value, and I'm

         14        not afraid of that.

         15             We can structure this in a way that gives the

         16        citizens a clear choice.  So I ask you, What are you

         17        afraid of?  Are you afraid they'll tax your income?  Are

         18        we afraid personally?  I don't think so.  I don't think

         19        so.  This is an opportunity.  This is an important

         20        opportunity to give this state a foundation to take it

         21        into the next millennium.  The business community ought to

         22        be behind this.  The individuals ought to be behind it and

         23        I would hope that you-all will be behind it today.  And

         24        again, I thank you very much for the attention given to

         25        the issue.


          1             CHAIRMAN DOUGLASS:  All right.  We'll proceed to

          2        vote.  Open the machine.

          3             (Vote taken and recorded electronically.)

          4             CHAIRMAN DOUGLASS:  Has everybody voted?  Record the

          5        vote.

          6             READING CLERK:  Nine yeas and 23 nays, Mr. Chairman.

          7             CHAIRMAN DOUGLASS:  By your vote you have defeated

          8        the proposal.  We'll go back now, I think, Proposal 105.

          9        Commissioner Thompson, I understand you are ready on

         10        Proposal 105.  Would you read it again, please?  Read 105.

         11             READING CLERK:  Proposal 105, a proposal to revise

         12        Article II, Section 15, Florida Constitution, and Article

         13        VI, Section 4, Florida Constitution, increasing the term

         14        of office of state representatives and state senators;

         15        increasing the number of years such offices may serve.

         16             CHAIRMAN DOUGLASS:  All right.  Before I recognize

         17        you, Commissioner Thompson, let me commend the commission

         18        on a very orderly and informative debate on the last

         19        subject.  It was not one that was easy to debate.  It was

         20        done in a great fashion.  And I'm sure that -- the Chair

         21        appreciates it.  And, Commissioner Barnett, you may not

         22        always be right, but you are never, like me, in doubt.  We

         23        appreciate your candor.  Commissioner Thompson?

         24             COMMISSIONER THOMPSON:  Yes, Mr. Chairman and

         25        Members, this is Commissioner Planas' proposal.  It


          1        originally would have done two things.  And as it's in

          2        your special order book, it would have done two things.

          3        One is it would have changed the terms of office for House

          4        members from two to four years and for Senate members,

          5        four to six years.  That is in the State of Florida, of

          6        course.

          7             The second thing that it would have done was extend

          8        the eight is enough amendment, that's the best way to

          9        explain that probably, which would be the entire length of

         10        terms in office, a time in office, from eight years to 12

         11        years.  The Legislative Committee agreed with Commissioner

         12        Planas to just deal with the latter issue and that is just

         13        an extension of eight-year terms to -- or time spent in

         14        office to 12 years of time in office, consecutively.  And

         15        so, that's what we are recommending to you.  In order to

         16        do that, Mr. Chairman, I would first like to ask you to

         17        take up the first amendment on the desk.

         18             CHAIRMAN DOUGLASS:  All right.  Read the first

         19        amendment on the desk by Commissioner Thompson.

         20             READING CLERK:  By Commissioner Thompson, on Page 1,

         21        Line 11, through Page 2, Line 17, delete those lines.

         22             COMMISSIONER THOMPSON:  Okay.  What we are doing here

         23        is we are deleting -- if you are looking at Proposal 105,

         24        we are deleting the language on Page 1 of that proposal

         25        and the language at the top of Page 2 of that proposal.


          1        And the reason is, those things pertain to the change in

          2        the term from two to four years and four to six years.

          3             And we are leaving in, then, the change in language

          4        at the very bottom of Page 2 and carrying on over to Page

          5        3, which makes it clear that we are only proposing to you,

          6        for your consideration, that you propose to the public

          7        that we extend the time of -- length of service for

          8        members of the House and Senate in Florida from eight to

          9        12 consecutive years.

         10             I have another amendment on the desk, Mr. Chairman,

         11        that will make sure that that time began to run in 1992.

         12        And I'll explain that if you will read the amendment.  It

         13        is an amendment to the amendment, isn't it?

         14             Well, no, it's not an amendment to the amendment.  We

         15        are on this amendment first then to strike everything and

         16        just go to 12 years.

         17             CHAIRMAN DOUGLASS:  All right.  Everybody in favor of

         18        the amendment that was just explained -- first of all,

         19        does anybody want to be heard on the amendment?  All

         20        right, if you're not, all in favor of the amendment say

         21        aye.  Opposed?

         22             (Verbal vote taken.)

         23             CHAIRMAN DOUGLASS:  No, it carries.  Now, we have

         24        another amendment on the table, which is amendment No. 2.

         25        Would you read that amendment, please?


          1             READING CLERK:  By Commissioner Thompson, on Page 3,

          2        Lines 7 and Lines 17, after the word "years," insert

          3        "since 1992."

          4             CHAIRMAN DOUGLASS:  Now, Commissioner Thompson on the

          5        amendment.

          6             COMMISSIONER THOMPSON:  Thank you, Mr. Chairman.

          7        Members, this is a simple amendment now.  We are still

          8        really on the text on the bottom of Page 2, and then

          9        Page 3.  That is what the proposal is before you.  And

         10        this amendment would simply add on Lines 7 and Lines 17 of

         11        Page 3, the language, strike the period and add a comma,

         12        and add the language, "since 1992."  1992 is when the

         13        eight years began to run on people who were in office then

         14        or have come in subsequent to that time.

         15             Now what we wanted to be careful that we did not do

         16        is add another 12 years at the end of that eight years

         17        which would give people that were elected then 20 years.

         18        And I don't think the public intended that.  So we didn't

         19        want to recommend that.

         20             If you were -- whenever you were elected during that

         21        time, you were still only going to have 12 years under

         22        this proposal, whereas right now, you have eight years.

         23        And that is the whole purpose of what we are doing.  And

         24        so that is the second amendment that clarifies when the 12

         25        years begins to run.  So, we are on the amendment.


          1             CHAIRMAN DOUGLASS:  All right.  On the amendment, all

          2        in favor of the amendment, say aye.  Opposed?

          3             (Verbal vote taken.)

          4             CHAIRMAN DOUGLASS:  The amendment is adopted.  Now,

          5        on the proposal as amended, would you explain it now, what

          6        it does?

          7             COMMISSIONER THOMPSON:  This proposal as amended now

          8        is pretty simple.  And what we all understand is eight is

          9        enough, is going to be extended to 12 is enough.  And we

         10        think we have done the technical changes that are not

         11        going to extend beyond that, but it would be a very simple

         12        thing to explain to the public and for the public to

         13        decide how they want to go.  Commissioner Planas was very

         14        strong in his belief that eight was not enough and that he

         15        thought that the public would accept an extension to 12

         16        there.

         17             Those who think there should be no limit, but since

         18        the public has spoken to that and spoken recently, I think

         19        his attitude was, let's see if they won't accept 12

         20        because that would be something that would be defensible.

         21             CHAIRMAN DOUGLASS:  Commissioner Barnett?

         22             COMMISSIONER BARNETT:  Is it covered somewhere else

         23        in the language as to what would happen if a person was

         24        filling part of an unexpired term?  The 12 is enough would

         25        apply to 12 -- to actual full terms or what would it do


          1        to -- if somebody is serving part of an unexpired term?

          2             COMMISSIONER THOMPSON:  Well, this deals with years.

          3        So, whatever portion of an unexpired term you're involved

          4        in would count on the years.  And that's present language

          5        in the Constitution, if you will notice.  It says, If by

          6        the end of the current term of the office the person will

          7        have served in that office for 12 consecutive years.  It

          8        just changes eight to 12.  And that's years.

          9             COMMISSIONER BARNETT:  Okay.  So if somebody is

         10        elected, leaves middle of the term in the Senate, they

         11        serve two years and then they are elected again, they can

         12        really only be elected for two more full terms; is that

         13        correct?

         14             CHAIRMAN DOUGLASS:  That would make it 12.

         15             COMMISSIONER BARNETT:  But as opposed to the three

         16        full terms plus the two unexpired, it's just -- I'm trying

         17        to see how that's handled or dealt with.

         18             COMMISSIONER THOMPSON:  This language says 12

         19        consecutive years is all you can serve, the way I

         20        understand it.  By the end of the current term of office,

         21        a person will have served that long.

         22             CHAIRMAN DOUGLASS:  Commissioner Scott?

         23             COMMISSIONER SCOTT:  I believe, but it's a good

         24        question, and I believe that the answer is -- for example,

         25        we are about to have some special elections in the Senate,


          1        they would not be covered.  In other words, I think an

          2        unexpired term would be added on to whatever is there.

          3        But it's a good question and we'll try to sort this out.

          4             I asked the staff just now to try to get some

          5        information if there is some further change.  But under

          6        current, in the Senate, because of the two-year term after

          7        reapportionment, that is added on because it wasn't a full

          8        term; in other words, a full term being four years.  So, I

          9        believe that same thing would apply, whatever the

         10        unexpired portion would be added on but we'll check on it.

         11             CHAIRMAN DOUGLASS:  This only applies to the

         12        Legislature; is that correct?  This amendment?

         13             COMISSIONER THOMPSON:  That's correct.

         14             CHAIRMAN DOUGLASS:  It doesn't affect the eight is

         15        enough everywhere else it applies.

         16             COMISSIONER THOMPSON:  Correct.  And the other thing

         17        is, in full response to your question, and I imagine

         18        Commissioner Scott answered it more fully and I didn't

         19        hear him because I was consulting with the staff, I think

         20        I might have been incorrect.  I think if you are in a

         21        middle of a term, let's say, and this passes, it's like

         22        when eight is enough passed and you were in the middle of

         23        the term if you were in the Senate.  The prohibition

         24        against you serving beyond eight years didn't begin until

         25        your next election so you could serve ten.  If this


          1        passes, it will be 14.  But it's not a new 14, don't

          2        misunderstand me.  This eight is part of that.

          3             CHAIRMAN DOUGLASS:  Commissioner Morsani?

          4             COMMISSIONER MORSANI:  I would like to ask a

          5        question.

          6             CHAIRMAN DOUGLASS:  He yields.

          7             COMMISSIONER MORSANI:  What is the consensus, or do

          8        you have a consensus as to the population at large?  I

          9        haven't -- I mean, personally, I am in favor of 12 years,

         10        I didn't think eight was the right thing to start with but

         11        that's my own opinion, so I'm in favor of it.  But what is

         12        the consensus out there in the public or is there a

         13        consensus?  If so, I would like to know what it is.  The

         14        group that led the fight for eight is enough, is there

         15        any -- have we discussed that with anybody?

         16             CHAIRMAN DOUGLASS:  Commissioner Scott rises to

         17        answer your question.

         18             COMMISSIONER SCOTT:  Because this happened, the eight

         19        is enough, the people that sponsored that, said to the

         20        Legislature, If you will do 12 years -- I don't know if

         21        Senator Jennings remembers that -- then we will push the

         22        eight is enough.

         23             But the Legislature and the leadership at that time,

         24        and Senator Crenshaw will remember -- he was not the

         25        leader by the way -- reduced to do that.  I mean, they


          1        would not do it on their own.  So that's why they went

          2        forward.  And I think there was a feeling among them that

          3        maybe eight was, you know, too short because it's too

          4        short for people to get a chance to develop fully to be

          5        chairman of major committees and president and speaker.

          6             CHAIRMAN DOUGLASS:  Anybody else want to be heard on

          7        this proposal?  Commissioner Anthony?

          8             COMMISSIONER ANTHONY:  Mr. Chairman, I rise in

          9        opposition to this proposal.  I am totally opposed to term

         10        limits.  I don't think term limits do very much in regards

         11        to safeguarding our local government, state government, or

         12        at any level, do much for improving the quality of public

         13        policy that is developed.  But in 1992, in the general

         14        elections, the public spoke and we often talk about that

         15        this is the citizen's document, this Constitution.  I

         16        can't stand here and ask you to support something to undo

         17        the actions of the citizens of this state.

         18             It is similar to local government when we put a

         19        general obligation bond before the voters and we say to

         20        those voters, If you pass this general obligation bond for

         21        schools, we will build more schools.  And then the voters

         22        go and they defeat this bond issue for schools.  And then

         23        that public policy body then goes and changes the votes

         24        and vote to build and put more money into schools against

         25        the will of the citizens of that entity.  That is not


          1        right.

          2             Either we, as a legislative body, should have taken

          3        charge and made decisions that reflected the desire of the

          4        citizens or we give that authority to the citizens to make

          5        that decision.  Well, we gave that authority through our

          6        Constitution, through the citizens' initiative process, to

          7        make that decision.  And the voters did, overwhelmingly,

          8        make that decision.

          9             We can't afford to usurp the voter's response to

         10        their Constitution.  We can't afford to second-guess the

         11        voters in terms of their intent in this Constitution.

         12        It's not right, it is not a good message and we should

         13        support and maintain what they want.

         14             I'm opposed to term limits, but I am more opposed to

         15        undoing what the voters of Florida have done and spoken as

         16        it relates to their Constitution.  And I urge you to vote

         17        no to this proposal.

         18             CHAIRMAN DOUGLASS:  Commissioner Barton?

         19             COMMISSIONER BARTON:  I also urge you to vote no, not

         20        philosophically because I'm opposed to this.  In fact, I

         21        would like to see it be at least 12 years or more.

         22        However, and I would like to add this point, that it was

         23        over 70 percent of the voters who by the initiative

         24        arrangement did vote for eight is enough.  In fact, I

         25        believe it was 76 percent.  That is an overwhelming amount


          1        and I think it is thumbing our noses at the voters to

          2        recommend something other than what they have passed.

          3             CHAIRMAN DOUGLASS:  Commissioner Henderson?

          4             COMMISSIONER HENDERSON:  I rise in opposition to

          5        this, echoing everything that's been said.  But I want to

          6        give a little different perspective.  The few times during

          7        the course of these proceedings, I have called upon some

          8        of the experiences I had back in Volusia County.  As we

          9        said earlier, we have charter government there.  And one

         10        of the interesting things about the charter in our

         11        community is that from the very beginning, since 1970, we

         12        have had eight is enough, we've had term limits.

         13             And so, it's made our experience in our community a

         14        little bit different because we elect county commissioners

         15        there for a temporary period of time, they can't really

         16        succeed themselves, they come and they go.  And it's made

         17        for -- over the 25 years of looking at public policy

         18        there, it is a little different.  I had a unique

         19        experience -- I lost track of what year it was -- probably

         20        '90, '91.  I was asked to go out and speak to a committee

         21        of California Legislature on some environmental programs

         22        that we were doing here in Florida.  And it just happened

         23        to be right after the term limits went into effect in the

         24        California Legislature.

         25             And you would have thought to the ceiling of the


          1        Legislature had fallen in and crashed down on those folks.

          2        The Speaker of the House there had been their Speaker for

          3        20 years.  I was looking at a committee chairman in this

          4        one committee who had been there for 25 years.  These are

          5        all professional full-time legislators who all of a

          6        sudden, the voters made a change.  We are going to have

          7        eight is enough and these people were absolutely scared

          8        about what was going to happen in the near future.

          9             What has been unique about the process that we go

         10        through is that we have been able to make decisions and

         11        have debate on issues, incredible freedom, the freedom

         12        that with the exception of Senator Scott and Senator

         13        Jennings, we are not going to be on the ballot later this

         14        year.

         15             That freedom allows us to focus on the question of

         16        what is the right thing to do.  What is the right thing to

         17        do without regard to who I've got to talk to in the lobby

         18        to ask for political contributions, without regard to what

         19        political action committees and all to go to seek support.

         20        It focuses our attention on what is the right thing to do.

         21             What was unique about our 25-year experience in

         22        charter government and Volusia County is that that's how

         23        we came to work everyday.  You didn't have to worry about

         24        that next election, you thought about what is the right

         25        thing to do.  This Legislature is not about professional


          1        full-time legislators as a job for a career.  It's about

          2        people coming here giving up their -- just like we've

          3        done, giving up their day job for a while to come here to

          4        debate some of the critical policy issues of the day.

          5             Eight is enough, as we said yesterday, has changed

          6        the nature of the Cabinet.  Eight is enough has changed

          7        the nature of the Legislature and it allows the

          8        opportunity for us to focus on the right thing to do.  It

          9        would be the wrong thing for us to do, to suggest anything

         10        otherwise.

         11             CHAIRMAN DOUGLASS:  Commissioner Freidin?  You are

         12        next, Commissioner Sundberg.  Then Commissioner Zack, if

         13        you still want to speak.

         14             COMMISSIONER FREIDEN:  People do change their minds

         15        and often they change their minds based on experience that

         16        they have had as a result of something that they did.

         17        People made a decision in 1992, they have had the

         18        opportunity to think about that decision, they have had

         19        the opportunity to contemplate what it means now, with

         20        people about to be leaving office and not being able to

         21        run again.

         22             The political climate, when that decision was made by

         23        the voters of Florida, was a much more negative

         24        antigovernment, political climate than I think exists

         25        today.  And I also think that by term limits, by


          1        shortening term limits, by restricting term limits, we are

          2        doing something or we have -- the citizens do something

          3        that runs directly contrary to what -- many of the things

          4        we have voted favorably on in this commission.

          5             For -- what I'm talking about is by having term

          6        limits, you take away responsibility from the voters.  You

          7        take away their responsibility to know what their elected

          8        officials are doing and to vote them in or vote them out

          9        according to their conduct in office and according to what

         10        they have stood for and what they have done in office.

         11             And here we are, we have talked endlessly about

         12        increasing voter participation, about increasing

         13        participation of our electorate in the decision-making

         14        processes of our state.  And finding ways to get people

         15        involved and by having shorter term limits.  We are -- it

         16        is like a preordained thing.  And it says to the voters,

         17        You don't really have to be paying attention because they

         18        are going to be out anyway.  I think it runs contrary to

         19        that.  I would support doing away with term limits.  I did

         20        support doing away with the term limits.  I would support

         21        any measure that would lengthen the term limit.

         22             CHAIRMAN DOUGLASS:  Commissioner Sundberg?

         23             COMMISSIONER SUNDBERG:  I proposed an amendment that

         24        would have eliminated term limits altogether.  I think it

         25        is just -- I don't know why we should limit the citizen's


          1        flexibility in terms of how long people -- their elected

          2        representatives stay in office.  If they want to limit

          3        their terms, there is a very easy way to do it, and that's

          4        to, you know, go into the booth and send them packing.

          5             But I think it is not an accurate argument,

          6        respectfully, Commissioner Anthony to say and others who

          7        said, Well, we are thumbing our noses in the face of the

          8        people who just so recently voted for term limits.  They

          9        didn't vote on this proposal.  All they had to vote on

         10        when they voted was one that said, across-the-board terms

         11        will be limited for the offices, including Congress.

         12             And so, we don't know, we don't know what their vote

         13        would have been had the proposal been put to them that the

         14        limits of executive officers, the Cabinet in particular,

         15        will be limited to eight years.  But the limits, the

         16        limits on the Legislature, there will be limits but it

         17        should not, you know, be that critical.  It ought to be 12

         18        years for many of the reasons that have been expressed

         19        here.  And that is, you know, you lose the benefit of the

         20        institutional memory.

         21             The other thing, apart from what Commissioner Freidin

         22        has expressed, is the attitude or the culture that was

         23        rampant at that time, and quite justified, I might say,

         24        was the fact that the tradition in Florida, for very, very

         25        long terms has not been so much in the legislative branch


          1        as it has been in the Cabinet.  I mean, the tradition in

          2        Florida is Cabinet officers -- I mean, there were Cabinet

          3        officers, if you can believe this, there were Cabinet

          4        officers when I was a young boy and they were still here

          5        when I came to go into court.  That was still the

          6        tradition in Florida and that may very well have been what

          7        moved people to support this.

          8             But they never had a chance at this one that says

          9        eight years for Cabinet officers but 12 years for the

         10        legislators.  So I think that is simply not a valid

         11        argument.  And if you believe the people ought to have

         12        more flexibility, and I think Commissioner Freidin says

         13        they are entitled to change their mind, I don't view it

         14        that way.  They never get a chance at this one.  But I

         15        think it may tell us something.  I think it may tell us

         16        that in fact maybe they have rethought this issue.  I

         17        support this proposal.

         18             CHAIRMAN DOUGLASS:  Commissioner Zack?

         19             COMMISSIONER ZACK:  You know, yesterday we mentioned

         20        Claude Pepper in this chamber in a very fond way.  And

         21        when I went to work for him as his legislative aide he was

         22        72 years old and he had had a lifetime in government.  And

         23        his best years were his last 16 until he was 88 years old,

         24        that's when we championed the elderly and the concerns of

         25        the elderly, that's when he was chairman of the Rules


          1        Committee.  He had to have a lifetime of service before he

          2        got to that point.

          3             And I strongly oppose term limits, period.  I voted

          4        against term limits; however, with all respect to

          5        Commissioner Sundberg and Commissioner Freidin, I've been

          6        living in this state for the last four years and I don't

          7        see a radical change in the view of the public as to how

          8        they perceive government.  And I believe that they have

          9        the right to vote for term limits, I hope, with

         10        retrospect.  And not a four-year retrospect, it's going to

         11        take longer than that, but at any time the people can have

         12        an initiative and change this when they realize that it's

         13        not good for them.

         14             When we looked at the net ban issue, we said it was

         15        just voted on by the people.  Eighty-seven percent -- I

         16        think it was 87 percent -- but it was most certainly over

         17        70 percent, just like it was over 70 percent here, the

         18        people spoke and spoke loudly.  What more elitist

         19        statement could we make when we look at the public and

         20        say, Well, not only are we not going to listen to what you

         21        said, but what you said is just a little bit wrong, you

         22        just were off by four years.

         23             If we are going to do something, and I'm opposed to

         24        putting this in the Constitution as one of our

         25        initiatives, but if we are going to do something, let's be


          1        intellectually honest and say, We are opposed to term

          2        limits.  And if you can get the right number of votes,

          3        then let's go ahead and put that on the ballot.  But let's

          4        not say that, you know, that you are just off a little bit

          5        in what you believed.  We ought to respect what the

          6        citizens did.  They have the opportunity to undo it.

          7             We made the argument a minute ago in -- some of us

          8        heard or I guess we all heard and some of us made

          9        arguments, that we didn't know what the citizens would do

         10        about tax reform.  Well, we know loud and clear what the

         11        citizens feel about this issue, and I urge you to vote

         12        against this no matter how strongly you believe in the

         13        concept.

         14             CHAIRMAN DOUGLASS:  Okay.  Ready to vote.  Unlock the

         15        machine.

         16             (Vote taken and recorded electronically.)

         17             CHAIRMAN DOUGLASS:  Lock the machine and announce the

         18        vote.

         19             READING CLERK:  Eleven yeas and 20 nays,

         20        Mr. Chairman.

         21             CHAIRMAN DOUGLASS:  By your vote, you have defeated

         22        Proposal 105.  Commissioner Barkdull?

         23             COMMISSIONER BARKDULL:  I would like to make an

         24        announcement for the benefit of the House.

         25             CHAIRMAN DOUGLASS:  Go ahead.


          1             COMMISSIONER BARKDULL:  Because of the TV schedule

          2        this afternoon that starts at 1:00 and also because of

          3        some requests by some members for a longer period of lunch

          4        time than an hour, it would be a policy to make a motion

          5        that we recess at least by a quarter of 12, but promptly

          6        return by 1:00.

          7             CHAIRMAN DOUGLASS:  All right.  Let's see.  Where

          8        were we here?  All right.  The next proposal is Proposal

          9        184 by the Committee on Ethics and Elections and

         10        Commissioner Mills, recommended as a committee substitute

         11        and approved by the Committee on Ethics and Elections with

         12        a pending amendment, is on the table.  New reading clerk,

         13        Brandy Burke.  We are delighted to have you and we'll get

         14        a melodious voice instead of our baritone, I think.  Would

         15        you read it, please?

         16             READING CLERK:  Committee substitute for Proposal

         17        No. 184, a proposal to revise Article VI, Section 1, of

         18        the Florida Constitution, providing that the Legislature

         19        shall prohibit certain conduct in connection with

         20        elections.

         21             CHAIRMAN DOUGLASS:  Very good.

         22             COMMISSIONER MILLS:  Mr. Chairman, I think there's a

         23        substitute amendment on the desk.

         24             CHAIRMAN DOUGLASS:  Excuse me.  Our reading clerk,

         25        she's not inexperienced, she's on the radio at FSU.


          1             COMMISSIONER MILLS:  Makes sense.  Mr. Chairman, this

          2        is the issue I discussed with you.  We discussed this

          3        thoroughly yesterday on the floor.  I would say this, it

          4        passed unanimously out of the committee.  We have had an

          5        enormous amount of good work by our staff trying to

          6        accomplish the mission.  The mission is to provide a means

          7        of removing people from office for conduct during

          8        elections which is currently not available.

          9             Our problem is we are running right in between the

         10        First Amendment's rights of communication and the ability

         11        to make this effective.  I've worked with Commissioner

         12        Freidin, Commissioner Rundle and the staff and what I

         13        would ask you, is if you can temporarily pass this, either

         14        we will come out with something that is effective or we

         15        will withdraw it.  And at the moment, I think we have

         16        something that -- we may have met one of the concerns, but

         17        we may not have made sure it doesn't do much of anything.

         18             CHAIRMAN DOUGLASS:  That probably is an improvement

         19        you're telling us; is that correct?

         20             COMMISSIONER MILLS:  Depends on your point of view.

         21             CHAIRMAN DOUGLASS:  All right.  Without objection,

         22        we'll temporarily pass it and allow them to try to make it

         23        do nothing.  Proposals number -- committee substitute for

         24        Proposals 36 and 38 by the Committee on General

         25        Provisions.  It is recommended as a committee substitute


          1        and it combined these two and was disapproved after they

          2        did all of that by the Committee on General Provisions.

          3        Would you read it, please?

          4             READING CLERK:  Committee substitute for Proposals

          5        Nos. 36 and 38, a proposal to revise Article II, Section

          6        7, Florida Constitution; providing a right to clean and

          7        healthful air and water and providing for the abatement of

          8        pollution and noise.

          9             CHAIRMAN DOUGLASS:  Commissioners Henderson and Mills

         10        are both moving.  Is that a run or do you want to speak?

         11        Who wants to go first?

         12             COMMISSIONER HENDERSON:  Thank you, Mr. Chairman.  I

         13        only heard three people say, Oh, no, on the way as I was

         14        walking across to get here.

         15             CHAIRMAN DOUGLASS:  The question was, what were they

         16        saying, Oh, no, about?

         17             COMMISSIONER HENDERSON:  I don't know, Mr. Chairman,

         18        I don't know.

         19             CHAIRMAN DOUGLASS:  You have the floor.

         20             COMMISSIONER HENDERSON:  Thank you.  What I would

         21        like to do is to introduce the proposal and say some words

         22        about it.  And I understand that Commissioner Mills has an

         23        amendment which he will offer in just a second.  If I may

         24        proceed.

         25             First of all and foremost, we've heard a few people


          1        today talk about what we have done in this commission over

          2        the course of the last several weeks with regard to the

          3        environment.  The truth is, we have taken some significant

          4        action and I congratulate each of you for listening to the

          5        public which came out at these public hearings to address

          6        this issue.

          7             You will recall that at our second public hearing,

          8        the secretary of the Department of Environmental

          9        Protection, Virginia Wetherell, came forward and said that

         10        there is pitifully little in our Constitution with regard

         11        to protection of our natural resources and environment and

         12        proposed the issue of the environmental bill of rights.

         13             In my thanks to you, I would say that we have gone

         14        very far in a series of issues that I think we'll put

         15        together which will give to the public of the state an

         16        opportunity to do even more to protect our environment.

         17        We have created a Fish and Wildlife Conservation

         18        Commission.  We have authorized bonding authority for the

         19        protection of environmental and endangered lands.  We

         20        yesterday found a way to protect these lands for future

         21        generations.  Tomorrow we'll have a provision before us to

         22        protect private lands, or good stewards of the land.  And

         23        these are all matters that I think command great public

         24        support.

         25             I would also tell you that it was with a little bit


          1        of trepidation to decide whether we would go forward today

          2        on this issue, because frankly, candidly, I think we have

          3        developed a consensus on these environmental measures and

          4        I do not want to do anything to jeopardize that consensus

          5        because the environment is a bipartisan issue in the

          6        state, because it has risen to a fundamental value.

          7             As you know, the committee heard testimony on this,

          8        as well as the matter which will follow property rights.

          9        And the recommendation is to reject each of these.  But we

         10        have had some good debate on this floor earlier today on

         11        the income tax and on term limits.  And I think what

         12        inspired me to at least bring this debate before the floor

         13        is, frankly, Commissioner Brochin talked me into it with

         14        his debate on education rising to the level of a

         15        fundamental right.

         16             Because when we agreed to that, we changed in our

         17        mind an idea of what a right is.  You know, for everything

         18        else, it's in the Constitution.  Rights are those things

         19        that we pull back and protect to ourselves to be free from

         20        governmental intrusion.  And all of the things that are

         21        set forth in the Bill of Rights follow that example.

         22             But we did something different.  We changed the

         23        philosophy, we changed the fundamental thought when we

         24        agreed to the concept of education being a fundamental

         25        right because we accepted the notion that some things,


          1        some things rise to the level of being a fundamental value

          2        and should be protected.  Now, we have a right to free

          3        speech, to practice the religion of our choice and to

          4        petition our government for redress of grievances, but I

          5        would suggest to you that none of those rights are worth

          6        much at all without the right to a clean and healthy

          7        environment.  And so that is an issue that is worth

          8        discussing.

          9             We have a provision in our Constitution regarding

         10        environment, it is a policy statement.  It says, Policy of

         11        the state of Florida to protect our natural resources.

         12        Last year, the voters of Florida approved two additional

         13        amendments in the Constitution with regard to the

         14        Everglades.  And this year, the Governor asked the Supreme

         15        Court for an advisory opinion on what the effect of those

         16        amendments was.

         17             And the Court came back with an advisory opinion that

         18        said that those two provisions, Article II, Section 7, A

         19        and B, must be read together.  And in reading them

         20        together, we find that they are not self-executing, that

         21        it is merely a policy, it is merely a policy of the state

         22        of Florida to protect our environment.  We have the right

         23        to enjoy our property, but it is merely a policy of the

         24        state of Florida to protect our environment.

         25             Now, when you see Commissioner Sundberg, and I'm


          1        talking in the back of the room, we are not talking about

          2        the weighty issues of the day, we are talking about

          3        another favored place of ours, it's called Montana.  And

          4        Montana, I'm going to read to you from the preamble of the

          5        Montana Constitution.  "All persons are born free and have

          6        certain inalienable rights."  They include the right to a

          7        clean and healthful environment.  Right up there, what

          8        could be more basic?  What could be more important?

          9             I would suggest to you, as we have heard throughout

         10        the state, that this is -- this is one of those issues

         11        that rises to be a fundamental value.  We heard that

         12        throughout the state.

         13             Mr. Mills has an amendment on the desk that takes

         14        away the issue of whether or not this rises to the level

         15        of a fundamental right.  As I said earlier, I don't want

         16        to do anything to jeopardize the consensus that we have

         17        built on this issue.  I don't want to do anything to raise

         18        the specter of unlimited litigation out there.  I would

         19        suggest to you in good faith that the language that is

         20        before you is an effort on our part to try to narrow it so

         21        much so that it would not include any threat of additional

         22        litigation but I know that there are others that share

         23        that concern.

         24             Mr. Chairman, I thank you for the opportunity to

         25        address this issue.  It is important that we be able to


          1        put forth issues in a proactive way, that's been a great

          2        part about this process, it's allowed us to get these

          3        other things to move forward.  And so I thank you for that

          4        opportunity.

          5             CHAIRMAN DOUGLASS:  All right.  Commissioner Mills

          6        moves that Commissioner Henderson and Commissioner

          7        Sundberg be moved at our expense to Montana where they

          8        prefer to be.  And after that motion is unanimously

          9        without objection, Commissioner Mills, you have the floor.

         10             (Laughter.)

         11             COMMISSIONER MILLS:  Mr. Chairman, has the amendment

         12        been read?

         13             CHAIRMAN DOUGLASS:  No, the amendment hasn't been

         14        read.  You would like it read.  It's on the table.  Please

         15        read it.

         16             READING CLERK:  By Commissioners Mills and Henderson,

         17        on Page 1, Line 14, through Page 2, Line 2, delete those

         18        lines and insert lengthy amendment.

         19             COMMISSIONER MILLS:  Mr. Chairman, let me suggest to

         20        you what this amendment says.  It says precisely what

         21        everyone has on his desk.  It says, A policy statement

         22        should be the policy of the state to conserve and protect

         23        its natural resources and scenic beauty for the health and

         24        welfare of its citizens and future generations.

         25             The second sentence says, Adequate provisions shall


          1        be made by law for the abatement of air and water

          2        pollution and of excessive and unnecessary noise and for

          3        the protection of natural resources for future

          4        generations.

          5             What this has done by removing the statement on

          6        absolute rights is, in my judgment and I think others,

          7        that there is no additional standing created by this.  It

          8        is simply a policy statement for the Legislature and

          9        others to consider and it states that we have a concern

         10        for future generations.

         11             To me, I had the opportunity of being chairman of the

         12        Natural Resources Committee in the early '80s and I had a

         13        public policy and an academic interest in trying to do the

         14        right thing.  Since I got out of the elected office I've

         15        had a child.  I now have a 3-year-old daughter.  And now

         16        my principal concern for the environment is what legacy

         17        are we going to leave for her.

         18             I've had an opportunity to see sunsets over the

         19        Everglades, to walk on the beaches in Florida.  And from

         20        the time I got elected until the time I left the

         21        Legislature, the entire state of Georgia moved to Florida,

         22        10 million people.  They didn't bring their schools.  They

         23        didn't bring any other resources.  Florida was named for

         24        flowers.  In another 20 years, Florida could be named for

         25        concrete.  Now, don't get confused and think that this


          1        amendment is going to stop that.  This is a general policy

          2        statement about what we think about future generations.

          3             You know, it strikes me, we talk about legacies and

          4        we talk about taking care of our kids.  We want to pass on

          5        the most fundamental American values, we want our kids to

          6        be better off than we were.  Why would we say, I want to

          7        pass on my personal resources, I want my child to be a

          8        little bit better off economically than I was and why

          9        would we impoverish them from the basic access to the

         10        natural resources of the state?  How can that be honest?

         11        How can that be consistent with the fundamental value?

         12             The other thing about what you've done on

         13        environmental issues in this commission is very consistent

         14        where we are in the year 1998.  A new generation of

         15        environmental policy is not regulation controlled.  We

         16        have now done that.  The better approach to environmental

         17        policy is to try to provide incentives to try to acquire

         18        land, to try to respect property rights and everything

         19        you've done has done that.  This does not change it at

         20        all, it simply is a statement that is consistent with that

         21        recognizes the importance of future generations, and

         22        absolutely expresses the values that you have expressed

         23        and what you have passed.

         24             I think that what the people have told us is that

         25        among the values they are concerned about, education,


          1        environment, and criminal justice, that one of the things

          2        that we need to preserve for the future is the

          3        environment.  And I want to make clear again that this

          4        does not create any standing.  I will be honest with you

          5        on the floor every time.  There are other issues we

          6        discussed where I've said it would have an effect on

          7        litigation standards.  As far as I can tell, this would

          8        have none.  But it would have an effect in stating our

          9        values for future generations.  I'd be glad to accept any

         10        questions, Mr. Chairman.

         11             CHAIRMAN DOUGLASS:  All right.  This is on the

         12        amendment.  That's what we're on at the moment.  You're

         13        not ready for that, are you?  We're on the amendment which

         14        was read by -- it's Commissioner Mills' amendment to the

         15        proposal.  We need to act on that first.  Commissioner

         16        Morsani?

         17             COMMISSIONER MORSANI:  I think I have a question on

         18        the amendment.

         19             CHAIRMAN DOUGLASS:  All right.  He will yield to a

         20        question on the amendment.  Commissioner Mills?

         21             COMMISSIONER MORSANI:  Because in your -- the way I

         22        am reading this, this is supposed to take the place of 36

         23        and 38, it will be a substitute for both because in 38 you

         24        state that the committee substitute mandates the state to

         25        preserve and protect its natural resources.  I think that


          1        changes the standing totally from what you just said; is

          2        that incorrect?

          3             COMMISSIONER MILLS:  This is a substitute for all

          4        that.  That is no longer in there.

          5             CHAIRMAN DOUGLASS:  That's correct.  This is a

          6        substitute, or actually an amendment, or the substitute

          7        for 36 and 38.

          8             COMMISSIONER MILLS:  This is a substitute for all of

          9        that.  This is the whole amendment.

         10             COMMISSIONER MORSANI:  This substitutes Virginia

         11        Wetherell's bill of rights which I have a lot of problems

         12        with.

         13             COMMISSIONER MILLS:  And I have a lot of problems

         14        with too.

         15             COMMISSIONER MORSANI:  It eliminates that?

         16             COMMISSIONER MILLS:  It eliminates that.

         17             COMMISSIONER MORSANI:  I'll listen then.

         18             CHAIRMAN DOUGLASS:  All right.  There's an amendment

         19        on the table to the amendment.  And I would ask that if

         20        you can read it, to read it.  I don't think we can read

         21        it.  Whoever wrote it must be a doctor or a judge.  Who

         22        wrote it?  Dr. Barkdull, okay.  Maybe we can get him to

         23        read it and then you can write it in your handwriting.

         24             Read it to us, please, Commissioner Barkdull.

         25             COMMISSIONER BARKDULL:  The purpose of the amendment


          1        is to strike part of Line 18 and like Line 19 which reads,

          2        For the health and welfare of its citizens and future

          3        generations.  I have no problem with the second part that

          4        mandates that the Legislature do something.  I am

          5        concerned about a standing that's created by these words

          6        and that's the purpose of the amendment.

          7             CHAIRMAN DOUGLASS:  All right.  Does your amendment

          8        then strike for the health and welfare of its citizens and

          9        future generations?

         10             COMMISSIONER BARKDULL:  Yes, sir.

         11             CHAIRMAN DOUGLASS:  That's your amendment to the

         12        amendment?

         13             COMMISSIONER BARKDULL:  Correct.

         14             CHAIRMAN DOUGLASS:  Okay.  Everybody understand that

         15        amendment?  Commissioner Mills?

         16             COMMISSIONER MILLS:  Mr. Chairman, will the gentleman

         17        yield?  This strikes Lines 18 and 19?

         18             CHAIRMAN DOUGLASS:  No.  Not the whole thing.

         19             COMMISSIONER BARKDULL:  Not the whole thing of 18.

         20        It starts with the underlying provision where you have

         21        inserted for the health and welfare of its citizens and

         22        future generations.

         23             CHAIRMAN DOUGLASS:  That's the language I understood

         24        he's moving to strike.  Can you read that now?  Do you

         25        think we got it where the reader can read it?


          1             COMMISSIONER BARKDULL:  For the health and welfare of

          2        its citizens and future generations.

          3             CHAIRMAN DOUGLASS:  All right.  I'm going --

          4             READING CLERK:  By Commissioner Barkdull, on Page 1,

          5        Lines 18 and 19, delete and strike "for the health and

          6        welfare of its future citizens and generations."

          7             CHAIRMAN DOUGLASS:  That's close enough.  Now this is

          8        the amendment to the amendment.  So the Barkdull amendment

          9        would strike from what is now going to be, if you pass his

         10        proposal -- I mean his amendment, the proposal -- but if

         11        you strike this, the language, For the health and welfare

         12        of its citizens and future generations, will be removed

         13        from Commissioner Mills' amendment.  Commissioner

         14        Thompson?

         15             COMISSIONER THOMPSON:  Mr. Chairman, I just have a

         16        suggestion.  The first time any of us has seen the

         17        amendment or certainly the amendment to it is now.  And I

         18        think this kind of thing is something that we kind of

         19        informally workshopped a time or two and been able to come

         20        up with something.  You know, if it doesn't do anything,

         21        it doesn't need to be done.  If it does something, we need

         22        to know what it does.  I'd like to suggest to Mr. Mills

         23        and Commissioner Henderson that we just kind of informally

         24        workshop this thing and take it up at a later time.

         25             CHAIRMAN DOUGLASS:  I would point out, Commissioner


          1        Thompson, that this thing has been workshopped to death.

          2        And the fact that you and I may have just seen it for the

          3        first time doesn't mean it hasn't been workshopped by

          4        committees and half the world.  I think most people are

          5        ready to move forward and vote on it.

          6             Commissioner Rundle?

          7             COMMISSIONER RUNDLE:  I have a question for

          8        Commissioner Barkdull if he would yield.  Why is it that

          9        you're recommending that language be stricken?

         10             COMMISSIONER BARKDULL:  Because I'm not sure that it

         11        doesn't create a standing -- a private standing to bring a

         12        lawsuit.  I don't know the answer to it and it concerns

         13        me.  If it doesn't do anything, which as I understood some

         14        of the comments, then we don't need it.  If it's going to

         15        do something, I want to know what it does.  And what I'm

         16        afraid it does is create a private right.

         17             CHAIRMAN DOUGLASS:  And your amendment states you

         18        don't want to do that because it might?

         19             COMMISSIONER BARKDULL:  That's correct.

         20             CHAIRMAN DOUGLASS:  Commissioner Rundle, do you have

         21        anything further?  You can be heard, Commissioner Mills.

         22             COMMISSIONER MILLS:  Since this language is

         23        relatively new to some people who I know legitimately want

         24        to support this, I want to give them the opportunity to

         25        support this and I would support Commissioner Thompson's


          1        concept of workshopping it because I am confident that

          2        Commissioner Barkdull's motion is not necessary and I'd be

          3        glad to do this and I think we can do it --

          4             CHAIRMAN DOUGLASS:  Why don't we vote on his motion

          5        to amend your amendment then?  We're going to have to

          6        schedule some more meetings if we keep putting these

          7        things off.  I think everybody is ready to vote on this.

          8             COMMISSIONER BARKDULL:  Does the gentleman yield?

          9             CHAIRMAN DOUGLASS:  Yes, he yields.

         10             COMMISSIONER BARKDULL:  What's the purpose of the

         11        statement?

         12             COMMISSIONER MILLS:  The purpose of the statement is

         13        the same purpose as the previous sentence.  It's a

         14        statement --

         15             COMMISSIONER BARKDULL:  Why do we need it?

         16             COMMISSIONER MILLS:  The policy of the state of

         17        Florida does not include health or welfare of citizens and

         18        future generations.  Now, the first sentence has been in

         19        the Constitution how long?

         20             COMMISSIONER BARKDULL:  I'm not interested in

         21        attacking the first sentence.

         22             COMMISSIONER MILLS:  Well, I'm interested in

         23        discussing the first sentence because it's been here 20

         24        years and hasn't created a standing.  This doesn't create

         25        standing, it's a statement of policy for the state.


          1             COMMISSIONER BARKDULL:  What is the purpose of

          2        putting this in then?

          3             COMMISSIONER MILLS:  To have a statement of policy

          4        for the state which provides guidance for legislators in

          5        implementing the second line.

          6             COMMISSIONER BARKDULL:  If you want to put it under

          7        the second line, it says they may do it by law, I'd be

          8        happy to support it.  But to say it's freestanding, I have

          9        a lot of concern about it.

         10             CHAIRMAN DOUGLASS:  Commissioner Scott?

         11             COMMISSIONER SCOTT:  Mr. Chairman, I know this issue

         12        has been around, but this language, this new amendment,

         13        the first time we've seen it is right now.  And I think --

         14        I would like to move to temporarily pass this matter until

         15        we get a chance to find out from some of our lawyers or

         16        whatever we can see what's going on here.  Because when it

         17        says, Health and welfare of its citizens and future

         18        generations, I mean, we need to find out.  If it creates a

         19        private right, at least we would know what's going on.  So

         20        I would move that we temporarily pass it until we get a

         21        chance to look --

         22             CHAIRMAN DOUGLASS:  There's been a motion that we

         23        temporarily pass it.  Anybody opposed?  If not, it's

         24        temporarily passed.

         25             All right.  Committee substitute for Proposal 83 by


          1        the Committee on General Provisions, by Commissioner Corr

          2        recommended as a committee substitute and disapproved by

          3        the Committee on General Provisions.  Would you read it,

          4        please?

          5             READING CLERK:  Committee substitute for Proposal

          6        No. 83, a proposal to revise Article X, Section 6, Florida

          7        Constitution; providing conditions under which private

          8        property is assumed to be taken for a public purpose.

          9             CHAIRMAN DOUGLASS:  All right.  Commissioner Corr,

         10        you're recognized.

         11             COMMISSIONER CORR:  Thank you, Mr. Chairman.  First

         12        of all, I should point out that the committee substituted

         13        the entire original proposal.  So the analysis you have

         14        isn't the analysis of the proposal.  But if you check on

         15        No. 3 on the analysis, it is the only thing that now is

         16        consistent with the proposal that's on the desk.  So now

         17        that everybody is confused, I'll try to explain what we're

         18        doing.

         19             The proposal that the committee did adopt is in the

         20        red booklet however.  This is a private property rights

         21        proposal.  Private property rights are the bedrock of our

         22        government.  All of our liberties are inextricably linked

         23        to the fundamental right to hold private property.  When

         24        we lose those rights, we lose everything.  Now every

         25        Florida Constitution, from the very first one, has been


          1        very clear about the rights of Floridians to hold private

          2        property.

          3             Article X in Section 6 now is very clear.  No private

          4        property shall be taken except for a public purpose and

          5        that full compensation therefore paid to each owner or

          6        secured by deposit in the registry of the court and

          7        available to the owner.  That's a quote in Section 6 in

          8        Article X, very clear.

          9             But it turns out, like a lot of things we deal with

         10        up here, that it is not that clear.  Because what happens,

         11        over time, since the original Constitution of 1837, what

         12        constitutes a taking, has changed somewhat just because

         13        the nature of a regulatory environment and the nature of

         14        their state has changed.  So what can happen now is

         15        private property can actually be taken without the actual

         16        transition of a deed or ownership, can be taken by

         17        government through regulation.

         18             Let me give you an example because this is kind of

         19        complicated and I think everybody is ready for lunch.  So

         20        to get your attention, I'm going to make an example and I

         21        hope I can be articulate and do a good job at it, but

         22        maybe I can get some help with some others on this if not.

         23        For the purpose of this example, if it's okay,

         24        Mr. Chairman, I want to talk about Farmer Douglas, he's a

         25        farmer in south Florida and central to the state.


          1             His family has been in the farming business and

          2        agriculture for generations.  They have cattle, they have

          3        grown citrus over time, they have grown a number of row

          4        crops, tomatoes and other things and have been pretty

          5        successful over generations in the family farming

          6        business.

          7             But what's happened from time to time is that farmer

          8        who's just been in the business of agriculture has had to

          9        get pretty astute in a lot of things, mainly law and

         10        zoning, because over time, his 1,000 acres, let's say, of

         11        ranch land that he owns, that he's used for row crops and

         12        cattle farming and whatnot, has got a lot of attention by

         13        the county and the state.

         14             The jurisdictions over it, the agencies that have a

         15        say in what Mr. Farmer Douglas does on his land have grown

         16        tremendously over the generations from the time his great

         17        grandfather first started farming the property.  And now

         18        he has water management districts, he has zoning codes, he

         19        has EPCs and EPAs and a number of multiple, 23 more

         20        environmental agencies and others that have jurisdiction

         21        over his property.

         22             So he's had to get pretty smart.  He's had to get

         23        pretty sophisticated to stay in business.  But let's just

         24        say that what happens recently is Farmer Douglas came up

         25        against, for the lack of again -- to use an example so I


          1        don't get too specific, let's call them a fruit lizard.

          2        Okay, so this is Farmer Douglas and fruit lizard.  It

          3        could be a rock and roll band but for now it's just going

          4        to be a story.

          5             And the fruit lizard all of a sudden gets a lot of

          6        attention by let's say the Board of County Commissioners'

          7        because a fruit lizard is starting to get to be an

          8        endangered species and he's a little lizard about three

          9        inches long, he's red, he looks like a hot dog with legs.

         10        And he loves to eat tomatoes and he hangs around the crops

         11        of Farmer Douglas and, for whatnot, I guess the state

         12        continues to grow, development continues to occur, farming

         13        continues to happen and the little fruit lizard is

         14        starting to be endangered.

         15             And so the Board of County Commissioners passes a

         16        rule.  They say that habitat for the fruit lizard is now

         17        sacred, we've got to protect it.  And what was once a

         18        thousand acres of Farmer Douglas' family now becomes 800

         19        because 200 acres is natural habitat for the fruit lizard.

         20        Farmer Douglas goes to the Board of County Commissioners

         21        hearings, he gets lawyers, he goes to public hearings and

         22        in the final analysis, he still owns 200 acres of land but

         23        he can't use it anymore for farming.

         24             The question that this proposal addresses is, Did his

         25        land just get taken or not by government?  Now he still


          1        gets to pay taxes on it but he doesn't get to use it

          2        anymore.  We could use a number of examples from

          3        agriculture to construction.  It could be a single family

          4        owner.  It could be a commercial developer, it could be a

          5        farmer.  But I would dare say that this kind of example

          6        happens every day in business here in Florida that a

          7        property owner has his rights taken even though the deed

          8        doesn't transfer, even though ownership hasn't

          9        transferred, but the right to use that property no longer

         10        exists.

         11             Now, we've heard a lot on this floor about the

         12        protection of our natural environment, we're going to hear

         13        more.  And nobody disputes that that's very important to

         14        the future of Florida.  But I think the forefathers of our

         15        state and the people that come before us have also said

         16        and been very certain about the right for Floridians to

         17        hold private property.  As we continue to look at the

         18        rights of our future we also have to protect the rights of

         19        private property owners.  So this proposal again will

         20        clarify what constitutes a taking in Section 6, Article X.

         21        It's a simple principle-based issue and it belongs in our

         22        Constitution.

         23             It does not mean that we don't care about the fruit

         24        lizard but it means that we care about the interests of

         25        the private property owner as well.  If government comes


          1        in and takes, government has to pay, it's as simple as

          2        that.

          3             Tax cap is a citizen's group.  I had never heard

          4        about until the recent last couple of months because I'm

          5        naive to this political process and being appointed here,

          6        I've started to hear about some of these things.  And I

          7        heard from this tax cap group that they have 930,000

          8        signatures on a proposed constitutional amendment that

          9        addresses this issue.

         10             So back to some of the debate we've heard this

         11        morning, on the final analysis, there is a lot of public

         12        sentiment for this kind of issue as regulation continues

         13        to grow.  I would say in the very least this is worth

         14        putting on the ballot to let people have a chance to

         15        decide how sacred our private property rights are.  I'll

         16        close with that and take questions.

         17             CHAIRMAN DOUGLASS:  What you referred to has been

         18        circulated, the staff analysis, everybody has it on their

         19        desk.  And as I understand the analysis, it says the

         20        committee substitute completely replaces the language of

         21        the original proposal and specifies that a taking includes

         22        government regulation or action that, quote, so diminishes

         23        or denies the use of private property as to cause a

         24        significant loss of value without denying substantially

         25        all beneficial use thereof and also permits a landowner to


          1        bring a court action 12 months after giving written notice

          2        even if the landowner has not yet exhausted all

          3        administrative remedies.  And it expressly requires that

          4        full compensation will be determined by a jury.

          5             COMMISSIONER CORR:  That is correct.  The analysis,

          6        Mr. Chairman, is still the old analysis on Nos. 1 and 2

          7        but is correct on No. 3.

          8             CHAIRMAN DOUGLASS:  On No. 3.

          9             COMMISSIONER CORR:  Yes, sir.

         10             CHAIRMAN DOUGLASS:  So that's what it does.

         11        Commissioner Barkdull?

         12             COMMISSIONER BARKDULL:  I move, sir, that we do now

         13        recess until the hour of 1:00 p.m. and continue with the

         14        argument when we come back.

         15             CHAIRMAN DOUGLASS:  All right.  Without objection, we

         16        will be back.  And be back promptly at 1:00 p.m. because

         17        we're going on live television and I know that you

         18        wouldn't want to miss that.

         19             (Lunch recess.)

         20             SECRETARY BLANTON:  All unauthorized visitors please

         21        leave the chamber, all commissioners indicate your

         22        presence, all commissioners, indicate your presence.

         23             CHAIRMAN DOUGLASS:  All right, it is 1:00 on real

         24        time.  Actually, it is three minutes after.  Our clock is

         25        three minutes slow.


          1             SECRETARY BLANTON:  Quorum call, all commissioners

          2        indicate your presence.

          3             CHAIRMAN DOUGLASS:  I like the red one, Commissioner

          4        Henderson.  You had a red one up.  Better make it green,

          5        we may not get a quorum.

          6             (Laughter.)

          7             SECRETARY BLANTON:  Quorum present, Mr. Chairman.

          8             (Quorum taken and recorded electronically.)

          9             CHAIRMAN DOUGLASS:  All right.  The meeting will come

         10        to order.  I believe we left in the middle of the

         11        discussion on the proposal of Commissioner Corr.

         12        Committee substitute for Proposal 83 on eminent domain.

         13             And, Commissioner Corr, did you quite finish or do

         14        you want to summarize for us your position quickly in

         15        order to bring us up-to-date?  Commissioner Barkdull?

         16             COMMISSIONER BARKDULL:  For the benefit of the

         17        audience, I'd ask that the committee substitute be read.

         18             CHAIRMAN DOUGLASS:  All right.  I'll ask the clerk to

         19        read the Committee Substitute 83, please.

         20             READING CLERK:  Committee substitute for Proposal

         21        No. 83, a proposal to revise Article X, Section 6, Florida

         22        Constitution; providing conditions under which private

         23        property is assumed to be taken for a public purpose.

         24             CHAIRMAN DOUGLASS:  All right.  And as I understood

         25        it, Commissioner Corr, you explained that this redefines


          1        or defines the term "taking" for the purposes of requiring

          2        the State to pay for the property of an individual or

          3        owner.  And if the government action diminishes the value

          4        of that property by 20 percent or more of its value; is

          5        that a fair summary of where we are?

          6             COMMISSIONER CORR:  Not exactly.

          7             CHAIRMAN DOUGLASS:  Then straighten us out.

          8             COMMISSIONER CORR:  The original proposal had the

          9        20 percent number in it.  The new proposal that's in the

         10        book does not.

         11             CHAIRMAN DOUGLASS:  What is the proposal in lieu of

         12        that we are acting on?

         13             COMMISSIONER CORR:  This is the committee substitute.

         14        Essentially in the committee, we got into some discussion

         15        about putting some specific numbers in the Constitution.

         16        And based on some of the input from the public and the

         17        committee at that time, we moved to more of a, what I

         18        believe is more of a principle-based proposal, that just

         19        gets to the specific definition of what constitutes a

         20        taking.

         21             CHAIRMAN DOUGLASS:  And so that's the part that's on

         22        our summary that reads that, Taking includes government

         23        regulation or action that, quote, so diminishes or denies

         24        the use of private property as to cause a significant loss

         25        of value without denying substantially all beneficial use


          1        thereof.  That's what you substituted for the 20 percent

          2        requirement?

          3             COMMISSIONER CORR:  Yes, sir, that's correct.

          4             CHAIRMAN DOUGLASS:  And that's what we have before us

          5        and what you are urging us to adopt; is that correct?

          6             COMMISSIONER CORR:  Yes, sir, that's correct.

          7             CHAIRMAN DOUGLASS:  All right.  Is everybody now

          8        comfortable with where we are on this?  We have just begun

          9        the debate.  Do you know now how many people want to speak

         10        for this that want to rise for it?  How about opponents?

         11        How many opponents do we have?  Five opponents.

         12             All right.  For those that are opponents I know you

         13        won't repeat what others have said.  So, first of all, I

         14        saw no proponents and I'll call on Commissioner Anthony as

         15        the first opponent.

         16             COMMISSIONER ANTHONY:  Mr. Chair, at this time I'm

         17        rising for a question of the proposer.

         18             CHAIRMAN DOUGLASS:  I have a feeling that it is not

         19        friendly.

         20             COMMISSIONER ANTHONY:  It may be.

         21             CHAIRMAN DOUGLASS:  He yields.

         22             COMMISSIONER ANTHONY:  It may just be a question of

         23        clarification.  Commissioner Corr, is it accurate that

         24        in -- that the Legislature created Chapter 70, the Bert

         25        Harris Act, that has dealt statutorily with private


          1        property rights; is that correct?

          2             COMMISSIONER CORR:  I don't think I can answer that

          3        question.  I don't know for sure.

          4             CHAIRMAN DOUGLASS:  I can answer it.  It does.

          5             COMMISSIONER ANTHONY:  It does, okay.  So you could

          6        not tell me whether or not the Bert Harris Act has had

          7        time to be implemented and actually showed some progress

          8        in this area?

          9             COMMISSIONER CORR:  I can't tell you.

         10             CHAIRMAN DOUGLASS:  It was enacted in '95, I believe.

         11             COMMISSIONER ANTHONY:  So it is accurate what it was

         12        just enacted two years ago and therefore if two years had

         13        just passed that it may not have had the time to really

         14        show that there is some balance when it comes to private

         15        property rights, would you assess that, Commissioner Corr?

         16             COMMISSIONER CORR:  That can be an assumption, but I

         17        can't validate it one way or the other.

         18             CHAIRMAN DOUGLASS:  All right.  Do you want to

         19        continue or is that all you had?

         20             COMMISSIONER ANTHONY:  I just had questions at this

         21        point.  I would like to --

         22             CHAIRMAN DOUGLASS:  You have other questions?

         23             COMMISSIONER ANTHONY:  No.

         24             CHAIRMAN DOUGLASS:  Do you want to speak in

         25        opposition?


          1             COMMISSIONER ANTHONY:  Not at this time.

          2             CHAIRMAN DOUGLASS:  Well, this is your chance.

          3        Commissioner Anthony, while you're up, go ahead and state

          4        your opposition.

          5             COMMISSIONER ANTHONY:  Mr. Chair, I'll leave the real

          6        debate for others on this issue, but I would just ask the

          7        commission to strongly oppose this proposal.  The

          8        committee voted unanimously, not one vote was in support

          9        of this proposal, because there is right now consideration

         10        and there has been a law in 1995, the Bert Harris, Jr.

         11        Act, Chapter 70, that really talks about private property

         12        protection and you'll hear stories upon stories about how

         13        local government, government itself, is taking the use of

         14        individual properties.  And I will say to you that in

         15        response to that, we have, in fact, dealt with that issue

         16        from a governmental perspective.

         17             And the Bert Harris, Jr. act deals with that

         18        specifically.  You will hear stories, war stories, that

         19        local government has taken 80 percent of the use of

         20        someone's property.  I have not seen that specifically.  I

         21        have only heard of those rumors, if you will, on those

         22        types of action on behalf of local government.

         23             This is an overreaction.  Private property rights

         24        exist in our state.  And this is not something that I

         25        think needs to be dealt with in our Constitution but it


          1        has been dealt with statutorily by Chapter 70, the Bert

          2        Harris, Jr. Act.

          3             So let's let that work and let's not overreact on

          4        some type of policy that really takes the pendulum way out

          5        of proportion for us.  Thank you.  And I ask you to oppose

          6        this.

          7             CHAIRMAN DOUGLASS:  All right.  Commissioner

          8        Sundberg, you had asked to be an opponent.

          9             COMMISSIONER SUNDBERG:  Thank you, Mr. Chairman.

         10        First some questions.  And in fairness, I must divulge

         11        some prior history with this issue.  I chaired the

         12        Governor's Property of Rights 2 Commission some -- several

         13        years ago where we spent, I don't know, like 18 months

         14        studying this issue and came to a conclusion contrary to

         15        what is being submitted by Commissioner Corr.

         16             But, Commissioner Corr, so that, will you yield to

         17        several questions?  The first is, would you clarify for

         18        me, you say full compensation for the taking is to be

         19        determined by jury trial.  Now by that do you mean the

         20        jury simply will determine the amount that represents full

         21        compensation?

         22             COMMISSIONER CORR:  That is what the intention of the

         23        language is, correct.

         24             COMMISSIONER SUNDBERG:  In other words, the jury will

         25        not determine whether or not a significant loss in value


          1        has occurred?

          2             COMMISSIONER CORR:  That is what the intention of the

          3        language is.

          4             COMMISSIONER SUNDBERG:  Will you yield to another

          5        question?

          6             COMMISSIONER CORR:  Sure.

          7             COMMISSIONER SUNDBERG:  Is it the intent then of the

          8        drafter that whether or not there has been a significant

          9        loss of value is to be determined as a matter of law by

         10        the judge?

         11             COMMISSIONER CORR:  I don't understand the question.

         12        And let me -- I'm out of my league here.  I'm not an

         13        attorney.  I'm arguing the principle of whether when

         14        property is taken from a private landowner by government

         15        whether compensation is due or not.  So I know we didn't

         16        get a lot of hands for proponents when they were asked.

         17        But if there are any of you out there that hold a law

         18        degree that could help answer these questions, if we want

         19        to indulge that, that would probably be, you would get

         20        better answers.

         21             COMMISSIONER SUNDBERG:  And --

         22             COMMISSIONER CORR:  Rather than trying to paint me

         23        into a corner, this is simply a principle-based issue.

         24        Either when government takes land, compensation is due or

         25        it is not.  And I think that's the way you ought to vote


          1        on it.

          2             COMMISSIONER SUNDBERG:  And I'm not trying to paint

          3        you in a corner, honestly I'm not trying to play lawyer

          4        games with you.

          5             CHAIRMAN DOUGLASS:  Let me suggest, Commissioner

          6        Corr, if you don't want to get painted in a corner, just

          7        don't yield to questions.

          8             (Laughter.)

          9             COMMISSIONER SUNDBERG:  Well, my point is this.

         10        There is provision now for compensating property owners

         11        for loss of their property.  I mean, that's what our

         12        eminent domain laws are all about, both in the

         13        Constitution and in statute and the legislation, the more

         14        recent legislation that was referred to by Commissioner

         15        Anthony.

         16             But the standard now is, and there has been a body of

         17        law developed over a significant period of time as to what

         18        a substantially -- a diminution, a diminution of

         19        substantially all beneficial use and there is a lot of

         20        case law about that.  I don't know of any case law that

         21        could guide a judge, and I think you are talking about the

         22        judge making this determination rather than a jury, but

         23        how that judge would be guided by what is a significant

         24        loss.  That's sort of like, you know, that's measured --

         25        we say that that's measured by the length of the


          1        chancellor's foot.

          2             It will just vary on what they had for lunch.  That

          3        concerns me.  And I think you are, in effect, or what this

          4        language seeks to do is to substitute that new standard

          5        and I simply suggest to you that that is almost

          6        standardless because, and there is, you know, when you

          7        live in some organized society, the individual's rights

          8        have to give way to some extent to the rights of the

          9        community.

         10             And what always is sought to be balanced, and I know

         11        that's what you seek to do here is to balance the right of

         12        the individual against the right of the community.  I

         13        suggest to you that there is a fairly good balance out

         14        there now and that those who have been disappointed in

         15        that balance have recently, what was that, two years ago,

         16        that the new legislation was passed.  And I think that's

         17        what, I think they are trying to -- I think that's what

         18        Commissioner Anthony is saying, let it work its way and

         19        see if that doesn't address what has been at least the

         20        perceived ills.

         21             So I would, with all of my admitted biases, I would

         22        speak against this proposal.  It had honestly, I think, a

         23        very, very careful and fair examination by some -- a

         24        commission, present company excepted, and I'll even except

         25        Mr. Henderson from that company, of people who gave it


          1        careful consideration and concluded that if for no other

          2        reason, where in the world would we get the resources to

          3        compensate people for whatever a significant diminution in

          4        value of their property is now.

          5             CHAIRMAN DOUGLASS:  All right.  You are not next, I

          6        have a couple of others that were ahead of you,

          7        Commissioner Connor, on opponents.  Are you a proponent?

          8             COMMISSIONER CONNOR:  A question and a comment.  A

          9        question of Commissioner Sundberg, and then I wanted to

         10        make a comment which I hope might be responsive to his

         11        question.

         12             CHAIRMAN DOUGLASS:  He yields the floor to you to ask

         13        him a question.

         14             COMMISSIONER CONNOR:  Commissioner, would you be kind

         15        enough to explain what the Bert Harris property -- Private

         16        Property Relief Act is and what its effect has been?

         17             COMMISSIONER SUNDBERG:  I am not prepared to explain

         18        what its provisions are.  And I'm not being facetious.  I

         19        think Commissioner Henderson can do that.

         20             CHAIRMAN DOUGLASS:  Commissioner Henderson can

         21        explain that along with some others here.

         22             COMMISSIONER SUNDBERG:  And the Chairman.

         23             CHAIRMAN DOUGLASS:  Let's see, Commissioner Sundberg

         24        yields to Henderson and Henderson yields to you.

         25             COMMISSIONER HENDERSON:  I think that's a very good


          1        and a very appropriate question.  And I'd like to begin

          2        answering the question by saying that I met Alan Sundberg

          3        in that 18 months of purgatory we called the Property

          4        Rights Study Commission and he did an outstanding job of

          5        listening on this issue and weighing the myriad of public

          6        interests that were involved in this question.

          7             We, very much like the Constitution Revision

          8        Commission, we held public hearings across the state.  We

          9        heard from everybody.  Those that said we have gone too

         10        far and those that said we haven't gone far enough.

         11             What we learned, I say we as the commission, this is

         12        a factor of the exercise that courts have muddled through

         13        for 200 years.  And what the commission concluded that is

         14        now part of the Bert Harris Act, is that as complicated as

         15        we have made things, we need a system that tries to create

         16        an opportunity for people who have been, and the term is

         17        unduly burdened, to find a way to have that resolved and

         18        the Bert Harris Act was compromised.

         19             Commissioner Corr and I have joked about and I would

         20        be glad to show him the bullet holes that I have from

         21        standing up for this compromise.  What it does is that it

         22        creates a new standard for what is compensable.  The

         23        constitutional standard, as enunciated in Lucas vs.

         24        Coastal Commission by the United States Supreme Court came

         25        out of Hurricane Hugo and I think many of us are familiar


          1        with that case.  Basically says the standard is

          2        compensable of substantially all of the property that's

          3        "taking" by regulation.

          4             The standard that was developed by the Legislature in

          5        the Harris Act which is now codified as a new Chapter 70

          6        of the Florida Statutes, is a new statutory clause, a

          7        statutory standard that is less than, less of a burden

          8        than the constitutional standards.  We created more of an

          9        opportunity for people to come forward to try to deal with

         10        this.

         11             The standard is defined as an inordinate burden.  It

         12        is a lengthy definition, I don't want to take the time to

         13        read it, but it is really not too different from what

         14        Commissioner Corr just enunciated.  And it is a common

         15        sense definition if a person -- if a regulation

         16        inordinately burdens property, then that person has the

         17        opportunity to go forward.

         18             Now the act has two parts to it.  One is the right of

         19        action.  And in that, before you go forward, like the

         20        provision says here, there is a time period local

         21        governments have the opportunity to respond and say this

         22        is what we are willing to do for you.

         23             The second part of the statute comes right out of the

         24        recommendation of the Property Rights Study Commission and

         25        it is a mediation process, it is an alternative dispute


          1        resolution process that is intended to bring all the

          2        agencies together with the landowner and other affected

          3        parties to try to resolve the dispute.

          4             Now quick answer, because we asked this question to

          5        people who appeared before us in committee, we wanted to

          6        know what is the effect, what have you seen as the effect

          7        of the Harris Act and we got some interesting answers.

          8        The League of Cities and the Association of Counties told

          9        us that the act has had a chilling effect, that local

         10        governments have been recalcitrant to enact new

         11        regulations for fear of how this would work out.

         12             We heard from Department of Environmental

         13        Regulation -- excuse me, Department of Environmental

         14        Protection that no actions have been filed against them.

         15             We heard from the Department of Community Affairs

         16        that 19 actions have been filed against local government

         17        regarding growth management plans and that most -- none of

         18        these have made it to a courtroom yet, all of them are in

         19        the process of mediation.  That's the lengthy answer to

         20        your question but I hope I didn't go on too long.

         21             CHAIRMAN DOUGLASS:  Commissioner Connor, there was

         22        one other significant provision in there which he alluded

         23        to but didn't explain exactly which is that it gave the

         24        authority to the local governments or the governmental

         25        units to make waivers or variances to avoid damaging the


          1        property as one of the alternatives.  That has not existed

          2        before which has gone a long way towards resolving, I

          3        think, most of these items in mediation that have come up.

          4             So from the standpoint of that act itself, it's only

          5        been in effect now for a little over two years, but it

          6        is -- does have that provision which allows people to get

          7        together and work out their problems.  I think that was

          8        the most, I don't see how that chilled anybody.

          9             COMMISSIONER CONNOR:  Well, I think, if I understand

         10        it correctly, it was intended to have somewhat of a

         11        chilling effect on public bodies from unduly burdening

         12        private property for public benefit.  So to the extent it

         13        has had a chilling effect, some would say that has been a

         14        salutary impact of the law.

         15             If I may, I'd just like to respond to Commissioner

         16        Sundberg's question of Commissioner Corr and I take a

         17        little different view just based on the plain language of

         18        the proposal.  And I'm not thinking at this juncture of

         19        advocating the proposal, I'm just trying to be responsive

         20        to your question.  But it strikes me, Commissioner, that

         21        where it says, Government regulation or action that so

         22        diminishes or denies the use of private property as to

         23        cause a significant loss of the value without denying

         24        substantially all beneficial use thereof, constitutes a

         25        taking.


          1             An owner may bring an action claiming full

          2        compensation for such taking.  My perception of that have

          3        language is that the jury would determine the extent of

          4        the diminution in value.  And whether or not it was

          5        significant and the jury then would compensate, would

          6        order or determine the compensation that should be made

          7        for that taking.

          8             I don't perceive it -- I don't read it the way you

          9        read it, that is that the court as a matter of law would

         10        determine whether or not a significant diminution had

         11        occurred, I relate the words back for such taking, I

         12        relate those words back to so as to cause a significant

         13        loss of value.

         14             So my sense is that a property owner who deems

         15        themselves to be aggrieved by the regulations imposed by

         16        government, and who perceives that they have suffered a

         17        significant devaluation of their property by virtue of

         18        such action has a right to bring a claim in court to seek

         19        compensation for the effects of that diminution.  That's

         20        my perception of it.

         21             COMMISSIONER SUNDBERG:  Well, I appreciate that.  We

         22        just have to disagree on that in that it expressly

         23        provides in that first sentence that it is the full

         24        compensation that is to be determined --

         25             COMMISSIONER CONNOR:  For what has been taken.


          1             COMMISSIONER SUNDBERG:  Exactly.  Once there is a

          2        determination that there has been a taking, then a jury

          3        will make a determination as to what the full compensation

          4        should be.  That's what makes a horse race.

          5             CHAIRMAN DOUGLASS:  We had another opponent, I think.

          6        Commissioner Barkdull?

          7             COMMISSIONER BARKDULL:  Mr. Chairman, Members of the

          8        Commission, the dialogue between Commissioner Sundberg and

          9        Commissioner Connor just pointed out one of my

         10        observations about the very sentence they were talking

         11        about.  This is a different standard of taking, it causes

         12        a difference of opinion between lawyers.  It's going to be

         13        a burden to litigation.  I don't think we need it.  I

         14        think we certainly ought to give Bert Harris a chance.

         15        But even without that, I don't think we need this.  We are

         16        creating an entirely new standard of what constitutes a

         17        taking in every city, a governmental body of any kind

         18        would have to respond to it.  I think it is a bad

         19        proposal.

         20             CHAIRMAN DOUGLASS:  Now Commissioner Henderson.

         21             COMMISSIONER HENDERSON:  Thank you, Mr. Chairman.

         22        I'll be very brief so as not to be redundant.  This

         23        measure is very similar to language which was proposed by

         24        initiative.  Commissioner Corr alluded to the fact that

         25        about 900,000 signatures have been had on petitions


          1        relating to this issue.

          2             However, I'll point out that those are in two

          3        initiative petition drives which were rejected by the

          4        Florida Supreme Court.  The second one was 1997, the Court

          5        rejected them primarily for the same reason.  They said,

          6        Well, it sounds like a simple idea but the consequences go

          7        far more than what you are telling them about.

          8             The reason for doing the Harris Act was a compromise

          9        to try to see if we could work some things out.  Very

         10        interesting that there has been a recent study

         11        commissioned by a number of the interests who are involved

         12        in this process by Hank Fishkind, an economist in the

         13        Orlando area, who found that basically the act is working

         14        as intended, that the -- those purported governmental

         15        actions that have gone too far, people have had a remedy

         16        to come forward to try to get things resolved.

         17             I think we have to give this an opportunity to work

         18        out.  I think that is happening.  And to go any further

         19        than that, I can tell you, will bring out an incredible

         20        range of interest, nonetheless some of my friends and all

         21        the local governments are significantly opposed to this

         22        measure.  County governments, city governments, public

         23        interest groups, League of Women Voters, this is

         24        something -- we need to give the Harris Act a chance to

         25        work itself through.


          1             CHAIRMAN DOUGLASS:  All right.  Ready to vote?

          2        Unlock the machine.

          3             (Vote taken and recorded electronically.)

          4             CHAIRMAN DOUGLASS:  Has everybody voted?  No?  Lock

          5        the machine and announce the vote.

          6             READING CLERK:  Nine yeas and 17 nays, Mr. Chairman.

          7             CHAIRMAN DOUGLASS:  Okay.  As you can see, we have

          8        some people that are missing in action that were here this

          9        morning and I think are still here but they just haven't

         10        come back from their long lunch.  So hopefully if they are

         11        within the sound of my voice they will return to their

         12        duties.

         13             All right.  We will go back now to committee

         14        substitute for Proposals 36 and 38 by the Committee on

         15        General Provisions, Commissioners Henderson and Mills.  We

         16        were debating this and we temporarily passed it in the

         17        middle of the debate.  Do we need to read it again or are

         18        we on the amendment or where are we?  Thirty-six, 38.

         19             COMMISSIONER BARKDULL:  We are on the amendment to

         20        the amendment.

         21             CHAIRMAN DOUGLASS:  We have an amendment with an

         22        amendment to the amendment pending.  That was Commissioner

         23        Barkdull's motion to amend the amendment proposed by the

         24        sponsor, Commissioner Mills.  So we will discuss the

         25        amendment to the amendment which was, as I understand it,


          1        to strike the language on Lines 18 and 19 that read, "for

          2        the health and welfare of its citizens and future

          3        generations"; is that right?

          4             COMMISSIONER BARKDULL:  That's correct.

          5             CHAIRMAN DOUGLASS:  And so that's what your motion to

          6        amend, and it is to amend the amendment that's in your

          7        hand that was filed by Commissioner Mills.  Any further

          8        debate on the amendment to the amendment?

          9             COMMISSIONER BARKDULL:  No, sir.

         10             CHAIRMAN DOUGLASS:  Commissioner Mills.

         11             COMMISSIONER MILLS:  Mr. Chairman, I just say that --

         12        I want to agree to that amendment in an abundance of

         13        caution and to fulfill the purposes that we articulated,

         14        that I will endorse the amendment to the amendment.

         15             CHAIRMAN DOUGLASS:  All right.  All in favor of the

         16        amendment say aye.  Opposed?

         17             (Verbal vote taken.)

         18             CHAIRMAN DOUGLASS:  The amendment is adopted and now

         19        we are on the amendment which is actually the new proposal

         20        but it is an amendment as amended.  So this will be, if

         21        you adopt this, in effect, we will have to vote again but

         22        it will be adoption of a proposal.  And so it would be the

         23        proposal as amended.  Commissioner Mills?

         24             COMMISSIONER MILLS:  Well, Mr. Chairman, this does

         25        now what we said it does, which is to guarantee, to direct


          1        the Legislature to make adequate provision for what it

          2        currently says, Abatement of air and water pollution and

          3        excessive and unnecessary noise, and adds, The protection

          4        of natural resources for future generations.  And I would

          5        submit that does what the principles that we discussed

          6        this morning, which are fulfilled by things like P-2000

          7        and other preservation programs which the Legislature has

          8        done and this would direct them to continue to do that.

          9             CHAIRMAN DOUGLASS:  All right.  I think we've had a

         10        pretty full debate on this.  Are you ready to vote?  Which

         11        is on the amendment.  All in favor of the amendment, say

         12        aye.  Opposed?

         13             (Verbal vote taken.)

         14             CHAIRMAN DOUGLASS:  The amendment is adopted.  Now

         15        this vote will be on the proposal which, in effect, is the

         16        amendment as amended.  Unlock the machine -- Commission

         17        Morsani, before we vote.

         18             COMMISSIONER MORSANI:  Yes, sir, I have one

         19        question --

         20             CHAIRMAN DOUGLASS:  Yes, sir.

         21             COMMISSIONER MORSANI:  -- of all of you wonderful

         22        legal minds.  Could the state of Florida be sued by

         23        citizens or citizens' groups because of putting in there

         24        "the protection of natural resources for future

         25        generations"?  A future generation is my grandson in the


          1        year 2020, is that -- if he decides to bring lawsuit

          2        against the state of Florida, does that open up that

          3        Pandora's box?

          4             CHAIRMAN DOUGLASS:  Commissioner Barkdull offered his

          5        amendment to prevent that.  Which he struck the language

          6        which he thought might be interpreted that way.  It was

          7        his opinion and the opinion of the others that considered

          8        it, that that language would not create a private right of

          9        action.

         10             Use your mike, please.

         11             COMMISSIONER MORSANI:  Do you feel good about that

         12        second sentence, Judge?  Commissioner?

         13             COMMISSIONER BARKDULL:  Well, that question was

         14        addressed to me.  The Legislature already is mandated to

         15        by law provide for the abatement of air and water

         16        pollution and of excessive and unnecessary noises.  This

         17        is adding a couple of more items to what they should do by

         18        law.  If they are subject to lawsuits for the first part

         19        of that, which is already in the Constitution, then this,

         20        if it is adopted, would grant the same status.

         21             I am willing to leave that there where there could be

         22        some effort.  I'm not aware, I don't know whether it has

         23        or hasn't been legislation -- or litigation in an attempt

         24        to force the first part of it.  But if we are going to

         25        have the first part, I don't have any objection to having


          1        this latter part in there, if it is by law.

          2             CHAIRMAN DOUGLASS:  All right.  We already have the

          3        first part is what he is saying and it is the opinion of

          4        most of the ones on the floor that I talked to that this

          5        does not create a private cause of action against the

          6        Legislature, which this authorizes the Legislature to --

          7        and that's why Commissioner Barkdull wanted that in there

          8        in that position and not in the other position.  And in

          9        answer to your question, the greatest legal minds among us

         10        seem to think that this would not create a private cause

         11        of action.

         12             Commissioner Anthony?

         13             COMMISSIONER ANTHONY:  Mr. Chairman, as chair of

         14        General Provisions, this was the type of discussion that

         15        was held in the General Provisions Committee because there

         16        were so many questions and causes for concern of

         17        litigation on verbiage such as this.

         18             You know, in fact, can the state Legislature

         19        guarantee for future generations these types of things.

         20        Well, you know, that is a very vague question and is

         21        ambiguous and for that reason, there was strong opposition

         22        against any of this type of language and aspirational

         23        language in the Constitution.

         24             CHAIRMAN DOUGLASS:  All right.  I think we are ready

         25        to vote.  Unlock the machine and we will vote.


          1             (Vote taken and recorded electronically.)

          2             CHAIRMAN DOUGLASS:  Has everybody voted except those

          3        that are out for lunch?  Lock the machine and announce the

          4        vote.

          5             READING CLERK:  Sixteen yeas and 10 nays,

          6        Mr. Chairman.

          7             CHAIRMAN DOUGLASS:  By your vote you passed the

          8        proposal as amended.  We will now move to committee

          9        substitute for Proposal 64 by the Committee on Bonding and

         10        Investments.  And Commissioner Nabors recommended it as a

         11        committee substitute and it was approved by the Committee

         12        on Bonding and Investments.  Would you read it, please?

         13             READING CLERK:  Committee substitute for Proposal 64,

         14        a proposal to revise Article VII, Section 11, Florida

         15        Constitution; providing for state bonds pledging all or

         16        part of a dedicated state tax revenue for the full faith

         17        and credit of the state for certain uses as provided by

         18        general law.

         19             CHAIRMAN DOUGLASS:  All right.  Are there amendments

         20        on the table?  Before Commissioner Nabors then, I'll ask

         21        that the amendment on the table be read.

         22             READING CLERK:  By Commissioner Henderson on Page 2,

         23        Lines 10 through 21, delete those lines and insert lengthy

         24        amendment.

         25             CHAIRMAN DOUGLASS:  All right.  I'll recognize


          1        Commissioner Henderson on his motion to amend.

          2             COMMISSIONER HENDERSON:  Thank you, Mr. Chairman.

          3        I'm going to try not to confuse and I'm going to try to

          4        answer the Chairman's question.  You will recall a few --

          5        gosh, when we were also here, we handled the issue of

          6        extension of bond authority for Preservation 2000 in

          7        Proposal No. 39.  And the language -- and how we did that

          8        is we took the language out of 64 and made the amendment

          9        which is before you now, the one you are all looking at,

         10        it was just passed out.  We tacked that on to 39 and

         11        passed that out.  That, if you will recall the debate on

         12        that question, there was a lot of discussion about the

         13        issue of full faith and credit.

         14             Now we kept 64 around because there were other issues

         15        that were there and we wanted to make sure we had taken

         16        care of those.  And this morning the question was raised

         17        whether or not we needed to even deal with the issue of

         18        full faith and credit.  So what we are proposing, this

         19        amendment strips out the language that is in 64, inserts

         20        the language that we have already previously adopted

         21        concerning extension of the bonds for land acquisition but

         22        stripped out the language regarding full faith and credit.

         23             So this takes care of the question, makes it a much

         24        stronger proposal and this is the vehicle we need to move

         25        this thing through.


          1             CHAIRMAN DOUGLASS:  All right.  Let me see if I

          2        understand what it is.  We passed the provision relating

          3        to P2000 and it was freestanding and the objection was

          4        that where it was engrossed in the Constitution left

          5        unanswered the question as to whether or not the cap on

          6        issuing bonds that was applied to P2000 was carried

          7        forward or was it eliminated.  And what you are attempting

          8        to do is to use this proposal by amending it to correct

          9        that possibility?

         10             COMMISSIONER HENDERSON:  Correct.

         11             CHAIRMAN DOUGLASS:  So if you pass this, what you are

         12        really doing is putting the P2000 proposal in the shape

         13        you really want it to be in when it is submitted to the

         14        voters?

         15             COMMISSIONER HENDERSON:  That is correct.  It

         16        eliminates the issue of whether or not you have to have a

         17        separate election or whether or not you are pledging the

         18        full faith and credit because the Legislature is not going

         19        to do that.  So we just take that question off the desk

         20        and this makes it a lot simpler.

         21             CHAIRMAN DOUGLASS:  All right.  Commissioner

         22        Barkdull, you had questions on this.  Does that answer

         23        your questions?

         24             COMMISSIONER BARKDULL:  I don't know, I have to ask

         25        Commissioner Henderson.


          1             CHAIRMAN DOUGLASS:  He yields.

          2             COMMISSIONER BARKDULL:  If we adopt this, sir, will

          3        then any bonds issued under this provision be subject to

          4        the cap that's provided for in Section A?

          5             COMMISSIONER HENDERSON:  I'm going to look over there

          6        at my bond lawyer and say the answer is no, is that right,

          7        Mr. Nabors?

          8             COMMISSIONER BARKDULL:  That's the way I read it.

          9             CHAIRMAN DOUGLASS:  Well, wasn't that the objection?

         10             COMMISSIONER HENDERSON:  That's what we are trying to

         11        do, is get it out from under that.

         12             COMMISSIONER NABORS:  It is subject to the bond cap

         13        that's in Section 11 of Article VII which is in that

         14        provision, yes.  If you look at Proposal 64, there is a

         15        bond cap in Subsection A, this is placed in A.  There's no

         16        full faith and credit.  It has to be a designated revenue

         17        source.  It is exactly the same as the current P2000

         18        grandfather language is.

         19             COMMISSIONER BARKDULL:  Well, that's the point I

         20        wanted to make earlier.  What this proposal does is permit

         21        unlimited issuance of full faith and credit bonds by a

         22        passage of a law.

         23             CHAIRMAN DOUGLASS:  But he is offering an amendment,

         24        as I understand it, to prevent that from occurring.

         25             COMMISSIONER BARKDULL:  That's not the response that


          1        I got and the answer, that's my question.  If this

          2        proposal -- the amendment that is proposed, will that make

          3        these bonds subject to the cap that's in Section A and I

          4        understood the answer was no.

          5             COMMISSIONER NABORS:  The answer is --

          6             CHAIRMAN DOUGLASS:  Go ahead.

          7             COMMISSIONER NABORS:  If we look at the special

          8        order, look at the special order bill, 64.

          9             CHAIRMAN DOUGLASS:  That's the one we are on.

         10             COMMISSIONER NABORS:  This amendment places --

         11        substitutes the language in Lines 10 through 21.  The

         12        revenue limitations for revenue bonds is in Subsection A

         13        which this is placed within.  It's not a full faith and

         14        credit, it is a pledge of a dedicated revenue source as

         15        agreed upon by the Legislature, exactly the way the

         16        current Preservation 2000 is and it falls within the

         17        revenue cap in Subsection A of Section 11.

         18             CHAIRMAN DOUGLASS:  What he is saying, I think, is

         19        your answer to your question is yes, not no.

         20             COMMISSIONER BARKDULL:  I don't understand how the

         21        proposed amendment is controlled by Section A, they are

         22        both freestanding.

         23             CHAIRMAN DOUGLASS:  All right.  I'm going to suggest

         24        that we temporarily pass this and the three of you-all get

         25        together and see if you can arrive at some conclusion


          1        where you can tell the rest of us what it does.  Is that

          2        agreeable with you, Commissioner Henderson?

          3             COMMISSIONER HENDERSON:  Well, only if you can

          4        indulge Commissioner Crenshaw to help us out with this

          5        because I trust his judgment on that too.

          6             CHAIRMAN DOUGLASS:  Well, we certainly would be

          7        delighted to have Commissioner Crenshaw join that great

          8        huddle in the sky.  Is that all right with you,

          9        Commissioner Barkdull?

         10             COMMISSIONER BARKDULL:  Yes, sir.

         11             CHAIRMAN DOUGLASS:  Okay.  We will do that.  We will

         12        come back to this again.  We are not going to leave it

         13        until we get it straightened out.  This is why bond

         14        lawyers make a lot of money, Commissioner Morsani, nobody

         15        understands it.

         16             All right.  We now move to proposal No. 187 by

         17        Commissioner Connor.  Would you read it, please?  This was

         18        disapproved by the Committee on Declaration of Rights.

         19        Would you read it, please?

         20             READING CLERK:  A proposal to revise Article I,

         21        Section 3, Florida Constitution; limiting conditions for

         22        restrictions on the free exercise of religion.

         23             CHAIRMAN DOUGLASS:  All right.  Commissioner Connor,

         24        you are recognized to present Proposal 187.

         25             COMMISSIONER CONNOR:  Thank you, Mr. Chairman.  And,


          1        Mr. Chairman, I have submitted an amendment which I

          2        believe is being circulated now.  Ladies and gentlemen,

          3        let me, if I may, give you a little bit of background and

          4        I hope clarification.  If you will look at the staff

          5        analysis, which accompanies this proposal, you will find

          6        that in the case of Sherbert vs. Verner which was decided

          7        in 1963 --

          8             CHAIRMAN DOUGLASS:  Wait a minute.  Is the amendment

          9        on the table?

         10             COMMISSIONER CONNOR:  That's why I am commenting

         11        before we get to the amendment.

         12             CHAIRMAN DOUGLASS:  Well, you haven't offered the

         13        amendment yet?

         14             COMMISSIONER CONNOR:  No, sir, but it is coming.

         15             CHAIRMAN DOUGLASS:  Okay.  Go ahead.

         16             COMMISSIONER CONNOR:  The Court had indicated that

         17        the free exercise clause contained in the First Amendment

         18        was a fundamental right that could not be substantially

         19        burdened by government action unless the government

         20        demonstrated a compelling interest for doing so and used

         21        the least restrictive means of accomplishing its

         22        objective.

         23             That principle which held way for 30-odd years was

         24        not extended beyond its particular context which was a

         25        context in which the Court said that the state could not


          1        condition the availability of unemployment insurance on an

          2        individual's willingness to forgo conduct required by a

          3        religion.

          4             So, for example, if you had religious scruples

          5        against working on a given day of the week, and you

          6        followed those religious scruples but in the process of

          7        doing so then forfeited your right to unemployment

          8        compensation if you got fired because you wouldn't work on

          9        a particular day of the week, the Court in the Sherbert

         10        case originally said that kind of law is violative of the

         11        First Amendment because it's not narrowly tailored to

         12        accomplish its desired objective.

         13             Later on the case of Employment Division vs. Smith

         14        was decided.  And in that case, the Court affirmed a

         15        statute that had the effect of precluding the ingestion of

         16        peyote by Native Americans even though that was part and

         17        parcel of their religious practices.

         18             And the Court in effect applied a rational basis test

         19        as it related to laws of general applicability.  In other

         20        words, it said in that case, this law was not intended to

         21        burden religion per se.  It was a law of general

         22        applicability prohibiting the ingestion of controlled

         23        substances and notwithstanding that it may be part of the

         24        religious ritual of Native Americans to do so the state

         25        may properly burden the exercise of their religion in that


          1        manner.

          2             That ruling which then changed the standard of review

          3        in religious liberty cases produced a huge outcry in an

          4        enormously broad religious coalition who sought to pass

          5        what was called the Religious Freedom Restoration Act

          6        which in effect would say that even if you have a law of

          7        general applicability, where it winds up burdening

          8        religious practices, we are going to hold the Court -- or

          9        the Court is going to employ this standard of heightened

         10        scrutiny where the State has to demonstrate that it has a

         11        compelling interest in passing the legislation and that

         12        legislation is narrowly tailored to accomplish that

         13        purpose.

         14             A broad coalition of Christians and Jews, of Muslims

         15        and other religious denominations of the National Council

         16        of Churches and fundamentalist churches, just a huge

         17        coalition came together in support of the Religious

         18        Freedom Restoration Act and lo and behold, the Court

         19        struck that down saying, No, we are going to, in effect,

         20        as to laws of general applicability, we are just going to

         21        require this lower standard which is, is there a rational

         22        basis or a legitimate governmental interest and if it

         23        burdens religion, so be it.

         24             Let me tell you how that has worked in the real world

         25        here in the state of Florida.  In Dade County, when people


          1        had religious meetings in their homes, they were fined

          2        $500 for violating zoning regulations.  So, for example,

          3        on a Sunday morning when folks had 60 people into their

          4        home for religious worship, that was deemed to be a use in

          5        violation of the zoning code and because it was a law of

          6        general applicability they get fined 500 bucks.  And under

          7        the Employment Division vs. Smith case, that action by the

          8        part of government is probably sustainable.

          9             In Duval County, I am given to understand that some

         10        people were bringing in contraband as part of religious

         11        services to prisoners.  And as a consequence of that, the

         12        Department of Corrections completely eliminated the

         13        conduct of communion services in prison.

         14             Under the Employment Division vs. Smith case, they

         15        don't have to show that they used the narrowest tailored

         16        means of doing that, and there is obviously a legitimate

         17        pedagogical interest at stake there.  What this proposal

         18        as amended would do, and I think all of you should now

         19        have the proposed amendment, the proposed amendment just

         20        simply strikes the second sentence.  So that the only

         21        language that's now proposed is the following:  The first

         22        sentence, The State or any political subdivision or agency

         23        thereof may not substantially burden the free exercise of

         24        religion even if the burden results from a rule of general

         25        applicability unless the State demonstrates that


          1        application of the burden is in furtherance of a

          2        compelling interest and is the least restrictive means of

          3        furthering that compelling interest.

          4             Now what that does is simply to say that with respect

          5        to laws that burden the exercise of religious freedom, the

          6        Florida Constitution will require the application of the

          7        compelling interest test.  And the State or the

          8        governmental entity involved will be required to

          9        demonstrate that its action is the most narrowly tailored

         10        to accomplish whatever the compelling interest is.  The

         11        reality of it is that when you have a law of general

         12        applicability, the Courts will almost always find that

         13        there is a compelling interest.

         14             CHAIRMAN DOUGLASS:  Commissioner Connor, the

         15        secretary reminds me that you are talking about the

         16        amendment and it hasn't been read and that's why I asked

         17        you if you were going to move it.  If you are going to

         18        talk about it, we are going to have to read it.

         19             COMMISSIONER CONNOR:  I beg your pardon, I do move it

         20        and --

         21             CHAIRMAN DOUGLASS:  Now she will read it.

         22             READING CLERK:  By Commissioner Connor on Page 1,

         23        Lines 21 through 27, delete those lines and insert,

         24        Furthering that compelling interest, religious.

         25             CHAIRMAN DOUGLASS:  And you have been discussing now


          1        the amendment.

          2             COMMISSIONER CONNOR:  Thank you.

          3             CHAIRMAN DOUGLASS:  And you want a few more minutes.

          4             COMMISSIONER CONNOR:  I apologize.  So the language

          5        in the second sentence, frankly, was deemed by the

          6        committee to be confusing.  The ACLU and groups that it

          7        represented didn't like it, and they said, If you will

          8        take it out, we will support it.  So now we have this same

          9        kind of broad-based religious coalition who, according to

         10        the ACLU representative, affirms this language because it

         11        is the precise language that Congress put forth in the

         12        Religious Freedom Restoration Act.  What it does for

         13        Floridians is, it gives a greater measure of protection

         14        for the exercise of religion than is currently recognized

         15        under the federal constitutional law.

         16             I think that's a healthy and important freedom to

         17        protect for our citizens.  Religious freedom has been

         18        deemed to have been eroded under the Employment Division

         19        vs. Smith case at the federal level and this is a classic

         20        example where we seek through the state Constitution to

         21        accord greater protection to religious freedom than the

         22        United States Supreme Court has been willing to recognize

         23        in the Employment Division vs. Smith case.

         24             CHAIRMAN DOUGLASS:  The amendment now is what we're

         25        on.  And if we're going to adopt the amendment and debate


          1        the proposal, let's do it.  Is that agreeable?  All in

          2        favor of the amendment, which you understand was to strike

          3        the language, in effect, that's referred to in the

          4        amendment, that's what it does.  It just strikes that

          5        language.

          6             COMMISSIONER CONNOR:  It strikes the language of the

          7        second sentence.  The language that remains is verbatim,

          8        the provisions of the Religious Freedom Restoration Act.

          9             CHAIRMAN DOUGLASS:  So what you've done is strike the

         10        language that says, The State or any public subdivision or

         11        agency thereof may not substantially burden the exercise

         12        of free speech, et cetera.  You struck all that and now

         13        we're dealing with just the first sentence as being added

         14        to our existing Constitution?

         15             COMMISSIONER CONNOR:  Yes, sir.

         16             CHAIRMAN DOUGLASS:  All right.  Now, all in favor of

         17        the amendment say aye.  All opposed?

         18             (Verbal vote taken.)

         19             CHAIRMAN DOUGLASS:  The amendment is adopted.  We're

         20        on the proposal.  Yes, sir, Commission Wetherington?

         21             COMMISSIONER WETHERINGTON:  Can I ask you a question

         22        or two questions?  One, taking your example of the 60

         23        people that come to someone's private residence for let's

         24        say a religious service in violation of the zoning laws,

         25        under this proposal, the amendment that you put forth, I


          1        take it would the government not be allowed to enforce its

          2        zoning laws under those circumstances?

          3             COMMISSIONER CONNOR:  The government would be

          4        permitted to enforce zoning laws provided it could

          5        demonstrate that it had used the most narrowly tailored

          6        means of doing so.  For example, there was nothing in the

          7        zoning laws that would have prohibited that couple from

          8        hosting a party, a social gathering over 60 people.  But

          9        when those folks were invited into their home to worship

         10        in accordance with the dictates of the consensus, that was

         11        deemed to be a violation of the zoning law because it was

         12        a prohibited use in a residential area.  And so they were

         13        sanctioned for the violation of the ordinance.

         14             COMMISSIONER WETHERINGTON:  So you're saying in that

         15        instance that if I can have a party and invite 60 people,

         16        then I would -- I could have 60 people come over for

         17        religious services and they could not enforce a regulation

         18        prohibiting that?

         19             COMMISSIONER CONNOR:  I think that if they precluded

         20        religions gatherings but permitted social gatherings,

         21        arguably the State's action would not be the most narrowly

         22        tailored to achieve its interest which might be quiet,

         23        peace, and tranquility in the neighborhood.  So I think it

         24        would be harder to sustain the action of the zoning

         25        authorities in that instance if we adopt this language


          1        than it would otherwise be.

          2             COMMISSIONER WETHERINGTON:  Did I hear you say also

          3        that this proposal is supported by the American Civil

          4        Liberties Union?

          5             COMMISSIONER CONNOR:  Yes, sir.

          6             CHAIRMAN DOUGLASS:  All right.  Commissioner

          7        Sundberg?

          8             COMMISSIONER SUNDBERG:  For a question, Commissioner

          9        Connor.

         10             COMMISSIONER CONNOR:  Yes, sir.

         11             COMMISSIONER SUNDBERG:  What I'm really troubled by

         12        is the exculpation of, you know, the rules of general

         13        application or application of neutral principles of law.

         14        For example, and I'd like to focus on the compelling state

         15        interest, this is not a rhetorical question, but are fire

         16        codes, are building codes deemed to be of compelling state

         17        interest?

         18             COMMISSIONER CONNOR:  Yes.

         19             COMMISSIONER SUNDBERG:  They are?

         20             COMMISSIONER CONNOR:  They are.  And they are codes

         21        of general applicability.

         22             COMMISSIONER SUNDBERG:  Well, that's my point.  But

         23        they have been ruled to be of compelling State interest?

         24             COMMISSIONER CONNOR:  Yes, because the state has a

         25        compelling interest in protecting the health and safety


          1        and that would not be deemed to be an undue burden on the

          2        exercise of religion because you're required fire exits in

          3        a church.

          4             COMMISSIONER SUNDBERG:  Sure.

          5             CHAIRMAN DOUGLASS:  All right.  Before I go further,

          6        Commissioner Corr, I want to apologize to you.  I was told

          7        that I didn't give you a chance to close on your proposal

          8        and that was purely unintentional.  And if you feel that

          9        closing now would help, I'd be glad to move to reconsider.

         10             COMMISSIONER CORR:  I don't think it would help.

         11             CHAIRMAN DOUGLASS:  Okay.  I'm sorry, I didn't intend

         12        to do that.  Commissioner Brochin was up, Commissioner

         13        Smith, and you will be next.  Commissioner Brochin.

         14             COMMISSIONER BROCHIN:  Question.  People who are

         15        affected by this proposal, what remedy would they have?

         16        Is this going to put us in litigation?

         17             COMMISSIONER CONNOR:  Of course it will.  The effect

         18        will be to try to push back unwarranted government

         19        encroachment on the ability of Floridians to exercise

         20        their religions faith in accordance with the dictates of

         21        their conscience.

         22             COMMISSIONER BROCHIN:  Understanding that the

         23        exercise of free religion is a fundamental right, are you

         24        concerned in any way about how much litigation will result

         25        as a result of this proposal?


          1             COMMISSIONER CONNOR:  I really am not.  And this is

          2        not a new standard.  This standard of compelling interest,

          3        narrowly tailored, we already recognize with respect to a

          4        variety of different classifications of people under

          5        Article I, Section 2.  So it's not something that is

          6        novel, it is not something that is new.

          7             What it says is, that we so value the free exercise

          8        of religion in our state that before the government may

          9        burden it, even with a law of general application, A, it

         10        has to demonstrate the compelling interest and it almost

         11        always follows from a law of general application that you

         12        can demonstrate the compelling interest.  But, B, you have

         13        to demonstrate that it's narrowly tailored to accomplish

         14        that purpose.

         15             COMMISSIONER BROCHIN:  If I may.  The analysis did

         16        not include any data available from other states.  Have

         17        other states codified this test or interest either

         18        statutorily or constitutionally?  And if yes, what has

         19        been their experience in terms of litigation?

         20             COMMISSIONER CONNOR:  I cannot answer that because it

         21        is only recently that the Religious Freedom Restoration

         22        Act was struck down -- well, it was 1997.  So I think

         23        Florida has an opportunity to be a leader in protecting

         24        the free exercise of religion of its citizens against an

         25        unwarranted or overly broad burdens that the State might


          1        otherwise seek to impose.

          2             CHAIRMAN DOUGLASS:  Isn't this already the law in

          3        Florida?

          4             COMMISSIONER CONNOR:  No, sir, I don't believe it is.

          5        In fact, we reviewed the cases that construe Article I,

          6        Section 2, and found no cases that addressed this issue.

          7        It was perceived to be, before Employment Division vs.

          8        Smith, it was perceived that the law of the land under the

          9        First Amendment was that a compelling interest had to be

         10        demonstrated and had to be narrowly tailored before you

         11        could burden it and then came down the peyote case.

         12        People were stunned by that.  And as I say, it produced

         13        this coalition, the likes of which, I dare say, have never

         14        been seen before in opposition to it and in the promotion

         15        of the Religious Freedom Restoration Act.

         16             Then that got stricken by the Supreme Court who said,

         17        No, we're going to use a lower standard.  And what this

         18        says, No, just as we talked about, political speech having

         19        been a preferred form of speech earlier, many believe and

         20        I certainly affirm the notion, that free exercise of

         21        religious faith ought to be a very strongly protected

         22        right of our citizens and ought to be accorded the

         23        strictest scrutiny when there are laws that burden that

         24        free exercise.

         25             CHAIRMAN DOUGLASS:  Then the Florida court has not


          1        construed the existing religious freedom provision which

          2        is different than the First Amendment, it's broader than

          3        the First Amendment, much stronger; is it not?

          4             COMMISSIONER CONNOR:  Well, there's a good question

          5        about that, Mr. Chairman.

          6             CHAIRMAN DOUGLASS:  Well, not the way the First

          7        Amendment is interpreted, but the language itself is

          8        certainly more specific.

          9             COMMISSIONER CONNOR:  I'm frank to tell you if you

         10        look at Article III, Section 3, the second sentence, I

         11        don't know what that means and it's not being construed to

         12        my knowledge, religious freedom shall not justify

         13        practices inconsistent with public morals, peace, or

         14        safety.  Nobody really knows what that means, but I think

         15        it's fair to say that we don't know what the standard is

         16        in Florida as it relates to the free exercise of religion

         17        and that inasmuch as the Supreme Court has eroded -- I

         18        mean, I think it's fair to say that religious liberty as

         19        construed by the Supreme Court in its most recent cases

         20        has been eroded in this country because the state is held

         21        to a lower standard before it may be deemed to have been

         22        all right to burden it.  We then affirm that it's a

         23        fundamental right which ought to be accorded the greatest

         24        protection under the Constitution.

         25             CHAIRMAN DOUGLASS:  Commissioner Smith was up first.


          1        You're next, Commissioner Mills.  Commissioner Smith is

          2        recognized.

          3             COMMISSIONER SMITH:  Thank you, Mr. Chairman.  As all

          4        of you know, the Declaration of Rights Committee took on

          5        some of the most divisive, controversial and heated issues

          6        dealing with human rights and liberty.  As the chairman of

          7        the committee, I can tell you that I was floored when a

          8        member of the ACLU and conservative religious groups stood

          9        together urging the Declaration of Rights Committee to

         10        pass this provision.  Why was I surprised?  First I was

         11        surprised because naively I believed that Article I,

         12        Section 2, adequately provided protections, religious

         13        protections.  And then we went through the case law in the

         14        Religious Freedom Restoration Act and a series of

         15        scenarios.

         16             Secondly, I was surprised because I didn't fully

         17        realize the import of the Federal Court decision which in

         18        essence lowered the standard.  The problem that we had at

         19        the committee level was the second sentence, not only did

         20        the committee feel that the second sentence should be

         21        eliminated, but the coalition that had been put together

         22        to lobby at this at the federal level and to lobby for

         23        this at the state level fractured when the second sentence

         24        was put in.  And when they fractured, the committee

         25        fractured.  And therefore, I think it was voted out


          1        unfavorably.

          2             However, I can tell you that my unfavorable vote

          3        solely was because I thought the second sentence should

          4        not be in there.  All the questions that have been raised

          5        today were brought up at the committee except for the fact

          6        that the second sentence should not be in there.  The most

          7        broad coalition that I've ever seen came forward and was

          8        represented as being fully in favor of this.

          9             This nation was founded on the basis of religions

         10        freedom.  And if we are to error I think we should error

         11        on the side of ensuring that the state, that our

         12        government, does not infringe on people's right to

         13        exercise their religion.  But whether there is a fire

         14        code, or whether there is a problem with 60 cars parked in

         15        front of my house every Sunday morning or Saturday

         16        morning, and it's a zoning code violation or whatever, the

         17        government should have the right because of a compelling

         18        state interest to take action in that regard.

         19             But other than that, I really believe this is a very

         20        important issue.  And although I voted no at the

         21        committee, I intent to vote yes with the broad-base

         22        coalition and because I believe that freedom of religion

         23        is one of the highest priorities that we have to deal

         24        with.  Thank you.

         25             CHAIRMAN DOUGLASS:  You support it as amended?


          1             COMMISSIONER SMITH:  Yes, sir, as amended.

          2             CHAIRMAN DOUGLASS:  Now, Commissioner Mills.  You're

          3        next, Commissioner Mathis.

          4             COMMISSIONER MILLS:  Mr. Chairman, does Commissioner

          5        Connor yield for a question?

          6             CHAIRMAN DOUGLASS:  He yields.

          7             COMMISSIONER MILLS:  I had some of the same concerns

          8        at committee and a question I had asked at committee I

          9        think Commissioner Connor may have a direct answer to.  It

         10        also seems to me, at least my personal preferences,

         11        individual freedom and religious freedom is a fundamental

         12        right in the United States and ought to be.

         13             So my initial question was, isn't this the law?  And

         14        in looking at the actual wording of the Florida

         15        Constitution, it doesn't appear to directly do that.  And

         16        I offered, as an option, which may end up being an

         17        equivalent, to simply say that free exercise of religion

         18        shall be a fundamental right.

         19             Now part of my question is, have we achieved the same

         20        purpose because as I read this sentence, most of it

         21        appears to be precisely the test for a fundamental right

         22        which is requiring -- if I possess a fundamental right,

         23        the State can override that interest if the State has a

         24        compelling interest.  And then they must do so in least

         25        intrusive means and that is a test as I understand it.  If


          1        you could just help me and tell me in what way, if any,

          2        this is distinct from a fundamental rights test.

          3             COMMISSIONER CONNOR:  I'll be pleased to try to do

          4        that.  Now, in answer to that question, I have an almost

          5        three-page letter from Professor Miginly (phonetic) --

          6             CHAIRMAN DOUGLASS:  Your time is up, you have to

          7        summarize it in about 45 seconds.

          8             COMMISSIONER CONNOR:  -- who says that that proposed

          9        language doesn't solve the problem, that it would solve

         10        the problem of a law that was directly intended to burden

         11        religion.  But as to a law of general applicability, which

         12        only incidentally burdens religion, it wouldn't provide

         13        the protection necessary and, see, Commissioner Sundberg

         14        seems to be affirming that view.  And so I think that this

         15        is necessary to accomplish the protection that I believe

         16        all of us want Floridians to be able to enjoy.

         17             CHAIRMAN DOUGLASS:  Commissioner Sundberg?

         18             COMMISSIONER SUNDBERG:  Would you believe,

         19        Commissioner Connor, that, in fact, when it comes to First

         20        Amendment rights, laws of general application, for example

         21        a tax law that applies to newspapers to the same extent

         22        that it does all other businesses, is constitutional

         23        without demonstrating any compelling state interest?

         24             COMMISSIONER CONNOR:  I was surprised to learn it

         25        from reading the analysis, frankly.  And that's what


          1        provoked the hue and cry that led to the Religious Freedom

          2        Restoration Act.

          3             COMMISSIONER SUNDBERG:  And I didn't even read the

          4        summary.

          5             CHAIRMAN DOUGLASS:  All right.  Commissioner Mathis,

          6        do you rise for a question?

          7             COMMISSIONER BROCHIN:  I do.

          8             CHAIRMAN DOUGLASS:  Instead of a do you believe, this

          9        is a question.  Okay.  Commissioner Brochin.

         10             COMMISSIONER BROCHIN:  Did you or the committee study

         11        the effect, if any, that this proposal would have on

         12        prayer in our public schools?

         13             COMMISSIONER CONNOR:  I think it's fair to say that

         14        the view was that it would not affect prayer in public

         15        schools.  And the ACLU indicated that if they felt it

         16        would, they could not support it.  So there is no intent

         17        to do some kind of end run here and no hidden agenda in

         18        that regard.

         19             CHAIRMAN DOUGLASS:  Commissioner Smith?

         20             COMMISSIONER SMITH:  Just briefly.  Let me just say,

         21        that question was put directly to the head of the ACLU.

         22        We called him to the microphone and had him answer the

         23        question on the record.  And he said if they had any

         24        concern about that, there is no way they could support it.

         25        And I think that's a legitimate concern that we also had


          1        as well.

          2             CHAIRMAN DOUGLASS:  Commissioner Mathis, you've been

          3        patient.  It's your turn.

          4             COMMISSIONER MATHIS:  As always.  I had litigated

          5        these issues at the trial court level and worked with

          6        small local government entities in the central Florida

          7        community who feel like they can adopt ordinances against

          8        churches without having any real basis especially on the

          9        development of churches and churches acquiring additional

         10        lands when it didn't affect the health, safety, or welfare

         11        of the community.

         12             So I have seen the need for this type of language to

         13        clarify and to avoid litigation in order to enforce church

         14        rights.  And I also see this as a real step forward.  And

         15        while I've heard the issue that it may bring on some

         16        litigation, I can truly say from my experiences in central

         17        Florida, it may very well forgo and answer some and

         18        prevent litigation.

         19             CHAIRMAN DOUGLASS:  Thank you, Commissioner Mathis.

         20        Anything further?  Commissioner Wetherington?  Question to

         21        Connor?

         22             COMMISSIONER WETHERINGTON:  Yes.  Would it be fair to

         23        say that this proposal would prevent the government from

         24        discriminating against the religious people?

         25             COMMISSIONER CONNOR:  I think that we do have


          1        protections that relate to the exercise of religion in

          2        terms of preventing discrimination from occurring.  What

          3        this would do, I think, is to ensure that laws, which were

          4        not intended to address religious practices, but which

          5        nonetheless had an impact on religious practices could not

          6        unduly burden their exercise, their free exercise of their

          7        religion, if there was a better way to skin the cat on

          8        government's part.  In other words, if government could

          9        accomplish its objective without burdening the free

         10        exercise of their religion.

         11             COMMISSIONER WETHERINGTON:  And protecting people and

         12        their religious exercise is a value significantly

         13        important so that you're willing to, if necessary, if we

         14        have to have litigation to protect those rights, then

         15        that's okay?

         16             COMMISSIONER CONNOR:  It's absolutely okay with me.

         17        I believe that we ought to push back against government

         18        anytime it encroaches on the exercise of religious freedom

         19        or free speech or one of these other traditional

         20        fundamental rights that we've held so dear.

         21             And I believe the courts, for all the criticism I may

         22        have on some occasions about courts, are the means by

         23        which those rights are given practical meaning by

         24        protecting that.  So I think there is a role for

         25        litigation in our society particularly when it expands


          1        freedom and limits the reach of government in areas that

          2        we deem near and dear.

          3             CHAIRMAN DOUGLASS:  Commissioner -- everybody is up

          4        here.  These are questions that we're getting now.  And

          5        one of them that somebody asked me was does this have any

          6        effect on these religions, for example, like the religions

          7        that sacrifice animals.

          8             COMMISSIONER CONNOR:  We talked about that very issue

          9        as well.  And I don't think there was anybody -- I'm

         10        trying to remember -- I know for instance the Santeria in

         11        Dade County have sacrificed goats, I think, as part of

         12        their religious practices.

         13             CHAIRMAN DOUGLASS:  I thought it was chickens.

         14             COMMISSIONER CONNOR:  Or chicken -- well, I believe

         15        Judge Kogan mentioned goats.  I had thought it was

         16        chickens too.  Probably chickens and goats, I don't know.

         17        But what would have to occur, Mr. Douglass, in order for

         18        the State to -- if the State had passed a law that did

         19        burden the exercise of that right, it would have to

         20        demonstrate that it had acted in the most narrowly

         21        tailored way to accomplish its objective.  Then and only

         22        then would such an impingement be deemed to be acceptable.

         23             CHAIRMAN DOUGLASS:  So the animal protection laws

         24        wouldn't apply then?

         25             COMMISSIONER CONNOR:  No, I think the State might


          1        very well demonstrate that it has a compelling interest in

          2        protecting humane treatment of animals.  The question then

          3        would be, did the State act in whatever way it acted in

          4        the way most narrowly tailored to accomplish its interest.

          5             CHAIRMAN DOUGLASS:  Okay.  Commissioners Smith and

          6        Mills and Freidin.  Who wants to go first?  Ladies first.

          7        Commissioner Freidin; is that all right?  That's fine.

          8        I'm trying to work this through and I'm having a hard time

          9        with it.  I just wanted -- maybe you can clarify this.

         10        And maybe it's been clarified but I just didn't get it.

         11        Does this mean -- if this is part of our Constitution,

         12        does that mean that a zoning ordinance that would make it

         13        difficult for a church to expand because of some -- let's

         14        say the government had -- the local government had a

         15        historical district, which I guess was the case in City of

         16        Bourne vs. Florice, (phonetic) that a historical interest

         17        of the community at large in preserving a historical area

         18        would not overcome the desire of the church to expand on

         19        neighboring property.

         20             COMMISSIONER CONNOR:  I think, Commissioner Freidin,

         21        these are cases that are determined on a case-by-case

         22        basis and I think -- I can certainly envision instances,

         23        where applied, that the ordinance or law which was in

         24        effect may operate as in the application in a given case

         25        to be in violation of the constitutional provision.  The


          1        State would have to demonstrate, and this, by the way, is

          2        not an unfamiliar standard.  Laws that burden -- laws that

          3        make distinctions based on race, for example, you have to

          4        demonstrate a compelling interest and you have to show

          5        that the law is narrowly tailored.

          6             When we addressed the sexual orientation provisions

          7        that are going to be proffered here, the folks are going

          8        to argue that same standard should be applied there.  So

          9        this is not an unfamiliar standard and it's not filled

         10        with a lot of nuances.  It's well established.  And what

         11        we're saying is we place this kind of priority on the

         12        exercise of religious freedom.

         13             CHAIRMAN DOUGLASS:  Commissioner Freidin, follow up.

         14             COMMISSIONER FREIDIN:  I guess I don't know enough

         15        about constitutional standards here, but would, for

         16        example, let's use this historic district example.  Would

         17        the maintaining of the integrity of a historic district be

         18        a compelling state interest?

         19             COMMISSIONER CONNOR:  I would think the answer to

         20        that would be yes because typically laws of general

         21        application are deemed to be laws which reflect a

         22        compelling interest.

         23             CHAIRMAN DOUGLASS:  All right.  Commissioner Mills.

         24             COMMISSIONER MILLS:  Mr. Chairman, there is another

         25        part of the test.  Will Commissioner Connor yield for this


          1        question?  The first part of the sentence seems to be also

          2        to perhaps provide additional assurances for those that

          3        are concerned about too great an impact.  It says, The

          4        state of any political subdivision or agency thereof may

          5        not substantially burden the free exercise of religion.

          6             Now, in other words, I think it's worth pointing out

          7        and discussing that this does not have an impact on --

          8        have some effect in dealing with but substantially burden.

          9             COMMISSIONER CONNOR:  Right.  A diminimus kind of

         10        impact would not qualify here.

         11             COMMISSIONER MILLS:  And I think that's relevant to

         12        kind of put on the record in terms of the examples.  So,

         13        in other words, some of these examples I think that will

         14        be argued would be diminimus impact, to have a substantial

         15        burden on the free exercise of religion would have to

         16        actually, I presume, raise the bar.  You actually have to

         17        be impinging upon the exercise of religion, not just

         18        affecting zoning.

         19             COMMISSIONER CONNOR:  I think that's right.  In other

         20        words, does this law of general application substantially

         21        burden the exercise of one's religion.  I think that a

         22        zoning ordinance might well meet the compelling interest

         23        test.  Then the next question is, and that gets addressed

         24        on a case-by-case basis, was it sufficiently narrowly

         25        tailored to meet that interest.


          1             And then I think what you could well have are

          2        occasions where an ordinance or a statute might be deemed

          3        to be unconstitutional as applied in a given instance.

          4        And there are some instances where it may be

          5        unconstitutional on its face.  But our constitutional

          6        jurisprudence is well developed and is accustomed to

          7        dealing with those kinds of challenges.

          8             CHAIRMAN DOUGLASS:  All right.  Commissioner

          9        Sundberg, we just about spent most of the time on this we

         10        can afford in view of the long afternoon ahead.  Unless

         11        you have something, go ahead, but make sure it is

         12        something new.  I think Commissioner Connor almost has

         13        closed three times here.

         14             COMMISSIONER SUNDBERG:  Well, I really want to take

         15        exception, I believe, to a statement by Commissioner

         16        Connor because I think it's important and I'm going to

         17        support this.  But did you say, Commissioner Connor, that

         18        laws of general application are ordinarily, that there's

         19        ordinarily a compelling interest?

         20             I mean, most laws of general application are judged

         21        by a rational basis test.  Tax laws are laws of general

         22        application.  So aren't laws of general application, for

         23        which there is a compelling state interest, aren't there

         24        few of those as opposed to all laws of application that

         25        are being compelling standards?


          1             COMMISSIONER CONNOR:  My recollection is, and I

          2        certainly stand subject to being corrected, is that

          3        Justice Scalia may have made the very comment in

          4        observation that as a practical matter it wasn't difficult

          5        for courts to find a compelling interest warranting the

          6        passage of laws of general application.  But then there

          7        was that second prong that had to be addressed.  Okay.

          8        Let's assume we find that compelling interest.  Was it

          9        sufficiently narrowly tailored to achieve its ends?

         10             COMMISSIONER SUNDBERG:  I obviously disagree with

         11        Justice Scalia if he said that.  But I will agree with

         12        Judge Wetherington if he says that's the test.

         13             CHAIRMAN DOUGLASS:  Well, is that Judge or

         14        Commissioner Wetherington?  Commissioner Wetherington

         15        wants to respond there, I think.  You're next.

         16             COMMISSIONER WETHERINGTON:  I think basically

         17        Commissioner Connor is right.  The zoning power, for

         18        example, is a part of the exercise of the police power.

         19        And the police power has generally been viewed as one of

         20        the powers that has been determined to be under a

         21        compelling governmental interest.  So the analysis would

         22        then shift over, I think, as he correctly analyzed, as to

         23        whether this was the narrowest way to do it.

         24             And then the second question would be, was there a

         25        substantial impact?  For example, inviting 60 people to


          1        somebody's home, that might not be a substantial

          2        encroachment upon the free exercise of religion in that

          3        particular example.  But I think that Justice Scalia is

          4        basically right where the police power is exercised, it is

          5        generally held to be a compelling governmental interest.

          6             CHAIRMAN DOUGLASS:  All right.  Commissioner Smith.

          7             COMMISSIONER SMITH:  Mr. Chairman, I'm going to waive

          8        my right to respond.  I just urge Commissioner Connor in

          9        closing to try to mention a few of the organizations who

         10        supported this as best you can.

         11             CHAIRMAN DOUGLASS:  All right Commissioner Connor,

         12        you're recognized to close.

         13             COMMISSIONER CONNOR:  The ACLU, the Liberty council,

         14        everybody from Chuck Colson and Jerry Falwell on one hand

         15        to the heads of the National Council of Churches, on the

         16        other hand.  Christians, Jews, non-Christians, just a

         17        whole very broad spectrum.  And I believe that that broad

         18        base of support will translate in support for the people

         19        of Florida for this proposal.

         20             CHAIRMAN DOUGLASS:  All right.  Prepare to vote.

         21        Unlock the machine and we'll vote.  Somebody better move

         22        to reconsider.  You've got 22 votes, Commissioner Connor.

         23             (Vote taken and recorded electronically.)

         24             CHAIRMAN DOUGLASS:  Lock the machine and announce the

         25        vote.


          1             READING CLERK:  Twenty-three yeas and three nays,

          2        Mr. Chairman.

          3             CHAIRMAN DOUGLASS:  Twenty-three votes.  With all

          4        those groups together, I guess it was hard to find the

          5        three votes.  Didn't leave anybody else out much, did you?

          6        Okay.  Commissioner Henderson, do you rise for some

          7        purpose?

          8             COMMISSIONER HENDERSON:  Mr. Chairman, just to let

          9        you know that we're ready to go back to 64 when you're

         10        ready.

         11             CHAIRMAN DOUGLASS:  All right.  I was going to

         12        proceed though with the next order and then we'll come

         13        back to that.  The Proposals 126 and 125 are offered by

         14        the same commissioners and I've been asked by them to

         15        reverse the order which is agreeable with the Rules

         16        Committee.  So we will take up first Proposal No. 125 by

         17        Commissioners Mathis, Connor, Hawkes, Evans and Alfonso.

         18        Hawkes was here this morning, Commissioner Hawkes was.  He

         19        isn't here this afternoon and ask -- it was disapproved by

         20        the Committee on Declaration of Rights but I will ask that

         21        it be read and we'll proceed to debate and I'll recognize

         22        Commissioner Mathis as the proponent.  Would you read it,

         23        please?

         24             READING CLERK:  Proposal 125, a proposal to revise

         25        Article I, Section 2, Florida Constitution; providing that


          1        born and unborn natural persons are equal before the law

          2        and have inalienable rights.

          3             CHAIRMAN DOUGLASS:  Now, Commissioner Mathis, you're

          4        recognized.  And if you can get Commissioners Connor and

          5        Sundberg to get out of your line of fire, you may proceed

          6        to speak.  You did it.

          7             COMMISSIONER MATHIS:  There is no more important

          8        issue for this generation than how we define human life

          9        and how we protect human life.  On January 22nd, 1973 our

         10        United States Supreme Court issued an opinion on Roe vs.

         11        Wade.  That was 25 years ago.  It was also 30 million

         12        children ago.  Thirty million lives have been lost to

         13        abortion.  If you take the average cost of abortion over

         14        the last 25 years from $175 to $400 each and you average

         15        it out to $250 per abortion, you come up with abortion has

         16        generated over $7.5 billion in revenue.

         17             If you take U.S. News and World Reports article which

         18        shows that abortion continues at a rate of 1.4 million

         19        children per year, then abortion generates $35 million per

         20        year.  Abortion is big business.  But I propose to you

         21        that it is not the type of business that we in the state

         22        of Florida want.  Life is sacred.  And we could not

         23        give -- while we cannot give a person life, we should and

         24        must afford life our highest regard and our highest

         25        protections.


          1             Article XIV in significant part of the United States

          2        Constitution says, Nor shall any state deprive any person

          3        of life, liberty, or property without due process of law

          4        or deny to any person within its jurisdiction equal

          5        protections of the law.  In our Constitution, Section 2,

          6        Basic Rights, All natural persons are equal before the law

          7        and have inalienable rights among which are the right to

          8        enjoy and defend life and liberty.  And this is all I

          9        asked is that we as a Constitutional Revision Commission

         10        give the people of Florida an opportunity to state their

         11        position and their regard for life.

         12             In quoting from Professor J.P. Witherspoon in a law

         13        review article that's cited in Francis Shaffer's book, How 

         14        Should We Then Live, and Professor Witherspoon is speaking

         15        in light of the Supreme Court's decision in Dred Scott

         16        that the government should be forever again prevented from

         17        defining the concept of a person so as to exclude any

         18        class of human beings from the protection of the

         19        Constitution and the safeguards it establishes for the

         20        fundamental rights of human beings including slaves and

         21        peons, Indians, aliens, women, the poor, the aged,

         22        criminals, the mentally ill or the retarded and children,

         23        including the unborn, from the time of conception.

         24             You know, abortion is not new.  Abortion was

         25        practiced freely in the Roman empire.  But I say that we


          1        as a society, in looking back on what has happened since

          2        the Supreme Court decision in Roe vs. Wade, need to change

          3        our position and to state a value on human life and to

          4        retreat from defining a group of humans as not human.  You

          5        know, abortion has been an issue of convenience.

          6             Yes, we hear the horror stories about rape and incest

          7        and the health of the mother.  But only 1 percent of

          8        abortions involve rape.  Rather, 76 percent of people

          9        seeking abortions cite concern about having a baby would

         10        change their life.  Fifty-one percent cite problems with a

         11        relationship or wanting to avoid single parenthood as

         12        their reason for abortion.  And, you know, 44 percent of

         13        women who got an abortion in 1994 had already had one.

         14             Abortion has become a method of birth control.  And I

         15        submit to you that human life should be valued more.  And

         16        I really think infanticide is our next step.  We've seen

         17        some of it whether it's the Susan Smiths who decide their

         18        children are inconvenient and seek to get rid of them.  Or

         19        young people who have children and leave them neglected as

         20        they go out to seek their life.

         21             And I've also heard the arguments about, Well

         22        submitting young ladies will go out and seek abortions in

         23        other ways.  I say there is a better balance.

         24             Opposition to abortion is not an endorsement for the

         25        coat hanger just as opposition to slavery is not an


          1        endorsement of lynching.  These are difficult issues that

          2        we are facing.  But I submit to you that we need to value

          3        life as we deal with these difficult issues and that we

          4        need to weigh these issues rather than define a group of

          5        human beings as subhuman and throwing them away.

          6             You know ending apartheid was not easy and I'm sure

          7        it's not easy now.  There are many difficult issues that

          8        need to be addressed.  Ending abortion is not easy and

          9        there are many difficult issues that need to be addressed.

         10        But the sanctity of human life needs to be in that

         11        balance.  We need to consider that when considering how to

         12        protect the health of the mother.  We need to consider the

         13        life of the infant when considering what to do in cases of

         14        rape or what alternatives are open to young women in cases

         15        of rape.  We need to balance this better than we as a

         16        society has done.

         17             When Commissioner Henderson talked about preserving

         18        our environment for future generations, some of us in this

         19        room are much more concerned about preserving our future

         20        generations.  Ending the atrocity of abortion will not end

         21        our problems but it will provide a better basis for our

         22        policy.  The full protection of life that our founding

         23        fathers preserved only for a few, we could fully extend

         24        that protection of life to all, both born and unborn.

         25             I submit to you that rather than quote from polls, we


          1        should submit this issue to the people of Florida and let

          2        them vote.

          3             CHAIRMAN DOUGLASS:  All right.  Further proponents?

          4        The introducers, Mathis, Connor, Hawkes, Evans and

          5        Alfonso, do any of you want to speak, Commissioner Evans?

          6        Commissioner Alfonso?  Commissioner Connor, you're

          7        recognized.

          8             COMMISSIONER CONNOR:  Thank you, Mr. Chairman.

          9        Ladies and gentlemen, I have no doubt that if this session

         10        were in convention in the aftermath of the decision in the

         11        Dred Scott case, that there would be any number of folks

         12        on their feet saying that it is absolutely incumbent that

         13        we as a people take a stand in behalf of human freedom and

         14        human life.

         15             The fact that the United States Supreme Court

         16        declared, as the highest judicial body in the land, that

         17        the black man had no rights that the white man was

         18        required to respect, did not end the discussion.  Indeed

         19        Mr. Lincoln, in the aftermath of that decision, made this

         20        statement:  The candid citizen must confess that if the

         21        policy of the government, upon vital questions affecting

         22        the whole people is to be irrevocably fixed by decisions

         23        of the Supreme Court, the people have ceased to be their

         24        own rulers, having to that extent practically resigned

         25        their government into the hands of that imminent tribunal.


          1             We know what the history of this country was in the

          2        aftermath of the Dred Scott decision.  The people of this

          3        country said, in no uncertain terms, We will not treat

          4        human beings as property, plain and simple.  Ladies and

          5        gentlemen, I would submit to you today that the unborn

          6        child is in the same vulnerable position that Dred Scott

          7        was in, that the unborn child has no rights which must be

          8        respected by others.

          9             Ladies and gentlemen, I would submit to you the right

         10        to life is the foundation of all other rights.  It is that

         11        right without which no other right can exist.  The right

         12        to freedom of religion that we've just been discussing,

         13        freedom of expression, freedom of association, those are

         14        rights that are reserved to the living.  And unless we

         15        first preserve the foundational right of all other rights,

         16        those other rights are meaningless.  Ladies and gentlemen,

         17        I would submit to you that the right to life is superior

         18        to the Constitution, it's not derived from the

         19        Constitution.

         20             The right to life is an endowment upon mankind by the

         21        Creator, plain and simple.  And we know from the inception

         22        of our republic that our forefathers deemed it the role of

         23        government, the place of government to secure the rights

         24        that had been conferred upon us by the Creator.

         25             We've done a pitifully poor job of that in the last


          1        25 years as it has related to unborn children.  Let me

          2        suggest to you folks that when Justice Blackman stated

          3        that he, inasmuch as philosophers and theologians had not

          4        been able to determine what it was that the mother carried

          5        in her womb, then the Court would not be so presumptuous

          6        as to make that determination.

          7             Let me suggest to you that that's a spurious

          8        argument.  We've known throughout the ages what it is that

          9        a mother carries in her womb.  It is very simply her

         10        unborn child.  It is a person.  It is a person who is

         11        weak.  It is a person who is vulnerable.  It is a person

         12        who is exposed because of their weakness and vulnerability

         13        to all kinds of exploitation.

         14             One in three pregnancies in this country end in

         15        abortion.  One in three.  Statistically the most dangerous

         16        place in America has become the mother's womb.  I would

         17        submit to you that ought not to be.  I would submit to you

         18        that the Court erred in Roe vs. Wade when it invented a

         19        right to abortion.  I would submit to you that the Court

         20        erred in Roe vs. Wade when it declared the laws of 50

         21        states as they related to abortion unconstitutional.

         22             Ladies and gentlemen, I would submit to you that we

         23        have an obligation to speak our consciences.  Commissioner

         24        Henderson in the Floridian paper, number one, makes this

         25        statement at the very beginning, A Constitution is more


          1        than the basic law of the land.  It is a place to express

          2        our fundamental values.  Ladies and gentlemen, I would

          3        submit to you that the first fundamental value that we

          4        ought to be willing to express is that every person, black

          5        or white, rich or poor, whole or handicapped, male or

          6        female, born or unborn, has a God-given natural right to

          7        life which we as participants in self-government will

          8        ensure will be protected through the ages.

          9             I urge you to affirm what our forefathers deemed to

         10        be a self-evident truth and that is that all of us have

         11        been endowed by our Creator with a right to life and that

         12        the role of government ought to be to protect that

         13        precious life.  Thank you.

         14             CHAIRMAN DOUGLASS:  Proponents?  Anybody in

         15        opposition want to speak?  Commissioner Wetherington is

         16        recognized for a question to Commissioner Connor.

         17        Commissioner Connor, this is a Connor afternoon.

         18             COMMISSIONER WETHERINGTON:  Does this proposal

         19        overrule, attempt to overrule Roe vs. Wade?

         20             COMMISSIONER CONNOR:  In reality the effect of the

         21        proposal would be that it would not take effect.  As long

         22        as Roe vs. Wade remains the law of the land, because, as

         23        you know, that where the Court has determined that there

         24        is an area of protection recognized by the federal

         25        Constitution, the states may not diminish that protection.


          1        And the protection I am speaking of is the protection of

          2        the woman to choose whether or not the baby in her womb

          3        will survive to birth or not.

          4             COMMISSIONER WETHERINGTON:  I respect very much what

          5        you have said, but would the people of Florida be adopting

          6        an unconstitutional provision if they adopted this

          7        proposal?

          8             COMMISSIONER CONNOR:  As currently interpreted by the

          9        Supreme Court of the United States, I think the answer is

         10        yes.  I would make the observation that on more than 120

         11        occasions in the past, the United States Supreme Court has

         12        reversed its prior holdings.  And I believe that we as a

         13        people ought not, as Mr. Lincoln says, to surrender our

         14        decision-making up to that eminent, and I respect the

         15        Supreme Court, to that eminent tribunal.  But I would

         16        submit to you that fundamentally the Roe vs. Wade decision

         17        is flawed because it elevates the right of privacy over

         18        the right to life.

         19             And my view is that the right of privacy is a right

         20        that is derived from subordinate to, and flows out of that

         21        foundational right to life and that kind of wrongheaded

         22        logic out to be eschewed by the people of Florida even if

         23        we cannot enforce it at this time.

         24             CHAIRMAN DOUGLASS:  All right.  Any further debate?

         25        If not, prepare to vote.  Unlock the machine.


          1             (Vote taken and recorded electronically.)

          2             CHAIRMAN DOUGLASS:  Commissioner Mathis, did you want

          3        to close or did you consider Commissioner Connor's a

          4        close?

          5             COMMISSIONER MATHIS:  The vote being taken, we will

          6        move forward.

          7             CHAIRMAN DOUGLASS:  If you think you can change it,

          8        we will back it up.  Has everybody voted that's present?

          9        Lock the machine and announce the vote.

         10             READING CLERK:  Nine yeas and 18 nays, Mr. Chairman.

         11             CHAIRMAN DOUGLASS:  All right.  The next proposal is

         12        Proposal No. 126 by Commissioners Mathis, Connor, Hawkes,

         13        Evans and Alfonso.  Disapproved by the Committee on the

         14        Declaration of Rights.  Would you read it, please?

         15             READING CLERK:  Proposal 126, a proposal to revise

         16        Article I, Section 2, Florida Constitution; providing that

         17        the basic rights of natural persons accrue at the point of

         18        their conception and continue until their natural death.

         19             CHAIRMAN DOUGLASS:  All right.  Commissioner Mathis,

         20        you are recognized and this time remind me you get to

         21        close, okay?

         22             COMMISSIONER MATHIS:  Good enough.  I think with the

         23        right to abortion the door has been opened.  The Court has

         24        separated aliveness from personhood.  But there are issues

         25        that are broader than abortion that we need to address and


          1        establish a fundamental principle.

          2             Life is a fundamental right, our Constitution is

          3        clear about that.  And the State does have a compelling

          4        interest in protecting that life.  And I would like to see

          5        the Floridians, given an opportunity to speak directly to

          6        this issue, of whether a life -- whether there is a right

          7        to live a life and whether that right should be protected

          8        beyond the ordinary political process.

          9             Changes in technology and medical advances and

         10        scientific research have compelled us to reaffirm and

         11        clarify the value that we as a society place on human life

         12        and to prevent the devaluation of human life, these

         13        balances of the fundamental right to life where we also

         14        see increasing financial incentives to limit medical care,

         15        so we need to address some very clear issues.

         16             And abortion should not be the issue that drives how

         17        we address these other issues.  There are issues of

         18        cloning and the issue of whether a cloned life is a real

         19        life.  There is the issue of research that's done on

         20        embryos.  There is the issue of physician-assisted suicide

         21        and mercy killing and euthanasia and there is also the

         22        issue that the staff analysis deals with about how we deal

         23        with the wrongful death of a child while that child is in

         24        the mother's womb.

         25             I do not think that abortion should be the driving


          1        force on how we address these complicated issues that will

          2        be facing our society and our state.

          3             Protecting human life from conception to natural

          4        death will not get rid of abortion, but it will provide

          5        guidance to us as to how we address these other

          6        complicated issues that will be facing us in the new

          7        millennium.

          8             I guess we have to look at it from what's been called

          9        the Wetherington test, does this belong in the

         10        Constitution?  I think it does.  It has to be a guiding

         11        principle for us as we live our lives.  You know, when

         12        they asked me to serve on this Constitution Revision

         13        Commission, in thinking of the issues that I thought were

         14        important to bring before the body, there were some issues

         15        that we have addressed in this session, but I think there

         16        is no more fundamental issue than the issue of life and

         17        our protection of human life and I know it is not popular.

         18             But I would have done a disservice to come before

         19        this body and not bring this issue up for discussion.  And

         20        I think anyone who feels that we should foreclose a

         21        discussion of certain issues because they agree or

         22        disagree does a disservice to this body.  We are here to

         23        discuss fundamental principles that will guide this state

         24        for the next 20 years or so.  And I think this issue is

         25        worthy of that consideration.


          1             CHAIRMAN DOUGLASS:  Commissioner Mathis, thank you.

          2        Proponent, Commissioner Barton?

          3             COMMISSIONER BARTON:  Actually, I have a question.

          4        Commissioner Mathis, my question to you would be, is the

          5        difference in this proposal that it would also protect the

          6        conceived child and the mother of the child who is

          7        conceived?

          8             COMMISSIONER MATHIS:  Yes, Commissioner Barton, this

          9        issue here is much broader than the previous issue in

         10        Proposal 125.  And it would protect both the unborn child

         11        and it would also protect the mother.  And it would also

         12        protect the old and the elderly and the infirmed that

         13        everyone would be given the right to live a life from

         14        their conception to their natural death and that the State

         15        would choose every reasonable means to protect that right.

         16        So, yes, to answer your question.

         17             CHAIRMAN DOUGLASS:  All right.  Other proponents.  I

         18        think the other people who introduced this, Commissioner

         19        Evans, do you want to comment?  You are recognized.

         20             COMMISSIONER EVANS:  Just one brief comment.  I think

         21        you-all are aware that I have a friend who gave birth last

         22        May 23rd to a baby at 23 weeks.  And I just want to give

         23        you some information on hospital policy.  Their baby was

         24        born at 510 grams and the hospital policy at Arnold Palmer

         25        was that if the baby weighs less than 500 grams they will


          1        take no action to save the baby's life.

          2             And in reality, the -- my friends, when they

          3        questioned their OB-GYN concerning that policy, because,

          4        10 grams isn't very much, the OB-GYN did say that he had

          5        never known when the parents wanted the hospital to take

          6        action to save the life, he had never known the hospital

          7        not to.

          8             But the policy is that at 500 grams they will not

          9        take action to save the life.

         10             CHAIRMAN DOUGLASS:  And this would rectify that in

         11        your opinion?

         12             COMMISSIONER EVANS:  I think that it would strengthen

         13        the parents' position, yes.

         14             CHAIRMAN DOUGLASS:  Okay.  Thank you.  Now, other

         15        proponents, Commissioner Connor?

         16             COMMISSIONER CONNOR:  Commissioner Wetherington, your

         17        question of me earlier, I think, bears directly on my

         18        position on this issue.  In effect the unstated question,

         19        I think, is, Well, why would you put forward a proposal

         20        which we know runs afoul of current constitutional

         21        jurisprudence?

         22             Ladies and gentlemen, the simple answer to that is

         23        because our consciences compel us to do so.  We believe in

         24        the strongest of terms that Roe vs. Wade was wrongly

         25        decided and in as much as in God's province, as some of us


          1        have had the opportunity to serve on this commission at

          2        this time in history, we believe we would be remiss if we

          3        didn't bring your attention our concern about what we

          4        believe to be the gravest, single, moral wrong in our

          5        culture.

          6             The position that this body has adopted, I don't know

          7        if you appreciate it or not, but here is where we are.

          8        This is a commission that has affirmed abortion at any

          9        age, at any stage of the pregnancy, by any means,

         10        regardless of the methodology, and without so much as in

         11        the case of a minor child requiring parental consent.

         12             Ladies and gentlemen, while this is an issue that

         13        engenders great consternation and differences of opinion,

         14        I would submit to you that that position is a position

         15        that is at variance with mainstream American thought.

         16             Let me make this observation about the personhood of

         17        the unborn child.  With advances in biotechnology and

         18        fetal medicine, we are seeing incredible changes on the

         19        scene.  I read an interesting article in recent U.S. News

         20        and World Report about fetal surgery that was aimed at

         21        overcoming fetal deformity and the patient was the unborn

         22        child in the womb who was operated on.

         23             With the advent of fetal technology, with cryogenics,

         24        with in vitro fertilization, the length of time that we

         25        can sustain life in an artificial environment outside the


          1        womb rapidly advances.  With the advents of fetal

          2        technology and fetal medicine, the length of time for

          3        viability keeps falling backwards.

          4             The day will come, ladies and gentlemen, maybe in the

          5        next 20 years before this next commission meets, when we

          6        will be able to sustain the life of a child from

          7        conception to viability outside the mother's womb in an

          8        artificial medium.  You may say, Oh, that can never be.

          9        We have folks telling us in two years they will clone

         10        human beings, that day will come.

         11             And we are going to have to decide what it is we are

         12        dealing with.  We have ducked the issue of personhood

         13        because of this tension between the mother who carries the

         14        baby and the baby herself.  But we are going to have to

         15        come to grips with that very difficult issue of what is

         16        it?  Is it property, is it something that you can harvest

         17        its body for spare parts?  Use the residual for heaven

         18        only knows what?

         19             I would submit to you, ladies and gentlemen, this is

         20        a profound question that we are ducking and refusing to

         21        debate.  I would submit to you that there is no important

         22        question and there is no more important right to protect

         23        than this right to life and we urge your support of the

         24        proposal.

         25             CHAIRMAN DOUGLASS:  Commissioner Connor, we are on


          1        the floor.  I would have risen to a point of privilege for

          2        the body to say -- okay, Commissioner Smith.

          3             COMMISSIONER SMITH:  Thank you.  I had no intention

          4        to speak on this issue.  Obviously, as a member of the

          5        Declaration of Rights Committee, I had heard a lot and

          6        spoke a lot on the issue.  However, since this is a

          7        discussion of record, I think it is important to state as

          8        a member of this commission that this commission has taken

          9        no action whatsoever that in any way affects the law that

         10        existed at the time we convened with regard to when a

         11        woman has the right to choose, what age a female can get

         12        an abortion, or disturbed in any way the relationship of a

         13        minor and her family and physician in making a decision of

         14        the choice.

         15             We have taken no action whatsoever that changed the

         16        state law.  We have taken no action whatsoever that

         17        affects the federal law.  And so with regard to whatever

         18        the debate may be on this issue that obviously divides

         19        America, is a hotly contested issue, is an issue of

         20        conscience and passion for both sides.  I think it is

         21        important that I rise to state that as I did in the

         22        Declaration of Rights Committee.

         23             And so while I disagree on the merits with my friend

         24        Mr. Connor, I also disagree with his interpretation of the

         25        action that we as a body have taken.  And I must state for


          1        the record what I see as the position this commission has

          2        taken.

          3             CHAIRMAN DOUGLASS:  That was what I was going to

          4        state but you did it much more eloquently than I would

          5        have.  Commissioner Wetherington?

          6             COMMISSIONER WETHERINGTON:  In one of the earliest

          7        Supreme Court cases that was decided Calder vs. Bull,

          8        there was a discussion by Justice Iredell and Justice

          9        Chase concerning whether or not the natural law was

         10        superior to the United States Constitution.  And the

         11        natural law theory is probably that which was really

         12        invoked in Roe vs. Wade.  Your statement of the natural

         13        law position concerning your position is as good

         14        supporters, it has good history, so it is not in any way a

         15        weightless kind of position.  It is a position I have

         16        great respect for.  And you state it extremely well, and

         17        extremely passionately.

         18             On the other side, we also have a competing value,

         19        which some might argue would be a natural right and that

         20        is the woman's freedom of choice.  So we have got the

         21        competition here between rights that perhaps are both

         22        sacred and equal, and entitled to the greatest possible

         23        weight in our value system.

         24             Under our system of government, the United States

         25        Supreme Court, under our system of jurisprudence, has been


          1        designated as the ultimate arbiter to resolve these very

          2        difficult kinds of decisions whether they are right or

          3        whether they are wrong.

          4             And they have resolved this issue at least up to now.

          5        And it is my feeling that we have to respect that

          6        resolution whether we agree with it or whether we disagree

          7        with it.  It seems to be that under our system of

          8        government that it is a decision that we have to respect

          9        and as a constitutional body, which this body is, I think

         10        we have to respect the Constitution of the United States

         11        as it is interpreted by the United States Supreme Court.

         12             That's not, I genuinely mean to state, and I think

         13        for everybody, that nobody here does not have very deep

         14        concern for the values that you spoke to.  And I don't

         15        know that there is anybody here really that favors

         16        abortion as such.  I think there are many here that favor

         17        a woman's freedom of choice.  I don't know that anybody

         18        thinks that abortion is a good thing, they may think it is

         19        a necessary thing.

         20             So I want to join a little bit in what Commissioner

         21        Smith said in saying that we are not, the commission

         22        itself is not changing the law.  I think what we are doing

         23        is we are simply respecting the state of the United States

         24        constitutional law, which we are bound by.  As a

         25        constitutional commission, I think we would be required to


          1        honor the United States Supreme Court decision in this

          2        case.

          3             CHAIRMAN DOUGLASS:  All right.  You know,

          4        Commissioner West wants to be recognized.  You have been

          5        heard from a whole lot this afternoon.  I think

          6        Commissioner West we haven't heard from much and it is

          7        your turn.

          8             COMMISSIONER WEST:  Thank you very much,

          9        Mr. Chairman.  And I really want to approach this from a

         10        little bit of a different perspective and I am so thankful

         11        for your comments, Commissioner Mathis.

         12             I want to take your minds back to World War II and

         13        that's something that I don't know a whole lot about, I am

         14        too young to know that, but I remember talking to my dad

         15        and to my uncle who served in the armed forces and tried

         16        to pick up the pieces in Europe after it had just gone

         17        crazy.

         18             And after it was the law of the land that the final

         19        solution be implemented, horrific things, I never saw it,

         20        my uncle did, I never got a chance to see it, I'm glad I

         21        didn't, but I'm so glad things like the Holocaust Center

         22        where we will never forget the atrocities of World War II.

         23        I mean, we think of Auschwitz, we think of Sobibor and

         24        Treblinka and those things just put fear in us that, could

         25        that have happened in a civilized society?  And I would


          1        submit to you that before Hitler murdered one single Jew,

          2        his disrespect for life came with the unborn.  And let me

          3        just try to share with you historically some of the

          4        progression of what happened in Nazi Germany.

          5             First, abortion was legalized.  Next because of, and

          6        I shudder to think that maybe some of the language that

          7        was used in Roe vs. Wade, that said that the unborn is a

          8        nonperson, well, that's exactly where Hitler started.  And

          9        after it was the non-born, then it was the mentally

         10        incompetent.  And all of a sudden, the German hierarchy

         11        started to begin to tell their people when life was

         12        important.

         13             I have been silent most of the time and I learned so

         14        much and I can say looking amongst this body that I have

         15        voted with everybody on something, okay.  Not by, you

         16        know, design, but I have been able to see just a bunch of

         17        wisdom coming from this body, I really have.

         18             And my plea to you is to remember that life is so

         19        precious.  Historically the Jewish and Christian

         20        religions, those of which I am the most familiar with,

         21        have supported the idea of life at conception.  And the

         22        Old Testament Psalmist said, Behold I am fearfully and

         23        wonderfully made, in my mother's womb was I conceived.  So

         24        historically we can look back historically.

         25             I would just hate to think that I would pass on to my


          1        kids and my grandkids the legacy of having an opportunity

          2        to stand up, and I certainly don't have a lot of the

          3        persuasive skills that I have seen demonstrated in this

          4        body and I am so thankful that I have had an opportunity

          5        to be part of this.  But my plea to you would be to stand

          6        on the side of life and if we were to err, and I don't

          7        think we are erring, it is to stand on the side that

          8        protects -- that provides protection to life.

          9             CHAIRMAN DOUGLASS:  Commissioner West, I might

         10        compliment you to say that you underestimated yourself.

         11        It was a very fine presentation.  Commissioner Mathis, do

         12        you want to close?

         13             COMMISSIONER MATHIS:  Alice Walker was asked to write

         14        a brief synopsis or an article for a magazine and she had

         15        lunch with the writers and she had shared with the writers

         16        and they were discussing it back and forth and they were

         17        making suggestions on changes she should make to this

         18        writing.  And Alice was very hesitant, didn't want to make

         19        the changes.  And finally, rather than being cordial,

         20        congenial, and kind, they said, Alice, and I'm quoting

         21        here, they said, If you want us to publish your article,

         22        you have to make these changes.

         23             And she gathered together her manuscript and she

         24        stood up to leave.  And she said, Listen to me, all I have

         25        to do in life is save my soul.  Well, I have been given


          1        and you have been given the opportunity to address

          2        fundamental issues that I think save the soul of the

          3        state.  I am glad that when the Constitutions previous to

          4        ours wrote out my rights as a black woman, that nobody

          5        stood up and said, Well, our previous Constitutions, you

          6        know, we have to go ahead and go, because those guys were

          7        smart.  I remember on whose shoulders I stand.  And a lot

          8        of times that included standing against the general whims

          9        of society.

         10             But we are called to a higher purpose.  This proposal

         11        is it protects life.  Let us discuss the balance between

         12        the mother's life and the unborn child's life.  Let us not

         13        say that while this unborn child may be alive he is not a

         14        person.  Let us draw the line.  There is no line that says

         15        that any human being is not a person.  Let us state that.

         16        And I would submit to you by not saying that, we are

         17        saying the alternative.

         18             By not taking a stand for parental consent, we have

         19        made a statement.  And I say this is a strong statement to

         20        make.  Let us balance this, let us be wise and let us

         21        stand against the tides of this time and be reasonable.

         22        And I would like to give the balance of my time in close

         23        to Commissioner Connor.

         24             CHAIRMAN DOUGLASS:  Very well.  Commissioner Connor.

         25             COMMISSIONER CONNOR:  Just a brief remark directly in


          1        response to Commissioner Wetherington for whom I have the

          2        greatest admiration and respect.  I would submit to you,

          3        Commissioner Wetherington, that those of us who disagree

          4        with the court ruling under our laws and under our

          5        democratic republic, are privileged to fight for change in

          6        lawful means through the system and that's what we are

          7        seeking to do here.  This is the very kind of venue that

          8        would provoke a change that could provoke a

          9        reconsideration of the case.

         10             We have not resorted to any form of civil

         11        disobedience.  We show our respect for the Constitution

         12        and for our constitutional system by seeking to work in

         13        and through the system.  So please don't for one moment

         14        suggest that I have a frivolous view of the Constitution

         15        by seeking to overturn a Supreme Court decision which I

         16        think is fundamentally erroneous.  And I know you don't

         17        intend that to be the implication.

         18             Secondly, I would submit to you, ladies and

         19        gentlemen, that we do take a stand by our actions, and by

         20        our failure to act.  And I could not agree more with

         21        Commissioner Mathis than when she says when we have an

         22        opportunity to effect change but fail to do so, we bear

         23        some accountability for the preservation of the status

         24        quo.  I urge you to support this proposal which honors and

         25        respects life.  Thank you.


          1             CHAIRMAN DOUGLASS:  All right.  Prepare to vote.

          2        Unlock the machine.

          3             (Vote taken and recorded electronically.)

          4             CHAIRMAN DOUGLASS:  Everybody voted?  Lock the

          5        machine and announce the vote.

          6             READING CLERK:  Eleven yeas and 18 nays,

          7        Mr. Chairman.

          8             CHAIRMAN DOUGLASS:  All right.  By your vote, you

          9        have defeated Proposal 125.  Now Proposal 17 by

         10        Commissioner Riley, disapproved by the Committee on the

         11        Declaration of Rights, referred to the committee again,

         12        disapproved by the Committee on Declaration of Rights, and

         13        amended and consideration deferred on January -- to

         14        January 26.  Would you read it, please?  It's No. 17.

         15             READING CLERK:  By Commissioner Riley, on Page 1,

         16        Line 21, delete "gender."

         17             CHAIRMAN DOUGLASS:  I think we adopted that already.

         18        The title now should read, Providing that no person shall

         19        be deprived of any right because of sexual orientation; is

         20        that correct, Commissioner Riley?

         21             COMMISSIONER RILEY:  Yes.

         22             CHAIRMAN DOUGLASS:  Read it.

         23             READING CLERK:  Proposal 17, a proposal to revise

         24        Article I, Section 2, Florida Constitution; providing that

         25        no person shall be deprived of any right because of gender


          1        or sexual orientation.

          2             CHAIRMAN DOUGLASS:  All right.  The word "gender" has

          3        been stricken from that by previous amendment and it was

          4        deferred for further action today.  It was adopted

          5        according to -- right.  So we are now on the provision

          6        which is limited to, as I understand it, Commissioner

          7        Riley, providing that no person shall be deprived of any

          8        right because of sexual orientation; is that correct?

          9             COMMISSIONER RILEY:  Yes.

         10             CHAIRMAN DOUGLASS:  And you are recognized to present

         11        the amended proposal.

         12             COMMISSIONER RILEY:  Deja vu all over again.  But I

         13        will do that.  This is not an easy subject and it is

         14        something that many commissioners and people have shied

         15        away from.  Homosexuality and sexual orientation is not a

         16        party subject.  However, we know that between 10 and

         17        15 percent of the general population is, in fact, either

         18        lesbian or gay.

         19             And more than likely, those of us in this room, I

         20        guarantee you, have friends that are homosexual, may well

         21        have daughters or sons or nieces or nephews who are gay or

         22        lesbian.

         23             I gave you some facts yesterday, but let me give you

         24        a few more because I think the statistics are very

         25        disturbing.  And let me give you some on the youth.  If


          1        you think it is difficult to be a gay or lesbian adult,

          2        being a gay or lesbian youth is even worse.  And it is not

          3        something that a person, by the way, wakes up and decides

          4        one day that they are going to be a homosexual like I'm

          5        going to be an architect.  That's not a decision that a

          6        person makes.  And I think science has shown us that.

          7             I don't know why any youth would choose a lifestyle

          8        like that because statistics tell us that 30 percent of

          9        all teen suicides are gay and lesbian.  Forty percent of

         10        all homeless youths are gay and lesbian.

         11        Twenty-eight percent of all high school dropouts are

         12        homosexuals.  And 50 percent of males and 20 percent of

         13        females are harassed and assaulted in school that are also

         14        gay and lesbian.

         15             So we don't doubt that it is difficult and surely we

         16        don't doubt that there is discrimination.  The polls tell

         17        us that there is discrimination.  There is discrimination

         18        in employment, there is a whole variety of areas.  In

         19        employment, I gave you some statistics yesterday, that

         20        tell us that over 75 percent of men and women who are

         21        homosexuals hide the fact because they know that they will

         22        be discriminated against in their workplace.  They will be

         23        fired, they can be fired.  They will not get a promotion,

         24        they can -- though they don't have to get a promotion,

         25        they can be discriminated against.


          1             There is discrimination in housing.  As of today,

          2        there are 19 states that have executive orders or

          3        legislation on the books that protect gays and lesbians

          4        against discrimination, Florida is not one of those

          5        states.

          6             However, there are in our state nine counties or

          7        municipalities that do have ordinances or codes that

          8        prevent discrimination in employment and in housing.  And

          9        there is another area of discrimination that gets a great

         10        deal of discrimination, another area, and that's in the

         11        family life.  You don't have an opportunity to adopt, more

         12        than likely, if you are gay or lesbian.  And if you happen

         13        to have children, you have a very high risk of losing

         14        those children if you declare that you are a gay or

         15        lesbian.

         16             You may have heard of the case of Mary Ward in

         17        Pensacola.  She was married and had a young daughter who

         18        was seven years old and she was divorced.  And her

         19        husband, ex-husband, sued for custody of the

         20        seven-year-old daughter because Mary Ward was in a loving

         21        and lesbian relationship.

         22             That fact didn't make any difference to the judge

         23        when he awarded custody of the seven-year-old to the

         24        father because he said that child should grow up with

         25        other options.  The father had been convicted of murder,


          1        he had shot a previous wife six times, reloaded his gun,

          2        shot her six more times, went to prison, and when he came

          3        out at some point in his future, he got custody of his

          4        daughter because he had a more acceptable home life.  I

          5        question that that's very fair.

          6             And let me address just briefly the same-sex marriage

          7        issue because that's going to be a question.  And I am not

          8        sure what putting sexual orientation in as the protected

          9        class in the Constitution is going to do.  I would suggest

         10        that will be tested in court.  If that's a problem to you,

         11        I would ask that you look back at all of the proceedings

         12        that we have had since the 16th of June, and I'm not a

         13        lawyer, but everything I hear, it often comes down to a

         14        decision by the courts.

         15             So many things that we have decided and so many

         16        things that we have debated the bottom line is it is a

         17        question, what exactly is that going to mean, it has got

         18        to be decided by the courts.  So does it mean same-sex

         19        marriages, I don't know.  That's a decision for the

         20        courts.  And I know that that's an issue with some people.

         21             But I would suggest that that is not a reason to keep

         22        some protection for an extremely vulnerable group of

         23        people that live in our state and I would ask you to

         24        support putting sexual orientation in as a protected class

         25        on that last line in Section 2 of Article I.  Thank you.


          1             CHAIRMAN DOUGLASS:  All right.  Commissioner

          2        Wetherington?

          3             COMMISSIONER WETHERINGTON:  I think the first thing I

          4        want to observe is exactly what the proposal is.  This is

          5        a proposal that says, and simply says, that the government

          6        cannot discriminate against persons because of sexual

          7        orientation.  It doesn't go beyond that, it is not a

          8        statute, it doesn't regulate all the areas of housing and

          9        employment or any of those other important issues.  It is

         10        as it stands a specific limitation as it applies to other

         11        classes that are defined in the Constitution.

         12             So the question then is a simple one.  The question

         13        is whether the government should discriminate against any

         14        group of people and it is any firm conviction that the

         15        government shall not discriminate against any group of

         16        people and if there is one place that we have got to agree

         17        on, and our history has shown us, is a tremendous

         18        importance to where the government is concerned, we have

         19        got to all be treated in an equal manner.

         20             And I think that regardless of what people's views

         21        may be about a given minority, that's not the point.  The

         22        point is that we are all persons in this county, we are

         23        all entitled to be protected by the laws, we are all

         24        entitled to be treated equally by our government and none

         25        of us should be discriminated against by the government.


          1             CHAIRMAN DOUGLASS:  Commissioner Morsani?

          2             COMMISSIONER MORSANI:  I'm rising in opposition, am I

          3        in order?

          4             CHAIRMAN DOUGLASS:  I think Commissioner Freidin

          5        wants to speak for --

          6             (Off-the-record comment.)

          7             CHAIRMAN DOUGLASS:  Go ahead, Commissioner Morsani.

          8             COMMISSIONER MORSANI:  Thank you, Commissioner

          9        Freidin.  I happen to think we already have too many

         10        exemptions in that, you know, I really think we have

         11        covered so much of this when we included -- which I was

         12        100 percent for -- when we went female and male and which

         13        you call it whatever we want, in Article I, and I

         14        certainly am 100 percent in support of that.

         15             However, what is going to be the next group of people

         16        that we are going to select in society that we must call

         17        out to, quote, protect?  We recently, in our last two or

         18        three votes, we decided some that we weren't going to

         19        protect as groups and suddenly we want to identify another

         20        group of people though that deserve to be protected or

         21        should be called out in our Constitution.

         22             I disagree with some of the conclusions, Commissioner

         23        Riley, with all due respect, I am a small employer and

         24        many of you know this, and now we have about 300 people,

         25        but we do have homosexuals, both male and female in our


          1        employment.  They have been promoted.  They have not been

          2        discriminated against at any time either during their

          3        employment process or in their employment.

          4             And also, I guess it is hard to bring up -- another

          5        family situation -- but we have two men in our family who

          6        are homosexuals.  Unfortunately one of them at 40 years

          7        old died of AIDS two areas ago and it was a very

          8        unfortunate thing in our family.  And yet we always had

          9        family reunions and he was included.  In fact, another

         10        gentleman who happens to be -- I used to baby-sit for him,

         11        so he is a few years younger than I am, but he's about 55,

         12        and he is a homosexual.

         13             A dear man, a good friend, who is also currently

         14        doing genealogy, am I using the word correctly, for my

         15        family and so on and so forth, and he does that.  He is an

         16        artist, he is a very accomplished gentleman in Tucson,

         17        Arizona.

         18             There has been no discrimination in our family of

         19        these two men.  And we are good friends, as a matter of

         20        fact.  Strange as it may seem, we discussed this matter.

         21        I believe if he was in this room he would say these are

         22        not issues, that these are bygone issues.  Now, I know

         23        that Mr. Smith even would disagree with me on the race

         24        issue, maybe, but that's okay.  But I do think we have to

         25        look to the future and not the past, that's where I


          1        disagree sometimes with my dear friend Mr. Smith.

          2             Because what we have today and what tomorrow is going

          3        to bring is entirely different.  We are still in the lynch

          4        mob basis, we are not a lynch mob in this society today.

          5        Why we are continuing to raise issues with people amazes

          6        me that we are not looking at the future, we are not

          7        looking at 20 years out.  We are not looking at the laws

          8        that have been adjudicated by our Supreme Court and by our

          9        local courts and by the fact that we do have case law to

         10        govern our jurisprudence and our rules and regulations

         11        there in this nation.

         12             We don't need to have another exemption in our

         13        Constitution.  And Commissioner Riley, I think you are

         14        right.  I think you are so right when you said what would

         15        this precipitate in the future.  And I guarantee you it

         16        would do a lot.

         17             You know, I'll tell you a quick story in business.  I

         18        did own a big truck dealership, Kenworth dealership, and

         19        one day I got a letter in the mail from the Social

         20        Security Administration that said that one of our

         21        employees was changing their name and his name was T-O-N-Y

         22        and the new name was T-O-N-I-E.  And so we said, Well,

         23        what do we have here?  As I said, I have been around the

         24        world a few times and to a few quilting bees but I never

         25        had to handle a problem like this before.


          1             So I called my legal counsel and they said, Please,

          2        don't call us again because we don't know what to tell you

          3        to do.  So what did we do in this situation?  This

          4        gentleman who is one of our mechanics, and he was a very

          5        good mechanic, he had been promoted on a regular basis,

          6        been given merit increases and was well thought of in our

          7        company, happens to be still well thought of.  But he was

          8        going to have a sex change.  And after we got that notice

          9        we called him in and said, We don't know how to address

         10        this in our company, but would you please help us address

         11        this issue?

         12             And he said, Well, I am going, I am getting my

         13        hormone shots and so on and so forth and then I'm going to

         14        have a sex change operation.  Well, now he said, I want to

         15        have a meeting and tell all the employees.  I had 127

         16        people in that company and so he held a meeting and he

         17        told all the employees what was happening.

         18             Well, now, ladies and gentlemen, if you have never

         19        been around a bunch of truck drivers and a bunch of

         20        mechanics and go out there with all the skilled and

         21        unskilled labor, you haven't lived real well yet.  If you

         22        want an experience.  So now then what do we do, we said.

         23             So now then all of a sudden the men don't want him in

         24        their rest room, and the women don't want him in their

         25        rest room.  So I spent $10,000 to build him a rest room


          1        and then he didn't want to use that rest room.  You talk

          2        about problems in sexual orientation, you never

          3        experienced them until you experience that.

          4             Now, I tell you that story because it was a very

          5        painful.  It was certainly painful for this man who later

          6        became a woman.  And he and I discussed it and we said,

          7        How can we help you?  And we really were serious, How can

          8        we help you?  How do you get over this?  If you have never

          9        gone through that process, you have not -- you don't know

         10        how to explain it.  You don't know how to handle it.

         11        There is no advice, there is not a psychologist or a

         12        psychiatrist or anyone that can help a poor old country

         13        boy used car dealer how to get over that problem.  And I

         14        don't think all of you in this room would get much help

         15        either regardless of your intellect.

         16             I don't think we need another -- to put another class

         17        of protection in our Constitution.  We need to look at the

         18        future and let's have some vision.  It is changing.  I

         19        don't agree that there is discrimination, broad-based,

         20        certainly there is always going to be discrimination.  It

         21        wasn't very long ago in Boca Raton County Club no Jews

         22        could become a member, that was terrible discrimination.

         23             I belonged to a men's -- no, pardon me, that's not

         24        true.  There was a men's club in Tampa, Florida called the

         25        University Club that I was invited to join and this was


          1        back in the '70s.  And so I will tell you I refused to

          2        join because it didn't have women, it didn't have blacks.

          3             I stood up for our rights.  Today that club has women

          4        and has blacks and has Jews as it should.  So why are we

          5        living in the past, ladies and gentlemen, with these kinds

          6        of proposals?  I urge you to vote against this proposal.

          7        It is not in the best interest.  We don't need it.  We

          8        don't need these kinds of changes in the Florida

          9        Constitution.

         10             CHAIRMAN DOUGLASS:  Commissioner Freidin?

         11             COMMISSIONER FREIDIN:  I agree with Commissioner

         12        Morsani.  We do need to look to the future and that's why

         13        this proposal should receive your favorable consideration.

         14        Because this is the first time that this has ever been

         15        discussed to my knowledge on the floor of a Constitution

         16        Revision Commission.  This is the wave of the future.

         17             The gay and lesbian community is experiencing, and

         18        has experienced for years, dramatic discrimination.  And

         19        the reason it hasn't been discussed before is because it

         20        is only in the last 20 years that the gay and lesbian

         21        community has been willing to and brave enough to come out

         22        and express to other people that they are gays and

         23        lesbians.  And that's why this is an issue for today and

         24        for the next 20 years, just as adding religion and race

         25        into our Constitution were issues for days past.


          1             You know, when I was growing up in Miami Beach,

          2        Florida, my father-in-law played the piano in hotels, my

          3        father-in-law is Jewish and my father-in-law would go to

          4        work in the evening and he would walk through a door that

          5        on the front door of the hotel said, "No Jews.  No dogs."

          6             Now, today, those signs aren't there and we are not

          7        going to take our protection for -- against -- abridging

          8        rights on the basis of religion out of the Constitution,

          9        but what we need to examine is the fact that when that was

         10        happened, which I'm not going to say how many years ago

         11        that was because I have already said it was when I was a

         12        little girl, but when that was happening, it wasn't

         13        considered to be something that anybody really wanted to

         14        do anything about.  It required a movement of the people

         15        of the state of Florida to understand the issue.  And

         16        that's really what we are talking about here.

         17             Now, Commissioners, when Chairman Douglass introduced

         18        this proposal, he mentioned that it had been disapproved

         19        by the Declaration of Rights Committee, that it had come

         20        to the floor and it had been re-referred to the

         21        Declaration of Rights Committee and I want to give you an

         22        explanation of why because I want to challenge each of you

         23        to go through the process that I went through when I made

         24        the motion to have it reconsidered at the Declaration of

         25        Rights Committee because I voted in favor of an


          1        unfavorable recommendation, I am now sorry to say, and was

          2        sorry immediately after I did it, but I voted against this

          3        proposal at the committee level and I want to talk to you

          4        about why I did that.  And I want to talk to you about the

          5        process that I've gone through since the time that I did

          6        that.

          7             I voted -- at the time I voted, I made a statement

          8        that while I favored rights for gays and lesbians, that I

          9        felt that this wasn't something that we should put in our

         10        Constitution now because perhaps it would be too

         11        controversial.  I was harking back to all the wisdom that

         12        was imparted upon us when we started our process here back

         13        in June about don't do any lightning rod issues.  Don't

         14        put anything out there that might bring out all the nay

         15        naysayers.  Don't put anything out there that the people

         16        of Florida will react violently against because that will

         17        ruin everything else.

         18             And I heard a lot of discussion about that today and

         19        I think it was very appropriate that we've had that

         20        discussion on issues that are a little bit less emotional

         21        than this one.  So I fell into that and I voted, no.  And

         22        I went home and I read in the paper the next morning what

         23        I had done.  And I didn't like the way it looked.

         24             I felt ashamed of myself because I felt that I had

         25        not stood up for what I knew in my heart of hearts was


          1        right and then the calls and letters started coming.

          2        There were even letters to the editor of the Miami Herald

          3        about this.  About how could the Constitution Revision

          4        Commission take the position that this is too politically

          5        difficult, that this is too politically controversial to

          6        even deal with.

          7             And so I started thinking further and then I started

          8        talking to people who called me and said, I am gay, I am

          9        lesbian, let me talk to you about this issue.  And these

         10        people expressed to me discrimination that was very, very

         11        difficult for me to listen to because it was so clear that

         12        the pain that they experience on a day-to-day basis was so

         13        deeply felt and so unremitting that their lives are almost

         14        impossible to live.

         15             It was pointed out to me that gay and lesbian

         16        teenagers have the highest rate of suicide and one might

         17        ask, why?  And that goes along with one of the things that

         18        I have heard as an argument against this proposal.  I have

         19        heard it said that we shouldn't grant special rights to

         20        people who choose a lifestyle.  And I asked some of the

         21        people that had called me about that, Well, how do I

         22        answer that?  What do I say about that?  And then a person

         23        looked at me and said, Ellen, who would ever choose this

         24        lifestyle?  This is a very, very difficult thing to be.

         25             Everybody wants to be like everybody else.  Everybody


          1        wants to be the same.  Nobody wants to be different.

          2        People don't want to be singled out.  This is not a matter

          3        of choice.  This is a matter of something that you have

          4        when you are born and there is not probably a good

          5        scientific explanation for it although there are some

          6        genetic studies that support the fact that it is genetic,

          7        but I don't think that they are conclusive.

          8             I think, Commissioners, that there is not a single

          9        person in this room who wants to see discrimination in the

         10        state of Florida.  I think that we need to be very clear

         11        on what this proposal does.  This proposal doesn't say

         12        that if you own a restaurant that you can't discriminate

         13        in your hiring.  This proposal simply says that the

         14        government can't discriminate in hiring.

         15             There are cases, there are reported legal cases,

         16        there is case after case that I'm aware of, in which the

         17        government of our state, and our local governments, other

         18        states discriminate against people on the basis of the

         19        fact that they are known to be either gay or lesbian.  We

         20        owe it to the people of our state to be sure that there is

         21        no discrimination.

         22             You know, I think that you might be surprised, by the

         23        way, if you put this out there.  Most people and even, I

         24        will tell you this, in having conversations on this

         25        subject with other members of the commission, there are


          1        even members of the commission who are lawyers in this

          2        room that did not know that gay people are not protected

          3        against discrimination in employment and are not protected

          4        against discrimination in housing where the two -- which

          5        seem to be the two areas in which most of the

          6        discrimination arises.

          7             But I think that you may be surprised that when

          8        people are told that there are no laws except in very few

          9        local areas, that there are no general Florida Statutes or

         10        the Constitution doesn't -- when people are told there are

         11        no laws that protect gay people from discrimination,

         12        according to three different polls that I have read, one

         13        done by Time magazine, one done by Yanklovich Skelly, and

         14        another one done by Greenberg Research, Inc., all of them

         15        say that around 70 percent of the Americans say that

         16        people -- that gay and lesbians should be protected in

         17        housing and employment against discrimination.

         18             There are ten states -- if we were to put a

         19        protection against governmental discrimination in our

         20        Constitution to protect people on the basis of sexual

         21        orientation, we would be in the good company of ten states

         22        and the District of Columbia in which all kinds of

         23        terrible things haven't happened in those other states.

         24        You know that our structure of government is based on the

         25        premise that the more you know about a subject the more


          1        you can talk about the subject, the more you can learn

          2        about the subject, the better decision-making process

          3        there is and that's how we arrive at the truth.  That's

          4        what's called the marketplace of ideas.

          5             I would submit to you that we should advance this

          6        proposal now, that we should let the people of the state

          7        of Florida talk about it.  And the reason that I think we

          8        should do that is because I think in our heart of hearts

          9        most of us feel that it's just right.  I commend to you

         10        this proposal and I hope you will vote favorably.

         11             CHAIRMAN DOUGLASS:  All right.  Commissioner Brochin?

         12        How many more proponents are we going to have?  Raise your

         13        hand if we're going to have more.  And how many opponents?

         14        Okay.  Go ahead.  It's getting late in the day.

         15             COMMISSIONER BROCHIN:  Actually, I don't rise as a

         16        proponent.  I actually don't rise as an opponent and I

         17        don't rise with any questions.

         18             CHAIRMAN DOUGLASS:  You just rise.

         19             COMMISSIONER BROCHIN:  Well, I'm actually rising --

         20             CHAIRMAN DOUGLASS:  You're tired of sitting.  We

         21        understand.

         22             COMMISSIONER BROCHIN:  No, I actually rise and hope

         23        that as I speak I can clarify in my mind which way to vote

         24        on this issue.  And the way I want to do that is try to

         25        put this in some constitutional context.  Commissioner


          1        Wetherington is correct.  Government should not and, in

          2        fact, does not discriminate based on anything.  It

          3        shouldn't discriminate against anyone.

          4             Section 2, the first sentence that's already in the

          5        Constitution, tells us that all natural persons are equal

          6        before the law and have inalienable rights.  I differ in

          7        the sense that we have now added women to the list.  In

          8        deed, we have not.

          9             What we have done and what we have is a list, before

         10        we started with this Constitution, of three categories at

         11        the end of Section 2 that our Constitution specifically

         12        identifies as groups of people that no person shall be

         13        deprived of any right because of, and we've listed three

         14        categories, race, religion, and physical handicap.  This

         15        commission has not added women to that list.  This

         16        commission has added national origin.

         17             So as it stands now, we believe that there are four

         18        categories of people who deserve special mention and

         19        somehow should be afforded that right to be mentioned in

         20        our Constitution such to the extent that they shall not be

         21        deprived of any right.  So the question for me and I

         22        believe the question for us is, do we add sexual

         23        orientation to that list?

         24             And I have struggled and spoke about and discussed

         25        the ones that are on the list when we came, and now by


          1        adding national origin, what is it about those categories

          2        that are in common?  What is it that allows them to be

          3        mentioned?

          4             I would suppose historically there would be some form

          5        of deep-rooted discrimination in the past because

          6        discrimination goes on day in and day out.  It could be

          7        because you're overweight, or underweight, you have blonde

          8        hair, brown hair, we're not trying to eliminate

          9        discrimination, we're trying to pick categories where the

         10        discrimination has been so infectious in the past that we

         11        want our Constitution to protect them.

         12             We also want to be sure that it is some

         13        characteristics that people want to exercise freely such

         14        as religion or characteristics that they can't change,

         15        their color.  But it also includes physical handicap,

         16        something they may not have been born into, but may have

         17        had some event change their life.  Now, I cannot conclude

         18        that people of sexual orientation are not discriminated

         19        against, that would be dishonest.

         20             People of different sexual orientation, I have to

         21        conclude, as a group of people suffer great

         22        discrimination.  They are subject to that because they are

         23        indeed different.  And for us to say otherwise, I think

         24        would not be very honest with ourselves.

         25             I also have to agree and conclude that this is not a


          1        lifestyle or characteristic that one chooses to be and

          2        thus also adds to the element of adding it to that list.

          3        So the question I have is, is the discrimination so deep

          4        rooted in our state not only past which should be

          5        considered, but in the future that we should add it to

          6        that list.  And as I've risen to speak, I have not

          7        convinced myself either way but want to somehow place this

          8        into some constitutional context as we decide this very

          9        critical issue.

         10             CHAIRMAN DOUGLASS:  Commissioner Sundberg?  I don't

         11        know that anybody has addressed the subject of what sexual

         12        orientation means.  And the proponents might want to tell

         13        us that.

         14             COMMISSIONER SUNDBERG:  I do not rise to define

         15        sexual orientation, I think it's sort of like pornography.

         16        I think we know it when we see it.  I rise simply to -- I

         17        was going to say all the things that Commissioner Brochin

         18        said and that is that clearly I don't think there can be

         19        any question that people don't have a choice about sexual

         20        orientation any more than they have a choice about their

         21        color or their gender or their national origin.  People

         22        are Eskimos because they are born to Eskimo parents.  They

         23        are Native Americans because they are born to Native

         24        American parents.  They don't have any choice about that.

         25        Are they discriminated against?


          1             Commissioner Brochin has said if we're being honest

          2        with ourselves, and this is not something that's been late

          3        blooming, I mean, as long as I can remember, we've all

          4        been party to the jokes and the exclusion of people who

          5        had a different sexual orientation.  So we come down and

          6        Commissioner Brochin says, Well, is it so deep rooted that

          7        it deserves mention in our Constitution?  And,

          8        Commissioner Brochin, I say to you when a circuit judge of

          9        this state makes a decision with respect to child custody

         10        that would overcome a record of murder convictions then it

         11        has to be, in my estimation, so deep rooted in our society

         12        that, yes, indeed, it does deserve mention in our

         13        Constitution.

         14             CHAIRMAN DOUGLASS:  Commissioner Barton?

         15             COMMISSIONER BARTON:  Since the question has been

         16        raised, I had made some notations here for myself about

         17        what sexual orientation meant because I'm honestly not

         18        quite sure.  But I felt pedophilia was a sexual

         19        orientation.  I think people who rape as a way of sexual

         20        expression, that's sexual orientation.  Maybe a Peeping

         21        Tom has a sexual orientation or someone who has a penchant

         22        for exposing himself or herself.  I'm very concerned about

         23        what does sexual orientation mean.

         24             I'd like to add too, one of my best friends happens

         25        to be a lesbian and she became one later in life, I guess,


          1        because she was married, she has two children.  I don't

          2        think that putting this in the Constitution is going to

          3        alleviate the discrimination that some people show toward

          4        her because of their own bias, nor do I think it's going

          5        to change her life in any way to add that to the

          6        Constitution.

          7             I wish her well, I wish that all -- well, in fact,

          8        why don't we just say lesbians and homosexuals.  Why do we

          9        have to have politically correct language if that is,

         10        indeed, who we are trying to protect with this particular

         11        addition to the Constitution.  For that reason and because

         12        of the questions that I have about what it means, I am

         13        going to vote against it.

         14             COMMISSIONER FREIDIN:  If I may just respond on this

         15        question of, Does this include pedophilia and Peeping Toms

         16        and that sort of thing, those are criminal acts and this

         17        does not -- I don't think that any court or any legal mind

         18        would include the commission of a crime in this suggestive

         19        provision.  All this says is a right can't be denied.  But

         20        people don't have a right to commit any kind of crime.

         21             CHAIRMAN DOUGLASS:  All right.  Further debate?  If

         22        not -- Commissioner Connor?

         23             COMMISSIONER CONNOR:  Mr. Chairman, I rise in

         24        opposition to the proposal and I don't think we ought to

         25        kid ourselves about the potential impact when we say,


          1        Well, I don't know what the courts would be likely to do

          2        if we include this in the Constitution or not.  I do think

          3        we can gather good insights about what is likely to happen

          4        based on cases in other jurisdictions and based on the

          5        provisions of our own state Constitution.  I would tell

          6        you that I think you should understand that if you include

          7        this provision in our state Constitution it is likely to

          8        transform our culture.  You have to decide whether or not

          9        you agree with the kind of transformation that will take

         10        place.

         11             I think the probabilities are overwhelming, for

         12        instance, that it would legitimize homosexual marriage in

         13        the state.  The Supreme Court of the state of Hawaii

         14        concluded based on the inclusion of gender as we spoke

         15        about earlier in this list of protected classes when you

         16        applied that explicit provision and applied it to the

         17        jurisprudence that related to equal protection under the

         18        Federal Constitution that there was a presumption against

         19        the state law that limited marriage to heterosexual

         20        marriages.

         21             And I think if you take this language and you read it

         22        in light of Article I, Section 23, our explicit privacy

         23        provision, that you ought to conclude that more probably

         24        than not the effect of this provision will be to provide a

         25        license or a sanction for same sex marriages.  The same


          1        would be true, I think, for adoption.  We've had a state

          2        law that has prohibited adoption by same sex couples.

          3        Let's not kid ourselves about what the prospective

          4        implication of this would be.  So I don't think we ought

          5        to hide behind this, Golly, gee whiz, I don't know what

          6        the Court would do.  I think we have a rational basis for

          7        assessing what the likely result would be.

          8             And I dare say that's an intended result of, if not

          9        the sponsor of the proposal, those who are advocates

         10        outside of this body of the proposal who think it would be

         11        good public policy for us to authorize same sex marriages.

         12        That it would be good public policy to authorize adoption

         13        by same sex couples of children.

         14             Now if we affirm that, ladies and gentlemen, I would

         15        submit to you that is a dramatic change in the landscape,

         16        it's a dramatic change in the role of marriage, it's a

         17        dramatic change in the nature of the family unit.  There

         18        are all kinds of additional implications that may flow out

         19        of that with respect to insurance laws, with respect to

         20        inheritance laws and things of that nature.

         21             I would submit to you that when private acts have

         22        adverse public consequences society has a legitimate

         23        interest in protecting the public from those consequences.

         24        We all know that by way of history, for example,

         25        homosexual sodomy accounts for more than half the AIDS


          1        cases in our state.  That has a tremendous impact on

          2        health care.  It has a tremendous impact on public health.

          3        And let's not kid ourselves about the significance of that

          4        and the implications of it.

          5             We know from the experience of those who study life

          6        tables and life expectancies that, at least according to

          7        one sociologist, a fellow by the name of Paul Cameron, he

          8        has reported that while the median age of death of married

          9        American males was 75, for homosexual American males it

         10        was 42.  For homosexual males infected with AIDS virus it

         11        was 39.  We know that it typically costs well over

         12        $100,000 to treat an AIDS patient from diagnosis until the

         13        ultimate terminal event.

         14             Ladies and gentlemen, those are significant

         15        interests, I would submit to you, that the public has in

         16        this regard.  When you pass this provision, if you pass

         17        this provision, what it does is what we've talked about

         18        earlier, it creates a new standard of review by courts for

         19        our laws.  You must demonstrate a compelling state

         20        interest and you must demonstrate that the law was

         21        narrowly tailored to accomplish that compelling interest.

         22             So let's not kid ourselves about what we're talking

         23        about.  If you affirm these notions that we should extend

         24        marriage to same sex couples, adoption to same sex

         25        couples, that we should extend the affirmation of the


          1        state to these relationships in the same way we have

          2        traditionally to marry the heterosexual relationships,

          3        then you ought to affirm the proposal.

          4             If you don't, if you think the State has a legitimate

          5        interest in making these distinctions, then I would

          6        suggest to you that you want to examine very, very

          7        carefully whether or not you want to take what is more

          8        than a small step.  This is a giant leap and I think you

          9        simply ought to be aware of and appreciate in its totality

         10        the nature of the consequences that are associated with

         11        it.

         12             And I would submit to you, ladies and gentlemen, that

         13        it isn't necessarily limited to state action issues.

         14        Article I, Section 2, last sentence, says, No person shall

         15        be discriminated against on the basis of.  I guarantee you

         16        there are a lot of folks who may be affected by laws

         17        relating to housing, employment, or whatever who have

         18        moral or religions scruples that affect the decisions that

         19        they make -- that they feel they are entitled to make --

         20        under the First Amendment freedom of association.

         21             So I think you need to understand that this may well

         22        go beyond the arena of what we typically perceive as state

         23        action.  This is a dramatic change in the landscape, let's

         24        acknowledge that honestly and let's address the issue

         25        head-on.


          1             CHAIRMAN DOUGLASS:  All right.  To close,

          2        Commissioner Riley.

          3             COMMISSIONER RILEY:  Commissioners, I want a world of

          4        Frank Morsani's, that's what I want.  I want all of the

          5        employers in the state of Florida to have the kindness in

          6        their hearts to do the things that Frank Morsani has done,

          7        but that's not the case so let's not pretend that that's

          8        the case.

          9             I would like the Constitution that in the last

         10        sentence of Section 2, it simply reads, No person shall be

         11        deprived of any right.  No person shall be deprived of any

         12        right.  No heightened scrutiny, no need for adding race,

         13        religion, national origin, sexual orientation, gender, but

         14        that's not reality either.  Is this going to change the

         15        world for Commissioner Barton's friend, no.  Is this going

         16        to stop discrimination against gays and lesbians, no.  No

         17        more than adding race to stop discrimination for

         18        African-Americans and people of other colors, no.

         19             Will it help fight discrimination, yes.  Does it

         20        exist, yes.  In 1994 Barry Goldwater said, and I quote,

         21        Discrimination against gays and lesbians is real.  It

         22        happens every day.  I am a conservative Republican and the

         23        conservative movement was founded on the simple tenent

         24        that people have a right to live life as they please as

         25        long as they don't hurt anyone.  Doing the right thing


          1        takes guts and foresight but that's why we're here, to

          2        make tough decisions that stand the test of time.

          3             I think it's that time.  I think this is a tough

          4        decision and I would ask that we have integrity, fairness,

          5        tolerance and decency, acknowledge the fact that there is

          6        discrimination, acknowledge the fact that it does need to

          7        be acknowledged and vote for this proposal.  Thank you.

          8             CHAIRMAN DOUGLASS:  Thank you, Commissioner Riley.

          9        Now we'll prepare to vote.  Unlock the machine.

         10             (Vote taken and recorded electronically.)

         11             CHAIRMAN DOUGLASS:  Has everybody voted that's

         12        present in the room?  Unlock the machine and announce the

         13        vote.

         14             READING CLERK:  Fourteen yeas, 16 nays, Mr. Chairman.

         15             CHAIRMAN DOUGLASS:  Let me compliment all of you on a

         16        very orderly and informative debate on a very sensitive

         17        and difficult subject.  I can assure you whoever said if

         18        you put this on the ballot it would turn them out, we'd

         19        have a big turnout on the election.  Because it is a

         20        controversial and sensitive subject and it was well

         21        debated and well presented by both sides.  We're going to

         22        take a recess until 4:00 on that clock and be right back

         23        in here and get going again.  But I think we need to take

         24        a break here.  We're going to take up Proposal No. 2 by

         25        Commissioner Sundberg immediately upon coming back.


          1        Commissioner Sundberg, did you understand that?

          2             COMMISSIONER SUNDBERG:  Yes, sir.

          3             (Brief recess.)

          4             SECRETARY BLANTON:  Quorum call.  All commissioners

          5        indicate your presence.  All commissioners indicate your

          6        presence.  Quorum present, Mr. Chairman.

          7             CHAIRMAN DOUGLASS:  Take your seats, please.

          8        Proposal No. 2 by Commissioner Sundberg.  Approved by the

          9        Committee on Declaration of Rights consideration deferred

         10        to January 26th.  Would you read it, please?  We have a

         11        new reader.

         12             READING CLERK:  Proposal 2, a proposal to revise

         13        Article I, Section 2, Florida Constitution; providing for

         14        citizens to enjoy equal opportunity to employment,

         15        housing, public accommodations, public education and other

         16        benefits and authorizing governmental agencies to take

         17        actions to remedy the effects of past discrimination in

         18        certain areas.

         19             CHAIRMAN DOUGLASS:  Commissioner Sundberg, you're

         20        recognized on your proposal.

         21             COMMISSIONER SUNDBERG:  Mr. Chairman, I would like to

         22        move an amendment.  There should be an amendment on the

         23        desk.

         24             CHAIRMAN DOUGLASS:  There is an amendment on the desk

         25        and it's moved.  Would you read it, please?


          1             READING CLERK:  By Commissioner Sundberg on Page 1,

          2        Lines 25 through 28, delete the words, all citizens shall

          3        enjoy equal opportunity to employment, housing, public

          4        accommodations, public education and other benefits of

          5        citizenship.

          6             CHAIRMAN DOUGLASS:  All right.  Does everybody

          7        understand the amendment?  We're on the amendment.

          8        Commissioner Sundberg on the amendment.

          9             COMMISSIONER SUNDBERG:  Mr. Chairman, I do not intend

         10        to -- I don't see Commissioner Connor and I wanted his

         11        affirmation --

         12             CHAIRMAN DOUGLASS:  He is here.

         13             COMMISSIONER SUNDBERG:  -- with his approval.  We

         14        debated this at length during our last gathering.  We

         15        temporarily passed it because of some concerns that

         16        Commissioner Connor had.  We met this morning and this

         17        amendment represents our attempt to address those

         18        concerns.

         19             CHAIRMAN DOUGLASS:  Commissioner Connor is in the

         20        chamber now.

         21             COMMISSIONER SUNDBERG:  Commissioner Connor, I was

         22        speaking to the amendment that we're deleting that the --

         23        the sentence that says, "Also shall enjoy equal

         24        opportunity," because of your concerns.  And so we recur

         25        back then to where we were having eliminated that if there


          1        were any -- and I think some of the concerns that

          2        Commissioner -- I don't want to put words in his mouth --

          3        but I think some of his concerns were that this language

          4        might increase the breadth of the reach of this

          5        constitutional provision beyond those people -- pardon me,

          6        beyond the classes that have been traditionally identified

          7        as protected classes.

          8             So we did remove that and, in fact, the last vote, I

          9        think, makes it crystal clear then that there are no

         10        hidden balls here, that this is only intended to address

         11        those traditional protected classes when it comes to

         12        affirmative action.  So with that, I'm prepared to move

         13        forward with the vote.

         14             CHAIRMAN DOUGLASS:  We're on the amendment before we

         15        go on the other.  Now what the amendment does, as I

         16        understand it, tell us again because I think I understand

         17        that it deletes everything and substitutes on Lines 25

         18        through 28 and substitutes the words, All citizens shall

         19        enjoy equal opportunity to employment, housing, public

         20        accommodations, public education and other benefits of

         21        citizenship.

         22             COMMISSIONER SUNDBERG:  It deletes that language.

         23             CHAIRMAN DOUGLASS:  It adds that, doesn't it?

         24             COMMISSIONER SUNDBERG:  No, it deletes that language

         25        and what it does then -- what it does, essentially,


          1        Mr. Chairman, is delete that sentence and the rest of the

          2        language in the proposal remains the same.  In other

          3        words, the language with -- specifically referring to

          4        affirmative action remains the same but it deleted that

          5        sentence.

          6             CHAIRMAN DOUGLASS:  So what I read, this amendment

          7        would delete; is that correct?

          8             COMMISSIONER SUNDBERG:  Exactly.  It would delete

          9        that sentence and otherwise it remains the same.  And it

         10        also has a title amendment to clear it up.

         11             CHAIRMAN DOUGLASS:  All right.  Commissioner Freidin,

         12        you rise on the amendment.

         13             COMMISSIONER FREIDEN:  Yes, a question.

         14             CHAIRMAN DOUGLASS:  Okay.

         15             COMMISSIONER FREIDEN:  Commissioner Sundberg, how

         16        does this amendment impact women?

         17             COMMISSIONER SUNDBERG:  It impacts them not at all as

         18        I see it.  Negatively you mean?

         19             COMMISSIONER FREIDIN:  Yes.

         20             CHAIRMAN DOUGLASS:  State the question, I'm not sure

         21        I heard it.

         22             COMMISSIONER SUNDBERG:  That has already been

         23        addressed by another amendment.  Have we not already said

         24        all natural persons, male and female alike, so that's --

         25             COMMISSIONER FREIDIN:  With this amendment this


          1        doesn't change that?

          2             COMMISSIONER SUNDBERG:  Doesn't change that one whit,

          3        no.

          4             CHAIRMAN DOUGLASS:  All right.  Anybody else on the

          5        amendment?  All in favor of the amendment say aye.

          6        Opposed?

          7             (Verbal vote taken.)

          8             CHAIRMAN DOUGLASS:  Carried.  Now to the main

          9        proposal as amended with that language deleted.

         10             COMMISSIONER SUNDBERG:  For all of the reasons that

         11        were expressed when we initially addressed this issue, and

         12        keeping in mind that this is narrow in its scope in that

         13        it seeks only to authorize governmental agencies, the

         14        state and its agencies and educational institutions, it

         15        authorizes them to put in place affirmative actions which

         16        will address only current -- the present effects of past

         17        discrimination.

         18             That is a rather high standard as it has been

         19        interpreted by the federal courts.  It requires a clear

         20        showing in a record that there has been past

         21        discrimination and that, in fact, the effects of those

         22        past discriminations continue forward.

         23             And it applies to women and any other traditional

         24        class who in the past have been discriminated against and

         25        it provides for Commissioner Freidin the sort of thing,


          1        the women set-asides, and that sort of thing.  And all

          2        this does is permits and places in our Constitution the

          3        guarantee that governmental agencies may continue to do

          4        that which they are doing right now.

          5             CHAIRMAN DOUGLASS:  Commissioner Lowndes, you are

          6        recognized.

          7             COMMISSIONER LOWNDES:  I'd like to ask Commissioner

          8        Sundberg a question.

          9             CHAIRMAN DOUGLASS:  He yields.

         10             COMMISSIONER SUNDBERG:  I yield.

         11             COMMISSIONER LOWNDES:  Does this change existing law?

         12        Does this add or give people the authority to do things

         13        they can't do now?

         14             COMMISSIONER SUNDBERG:  No, it does not.  What it

         15        does is embed in the Constitution that which is now

         16        legally permissible.

         17             COMMISSIONER LOWNDES:  Since these programs exist, at

         18        least they do in our area.  They exist in all the

         19        municipalities and counties and whatnot, do you have a

         20        concern that this is put on the ballot as defeated, that

         21        it will have an adverse effect?

         22             COMMISSIONER SUNDBERG:  That's a possibility.  But I

         23        think what is a great possibility, I think the people of

         24        Florida, particularly at this time where you've had

         25        Proposition 209 in California, which can put in doubt the


          1        validity.  You've had the Hopwood decision, that I think

          2        it is far more important that we do embed this into the

          3        Constitution and let the people speak to this.

          4             COMMISSIONER LOWNDES:  I agree with you it's

          5        important but my fear is, sincere fear, that if it's

          6        defeated, there's a lot of anti-affirmative action to

          7        foot.  And if it's defeated, that it might have a really

          8        detrimental effect on the good programs that exist.

          9             COMMISSIONER SUNDBERG:  I understand your concern.  I

         10        think it's worth the risk.

         11             CHAIRMAN DOUGLASS:  Commissioner Barkdull.

         12             COMMISSIONER BARKDULL:  Does the gentleman yield?

         13             COMMISSIONER SUNDBERG:  Yes.

         14             CHAIRMAN DOUGLASS:  He yields.

         15             COMMISSIONER BARKDULL:  Commissioner Sundberg, take

         16        actions necessary to remedy the present effects of past

         17        discrimination.  Would that include monetary amounts to be

         18        appropriated by the necessary city, county, municipality

         19        or state that's affected?

         20             COMMISSIONER SUNDBERG:  No, Commissioner Barkdull.  I

         21        think that, you know, those are terms of art.  They have

         22        never been construed to include reparations if that's what

         23        you're driving at.

         24             COMMISSIONER BARKDULL:  Well, that's what I'm driving

         25        at.  And I don't see any limitation in this.  And what I'm


          1        concerned about is, if we have put this in the

          2        Constitution and it's adopted by the people, the people

          3        are going to come up before state agencies, political

          4        subdivision, municipalities, counties, public colleges and

          5        universities, community colleges, school districts,

          6        special district and other governmental instrumentalities

          7        and say, It's now authorized that you can appropriate

          8        money to cure past discriminations.  And I don't think

          9        that that's what you intend.

         10             And I don't know that this is any limitation on what

         11        kinds of actions are necessary to remedy the present

         12        effects of past discrimination.  There is no limitation on

         13        that.

         14             COMMISSIONER SUNDBERG:  And that's my intent, not to

         15        limit the sort of actions that these agencies may take if

         16        they are disposed to do so.

         17             COMMISSIONER BARKDULL:  Which would include money.

         18             COMMISSIONER SUNDBERG:  It certainly doesn't require

         19        that; in other words, may they?  I guess they might if

         20        they think reparations are appropriate, I don't know.

         21             COMMISSIONER BARKDULL:  Could they do that now with

         22        the tax money?

         23             COMMISSIONER SUNDBERG:  I guess they could.  I guess

         24        they could.

         25             COMMISSIONER BARKDULL:  Then I don't know why we need


          1        it in the Constitution.

          2             COMMISSIONER SUNDBERG:  Well, that's the same

          3        response I gave to Commissioner Lowndes.

          4             CHAIRMAN DOUGLASS:  All right.  Further debate or

          5        questions?  Commissioner Morsani?

          6             COMMISSIONER MORSANI:  Commissioner Sundberg, and I

          7        don't remember the -- of course it's not in my purview, so

          8        I don't remember the court case, but back to Commissioner

          9        Barkdull's question, in the -- what was the case recently

         10        that, and it had to do with the racial case in the '20s

         11        where they just got remuneration based upon that court --

         12        what was that -- and it sounds like to me we're opening up

         13        that can of worms.  I believe the state just paid several

         14        million dollars.  And to insert this kind of thing without

         15        having some limitations in there, we're opening a whole

         16        can of worms?

         17             COMMISSIONER SUNDBERG:  We would open up the same can

         18        of worms that the commissioner sitting in front of you

         19        opened up and urged on the Florida Legislature and in

         20        their wisdom they thought it appropriate to do that.  And

         21        if any of these agencies deem that to be appropriate,

         22        certainly this would not preclude them from doing so.

         23             It's certainly not the thrust of it, that's, you

         24        know, I don't see the governing bodies of these agencies

         25        doing that except under the most extraordinary of


          1        circumstances which Ms. Barnett brought to the attention

          2        of the Florida Legislature that that was a very

          3        extraordinary circumstance.

          4             COMMISSIONER MORSANI:  Well, I think the question,

          5        couldn't that -- couldn't you have -- couldn't that be

          6        amended to eliminate that possibility in that first --

          7        where you say, May take actions necessary to remember --

          8        remedy?  Couldn't you insert some language in there to

          9        assure that or wouldn't that be proper?

         10             COMMISSIONER SUNDBERG:  Well, I'm sure you could, but

         11        as I responded to Commissioner Barkdull, that would -- I'm

         12        not disposed to do that if there's a majority here

         13        disposed to do that.  If there's a majority here that's

         14        disposed to do it, yeah, that could be done.  I would not

         15        limit -- I would not start trying to limit the state and

         16        its agencies who are described here in the manner in which

         17        they seek to remedy the present effects of past

         18        discrimination.  To date, except for the case you refer

         19        to, they have done it by programs that ensure equal access

         20        to opportunity by these classes.

         21             COMMISSIONER MORSANI:  I would support an amendment

         22        if Judge Barkdull and others think they can get one in

         23        there.

         24             CHAIRMAN DOUGLASS:  Commissioner Wetherington, do you

         25        have a question?


          1             COMMISSIONER WETHERINGTON:  I do.

          2             CHAIRMAN DOUGLASS:  He yields.

          3             COMMISSIONER WETHERINGTON:  Is there any question at

          4        all under the present Constitution that Florida has this

          5        power and maybe in some instances this duty without this

          6        language being put in?

          7             COMMISSIONER SUNDBERG:  My response is, I don't know

          8        about a duty.  I think, yes, they do have the power.

          9             COMMISSIONER WETHERINGTON:  Okay.  There is nothing I

         10        know about in the Hopwood decision or any other decision

         11        that would put that power in question, is there?

         12             COMMISSIONER SUNDBERG:  No, not at all.  I didn't

         13        mean to imply that.

         14             COMMISSIONER WETHERINGTON:  So the power is there.

         15        And the question then is, Why are we putting it in

         16        particularly in light of the fact that the words

         17        "affirmative action" are frequently used to confuse and

         18        cause misapplications and misinterpretations and possibly

         19        bring about the thing that Commissioner Lowndes is talking

         20        about?

         21             In other words, if there is nothing to be gained and

         22        the possibility of an adverse vote on something like this

         23        which sends out a very controversial and possibly negative

         24        message, why do we want to do it?

         25             COMMISSIONER SUNDBERG:  Because I think there is


          1        something to be gained.

          2             COMMISSIONER WETHERINGTON:  What is that?

          3             COMMISSIONER SUNDBERG:  The fact, just like there was

          4        that thing to be gained, I thought we all agreed, that the

          5        words "male and female" were not necessary that that power

          6        was there.  I think that's to be gain.  I think it sends a

          7        message that Florida stands in the position of being in

          8        favor of and that the people of Florida, through their

          9        fundamental document, speak to this issue, that's what's

         10        to be gained.  In terms of a legal requirement or duty of

         11        power, you're absolutely right.

         12             COMMISSIONER WETHERINGTON:  But haven't we said in

         13        other context that language which is aspirational, in

         14        effect, it doesn't really change things, that many

         15        instances we agreed with the sentiment, we agree with the

         16        idea, but we feel that that's not the kind of thing that

         17        we ought to be doing.  It may not be substantially

         18        advancing the ball in some fundamental way.

         19             COMMISSIONER SUNDBERG:  And you'll have to judge

         20        that, Commissioner Wetherington, because we have, in

         21        certain instances, taken that position and in others we

         22        have not.  Just like the male and female alike or whatever

         23        that language was.  I don't think that added anything to

         24        the power.

         25             Am I out of order, Mr. Chairman?


          1             CHAIRMAN DOUGLASS:  We're going to have to break the

          2        caucus up, gentlemen.  And unauthorized people, please

          3        leave the floor.  All right.  Proceed.

          4             COMMISSIONER WETHERINGTON:  As I said, I'm totally

          5        100 percent in favor of the concept --

          6             COMMISSIONER SUNDBERG:  Then I'll appreciate your

          7        vote.

          8             COMMISSIONER WETHERINGTON:  -- but I have some real

          9        concerns about whether mischief is going to come out of

         10        this along the lines that Commissioner Lowndes has said,

         11        that really worries me about this.

         12             COMMISSIONER SUNDBERG:  I have greater confidence in

         13        the citizens of Florida.

         14             CHAIRMAN DOUGLASS:  Commissioner Mathis?

         15             COMMISSIONER MATHIS:  Will Commissioner Sundberg

         16        yield for a question?

         17             CHAIRMAN DOUGLASS:  Yes, he does.

         18             COMMISSIONER SUNDBERG:  I certainly will.

         19             COMMISSIONER MATHIS:  Commissioner Sundberg, under

         20        the Supreme Court's decisions in Crowson and Atiran which

         21        now require a showing or a demonstration of past

         22        discriminations in order to just, or in order to provide a

         23        basis for remedial programs, do you see that this

         24        constitutional provision will address that issue in any

         25        way?


          1             COMMISSIONER SUNDBERG:  No, I don't think it

          2        addresses that issue, I think it incorporates it.  The law

          3        that's existing I think is incorporated.

          4             CHAIRMAN DOUGLASS:  All right.  Ask those people that

          5        left the floor to come back, we are getting ready to vote

          6        on this.  I ran them off, let's get them back.

          7        Commissioner Smith.

          8             COMMISSIONER SMITH:  Thank you, Mr. Chairman.  First

          9        of all, you are looking at an affirmative action baby.  As

         10        I told you briefly the last time we talked about this, I

         11        was born in an all black hospital, went to all black

         12        schools, and then I met whites as equals for the first

         13        time in the jungles of Vietnam.

         14             I was in the first class of students at the

         15        University of Miami that had more than one black student.

         16        I was the first African-American Assistant Public

         17        Defender, the first African-American Assistant County

         18        Attorney.  And I can assure you that with regard to my

         19        entering the University of Miami, that they could have

         20        found a white student to take my place.  But they made a

         21        decision that we should give blacks as well as whites an

         22        opportunity for this type of education.

         23             And in the public defender's office before I was

         24        hired they found whites to hire instead of people like me.

         25        And the same with the county attorney's office.  But a


          1        decision was made to provide equal opportunity and that's

          2        really what it is.

          3             You are right, Commissioner Wetherington, there are

          4        people that try to make this seem complicated, that it is

          5        quotas.  Blacks are not in favor of quotas.  As I said

          6        before, our quota was zero for a long time.  And that's

          7        illegal for quotas.

          8             And I have been losing sleep thinking about the

          9        question that you and Commissioner Lowndes raised.  It is

         10        a legitimate question.  But I have decided to move forward

         11        with this because of what I see as inevitable reality.

         12             When Proposition 209 was put before the people of

         13        California by those who oppose affirmative action, the

         14        language was, The state of California shall not

         15        discriminate against or grant preferences to any

         16        individual or group based upon race, sex, color, et

         17        cetera, it was 27, 29 words.  That seemed very, very, you

         18        know, very American, very fair, very equal.  And polls

         19        were done and many people who voted for that didn't

         20        realize that in effect it dismantled affirmative action

         21        programs.

         22             The city of Houston took the initiative.  They said,

         23        well, basically what you and Commissioner Lowndes are

         24        saying.  They said, Now, look, 209 just passed, we already

         25        have an affirmative action program.  Now are you sure we


          1        want to move forward on this?

          2             So what they did was they took the initiative and

          3        they framed the issue so there wasn't confusion.  And the

          4        issue in Houston was framed as follows, quote, "Shall the

          5        charter of the city of Houston be amended to end the use

          6        of affirmative action for women and minorities in the

          7        operation of the city of Houston employment and

          8        contracting including ending the current program and any

          9        similar programs in the future?"

         10             If Proposition A passes, that would have ended

         11        affirmative action and that same California language would

         12        have moved forward.  This issue is not going to go away.

         13        We all know that there was, there is a group called the

         14        Florida Civil Rights Initiative Group that was trying to

         15        get enough votes to put this on the ballot.  And it has

         16        been reported in the news media that at least for 1998,

         17        they have discontinued their efforts.

         18             But it is not going to go away.  And the question is

         19        whether we are going to allow the Florida Civil Rights

         20        Initiative Group, that is opposed to affirmative action,

         21        to frame the issue by putting a wolf in sheep's clothing

         22        and having people do what they think is really a very

         23        American thing and that is to say everybody is equal, but

         24        in effect, through the back door, eliminate affirmative

         25        action programs.


          1             Now I think that the question raised by Commissioner

          2        Morsani is a legitimate question.  I personally, and

          3        Commissioner Sundberg and I have not discussed this, did

          4        not intend for the effort to be involved with reparations.

          5        That is not any statement about my feelings about that,

          6        and I didn't intend for this particular proposal to do

          7        that.

          8             And I think that hopefully we can, if this is

          9        something the commission wants to do, have language that

         10        people feel comfortable with, that if that's what we want

         11        to do, that's what we are going to do, nothing more, and

         12        nothing less.

         13             With the few minutes I have, let me just tell you why

         14        this is important because there are thousands of people,

         15        good people, like my mechanic friend, who really and truly

         16        believe that we should just look to the future and it is a

         17        legitimate feeling they have.

         18             One of the issues we are concerned about is housing

         19        and let me just share with you something that just

         20        happened down in Miami a couple years ago involving Hamlet

         21        Estates.  And I quote, All prospective tenants of this

         22        place were asked to fill out a questionnaire asking for

         23        name, address, place of employment and type of apartment

         24        needed.  After the prospective tenants walked out,

         25        employees would write down comments under a space labeled


          1        remarks.

          2             The names of the black applicants were transferred to

          3        a waiting list and their questionnaires were coded in the

          4        upper left-hand corner with, quote, D/A, end quote, short

          5        for, didn't answer.  No one on the waiting list was ever

          6        called.  If a black applicant called back to inquire about

          7        an apartment, they were told that someone tried to call

          8        them, but the agent didn't get an answer.

          9             Among the remarks that were found by the housing

         10        organization were these remarks, quote, was light skinned

         11        but uncertain if she is Spanish or black descent, end

         12        quote; quote, doesn't look like a D/A, but speaks like

         13        one, end quote; quote, Jose has D/A blood, end quote;

         14        quote, has kinky hair, but I don't think he is black, end

         15        quote.

         16             A Hispanic couple was placed on the waiting list

         17        apparently because of remarks the husband worked -- where

         18        the husband worked.  The remarks was -- were, quote, we

         19        must be careful on this D/A because he works at a business

         20        with a lot of other D/As, end quote.

         21             This is from the Herald, a brief part of the

         22        editorial on this.  It says, What's worse is not that the

         23        managers at Hamlet Estates would put black apartment

         24        applicants' names on waiting lists that was immediately

         25        dispatched to the twilight zone or that Hamlet employees


          1        assessed blacks' worth by their pigmentation and grade of

          2        hair, no, the worst disgrace is that these are just

          3        extreme indications of something that happens all the

          4        time, housing discrimination.  The problem is that most

          5        people aren't stupid enough to put it in writing and leave

          6        it around for employees who get dismissed and angry to

          7        turn it in.

          8             Education, this was an issue posed in the

          9        desegregation case involving the University of Maryland in

         10        the case of Podboresky (phonetic) versus Kerwin.  This was

         11        the issue:  The question posed in this case, and this is

         12        in the 1990s, is whether a public university racially

         13        segregated by law for almost a century and actively

         14        resistant to integration for at least 20 years thereafter,

         15        may, after confronting the injustice of its past,

         16        voluntarily seek to remedy the resulting problems of its

         17        present by spending 1 percent of its financial aid budget

         18        to provide scholarships to approximately 30

         19        high-achieving, African-American students each year.  And

         20        the answer was no.

         21             Now, I can understand from your view that we want to

         22        look forward and some people see me as extremely liberal

         23        and radical.  This is what Arthur Ashe said before his

         24        death when he was asked about AIDS.  He said -- they asked

         25        him whether the killer virus AIDS was his most difficult


          1        challenge in life.  And he replied, and I quote, Not a

          2        very radical guy, my most difficult challenge has been to

          3        carry the daily burden of being black in America, end

          4        quote.

          5             So after 250 years of slavery, 100 years of

          6        American-style apartheid, balanced against 30 years of

          7        haphazardly-enforced affirmative action, there are really

          8        people who honestly believe that the field is level.

          9             Let me share with you something I hope people don't

         10        take personally because this is just an allegory, but

         11        someone was asked a question by an individual like you,

         12        Commissioner Morsani, and said, Let's just forget the

         13        past.  And I know this is exaggerated, but take it in the

         14        context it was meant.

         15             This is what he said, and I quote, The white team and

         16        the black team are playing the last football game of the

         17        season.  The white team owns the stadium, owns the

         18        referees, and has been allowed to field nine times as many

         19        players.  For almost four quarters the white team has

         20        cheated on every play and as a consequence the score is

         21        white team 140, black team 3.  There are only ten seconds

         22        remaining in the game.

         23             As the white quarterback huddles with his team before

         24        the final play, a light suddenly shines from his eyes and

         25        he says, So how about it, boys, what do you say, from here


          1        on out, let's play fair.

          2             I suggest to you that affirmative action is nothing

          3        more than an opportunity to open up opportunities for

          4        everyone.  Affirmative action is not a handout, as most

          5        people think, because only qualified people should be

          6        allowed to go to school or get a contract.  Affirmative

          7        action got me in school, but hard study, good grades got

          8        me my degree.

          9             Affirmative action can get someone a contract, but

         10        performance on the contract gets you paid.  And so it is

         11        not a handout.  And those who say that affirmative action

         12        is discrimination against whites, and I say it is not, at

         13        one time white males were the domain of all the benefits,

         14        whether it is education, opportunity, et cetera, and

         15        although white males today make up 33 percent of the

         16        population, they make up 80 percent of the tenured

         17        professors, 80 percent of U.S. House of Representatives,

         18        90 percent of U.S. Senate, 92 percent of Forbes 400,

         19        97 percent of school superintendents, 99 percent of

         20        professional athletic team owners and 100 percent of U.S.

         21        presidents.

         22             So I don't think that white males have been

         23        discriminated against, it is just that others, women, and

         24        people of color have been allowed to participate.

         25             Others who say that white, that affirmative action


          1        stigmatizes you, they say, H.T, you got in on affirmative

          2        action, don't you feel stigmatized because people say you

          3        are an affirmative action lawyer?  And I say, no, I don't

          4        feel stigmatized because as Commissioner Connor pointed

          5        out, there is no stigmatization greater than the

          6        stigmatization that came in Dred Scott.

          7             Let me read verbatim what it said, we think -- the

          8        question is are black people protected by the

          9        Constitution.  We think they are not, and were not

         10        intended to be included.  They have for more than a

         11        century before been regarded as being of an inferior order

         12        and altogether unfit to associate with the white race.

         13        And so far inferior that they had no rights which the

         14        white man was bound to respect.  That is what offends most

         15        people.

         16             This is the part that offends me, and I quote, And

         17        what the Negro might justly and lawfully be reduced to

         18        slavery, for his benefit.  There can be no stigmatization

         19        greater than that.  I'm proud to be an affirmative action

         20        baby.

         21             Lastly, let me just say this, if we don't -- and for

         22        Commissioner Wetherington and Commissioner Lowndes, two of

         23        the finest lawyers in here, you know how important it is

         24        to be able to frame the issue.  If we don't frame the

         25        issue in such a way that we can protect an attack on the


          1        affirmative action programs, which we know is coming --

          2        I'm a lawyer for the University of Miami and we are asking

          3        the same questions you are asking now, What does all this

          4        affirmative action changes in the law mean?

          5             They are asking it all around the state.  And people

          6        are causing confusion with regard to it and they are

          7        saying things that are not accurate.  And so what I'm

          8        asking is if he believes -- first of all, do we believe

          9        affirmative action provides equal opportunity, is a modest

         10        step toward that?  Do we think it is a good idea?  If we

         11        think so, then I think that we need to move to inoculate

         12        and to protect our affirmative action programs from the

         13        challenges that we know are certain to come.

         14             And for that reason, and because there is a time

         15        limitation, I am not going to state the other ten minutes

         16        of the speech that I had with regard to this.  I ask you

         17        to please join with me and those who believe that equal

         18        opportunity is Florida of the future -- let me close by

         19        saying this:  I believe that our preamble to our

         20        Constitution should be simply this, one people, one

         21        Florida, equal opportunity for all.  That's what I think

         22        our preamble should be.

         23             We go all over, and I'm sure Senator Jennings and the

         24        others go all over and brag about the fact that Florida

         25        today is where America is going to be in the future.  We


          1        are the prototype of America.  Let's lead, let's show

          2        America how to deal with this problem.  We shouldn't deal

          3        with it the way California dealt with it.

          4             Let's show how people can work together and how

          5        people can share in the pie.  Because that's all it is

          6        about.  We have got a limited pie, can everybody

          7        participate, can everybody share in the pie.  And I think

          8        our vote to provide constitutional protection for those

          9        entities of government that want to give everybody a fair

         10        chance, that want to give the H.T. Smiths of the next 20

         11        years a chance to go to law school -- remember this,

         12        please remember this, Commissioner Morsani, think about

         13        the effect it was -- what did you think, as a descendent

         14        of a slave, what do you think my slave

         15        great-great-grandparents passed to me?  Nothing.  They

         16        couldn't even be allowed to read.

         17             One of the greatest advantages is having things

         18        passed down.  When my mother died, I had nothing but a

         19        bill.  We haven't been able to pass things down.  We

         20        haven't been able to pass down a legacy of education, a

         21        legacy of owning a business, an opportunity to work in my

         22        father's business.  We had nobody -- I am the first person

         23        in my family to even go to college.

         24             It is hard for you to see what effect it has had for

         25        generation after generation after generation to be


          1        property and then generation after generation after

          2        generation you can't even learn to read and then

          3        generation after generation -- and finally there is a

          4        generation that is allowed to read, and there is one

          5        person in the family that can go to college.  But

          6        everything is not equal.  And so I just urge you to

          7        consider that.

          8             And Commissioner Wetherington and Commissioner

          9        Lowndes, I would ask you to consider the fact that

         10        affirmative action will be on the ballot in '98 through us

         11        in a very positive way that can protect it, or in 2000 by

         12        the enemies of affirmative action in sheep's, a wolf in

         13        sheep's clothing.  Please support this.  Thank you.

         14             CHAIRMAN DOUGLASS:  Commissioner Barkdull.

         15             COMMISSIONER BARKDULL:  Mr. Chairman, Members of the

         16        Commission, I didn't want to speak on this issue but I

         17        think I have to because of some of this language.

         18             I'm no stranger to supporting equal protection, I am

         19        for affirmative action.  Forty-four years ago this coming

         20        summer I was instrumental in removing from the ABA

         21        questionnaire what your race was.  Twenty-two years ago at

         22        this time I was instrumental as a trustee at the law

         23        school at the University of Florida for there being

         24        affirmative action for students.

         25             My problem with this proposal as it is written is the


          1        fact that it says that you cure past discrimination in the

          2        purchase of goods, services and the expenditures of public

          3        monies.

          4             I don't know how you cure that except by the

          5        expenditure of public monies.  And I would support this if

          6        there was a limitation in this that indicated that this

          7        did not call for any reparations, but until that is there,

          8        I've got to vote against it.

          9             CHAIRMAN DOUGLASS:  All right.  Any further

         10        discussion?  All right.  Close, Commissioner Sundberg.

         11             COMMISSIONER SUNDBERG:  Commissioner Barkdull, and I

         12        didn't mean to be flip, I'm not doing very well at much of

         13        anything today.  And, Commissioner Morsani, I have no

         14        problem with putting, however you want to say it, maybe

         15        institute programs necessary to remedy, or if that's too

         16        broad for you, or if you want the statement in here, This

         17        shall not include reparations, that's all right with me.

         18             But I will agree to do that in any fashion that's

         19        acceptable to you, that makes it clear that it does not

         20        include reparations.  And nobody is for a moment

         21        questioning anybody's commitment here and sincerity in

         22        what they did.

         23             And perhaps Commissioner Smith and I have been

         24        exposed to more challenges than the rest of you, and

         25        that's certainly a concern, Commissioner Lowndes, you


          1        know.  If we fail in this attempt, does it send some kind

          2        of message?

          3             As Commissioner Smith says, it is out there now.  I

          4        know in the educational venue, we are seeing it

          5        constantly.  We are trying to figure out what we can do in

          6        terms of scholarships, admissions that doesn't run afoul

          7        of the law.  We are getting requests for public record

          8        production with great consistency by groups that have very

          9        high-sounding names, but I suggest to you they want to do

         10        away with affirmative action in education.

         11             I know that the state university system now has a

         12        committee looking at this whole issue of how do we

         13        maintain diversity, which I think we all hear in this

         14        group.  And Commissioner Smith is correct, the attacks are

         15        always clothed in high-sounding, principled names.

         16             And if we do, if we do embody this in this

         17        Constitution, and somebody wants to take it out, when they

         18        are on the attack, it is going to be clear what they are

         19        trying to do.  Because they are going to be eliminating

         20        language that makes it clear that Florida stands for the

         21        proposition that its agencies and political subdivisions

         22        may, to foster greater equality, have these kinds of

         23        programs.

         24             And in fact, if this proposal comes from this group,

         25        with the prestige that it enjoys, it stands a much greater


          1        probability of being accepted by the public than if those

          2        amongst us who are not organized and constituted as we are

          3        here today are put in the position two years, four years

          4        from now from trying to stave off some sort of move to

          5        eliminate any affirmative action programs by the state

          6        agencies.

          7             Do you have some language to suggest for me,

          8        Mr. Smith?

          9             CHAIRMAN DOUGLASS:  Well I think you are closing and

         10        we are going to vote.  Commissioner Morsani, he closed and

         11        I think we have got to -- we can't just keep doing this.

         12        If you wanted to amend it, you should have amended it

         13        before closing.

         14             COMMISSIONER SUNDBERG:  Well, I'm sorry,

         15        Mr. Chairman.

         16             CHAIRMAN DOUGLASS:  We have all these speeches and

         17        that's not a proper way to handle this at all.  You either

         18        vote for it or against it the way you presented it in

         19        argument.  And you come up on the very last close and you

         20        want to amend it.  It is pretty clear-cut what the issue

         21        is.

         22             COMMISSIONER SUNDBERG:  Do have an amendment,

         23        Mr. Smith, that you would like to offer?

         24             CHAIRMAN DOUGLASS:  We are going to vote.

         25             (Off-the-record comment.)


          1             CHAIRMAN DOUGLASS:  All right, if you want to take

          2        the time.

          3             COMMISSIONER MORSANI:  Mr. Chairman?

          4             CHAIRMAN DOUGLASS:  Yes, sir, Commissioner Morsani.

          5             COMMISSIONER MORSANI:  I haven't done this all these

          6        meetings, because I don't like to do it, but I'm going to

          7        ask, I hate to say these two, TP this and let's -- we can

          8        fix this language and we can pass it to, I see some,

          9        Ms. Freidin disagrees with me.  That surprises me.

         10             (Laughter.)

         11             COMMISSIONER MORSANI:  That we could fix it, see if

         12        we can fix this language to embody this.  I am not opposed

         13        to this.

         14             CHAIRMAN DOUGLASS:  All right.  You are making a

         15        motion to temporarily pass it --

         16             COMMISSIONER MORSANI:  And fix the language.

         17             CHAIRMAN DOUGLASS:  -- and if it is without

         18        objection, it will be temporarily passed, for the third

         19        time.

         20             COMMISSIONER CONNOR:  Mr. Chairman.

         21             CHAIRMAN DOUGLASS:  Commissioner Connor.

         22             COMMISSIONER CONNOR:  Since we are in that mode,

         23        Proposal 107 --

         24             CHAIRMAN DOUGLASS:  Wait a minute, we haven't done

         25        this one yet.


          1             COMMISSIONER CONNOR:  I'm sorry, we hadn't voted on

          2        it.  Excuse me.

          3             CHAIRMAN DOUGLASS:  Commissioner Barkdull, he has

          4        made a motion to temporarily pass it.

          5             COMMISSIONER BARKDULL:  What is the view of the

          6        movant, Commissioner Sundberg?

          7             COMMISSIONER SUNDBERG:  And I will agree to that,

          8        temporarily pass until tomorrow so we can get the language

          9        addressed.

         10             CHAIRMAN DOUGLASS:  Without objection, it will be

         11        temporarily passed.  It is passed until replaced on

         12        special order.

         13             Now Commissioner Connor.

         14             COMMISSIONER CONNOR:  Thank you, Mr. Chairman.

         15        Parental consent was up on reconsideration yesterday but

         16        inadvertently was not taken up, and I ask for unanimous

         17        consent for the matter to be placed on reconsideration and

         18        deferred to the first week in February.

         19             CHAIRMAN DOUGLASS:  All right.  You have to have

         20        unanimous consent, I believe, because the time passed for

         21        reconsideration.

         22             COMMISSIONER CONNOR:  I think it was by inadvertence

         23        that that happened.  The effect, as the secretary informs

         24        me, is that it expired.  I don't think that was the

         25        intent, that it expire, and I am simply requesting --


          1             CHAIRMAN DOUGLASS:  What he is requesting is

          2        unanimous consent to allow reconsideration of 107, which

          3        is the parental consent matter.  And if anybody objects,

          4        it can't be put on reconsideration.  Commissioner

          5        Barkdull.

          6             COMMISSIONER BARKDULL:  I urge that the body agree

          7        with the motion by Commissioner Connor because it was in

          8        some misunderstandings in a three-cornered conversation

          9        that this occurred.  And it should be carried into

         10        tomorrow's calendar.

         11             CHAIRMAN DOUGLASS:  If there is no objection, I will

         12        entertain a motion that we have no more three-cornered

         13        conversations.  Let's have four cornered.

         14             COMMISSIONER BARKDULL:  Mr. Chairman, I have a

         15        problem in hearing which is, I'm joined by others in this

         16        chamber.

         17             CHAIRMAN DOUGLASS:  All right.  We are down toward --

         18        aren't we supposed to go out and leave at 5:00?

         19             COMMISSIONER BARKDULL:  We need to act on this

         20        motion.

         21             CHAIRMAN DOUGLASS:  Well, we are ten minutes 'til on

         22        my clock.  Okay.

         23             COMMISSIONER BARKDULL:  Mr. Chairman, I think we need

         24        to act on the Connor motion.

         25             CHAIRMAN DOUGLASS:  I just asked was there any


          1        objection and hearing none it is granted.

          2             COMMISSIONER HENDERSON:  Mr. Chairman.

          3             CHAIRMAN DOUGLASS:  We are going to let the motion go

          4        back on the calendar, is that what you want, or do you

          5        want to take up the motion?

          6             COMMISSIONER CONNOR:  For the February session was

          7        the motion.

          8             CHAIRMAN DOUGLASS:  Commissioner Mills?

          9             COMMISSIONER MILLS:  Let me, as I understand what I

         10        heard, that we would return to consider the motion to

         11        reconsider tomorrow.

         12             COMMISSIONER CONNOR:  That was not my motion.

         13             CHAIRMAN DOUGLASS:  The secretary tells me that the

         14        way to do it would be to vote to reconsider it right now

         15        and then defer it until when you requested.

         16             COMMISSIONER MILLS:  But --

         17             CHAIRMAN DOUGLASS:  Commissioner Mills.

         18             COMMISSIONER MILLS:  Well would the secretary --

         19             CHAIRMAN DOUGLASS:  We will let it roll over until

         20        tomorrow and in the meantime you can get it straight.  Now

         21        that we have waived the rules and you have moved

         22        reconsideration, we will roll it until tomorrow and then

         23        you can decide what you need to do with it in consultation

         24        with the secretary.

         25             COMMISSIONER CONNOR:  Thank you.


          1             CHAIRMAN DOUGLASS:  All right, Commissioner Barkdull.

          2             COMMISSIONER BARKDULL:  I am ready for announcements,

          3        if that's where you are.

          4             CHAIRMAN DOUGLASS:  Well I don't think we have time

          5        to take up another proposal.

          6             COMMISSIONER BARKDULL:  We have got committee

          7        meetings that are scheduled and people that are here for

          8        those committee meetings at 5:00.

          9             CHAIRMAN DOUGLASS:  That's correct.  And Commissioner

         10        Scott rises.

         11             COMMISSIONER SCOTT:  I just want to remind the

         12        members of the Finance and Tax Committee that we are

         13        meeting at 5:00 in EL, our usual place, and try to dispose

         14        of the rest of these issues.  If everybody would be close

         15        to on time, we will get going.

         16             CHAIRMAN DOUGLASS:  They ought to be on time this

         17        time, Commissioner Scott.

         18             Commissioner Connor.

         19             COMMISSIONER CONNOR:  Mr. Chairman, I'm not sure if

         20        the announcement has been made because I had to leave

         21        early, but the Select Committee on Sovereign Immunity will

         22        meet at noon tomorrow, place to be announced, I'm not

         23        sure.

         24             COMMISSIONER BARKDULL:  It is on the calendar.

         25             COMMISSIONER CONNOR:  Room 309.


          1             COMMISSIONER BARKDULL:  309.

          2             COMMISSIONER CONNOR:  Thank you.

          3             CHAIRMAN DOUGLASS:  Any further announcements?

          4        Commissioner Barkdull.

          5             COMMISSIONER BARKDULL:  Move we recess until 9:00

          6        a.m. tomorrow morning.

          7             CHAIRMAN DOUGLASS:  Without objection we are in

          8        recess until 9:00 a.m. tomorrow morning.  See you tomorrow

          9        morning.

         10             (Session adjourned at 4:50 p.m.)

















          1                             CERTIFICATE


          3   STATE OF FLORIDA:

          4   COUNTY OF LEON:

                        WE, JULIE L. DOHERTY, KRISTEN L. BENTLEY and
          6   MONA L. WHIDDON, Court Reporters, certify that we were
              authorized to and did stenographically report the foregoing
          7   proceedings and that the transcript is a true and complete
              record of our stenographic notes.

          9             DATED this ______ day of ____________, 1998.


         12                      JULIE L. DOHERTY, RPR


         14                      _________________________________
                                 KRISTEN L. BENTLEY

         17                      MONA L. WHIDDON
                                 Court Reporters
         18                      Division of Administrative Hearings
                                 1230 Apalachee Parkway
         19                      Tallahassee, Florida  32399-3060
                                 (850) 488-9675  Suncom 278-9675
         20                      Fax Filing (850) 921-6847