State Seal Calendar

Meeting Proceedings for February 10, 1998 (File size=476K)


          1                          STATE OF FLORIDA
                             CONSTITUTION REVISION COMMISSION



                                    COMMISSION MEETING



              DATE:                   February 10, 1998
              TIME:                   Commenced at 9:00 a.m.
         11                           Concluded at 4:50 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 (EXCUSED)
              PAT BARTON
          6   ROBERT M. BROCHIN
          7   KEN CONNOR
              CHRIS CORR (EXCUSED)
              VALERIE EVANS
              PAUL HAWKES
              DICK LANGLEY
         13   JOHN F. LOWNDES
         14   JACINTA MATHIS
              JON LESTER MILLS
         15   FRANK MORSANI
              JUDITH BYRNE RILEY
              SENATOR JIM SCOTT
         18   H. T. SMITH
              ALAN C. SUNDBERG
              PAUL WEST (EXCUSED)
              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.  Quorum call, quorum call.  All Commissioners

          5        please indicate your presence.

          6             (Pause.)

          7             SECRETARY BLANTON:  Quorum call, quorum call.  All

          8        Commissioners indicate your presence.  All Commissioners

          9        indicate your presence.  Quorum present, Mr. Chairman.

         10             (Quorum taken and recorded electronically.)

         11             CHAIRMAN DOUGLASS:  Come to order, please.  If

         12        everybody would take their desk, please.  Commissioner

         13        Morsani, we are jealous.

         14             (Laughter.)

         15             CHAIRMAN DOUGLASS:  All right.  If you will come to

         16        order.  The opening prayer today is by Reverend Ray

         17        Hanselman, Youth Pastor at Calvary Chapel Church in

         18        Tallahassee, Reverend Hanselman.

         19             REVEREND HANSELMAN:  Heavenly Father, today I am

         20        humbled as I stand in the presence of these, your people,

         21        people who have been chosen by you to lead this state.  So

         22        I honor you and I glorify your Holy name in the presence

         23        of them all.  And today, Lord, our prayer is for wisdom.

         24        Lord, there is a great deal of knowledge among these

         25        people, and I pray that wisdom would be abundant, the


          1        ability to use the knowledge that they have.

          2             Lord, I pray that you would give them the

          3        understanding that they need, the cooperation that they

          4        need to bring about the revisions to this Constitution

          5        that you, that you would require.  And, Lord, I ask that

          6        you would bless each of them as they work together

          7        administering all of the plans and the actions that need

          8        to be done for this state.  Lord, I ask that you would, as

          9        your word says, give them great wisdom.  And Lord that

         10        where there would be strife and envying, Lord, that it

         11        would be removed.  And that it would be something that

         12        could be worked with among them as they cooperate together

         13        administering the laws for this state.

         14             I pray for each of the governing officials in their

         15        homes and their family lives, Lord, that as they are

         16        involved in things that are outside of these chambers that

         17        those things can be used also to help in your plan and

         18        your will.  And, Lord, I pray as each of them discover in

         19        their own hearts what it is for you that they will do

         20        because we know that we will all stand before you one day

         21        and give account of the things that are done even in these

         22        chambers.  And I pray, God, that there will be a humility

         23        among everyone that they could administer the truth, the

         24        truth that you have for this state.  And we will ask all

         25        of these things in Jesus' name, amen.


          1             CHAIRMAN DOUGLASS:  I would like to ask Commissioner

          2        Barton to come forward and lead us in the pledge of

          3        allegiance to the flag.

          4             (Pledge of Allegiance.)

          5             CHAIRMAN DOUGLASS:  Good morning.  We are a little

          6        shorthanded this morning.  People are a little late

          7        getting in.  If you haven't pushed the button, push it.

          8        Commissioner Thompson, I see you got him, all right.

          9        Okay.  Commissioner Barkdull?

         10             COMMISSIONER BARKDULL:  Mr. Chairman, Members of the

         11        Commission, you have on your desk a yellow folder which we

         12        will go into after we complete the matters that are in the

         13        gold folder which we used yesterday.  There are committee

         14        meetings that will be held at, one at noon today on the

         15        Article V costs.  I don't have the room number, but prior

         16        to adjournment this morning we will have it, and I'll give

         17        it to you.

         18             The Select Committee on Sovereign Immunity will meet

         19        this afternoon at 5:00 in Room 317.  I understand Style

         20        and Drafting is considering a meeting at 8:00 a.m. in the

         21        morning; is that correct, Chairman Mills?

         22             COMMISSIONER MILLS:  (Nods affirmatively.)

         23             COMMISSIONER BARKDULL:  And we will give you the room

         24        number on that before the close of the day this afternoon.

         25        I will lecture again that you have mail over in the


          1        conference room in the CRC offices on the ground floor of

          2        the historic Capitol.  I know some of you may have had the

          3        same problem I had last night, you couldn't get in the

          4        building.  But hopefully we will have that open tonight if

          5        you want to go by and pick up your mail; it is on the

          6        conference table in the conference room.

          7             And that concludes the report, Mr. Chairman, and we

          8        are ready to proceed on to the special order.

          9             CHAIRMAN DOUGLASS:  All right.  Before we do that, I

         10        might tell you that -- go ahead.

         11             COMMISSIONER BARKDULL:  There will be a Rules and

         12        Calendar Committee or Administration Committee tomorrow

         13        afternoon at 5:00 upon adjournment, and I will give you

         14        the room number when we get it.

         15             CHAIRMAN DOUGLASS:  The Article V Committee meets at

         16        Room 317 in the Capitol at noon, I am informed by the

         17        executive director, Commissioner Barkdull.  I'd also like

         18        to inform the Commission that Commissioner West had a

         19        pancreatic attack last evening and had to fly home so he

         20        will not be with us.  He wasn't in very good shape, I

         21        don't think.  And Commissioner Marshall is ill this

         22        morning, and he will be receiving medical treatment but

         23        hopes to be in this afternoon.  Commissioner Kogan is not

         24        ill but he is excused because of a special meeting at the

         25        court, and he had asked that we defer action on one of the


          1        items when we get to it until he is present.

          2             I think Commissioner Brochin is here but indicated

          3        that he would be in late; is that correct?

          4             COMMISSIONER BARKDULL:  Yes, Mr. Chairman.

          5             CHAIRMAN DOUGLASS:  All right.  Is there anybody else

          6        that has been excused?  Commissioner Butterworth will be

          7        excused later because he has to go to a Cabinet meeting,

          8        but we will do the best we can with those of us that are

          9        here.  The first item on reconsideration, Commissioner

         10        Barnett, I think you had a request on that.  Commissioner

         11        Scott?

         12             COMMISSIONER SCOTT:  I would like to, on the welfare

         13        of the commission, make a comment.

         14             CHAIRMAN DOUGLASS:  Certainly.

         15             COMMISSIONER SCOTT:  I am concerned about what

         16        happened yesterday, regardless of how anybody feels about

         17        the issue, the fact that matters on reconsideration is an

         18        order of business but is a special and continuing order,

         19        and on a matter that we have twice discussed at length,

         20        had some considerable controversy, some bruised feelings

         21        about, by ten minutes after 9:00 yesterday had been taken

         22        up and voted on by the commission before everyone had

         23        gotten -- was able to get here.

         24             And one of the persons that was not able to be here

         25        was Senator Jennings who had specially asked at the last


          1        meeting that this matter be reconsidered or taken up at a

          2        different time and she was in the building and left.

          3             So I would suggest that matters on reconsideration

          4        are a continuing order of business and especially if it is

          5        something controversial that we should allow each other

          6        some courtesy like we do in legislative bodies in taking

          7        those matters up.

          8             CHAIRMAN DOUGLASS:  I don't think we have any problem

          9        with that.  It is my understanding everybody was here

         10        yesterday morning.  Commissioner Barnett?

         11             COMMISSIONER BARNETT:  I am on another matter,

         12        Mr. Chairman.

         13             CHAIRMAN DOUGLASS:  Well, I think --

         14             COMMISSIONER BARNETT:  On reconsideration on --

         15             CHAIRMAN DOUGLASS:  You wanted to make that

         16        continuing and not take it up, as I understand it.

         17             COMMISSIONER BARNETT:  Yes, if it is appropriate, I'd

         18        like to just have this, this was reconsidered at the last

         19        minute yesterday afternoon.  Frankly, I'm not prepared,

         20        really to speak to it today.  I believe there may be some

         21        amendments.  I'd like to talk with Commissioner

         22        Butterworth about it.  So just to -- I think it would

         23        benefit the commission if we take the time to do that.

         24             CHAIRMAN DOUGLASS:  Without objection it will be put

         25        on the calendar of continuing order before it's brought


          1        up --

          2             COMMISSIONER BARNETT:  Excuse me, this is the issue

          3        that we discussed last week dealing with amendment to

          4        Article I, the Declaration of Rights to add language that

          5        no punishment will be administered that's arbitrary,

          6        capricious, or discriminatory.

          7             CHAIRMAN DOUGLASS:  All right.  Without objection

          8        that will be left pending on the motion.  All right.  The

          9        next order of business on the calendar is proposal No. 155

         10        by Commissioner Scott.

         11             COMMISSIONER SCOTT:  Commissioners, what this

         12        provides is that single member districts --

         13             CHAIRMAN DOUGLASS:  Gentlemen, I forgot to have him

         14        read it.

         15             READING CLERK:  Proposal 155, a proposal to revise

         16        Article III, Section 16A, Florida Constitution; providing

         17        for the Legislature to apportion the state into

         18        single-member senatorial districts of contiguous territory

         19        and single-member representative districts of contiguous

         20        territory.

         21             CHAIRMAN DOUGLASS:  Senator Scott moves this be

         22        withdrawn from the Committee on Legislative and we are

         23        proceeding now on the proposal.

         24             COMMISSIONER SCOTT:  Very simple proposal.  We always

         25        had single-member districts, but about so many years ago,


          1        I want to say 40 or 50 years ago, maybe less, this idea of

          2        having multi-member districts where you have maybe five or

          3        six House members, three, four senators, two, three, four

          4        senators in a -- representing the same territory came

          5        about.  In 1982, as I told you yesterday, the Legislature

          6        for the first time established single-member districts in

          7        Florida.

          8             What that does -- however, the Constitution still

          9        would allow multi-member districts.  And what this puts in

         10        the Constitution is the right for single member districts

         11        for everyone.  And the reasons for that are numerous.  If

         12        somebody has a question and wants to debate this, I'll be

         13        happy to debate it.  But one thing among other things is,

         14        if you don't have single-member districts in there, then

         15        you are ripe for discriminating against minorities by

         16        encompassing, for example, Tampa Bay, all of it into a

         17        four or five member Senate district, there will be no

         18        district there and other instances throughout the state.

         19             So this is very simple, puts into the Constitution

         20        the right of -- or the requirement that the Legislature be

         21        apportioned into single-member districts.

         22             The same requirement was in the proposal yesterday

         23        that was adopted on the Reapportionment Commission.  Any

         24        questions?

         25             CHAIRMAN DOUGLASS:  Commissioner Barkdull?


          1             COMMISSIONER BARKDULL:  Commissioner Scott, did I

          2        understand you to say that this is the same provision that

          3        was in the proposal that was adopted yesterday on

          4        Reapportionment Commission?

          5             COMMISSIONER SCOTT:  Yes.

          6             COMMISSIONER BARKDULL:  Thank you.

          7             CHAIRMAN DOUGLASS:  Commissioner Barnett?

          8             COMMISSIONER BARNETT:  Just a couple of questions of

          9        the sponsor.  If it is in the proposal we adopted

         10        yesterday, is the reason you want to do separately in the

         11        event the commission, the Reapportionment Commission,

         12        doesn't go forward that you want this as a freestanding

         13        issue?

         14             COMMISSIONER SCOTT:  I think it is very important and

         15        should be freestanding.  It should be mandated in the

         16        Constitution regardless of what happens to any other

         17        proposal.

         18             COMMISSIONER BARNETT:  Another question, this is the

         19        current way that under the current Constitution we -- you

         20        can and we do have single-member districts both for the

         21        Senate and the House; is that correct?

         22             COMMISSIONER SCOTT:  That's correct.

         23             COMMISSIONER BARNETT:  So why the change if this is

         24        already allowed in the Constitution?  Give me some of the

         25        reasons for the change.


          1             COMMISSIONER SCOTT:  Okay.  Since you ask.  One of

          2        the concerns would be that the Legislature might be

          3        apportioned with multi-member districts which would

          4        deprive minorities of their access to the Legislature.

          5        And this is -- there is particularly, I think, concern and

          6        nervousness among the minorities about some of the things

          7        that have been going on in this state and they and I feel

          8        that we should have single-member districts in the

          9        Constitution just like other important rights and freedoms

         10        that people have.  And I think that is very important that

         11        it be in the Constitution so that if someone does get

         12        tempted sometime in the future they could not do that.

         13             Also, there are many other arguments or single-member

         14        districts and these include better access, more effective,

         15        closer to the people representation, and so forth.  So

         16        those are the reasons for this proposal.

         17             CHAIRMAN DOUGLASS:  Further discussion?  Commissioner

         18        Nabors?

         19             COMMISSIONER NABORS:  I was just getting up, I'll sit

         20        back down.

         21             (Laughter.)

         22             CHAIRMAN DOUGLASS:  Let the record reflect that

         23        Commissioner Nabors got up.

         24             (Laughter.)

         25             CHAIRMAN DOUGLASS:  If there is not any further

                     DIVISION OF ADMINISTRATIVE HEARINGS (850) 488-9675


          1        discussion, does everybody understand what we are voting

          2        on here?  And understand that it is offered as

          3        freestanding in the event that the provision that it is in

          4        should not go forward.  All right.  Unlock the machines.

          5             (Vote taken and recorded electronically.)

          6             CHAIRMAN DOUGLASS:  Has everybody voted?

          7             READING CLERK:  Twenty-five yeas, two nays,

          8        Mr. Chairman.

          9             CHAIRMAN DOUGLASS:  All right.  The next order of

         10        business is Proposal 180 by Commissioner Brochin.  Would

         11        you read the proposal, please.  It was disapproved by the

         12        Committee on Finance and Taxation.  Commissioner Langley?

         13             COMMISSIONER LANGLEY:  May I rise on the welfare of

         14        the House?

         15             CHAIRMAN DOUGLASS:  Certainly.

         16             COMMISSIONER LANGLEY:  In 18 years in the

         17        Legislature, I never did this, I kind of went my own way

         18        as many of you know, but yesterday, and I think it is

         19        appropriate that Commissioner Connor not be here,

         20        sometimes we start at 9:00 and sometimes we start at 9:30

         21        and sometimes we start at ten after.  Yesterday the issue

         22        of parental consent, which as I argued to reconsider may

         23        end up parental notification before a teenager could have

         24        an abortion, was brought up in this body when at least

         25        Senator Crenshaw, Senator Scott, Senator Jennings, at


          1        least those three that I know of, were not here; they were

          2        in the buildings but were involved in other things at the

          3        time.

          4             That vote failed 13 to 14, just to keep it alive.

          5        And I know not where it goes, and as you well know, unless

          6        we change and I hope we don't, it is going to take 22

          7        votes to pass anything from this body.  I would ask, beg,

          8        and implore each of you as I move now to reconsider that

          9        vote, realizing it takes unanimous consent, that we do

         10        reconsider that vote and have an opportunity for a more

         11        representative body to vote on it.

         12             I don't know that it will ever get 22 votes even for

         13        notification, but I don't think that Commissioner Connor

         14        had a fair deal there.  And I respectfully ask for

         15        unanimous consent to reconsider that vote and that it be

         16        made a matter on the calendar at a future date.

         17             CHAIRMAN DOUGLASS:  If that's true, then we probably

         18        shouldn't take that up until Commissioner Kogan is here,

         19        Commissioner Sundberg is here.  Yesterday there were just

         20        as many people on one side or the other that weren't here.

         21        I voted for, it was 14 to 14 was the vote, and I cast the

         22        vote for reconsideration in that matter.

         23             And consequently, I don't know that -- and I want you

         24        to know we have not started any later than 9:10 when we

         25        are scheduled at 9:00 -- and we have tried to start at


          1        9:00 but we can't get everybody here.  We cannot delay the

          2        commission because certain people are not present.  And if

          3        they are present and leave the chamber we cannot control

          4        that either.  Commissioner Henderson wasn't here for the

          5        vote, he was in the building.  And there were two or three

          6        others that I counted afterwards.

          7             I don't think the vote would have come out any

          8        different, Commissioner Langley, but I'm not against

          9        considering anything that this body wants to consider as a

         10        whole.  But if we are going to do this on unanimous

         11        consent, then in the spirit of what you said, you should

         12        let the other people who did oppose this be present as

         13        well and they have been excused this morning.

         14             COMMISSIONER LANGLEY:  Well --

         15             CHAIRMAN DOUGLASS:  All right.  I'll be happy to put

         16        it on the calendar for matters on reconsideration again

         17        and then you can ask for the unanimous vote.

         18             COMMISSIONER LANGLEY:  Mr. Chairman, I know rules

         19        don't mean a lot in this body but the rules allow me to

         20        make that motion any time I'm recognized.

         21             CHAIRMAN DOUGLASS:  That's correct.  You made a

         22        motion for unanimous consent --

         23             COMMISSIONER LANGLEY:  And it is not supposed to be

         24        debated by the Chair.

         25             CHAIRMAN DOUGLASS:  I am not debating, I voted for


          1        the motion.  I am explaining to you that your statement

          2        that if we start at different times and if people aren't

          3        here for that purpose is not correct.  And that's the only

          4        thing I was trying to tell you.  Now, your motion is to

          5        waive the rules by unanimous vote to reconsider the motion

          6        by which we reconsidered; is that correct?

          7             COMMISSIONER LANGLEY:  Yes, sir, and that it just be

          8        placed on matters for reconsideration at another time.

          9             CHAIRMAN DOUGLASS:  Very well, does everybody

         10        understand his motion?  It takes a unanimous consent

         11        without objection the motion is granted.  All this is for

         12        is to place it on the calendar.  He's not -- this

         13        doesn't -- it doesn't debate the reconsideration, it

         14        doesn't debate anything, it is just to put it on the

         15        calendar; am I right, Commissioner Langley?  This doesn't

         16        do anything but put it on the calendar.  It doesn't have

         17        any definitive action.  Commissioner Riley?

         18             COMMISSIONER RILEY:  I am yet again confused.  Every

         19        time this issue comes up some change in the rules seems to

         20        take place.  Like a bad penny, it keeps coming back.  And

         21        I am certainly willing to bend over backwards to be equal

         22        and fair but I'm confused.  We now have to vote

         23        unanimously to put it up just to reconsider it, and we can

         24        vote that now?

         25             CHAIRMAN DOUGLASS:  That's correct.


          1             COMMISSIONER RILEY:  But yet you are saying, Okay --

          2        are you just -- is that it, you think we have voted?  I'm

          3        confused.

          4             CHAIRMAN DOUGLASS:  Commissioner Langley, I think I

          5        fully understand what you are doing.

          6             COMMISSIONER LANGLEY:  If one person in this body

          7        objects to that, it is dead.  And if Ms. Riley is

          8        objecting, then the motion fails.

          9             COMMISSIONER RILEY:  In which case I do object.

         10             CHAIRMAN DOUGLASS:  I'd like to suggest, Commissioner

         11        Riley, for the good of the body that you let it go on the

         12        calendar and that we unanimously grant -- I will argue for

         13        your motion, Commissioner Langley.  Commissioner Mills?

         14             COMMISSIONER MILLS:  Well, Mr. Chairman, on the

         15        welfare of the body, we have tried to work together; this

         16        doesn't mean that people agree.  If I understand, as

         17        flexible as we have been about the rules, if Commissioner

         18        Langley's motion is to try to design this motion, if it's

         19        to take up at a future time a motion to reconsider, which

         20        at that time would require unanimous consent, is that what

         21        you are suggesting?  You are making a motion to

         22        reconsider --

         23             CHAIRMAN DOUGLASS:  Commissioner Langley?

         24             COMMISSIONER MILLS:  -- at a future time.

         25             COMMISSIONER LANGLEY:  The rules say that once a


          1        motion for reconsideration has been voted upon it is no

          2        longer available to the body except by unanimous consent.

          3        I have moved to reconsider it at a time to be set by the

          4        Chair on the calendar and for that motion to ever come up

          5        again, it would take unanimous consent for my motion.  And

          6        I ask for the welfare of the House, I mean, we've all bent

          7        over a lot to help other people in this thing and I ask,

          8        beg, plead that nobody object and that this be back before

          9        the House at a different time.

         10             CHAIRMAN DOUGLASS:  Now is everybody clear on this?

         11        This is not a vote on whether or not we grant

         12        reconsideration.  What it does, I think I am right, is it

         13        puts it back on the calendar and it will be set for a time

         14        certain and then we will take up the issue and vote on

         15        reconsideration; is that correct?  Is that what you want

         16        to accomplish?

         17             COMMISSIONER LANGLEY:  Yes.

         18             COMMISSIONER BARNETT:  And that point, Mr. Chairman,

         19        it will take a unanimous vote or a majority vote?

         20             CHAIRMAN DOUGLASS:  It will take a majority vote.

         21             COMMISSIONER BARNETT:  So in order for this to go

         22        on -- back on the calendar requires a unanimous vote?

         23             CHAIRMAN DOUGLASS:  That's correct.  And what I

         24        suggested was in light of the comments and for the, which

         25        were made for the good of the order by Commissioner Scott,


          1        and then the motion by Commissioner Langley, that we grant

          2        that unanimous consent and we will set it for a time

          3        certain.  Is that what you understood, Commissioner Mills?

          4        Okay.  Commissioner Ford-Coates?

          5             COMMISSIONER FORD-COATES:  I just have one question.

          6        If this motion is to take this matter up at a time

          7        certain, I guess I'm having a real hard time understanding

          8        why this is any different than what happened two weeks

          9        ago, which was a motion for reconsideration, the agenda

         10        was set, we knew we were going to be here at 1:00.  We

         11        knew that the matters of reconsideration, the first

         12        matter, was 107, it is in our book.  I got letters and

         13        calls all week and I was here at 1:00 because I knew that

         14        issue was going to come up.  I don't see what the

         15        difference is unless the next time people who were late

         16        are going to be here.  And I'm having a hard time thinking

         17        that's a difference in the process.  I think that when we

         18        schedule something, we should be here.

         19             CHAIRMAN DOUGLASS:  Commissioner Smith?

         20             COMMISSIONER SMITH:  Thank you, Mr. Chairman.  I rise

         21        to speak for the good of the order.  I had been lobbied,

         22        educated, about this issue all week and I told various

         23        people that I intended to be here at 1:00 sharp to vote

         24        for reconsideration, out of the spirit of collegiality.  I

         25        was voting against consent, I was on the fence on


          1        notification.  Unbeknownst to me, yesterday I had an

          2        emergency hearing and I couldn't be here, but I knew

          3        without a doubt hearing from the rules chairman as I was

          4        walking out in January, that this would be the first item

          5        on the agenda.  So technically speaking, technically

          6        speaking, we are all on notice of that.

          7             However, I believe that we should allow this matter

          8        to go forward and be placed on the agenda.  Technically

          9        those who oppose it are right, there is no question about

         10        that.  I believe, based upon the votes we have had, those

         11        who oppose it can pretty much understand and have a

         12        feeling of where this thing is going to eventually come

         13        out.  And I would hope, I would hope that we will not, we

         14        will not derail the spirit of cooperation that we have had

         15        thus far understanding, and I don't take it as a threat, I

         16        take it as an appeal for cooperation, that really to move

         17        this thing forward is going to take all of us working

         18        together.

         19             Commissioner Riley, you and I have voted the same on

         20        every issue except one and that was medical marijuana and

         21        I wish I was with you on that one.  And I felt bad about

         22        it because we were together in committee.  And I would

         23        appeal to you, you are right, but sometimes it is like

         24        walking against the light, sometimes right is not the only

         25        basis upon which to make a decision and I appeal to you to


          1        stay right, but to allow this to be debated and put it on

          2        the agenda so we can finally take -- and we'll take it up

          3        one last, last, last final time.  It is like lawyers, we

          4        have got one more question.  This is the last, last, last

          5        time we are going to take it up and let's deal with it.  I

          6        appeal to you to do that.

          7             CHAIRMAN DOUGLASS:  Do we really need to debate this?

          8        I think we have all recommended that are involved in the

          9        administration that we grant this motion.  Everybody has a

         10        right to vote how they want to but it has been very well

         11        stated at least not only by Commissioner Smith but others

         12        that even though we don't agree with necessarily some of

         13        the statements that were made about meetings and notice

         14        and all of that, the question still remains that in order

         15        to be a collegial body that there has been a personal

         16        request that we do this.

         17             And I recommend as the Chair that we do that and it

         18        will go on the calendar and it then will be set for a time

         19        certain.  Commissioner Freidin?

         20             COMMISSIONER FREIDIN:  Mr. Chairman, now I'm confused

         21        because it is my understanding that with unanimous consent

         22        this can go on the calendar to be reconsidered, but it is

         23        also my understanding that there has been an objection.

         24        So I don't understand what we are doing here.  I'm

         25        confused.


          1             CHAIRMAN DOUGLASS:  We haven't voted yet.

          2             COMMISSIONER FREIDIN:  Well, I heard Commissioner

          3        Riley stand up and say that she objected.

          4             CHAIRMAN DOUGLASS:  Well she did then but there has

          5        not been a vote, but we are going to take a vote as soon

          6        as everybody is satisfied that they have said what they

          7        need to say.  If there are no further -- Commissioner

          8        Riley?

          9             COMMISSIONER RILEY:  Mr. Chairman, could we put this

         10        off for a little bit and let us think about the process

         11        rather than voting right now.  I am willing to not object

         12        and to withdraw my objection, but I am not real favorably

         13        leaning in that direction.  I would like to have a few

         14        minutes and maybe at the beginning after lunch we could

         15        have this vote again.

         16             CHAIRMAN DOUGLASS:  Without objection, I'll give you

         17        a few minutes.  Commissioner Mills?

         18             COMMISSIONER MILLS:  Mr. Chairman, I think that what

         19        you need to do is have a few minutes to describe precisely

         20        what will happen at a given time.  I think if the idea is

         21        we want to have people present, we want to debate the

         22        issues on the merits, people feel very strongly about

         23        this, I suspect if you had an outcome the other way you

         24        would have another motion to reconsider the other way.

         25        What we need to do, I suppose, is whatever the consequence


          1        of Commissioner Langley's is, we have to precisely define

          2        what we are going to do.  If that is at 2:00 we are going

          3        to spend half an hour debating the merits of parental

          4        consent.

          5             CHAIRMAN DOUGLASS:  We are going to give Commissioner

          6        Riley here a few minutes.  And it is a little early for

          7        recesses but we will take one.

          8             COMMISSIONER BARNETT:  I want to raise the personal

          9        income tax, Mr. Chairman, I feel passionately about it.  I

         10        could be persuaded.

         11             (Laughter.)

         12             CHAIRMAN DOUGLASS:  Commissioner Barnett, you will

         13        have to get somebody that was absent to raise it.

         14             COMMISSIONER BARNETT:  I'm raising it right now to

         15        put people on notice that I could be persuaded here.

         16             CHAIRMAN DOUGLASS:  If we don't have anything to come

         17        out of this, we have the question of attendance that

         18        arises here.

         19             (Brief recess.)

         20             CHAIRMAN DOUGLASS:  Come to order, please.

         21        Commissioner Riley.

         22             COMMISSIONER RILEY:  Mr. Chairman, you have heard of

         23        a "come to Jesus meeting;" I had a come to Langley

         24        meeting.  There is no comparison, I don't think.  Except I

         25        will withdraw my objection.


          1             CHAIRMAN DOUGLASS:  Then by unanimous consent, this

          2        is placed on the calendar for reconsideration.  Am I

          3        right, Madam Secretary?  Commissioner Barkdull.

          4             COMMISSIONER BARKDULL:  Mr. Chairman, in light of

          5        that announcement, I would like to say it, and I'm going

          6        to suggest to the Rules Committee that this be scheduled

          7        for 1:00 p.m. tomorrow.

          8             CHAIRMAN DOUGLASS:  Okay.  You do that.  As a

          9        suggestion, that will be taken and noted.  All right.

         10        Commissioner Anthony?

         11             COMMISSIONER ANTHONY:  Members of the Commission,

         12        Mr. Chairman, I'm going to ask as well for a point of

         13        personal privilege.  The last week in February -- this

         14        Saturday, something happens in my life that I have been

         15        waiting on for a long time, and sovereign immunity is very

         16        important to me as many of you know.  And I don't think

         17        that I will be able to be here the last week in February

         18        to discuss that issue.  And I am requesting consideration

         19        of the commission on either tomorrow afternoon or Thursday

         20        morning.  Hopefully the Select Committee on Sovereign

         21        Immunity will have proposals that we can calendar, I think

         22        there are three proposals that we can calendar either

         23        tomorrow afternoon after they meet tonight or at latest

         24        Thursday morning because that is a very important issue

         25        and do I apologize but I hope that the Members of the


          1        Commission will understand.

          2             CHAIRMAN DOUGLASS:  That's a suggestion to the Rules

          3        Committee and it will be honored if it's at all possible.

          4             COMMISSIONER ANTHONY:  Mr. Chair, if --

          5             CHAIRMAN DOUGLASS:  You have to wait until they

          6        report.

          7             COMMISSIONER ANTHONY:  Yes.  If it is not, I want the

          8        commission to be aware that I will ask consideration on a

          9        point of personal privilege under the 10-minute rule to

         10        make statements in reference to sovereign immunity if no

         11        proposals are sent out.  So I encourage, if you will,

         12        their committee to do their work in diligence.  Thank you,

         13        Mr. Chair.

         14             CHAIRMAN DOUGLASS:  I think that will probably work

         15        for you to be here.  All right.  Proposal 180 is where we

         16        were.  Did you read it?  All right.  We are on Proposal

         17        180.  Please read it.  Commissioner Brochin, and it was

         18        disapproved by the Committee on Finance and Tax.

         19             READING CLERK:  Proposal 180, a proposal to revise

         20        Article VII, Section 4, Florida Constitution; providing

         21        that after a specified date, the Save-Our-Homes assessment

         22        limitation applies only to homestead parcels that have a

         23        just value of more than a specified amount, requiring

         24        provision to be made by general law for the coordination

         25        of this limitation with other assessment limitations set


          1        forth in Article VII, Section 4, Florida Constitution,

          2        allowing provision to be made by general law for adjusting

          3        the maximum just value to accommodate inflation.

          4             CHAIRMAN DOUGLASS:  All right.  Commissioner Brochin,

          5        you are recognized on the proposal.

          6             COMMISSIONER BROCHIN:  Okay.  This deals with an

          7        amendment to Article VII, Section 4 of the Constitution

          8        which has been affectionately referred to as

          9        Save-Our-Homes.  It was, quote, disapproved by the

         10        committee, but I should point out it was a 3-3 vote.

         11        Under our rules, that means it's unfavorable.  Perhaps I

         12        should take a moment to explain the mechanics of this

         13        Save-Our-Homes amendment.

         14             First of all, what it required was that in January of

         15        1994, all of the property was assessed at a value known as

         16        a just value for property, that is not the same as a fair

         17        market value, it is actually a little bit less.  Once the

         18        homestead property is locked in at a just value, it can

         19        not be changed or reassessed to a new just value until

         20        that property is sold in the future.  The increase of

         21        property, then, in the interim from the time of 1994 until

         22        whenever that property is sold is done in one of two ways.

         23        It can either go up by 3 percent, or it can go up by a

         24        number tied to the CPI, Consumer Price Index, whichever is

         25        lower.


          1             So the effect is that, over the years, property

          2        values may go up 100 percent, 200 percent, while the tax

          3        or the assessment on that home will only go up 3 percent

          4        or tied to the CPI.

          5             Now, we had a fairly detailed discussion yesterday

          6        about Florida's narrow tax base and it remains narrow

          7        today in the sense that property taxes are, in Florida,

          8        one of the largest source of revenues short of the sales

          9        tax.  What that amendment did when it was passed by a

         10        citizen initiative is begin to have assessments on homes

         11        that are really not related to the value of the property

         12        or the fair market value of the property, but rather

         13        arbitrarily tied to whether or not you sell your home in

         14        the future, at which time it would be reassessed to a just

         15        value.  It then just arbitrarily marks it up 3 percent or

         16        ties it into the CPI.

         17             Now, cognizant of the fact that this was a citizen's

         18        initiative and cognizant of the fact that it passed as a

         19        citizen's initiative, this proposal is a modest, and I

         20        would emphasize, a modest adjustment or revision to that

         21        particular amendment.  I would point out that the

         22        amendment was passed in 1992; it was passed, I believe, by

         23        53 percent in favor, 47 percent against.  And county-wise,

         24        I believe, 34 counties voted in favor of this amendment,

         25        while 33 counties voted actually against it in 1992.


          1             Now, what does this particular proposal do?  It takes

          2        a $200,000 assessed home and higher and exempts it out of

          3        this restricted assessment of just value.  Because what

          4        happens is, and what has happened is, and one of the

          5        reasons it's appropriate is, that we can look and revisit

          6        it now that we have seen it for four years, is to see what

          7        the affect is.  And the affect is clear, those that get

          8        the most expensive homes, those homes that appreciate the

          9        greatest in value are recognizing the greatest tax savings

         10        which is really not -- was the intent of the amendment in

         11        the first place.

         12             Just to know, in 1994 and in 1995 alone, $6 billion

         13        worth of assessed value came off of the tax roles as a

         14        result of Save-Our-Homes.  Now, what is going to happen in

         15        the future is local governments, as this inequity

         16        increases, have no other choice but to raise the Mills,

         17        millage rate to make up for the difference.  And the staff

         18        analysis, if you read it, very articulately points that

         19        out.  When it raises the millage rate to make up this

         20        difference, it will affect those in the lower valued

         21        income homes and the nonhomestead properties.

         22             Again, further narrowing that tax base, further

         23        putting, I believe, an inequitable burden on people that

         24        it shouldn't be.  Statistically, homes that are valued

         25        between $200,000 and $350,000 in the state of Florida


          1        represent about 4.3 percent of the homes in the state, but

          2        it does represent 30 percent of the tax breaks given to

          3        these particular properties.

          4             So, I would urge this as, again, a modest adjustment

          5        and a modest revision to an amendment that, I believe, in

          6        1992 was very well intended.  It was well intended so that

          7        government, local government, could not systematically

          8        increase the values of those assessed properties year in

          9        and year out, and yet afford those who owned property some

         10        assurance that it won't go up more than 3 percent or the

         11        CPI.  That is well intended.

         12             And this amendment will keep in place for 95,

         13        96 percent of the homes, that specific intent, that

         14        specific insurance that up to that point in time their

         15        homes will not be raised more than this 3 percent or CPI

         16        index but allow local governments some flexibility to

         17        assess them at their just value.  And you should recognize

         18        that it is not again a tax increase.  It is simply

         19        allowing them to assess the property at just value and tax

         20        them on that just value, which is really the whole

         21        centering source of a property tax.  So that is what this

         22        proposal is about.  And I urge you to pass it.

         23             (Commissioner Thompson assumes the Chair.)

         24             COMMISSIONER THOMPSON:  Further debate?  Commissioner

         25        Scott, you are recognized.


          1             COMMISSIONER SCOTT:  The committee voted, I started

          2        to say unanimously, but Martha Barnett, the sponsor of the

          3        personal income tax, voted with Commissioner Brochin on

          4        this proposal.  Save-Our-Homes, the property appraiser, I

          5        think, is from Lee County that did this, put this on the

          6        ballot, showed up and talked at the meeting.  And, I mean,

          7        he explained and we all kind of understand and I

          8        understand it real well, being from South Florida and most

          9        of the coastal areas will understand it, that people

         10        bought homes for 50,000 or 100,000 or 80,000 and now they

         11        are worth 4- or 500,000, and they are retired.  And

         12        Save-Our-Homes says that you don't tax their property

         13        except -- you can increase it like 3 percent until they

         14        dispose of it or they pass away, and, you know, then it

         15        can be assessed at the full value.

         16             What Commissioner Brochin is doing is saying, Well,

         17        200,000 is the cut off.  But the trouble with that is, in

         18        most of the coastal areas, homes -- I mean, a home that I

         19        lived in for 20 years, that I bought for 45,000, I sold

         20        for 200 ten years ago.  Another property appraiser showed

         21        up from Franklin County and he pleaded and made the case

         22        that Apalachicola, that the values have gone up and exceed

         23        far more than 200,000 and yet people are living there and

         24        working there at a scale that would suit a $40,000 home

         25        for taxation, but because of the explosion in values.


          1             So, do whatever you like, but I think is one more --

          2        and one other thing, since I'll be the messenger, this is

          3        not me, I don't care what you do particularly, but I will

          4        tell you that this property appraiser, told us, and

          5        Commissioner Brochin will tell you, that he said I've got

          6        all the -- in my computer, everybody that signed this

          7        petition for Save-Our-Homes and if this goes on the

          8        ballot, he's going to reactivate and then there will be no

          9        leeway, basically threat, whatever you take it as, a

         10        warning that he made, there would be no leeway for

         11        adjustment for inflation.  But I don't think that's a

         12        reason; I hear threats like that all of the time in the

         13        Legislature.

         14             But on its merits here, I just think to modify that,

         15        when the people did speak, it was not a huge majority,

         16        unlike some of the issues that were brought up like term

         17        limits and whatever, but it was voted in fairly recently

         18        for constitutional change, and so I would suggest that you

         19        don't want to put this on the ballot as a part of the

         20        product of this commission.

         21             COMMISSIONER THOMPSON:  Further debate?  Commissioner

         22        Barnett.

         23             COMMISSIONER BARNETT:  Thank you, Mr. Chairman.

         24        Since Commissioner Scott has implicated me in this debate,

         25        I thought I would defend myself momentarily and tell you


          1        why I supported Commissioner Brochin's proposal.  And in

          2        order to do that, there's not a better explanation for it

          3        than exists in the staff analysis, so let me read you a

          4        few things contained in the staff analysis.  It's on

          5        Page 2.  A study of the annual impact of Save-Our-Homes

          6        indicates that 40 percent of Florida homeowners will see

          7        no tax savings from the amendment.  Forty percent see no

          8        tax savings from the amendment.  Eight percent of all tax

          9        benefits will go to the 20 percent of Florida's homeowners

         10        and most of these benefits will go to owners of the

         11        expensive homes.

         12             Homesteads valued between 200- to $350,000 comprise

         13        approximately 4.3 percent of all homestead parcels in

         14        1995.  A simulation model predicts that they will receive

         15        about 30 percent in bill reductions over the next 20

         16        years, contrasted with this are the tax savings for

         17        homesteads valued under $100,000.  Seventy percent of all

         18        homesteads fall into this category.  They will receive

         19        about 10 percent in tax savings over the same time period.

         20             This proposal to me is a tax equity provision and

         21        really implements what I think were the sentiments of the

         22        people of the state when they voted for Save-Our-Homes.

         23        And that was designed for people to not have to pay huge

         24        property taxes on appreciated value.  People who have

         25        expensive homes will still get a benefit from this, just


          1        not as much as it will under the law as it currently is in

          2        the Constitution.  The real benefit, if you adopt this, is

          3        you will spread out, you will spread out some of this ad

          4        valorem tax savings, the impact of that, to people in the

          5        lower income level, because what's happening now is the

          6        millage rate is going up and they are paying more taxes.

          7             So, while they may think that there's some benefit,

          8        it's really a net, net loss to many people.  And that's

          9        why you see 40 percent are getting no benefit from the

         10        Save-Our-Homes.  And I felt this was a good tax equity

         11        provision that really did capsulize the original intent of

         12        the proposal.

         13             COMMISSIONER THOMPSON:  Further debate?  No

         14        amendments on the desk.  Commissioner Lowndes.

         15             COMMISSIONER LOWNDES:  Yes, I would like to oppose --

         16        rise to oppose this provision.  To me, it is kind of a

         17        populous provision.  I voted against it in the Tax and

         18        Finance Committee, and I think that it is a deal where

         19        it's okay to tax the rich people so, everybody would vote

         20        for that, I just don't think that's the kind of spirit

         21        that we need, and it kind of goes philosophically against

         22        what I believe in, to tell you the truth, but I think that

         23        the real crux of this is, and here I live in Winter Park,

         24        and there's a lot of houses in Winter Park which were

         25        built in the '60s and '70s and people bought them for 75-,


          1        $100,000, and now the lots that these houses are on are

          2        worth, you know, $200,000 or so.  An awful lot of these

          3        people are retired people living on fixed incomes and

          4        their homes have appreciated beyond the $200,000 figure.

          5             I think that those are the people that really should

          6        be protected by the Save-Our-Homes provision and those are

          7        the people who we are going to take out of the

          8        Save-Our-Homes provision.  So I think it is a bad idea.  I

          9        think it's a bad philosophy and I would vote against it.

         10             COMMISSIONER THOMPSON:  Further debate?  Commissioner

         11        Brochin to close.

         12             COMMISSIONER BROCHIN:  First, let me just clarify one

         13        thing.  If you bought a home in 1965 and it appreciated

         14        all the way to 1994, that home was assessed in January of

         15        1994 to a just value.  So, if you bought a $75,000 home in

         16        1965 and in 1994 it was valued at $500,000, you are today

         17        paying an assessed value on the $500,000.  It is really a

         18        forward looking proposal.  And the reason it is a forward

         19        looking proposal is it is an effort to spread out or tax

         20        base, which is a theme in Florida's tax system that needs

         21        some significant addressing, which we are attempting to do

         22        here, constitutionally.  And unfortunately,

         23        constitutionally, we are attempting to take efforts to

         24        spread out this tax base.  It's fine today and you don't

         25        hear the hew and cry, to use an off-sided term, from the


          1        people because Florida is doing well today.  We are very

          2        flush in our economy.

          3             But we are about revising the Constitution to prepare

          4        ourselves not for today or tomorrow, but for the next 20

          5        years.  And to constitutionally strap another tax base on

          6        homes that are going to be worth hundreds and hundreds and

          7        hundreds of thousands of dollars and not being paid a fair

          8        tax on the value of that home, I would suggest is short

          9        sided.  The reason property taxes are critical to the

         10        operation of the state of Florida is because we don't have

         11        an income tax.  And we have a sales tax and we have a

         12        property tax.  If that's the way we go, my God, we ought

         13        to at least allow the taxing of that property to be

         14        assessed on its value.  That is the whole concept.  You

         15        have the ability to pay because the property is valued at

         16        that amount and you pay a fair share based on that amount.

         17             And as Commissioner Barnett pointed out, the effect

         18        of this is that those with the wealthy homes are getting

         19        the huge tax savings where those with the less expensive

         20        homes and the homes that aren't inflating as much are

         21        getting no savings and thus are going to be called upon to

         22        make up the difference.  So, I still think it is a modest

         23        proposal, but one well worth our consideration.

         24             COMMISSIONER THOMPSON:  And so the question recurs on

         25        passage of Proposal No. 180.  The Secretary will unlock


          1        the machine and the members will proceed to vote.

          2             (Vote taken and recorded electronically.)

          3             COMMISSIONER THOMPSON:  All members voting.  All

          4        members voted?  Secretary will lock the machine and record

          5        the vote.

          6             READING CLERK:  Seven yeas, 19 nays, Mr. Chairman.

          7             COMMISSIONER THOMPSON:  The measure fails to pass.

          8        Take up and read the next proposal.

          9             READING CLERK:  Proposal 91, a proposal to revise

         10        Article VII, Section 4, Florida Constitution; providing

         11        for certain pollution control devices to be classified by

         12        general law and assessed solely on the basis of character

         13        or use.

         14             COMMISSIONER THOMPSON:  Commissioner Hawkes, you are

         15        recognized.

         16             COMMISSIONER HAWKES:  I would like to TP this,

         17        please.

         18             COMMISSIONER THOMPSON:  Show that TP'd without

         19        objection.  Take up and read the next proposal.  That is

         20        184; 184 is not before us at this time.  Okay.  Do you

         21        want to take up -- wait a minute, it's on the way.  Is

         22        this 184 now?  Is the amendment distributed?  Has it been

         23        distributed?  Okay.  Read Committee Substitute for

         24        Proposal 184.

         25             READING CLERK:  Proposal 184, a proposal to revise


          1        Article VI, Section 1, Florida Constitution; providing

          2        that the Legislature shall prohibit certain conduct in

          3        connection with elections.

          4             COMMISSIONER THOMPSON:  Okay.  Commissioner Rundle,

          5        you are recognized.

          6             COMMISIONER RUNDLE:  We are offering this as a

          7        substitute to the pending amendment which was filed, I

          8        guess, the last time we met.  And basically, what this

          9        language does, and I'm sorry Commissioner Mills isn't

         10        here, but what we were trying to do was get to the

         11        behavior that's --

         12             COMMISSIONER THOMPSON:  Commissioner Rundle, I'm

         13        advised by the Secretary, if you will hold on for a minute

         14        and let us read.

         15             COMMISIONER RUNDLE:  Okay.

         16             COMMISSIONER THOMPSON:  What we have done is

         17        previously, we have temporarily passed this Proposal 184.

         18        It had a pending amendment.  Now, Commissioner Rundle and

         19        others have worked out a substitute for that pending

         20        amendment which is going to be a strike everything and

         21        insert.  So the new proposed amendment will be the

         22        proposal.  So let's read that at this point.  We'll take

         23        that up and then when you're explaining, you'll be

         24        explaining --

         25             COMMISIONER RUNDLE:  I apologize, I thought he had


          1        read it.

          2             COMMISSIONER THOMPSON:  Okay.  Read the amendment.

          3             READING CLERK:  By Commissioners Rundle, Freidin, and

          4        Mills, CRC amendment, delete everything after the

          5        proposing clause and insert lengthy amendment.

          6             COMMISSIONER THOMPSON:  Okay.  Commissioner Rundle,

          7        you are recognized now.  And I guess everybody has this on

          8        their desk available and before them.  Hearing nobody

          9        objecting to it, go ahead.

         10             COMMISIONER RUNDLE:  Do you want to speak to it or do

         11        you want me to --

         12             (Off-the-record comment.)

         13             COMMISSIONER THOMPSON:  All right.  Commissioner

         14        Mills, are you going to explain this proposal?

         15             COMMISSIONER MILLS:  Mr. Chairman, I would just

         16        say -- I think Commissioner Freidin will explain it, but

         17        to explain why we are here, we have been trying to get

         18        something that's simple and responds to the general

         19        public's concern about corrupt practices during election

         20        activities.  And we have gone through long versions, short

         21        versions, et cetera, I think Commissioner Freidin working

         22        with the staff has come up with something that's clear and

         23        understandable and Commissioner Freidin may wish to

         24        explain it.

         25             COMMISSIONER THOMPSON:  Commissioner Rundle, for what


          1        purpose?

          2             COMMISIONER RUNDLE:  Well, Mr. Chairman, if I may,

          3        I'm going to attempt to try to explain why -- how we got

          4        to this language.  You may recall that what we were

          5        attempting to do was under the law, as I understand it, if

          6        a public official commits a crime, the Governor has the

          7        ability to suspend and ultimately remove a person from

          8        office; however, that act has to be committed while they

          9        are in office.

         10             So, what we were attempting to do was to address the

         11        behavior, which any bad behaviors, violations of election

         12        laws that occur during the candidacy, that they should

         13        also be subject to some kind of consequence, which we

         14        believe should be removal or suspension, as if it had been

         15        committed while they are in office.  And the philosophy

         16        being that you shouldn't benefit from those bad acts and

         17        then become a public official and then be immune from

         18        suspension or removal, so we came up with this language,

         19        which we believe is clear, which we believe is fair.  It

         20        won't address the candidates that don't make it, but they

         21        would still be subject to all of the election violations

         22        that might occur.

         23             COMMISSIONER THOMPSON:  Commissioner Smith, for what

         24        purpose?

         25             COMMISSIONER SMITH:  I rise for a question.


          1             COMMISSIONER THOMPSON:  The lady yield to a question?

          2             COMMISIONER RUNDLE:  Absolutely.

          3             COMMISSIONER THOMPSON:  She yields.

          4             COMMISSIONER SMITH:  This is definitely the right

          5        person to ask the question.  Let's just say we are having

          6        a campaign in our beloved Miami-Dade County Florida, which

          7        can be very interesting, and let's just say that a

          8        candidate committed the crime of littering, and was

          9        convicted of the criminal offense of littering.  That was

         10        committed during the campaign, and it was his campaign

         11        signs which were related to the campaign, can that

         12        candidate be punished and removed from office for

         13        committing the criminal offense of littering?

         14             COMMISIONER RUNDLE:  Well, I don't think littering is

         15        a criminal offense.  I think that commercial dumping is,

         16        but I think that littering is really a civil violation.

         17        But I think your point is well taken, nonetheless.  I

         18        mean, as we read this, we believe that it has to be

         19        related to the campaign, and if you want to offer an

         20        amendment that would say the violated campaign or election

         21        laws, I could see that as very good language to add to

         22        this.

         23             COMMISSIONER THOMPSON:  Commissioner Brochin, for

         24        what purpose?

         25             COMMISSIONER BROCHIN:  A question.


          1             COMMISSIONER THOMPSON:  The lady yield?  She yields.

          2             COMMISSIONER BROCHIN:  Who has the power to remove

          3        the public official from office?

          4             COMMISIONER RUNDLE:  Well, I think that what the

          5        intent of the authors was that, as the law stands now with

          6        respect to the Governor and the Senate being able to

          7        address those particular officials, that that would remain

          8        the same, but this just extends to the acts committed

          9        during the candidacy of their campaign.

         10             COMMISSIONER BROCHIN:  But is it -- I just want to be

         11        clear.  So the Senate could remove these officials once

         12        the conviction of the crime occurs, but the Governor, in

         13        the interim, would not have suspension powers?

         14             COMMISIONER RUNDLE:  Well, since you did this for so

         15        many years, maybe you can help us with the answer to that.

         16             COMMISSIONER BROCHIN:  The way I read it, the answer

         17        would be the Senate -- that's why I wanted to clarify

         18        it -- I read it to mean the Senate could remove, but the

         19        Governor would not have any suspension powers in the

         20        interim.

         21             COMMISIONER RUNDLE:  I don't think that was our

         22        intent.

         23             COMMISSIONER BROCHIN:  That's how I read it.

         24             COMMISIONER RUNDLE:  I think our intent was to

         25        preserve the abilities that the Governor presently has for


          1        acts committed as a public official but really to extend

          2        it, suspend it and renew it, if that's language that you

          3        want to contribute.  Do you want to add "suspended and

          4        renewed"?

          5             COMMISSIONER BROCHIN:  I do not.  I do not think this

          6        is a good idea.

          7             COMMISSIONER THOMPSON:  Commissioner Barkdull, for

          8        what purpose?

          9             COMMISSIONER BROCHIN:  I just want to be clear on why

         10        it's not such a good idea.  I guess my other question

         11        though is for clarification is, does the Governor today

         12        under the Constitution -- and I'm not sure of this, and

         13        maybe somebody can answer -- today, have the ability to

         14        suspend and then the Senate remove if after being elected,

         15        they are indicted for the crime even though the indictment

         16        relates to acts prior to the election?

         17             Okay.  Well, if the answer to that is yes, then why

         18        do we need this proposal?  Isn't that already there -- in

         19        other words, if he's elected, the public official is

         20        elected and then after the election that public official

         21        is indicted after the election, if the Governor can

         22        suspend and Senate remove under those circumstances, what

         23        situation does this cover that the existing powers don't

         24        already cover?

         25             COMMISIONER RUNDLE:  Again, I know that this is


          1        something that you did for years, but my understanding was

          2        that it had to be related to his office for public

          3        official.  And we can pull the language again and make

          4        sure, but I thought that the Governor had that ability if

          5        the public official had committed those acts as it related

          6        to his office.  So, this extends its acts before he gets

          7        to that office.

          8             COMMISSIONER THOMPSON:  Okay.  Do you want to proceed

          9        or temporarily pass it again or what?

         10             COMMISIONER RUNDLE:  No.

         11             COMMISSIONER THOMPSON:  Okay.  We are on this

         12        measure.  Commissioner Langley, for what purpose?

         13             COMMISSIONER LANGLEY:  Will the commissioner yield

         14        for a question?

         15             COMMISSIONER THOMPSON:  She yields.

         16             COMMISSIONER BARKDULL:  Commissioner Rundle, yours

         17        would include even second degree misdemeanors, would it

         18        not?

         19             COMMISIONER RUNDLE:  Yes, sir.

         20             COMMISSIONER LANGLEY:  So if in a campaign a senator

         21        trespassed and tacked a vote for me or put a sign on a

         22        fellow's fence post, which would be a trespass, he could

         23        be removed from office?

         24             COMMISIONER RUNDLE:  And I appreciate what's behind

         25        that question.  It is the same question that Commissioner


          1        Smith really asked.  As I said, I think the only way to

          2        really clear that would be to say violation of the

          3        election laws.

          4             COMMISSIONER THOMPSON:  We are on the substitute

          5        amendment for the pending amendment.  Is there further

          6        debate?  Hearing none, the question recurs on the adoption

          7        of the substitute amendment.  All those in favor of the

          8        adoption of the amendment say yea.  Those who oppose it,

          9        say no.

         10             (Verbal vote taken.)

         11             COMMISSIONER THOMPSON:  The amendment is adopted.

         12        Now let's do this.  And that just puts us where they want

         13        us to be and then we'll vote on the final passage of the

         14        measure.  Okay.  Now, we are on the proposal as amended.

         15        Is there debate on the proposal as amended before I allow

         16        Commissioner Rundle to close?  Commissioner Rundle, you

         17        are recognized to close.

         18             COMMISIONER RUNDLE:  Thank you, Mr. Chairman.  I

         19        think this is probably the easiest closing I've ever done

         20        because I don't want to waste everybody's time on this.

         21        So I think the best thing to do is just proceed to vote.

         22             COMMISSIONER THOMPSON:  So the question recurs on

         23        passage of Committee Substitute for Proposal 184.  The

         24        Secretary will unlock the machine and the members will

         25        proceed to vote.  All members voted?  All members voted?


          1        The Secretary will lock the machine and announce the vote.

          2             (Vote taken and recorded electronically.)

          3             READING CLERK:  Seven yeas, 16 nays, Mr. Chairman.

          4             COMMISSIONER THOMPSON:  So, the measure fails.  We

          5        are on a roll since I got up here.  We are killing

          6        everything.  Take up and read the next one.

          7             READING CLERK:  Proposal 13, a proposal to revise

          8        Article I, Section 22, Florida Constitution; providing

          9        that a defendant charged with a capital offense may not be

         10        sentenced to death unless such a sentence is recommended

         11        by nine members of a jury of 12 persons.

         12             COMMISSIONER THOMPSON:  Okay.  Whose proposal is

         13        this?  Commissioner Brochin, this is your proposal.  Now,

         14        and the first amendment is yours.  Do you want to go ahead

         15        and read the amendment and then explain it?  Okay.  Read

         16        the first amendment by Brochin.

         17             READING CLERK:  By Commissioner Brochin, on Page 1,

         18        delete Lines 20 through 22, and insert:  No person shall

         19        be sentenced to death unless unanimously recommended by a

         20        12 person jury.  This Subsection shall not retroactively

         21        affect any death sentence imposed before its effective

         22        date.

         23             COMMISSIONER THOMPSON:  Commissioner Brochin to

         24        explain the amendment.

         25             COMMISSIONER BROCHIN:  Okay.  This subject is the


          1        death penalty.  And this amendment goes to the death

          2        penalty.  Let me first just briefly tell you what this

          3        proposal does.  It requires and it's actually very simple

          4        in its constitutional context.  It requires a jury of 12

          5        persons to unanimously recommend the death penalty before

          6        it can be imposed in the state of Florida.  That's it,

          7        there's not much more to it.  It requires 12 persons to

          8        recommend the death penalty before it can be imposed in

          9        the state of Florida.

         10             Now, Florida was the first state after the United

         11        States Supreme Court decided that capital punishment was

         12        constitutional to institute it, this was 20 years ago.

         13        And now, we are looking at this thing after that decision

         14        in the mid '70s to decide how, if at all, to revise the

         15        death penalty.  So, I think you first must look at what

         16        the death penalty calls for in this state and how it's

         17        being invoked.  Because, you should make no mistake about

         18        it.  It is constitutional in nature, and let me tell you

         19        why it's constitutional in nature.  Executions in the

         20        state of Florida are carried out at 7:00 a.m. in the

         21        morning.  And before they are carried out, the warden in

         22        Starke gets on the telephone with three public officials,

         23        the Attorney General for the state, the Chief Justice of

         24        the Supreme Court, and the Governor of the state of

         25        Florida.


          1             And before the warden will allow the execution to go

          2        forward, she asks each one of those public officials

          3        whether or not there's any reason why this execution

          4        should not go forward.  And I promise you that each one of

          5        them, when they say no, invokes the Constitution of the

          6        state of Florida as the reason why that death sentence is

          7        carried out.

          8             So, what has Florida's death penalty and death

          9        sentencing shown for us?  Florida basically executes on

         10        the average of two people a year.  Florida, on the

         11        average, sends 20 people to death row every year.  That's

         12        why we have close to 400 people sitting on death row right

         13        now.  But, and this is a statistic to keep in mind, last

         14        year alone, 400 people were convicted of first degree

         15        murder and are not on death row, 400.  So the 420 that

         16        were convicted, 20 went to death row, and we know 400

         17        didn't.  So, that tells us, as we know, that not everybody

         18        who commits first degree murder in the state of Florida is

         19        going to receive the death penalty.

         20             In fact, we know that 95 percent of those people who

         21        are convicted of first degree murder are not going to

         22        receive the death penalty.  So, the question occurs, how

         23        do we select, and for what purpose does our state select

         24        those 20 to go to death row?  I would submit to you what

         25        we try to do is send those who have committed the most


          1        heinous and the most atrocious crimes to death row for

          2        execution.  I will also tell you that doing so without a

          3        unanimous jury consent or agreement lends to an arbitrary

          4        and capricious result.

          5             Today the way it works is that the prosecutor stands

          6        up, he'll voir dire a jury or question a jury about their

          7        views on the death penalty.  That jury will hear all of

          8        the evidence, that jury will convict by a unanimous

          9        consent that person of first degree murder, that jury will

         10        then go and hear evidence as to whether the death penalty

         11        is appropriate.  That jury will deliberate over whether

         12        the death sentence is the appropriate penalty.  That jury

         13        will make a recommendation to the judge as to whether the

         14        death sentence is an appropriate sentence, and then the

         15        judge decides, notwithstanding that jury's recommendation,

         16        whether the death sentence should be invoked.  It is an

         17        override potential that our judges have today.

         18             Now, what do other states do?  How do we stack up?

         19        Twelve states don't even have the death penalty.  Of the

         20        38 that remain, 28 states require a unanimous jury

         21        decision, 28.  Of the ten left, only two allow a judge,

         22        like Florida, to override that jury's decision; the other

         23        state is Alabama.

         24             This proposal, I believe, is fundamentally right.

         25        Some may argue, not fundamentally fair to the victims, but


          1        I'm saying it's fundamentally right.  What it is saying is

          2        that the 12 persons who heard the evidence, the 12 persons

          3        who unanimously decided to convict that person should be

          4        the 12 -- same 12 persons who ultimately make the decision

          5        for our state as to whether we want to impose that

          6        penalty.

          7             Now, how does this compare to the other things in our

          8        judicial system?  It takes 12 persons to take your

          9        property in a condemnation action, it takes 12 persons to

         10        unanimously take your property in a condemnation action.

         11        Proposal No. 1 by this constitutional body revision

         12        commission voted favorably that it takes a unanimous jury

         13        to take your property in the commission of a crime, and

         14        that too has to be unanimous by a jury.

         15             If a civil lawsuit is filed against me for $15,000, I

         16        have a right to a jury trial and a unanimous jury decision

         17        to take my $15,000.  I suggest a constitutional protection

         18        that requires that same unanimous requirement to take

         19        somebody's life be placed in our Constitution.  Our

         20        criminal justice system is really a corner stone for

         21        democracy.  And although people don't like to admit this

         22        or speak about it, it is structured so the guilty can go

         23        free in light of the innocent not being imprisoned or

         24        executed.  That's the system we have, it is a good system,

         25        it recognizes that human beings in judging other human


          1        beings make mistakes.  And when we recognize that other

          2        human beings make mistakes in judging other people, we

          3        build a system that says, We are going to ensure that the

          4        innocent are not -- their liberty and their life is not

          5        taken from them.  And that's why we require a unanimous

          6        jury verdict.

          7             Now, historically, things change to make the death

          8        penalty an arbitrary penalty.  I went back and I read the

          9        1978 Constitution Revision Commission debate on the death

         10        penalty, which was indeed inspiring, but Governor Leroy

         11        Collins spoke for one hour on the subject on this floor

         12        and urged a proposal that would have abolished the death

         13        penalty placed on the ballot, that proposal in the

         14        revision commission failed.  But what Governor Collins

         15        pointed out in that debate was that the death penalty as

         16        Governor is an arbitrary, and he used the term, "freakish

         17        event".  He gave an example that 42 African-Americans have

         18        been executed in the state of Florida for rape.  And then

         19        the Constitution, the same Constitution was in place,

         20        declared that to be an unconstitutional act.  That is an

         21        arbitrary and freakish decision.

         22             I think you ought to keep one statistic in your mind

         23        when you vote on this proposal, and that's this; in the

         24        last 20 years, the last 20 years in our country, 70, 70

         25        people have been released from death row because of


          1        indicia of evidence, 70.  Now, that may occur, it may not

          2        occur.  I suggest to you, that the consistent factor of

          3        having a jury unanimously say that this person was guilty

          4        and is worthy of the death penalty is a protection against

          5        an arbitrary decision and, worse yet, a decision that

          6        could lead to the execution of someone who is indeed

          7        innocent.  Now, I know people don't like to talk about the

          8        death penalty.  It is not a very comfortable decision and

          9        it's not a very popular one.

         10             In fact, when I made the proposal early on, I was one

         11        of the first people to appear before Commissioner Smith's

         12        committee and the first thing he said was, Gee, I wish you

         13        didn't draw the No. 13 for this proposal.  This is not a

         14        proposal, and I hope you don't take it this way, that

         15        should be considered as someone who is in favor or someone

         16        who is against the death penalty, because I really did not

         17        bring it forward in that political spirit.  I really

         18        brought it forward as a way of, when the system works its

         19        way through and all of those that are charged under the

         20        Constitution with carrying this out, have the knowledge

         21        and the ability and the reliance on a unanimous jury.

         22             So, I suggest this proposal be adopted, I suggest

         23        that we go out and educate the people about this.  I think

         24        once they are educated about these facts and statistics,

         25        they, even though they believe the death penalty should be


          1        carried out, will believe that this is an appropriate

          2        protection for our Constitution and something that they

          3        are going to want to have in their Constitution for the

          4        protection of those people before they are executed.  And

          5        I hope that you will give it that consideration for what I

          6        think is a very serious matter.

          7             COMMISSIONER THOMPSON:  Commissioner Sundberg, for

          8        what purpose?

          9             COMMISSIONER SUNDBERG:  For a question.

         10             COMMISSIONER THOMPSON:  He yields.

         11             COMMISSIONER SUNDBERG:  Commissioner Brochin, does --

         12        and by the way, I intend to support this, but I have some

         13        concerns about if Furman still has any vitality, and who

         14        knows, but our death penalty statute was held

         15        unconstitutional under the Furman premise because it did

         16        not have a structured decision making process, and that's

         17        how we ended up with what we have today.  Does this

         18        eliminate the judge's right to override?

         19             COMMISSIONER BROCHIN:  No, it does not.

         20             COMMISSIONER SUNDBERG:  It does not.  In other words,

         21        even though there's a unanimous decision by the jury to

         22        either not impose the death penalty or to impose the death

         23        penalty, the judge can override that decision.

         24             COMMISSIONER BROCHIN:  No, no, I misspoke then.  I

         25        misunderstood the question.  What this does is place a


          1        constitutional question that says before anyone, or

          2        particularly a judge, sentences somebody to death, he has

          3        to, as a minimum, have a unanimous jury recommendation.

          4             COMMISSIONER SUNDBERG:  By death, of death, a

          5        recommendation of death.

          6             COMMISSIONER BROCHIN:  That is the minimum.  It does

          7        not, in any way, otherwise, affect the system that's in

          8        place, except to that extent.  Today, the judge can impose

          9        the death penalty, no matter what the jury recommends,

         10        this raises it up and says simply, he can not impose it

         11        unless there's a unanimous recommendation to that extent.

         12        If there is a unanimous recommendation, he's constantly

         13        permitted to move forward as he was with the case at that

         14        point.

         15             COMMISSIONER SUNDBERG:  Then as to life, it leaves it

         16        absolutely in the hands of a unanimous jury.

         17             COMMISSIONER BROCHIN:  If the unanimous jury, if the

         18        jury comes back and does not recommend unanimous death,

         19        then the options for that judge are the same except he can

         20        not impose the death penalty.

         21             COMMISSIONER SUNDBERG:  And you are not concerned

         22        that that might run afoul of the Furman decision as I say

         23        to the extent that it still has vitality.

         24             COMMISSIONER BROCHIN:  I am not, I am not.

         25             COMMISSIONER THOMPSON:  Further debate?  Commissioner


          1        Rundle.

          2             COMMISSIONER RUNDLE:  Question.

          3             COMMISSIONER THOMPSON:  He yields.

          4             COMMISIONER RUNDLE:  I want to make sure I

          5        understand.  If the jurors come back 12-0 for death, the

          6        jury cannot give life if they think that that particular

          7        recommendation by the jury is inappropriate in that case;

          8        is that correct?

          9             COMMISSIONER BROCHIN:  No, that is not true per this

         10        Constitutional amendment.  There are other factors that

         11        are still in the system now that would allow the judge to

         12        consider it, whether he wanted to take a unanimous jury

         13        recommendation and reduce it, say, to life imprisonment

         14        without parole.  That would not be constitutionally

         15        impermissible.  It may be impermissible otherwise.

         16             COMMISSIONER RUNDLE:  Okay.  So the 12-0 for death

         17        would not be the final determining factor?

         18             COMMISSIONER BROCHIN:  Not necessarily.  It is not a

         19        mandate by the jury, it is simply a protection

         20        constitutionally, and that's why I think it is appropriate

         21        in the Constitution.

         22             COMMISSIONER THOMPSON:  Okay.  We have a substitute

         23        amendment on the desk.  Read the substitute by

         24        Commissioner Douglass.

         25             READING CLERK:  Sub amendment by Commissioner


          1        Douglass, on Page 1, Line 20 through 22, delete those

          2        lines and insert, The jury shall sentence a defendant

          3        convicted of a capital offense.  The jury shall sentence a

          4        defendant convicted of a capital offense to death by a

          5        vote of nine members of the jury, life imprisonment in

          6        solitary confinement without possibility of parole by a

          7        vote of seven members of the jury or to life imprisonment

          8        without possibilities of parole by a vote of seven members

          9        of the jury.  In the event of a nondecisive jury vote, the

         10        sentence of life imprisonment without possibility of

         11        parole shall be imposed.

         12             COMMISSIONER THOMPSON:  Okay.  Commissioner Douglass,

         13        you are recognized on your amendment.

         14             CHAIRMAN DOUGLASS:  Mr. Chairman, Members of the

         15        Commission, I think this is fairly self-explanatory but I

         16        will like to discuss it because I think it is one of the

         17        major issues that we are going to deal with.  I don't

         18        agree that we should have a unanimous vote for the death

         19        penalty and leave it at that.  I think the design of that

         20        would be to, in effect, eliminate the death penalty for

         21        all practical purposes.  It is very difficult to get a

         22        jury today that at least one person does not feel that you

         23        should not do the death penalty.  That is not always the

         24        case, but it is very difficult.

         25             I propose that you have a death penalty imposed by


          1        nine members of a 12 person jury, recognizing that that is

          2        a substantial majority of those on the jury.  But then the

          3        important part of my amendment which I call your attention

          4        to is the adoption of the federal rule that can apply in

          5        death penalty cases and was applied in Denver.  And that

          6        is the jury have the alternative of sentencing a person to

          7        solitary confinement without possibility of parole by

          8        majority vote of the jury.

          9             That would mean that a person before the jury who had

         10        committed a crime sufficient, perhaps even to warrant the

         11        death penalty, the jury would have the option of knowing

         12        that they put that person in a punishment position for the

         13        rest of their natural life.  And they would not be in the

         14        position that they would be in the general prison

         15        population.  They would be in solitary confinement and

         16        this is also used in the federal system at the moment.

         17        Not only for people that are sentenced to death but some

         18        that are rather for capital crimes, but also for so-called

         19        incorrigible prisoners who are permanently in solitary

         20        confinement in federal facilities.

         21             This is punishment.  What the victims want can't be

         22        given.  They would like to have their lives back.  What

         23        the victims families need is closure.  What they need is

         24        an end to the interminable process that we have created by

         25        not dealing with this issue straight up.  What they want,


          1        the 380 people that are on death row now, they have just

          2        warehoused and kept growing and growing because of the

          3        court's inability to deal with this problem, over the

          4        years has resulted in these cases not being heard, and

          5        these cases being heard over and over again and in us

          6        spending millions of dollars to keep these people on death

          7        row also to finance their collateral attacks on our

          8        courts.  The courts in effect are timid when it comes to

          9        carrying out the sentences as it relates to death for

         10        whatever reason.

         11             And people tend to bring their own personal feelings

         12        about this to their decision making process as judges.

         13        That's going to be done in many other areas but this is

         14        one in which people really have problems.  It is hard for

         15        the people that are involved in this process to go forward

         16        with the death penalty if they think there is any

         17        possibility that the man or woman might be innocent that's

         18        being executed, and that's understandable.

         19             On the other hand, I think the juries should be given

         20        the alternative to award sufficient punishment and

         21        sufficient imprisonment in a punishment situation that the

         22        families of the victims who are actually, and the general

         23        public, who are the ones that we are dealing with, the

         24        person that's the victim we can't deal with any more but

         25        the scars that are left on their families and their


          1        friends and on the general public by the State's inability

          2        to deal with these horrible crimes is given another

          3        alternative which would be taken.

          4             I realize it is hard for some of to you pay attention

          5        to this particular debate and I realize that most of you

          6        have the same strong feeling on this issue, but I can also

          7        assure you that what I am proposing I hope would be an

          8        improvement on a very flawed process that we have at the

          9        present time.  I leave intact the third provision which

         10        would be life imprisonment without possibility of parole

         11        by majority vote.  Or if you can't get a majority vote,

         12        the judge would then sentence them to life imprisonment

         13        without parole.

         14             That doesn't work, and the public knows it doesn't

         15        work.  We all know it doesn't work.  People that are

         16        sentenced to life imprisonment without parole for some of

         17        these murders very shortly are, not always but often, wind

         18        up with good behavior and minimum security involved in a

         19        very not, no prison is plushy, I want you to know that,

         20        kind of like the story about the Eglin field prison in the

         21        federal system, they did a survey and they found it was

         22        the most liked system by prisoners.  And in the whole

         23        federal system, there was one man who had been in all of

         24        them, he said Eglin was the best prison.  And they asked

         25        him about it; and he said, Well the best prison is not


          1        very good because I was confined and I had to take orders

          2        from the other inmates.  And he said they run the prison.

          3             And then they asked the warden, they said, Warden, is

          4        it true that your prison is a country club, that's what we

          5        have heard from people?  And he looked him in the eye and

          6        he says, If it is a country club, I have had absolutely

          7        nobody apply for membership in my club.

          8             So the prison, no matter what you are in, is a

          9        prison.  On the other hand, the victim's families and the

         10        public want these people that have committed these crimes

         11        to either be put to death or to be punished in some

         12        fashion that they can get closure on these cases.

         13             And, therefore, I am offering this amendment to

         14        arrive at what I hope would be a solution to the problem

         15        created by our present situation.  I think there is no

         16        greater thing in our legal system that causes more

         17        disrespect for the process of our courts than our present

         18        implementation or lack of implementation of the death

         19        penalty.  I personally don't feel very strongly that we

         20        should have the death penalty except I feel very strongly

         21        we should have it for those crimes for which there is no

         22        other justifiable sentence.

         23             I feel that we should always retain the right

         24        regardless of how many people feel otherwise or how many

         25        states don't or how many countries don't, we should always


          1        retain the right to execute the Rollings, the Bundys, the

          2        Stano, who committed 30 murders of women who is on death

          3        row and we cannot, because of stays by the Supreme Court,

          4        put him to death.  He was convicted of eight of those in

          5        the state of Florida and we still have him there after 15

          6        years and we cannot -- death warrants have been signed and

          7        the court keeps holding him up.  He should be executed

          8        because of what he did.  He forfeited his right as a human

          9        being and there is no other punishment that the families

         10        of these people could stand.

         11             Commissioner Henderson knows personally one of the

         12        families of one of those victims and he can tell you how

         13        it does and did because of the lack of closure in this

         14        case.  I therefore request that you seriously consider

         15        this amendment as an alternative to the death penalty as

         16        such, and give the jury the alternative to punish the

         17        person who might not be the Rolling, who might not be of

         18        that nature but would reserve to the jury the right to

         19        give the death penalty in any event.

         20             I would answer any questions that you might have

         21        about my amendment.

         22             COMMISSIONER THOMPSON:  Commissioner Mills?

         23             COMMISSIONER MILLS:  Mr. Chairman, would Commissioner

         24        Douglass yield?

         25             COMMISSIONER THOMPSON:  He yields.


          1             COMMISSIONER MILLS:  Commissioner Douglass, one of

          2        the criticisms of the death penalty is the expense of the

          3        death penalty.  And if the alternative here is life

          4        imprisonment in solitary confinement, is that less

          5        expensive in terms of state resources?

          6             CHAIRMAN DOUGLASS:  I believe that it is.  I can't

          7        give you the exact figures, but the figures for keeping

          8        people on death row are very significant and large and we

          9        keep them there for long, long periods of time, almost, in

         10        some instances, for life.  But it is not solitary

         11        confinement on death row but it requires a lot more

         12        security and a lot more people going and coming that have

         13        to be dealt with, and I think the facility could be set up

         14        that would make it much cheaper than our present system.

         15             It certainly wouldn't involve, sir, the very great

         16        expense of providing state paid lawyers and state paid

         17        experts to keep attacking these penalties, which is what

         18        we are doing now with the collateral attack business that

         19        we finance -- which when those people, when there is an

         20        execution coming, they suspend all operations around.

         21        They spend interminable amounts of money which would be

         22        eliminated under this particular proposal.

         23             They would not be entitled to the collateral

         24        representative.

         25             COMMISSIONER THOMPSON:  Commissioner Morsani?


          1             COMMISSIONER MORSANI:  I have a question.  As a

          2        layman I would like to ask two people, Judge Barkdull,

          3        first I would like to ask the former appellate court judge

          4        what his opinion is on this, especially on the amendment.

          5        And then I would like for Commissioner Sundberg with his

          6        former life to also comment on the amendment.

          7             COMMISSIONER BARKDULL:  Commissioner Morsani, for

          8        your information I was fortunate enough to serve on a

          9        court that did not consider death matters.

         10             COMMISSIONER MORSANI:  Well, but you still have a

         11        very --

         12             COMMISSIONER BARKDULL:  I don't think they are

         13        economically feasible.

         14             COMMISSIONER MORSANI:  But what do you think of the

         15        amendment, sir?

         16             COMMISSIONER BARKDULL:  Wait until I vote.

         17             COMMISSIONER THOMPSON:  Excuse me, Commissioner

         18        Morsani.

         19             COMMISSIONER MORSANI:  If Judge Sundberg or

         20        Commissioner Sundberg would you please address the issue.

         21             COMMISSIONER THOMPSON:  Commissioner Sundberg, do you

         22        wish to respond at this time?

         23             COMMISSIONER SUNDBERG:  Sure.  I think it is

         24        unconstitutional.

         25             CHAIRMAN DOUGLASS:  Commissioner Langley, for what


          1        purpose?

          2             COMMISSIONER LANGLEY:  A sane voice to the matter.

          3             CHAIRMAN DOUGLASS:  You are recognized.

          4             COMMISSIONER LANGLEY:  I agree with what Commissioner

          5        Douglass is trying to do and I just wonder, Commissioner

          6        Douglass, I have never heard a jury sentencing anybody and

          7        how do you follow the sentencing statutes that we have

          8        very distinctly spelled out the questions they asked, the

          9        responses they get, wouldn't the amendment be better if it

         10        said, The judge, upon recommendation of the jury, shall.

         11             CHAIRMAN DOUGLASS:  I think that would certainly be

         12        an acceptable alternative.  On the other hand, I think it

         13        has been held to be constitutional in the United States

         14        Constitution in Texas.  Texas, the jury sentences and they

         15        not only sentence in death cases in Texas, they sentence

         16        in all of the criminal cases and that's been held to be

         17        constitutional under the federal constitution.  I am not

         18        really too concerned with that recommendation idea, would

         19        certainly be one that I think if it would improve this, I

         20        would certainly agree to accept it.  What I'm looking for

         21        is an alternative to the death penalty which would make it

         22        much more, the penalties for these crimes much more

         23        enforceable than they are and to get the courts so that

         24        they don't totally go crazy when a death case comes before

         25        them.  I'll answer any other questions that anybody might


          1        have.

          2             In answer to your question specifically, Commissioner

          3        Langley, I don't have any objections to that if it is the

          4        rule of the body.

          5             COMMISSIONER THOMPSON:  Let's take up an amendment to

          6        the substitute by Commissioner Rundle.  Would you read the

          7        amendment, please?

          8             READING CLERK:  Amendment to the substitute amendment

          9        by Commissioner Rundle on Page 1, Line 16, delete the word

         10        "nine" and insert "seven".

         11             COMMISSIONER THOMPSON:  Commissioner Rundle, you are

         12        recognized.

         13             COMMISSIONER RUNDLE:  Thank you, Mr. Chairman.

         14        Commissioners, one reason I have offered this amendment --

         15        do you all have it on your, okay.  This is an amendment to

         16        Commissioner Douglass' amendment.  Well, actually, I guess

         17        Commissioner Douglass' is a substitute.  And essentially

         18        what he provides in his substitute proposal is death by a

         19        vote of nine members.  And I would ask if we could pass

         20        that out for the Commissioners so they have it in front of

         21        them.

         22             And I understand why Commissioner Douglass did that,

         23        it is because, I'm talking about my amendment, please --

         24             (Off-the-record comment.)

         25             COMMISSIONER RUNDLE:  It is, okay, good, thanks.


          1             Commissioner Douglass, I believe, chose the nine to

          2        three because, for those of you that may not know, it came

          3        out of committee that Commissioner Brochin's proposal was

          4        not approved and instead there was a substitute by the

          5        committee, I believe, Commissioner Smith, that said nine

          6        to three.

          7             So I understand why, Commissioner Douglass, you have

          8        put the nine to three, that makes sense because that was

          9        what was before the body.  The reason I offer the seven to

         10        five is as follows.  One, that is what the law is today.

         11        It takes a seven to five vote.  So what that does is, it

         12        prevents a lot of what I believe will be an outcry from

         13        communities all over the state because to change that

         14        number this will be viewed as an anti-death penalty

         15        provision.  There is just no doubt about it.  And you are

         16        going to have everyone who had a verdict in their case;

         17        mothers, fathers, brothers, sisters, sons, daughters are

         18        going to come out and say, Wait a minute, in my case where

         19        my son or my loved one was murdered, raped, beaten,

         20        tortured, you are going to tell me when the verdict came

         21        out seven to five that that wasn't justified in my case

         22        for my loved one?  You are going to have all of those

         23        people with signs, fighting particularly Commissioner

         24        Brochin's proposal.

         25             I think if you can avoid that kind of outcry, and you


          1        may not have seen it, you have the sheriff's association

          2        already all against it, you will have everyone in law

          3        enforcement against it.  You will have parents of murdered

          4        children all over the community, victims' advocates groups

          5        from wide across the state coming out to say this is

          6        anti-death penalty.

          7             There is something so visceral about this issue that

          8        what it does is, is it draws out human emotions that

          9        really are beyond description when you look and feel what

         10        these people have suffered through.  And I think that if

         11        you can avoid that, and I'll tell you, I like the concept

         12        of closure, Commissioner Douglass is absolutely right.

         13        You are talking average 13 years from sentence to final

         14        execution in the very few cases it occurs in.

         15             A lot of these surviving members, they want closure.

         16        So anything that we can do that will help these people

         17        have closure in their case will make a difference.  But I

         18        don't think Commissioner Brochin's will do that.  I think

         19        Commissioner Douglass' does have the ability to offer that

         20        and that's why, if you would, Commissioner Douglass, I

         21        would like to know if you will accept that friendly

         22        amendment to keep it at seven to five and I also would

         23        like to ask you if you view this now to be very dependent

         24        upon the 85 percent proposal, and I'll tell you why.

         25        Because in this proposal that passed this body, it says


          1        life will mean life.  And if there is one thing that the

          2        public doesn't believe, is the life means life.  They just

          3        don't believe it.

          4             So if we are going to accept your particular

          5        proposal, I would then say we are going to have to make

          6        sure that that language in the 85 percent proposal also

          7        passes.  At some point they are going to have to be

          8        married together, because if you can tell the public that

          9        you want this proposal and life will mean life, I think

         10        that your proposal would have a much better chance.

         11             COMMISSIONER THOMPSON:  Commissioner Douglass.

         12             CHAIRMAN DOUGLASS:  I'll answer your questions, there

         13        are two as I understand it.  If it means -- and I will

         14        defer to you on this -- to the families that we have a 7-5

         15        vote, that they will feel that they have been treated

         16        fairly, then I would certainly agree to your amendment.

         17        On the other matter, I don't have any objection to saying

         18        life is life.  And I think it would apply to both the

         19        alternatives that I have proposed.  I think you would want

         20        to know that life at solitary confinement is life and

         21        life, not solitary confinement, in the general prison

         22        population is also life even if they go into minimum

         23        security, work release, and all of these programs that

         24        they get into over a period of years in the general prison

         25        population.  It still would be the confinement I discussed


          1        at life.

          2             I therefore would accept both of your suggestions as

          3        being appropriate and I think it would still accomplish

          4        the purpose that I am striving for which is to provide

          5        that punishment level which would, in effect, I think,

          6        reserve the death penalty for only those cases that really

          7        cry out for it.  But also, if you stop and think about it,

          8        the punishment of life imprisonment at solitary

          9        confinement is very severe but it is authorized by the

         10        federal government, it is being used by them, it is

         11        constitutional.  The idea of the jury sentencing is

         12        constitutional under the federal constitution, but I have

         13        no problem even amending it to make it the way that

         14        Commissioner Langley has suggested.

         15             But what I am striving to get is that extra level of

         16        punishment which I think will stop a large number of the

         17        death sentences from being death, but the punishment will

         18        be guaranteed and, with your suggestions, I have no

         19        problem.  I would accept them both, personally.

         20             COMMISSIONER THOMPSON:  Commissioner Rundle to

         21        respond.

         22             COMMISSIONER RUNDLE:  If I could just ask one more

         23        question of Commissioner Douglass.  The way I also read

         24        this, which I think has a practical benefit, and that is

         25        that the final determination here is by the jury.


          1             CHAIRMAN DOUGLASS:  Correct.

          2             COMMISSIONER RUNDLE:  And in many ways, so I can

          3        explain maybe to some of those that aren't as familiar

          4        with some of these procedures, is what we frequently see

          5        happening in everyday life in the courtroom is that a

          6        defense lawyer will bring up some arguments in front of

          7        the jury, wait for that jury determination and hold back

          8        some stuff and it is a clever criminal defense tactic and

          9        wait for the second phase, which is real, to argue before

         10        the judge.

         11             And so what happens is you build in a lot of

         12        appellate issues and they intentionally do that so that to

         13        some extent I can see this avoids that problem that we see

         14        in the system today.  So this does avoid a second

         15        sentencing hearing, if you like, with the judge.

         16             CHAIRMAN DOUGLASS:  It will the way it is drafted.  I

         17        would also point out that if lawyers do that, I think they

         18        are unethical, clearly.  And some people think there are

         19        no ethical standards that apply to lawyers that are

         20        defending death cases and I think that's part of the

         21        problem.  I think the courts allow people that are

         22        defending death cases, particularly in the collateral

         23        nature, to do things they would not allow anybody to do.

         24        And without batting an eye or even censoring them in some

         25        instances.  I ran into that when I was general counsel at


          1        the Governor's Office where we dealt with these.

          2             And I don't want to be one who criticizes the court

          3        specifically, but on this issue at least a substantial

          4        number of judges have a very difficult time dealing with

          5        death cases and then they just take the view that, you

          6        know, no holds barred and the lawyers do pretty much what

          7        they want.

          8             I would support any provision that will retain the

          9        death penalty that will give an alternative to the

         10        families for closure, and knowing that they would have

         11        punishment for the rest of their life and would preserve

         12        the normal life sentence and I believe that life should be

         13        life.  I am willing to do that because I think people lost

         14        faith in our courts, they lost faith in our prosecutors

         15        who try very hard, they certainly lost faith in lawyers

         16        because of the things you just suggested and others, and

         17        that's not to say that some prosectors don't do unethical

         18        things either because they do.  But we can't stop those

         19        things and they are going to happen.

         20             But we can at least give a process which would be

         21        more designed to have the punishment fit the crime and

         22        give to the survivors and to the general public the

         23        assurance that these people are going to be punished even

         24        if they are not going to be put to death.  That's why I

         25        offered this amendment and I do think that it is


          1        constitutional the way we did it and regardless of what a

          2        former justice may say or otherwise because it has been

          3        upheld at the Texas version, has been upheld by the

          4        federal constitution.  I don't really mind Commissioner

          5        Langley's proposal, however, which I think eliminates any

          6        arguments in that regard because that's the way it is now.

          7             The judge can always grant new trials.  He can do

          8        that.  The issue of override has nothing to do with

          9        granting a new trial.  Now I have found, in reviewing

         10        death cases, and I'm sure Commissioner Brochin who

         11        reviewed some also found that the biggest problems we had

         12        to deal with is when the judge overrode a recommendation

         13        of mercy and imposed the death penalty.  Now, the Governor

         14        has always supported a proposition that there shouldn't be

         15        an override in either direction and I tend to believe in

         16        that also.  But I think if we are going to have juries sit

         17        up there, they are not potted plants, they have come from

         18        the community and they are selected and 99.9 percent of

         19        the people that serve on juries take their duties very,

         20        very seriously.

         21             And we may not agree with their verdicts, but that's

         22        the cornerstone of our system.  And I can assure you that

         23        these non-experts, these laymen, these non-judges are much

         24        better at judging the truth in these cases than those who

         25        deal with them all the time.  Judges become jaded one way


          1        or the other.  They become -- in criminal bench if you go

          2        before the same judge you see them on TV, they do it a

          3        lot, you know, it's like, Well, here you come with another

          4        B and E and the judge gets jaded.  The jury doesn't.  The

          5        jury walks in there, they are looking at a person's life,

          6        another person's life and a crime and the jury tries to

          7        apply their common sense and you get people now from all

          8        walks of life and you get the diversity that exists in

          9        your community.

         10             And I for one, for example, all of this publicity

         11        about the race card in the Simpson case, well so?  He got

         12        tried by a jury of his peers where he was tried and they

         13        didn't find the State proved the case.  And that's not an

         14        issue ever at the end of guilt or innocence, it's the jury

         15        didn't find the State proved the case.  Don't blame the

         16        jury, blame the State.  If they had a case, they should

         17        have presented it or presented it in a manner which it

         18        would have convinced that there was no reasonable doubt.

         19             On the other hand, I don't accept the proposition,

         20        the converse, simply because today a jury is all white

         21        that they don't give a fair consideration to someone who

         22        happens to be an African-American.

         23             And I can tell you this, people, you don't get

         24        publicity like this on these cases.  Right here in Leon

         25        County in 1981, I had the benefit of trying a civil case


          1        before an all white jury in Leon County, the foreman was

          2        born and raised in Tupelo, Mississippi, who gave a

          3        $5.55 million verdict for a black man who had been injured

          4        by a company run by a white man and who had really

          5        exploited his employees.

          6             And that jury walked back in the courtroom, they

          7        offered me $400,000 and laughed and I'm sitting there

          8        thinking with my client, maybe we had better take it.  He

          9        was seriously injured but the money would have made that.

         10        I took, and he did, and his wife took faith in that jury.

         11        They not only gave 4 million to him but they gave the

         12        same amount of 1,025,000 to his wife for loss of

         13        consortium.  And when we got to the appellate court, they

         14        just couldn't believe all of those men on the bench that

         15        any man was worth $1,025,000 to his wife.  Particularly my

         16        48-year-old African-American who happened to be one of the

         17        finest people I ever knew.  And then they reduced it, of

         18        course, because those judges couldn't see it.  And now you

         19        get $1 million loss of consortium verdict, but that was in

         20        '81.

         21             And what I'm telling you is that this business about

         22        juries is oversold.  It is explanations that losers give,

         23        it is explanations judges give trying to get out of doing

         24        what the jury wants done and the public believes should be

         25        done.  And anything that infringes on the right of a trial


          1        by jury in this country is wrong because the jury,

          2        regardless of what any of us say, you cannot be found

          3        guilty of a crime unless all of them agree to it to begin

          4        with.  And they don't have to have a reason.  They don't

          5        have to have one.

          6             So I am urging that we give to the juries the

          7        alternatives here.  It is impractical to think anybody in

          8        this state would ever think that a majority of the people

          9        would abolish the death penalty because they won't, we

         10        know that.  And, Commissioner Rundle, I respect your

         11        position very much, because you are in the largest circuit

         12        and deal with probably more variety of crimes in your job

         13        than anybody in the state.

         14             And I would accept your amendments and I don't have

         15        any objection to Commissioner Langley's, although I like

         16        the idea and the concept of the jury being final on this.

         17             COMMISSIONER THOMPSON:  Okay.  Now before we get into

         18        any more conversations about successes in the courtroom,

         19        let's go back to the amendment to the substitute which,

         20        the issue on the amendment to the substitute is whether or

         21        not you are going to have nine of them or seven of them

         22        make the decision, that's Commissioner Rundle's amendment.

         23        Now who wishes to speak to the amendment to the

         24        substitute?  I have recognized Commissioners Smith,

         25        Barnett, and Sundberg that want to speak.  Do you want to


          1        speak on this amendment or do you want to vote on this

          2        amendment and then go forward?

          3             COMMISSIONER SMITH:  Mr. Chair, I'd like to speak to

          4        this amendment.

          5             COMMISSIONER THOMPSON:  Okay.  You are recognized.

          6             COMMISSIONER SMITH:  First of all, I am encouraged at

          7        the type of consideration this life and death issue is

          8        getting in this body.  I think that Commissioner Rundle's

          9        proposal, though probably politically is moving in the

         10        right direction, I think that legally and morally it is

         11        moving in the wrong direction.  While I agree with the

         12        Chairman, Chairman Douglass that is, that there are times

         13        when an all-white jury can be fair to blacks and an

         14        all-black jury can be fair to whites, although in my

         15        career I've never had an all-black jury.  I can tell that

         16        your perception and statistics from the race bias study et

         17        cetera show how important it is that we have an

         18        opportunity for all to participate.

         19             I oppose the nine to three for the same reason I am

         20        going to oppose the seven to five and that is that what

         21        happens in the dynamics of the jury, when I first started

         22        trying cases in 1973, from '73 until the time Neil vs.

         23        State became a law of the state, I couldn't get black

         24        people on my jury.  People felt that either because of my

         25        defendant or because I was black, that black jurors I


          1        guess would identify me and vote with me.  Most people who

          2        don't try cases don't understand that.  You are talking

          3        about law and order, blacks are as law and order or

          4        probably more law and order than most whites because of

          5        the fact that our communities are the ones that really are

          6        impacted most by crime.

          7             And so I used to oftentimes object and object but

          8        wink because I figured I might have reversal on appeal but

          9        really didn't want a middle class, hard working, law

         10        abiding, God fearing black person on the jury who I knew

         11        would be coming in pro-prosecution.

         12             But what happens is, when you have less than a

         13        unanimous verdict, and when you have like a seven to five,

         14        you are really taken in many instances people of color out

         15        of the death penalty process.  There are those who think

         16        that because if you don't have unanimous verdict that you

         17        give people a veto because what will happen is, as

         18        Commissioner Rundle says, there will be those who will

         19        say, Well, mine was 7-5 or mine was 8-4, it was 9-3, it

         20        was that way because you only have to take one vote.

         21             To reach unanimous verdict in the cases that a lot of

         22        you lawyers try, almost all the time the first vote is not

         23        unanimous, even if you have a six person jury, whether it

         24        is a civil case or a criminal case.  It may start 3-3 or

         25        4-2 or 5-1 and then they have to listen to each other,


          1        they have to listen to the minority view and the

          2        minorities have to listen to the majority view, not

          3        necessarily minority and majority in numbers, until they

          4        can arrive at a verdict or they become deadlocked.

          5             Now 28 states have unanimous verdicts, the federal

          6        court has unanimous verdicts, I will not have an objection

          7        to going to 9-3, but I think 7-5 right now we are not

          8        making any progress in trying to make our system of

          9        justice, especially when you impose the death penalty,

         10        fairer.  And let me tell you, in the state of Florida

         11        today, February 10, 1998, the life of a black person does

         12        not have the same value as the life of a white person.

         13        There is -- all the statistical data shows that in terms

         14        of jury decisions.

         15             And as such, by lessening the number of people who

         16        will recommend the death penalty, which the court is

         17        almost bound to follow based upon the law, what you are

         18        doing is really allowing the decision concerning life or

         19        death to be relegated solely to the majority community.

         20        That is not fair.

         21             It probably is politically popular, it probably will

         22        carry the day, but this is a matter of life and death and

         23        a moral issue and I must vote no.

         24             COMMISSIONER THOMPSON:  Further debate on the

         25        amendment to the substitute, Commissioner Rundle to close.


          1             COMMISSIONER RUNDLE:  Well just really to respond to

          2        just a few things that Commissioner Smith said.  He is

          3        right when you talk about the 8-4s and the 9-3s and the

          4        7-5s, and I can think of several parents from the Miami

          5        area and several from the Orlando area where cases that

          6        were clear, I mean just clear, they met everything that

          7        statutorily and legally required and those families will

          8        be out, they will come out in mass.  And I'm not really

          9        sure that you are going to be accomplishing what it is you

         10        are striving to do, and I'm not quite sure what that is

         11        other than to make the death penalty harder to get.

         12             So I really think that if you want to use the

         13        language that Commissioner Douglass is proposing, that it

         14        would behoove you to keep it at the 7-5 because the public

         15        won't view it that you are taking something away from

         16        them, that you are taking something away from them where

         17        they felt they had justice in their own case and now you

         18        are going to come say, no, it really wasn't right in your

         19        case.  Even though it was your daughter and it was 8-4,

         20        and they are going to feel you are denying them something

         21        and they are going to be out there in full force telling

         22        you how much they disagree with you.

         23             So if you want to accomplish what Commissioner

         24        Douglass is attempting to do, I think it should be changed

         25        from the 9-3 to what the law is now, to the 7-5.


          1             COMMISSIONER THOMPSON:  Okay.  We are on the

          2        amendment to the substitute, the Secretary will unlock the

          3        machine and the members will proceed to vote on the

          4        amendment to the substitute.

          5             (Vote taken and recorded electronically.)

          6             COMMISSIONER THOMPSON:  All members voting?  All

          7        members voting?  Secretary will lock the machine and

          8        announce the vote.

          9             READING CLERK:  16 yeas, 12 nays, Mr. Chairman.

         10             COMMISSIONER THOMPSON:  So the amendment to the

         11        substitute is adopted.  Read the next amendment to the

         12        substitute by Commissioner Langley.

         13             READING CLERK:  Amendment to the substitute amendment

         14        by Commissioner Langley, on Page 1, Line 14, delete all

         15        lines, all of the Lines 14, 15 and the words of a capital

         16        offense to Line 16 and insert the judge shall, upon

         17        recommendation of the jury, sentence a defendant convicted

         18        of a capital offense as follows.

         19             COMMISSIONER THOMPSON:  Commissioner Langley, you are

         20        recognized on the amendment.

         21             COMMISSIONER LANGLEY:  Thank you, Mr. Chairman, it

         22        pretty much speaks for itself.  Basically it puts the

         23        sentencing procedure itself back in the hands of the judge

         24        where I think it should be.  The important word there

         25        though is "shall" which means that the jury recommendation


          1        binds the judge.  Currently the judge can override.  This

          2        does, Commissioner Douglass, give the jury the final stay

          3        but technically lets the judge go in and pronounce the

          4        sentence.

          5             COMMISSIONER THOMPSON:  Debate on the amendment to

          6        the substitute, Commissioner Sundberg?

          7             COMMISSIONER SUNDBERG:  I am going to oppose the

          8        amendment offered by Commissioner Langley for two reasons.

          9        And the same reasons, in fact, the amendment offered by

         10        Chairman Douglass, in my judgment.  The first reason is I

         11        believe it is unconstitutional.  A thread -- and with all

         12        due respect I don't believe this is the Texas model.  I

         13        believe in Texas it is a far more complex issue.  The jury

         14        does have, you know, added responsibility they don't have

         15        here in Florida, but I think ultimately the judge has the

         16        ability if for no other reason to grant a new trial to

         17        exercise some discretion over the process.

         18             And you are right, Mr. Douglass, judges take these

         19        death cases very seriously.  And they agonize over them,

         20        as well they should.  But I reject your assertion that

         21        they don't carry out their constitutional duty to enforce

         22        the capital penalty law when it is appropriate.

         23             But therein lies the problem.  The purpose of our

         24        capital penalty statutes are to identify those especially

         25        heinous, atrocious, and cruel homicides; that's what our


          1        capital statute says.  That is one of the aggravating and

          2        probably the premiere aggravating circumstance under our

          3        statute.  And those of you who are not familiar with it,

          4        our statute operates to have, it has so many aggravating

          5        circumstances that the jury and the judge must consider in

          6        the sentencing process, and designated mitigating

          7        circumstances that each the jury and the judge are

          8        required.

          9             To identify, to separate out, those homicides which

         10        are especially heinous, atrocious, and cruel and are set

         11        apart from other homicides and that's why the United

         12        States Supreme Court in Furman invalidated statutes such

         13        as the Florida Statute because -- or the then existing

         14        Florida Statute -- because it left it completely in the

         15        hands of the jury to sentence.  And that's why I don't

         16        think this substitute to the amendment cures the problem

         17        because it gives the judge no discretion.

         18             And the point of the judge, having some discretion in

         19        this process, is to achieve some sort of proportionality.

         20        And a thread that runs throughout the capital cases, I

         21        submit to you, is that -- and this has nothing to do with

         22        whether you are in favor of or opposed to the death

         23        penalty.

         24             Those who are in favor of the death penalty will tell

         25        you they don't want it imposed in a freakish or


          1        discriminatory fashion; they want it fairly imposed.

          2        That's why the statute attempts to identify those who are

          3        deserving.  Jurors, and this runs throughout the cases, a

          4        jury in a particular case does not have the benefit that a

          5        judge does of having seen a whole spectrum of capital

          6        cases.  Praise the Lord.  That those 12 persons good and

          7        true generally only have to do this once in a lifetime.

          8             So how are they able to identify, to separate out

          9        those homicides, those capital offenses that are deserving

         10        of the death penalty as opposed to those which are not?

         11        And we assume that some are not.

         12             Let me give you an example.  There was a criminal

         13        episode, as I recall it was a bank robbery, it was a

         14        robbery in which -- and the defendants were tried

         15        separately.  One defendant went into the place of

         16        business, the bank, to perform the robbery and he

         17        committed a homicide, shot somebody, killed them.

         18             The co-defendant, not a co-defendant, he was tried

         19        separately, the other perpetrator, so to speak, was the

         20        getaway man.  The getaway man was out at the curb in the

         21        automobile.  Under our law, the getaway man is as culpable

         22        criminally as the person who was the trigger man because

         23        of our felony murder rule.

         24             Tried separately, the trigger man, who actually shot

         25        the victim, was sentenced by that jury to life or actually


          1        that was their recommendation and the court followed, the

          2        judge followed the recommendation and sentenced the

          3        trigger man to life.  A separate jury trying the getaway

          4        driver recommended death for the getaway driver.  And the

          5        judge approved that.

          6             To complicate things further, the life sentence is

          7        never seen by the Florida Supreme Court; the review of

          8        those cases goes to the District Courts of Appeal, which

          9        impedes any sort of proportionality review.

         10             I suggest to you that Chairman Douglass' proposal,

         11        even as amended by or proposed to be amended by

         12        Commissioner Langley, will lead to freakish results, will

         13        lead to a system which is capricious in its application.

         14        So even if it were not, if I am wrong about it violating

         15        the federal constitution, it is bad public policy.  We do

         16        not in this state want to capriciously apply the death

         17        penalty.  We want it to be done in as rational and

         18        structured a manner as is possible.  So I speak against

         19        the amendment.

         20             COMMISSIONER THOMPSON:  Further debate on the

         21        amendment by Commissioner Langley?  Commissioner Douglass?

         22             CHAIRMAN DOUGLASS:  Yes, I want to just restrict my

         23        remarks to Commissioner Langley's amendment.  I think it

         24        is a good amendment and I urge you to support it, because

         25        it does accomplish the same purpose that I am trying to


          1        put before you, and I think it improves the proposal.  But

          2        I would point out to you that one of the things that is

          3        still left in all of this process, there is a couple of

          4        things, even after the jury is through and the courts are

          5        through, there is the matter of clemency, which can

          6        prevent the death penalty from being imposed.  And it

          7        would be in some instances, and will be, and has been in

          8        addition, the executive branch does have the duty of

          9        carrying out the penalty, not the judicial branch.

         10             Also, nothing prevents the judge from granting a new

         11        trial when it's against the manifest weight of the

         12        evidence or many other matters that the courts give them

         13        the right to do, they would still have that.

         14             The Legislature would still have latitude in defining

         15        how the crimes should be treated in charging the jury, as

         16        they do now, within constitutional limits.

         17             So, I think that Commissioner Langley's amendment

         18        improves the overall substitute amendment and I urge you

         19        to vote for it.

         20             COMMISSIONER THOMPSON:  Okay.  We are on the Langley

         21        amendment to the substitute.  Further debate?

         22        Commissioner Langley to close.

         23             COMMISSIONER LANGLEY:  Go ahead.

         24             COMMISSIONER THOMPSON:  All of those in favor of the

         25        Langley amendment to the substitute, say yea.  Those who


          1        opposed it say no.

          2             (Verbal vote taken.)

          3             COMMISSIONER THOMPSON:  The Langley amendment is

          4        adopted.  Now, we are on the substitute as has been

          5        amended twice.  Any other amendments on the desk?

          6             READING CLERK:  None other on the desk.

          7             COMMISSIONER THOMPSON:  None on the desk.

          8        Commissioner Barnett, you are recognized.

          9             COMMISSIONER BARNETT:  I want to ask some questions.

         10        I don't know who to ask it to, Commissioner Langley or

         11        Commissioner Douglass.

         12             COMMISSIONER THOMPSON:  Commissioner Douglass, would

         13        you yield to Commissioner Barnett?

         14             CHAIRMAN DOUGLASS:  I'll yield.  If I can't answer

         15        it, I'll defer to Commissioner Rundle.

         16             COMMISSIONER BARNETT:  Your proposal refers to

         17        capital offenses, and most of us think of that in terms of

         18        a murder, someone who is killed.  Are there other capital

         19        offenses that this would apply to that doesn't involve

         20        murder?

         21             CHAIRMAN DOUGLASS:  No, that's the way it is now.

         22        And the death penalty only applies to murder.

         23             COMMISSIONER BARNETT:  This does not change that?

         24             CHAIRMAN DOUGLASS:  No.

         25             COMMISSIONER BARNETT:  The other thing, as I read


          1        this.  Today, without this amendment and somebody is

          2        convicted of murder, a capital offense, are there options

          3        available to the judge and/or jury that would include a

          4        life sentence, but with the possibility of parole or some

          5        lesser sentence?

          6             CHAIRMAN DOUGLASS:  I think that -- I know that at

          7        one time the jury, it could give a life sentence without

          8        reference to parole, but I think presently the law is that

          9        they have to -- if they give a life sentence, it's without

         10        possibility of parole.  I'm right on that, I think,

         11        Commissioner Rundle?

         12             COMMISIONER RUNDLE:  Of those sentenced at this time.

         13        It depends on when the sentencing occurs, but parole does

         14        not exist.  Parole could at some point be brought back up

         15        by the Legislature, which is one reason I was making that

         16        point, is that if you are trying to give jurors an option

         17        of life in solitary confinement and so on and so forth,

         18        then you are really going to have to give them the

         19        security that life is going to mean life without parole.

         20             Because I would find this -- I would think that the

         21        public would find, if you didn't have that kind of

         22        language, that they would have to worry about parole being

         23        reinstituted or some other kinds of minimums, like life

         24        means a 25-year minimum, because we have had that period

         25        of time too.  But today there is no parole.


          1             COMMISSIONER BARNETT:  Can I just follow-up a little.

          2        This is not my area, so I just need to have some answers.

          3        The language that we are now putting into the Constitution

          4        that deals with capital offense relates solely to first

          5        degree murder?

          6             COMMISIONER RUNDLE:  Yes.  There was a time when

          7        capital offenses also included, I think it was, rapes of

          8        individuals under the age of 12.

          9             CHAIRMAN DOUGLASS:  It was rape, period, and then it

         10        was rape under 12.

         11             COMMISIONER RUNDLE:  For a child.

         12             CHAIRMAN DOUGLASS:  And it also included kidnapping

         13        for ransom at one time.  And at one time, not -- I mean,

         14        in the past we had death penalties for many things,

         15        including armed robbery.

         16             COMMISSIONER BARNETT:  Is the term -- is there some

         17        concern that the term "capital offense," there's some

         18        uncertainty as to what it actually applies to.  I mean, it

         19        sounds to me like over time that definition has actually

         20        changed.  So is there anything that, either in the

         21        Constitution or otherwise that would say a capital offense

         22        is first degree murder?  Or is there the possibility that

         23        this language, by having a -- you know, having a phrase

         24        that might, and over historical time has meant something

         25        else, that we may be in a situation where we have limited


          1        dramatically the jury and/or judge in what they can do?

          2             CHAIRMAN DOUGLASS:  Well, I think you would have to

          3        assume the court would reverse all of its precedent and

          4        the United States Supreme Court would reverse all of its

          5        precedent, because now the law is very clear.  The Supreme

          6        Court has ruled, and the Constitution means that capital

          7        crime means murder.

          8             But you know, who is to say, they could suspend the

          9        Constitution, I suppose, if we wanted to get into

         10        possibilities.  The Court could say the Constitution

         11        doesn't say what it says.

         12             Commissioner Barnett, do you wish to debate the

         13        substitute?

         14             COMMISSIONER BARNETT:  Well, I'm really still,

         15        Mr. Chairman, trying to get an understanding of what this

         16        proposed amendment does.  I guess the other question would

         17        be, does this amendment further restrict what is the

         18        current -- does this amendment, I think as Commissioner

         19        Smith or somebody said, take us down a road that's in the

         20        opposite direction of what Commissioner Brochin wants in

         21        that the jury is now limited, the judge and jury are now

         22        limited to life imprisonment without parole, life

         23        imprisonment with solitary confinement and/or death and a

         24        7-5 vote.  I mean, is that different than what current law

         25        is today?


          1             COMMISIONER RUNDLE:  I think I understand one of your

          2        concerns is that the definition of what constitutes

          3        capital punishment would be changed at some point.

          4             COMMISSIONER BARNETT:  Capital offense.

          5             COMMISIONER RUNDLE:  What did I say?  I apologize.

          6        Capital offense now is defined by which crimes death

          7        penalty attaches to.  So I think that your question is a

          8        good one in the sense that, could the Legislature decide

          9        or could the courts decide that other crimes could

         10        constitute a capital offense.  I don't have an answer for

         11        that.  I think that is a good question.  But with respect

         12        to what the alternatives are, this is the way it is today,

         13        in terms of capital offense for first degree murder cases,

         14        which is all that applies at this point.  And again, as

         15        you know, a small percentage of the first degree murder

         16        cases would actually receive death penalty.

         17             So, this language, in terms of alternatives, death,

         18        life, life in, this is exactly the way it is today with

         19        the exception of the solitary confinement, because that is

         20        not a sentence that's prescribed.

         21             COMMISSIONER BARNETT:  And today in Florida, someone

         22        who gets convicted of first degree murder, the judge nor

         23        the jury have the option to sentence them to life but with

         24        some minimum mandatory or with possibility of parole.

         25             COMMISIONER RUNDLE:  Parole doesn't exist so they


          1        can't sentence parole.  And the 25 minimum that used to

          2        exist, no longer exists.

          3             COMMISSIONER BARNETT:  By statute.

          4             COMMISIONER RUNDLE:  It depends upon when you get --

          5        I don't mean to be too complicated, but it does depend

          6        because the law has changed over the years.  Today life

          7        does mean life, statutorily.  So, there's no parole.

          8        Clemency, of course, is always available.

          9             And I think, if I may, just take this opportunity

         10        just to reassure everyone that there are several levels of

         11        review past what a jury says.  You have the judge and then

         12        you have the Florida Supreme Court, and then you have the

         13        federal courts, and then you have the U.S. Supreme Court.

         14        So there's lots of levels of review, including ultimately

         15        clemency that applies to these cases.

         16             And I think that you should be aware of that to give

         17        you some assurances that this system does have a number of

         18        checks and balances in it.

         19             COMMISSIONER THOMPSON:  Further debate on the

         20        substitute?  On the substitute amendment.  Commissioner

         21        Smith.

         22             COMMISSIONER SMITH:  Thank you.  Commissioner Barnett

         23        and others, basically, with the amendment that

         24        Commissioner Rundle was able to successfully move forward,

         25        the only difference now with the law as it is now, and the


          1        law if this is placed on the ballot and it passes, is that

          2        there will be a third option for sentencing, and that is

          3        placing defendants convicted of first degree murder in

          4        solitary confinement.  Now, the law is, with a majority

          5        vote, the death penalty can be recommended by a jury, or

          6        with, obviously, we can have life imprisonment as well if

          7        there isn't a majority vote.

          8             I was very encouraged, I guess, overly optimistically

          9        encouraged by the Brochin proposal which I thought really

         10        took us in the right direction.  I was very happy that it

         11        moved us away from Alabama and the only other state that

         12        has override, and I was hoping that it would move us with

         13        the majority of states in the United States that requires

         14        a unanimous verdict before we take people's lives.

         15             This is a fairness issue, fairness not just to

         16        defendants, but fairness to families, fairness to the

         17        system.  What makes our country great in a large part is

         18        our justice system.  It's not the best, it's not perfect,

         19        but it's definitely the best in the world having traveled

         20        around and seen it.  And for those who are concerned about

         21        the numbers, Texas, which has more people on death row

         22        than any other state, has unanimous verdict.  Texas has

         23        executed more people than any other state.

         24             Just recently, when the United States Congress passed

         25        a unanimous verdict, we saw it work twice just this last


          1        year, with Timothy McVay and with the Pakistani who was

          2        also convicted and sentenced to death.  I just think that

          3        we need to place more value on all life with regard to

          4        this death penalty issue.

          5             It appears, based upon the votes that have been cast,

          6        that we are going to take a system that's flawed and make

          7        it even more flawed.  I don't see any way how, why this

          8        provides better protection for those who may not deserve

          9        the death penalty but who the juries feel are concerned

         10        that they might get out of prison.  Because today, if

         11        there's a jury recommendation for life or for death, the

         12        judge tells the jury, life means life, there is no parole.

         13        So, the only thing that we are doing is saying, instead of

         14        you, instead of you being in a six-by-eight cell by

         15        yourself, I guess, solitary confinement, I guess they put

         16        you under the ground someplace, because death row

         17        prisoners are not with others -- I had a client on death

         18        row.  My client wasn't with somebody else.  When I got to

         19        that little cell, he was in the cell playing chess by

         20        himself, against himself.  So, I don't know, I guess,

         21        solitary confinement, they lock them up down under the

         22        jail.  I don't see how that improves our system at all.

         23             I understand what Commissioner Chairman Douglass is

         24        trying to do, and I should have known that Proposal 13 was

         25        doomed to bad luck, but Commissioner Brochin, I think


          1        history will eventually prove you right.  And I'm proudly

          2        going to stand with you on the political Titanic with

          3        Proposal 13, because in the moral universe, one is right,

          4        one is a majority when they are right, and you are right.

          5        Thank you.

          6             COMMISSIONER THOMPSON:  Further debate on the

          7        substitute?  Commissioner Brochin.

          8             COMMISSIONER BROCHIN:  Yes, I, too, want to speak

          9        against this.  I want to speak against it.  First of all,

         10        we are supposed to be revising a Constitution.  This looks

         11        like a statute that talks about sentencing guidelines, and

         12        I find it highly inappropriate that we are dictating to

         13        juries what votes they should take on various

         14        alternatives.  I find that inappropriate and it is not an

         15        adjustment to the death penalty, and I don't think it's

         16        going to be any improvement.

         17             I also agree with Commissioner Smith that when this

         18        has now been watered down to what we see here before you,

         19        it does nothing to change what is before us, other than it

         20        gives one more alternative, which is life imprisonment in

         21        solitary confinement.

         22             I'll tell you what they do on death row right now.

         23        They live in about a 6-foot cell, they are allowed, I

         24        believe, out for two hours twice a week, and the remainder

         25        of their time under maximum security, they are in the


          1        confines of that cell.  So, I, too, don't appreciate or

          2        know the difference between being on death row and being

          3        in solitary confinement.

          4             I'll tell you the real reason I speak out against

          5        this is when I hear arguments that there's going to be an

          6        outcry against this.  We were supposedly appointed here to

          7        look at the issues and make the right decisions for the

          8        people to vote upon.  And it's true, my fax machines are

          9        not flooded with people from death row and people who are

         10        trying to demand that this be done to fix the system, I

         11        readily admit that.  I don't think I've gotten anybody

         12        that wrote me on this at all, or said anything to me,

         13        because that constituency perhaps isn't out there.

         14             I'll tell Commissioner Rundle, when I pull the lever

         15        for 167 yes later today, I am not going to be thinking

         16        about the numerous faxes that I did receive voting in

         17        favor against that.  So, I think at some point in time, we

         18        have got to make our own individual decision on what's

         19        right, and the reason a unanimous verdict is the right way

         20        to go, the reason it's right is not because of those

         21        people on death row, it's not for them that I bring the

         22        proposal, I bring the proposal for all of the people of

         23        Florida, so that when the execution is carried out under

         24        the Florida Constitution, they have the basic value in

         25        place that 12 of us, 12 of the citizens decided


          1        unanimously to do so.  That is the constituency we should

          2        be thinking about.

          3             And I think we are underestimating the public and

          4        their ability to understand this concept when we suggest

          5        that there's going to be hew and cry against it.  I don't

          6        think that's true.  And I don't think history will prove

          7        us right, I think we can be proven right today.  And I

          8        think the people are going to approve this when they are

          9        educated on it, on the unanimous, and I think I will vote

         10        Commissioner Douglass's amendment is well-intended as an

         11        alternative, I don't think it makes the mark.  And I urge

         12        you, please, to vote against it.  And let's put in the

         13        protection that simply, in a constitutional sense, says if

         14        you are going to execute people here under this document,

         15        this Constitution, do it with a unanimous jury.

         16             COMMISSIONER THOMPSON:  Commissioner Barnett on the

         17        substitute.

         18             COMMISSIONER BARNETT:  Thank you, Mr. Chairman.  I

         19        want to get in the life boat with Commissioner Smith as we

         20        leave the Titanic and oppose this amendment.  I do so for

         21        several reasons.  One, I'm not fully aware of what it

         22        does.  I'm not completely convinced that it might not make

         23        some major substantive change.  And if it doesn't, if this

         24        is simply a constitutional codification of what current

         25        law is, it doesn't belong in the Constitution.  And we


          1        should leave the Legislature with the ability it currently

          2        has to define capital offenses and to deal with punishment

          3        and sentencing for those offenses.

          4             I do know that in one respect it takes away a power

          5        that the judge currently has.  So, it does make a change

          6        there and I think that is not a good thing to occur in our

          7        system today.

          8             I guess the final reason that I oppose it, although I

          9        think it's well-intended by the proponents, is that I

         10        support the underlying proposal of a unanimous jury

         11        verdict.  And I would like to have the debate and

         12        discussion on that, and to focus on that, rather than on a

         13        proposal that's implemented and raised to constitutional

         14        stature would really be a legislative act, more in the

         15        nature of a legislative act than a constitutional act, and

         16        I would not want to ultimately see something like that in

         17        the Constitution.

         18             COMMISSIONER THOMPSON:  Further debate on the

         19        substitute before Commissioner Douglass closes?

         20        Commissioner Douglass, you are recognized.

         21             CHAIRMAN DOUGLASS:  I would like to respond to the

         22        last thing that was mentioned by both of the people who

         23        spoke in opposition that this was a matter that could be

         24        handled by statute.  The proposal that was submitted by

         25        Commissioner Brochin could be handled by statute, that


          1        therefore falls as it should, because this is a matter of

          2        great interest and should be in the Constitution.  The

          3        other technique of argument is, well I'm sort of for this,

          4        but it's pretty good, but I really want to vote for the

          5        underlying proposal, and that's fair game.  I think that

          6        Commissioner Smith made that very clear.

          7             But what we are here on is whether or not we are

          8        going to offer to the people an alternative in the death

          9        penalty cases that would result in something short of

         10        death being imposed by the jury, but would ensure

         11        punishment to those who committed the crime of murder, if

         12        the jury chose to punish them by putting them in solitary

         13        confinement.

         14             And I submit to you that not a single juror thought

         15        when he voted to give the death penalty to Stano

         16        (phonetic) on death row that he was going into solitary

         17        confinement for life, but under our system he's about to

         18        make it because of the collateral attacks and the 13 to 15

         19        to 17 years that they sit there costing more than normal

         20        solitary confinement by far.

         21             So, the argument that now you get the death penalty,

         22        you get solitary confinement is one of the reasons we need

         23        this, is to quit fooling ourselves, to quit fooling the

         24        public by stacking 385 people on death row.  And with the

         25        opponents of the death penalty doing all they can to delay


          1        and delay and delay, hoping that they will, the general

          2        public will be like some of us are sometimes, This is a

          3        lot more trouble than it's worth, let's get rid of the

          4        death penalty.  That is the aim of those who seek to make

          5        it harder and harder and harder, who run it through the

          6        courts forever and forever and forever.

          7             And let us not lose site of that, because I think

          8        Commissioner Rundle is absolutely correct, that the

          9        families and the friends and the public of the victims are

         10        entitled to this punishment, and they are entitled to

         11        closure, and they are entitled to a system such as this to

         12        afford to the juries as was pointed out which made this a

         13        much better substitution to Commissioner Langley's

         14        amendment.

         15             And I don't see that there's any change to anything

         16        here from the original proposal of Commissioner Brochin,

         17        except that it adds the two things, the seven to five

         18        vote, it adds the jury's right to sentence to life

         19        imprisonment without parole.

         20             I urge you, in the interest of at least some point of

         21        resolving this death penalty argument and getting it back

         22        to where it was in '78, which was whether or not we had

         23        the death penalty.  And those who support the original

         24        proposal, I will guarantee you in their silent moments of

         25        admission to you, oppose the death penalty.  And that is


          1        their right.  And I think that many people are very

          2        sincere in that opposition, and I certainly respect that.

          3        And if they are on juries, they have the opportunity to

          4        serve.

          5             But I think the public should know and be able to

          6        vote that we can continue the death penalty, but we also

          7        have an alternative of punishment, which would be

          8        available as well to have closure.  I urge you to vote for

          9        the substitution.

         10             COMMISSIONER THOMPSON:  So, the question recurs on

         11        the adoption of the substitute as offered by Commissioner

         12        Douglass.  The Secretary will unlock the machine and the

         13        members will proceed to vote.  This is on the substitute

         14        amendment.

         15             (Vote taken and recorded electronically.)

         16             COMMISSIONER THOMPSON:  Have all members voted?  All

         17        members voted.  The Secretary will lock the machine and

         18        announce the vote.

         19             READING CLERK:  Seventeen yeas, 11 nays,

         20        Mr. Chairman.

         21             COMMISSIONER THOMPSON:  So, the substitute is

         22        adopted.  Now, we are on the proposal.  Are there further

         23        amendments on the desk?

         24             READING CLERK:  No, Mr. Chairman.

         25             COMMISSIONER THOMPSON:  None on the desk.  Anybody


          1        wish to debate the Proposal No. 13?  Commissioner Scott,

          2        for what purpose?

          3             COMMISSIONER SCOTT:  For a question.  What does this

          4        proposal now do that's different than current law, if

          5        anything?

          6             CHAIRMAN DOUGLASS:  It does two things.  The Langley

          7        amendment puts the provision in the Constitution that the

          8        judge shall accept the recommendation of the jury in these

          9        cases, that's number one.  That's not now the law, nor is

         10        it in the Constitution.  It also puts into the

         11        Constitution the death penalty as a specific item for

         12        capital punishment.  It also provides an addition to the

         13        death penalty, the additional punishment of life

         14        imprisonment without parole, which is provided in the

         15        federal system as an alternative to the death penalty, and

         16        it does incorporate the existing law as it is to life

         17        imprisonment without parole, as I understand it.  Is that

         18        correct, Commissioner Rundle?

         19             And so, that's what it would do.  Those are the

         20        changes, and that's why we support it.

         21             COMMISSIONER THOMPSON:  Other questions or debate?

         22        Commissioner Langley, for what purpose?

         23             COMMISSIONER LANGLEY:  To speak about it.

         24             COMMISSIONER THOMPSON:  You are recognized.

         25             COMMISSIONER LANGLEY:  Is that lawful enough?  It


          1        really has something for everybody.  A rather sad subject

          2        to have something for everybody, but in those cases where

          3        the jury recommends death, the judge can override that,

          4        knowing more about the law and knowing the full run of the

          5        cases as Commissioner Sundberg pointed out, can override

          6        that recommendation and still give life.  Those cases are

          7        never appealed, and so, you know, we don't get those

          8        reversed.

          9             On the other hand, where the jury recommends life and

         10        the judge overrides and imposes the death sentence, I

         11        don't know any of those that have ever been upheld,

         12        certainly not from my subject.  Almost without exception,

         13        they are overturned.

         14             But what we have here for those who oppose the death

         15        penalty is, I truly believe that if a jury felt that life

         16        is life and had the alternative of solitary confinement

         17        for life, I think there would be less death penalties

         18        recommended.  So you might, you who oppose the death

         19        penalty, might want to consider that.  Although, on its

         20        face, this is probably a little more pro-death penalty.  I

         21        think underlying that, there may be less death penalty

         22        actually imposed by the jury.  I'm going to vote against

         23        it because I don't want to tamper with it.

         24             COMMISSIONER THOMPSON:  Commissioner Smith, for what

         25        purpose?


          1             COMMISSIONER SMITH:  To ask a question of

          2        Commissioner Douglass.

          3             COMMISSIONER THOMPSON:  Commissioner Douglass, take

          4        the floor and yield to a question.  He yields.

          5             COMMISSIONER SMITH:  We have discussed back and

          6        forth, Commissioner Douglass, the fact that today death

          7        row inmates are in single cells, and now we are saying we

          8        are going to add a provision to place them in solitary

          9        confinement, what will be the difference between them now

         10        serving their time in a six-by-eight cell alone and what

         11        will be this new solitary confinement?

         12             CHAIRMAN DOUGLASS:  We would hope that those that are

         13        sitting on death row now, that the log jam would break and

         14        the law could carry out the sentences, which is death, not

         15        solitary confinement.  That is a big difference.  These

         16        people are under a sentence of death, or if they weren't,

         17        they would not be in this type of confinement.  That is a

         18        big difference.

         19             COMMISSIONER SMITH:  Well, maybe I didn't ask the

         20        question correctly.  Right now, based upon your proposal,

         21        the jury has three options, correct, a sentence of death,

         22        sentence of life imprisonment with solitary confinement or

         23        a sentence of life imprisonment, no parole.  Okay, so

         24        let's move out of the death penalty, it is not a death

         25        sentence.  One person now, today, in Miami, is sentenced


          1        to life imprisonment, solitary confinement; another person

          2        from Tallahassee is sentenced to life imprisonment, no

          3        solitary confinement.  What is the difference -- what

          4        would be the practical difference that we would tell the

          5        people that the one in solitary confinement has that the

          6        one not in solitary confinement has?

          7             CHAIRMAN DOUGLASS:  It's my understanding that those

          8        who are sentenced to solitary confinement would be put

          9        into solitary confinement as defined by law what solitary

         10        confinement is.  Those that are not put into solitary

         11        confinement could be put into the general prison

         12        population, which would allow them to move differently

         13        within the framework of our penal system.  And they could

         14        be put, ultimately, in all kinds of minimum security, even

         15        in some instances, they could be, under the general prison

         16        population, be on work release, they could even, to some

         17        extent, be in halfway houses, and still be confined under

         18        the general prison population.

         19             And I think this is where this breaks down is, when

         20        we sentence somebody to prison for life without parole, we

         21        don't realize that what happens is they don't serve hard

         22        time very long if they follow the rules and they don't get

         23        into trouble, and they wind up serving an entirely

         24        different sentence.

         25             What this does, you can tell the public, is assure


          1        them that when the jury feels that, as an alternative to

          2        death, this was a very severe crime, they want them put in

          3        and punished, they can put them in solitary confinement.

          4        And in the general prison population, I don't think that

          5        alternative is available except for misbehavior and under

          6        very strict rules.

          7             COMMISSIONER SMITH:  So, life imprisonment and

          8        solitary confinement, basically prisoners will serve their

          9        sentences on death row as they are doing now?

         10             CHAIRMAN DOUGLASS:  No.

         11             COMMISSIONER SMITH:  No?

         12             CHAIRMAN DOUGLASS:  No, they wouldn't serve on death

         13        row --

         14             COMMISSIONER SMITH:  I'm sorry, solitary confinement.

         15             CHAIRMAN DOUGLASS:  Not necessarily like they are on

         16        death row.

         17             COMMISSIONER SMITH:  Okay.

         18             CHAIRMAN DOUGLASS:  The solitary confinement would

         19        have to be defined by law what that would be.  And you

         20        could use the Federal model or you could use a model done

         21        by the Legislature of Florida.  I think the Legislature

         22        would develop a system that would be sufficient to handle

         23        solitary confinement, but not nearly so expensive as death

         24        row where we are keeping people there to put them to

         25        death.


          1             COMMISSIONER SMITH:  Thank you.

          2             COMMISSIONER THOMPSON:  Commissioner Morsani, for

          3        what purpose?

          4             COMMISSIONER MORSANI:  To ask a question.

          5             COMMISSIONER THOMPSON:  Of Commissioner Douglass?

          6             COMMISSIONER MORSANI:  No, if he would yield, I would

          7        like to ask a question of the Attorney General.

          8             COMMISSIONER BUTTERWORTH:  I yield.

          9             COMMISSIONER MORSANI:  Thank you.

         10             COMMISSIONER THOMPSON:  Commissioner Butterworth,

         11        take the floor and yield to a question from Commissioner

         12        Morsani.  He yields.

         13             COMMISSIONER MORSANI:  I know you would be

         14        disappointed if I didn't ask you to answer this question,

         15        Mr. Butterworth, so would you please give us your opinion

         16        of the amendment and of the bill and of the Proposal 13,

         17        in general.  That's two questions.

         18             COMMISSIONER BUTTERWORTH:  I thank you very much,

         19        Commissioner Morsani.  I was down in a Cabinet meeting up

         20        until about 15 minutes ago, and I believe most of the

         21        things that I would say have been stated.

         22             I think Commissioner Langley said it very well, so

         23        far as the fact that this will, in essence, I believe,

         24        reduce the number of death cases, that many people on a

         25        jury wish to know what's going to happen.  Right now


          1        there's only two choices, one, which is death; number two,

          2        which would be just life imprisonment without chance of

          3        parole.  And jurors don't know what that means.  I don't

          4        think we know what that means either, from that

          5        standpoint.

          6             If you put another element in there, which would be,

          7        yes, we believe that this person should be taken off of

          8        the street for the rest of their life and they should be

          9        put in a setting where they cannot escape, the jury would

         10        feel probably more comfortable with that.

         11             Also we find in the area of victims or the survivors.

         12        The survivors want finality, they want absolute finality,

         13        they want it to be over with to where they know it's over

         14        with.  And, unfortunately, the present system with the way

         15        it is right now, we revictimize the victim each and every

         16        step of the way, every time the defense counsel misses a

         17        pleading date or every time something occurs, it's tragic

         18        to the families.

         19             And ironically enough, when this was, a similar

         20        legislation was proposed about two or three years ago,

         21        ironically enough, it was the public defenders who were

         22        opposed to this type of alternative.  Because if in fact

         23        you have an old spark electric chair out here and life

         24        imprisonment, many times the jurors will go with the life

         25        imprisonment as opposed to the death penalty.


          1             If you give what might be considered non-death but

          2        put the person away forever, without giving the people a

          3        chance of letting them out, a lot of the public defenders

          4        believe that the jurors will go with that.  And I

          5        personally believe that they will also.

          6             From what's happening right now with death penalty,

          7        that's not all that bad.  We only average two executions a

          8        year and there's 385 people on death row as we speak.

          9             So, as Commissioner Langley stated, it has something

         10        in it for everybody, and it also has something for

         11        victims.  And that's where, from our standpoint in the

         12        Attorney General's office, we deal with the survivors, and

         13        we deal with survivors in each and every death case.  This

         14        will have a lot in it, I believe, also for the victims,

         15        the survivors because they will be able to have what many

         16        of them want, and that's finality.

         17             So, I believe this is an excellent proposal, I urge

         18        that it go forward.  I believe that it'll have a

         19        tremendous affect on, if you are a pro-death penalty, this

         20        will keep the death penalty, and if you are anti-death

         21        penalty, you can be assured that less people will be

         22        getting the death penalty.

         23             And from the standpoint of victims, whether it's

         24        death penalty or solitary confinement for the rest of

         25        their lives, most of the survivors, I feel, will feel that


          1        the finality is there.

          2             COMMISSIONER THOMPSON:  Further debate?  Commissioner

          3        Brochin.

          4             COMMISSIONER BROCHIN:  I'm going to vote against this

          5        amendment.  As I said at the first part when I stood up,

          6        the proposal was that, I was trying not to get involved

          7        and still do not think that we should be involved in a

          8        discussion of whether we are pro or against the death

          9        penalty.  This proposal will, I think, place, quite

         10        frankly, some havoc on the current implementation on the

         11        death penalty.  I think it'll result in a great deal of

         12        cost and a great deal of litigation.

         13             I think it will dramatically reduce the number of

         14        death cases, but I think it's highly inappropriate

         15        language for our Constitution.  Commissioner Langley asked

         16        about judicial overrides.  You may be reading about it; a

         17        guy named Crazy Joe Sapsiano (phonetic) who has been up

         18        and down the Supreme Court with trial and retrial, the

         19        jury in Mr. Sapsiano's case told the judge, life, it was a

         20        life recommendation.

         21             Just a historical note, when the current judicial

         22        override was written, and it's perhaps interesting as we

         23        consider other issues of the Constitution, the reason that

         24        the judicial override was written was there was a concern

         25        that jurors would be too anxious to impose the death


          1        penalty.  Therefore, they wanted to give the judge the

          2        opportunity to take an overzealous jury and reduce or

          3        override the jury's determination.

          4             It's probably very ironic that the juries have always

          5        been right all along.  They got the life measure, perhaps

          6        the recommendation for life in Sapsiano was the right

          7        measure, but it's worked out the other way.  And I would

          8        submit that, because of judges who are elected have that

          9        public pressure and a 12-person jury does not because when

         10        that 12-person jury is sworn in, they are looking at that

         11        person, that defendant and that victim in making a

         12        decision as to whether the death penalty is appropriate.

         13             So, I'm sorry for us as a body that we are not going

         14        to vote for that proposal that would allow that jury,

         15        who's been all right all along, to make that decision.

         16        And I think this is just not appropriate language for our

         17        Constitution, and I think it's going to greatly disrupt an

         18        already very chaotic death penalty system.

         19             COMMISSIONER THOMPSON:  Commissioner Langley.

         20             COMMISSIONER LANGLEY:  I indicated that I would vote

         21        against this, but I think now, having heard from our

         22        Attorney General and the lady who has to deal with this

         23        every day, I'm going to vote for it also.  I just didn't

         24        want to mislead anybody.

         25             COMMISSIONER THOMPSON:  If there's no further debate,


          1        then the question occurs of final passage of Committee

          2        Substitute for Proposal No. 13 as amended.  The Secretary

          3        will unlock the machine and the members will proceed to

          4        vote.  All members voting.  All members voting.

          5             (Vote taken and recorded electronically.)

          6             COMMISSIONER THOMPSON:  The Secretary will lock the

          7        machine and announce the vote.

          8             READING CLERK:  Sixteen yeas, 13 nays, Mr. Chairman.

          9             COMMISSIONER THOMPSON:  So, the proposal is passed.

         10        Now it's just a few minutes before twelve.  We have

         11        committee meetings, Mr. Chairman, and I'll turn the Chair

         12        back over to you.

         13             (Chairman Douglass resumes the chair.)

         14             CHAIRMAN DOUGLASS:  Commissioner Barkdull.

         15             COMMISSIONER BARKDULL:  Mr. Chairman, we are getting

         16        near the hour of noon.  I would suggest that we recess

         17        until 1:00.  We have a committee meeting at 12:00

         18        scheduled in 317.

         19             CHAIRMAN DOUGLASS:  All right.  Anything further to

         20        come up before we adjourn to lunch?  What time did you

         21        suggest that we come back?

         22             COMMISSIONER BARKDULL:  1:00.  All right.  Let's

         23        everybody try to be back at 1:00.  And we'll start, I

         24        believe, on the calendar with Proposal 91.  We are in

         25        recess.


          1             (Lunch recess.)

          2             CHAIRMAN DOUGLASS:  Give us a quorum call, please.

          3        The committee has adjourned and is here.

          4             SECRETARY BLANTON:  Quorum call.  Quorum call.  All

          5        commissioners indicate your presence.  All commissioners

          6        indicate your presence.

          7             CHAIRMAN DOUGLASS:  All right.  Come to order.

          8             SECRETARY BLANTON:  Quorum present, Mr. Chairman.

          9             (Quorum taken and recorded electronically.)

         10             CHAIRMAN DOUGLASS:  All right.  The next proposal is

         11        No. 26 by Commissioner Langley.  Would you read it,

         12        please?

         13             READING CLERK:  Proposal 26, a proposal to revise

         14        Article IV, Section 6 and Article VII, Section 9, Florida

         15        Constitution; creating five executive departments of water

         16        management and eliminating ad valorem taxing authority for

         17        water management purposes.

         18             CHAIRMAN DOUGLASS:  All right.  Is there anybody to

         19        speak in favor of this?

         20             (Off-the-record comment.)

         21             CHAIRMAN DOUGLASS:  I know he isn't here but we

         22        announced -- somewhere we got a --

         23             COMMISSIONER MORSANI:  Commissioner Langley said he

         24        was going to withdraw this proposal.

         25             CHAIRMAN DOUGLASS:  Okay.


          1             COMMISSIONER MORSANI:  Seriously, he told me that --

          2             CHAIRMAN DOUGLASS:  Well, we have two options.

          3             COMMISSIONER MORSANI:  -- I recommend that.

          4             CHAIRMAN DOUGLASS:  Are you moving to withdraw the

          5        proposal on his behalf?

          6             COMMISSIONER MORSANI:  Yeah.  I'm serious.  He said

          7        he was going to withdraw it.

          8             CHAIRMAN DOUGLASS:  Well, anybody could make a

          9        motion, I guess.  All right.  There's a motion before the

         10        body to withdraw Proposal No. 26.  All those in favor say

         11        aye.  Opposed.

         12             (Verbal vote taken.)

         13             CHAIRMAN DOUGLASS:  It's withdrawn.  Proposal 99,

         14        would you read it, please?

         15             READING CLERK:  Proposal 99, a proposal to revise

         16        Article VII, Section 18, Florida Constitution; providing

         17        that a county or municipality is not bound by any agency

         18        action or administrative rule that requires the

         19        expenditure of funds, reduces revenue raising authority,

         20        or reduces a percentage of shared state taxes.

         21             CHAIRMAN DOUGLASS:  All right.  Does anybody want to

         22        speak in favor of Proposal 99?  Commissioner Anthony?

         23             COMMISSIONER ANTHONY:  Thank you, Mr. Chairman.  This

         24        is a proposal that is being presented by Commissioner

         25        Langley.  He is not here so I'll just give the gist of


          1        this proposal.  In 1990, the voters of the state of

          2        Florida passed anti-mandates amendment to the

          3        Constitution.  And basically what this amendment, in

          4        concept, refers to is that the Legislature could not and

          5        should not pass any legislation that would require

          6        financial responsibility on local governments, county and

          7        municipalities, without sending a funding source to those

          8        entities to pay for whatever proposal or legislation that

          9        is passed by the Legislature.  The voters passed this

         10        amendment but what has happened since then, and this

         11        mandates process, is the Legislature has developed a

         12        policy, but once the policy gets to the administrative

         13        level who promulgates the rules, more mandates are placed

         14        upon local government by administrative rules.  What this

         15        amendment says, and Commissioner Langley is here and he

         16        can help --

         17             (Off-the-record comment.)

         18             COMMISSIONER ANTHONY:  Well, trust me, Commissioner

         19        Langley, you and I agree on almost nothing but this.

         20             (Laughter.)

         21             CHAIRMAN DOUGLASS:  Note that in the record.

         22             COMMISSIONER ANTHONY:  That is a compliment to both

         23        of us.  But what it does in aggregate is it states that

         24        the Legislature in its wisdom in the past, the past

         25        legislation that has provided mandates.  And then the


          1        staff in administrative process, the promulgation of the

          2        rules, then requires us to do things in local government

          3        that we don't think they provide the resources for us to

          4        be able to carry out that legislation that is passed.

          5             Commissioner Langley, did you have any -- so that's

          6        in concept and I'd like to respond to any questions or

          7        provide Commissioner Langley the opportunity.

          8             CHAIRMAN DOUGLASS:  Commissioner Langley?

          9             COMMISSIONER LANGLEY:  I had the privilege once while

         10        I was in the Senate of chairing the Joint Committee

         11        between the House and the Senate that oversees rulemaking,

         12        it's a year-to-year thing.  And in that year we found over

         13        160 agency rules that were either, one, unauthorized by

         14        the Legislature, or, two, diabolically opposed to the

         15        legislation.  We would have an amendment on the floor of

         16        the Senate on a bill that would be defeated overwhelmingly

         17        and turn around eight months later and see it in agency

         18        rule verbatim, what this Legislature had turned down.

         19             So these agencies have an awful lot of authority.

         20        And all this does, all this proposal does, is to say, like

         21        the other mandatory language about mandates in the

         22        Constitution, that agency rules would fall under those

         23        same -- the same scrutiny as the laws that are passed by

         24        the Legislature.

         25             CHAIRMAN DOUGLASS:  All right.  Any further --


          1        anybody want to be heard?  Commissioner Sundberg?

          2             COMMISSIONER SUNDBERG:  For a question, Commissioner

          3        Anthony.

          4             CHAIRMAN DOUGLASS:  He yields.

          5             COMMISSIONER SUNDBERG:  What if the Department of

          6        Environmental Regulation adopts a rule that is clearly

          7        within its legislative authority, assuming that, and this

          8        rule requires universally across this state for owners of

          9        real property to take certain actions to -- to prevent

         10        runoffs or something like that.  And that it would cause a

         11        municipality and counties, along with everybody else in

         12        the state, to expend funds or to take some action

         13        requiring the expenditure of funds to meet the

         14        requirements of that rule.  Would that be covered by this

         15        provision?

         16             COMMISSIONER ANTHONY:  Yes, that would be covered by

         17        this provision.  And what the Department of

         18        Environmental -- DEP, Environmental Protection should do,

         19        in terms of if they create this legislation, or if the

         20        Legislature creates it and they promulgate these rules,

         21        they should provide the monies to pay for the

         22        implementation of that rule.  For example, it may be

         23        through grants, may be through loans to local governments

         24        to be able to implement this rule.

         25             In this concept, Commissioner Sundberg, good


          1        legislation becomes bad legislation if there is not funds

          2        provided to the local government to implement it.  And

          3        what we're saying is stormwater requirements on local

          4        governments may definitely be needed.  But if it is needed

          5        and it's of the public interest, then the public interest

          6        in the state Legislature, if they pass it, should also

          7        think about the public when providing the sufficient funds

          8        to implement it.  So, yes.

          9             CHAIRMAN DOUGLASS:  Commissioner Langley, do you want

         10        to try that one too?

         11             COMMISSIONER LANGLEY:  Yeah.  Well, in further

         12        explanation of that, Commissioner Sundberg, if it were

         13        enacting or enforcing the law already passed by the

         14        Legislature, it would have met the muster anyway.

         15             CHAIRMAN DOUGLASS:  Any further debate?  Are you

         16        ready to vote?  Unlock the machine.  Let's vote.

         17             (Vote taken and recorded electronically.)

         18             CHAIRMAN DOUGLASS:  Do you all know what you're

         19        voting on?  You're voting on Proposal No. 109 -- 99,

         20        excuse me.  I got it confused.  It's Commissioner

         21        Langley's proposal as explained by Commissioner Anthony.

         22        All right.  Has everybody voted?  Lock the machine.

         23             READING CLERK:  Fifteen yeas, eight nays,

         24        Mr. Chairman.

         25             CHAIRMAN DOUGLASS:  All right.  We move to -- now we


          1        go to Proposal 109, Committee Substitute for Proposal 109

          2        by the Committee on Finance and Taxation, and Commissioner

          3        Mills recommended it as a Committee Substitute and

          4        approved by the Committee on Finance and Tax.  Read it,

          5        please.

          6             READING CLERK:  Committee Substitute for Proposal

          7        109, a proposal to revise Article VII, Section 3, Florida

          8        Constitution; allowing a local option tax exemption for

          9        owners of land used for conservation purposes; requiring

         10        general law authorization.

         11             CHAIRMAN DOUGLASS:  Commissioner Mills?

         12             COMMISSIONER MILLS:  Mr. Chairman, the substance of

         13        this was passed as an amendment to Commissioner

         14        Henderson's bill, so I would move to withdraw this from

         15        further consideration.

         16             CHAIRMAN DOUGLASS:  Without objection, Proposal

         17        No. 109 is withdrawn.

         18             Now we go to Proposal No. 169 by Commissioner Hawkes

         19        which was referred and deferred and referred and

         20        disapproved by the Committee on Judicial.  And -- all

         21        right.  Before we read that, there's an amendment on the

         22        desk by Commissioner Hawkes to strike everything and come

         23        up with a different version; is that correct, Commissioner

         24        Hawkes?

         25             COMMISSIONER HAWKES:  Correct.


          1             CHAIRMAN DOUGLASS:  And I'll have him read your

          2        amendment -- well, first of all, read the subject of the

          3        amendment and then maybe we can adopt it on voice vote.

          4        Read the subject, please.

          5             READING CLERK:  Proposal 169, a proposal to revise

          6        Article V, subsections 1 and 4, Florida Constitution;

          7        establishing courts of criminal appeals; providing for a

          8        court of appeals to be located in each of the three

          9        regional divisions; providing for justices of the courts

         10        of criminal appeals to be appointed by the Governor and be

         11        subject to confirmation by the Senate; providing for

         12        compensation of the justices; providing for terms of

         13        office; providing for the courts to have final appellate

         14        jurisdiction of criminal appeals, appeals of capital

         15        cases, and appeals based on habeas corpus or other

         16        post-conviction claims.

         17             CHAIRMAN DOUGLASS:  Commissioner Hawkes, I think with

         18        your permission, we'll ask for a vote to adopt your

         19        amendment so then you can proceed on the proposal.

         20             COMMISSIONER HAWKES:  That was the proposal.  He

         21        hasn't read the amendment yet.

         22             CHAIRMAN DOUGLASS:  Sorry, I thought he read the

         23        amendment, excuse me.  Read the amendment.  You moved it,

         24        right, the amendment?

         25             COMMISSIONER HAWKES:  Yes.


          1             READING CLERK:  By Commissioner Hawkes, delete

          2        everything after the proposing clause and insert Section

          3        1 -- Sections 1 and 4 of Article V of the Florida

          4        Constitution are revised by amending those sections to

          5        read lengthy amendment.

          6             CHAIRMAN DOUGLASS:  Now, Commissioner Hawkes, you're

          7        recognized, it's your proposal and your amendment.  We're

          8        on the amendment.

          9             COMMISSIONER HAWKES:  Thank you, Mr. Chairman, the

         10        essence of this proposal is it creates a court of criminal

         11        appeals.  The court of criminal appeals will consist of

         12        seven justices.  It will handle the cases that -- it has

         13        complete authority to handle criminal appellate cases but

         14        that can be defined by the Legislature, in essence is

         15        designed to take the workload off the Florida Supreme

         16        Court so that more time can be devoted to these kinds of

         17        cases and they can move more expeditiously through the

         18        system.

         19             There is a mechanism in there so that a procedure can

         20        be set up so that the courts can have some methodology to

         21        remove any conflicts if there are any conflicts and it's

         22        much more scaled down, Mr. Chairman, than it was when we

         23        originally proposed it.  And I would ask for your

         24        favorable consideration.  I'd be happy to answer any

         25        questions.  Thank you.


          1             CHAIRMAN DOUGLASS:  Now this is on the amendment?

          2             COMMISSIONER HAWKES:  Yes.

          3             CHAIRMAN DOUGLASS:  So you're asking we use the

          4        amendment as the vehicle instead of the original proposal?

          5             COMMISSIONER HAWKES:  Yes, Mr. Chairman.

          6             CHAIRMAN DOUGLASS:  All right.  All in favor --

          7        question, Commissioner?

          8             COMMISSIONER BARNETT:  Just a question.  I would like

          9        to hear Mr. Hawkes detail how it's scaled down from the

         10        original amendment because I just got it and I haven't had

         11        a chance to read it through.  So I'd like to have him,

         12        before we vote on it, go through that.

         13             CHAIRMAN DOUGLASS:  Very well.  Commissioner Hawkes.

         14             COMMISSIONER HAWKES:  Okay.  The concept in the

         15        original amendment was we would start with a minimum of 27

         16        judges and these courts of criminal appeals would in

         17        essence hear all criminal appellate cases and we would

         18        remove the criminal appeals from the District Courts of

         19        Appeal as well as from the Supreme Court, that as the

         20        Legislature determined the need, as certified by the court

         21        as consistent with how we do it now, there would be

         22        additional judges as the workload increased.

         23             What this does is, it cuts it down to seven justices.

         24        It grants the ultimate capital jurisdiction with the court

         25        as well as all other criminal appellate jurisdiction as --


          1        except as limited by the Legislature.  So the Legislature

          2        could define it to make the system work as best as

          3        possible.  But, in essence, it would be the primary

          4        criminal appellate case court for capital cases.  And so

          5        that's where it focuses now, whereas before it primarily

          6        focused on all criminal appellate cases, now it primarily

          7        focuses on the capital.

          8             CHAIRMAN DOUGLASS:  Commissioner Barnett?

          9             COMMISSIONER BARNETT:  So the difference would be

         10        rather than having the criminal court of appeal at like

         11        the district court level and the supreme court level,

         12        you're just having one appellate court for all criminal

         13        appeals, whether it's from the circuit courts or our

         14        current district courts at a kind of a supreme court

         15        level?

         16             COMMISSIONER HAWKES:  No, I would envision on this

         17        that, in essence, this court plays the role of what the

         18        current Supreme Court plays in criminal cases.  In other

         19        words, if there were, the Legislature could for instance

         20        grant jurisdiction to resolve conflicts among the District

         21        Courts of Appeal in criminal cases to this court.  This

         22        court would handle the capital cases.  They would handle

         23        the habeas corpus and all the other stuff that goes on

         24        within those cases as well as the actual ruling as to

         25        whether or not the judge imposed the correct sentence and


          1        the defendant had a fair trial, and those kinds of

          2        questions, the due process as well as the substance of due

          3        process.

          4             COMMISSIONER BARNETT:  So then I guess this would

          5        really become -- replace the Florida Supreme Court to the

          6        extent they currently have jurisdiction over any type of

          7        appellate -- criminal appellate matter.

          8             COMMISSIONER HAWKES:  Yes.

          9             CHAIRMAN DOUGLASS:  Commissioner Barkdull was up

         10        first.  Brochin, you're next.  Commissioner Brochin is

         11        next.

         12             COMMISSIONER BARKDULL:  Would the gentleman yield for

         13        a question?

         14             CHAIRMAN DOUGLASS:  Yes.

         15             COMMISSIONER BARKDULL:  Commission Hawkes, on Page 2,

         16        at the bottom, commencing on Line 28, it reads, "The court

         17        of criminal appeals may have exclusive and final

         18        jurisdiction to review all criminal appeals in this state,

         19        including appeals of capital cases and those appeals or

         20        requests for relief which are based on habeas corpus or

         21        other post conviction claims."

         22             Now that indicates to me that this court is going to

         23        have all the jurisdiction over criminal cases that

         24        presently resides in the five districts and the Supreme

         25        Court.


          1             COMMISSIONER HAWKES:  It is limited by or prescribed

          2        by general law.  So the Legislature, basically the court

          3        in the Constitution would technically have all that

          4        authority, but there are seven justices and the

          5        Legislature can then define it on the thought because I

          6        don't understand all the workings of the courts.  If we

          7        could facilitate or help out the District Courts of

          8        Appeal, then maybe some of that jurisdiction could be

          9        given to this court as well.

         10             But the primary focus of this is to handle the

         11        capital cases with the Legislature having the ability to

         12        do the nuts and bolts as to how you get those capital

         13        cases to this court.  It's not intended to completely

         14        replace the District Courts of Appeal as to the routine

         15        appellate work that the District Courts currently do.

         16             COMMISSIONER BARKDULL:  It appears from the language

         17        that it would permit the taking of that jurisdiction from

         18        the five DCAs.  Now the only state that I know of that has

         19        such a Supreme Court for capital cases is Texas and

         20        Oklahoma.  I'm not familiar whether they have all the

         21        criminal jurisdiction or just the capital jurisdiction in

         22        either one of those states.  But this is broad enough to

         23        where this court would encompass all of it, which

         24        constitutes more than half of the caseload of the five

         25        DCAs at the present moment.


          1             CHAIRMAN DOUGLASS:  Commissioner Brochin?

          2             COMMISSIONER BROCHIN:  Two questions.  One is, have

          3        you considered the fiscal impact, if any, that this

          4        proposal will have?  And, two, what is the reason for this

          5        proposal?  I mean, why are you bringing this forward?

          6             COMMISSIONER HAWKES:  Well, the fiscal impact of a

          7        justice, I don't know if that's -- even if we said it's a

          8        million dollars and there are seven justices, that's

          9        $7 million out of $42.5 billion budget last year and $44

         10        billion budget perhaps is proposed next year.  So I don't

         11        think the impact is of great significance, especially

         12        compared to some of the other things that we've done in

         13        this commission.

         14             Plus, considering, of course, that one of the primary

         15        functions of government is to provide a system where

         16        citizens can have some kind of redress so that they don't

         17        attempt to take redress themselves.  That is one of the

         18        purposes.  Because I think that what's happened is we

         19        have -- our citizens have lost some credibility in their

         20        court system.  And I think that a court system not only

         21        has to work properly and function properly, it has to have

         22        the public perception that it's working properly and

         23        functioning properly or there are terrible consequences

         24        which we as a society have to pay.

         25             So this is a court that is accountable for capital


          1        cases.  It's answerable for capital cases to make sure the

          2        system works properly.  I think it's somewhat bizarre now

          3        that the average, before we execute somebody on death row,

          4        now is about 15 years.  That is an indictment, I think, of

          5        the system.

          6             We should be able to provide a fair trial and a fair

          7        appellate review process, make appropriate decisions in

          8        less time than 15 years.  Someone mentioned earlier in the

          9        previous debate that we execute on average two people a

         10        year in the state of Florida.  We now have 368 people on

         11        death row.  Obviously we're putting them on the death row

         12        faster than we're either taking them off through the

         13        appellate process or executing them because that's

         14        considered or determined to be the appropriate sentence.

         15             You know, if we look at Texas, which in fact has a

         16        court, the Supreme Court, except in Texas they elect their

         17        judges for this court instead of -- these judges are

         18        appointed.  They executed last year, I believe, 37 people.

         19        The state of Florida last year executed one.  So, for a

         20        system that works better is more accountable to the

         21        citizens that are supposed to serve, those are the reasons

         22        behind the proposal.

         23             CHAIRMAN DOUGLASS:  Commissioner Brochin?

         24             COMMISSIONER BROCHIN:  Just a thought.  So am I

         25        understanding it that the intent is as a means to speed up


          1        the time from when somebody is sentenced to death to the

          2        time they are executed?

          3             COMMISSIONER HAWKES:  Well, that is one of the

          4        beneficial -- I mean, I think that you have a system that

          5        is working better if, in fact, you have a sentence that's

          6        carried out in somewhat of a reasonable fashion.  I think

          7        that when people sit on death row for 15 years it becomes

          8        somewhat almost cruel and unusual punishment in and of

          9        itself.

         10             But the reason that this works better, of course, is

         11        because this is this court's area.  The Supreme Court, I

         12        mean, there were comments by the Chief Justice, where the

         13        workload created by these kinds of cases is bogging down

         14        the Florida Supreme Court.  Florida is the fourth largest

         15        state.  Texas is the, I don't know, third largest state,

         16        second largest state.  And that might be one of the

         17        reasons they went to it.  Because now you are allowing

         18        your judges more time.  When you allow your judges more

         19        time, you can have a process that works better because

         20        more time can be spent on doing the things that you need

         21        to do.

         22             CHAIRMAN DOUGLASS:  Commissioner Butterworth?

         23             COMMISSIONER BUTTERWORTH:  Gentleman yield for a

         24        question?

         25             CHAIRMAN DOUGLASS:  Yes.


          1             COMMISSIONER BUTTERWORTH:  Commissioner Hawkes, is

          2        there any reason why you're having these justices

          3        nominated and appointed differently than the other

          4        justices and other judges on appellate benches in the

          5        state?

          6             COMMISSIONER HAWKES:  It was a thought that that

          7        would allow more credibility because there is more

          8        accountability on the front end.  But if that part of the

          9        proposal caused great concern, that could be changed.  But

         10        I will tell you that if a judge applies for the position

         11        and he knows what the position is, and he's nominated for

         12        that position by the Governor, then I think that that

         13        suggests two facts.  One, obviously the individual who

         14        applies for the position is interested in this kind of

         15        work and therefore must have some experience in it.

         16             And, two, he must be qualified by the Governor, for

         17        his own credibility wouldn't nominate him.  Whereas in the

         18        current system, I think that you can be a fantastic civil

         19        judge or have a lot of civil experience and not

         20        necessarily have the criminal experience or vice versa.

         21             CHAIRMAN DOUGLASS:  Commissioner Butterworth?  You're

         22        next, Commissioner Kogan.

         23             COMMISSIONER BUTTERWORTH:  Commissioner Hawkes, under

         24        the present system, I believe the judges are responsible

         25        to the people.  Under this system it appears these


          1        particular justices will be responsible only to one person

          2        and that being the Governor.

          3             COMMISSIONER HAWKES:  Well, they would be confirmed

          4        by the Florida Senate.  But like I said, if that aspect of

          5        the proposal was causing concern, you know, because I

          6        think even through the current methodology, since these

          7        judges would be applying for this position, we have

          8        some -- we achieve the benefits of interest and

          9        qualifications.

         10             COMMISSIONER BUTTERWORTH:  Thank you.

         11             CHAIRMAN DOUGLASS:  Commissioner Kogan.

         12             COMMISSIONER KOGAN:  I need to ask a couple of

         13        questions.  Has anyone studied Oklahoma and Texas Criminal

         14        Courts of Appeal to find out how they function and whether

         15        or not they are functioning well?

         16             COMMISSIONER HAWKES:  I personally haven't studied

         17        them.  I do know that Texas is a large state like Florida

         18        and I do know that Texas has a system that seems to be

         19        working far better than what our system is working.

         20             COMMISSIONER KOGAN:  All right.  Now you understand

         21        that Texas has had its criminal court of appeal for a long

         22        period of time, at least in excess of 15 years as far as I

         23        know and probably even longer than that.

         24             You understand the increase in executions in Texas

         25        occurred last year because of certain legislation that the


          1        Texas Legislature had passed in an attempt to speed up

          2        executions.  Without going into the details, mainly having

          3        lawyers also representing the inmates on, in effect, the

          4        assistance of counsel claims at the same time their

          5        initial appeals are being argued.  And that's the reason

          6        why you saw an upswing in executions last year in the

          7        state of Texas.  They were waiting for that particular law

          8        to be declared constitutional or unconstitutional and

          9        that's what sped up the execution.  Did you study that at

         10        all, I'm just curious.

         11             COMMISSIONER HAWKES:  Well, I would suggest that the

         12        fact that the court has the time to spend on the cases

         13        because they are not also handling the civil docket,

         14        assists the court greatly in being able to resolve those

         15        questions also.

         16             COMMISSIONER KOGAN:  All right.  Now, another

         17        question and another thing I'm having a problem with, as

         18        Judge Barkdull said, 50 percent of all cases in the five

         19        District Courts of Appeal are criminal in nature.  We have

         20        in excess of 75 appellate court judges in the state of

         21        Florida.  You call for seven or nine in here but if half

         22        the caseload, that means you're going to need about 35

         23        judges on the special court.

         24             COMMISSIONER HAWKES:  No, it would be envisioned that

         25        this court -- the DCAs would in essence do the same thing


          1        that they are doing now.

          2             COMMISSIONER KOGAN:  I know.  But if they have their

          3        caseload --

          4             COMMISSIONER HAWKES:  They would continue to do -- if

          5        a defendant is sentenced for burglary and he files his

          6        appeal as a matter of constitutional right, that appeal

          7        still goes to the District Court of Appeal and they hear

          8        argument or handle that case the same way that they would

          9        handle it now.  Does the court have jurisdiction?

         10             The court has -- they are not limited to their

         11        jurisdiction but the Legislature can limit them on a

         12        theory that if there was something that the DCAs could --

         13        that this court could do to assist the DCAs, this court

         14        would be able to do that.  That was an enabling clause,

         15        not an exclusive clause, because the Legislature limits

         16        the court's jurisdiction.

         17             COMMISSIONER KOGAN:  Let me ask you another question

         18        here.  You're also limiting the terms of the judges on

         19        this particular appellate court to 12 years.

         20             COMMISSIONER HAWKES:  Well, that certainly wasn't the

         21        intent.  It was a six year term and they are eligible for

         22        reappointment.

         23             COMMISSIONER KOGAN:  As I understand it, they can

         24        only be -- well, I guess to a subsequent term by the

         25        Governor, but, again, you're having these people subject


          1        to the confirmation of the Senate.

          2             COMMISSIONER HAWKES:  Yes.

          3             COMMISSIONER KOGAN:  So we are having an entirely

          4        different way of retaining these judges in office as we

          5        had with the other judges on the appellate level.

          6             COMMISSIONER HAWKES:  Under this wording, yes.

          7             CHAIRMAN DOUGLASS:  Commissioner Sundberg?

          8             COMMISSIONER SUNDBERG:  For a question, Commissioner

          9        Hawkes.  Have you in your study of this issue made any

         10        determinations?  You talk about it's now taking 15 years

         11        to execute people.  Have you made a determination as to

         12        how much of that delay, if you perceive it to be delay, I

         13        perceive it to be due process, how much of that is

         14        attributable to initial review of those capital cases in

         15        the Florida Supreme Court and any subsequent review under

         16        a state habeas of 3.850?  I mean, isn't, in fact, most of

         17        that delay, if you want to characterize it as such,

         18        attributable to the fact that we're in a federal system

         19        and there is a great deal of time consumed in the federal

         20        courts?

         21             COMMISSIONER HAWKES:  Well, I would submit, of

         22        course, Texas is under the same federal system as Florida

         23        is.  And I think that if we look over just even the last

         24        eight years, the average time on death row has increased

         25        dramatically.  And I know the Chief Justice was quoted in


          1        the newspaper talking about what a tremendous time burden

          2        this creates on the court and how difficult it is to find

          3        the time that these cases need and I know for a fact that

          4        Florida is the fourth largest state in the union, and

          5        therefore is going to have a whole lot more problems in a

          6        state like Minnesota perhaps and therefore our Supreme

          7        Court is going to be burdened with these other issues.

          8             So to answer your question, I think this court

          9        facilities the process because we have justices who have

         10        the time, the expertise, and the desire to work in this

         11        area.  And therefore, I think we're going to have a better

         12        work product because I don't think that it's very much

         13        debatable that the public perceives that the current

         14        system does not work very well.  And therefore, this is an

         15        effort to try to get a system that will work better.

         16             COMMISSIONER SUNDBERG:  But my question was, do you

         17        know how much -- what percentage of the time that's

         18        perceived to be delayed, results from the time for review

         19        in the Florida courts of death penalty cases?

         20             COMMISSIONER HAWKES:  No.

         21             COMMISSIONER SUNDBERG:  I mean, this only addresses

         22        the sort of review that takes place in the state courts,

         23        correct?  It can't at all control what goes on in the

         24        federal courts?

         25             COMMISSIONER MORSANI:  Well, I mean, through our


          1        rules and procedures we can help out the federal courts,

          2        yes.

          3             COMMISSIONER SUNDBERG:  But we can do that without

          4        the creation of Criminal Courts of Appeal, can't we?

          5             COMMISSIONER MORSANI:  Well, to the extent that we

          6        expedite the state court and finish with the state court

          7        system, it puts us in the federal court system.  And can

          8        we do things without necessarily doing a constitutional

          9        amendment?  Yes, we can do some things to improve the

         10        process and I imagine that every year the Legislature

         11        attempts to do some of those kinds of things.

         12             COMMISSIONER SUNDBERG:  I do intend to speak to this

         13        matter.  That's the end of my questions, Mr. Chairman.

         14             CHAIRMAN DOUGLASS:  Are you ready to yield the floor,

         15        Mr. Hawkes?

         16             COMMISSIONER HAWKES:  Pardon?

         17             CHAIRMAN DOUGLASS:  Are you ready to yield the floor?

         18             COMMISSIONER HAWKES:  Yes.

         19             CHAIRMAN DOUGLASS:  Actually, we're now on the

         20        amendment.

         21             (Off-the-record comment.)

         22             CHAIRMAN DOUGLASS:  Well, I was trying to do that and

         23        Commissioner Barnett wanted to ask about the amendment.

         24        We're now on the amendment that was offered by

         25        Commissioner Hawkes to his original proposal.  All those


          1        in favor of the amendment say aye.  Opposed.

          2             (Verbal vote taken.)

          3             CHAIRMAN DOUGLASS:  The amendment is adopted.  Now

          4        we're on the proposal.  Mr. Hawkes, do you want to speak

          5        to the proposal as a proponent?

          6             COMMISSIONER HAWKES:  No, I think that we've

          7        discussed it.  I can answer questions or have debate.

          8             CHAIRMAN DOUGLASS:  Commissioner Sundberg and

          9        Commissioner Barkdull, I'll take Commissioner Sundberg

         10        first.  I think he asked to be recognized earlier and then

         11        Commissioner Barkdull.

         12             COMMISSIONER SUNDBERG:  Thank you, Mr. Chairman.  The

         13        Florida Supreme Court considered a proposal like this back

         14        in 1979 when it perceived that its caseloads were to the

         15        point where it was not efficiently handling the people's

         16        business in the courts and so it looked at a whole range

         17        of possibilities to relieve what was perceived to be an

         18        overburdening of the court at that time.  And in looking

         19        at this proposal, the members of the court obviously

         20        rejected it and went to the proposals that made up the

         21        1980 amendments, the jurisdiction of the Florida Supreme

         22        Court.

         23             In considering this proposal, we heard from -- he was

         24        then the Chief Judge of the court of appeals of the state

         25        of Louisiana; they don't have a Supreme Court in


          1        Louisiana.  And they have -- and traditionally had a court

          2        of criminal appeals.  He was an expert in judicial

          3        administration and served on the ABA's committee with

          4        respect to judicial administration.

          5             He urged us in the strongest terms not to go to a

          6        court of criminal appeals for several reasons.  One was

          7        that in his experience, and we found that to be pretty

          8        much true throughout, that Criminal Courts of Appeal and

          9        specialized criminal courts are, whether it's correct or

         10        not, perceived not to be of a dignity of a court of

         11        general jurisdiction.  The other thing, and hence they

         12        aren't accorded, you know, the kind of deference that the

         13        other courts are, they become, in effect, a second class

         14        court and the clients tend to get second class treatment.

         15             The other thing -- and this applies to any

         16        specialized court -- in any specialized court, there tends

         17        to develop around those courts jargon that's particular to

         18        that court, a Bar that's peculiar to that court.  But most

         19        importantly what happens is, that the judges of those

         20        kinds of specialized courts become, in effect, tunnel

         21        visioned because that's all they see.  And we perceive one

         22        of the great virtues of having a court of general

         23        jurisdiction handle criminal appeals, including capital

         24        cases, was that it brought the view of a generalist judge

         25        to these kind of issues.  For all of those reasons, the


          1        court rejected it.

          2             I stand today just as firmly convinced that courts of

          3        criminal appeal are not a good idea.  And, in particular,

          4        if you propose to vest in that court the capital cases in

          5        this state, it seems to me that it is good public policy

          6        that when you're talking about taking one's life that the

          7        court of the highest dignity, in the state ought to be

          8        passing on those kinds of sentences and not a court that

          9        is of some sort of lesser dignity because of the very

         10        seriousness of that decision.

         11             And I submit that, in fact, this perceived delay, or

         12        delay in the process between initial conviction and when

         13        there are executions, is very, very little attributable to

         14        what goes on in the state system.  And I'm not being

         15        critical of the federal system, but it's the nature of the

         16        interaction of two judicial systems in a federal system.

         17        And hence, I submit to you, and I think I hold the same

         18        view as Commissioner Kogan in that any speed-up in Texas

         19        probably has resulted because of legislative changes and

         20        not because of the existence of a court of criminal

         21        appeals.  And lastly, meaning no disrespect, I would not

         22        like to emulate the Texas judiciary here in Florida.  It

         23        does not really enjoy the kind of reputation that our

         24        judiciary does.  So I'm opposed to this proposition.

         25             CHAIRMAN DOUGLASS:  Commissioner Barkdull?


          1             COMMISSIONER BARKDULL:  Mr. Chairman, Members of the

          2        Commission, this is a drastic proposal.  It proposes to

          3        upset one branch of government extensively.  The present

          4        appellate system in this state came into effect about 41

          5        years ago, after five or six years of extensive study.

          6        The present trial court system in this state came into

          7        existence about 25 years ago after extensive study in the

          8        culmination of some 27 different courts.

          9             There is a balance that's established in the

         10        Constitution that has been envied by many states across

         11        the country.  We have a system where the Legislature has

         12        the ultimate control over what the trial courts will

         13        consider.  The Constitution prescribes the appellate

         14        review.  The system basically works this way:  The truth

         15        of a matter is established in the trial courts.  Any

         16        judicial error is corrected in the District Courts of

         17        Appeal.  The Supreme Court has the original jurisdiction

         18        in death cases, bond cases and matters involving

         19        constitutionality of a statute and it keeps the law

         20        uniform within the state.

         21             The Supreme Court cannot create judgeships without

         22        the approval of the Legislature.  And except in

         23        extraordinary circumstances, the Legislature can't create

         24        judgeships without the concurrence of the Supreme Court.

         25        And if you understand, and if I had the time to stand here


          1        and explain it, there were reasons that those two

          2        safeguards were put in.  There was a time when the

          3        Legislature created more judges than were needed because

          4        there were people that thought they could get the

          5        appointments.  Then when we put a limit on how many judges

          6        they would have, then the Legislature would create

          7        circuits because each circuit had to have a judge.

          8             So these qualifications as to how you establish

          9        courts and how you establish judges for those courts are

         10        lodged in both departments, the judiciary and the

         11        Legislature.  It has worked very well.  I urge you not to

         12        adopt a system that has been studied many times, to my

         13        knowledge, probably over 35 years the Texas Court of

         14        Appeals has been looked at by numerous judicial councils

         15        in this state, by the Bench and Bar Commission, by the

         16        Article V Commission and nobody that has studied this

         17        system has recommended it.  I don't recall at any public

         18        hearing anybody recommending that we go to the Texas

         19        system.

         20             And I would urge you not to do that.  And I also urge

         21        you not to upset something that's taken us well over 40

         22        years to establish, and believe me, not just because I

         23        have been a member of the judiciary and there are other

         24        members of the judiciary here, this is a system that's

         25        looked at across the nation as one of the best.


          1             And I assure you that adding on a fifth wheel like

          2        putting on this court of appeals is not going to improve

          3        it.  I urge you to defeat this proposition.

          4             CHAIRMAN DOUGLASS:  Further debate?  Commissioner

          5        Kogan?

          6             COMMISSIONER KOGAN:  I think both Commissioner

          7        Sundberg and Commissioner Barkdull have expressed

          8        everything that I would need to express.  I think a lot of

          9        people need to understand that once a case reaches our

         10        court, from the trial court on the initial appeal, that

         11        case is disposed of within six months to a year.  What

         12        happens then is that case goes into the federal system and

         13        wanders around in the federal system for a number of

         14        years.  When it is finished in the federal system, then

         15        the particular defendant has the right to come back for

         16        what we call "collateral relief", and that's when they can

         17        raise such issues as the ineffective assistance of counsel

         18        and newly discovered evidence.

         19             Again, they have to start in the trial court.  When

         20        they are finished in the trial court, they come to us.

         21        Again, those cases are out within six months to a year.

         22        But you see then again they recycle in the federal system

         23        and then when they are through in the federal system,

         24        years later, then it's up to the Governor's Office to sign

         25        the death warrant.  I mean, they are just sitting there.


          1        And when the death warrant is signed, that's what the

          2        habeas corpus and the new 3.850s are filed with us, again

          3        we get them.  And under those circumstances, as the

          4        Chairman and anyone, Commissioner Brochin, who have ever

          5        been in the Governor's Office, are concerned with these

          6        cases, know what happens then, we get those out within a

          7        matter of 30 days or less.  But they are back in the

          8        federal system.  They are the Federal District Court, the

          9        11th Circuit Court of Appeals, on the way to the Supreme

         10        Court.

         11             So consequently, we move these cases despite the

         12        inordinate amount of time we spend on them.  We get them

         13        out in time, but we have no control over the federal

         14        system and certainly we have no control over when the

         15        Governor signs the death warrant.  Just because we affirm

         16        a conviction and say the death penalty is proper in a

         17        particular case, that case goes nowhere until the Governor

         18        signs the death warrant.  And you have all these other

         19        folks -- so these cases, by their very nature, everybody

         20        has to understand, are going to move slowly and they move

         21        slowly through the system for a very, very important

         22        reason and that is because a person's life is on the line.

         23             And therefore every judge, every justice who

         24        considers this case, somewhere along the line is going to

         25        take extraordinary care and time and effort to make sure


          1        that a mistake has not been made and the death penalty is

          2        proper in that particular case.

          3             So that's all I wanted to add, Mr. Chairman, to this

          4        particular debate.

          5             CHAIRMAN DOUGLASS:  Thank you.  Any further debate?

          6        Would you like to close, Commissioner Hawkes?

          7             COMMISSIONER HAWKES:  Thank you, Mr. Chairman.  I can

          8        see that this is probably your most favorite proposal.  I

          9        suppose even if I told you it was my take home proposal,

         10        it probably isn't going to get very many votes.  But I

         11        would suggest and ask for your favorable consideration,

         12        but I would suggest that the Supreme Court is extremely

         13        busy and if we had a court that could spend more time on

         14        these cases, then I think that we would probably achieve a

         15        better work product.  And with that, thank you, Mr.

         16        Chairman, and appreciate your opportunity.

         17             CHAIRMAN DOUGLASS:  All right.  Unlock the machine

         18        and let's vote.

         19             (Vote taken and recorded electronically.)

         20             CHAIRMAN DOUGLASS:  Lock the machine and announce the

         21        vote.

         22             READING CLERK:  Five yeas, 22 nays, Mr. Chairman.

         23             CHAIRMAN DOUGLASS:  All right.  It fails.  Proposal

         24        No. 1 by Commissioner Sundberg, it has been approved by

         25        the Committee on Declaration of Rights, it was adopted as


          1        amended, and we are on a motion to -- the motion to

          2        reconsider was adopted and the consideration was deferred

          3        until today.  So we are reconsidering this, the motion

          4        having been adopted.  Would you read the proposal, please?

          5             READING CLERK:  Proposal 1, a proposal to revise

          6        Article I, Section 9, Florida Constitution; providing that

          7        private property may not be forfeited unless the owner is

          8        convicted of a felony and has exhausted all appeals.

          9             CHAIRMAN DOUGLASS:  All right.  Commissioner

         10        Sundberg, this was amended, of course, and it is on

         11        reconsideration and would like for you to present it

         12        again, please.

         13             COMMISSIONER SUNDBERG:  Mr. Chairman, this proposal

         14        provided that the same burden of proof would be required

         15        in any forfeiture proceeding as is required for a

         16        conviction of the crime out of which the forfeiture would

         17        have arisen.

         18             I frankly, I have been fairly persuaded by some

         19        pretty persuasive people, not the least of whom is the

         20        Attorney General, that this is not an issue that requires

         21        attention at this time.  Hence, I will not attempt to

         22        withdraw it, but I do not intend to urge upon you with

         23        great force the necessity for this.  I think, if nothing

         24        more, than out of a sense of we have got to start some

         25        culling here, I think this is one that can be culled.


          1             CHAIRMAN DOUGLASS:  Did I understand you to say you

          2        are withdrawing it?

          3             COMMISSIONER SUNDBERG:  I did not say I was

          4        withdrawing it.  I don't think I can withdraw on a

          5        reconsideration.

          6             CHAIRMAN DOUGLASS:  No, you could move, I guess, and

          7        we could all agree to it.  I understand there are

          8        amendments on the desk.

          9             COMMISSIONER SUNDBERG:  Mr. Chairman, may I waive the

         10        rule and move to withdraw?  It's hard to give up in this

         11        group.

         12             CHAIRMAN DOUGLASS:  Without objection, it is

         13        withdrawn.

         14             Now we will move on.  Proposal 168 by Commissioner

         15        Corr, Commissioner Corr -- Commissioner Barkdull?

         16             COMMISSIONER BARKDULL:  Mr. Chairman, this is one

         17        that Commissioner Corr proposed where he was trying to get

         18        direct responsibility for the executive departments and,

         19        in effect, he destroyed the collegiality of the reduced

         20        Cabinet size.  We put it on reconsideration.  I have

         21        offered an amendment which Commissioner Corr has no

         22        objection to.  I have also run it by Commissioner Alfonso

         23        who has no objection to it and they are beginning to pass

         24        it out -- no?

         25             (Off-the-record comment.)


          1             COMMISSIONER BARKDULL:  It may be in the packet.  It

          2        restores three words to the Constitution that eliminates a

          3        problem that Commissioner Barnett raised when we were

          4        discussing about the reduced Cabinet size and that allows

          5        collegial responsibility to be restored.

          6             CHAIRMAN DOUGLASS:  Well, all right.  Let me do this

          7        before we go further.  I don't believe we read it, the

          8        Proposal 168.  And I would ask the clerk to read 168.

          9             READING CLERK:  Proposal 168, a proposal to revise

         10        Article IV, Section 6, Florida Constitution, providing

         11        that an entity purportedly within an executive department

         12        which is not subject to the direct supervision of the

         13        agency head is a department providing that the amendment

         14        does not affect the status of such entities to issue

         15        revenue bonds before a specified date and to create

         16        Article XII, Section 23, Florida Constitution, providing

         17        that the amendment does not affect the status of such

         18        entities in existence on the effective date of the

         19        adoption of the amendment.

         20             CHAIRMAN DOUGLASS:  All right.  Now does everybody

         21        understand what we are on here and Commissioner Barkdull

         22        has an amendment on the table.  Would you read the

         23        amendment, please?

         24             READING CLERK:  By Commissioner Barkdull on Page 1,

         25        Line 29, delete the phrase "the Governor and the Cabinet"


          1        and insert "the Governor and Cabinet".

          2             CHAIRMAN DOUGLASS:  All right.  Now at the time that

          3        you are explaining your amendment, you might want to

          4        explain the proposal, Commissioner Barkdull.

          5             COMMISSIONER BARKDULL:  This was a proposal of

          6        Commissioner Corr's which placed responsibility for the 25

          7        departments of government under individual -- individuals,

          8        either Governor or a member of the Cabinet did not appear

          9        to allow for collegial responsibility.  It was pointed out

         10        in the debate that we should preserve collegial

         11        responsibility in certain instances.  I think Commissioner

         12        Butterworth raised the Department of Law Enforcement and

         13        there are some others that had statutory collegial

         14        responsibility.

         15             It was considered that by striking the words the

         16        Governor and the Cabinet we eliminated the ability for

         17        that collegial responsibility to continue or to be placed

         18        therein later on by legislation.

         19             And the purpose of my amendment is to put those words

         20        back in which would permit collegial responsibility both

         21        in the Constitution and by statute.

         22             CHAIRMAN DOUGLASS:  Everybody understand?  Any

         23        further discussion on the amendment?  All right.  All in

         24        favor of the amendment say aye.  Opposed.

         25             (Verbal vote taken.)


          1             CHAIRMAN DOUGLASS:  Amendment carries.  Is there

          2        another amendment on the table?

          3             READING CLERK:  Yes, Mr. Chairman.

          4             CHAIRMAN DOUGLASS:  Read the amendment.

          5             READING CLERK:  By Commissioner Alfonso, on Page 2,

          6        between Lines 14 and 15, insert Section 2, Section 14 of

          7        Article IV of the Florida Constitution is created to read,

          8        State Board of Agriculture, the State Board of Agriculture

          9        shall be a body corporate and have such duties as are

         10        provided by law.  The State Board of Agriculture shall

         11        consist of seven members appointed by the Governor to

         12        staggered four year terms subject to confirmation by the

         13        Senate.  The State Board of Agriculture shall appoint the

         14        Commissioner of Agriculture.

         15             CHAIRMAN DOUGLASS:  Commissioner Alfonso?

         16             COMMISSIONER ALFONSO:  Thank you, Mr. Chairman.  This

         17        language really mirrors our language that we had included

         18        in our Cabinet reform package that dealt with the

         19        Commissioner of Education and the Board of Education and

         20        it really mirrors that so we treat both of those

         21        departments now equally.

         22             I brought it up to really let the folks from the

         23        agricultural community know that we clearly intended to

         24        deal with it in this fashion.  I think it would, again,

         25        continue with a philosophy for our Cabinet reform package


          1        of gubernatorial appointment and then having those experts

          2        in that commission go ahead and appoint the agricultural

          3        commission, that's plain and simple what it is.

          4             CHAIRMAN DOUGLASS:  All right.  Anybody want to be

          5        heard on the amendment?  Commissioner Morsani?

          6             COMMISSIONER MORSANI:  Mr. Alfonso, I'm sorry, I

          7        missed that day that we -- when you had this vote.  Why --

          8        I thought that the purpose of the change in the Cabinet

          9        was to eliminate rather than continue to increase and put

         10        a checks and balances.  Why are we creating basically

         11        another entity with this agricultural commission?  I

         12        thought that the intent was when we voted out the Cabinet

         13        reform to eliminate some of these areas.  I mean, maybe

         14        they want it, but is that the right thing for our state?

         15        Do we need this in this Constitution?

         16             COMMISSIONER ALFONSO:  Well, one, I think we are

         17        going to find out if it is the right thing.  Two, I am

         18        mirroring the language and the proposals under the debates

         19        that we had here for the Board of Education to go ahead

         20        and deal with it so that constitutionally we could deal

         21        with the fact that we were just taking Agriculture out of

         22        the Cabinet.  They were being left in what I considered to

         23        be kind of limbo.  Yes, it could have been dealt with by

         24        the Legislature and it still can.  But I am putting this

         25        amendment on it because I felt that it rounded out our


          1        whole package for the Cabinet reform issues that we

          2        discussed.

          3             COMMISSIONER MORSANI:  Well, I don't know why we need

          4        it in here, I'm sorry.  I apologize for having a

          5        discussion with my chairman there, but I just don't know

          6        why we need this in the Constitution when we are -- if the

          7        Legislature wants to do something about them, let them do

          8        something about it.  But I think we have passed a change

          9        in the proposed makeup of the Cabinet; I can't see why

         10        this -- why we have to mirror anything at this time and I

         11        would be opposed to it.

         12             COMMISSIONER ALFONSO:  Well, sir, when we brought

         13        these things up, I mean, we really dealt with every

         14        office, every former Cabinet office including the

         15        Commissioner of Education, but we really never dealt with

         16        the Commissioner of Agriculture in any way in our Cabinet

         17        reform package.  And this is a way that satisfies, or at

         18        least shows our intent to deal with the agricultural

         19        commissioner and his commission.

         20             You are absolutely right, I felt this was an

         21        amendment that would allow us to round out our whole

         22        package and that's why I proposed the amendment.  I have

         23        not yet heard and I am sure I will from the agricultural

         24        folks if they want to deal with it in fashion.

         25             We had a very lengthy debate on the Education


          1        Commissioner's office and the Board of Education, of which

          2        I was, you know, favorably disposed to.  And it was my

          3        thought that this then would mirror that and allow at

          4        least to get us, you know, get us a proposal out that we

          5        could get input from.

          6             COMMISSIONER MORSANI:  Well, if I might.  I haven't

          7        received a single letter from anyone in the agricultural

          8        department.  I have an agriculture periphery of what I do

          9        in life and I haven't received a single objection or

         10        anyone in the agriculture field that is suggesting that we

         11        do anything with this.  Now maybe others are being

         12        inundated; I'm not aware of that though.

         13             COMMISSIONER ALFONSO:  And you may not, but it was my

         14        feeling that you were about to get a bunch of letters and

         15        that's why I brought forth this amendment -- so.

         16             CHAIRMAN DOUGLASS:  I like that.  Commissioner Riley.

         17             COMMISSIONER RILEY:  I have a question for

         18        Commissioner Alfonso.  What about insurance then?  I

         19        mean --

         20             COMMISSIONER ALFONSO:  That would be combined with

         21        the comptroller's office and the chief financial officer

         22        in our Cabinet package.

         23             COMMISSIONER RILEY:  So of the existing Cabinet

         24        members, there will be some that would be combined but

         25        what you are saying is that agriculture was just simply


          1        left out completely and therefore this is.

          2             COMMISSIONER ALFONSO:  Yes, we never really, we

          3        talked about it in committee briefly, we talked about how

          4        we were going to deal with it.  But since you had a

          5        proposal dealing with the Board of Education and it was

          6        favorably moved here and we thought this was a way to take

          7        up the issue with agriculture.

          8             COMMISSIONER RILEY:  Well, I would hope they would be

          9        argued or debated separately.

         10             COMMISSIONER ALFONSO:  I'm sure they will be.

         11             CHAIRMAN DOUGLASS:  They are being debated separately

         12        right now, Commissioner Riley, so if you want to, this is

         13        your shot.  All right.  Now Commissioner Barnett?

         14             COMMISSIONER BARNETT:  Follow-up question.  What is

         15        the reason to distinguish the Department of Agriculture

         16        functions from the functions that are not combined in the

         17        new fiscal officer from the Department of Banking -- or

         18        the banking and finance aspects and the pure insurance

         19        regulatory aspects?  What is the reason to treat them

         20        differently and constitutionalize one of those functions

         21        and not the other two?

         22             COMMISSIONER ALFONSO:  I am proposing this amendment

         23        to the body to see if it is proper to constitutionalize

         24        one.  It may very well be dealt with.  If we have a

         25        different priority towards education than we do towards


          1        agriculture or if there is a different makeup of those

          2        two, then it may very well be dealt with differently and

          3        dealt just how you are suggesting.

          4             COMMISSIONER BARNETT:  There would be nothing to

          5        limit the Legislature from creating a Department of

          6        Agriculture.

          7             COMMISSIONER ALFONSO:  Nothing that I know of would

          8        limit them from creating a Department of Agriculture.

          9             CHAIRMAN DOUGLASS:  Commissioner Barnett?

         10             COMMISSIONER BARNETT:  I have a question on the

         11        main --

         12             CHAIRMAN DOUGLASS:  On the main proposal when we get

         13        there.

         14             COMMISSIONER BARNETT:  When we get there, yes.

         15             CHAIRMAN DOUGLASS:  Commissioner Thompson.

         16             COMMISSIONER THOMPSON:  I just wanted to ask

         17        Commissioner Alfonso a question or two.

         18             CHAIRMAN DOUGLASS:  He yields.

         19             COMMISSIONER THOMPSON:  In response to that last

         20        question that was asked by Commissioner Barnett.  There

         21        would be nothing, as you understand it, to prohibit the

         22        Legislature from establishing a Department of Agriculture

         23        unless there are already enough departments.

         24             COMMISSIONER ALFONSO:  Unless there were already

         25        enough departments.


          1             COMMISSIONER THOMPSON:  We had already reached the

          2        cap, so that's one problem.  Other thing I would like to

          3        ask you is, if you had ever heard former Lieutenant

          4        Governor Wayne Mixson, I wish he was here, talk about the

          5        three-legged stool of Florida's economic base.  And the

          6        first one is new construction and that comes and goes

          7        based on what the economy is and the second one is tourism

          8        and it goes real hard when the economy is threatened a

          9        little bit.  And the third one is agriculture and it is

         10        our most stable industry in this state.

         11             And I think what we are hearing, and I think,

         12        Commissioner Alfonso, if you agree, you have heard from

         13        your ag community and they are a little concerned about

         14        their base and their relationship to state government.

         15        And you think that if we put something into Style and

         16        Drafting that would give us the opportunity to readdress

         17        the issue of how to deal with agriculture, we might be

         18        able to get their support for some of the other things

         19        that we are doing.  Is that basically where you are coming

         20        from?

         21             COMMISSIONER ALFONSO:  That is absolutely where I'm

         22        coming from.  And I appreciate you putting it that way.

         23        And I -- obviously, we all know the importance of

         24        agriculture to our state and to its economy.  So I bring

         25        this amendment forward.  It gives us a way of dealing with


          1        it in Style and Drafting.  It mirrors what we have done

          2        with education and now we can hear how best to take this

          3        up as we go forward.

          4             CHAIRMAN DOUGLASS:  All right.  Any further debate on

          5        the amendment?  The amendment that would deal with the

          6        agriculture situation.  Everybody ready to vote?  All in

          7        favor of the amendment say aye.  Opposed.

          8             (Verbal vote taken.)

          9             CHAIRMAN DOUGLASS:  The amendment carries.  All

         10        right.  We are now on the proposal and we will hear from

         11        proponents first if -- all right, yes, Commissioner

         12        Barnett.

         13             COMMISSIONER BARNETT:  Just a question.  Currently in

         14        the Constitution we are limited in the number of

         15        departments that we can have, I think the number is 25,

         16        and we are getting close to that.  It comes and goes as we

         17        do legislative reform.  This language in this original

         18        proposal, as I understand it, makes those entities, let me

         19        see, let me see the exact language, entity purportedly

         20        within the department which is not subject to the direct

         21        supervision of the head of the department.  It

         22        constitutionally makes these entities a department.

         23             And I have asked the staff what that would affect,

         24        and they tell me that it is possible that it could be

         25        eight or ten currently existing entities in state


          1        government.  Examples will be the Agency for Health Care

          2        Administration, the Division of Administrative Hearings,

          3        and several things like that which are administratively --

          4             CHAIRMAN DOUGLASS:  I know we are having a little

          5        trouble with order here.

          6             COMMISSIONER BARNETT:  -- which are administratively

          7        housed in a department but function independently.  And so

          8        if this is adopted, it looks like that we will be in a

          9        situation where we are at or near the constitutional cap

         10        on departments and yet we are going to have up to eight or

         11        ten of these entities that are administratively assigned

         12        to a department but not subject to the agency head.  What

         13        are we going to do?  What's going to be the practical

         14        implications of that for the Legislature or, you know,

         15        what's going to happen under those circumstances?  Because

         16        we are not going to have enough places.  This mandates

         17        they be treated as a department, but we don't have any

         18        room left or we may only have one or two slots left.

         19             COMMISSIONER ALFONSO:  Just as a lay person, I would

         20        assume they would consolidate some departments.

         21             COMMISSIONER BARNETT:  So it is going to force the

         22        Legislature simply to come in and consolidate the

         23        departments?

         24             COMMISSIONER ALFONSO:  That's my assumption.

         25             CHAIRMAN DOUGLASS:  All right.  Let's see, we are on


          1        the proposal now.  Does anybody want to be heard on the

          2        proposal?  Does everybody understand what happened with

          3        the 25 department issue?  All right.  Does anybody want to

          4        be heard on this now?  We are fixing to vote.  You want to

          5        close at all, Commissioner Alfonso?  All right.

          6        Commissioner Thompson.

          7             COMMISSIONER THOMPSON:  I believe, and I don't know

          8        whether Commissioner Alfonso, and I am just sorry I was

          9        out of the chamber when he started this debate, but we

         10        took this up earlier and it has been amended so that the

         11        engrossed proposal is different than the one showing in

         12        your package and some of the things that Commissioner

         13        Barnett has been concerned about about reaching the cap

         14        and so forth is not applicable as I understand it.

         15             Number one, there was an amendment that was put on

         16        that said if you were now some kind of a division or

         17        department and you had bonds outstanding, you would

         18        continue to exist no matter whether this amendment is

         19        adopted by the people or not.

         20             Number two, if you are a department, agency, or

         21        whatever you want to call it at this point in time,

         22        regardless of how your supervision is and what your chain

         23        of command is, you are grandfathered in at this time.  So

         24        this is only a prospective proposed amendment at this

         25        point, I think, based on the amendments that have been


          1        adopted previously.

          2             CHAIRMAN DOUGLASS:  That's correct.  All right.  If

          3        you are ready to vote, we will open the machine.

          4             (Vote taken and recorded electronically.)

          5             CHAIRMAN DOUGLASS:  Okay.  Everybody hasn't voted.

          6        Lock the machine and announce the vote.

          7             READING CLERK:  Eighteen yeas, five nays,

          8        Mr. Chairman.

          9             CHAIRMAN DOUGLASS:  All right.  By your vote you have

         10        adopted Proposal 168 as amended.  We now move to proposal

         11        149 which, I believe, was a general proposal, Commissioner

         12        Scott, was it not?  And there's an amendment on the desk.

         13             COMMISSIONER SCOTT:  Mr. Chairman, Commissioners,

         14        this was a proposal that I just put in in case we needed

         15        it for something and I understand that Commissioner Connor

         16        has an amendment but I'm not sure.

         17             CHAIRMAN DOUGLASS:  All right.  Let's have order,

         18        please.  Commissioner Scott, the Secretary tells me that

         19        this needs to be withdrawn from the committee, so.

         20             COMMISSIONER SCOTT:  Without objection.

         21             CHAIRMAN DOUGLASS:  Without objection it is withdrawn

         22        from the committee.  All right, proceed.

         23             COMMISSIONER SCOTT:  Mr. Chairman, this is a proposal

         24        that I just put it in in case we needed something and I

         25        understand that Commissioner Connor has found something


          1        important for it.  So he has an amendment.  So if he'll

          2        read the amendment.

          3             CHAIRMAN DOUGLASS:  Are we ready to proceed with

          4        Commissioner Connor's amendment which is going to become

          5        the proposal?

          6             COMMISSIONER CONNOR:  Yes, sir.  They are

          7        distributing it now as I understand it.

          8             CHAIRMAN DOUGLASS:  I'm right on that, am I not,

          9        Commissioner Scott?  His amendment is going to be the

         10        proposal when we finish with his amendment.

         11             COMMISSIONER SCOTT:  That's correct, it is a

         12        strike-everything amendment that will then become the

         13        proposal.

         14             CHAIRMAN DOUGLASS:  All right.  So are we prepared --

         15        you can go ahead.  And if everybody would pay attention,

         16        please, Commissioner Connor will explain the amendment

         17        that's being distributed.

         18             THE WITNESS:  Commissioner Connor.

         19             COMMISSIONER CONNOR:  Thank you, Mr. Chairman.

         20        Members of the Commission, if I could have your attention,

         21        I dare say we may have a proposal that will enjoy

         22        virtually the ununanimous consent of this body and in an

         23        effort to always promote harmony, which I specialized in

         24        on some of my proposals.

         25             (Laughter.)


          1             CHAIRMAN DOUGLASS:  Does everybody want to vote on

          2        that?

          3             COMMISSIONER CONNOR:  I think this is a good one.

          4        Ladies and gentlemen, the proposal would be an amendment

          5        to Article V, Section 5 which would add new language and

          6        you'll see some language in front of you, and

          7        Mr. Chairman, I'm going to propose orally that we drop one

          8        word, "naming".  And this, all this amendment would do

          9        would be to add the following to Article V, Section 5," In

         10        primary elections all --

         11             CHAIRMAN DOUGLASS:  It's Article IV, isn't it?

         12             COMMISSIONER CONNOR:  Thank you, I'm sorry, Article

         13        IV, Section 5.  Thank you very much.  And it says simply,

         14        as I proposed to amend it.

         15             CHAIRMAN DOUGLASS:  It is amended on the desk,

         16        incidentally.

         17             COMMISSIONER CONNOR:  Thank you.  In primary

         18        elections all candidates for the offices of Governor shall

         19        run without a Lieutenant Governor candidate.  Now, ladies

         20        and gentlemen, the point very simply is this,

         21        gubernatorial candidates often run in a field of

         22        candidates, typically in a fine field of candidates and

         23        those candidates are very often very effectively vetted

         24        out, if you will, during the primary process.

         25             And so the public has an opportunity to assess that


          1        entire field of candidates and very often at the end of

          2        that process the leading gubernatorial candidate

          3        oftentimes would like to be able to have dropped back

          4        within that field and pick one of those candidates whom

          5        they felt comfortable with, whom they felt received a

          6        favorable response to the public and who had, if you will,

          7        passed inspection in the public arena before going on to

          8        be named to the ticket.

          9             And I think this would be a proposal that would inure

         10        to the benefit of gubernatorial candidates and all

         11        parties, it provides an opportunity, I think, to after a

         12        potentially fractious primary to reunify the party by

         13        drawing in one of the candidates against whom the leading

         14        candidate ran to bring that person on to the ticket.  And

         15        I think it eliminates problems that may come from a

         16        candidate not having been under the public scrutiny

         17        associated with the gubernatorial candidacy before.

         18             So whether you are Republican, Democratic,

         19        Libertarian or Independent, I believe that this provides

         20        us with the best opportunity to field the best set of

         21        candidates for Governor and Lieutenant Governor regardless

         22        of the party that's involved, and I encourage your support

         23        of the proposal.

         24             CHAIRMAN DOUGLASS:  Commissioner Barkdull?

         25             COMMISSIONER BARKDULL:  Will the gentleman yield for


          1        a question?

          2             CHAIRMAN DOUGLASS:  He yields.

          3             COMMISSIONER CONNOR:  Yes, sir.

          4             COMMISSIONER BARKDULL:  Commissioner Connor, as I

          5        read your proposal, this would not limit the choice to the

          6        candidates that did not make the endorsement in the

          7        primary.

          8             COMMISSIONER CONNOR:  By no means would there be such

          9        limitation, that's correct.

         10             COMMISSIONER BARKDULL:  Thank you.

         11             COMMISSIONER CONNOR:  It simply affords the

         12        opportunity, actually, for a broader ticket than otherwise

         13        might be permitted under the existing system.

         14             COMMISSIONER SMITH:  Rise for a question.

         15             CHAIRMAN DOUGLASS:  Commissioner Smith.

         16             COMMISSIONER SMITH:  Do I understand this correctly

         17        that if this had been in law in 1994 it may have allowed

         18        for the possibility maybe of a Bush/Connor ticket?

         19             (Laughter.)

         20             COMMISSIONER CONNOR:  That's very remotely possible

         21        but anything is within the realm of possibility.

         22             COMMISSIONER SMITH:  Just trying to bring it closer

         23        together.

         24             CHAIRMAN DOUGLASS:  It more probably would have been

         25        a Bush/Smith ticket; would it not, Commissioner?


          1             COMMISSIONER CONNOR:  That would have been more

          2        likely.  More probably than not.

          3             CHAIRMAN DOUGLASS:  But at least he would have had an

          4        opportunity to select the best man available, Commissioner

          5        Connor.

          6             COMMISSIONER CONNOR:  That's exactly right.

          7             CHAIRMAN DOUGLASS:  Excuse me, best person available,

          8        I'll tell you what, we are learning here today.

          9             (Laughter.)

         10             CHAIRMAN DOUGLASS:  All right.  Does anybody want to

         11        be heard on this with Governor Connor?  If not, we will

         12        proceed to vote.  Open the machine.

         13             (Vote taken and recorded electronically.)

         14             CHAIRMAN DOUGLASS:  We adopted the amendment.  I want

         15        you to know that -- close the machine and announce the

         16        vote, please.

         17             READING CLERK:  Twenty-five yeas, three nays,

         18        Mr. Chairman.

         19             CHAIRMAN DOUGLASS:  I want you to know, Commissioner

         20        Connor, you weren't elected unanimously, you had three

         21        holdouts against you and they were nonpartisan.

         22             COMMISSIONER CONNOR:  And I won't be picking them on

         23        any future ticket, I can tell you right now.  They won't

         24        even be up for consideration.

         25             CHAIRMAN DOUGLASS:  Commissioner Langley, you are out


          1        of luck.  Commissioner Anthony, you can go back to South

          2        Bay.  That's a good amendment and I don't mean to make

          3        light of it, but a little levity might help us out a

          4        little bit.  Now, we will go to Committee Substitute for

          5        Proposals 138 and 89 by the Committee on Education and

          6        Commissioners Nabors and Riley.  We are back on the state

          7        Lottery proposal which was recommended as a Committee

          8        Substitute approved by the Committee on Education, adopted

          9        as amended and it came back -- is coming back on a motion

         10        to reconsider by Commissioner Alfonso.  The motion has

         11        been adopted and consideration was deferred until this

         12        week.  It was on the calendar yesterday.  It is coming up

         13        today.  I'll ask that the clerk read the proposal.

         14             READING CLERK:  Committee Substitute for Proposal

         15        Nos. 138 and 89; a proposal to revise Article X, Section

         16        15 of the Florida Constitution; limiting the use of state

         17        Lottery net proceeds to financing certain educational

         18        facilities or funding early childhood care and education

         19        programs.

         20             CHAIRMAN DOUGLASS:  All right.  There is an amendment

         21        on the desk and an amendment to the amendment on the desk.

         22        We will take up the amendment.  Would you read the

         23        amendment, please?

         24             READING CLERK:  By Riley, Sundberg, and Nabors, on

         25        Page 1, Line 27, through Page 2, Line 16, strike all of


          1        said lines and insert lengthy amendment.

          2             CHAIRMAN DOUGLASS:  All right.  On the amendment, who

          3        made the amendment?  Who proposed the amendment?  Riley,

          4        Commissioner Riley, on the amendment.

          5             (Off-the-record comment.)

          6             CHAIRMAN DOUGLASS:  Speak to me.

          7             COMMISSIONER RILEY:  I am not sure they have on their

          8        desk what I have in my hands which is a -- an amendment to

          9        what we passed previously and in addition to that, an

         10        additional amendment.

         11             CHAIRMAN DOUGLASS:  We are not there yet.  First of

         12        all, you have got an amendment which really replaces what

         13        we passed, correct?  That's what we have before us right

         14        now.  Tell us what that does that the other one didn't do.

         15             COMMISSIONER RILEY:  We have --

         16             CHAIRMAN DOUGLASS:  You are supposed to have it on

         17        your desk.  Do they have it?  You do.  Commissioner

         18        Barnett, look on your desk, please.

         19             COMMISSIONER BARNETT:  Mr. Chairman, what we have on

         20        our desk is I think what we passed before -- oh, okay, so

         21        we don't have it.

         22             CHAIRMAN DOUGLASS:  Hold on.  Now you will get it.  I

         23        didn't mean to infer it was hidden on your desk, but I

         24        have it on mine and I can't find it either.  Commissioner

         25        Riley, what we need to do is for you to tell us what the


          1        amendment does and then -- that the other didn't do -- and

          2        then we will discuss the amendment to the amendment.

          3             COMMISSIONER RILEY:  Correct.  Basically this does

          4        three specific things separate from the amendment to the

          5        amendment.  First of all, it will add under Section 1,

          6        where it talks about financing and refinancing, it will

          7        add the word "heretofore".  So it will now read, on No. 1,

          8        "to finance or refinance as provided by general law bonds

          9        or certificates of indebtedness heretofore issued by the

         10        state or school district", et cetera.  We are adding that.

         11             The second, the second part of the change is to add a

         12        number five, which, in fact, adds the school advisory

         13        councils as established pursuant to 229.58, Florida

         14        Statutes, or their successor in function.  We are

         15        answering all of the questions that were brought up

         16        previously.

         17             And the third change on the initial, this initial

         18        amendment, is a schedule of implementation which answers

         19        the questions on the Bright Futures Scholarships.  We are

         20        like Smith-Barney, you talked and we listened.  And we

         21        went back very carefully and made sure because we

         22        understand that this is extremely important and if you

         23        looked at all the papers, what they talked about the next

         24        day was almost exclusively the Lottery and what we had

         25        done and then it talked about how it was going to block


          1        out the Bright Futures Scholarships.  So we have made sure

          2        that we have put that back in with some time limitations.

          3             Now before you say that that doesn't do what you want

          4        to do as far as the future in 20 years, and while I

          5        realize I'm getting a little bit ahead of this existing

          6        amendment, the amendment to the amendment will take care

          7        of the years after that in terms of future scholarships.

          8        But what this initial amendment does is to bring back into

          9        the possibilities of the Legislature to take care of and

         10        to fund the Bright Futures Scholarships with the Lottery

         11        proceeds.

         12             So again, we listened to all -- we want this to pass.

         13        I think we all know that there is a problem that we need

         14        to fix.  We listened to all of the ways that you said our

         15        original proposal didn't quite fix it and we have fixed

         16        that with this amendment.  So I don't think there is

         17        anything else we can do.  We have not put in percentages.

         18        We have not told the Legislature how they are going to

         19        divide the dollars.  We have listed the very important

         20        things and very important areas that everybody agrees with

         21        need to be funded by the Lottery proceeds.

         22             CHAIRMAN DOUGLASS:  Commissioner Mills?

         23             COMMISSIONER MILLS:  Commissioner Riley yield for a

         24        question?

         25             COMMISSIONER RILEY:  She does.


          1             COMMISSIONER MILLS:  The -- as I understand the

          2        current Lottery process, there is somewhere in the

          3        neighborhood of 225 million or so spent on the basic

          4        education finance program, the Florida Education Finance

          5        Program.  After the implementation, I understand the idea

          6        is to do this for a supplement.  But after the

          7        implementation of this provision it would be

          8        unconstitutional to spend that money; is that correct?

          9             COMMISSIONER RILEY:  I'm not sure I understand your

         10        question.

         11             COMMISSIONER MILLS:  Well, you enumerated --

         12             COMMISSIONER RILEY:  You mean in terms of other areas

         13        that are not listed --

         14             COMMISSIONER MILLS:  So for the following uses.

         15             COMMISSIONER RILEY:  The intent here is to make sure,

         16        again, that the Lottery proceeds are spent to enhance

         17        education.

         18             COMMISSIONER MILLS:  I understand --

         19             COMMISSIONER RILEY:  So if the answer to your

         20        question then is does it limit to the things in this, yes,

         21        it would.

         22             COMMISSIONER MILLS:  There are two issues that are

         23        important for us to talk about and one is by doing the

         24        language -- so for the following uses you have enumerated

         25        every type of enhancement that is possible.  And secondly


          1        by saying solely you have constitutionally reduced

          2        $225 million that's currently being spent on the basics in

          3        school funding and haven't mandated it be picked up

          4        otherwise; do you see what I'm saying?

          5             COMMISSIONER RILEY:  What we've done is taken what

          6        was already agreed upon by this body, by majority vote,

          7        and made it better, added to it complaints that people had

          8        who voted against that original proposal.

          9             COMMISSIONER MILLS:  All I'm suggesting is I think

         10        that original proposal had that same problem which is to

         11        say that this is a cut -- this is a $225 million cut in

         12        the FEFP.

         13             COMMISSIONER RILEY:  I see that as an advantage to

         14        the proposal, not a disadvantage.

         15             COMMISSIONER MILLS:  Well, if you see it as an

         16        advantage to the proposal, then either you think that the

         17        school system is overfunded or you think the Legislature

         18        will pick up 225 million.

         19             COMMISSIONER RILEY:  Again, the issue before us is,

         20        how do we get back to what the people were promised when

         21        we voted in the Lottery fund, that's the question we're

         22        trying to answer.  And you may not agree with how we've

         23        answered that, but we think we have tried to define

         24        enhancement as broadly as possible and to make it clear

         25        that enhancement is where the dollars are supposed to go.


          1             COMMISSIONER MILLS:  Well, let me say my problem with

          2        this is probably going to be that this is like giving your

          3        kid candy before they eat their vegetables.  I mean, we

          4        have not adequately funded the baseline of education.

          5        This cuts $225 million out of education and says, I

          6        understand the Lottery was supposed to be a supplement.  I

          7        understand Lottery was supposed to be a supplement, but if

          8        it hasn't been, the effect of this we must deal with.  And

          9        if you have full faith that the Legislature is going to

         10        pay 225 million, then that's fine.  But this

         11        constitutionally limits uses for the next 20 years to

         12        these five items and I just have some personal concerns.

         13             I absolutely agree the Lottery is supposed to be for

         14        a supplement, I mean, agree with that.  But since it

         15        hasn't been and since all of that we have read about

         16        education doesn't indicate we're doing a great job, we do,

         17        by doing this, at least constitutionally, reduce

         18        $225 million that is currently going to baseline school

         19        functions.

         20             COMMISSIONER RILEY:  And I say right on.

         21             CHAIRMAN DOUGLASS:  Commissioner Nabors.

         22             COMMISSIONER NABORS:  I'd like to speak to your

         23        question if I can.  As you recall, this is the debate we

         24        had a week ago Thursday.  And as I recall, you supported

         25        the debate and voted for this proposal.  The weakness we


          1        had a week ago Thursday was, is we had no schedule in the

          2        bill and so there was a provision that if it passed there

          3        would be an abrupt consequence.  We called it creating a

          4        hole in the budget which would be a hole for 7 million for

          5        Bright Future Scholars and another 200 and some million

          6        for K through 12, another amount for community college,

          7        another amount for higher education.  So about

          8        $400 million.

          9             No question about that, as we talked about in that

         10        debate, which you supported, that if you enumerate

         11        provisions in the Lottery, you're going to create a hole.

         12        What this is intended to do is to schedule out over a

         13        period of years to give the Legislature time to make up

         14        that hole.  It does it in two ways.

         15             One is is that there would not be a loss of that

         16        money, day one.  What it says is, it says beginning in the

         17        year 2001, which is the same year that the tax fairness

         18        initiative proposal we've discussed will be considered,

         19        which we will have to see if that passes along, nothing

         20        would happen until that year.  After that year, the

         21        exclusive uses will be phased out, one-third, one-third

         22        over three years.  You have five years before you would

         23        get to an exclusive use of Lottery money.

         24             You have five years before the enumerated uses would

         25        be exclusive.  Now what this does, which makes it a better


          1        proposal we passed out last time, is it gives comfort to

          2        all those students who have Bright Scholars, all those who

          3        have it now, who have it next funding cycle and the next

          4        funding cycle before year 2001, their awards are going to

          5        be honored.

          6             It also allows the Legislature, by a subsequent

          7        amendment, to use Lottery money for Bright Futures or any

          8        other scholarship program they want to.  So what it puts

          9        us in a position of doing is all the monies that are

         10        currently being used by the Lottery, which are

         11        theoretically for enhancement of education, whether you

         12        agree or not, scholarship, bonding, pre-K is all

         13        recognized.  But those that aren't going for enhancement,

         14        if this was to pass standing alone, would have to be

         15        phased out over a five-year period, that's correct.

         16             CHAIRMAN DOUGLASS:  Commissioner Mills?  Commissioner

         17        Scott, you're next.  He's still questioning.

         18             COMMISSIONER MILLS:  Commissioner Nabors, are there

         19        other of that the 400 million, and I did vote for that

         20        last time which proves I'm educable, that this -- of the

         21        400 million, are there other funds that go to higher

         22        education, other functions which would also not qualify?

         23             COMMISSIONER NABORS:  Yes.  Yes, we talked about

         24        that.  There are approximately $400 million which has to

         25        be made up either by the Legislature over a five-year

                     DIVISION OF ADMINISTRATIVE HEARINGS (850) 488-9675


          1        period or by another proposal, which is a revenue-raising

          2        proposal which we talked about earlier today or yesterday.

          3             COMMISSIONER MILLS:  There is nothing that requires

          4        the Legislature to make up any of that in this proposal?

          5             COMMISSIONER NABORS:  Absolutely not.  What this

          6        proposal does is exactly what we heard the citizens tell

          7        us, is we needed to have the Lottery be used for enhanced

          8        education, not supplemental.  All of us who have worked on

          9        this, this is a consensus project, of all of us who worked

         10        on this know of no other way to enhance the use of Lottery

         11        money other than by enumerating them in the Constitution.

         12             CHAIRMAN DOUGLASS:  Commissioner Scott?

         13             COMMISSIONER SCOTT:  I want to speak on the proposal.

         14             CHAIRMAN DOUGLASS:  All right.  Then I think

         15        Commissioner Evans-Jones has some questions.

         16             COMMISSIONER EVANS-JONES:  I have a question.

         17        Commissioner Nabors, we talked earlier this morning about

         18        the Bright Scholars Program.  And if I understand this,

         19        the people who now have the Bright scholarship will be

         20        able to continue it, which is great; I certainly want

         21        that.  But then what's going to happen after that?  Is

         22        there going to be as much money on the Bright Scholars

         23        program as it is currently because a lot of young people

         24        are being serviced by this now.

         25             COMMISSIONER NABORS:  The amendment to the amendment,


          1        which will be considered next, has an enumerated use, the

          2        use of the Lottery money for scholarship programs.

          3             COMMISSIONER EVANS-JONES:  All scholarship programs?

          4             COMMISSIONER NABORS:  Right.

          5             COMMISSIONER EVANS-JONES:  Which is Bright --

          6             COMMISSIONER NABORS:  Well, the Legislature -- I

          7        would argue we wouldn't want to put in the Constitution a

          8        specific program over a 20-year period.  In the scheduled

          9        provision we give assurances to those who have a warrant

         10        under an existing program that they're not going to lose

         11        those.  That's one of the compromises that we've made in

         12        order to try to enumerate an enhanced use.  All those

         13        things that the Legislature currently has blessed as

         14        enhancement to education.

         15             CHAIRMAN DOUGLASS:  Question?

         16             COMMISSIONER RILEY:  May I add to that answer also,

         17        Commissioner Evans-Jones, that this doesn't say -- it

         18        enumerates the areas that the money can go to.  It doesn't

         19        say how or in what percentage.  So the Legislature could

         20        decide that a good bit of it goes to what they may

         21        continue to call a Bright Futures Scholarship or they may

         22        change the percentages.  It could be, however, the

         23        Legislature decides.  We have left them some to do.

         24             CHAIRMAN DOUGLASS:  Question?  All right.  Now when

         25        we get to debate, Commissioner Scott is first.

                     DIVISION OF ADMINISTRATIVE HEARINGS (850) 488-9675


          1             COMMISSIONER BARKDULL:  Commissioner Riley, assume

          2        I've got the right amendment, this has got the number five

          3        in it which says that the money proceeds solely for number

          4        five to school advisory councils established pursuant to

          5        Section 229.56, Florida Statutes; is that correct?

          6             COMMISSIONER RILEY:  Correct.

          7             COMMISSIONER BARKDULL:  I've got the same problem

          8        with this as I had with the one the other day.  You're

          9        putting the statute into the Constitution and there is no

         10        where in the Constitution that school advisory councils

         11        are established, they're only established by law.

         12             COMMISSIONER RILEY:  I understand that and that's why

         13        we added "or its successors and function" to clarify that.

         14             CHAIRMAN DOUGLASS:  His question is why didn't you

         15        put it in the schedule.

         16             COMMISSIONER BARKDULL:  This is going in the body of

         17        the Constitution and says this Constitution encompasses a

         18        statute.  What happens when that statute gets repealed or

         19        amended or anything else?  I don't think it's good

         20        constitutional draftsmanship to have it referenced to a

         21        statute and then have it included in the Constitution and

         22        put it in the schedule.

         23             COMMISSIONER RILEY:  Perhaps would it be better off

         24        then to eliminate the statute number?  But I think adding

         25        the term or the phrase "or their successors and function"


          1        would answer the question that you had last time, which is

          2        student advisory council is not in the Constitution, so

          3        how can we reference it?

          4             COMMISSIONER BARKDULL:  That's still my problem

          5        today.  There's no establishment of school advisory

          6        councils in the Constitution.

          7             COMMISSIONER RILEY:  Which is why we added the next

          8        phrase in terms of what the school advisory councils,

          9        which have been funded by these dollars, what they have

         10        done in the past.  If they go away, and there is the

         11        replacement in function of what they have done, then they

         12        could also be funded by this.

         13             COMMISSIONER BARKDULL:  Well, my point is that I

         14        don't think we should lock into the Constitution a

         15        statutory created item.

         16             CHAIRMAN DOUGLASS:  All right.  Any more questions?

         17        I had a question.  When you-all were redoing this, did you

         18        consider the language that you could continue to fund any

         19        programs funded as of this date and henceforth they would

         20        be used to enhance educational programs and then to list

         21        these things here?  In other words, the argument you were

         22        making before is that the people were misled when they

         23        thought it was all going to enhance education.  Now we are

         24        in the situation where we can correct that, and did you

         25        consider correcting it effective when you do this


          1        amendment which is -- would have the effect of enhancing

          2        the existing programs and that would take care of your

          3        Bright -- that's what I thought you-all were going to do.

          4        Commissioner Sundberg?

          5             COMMISSIONER SUNDBERG:  I'm not sure, Mr. Chairman,

          6        because I'm one of these three.  I think insofar as the

          7        scholarship program at Bright Futures, we did do that.

          8        With respect to all others, and I assume sources of

          9        funding or the recipients of funding that Commissioner

         10        Mills referred to, yes, I considered that possibility and

         11        rejected it.

         12             CHAIRMAN DOUGLASS:  That answers my question.  You

         13        considered it and didn't do it.  Okay, Commissioner Scott.

         14             COMMISSIONER SCOTT:  Mr. Chairman, Commissioners, if

         15        you look down this list, let's take the first item to

         16        finance or refinance for construction or improvement or

         17        renovation of schools.  We don't know that it would be

         18        successful, but the President of the United States

         19        proposed to build 5,000 new schools with federal dollars.

         20        Now, let's assume that that item, we're not going to use

         21        this Lottery money for if that's successful, or we may not

         22        use it for, you go to the next one, provision of

         23        pre-kindergarten programs.

         24             I don't know the numbers, but I think that we have

         25        made major strides in spending on pre-kindergarten


          1        programs and I'm trying to remember if they were mentioned

          2        on a federal level also.

          3             Then you go to early childhood care and education

          4        established by general law which are not provided on the

          5        effective date of this amendment.  Well, let's assume

          6        we've now come up with every possible good idea at the

          7        time this goes into effect so we're not going to spend the

          8        money for that.  The school advisory councils or their

          9        successors, what if there are no successors?  What if the

         10        people determine, all of the people that support

         11        education, that this is not the way to do it.  So now we

         12        have no successors for that.

         13             There's some provision, I understand, in another

         14        amendment for Bright Scholarships.  But to me, all of

         15        this, other than item one which talks about financing and

         16        refinancing of education, you'll be taking money from

         17        education and putting it into something in the

         18        Constitution that we don't know what it will be and how

         19        much of it we will need.  We don't know where it will come

         20        from if we're not able to replace it, whether it's going

         21        to come from law enforcement or health and social service

         22        programs or environmental programs or whatever, which gets

         23        back to the basic question here.  It's a good idea; we're

         24        not sure who made the promise but everybody talks about a

         25        promise that was made and broken, and I'm still not clear


          1        who made it.  But in any event, let's assume that the

          2        people want some further proof about education, as

          3        Commissioner Jennings said last time, what it really is.

          4        They thought the Lottery was going to solve all the

          5        problems.  And it realized that it's nowhere near enough

          6        money -- I don't want to say it's a drop in the bucket --

          7        but it's not a lot, percentage-wise, of educational

          8        funding.

          9             So as well intended as this is, as nice as it can be

         10        to say, Yeah, we did something about the Lottery, and put

         11        that on the ballot, whatever you are doing here,

         12        amendments, Bright Futures, to add that one item, we may

         13        come up with something better than that.  Nobody heard of

         14        Bright Futures until the last year or so.  And in two or

         15        three years, we may have something that's better than

         16        that.

         17             So that's another reason why you shouldn't -- and,

         18        Commissioner Nabors, with all due respect, in answer while

         19        ago to something you said, Well, we don't want specific

         20        programs in the Constitution.  You made that statement

         21        awhile ago, talking about programs that aren't.  And this

         22        is exactly the problem that I have with this whole thing.

         23        It's a very specific statement of what you're going to do

         24        with money that's, you know, that's for education.  And I

         25        think that that should not be in the Constitution under


          1        any circumstances.

          2             So I would urge that we did not vote for this

          3        proposal even when it puts Bright Futures in it.

          4             CHAIRMAN DOUGLASS:  All right.  Now, we're getting

          5        the same people here.  Anybody other than the people that

          6        have spoken want to speak?

          7             COMMISSIONER NABORS:  Mr. Chairman, I think I

          8        answered.  I'd like to speak on the merits, I think, in

          9        answering questions to Commissioner Mills.  I'd like to

         10        refresh the debate that we had last time.

         11             CHAIRMAN DOUGLASS:  I will recognize you.  You are

         12        recognized, Commissioner Nabors.

         13             COMMISSIONER NABORS:  Let's go back to -- I know

         14        we've been here a couple days and everybody is getting

         15        tired, and I want you to listen up.  This is the debate we

         16        had a week ago, two weeks ago yesterday.  And let's go

         17        back to basics.  If you believe that the Lottery money

         18        needs to go for enhancement of education, which is what

         19        the citizens all over the state believe, what we've been

         20        told, then you've got to -- there is no way that you can

         21        ensure that without enumerating in the Constitution what

         22        those enhancements are.  Otherwise, it gets involved in

         23        the morass of the general education financing.

         24             And as we talked about at the last debate, the

         25        temptation on the Legislature is too great in order to


          1        balance the budget by using Lottery funds for general

          2        education which would otherwise come from other dollars,

          3        no question about that.  We can't just sit here and say

          4        Well, it would be nice, let's just make sure, use the

          5        general term, general education because that's the dilemma

          6        we're in now.

          7             So what we talked about is, and one of the

          8        difficulties with this process is, we don't have a public

          9        hearing process where everybody can hear the testimony.

         10        This is very important.  But at the Education Committee,

         11        those who are on the Education Committee, we had

         12        compelling testimony, very compelling testimony, of what

         13        was meant by the term "early childhood care and

         14        education".  When Charlie Reed testified, we had David

         15        Loren (phonetic) who's a publisher of the Miami Herald, we

         16        had Dr. Blackman talk about the things we're learning

         17        about, the development of children in early years, all of

         18        those were under the umbrella of readiness to succeed in

         19        school.  As part of the committee of the Governor's, the

         20        bipartisan committee on education, is a subcommittee on

         21        the readiness to succeed in school, how that is so vitally

         22        important for children, whether it's children with

         23        disabilities, whether it's education to parents, a whole

         24        variety of programs has a real, real meaning in the term

         25        "early childhood care and education".


          1             So what this proposal basically says is, we've looked

          2        at all the things that the Legislature traditionally has

          3        used to enhance education, whether it's Lottery, whether

          4        it's scholarships, whether existing pre-K program is not

          5        fully funded, or whether it's the money that goes to the

          6        school advisory councils.  The other things the

          7        Legislature does is not enhancement of education and what

          8        this would do would enumerate these early childhood care

          9        and education programs as a recipient of those funds,

         10        phase down over six years.

         11             And I will tell you, unless you dedicate it to a

         12        specific program like that that's not part of the general

         13        education process, you've done nothing more but deceive

         14        the people again in terms of using some just general

         15        language in terms of general education.

         16             Charlie Reed whose job was with the University System

         17        has told us if he had one dollar to spend on education

         18        where he would spend it would be on early childhood

         19        education to get children prepared to succeed in school.

         20        The problem with that program is there is no galvanized

         21        constituency for those programs.  They never go unfunded.

         22        When the deal is cut, they're never in the room and

         23        there's never any ability for those programs to be funded.

         24        It's nothing we could do more vitally important with our

         25        Lottery money than to place the money, to dedicate it to


          1        using the early childhood education program.  And that in

          2        itself will achieve our objective and it won't be

          3        swallowed up in that black hole of general education.

          4             Frankly, most of the educational community is very

          5        supportive of this dedication of money.  I've talked to

          6        teachers, to teachers unions, and other people that said,

          7        This is the appropriate thing to do to make sure the

          8        Lottery money is dedicated to enhancing the education.

          9        Anything we do is going to be the same bait and switch in

         10        terms of general appropriation of education.  And this

         11        will either stand alone and be done over a six year

         12        period, or if I can persuade you ultimately of the wisdom

         13        of the tax initiative, the fairness of the tax initiative

         14        program, we will have in the same base year, the capacity

         15        under revenue and neutrality to fund the reduction in the

         16        sales tax as well as these types of programs.

         17             So I would suggest to you this is something we need

         18        to continue into the public hearing process so you can

         19        hear firsthand this testimony from these experts in early

         20        childhood brain development.  You can hear people like in

         21        the University System that say this is the best way to

         22        spend a dollar and not try to kill this today.  It passed

         23        with a large majority last Thursday.  Why we brought it

         24        back was to give us some comfort that this would not be a

         25        catastrophic cut down in funds; it would be phased over a


          1        reasonable period of time and that's exactly what this

          2        proposal does.

          3             I urge your support of it to keep it in the public

          4        hearing process.  You can hear the testimony we heard.

          5        The only time we can hear testimony in this process,

          6        outside a public hearing, is at committee.  And I sent you

          7        all a tape so you could have the benefit of that if you

          8        took the time to hear it.  It's compelling testimony.

          9             (Commissioner Jennings assumes the Chair.)

         10             COMMISSIONER JENNINGS:  Commissioner Mills, for what

         11        purpose?

         12             COMMISSIONER MILLS:  Would Commissioner Nabors yield

         13        for a question?

         14             COMMISSIONER JENNINGS:  It's that time of the

         15        afternoon.  It says "Jennings," I'm about to call you

         16        Commissioner Jennings.

         17             COMMISSIONER MILLS:  Don't dare do that.

         18             (Laughter.)

         19             COMMISSIONER MILLS:  Commissioner Nabors, I know

         20        you're intentions are completely sincere and I agree with

         21        your ultimate outcome.  The question is, are you telling

         22        me this provision allows to the year 2004 before the

         23        Legislature would have to replace the funding to basic

         24        appropriations?

         25             COMMISSIONER NABORS:  Before it would be completely


          1        gone.  After the year 2000, after fiscal year budget

          2        2000-2001, the next year a third of the money would be

          3        restricted by the provisions in the Lottery.  Next two

          4        years two-thirds and then the following year, all of it.

          5        So that would still be the Lottery will continue to be

          6        funded.  Pre-K would continue to be funded, the bonds.

          7        But the 400 million or so that's now being sucked up in

          8        the general education, that will be phased out over five

          9        years, yes.

         10             COMMISSIONER MILLS:  Will be phased out over five

         11        years.  Did you consider as an option one way to assure

         12        that items would be supplemental would be to identify that

         13        which it couldn't be spent for, that is like to say you

         14        could not spend funds for the basic educational funding

         15        formula?

         16             COMMISSIONER NABORS:  We talked about that but we

         17        thought it was more helpful to try to enumerate what it

         18        could be spent for because that would give more comfort to

         19        the people.  We've had enough hysteria about what is meant

         20        by this at all.  But I guess -- the problem doing that is

         21        very difficult to describe in a general way, you know,

         22        exactly what it is by the basic, you know, the basic --

         23             COMMISSIONER MILLS:  Well, if --

         24             COMMISSIONER NABORS:  Let me finish.  I would argue,

         25        you get to the same place.  If your concern is there is


          1        going to be a cliff drop at some point in time, that's

          2        going to occur whether you define it this way or the

          3        reverse.

          4             COMMISSIONER MILLS:  Well, you have identified a

          5        program that is statutory in nature, so it would be easy

          6        enough to identify the FEFP which is statutory in nature.

          7        The problem is, as much faith as I have in the legislative

          8        process, that at some point it's impossible not to say

          9        that this doesn't leave a hole in the FEFP.  I might even

         10        vote for this today and look for other options because I

         11        really believe that we are -- we've gotten ourselves in a

         12        constitutional bind by spending money for basic

         13        educational services over a ten-year period.  And, yes,

         14        we're trying to put ourselves on withdraw.

         15             And when we put ourselves on withdraw, though, we are

         16        constitutionally prohibiting the money from being spent

         17        for the most important educational services, which is

         18        classrooms, books, the fundamental part of education.  So

         19        I do not -- I agree that this is where we should end up,

         20        but I'm nervous about the impact.

         21             COMMISSIONER NABORS:  Commissioner Mills, may I ask

         22        you a question?

         23             COMMISSIONER MILLS:  Yes.

         24             COMMISSIONER NABORS:  Would you believe that at our

         25        last debate, you were the one that used the terminology


          1        that what's happened to date has been a fraud in terms of

          2        the way the money has been used for general education off

          3        the Lottery?

          4             (Off-the-record comment.)

          5             COMMISSIONER NABORS:  Can you hear me?  You were the

          6        one that used the term "fraud".  Would you believe --

          7             COMMISSIONER MILLS:  I would agree with myself

          8        entirely.

          9             COMMISSIONER NABORS:  Would you believe any time you

         10        restrict the use of Lottery money, either the way I did it

         11        or the way you did it, it's going to create a hole to the

         12        extent that fraud has occurred in the past.  So the

         13        question is, how do we get where we ought to be and what

         14        this says is we can't get there immediately.  We either do

         15        it over a five-year period, or there are other proposals

         16        that if we can get enough support on, that we can sandwich

         17        together and submit to the people, we'll have a funding

         18        source to give to it immediately.

         19             COMMISSIONER MILLS:  I would believe there are a

         20        number of ways to do this but there are two problems.

         21        And, again, I may vote for this so I can work with this in

         22        Style and Drafting with you and others; it enumerates only

         23        five purposes that we consider constitutionally

         24        supplemental.  And I think that that is an interesting --

         25        I mean, I think Commissioner Scott's point was well taken.


          1             We've mentioned two things in here that are statutes,

          2        that have been passed in the past three years.  I mean, 15

          3        years from now there may be ideas, and I hope there are,

          4        that we haven't conceived of that would be supplemental.

          5        And the second issue, to which there is no good answer,

          6        and that is that because of the expenditure of these funds

          7        for basic purposes and to try to return to what many of us

          8        believe was the original purpose, creates a $200 million

          9        hole in basic purposes.  I don't know that there is a good

         10        answer to that.

         11             What I'm suggesting is I'd like to continue to work

         12        with you, but there are two problems.  One is the hole it

         13        creates.  And one is the fact that 20 years from now we

         14        may have somehow forgotten or not identified what every

         15        good idea and every supplemental educational purpose would

         16        be in these six items.

         17             COMMISSIONER NABORS:  Commissioner Mills --

         18             CHAIRMAN DOUGLASS:  All right.  Just a moment.  We

         19        haven't read the amendment to the amendment, I've been

         20        told by the Secretary.  So I want to read the amendment to

         21        the amendment so we can start voting.  Read the amendment

         22        to the amendment.

         23             READING CLERK:  Amendment to the amendment by

         24        Commissioners Riley, Sundberg, and Nabors, on Page 1,

         25        between Lines 10 and 11 after Paragraph 5, insert; to fund


          1        scholarships established by general law for attendance at

          2        Florida public or private post-secondary education

          3        institutions.

          4             CHAIRMAN DOUGLASS:  All right.  Now that's the

          5        amendment to the amendment which we're on.  And at this

          6        time, you're all ready to vote on that, are you?  All

          7        those in favor of this amendment to the amendment, this

          8        doesn't pass anything except add that to the amendment

          9        they are proposing.  All in favor say aye.  Opposed.

         10             (Verbal vote taken.)

         11             CHAIRMAN DOUGLASS:  Now, we're on the amendment as

         12        amended, which is the one on your desk plus the general

         13        law attendance at a Florida public or private

         14        post-secondary school.  Go ahead.  Commissioner Riley has

         15        the floor.  Commissioner Rundle, you're next.

         16             COMMISSIONER RILEY:  If I may ask Commissioner Mills

         17        a question.  I think we all want to go to the same place

         18        with this.  Do you think that a proposal that said

         19        "Lottery dollars cannot be used for" and draw the fence

         20        around the general educational dollars, if there is an

         21        acceptable definition that's succinct that we could put in

         22        there, and if the proposal then had a phase-in time, that

         23        that would take effect within that period of time, would

         24        that get us where we all want to go?

         25             COMMISSIONER MILLS:  That would be as close as you


          1        can get.  I mean, if your purpose is to say that you want

          2        Lottery funds to be spent on supplemental purposes and you

          3        realize the reality of the situation is they haven't been,

          4        if you want them all ultimately to be spent on

          5        supplemental purposes but you don't feel like you know all

          6        of them today, then you would define that which you

          7        couldn't spend it on and then you would set a period of

          8        time out in the future that you would give yourself or the

          9        Legislature time to phase into that.

         10             COMMISSIONER RILEY:  Proposal 89, which was my

         11        original proposal, basically said that Lottery dollars

         12        must be used to enhance education and everybody agreed

         13        that that basically said nothing and really didn't do

         14        anything.  And maybe we need to go to the basics because,

         15        again, I think this subject is extremely important,

         16        however we need to get there.

         17             CHAIRMAN DOUGLASS:  Commissioner Mills?

         18             COMMISSIONER MILLS:  Mr. Chairman, Commissioner

         19        Nabors and Riley, if there was an amendment which said,

         20        inartfully, drawn that one of the purposes for which

         21        Lottery funds could be expended would be to fund basic

         22        programs funded through Lottery programs in fiscal year

         23        '98-'99, that is to define the FEFP, through fiscal year,

         24        say, 2004.  And thereafter no funds should be expended and

         25        appropriated for the FEFP.


          1             If you added another item it would allow you, I

          2        guess, essentially to do what Commissioner Nabors says his

          3        does which is allow you a phase-out from basic funding.

          4        But if you put this provision in and if it was well enough

          5        drawn, you'd say -- it just identifies what you couldn't

          6        spend it for and you could spend it for other purposes.

          7             In other words, if the goal is to say you don't want

          8        the Lottery to be expended on FEFP but -- and if you

          9        defined adequately what basic education funding is, then

         10        you allow the Legislature to define other things that are

         11        supplemental.  I don't think we can draft that on the

         12        floor, but I understand, I think, we're all heading in the

         13        same direction and I'm perfectly willing to say I'll work

         14        with those that are concerned about this at a later time.

         15             But I truly think that there are two problems.  I

         16        think that we've gotten most of the way for one problem

         17        which is phase-in, but I don't feel that I'm smart enough

         18        to say to you on this date in 1998 I know what we should

         19        be spending supplemental Lottery funds on in 15 years.

         20             CHAIRMAN DOUGLASS:  All right.  Do you want to

         21        respond, Commissioner Sundberg?  You're recognized.

         22             COMMISSIONER SUNDBERG:  Respectfully, Commissioner

         23        Mills and Mr. Chairman, I suggest that this really is out

         24        of order, not the phase-in.  But Commissioner Crenshaw

         25        offered us the opportunity early on in this debate to


          1        adopt a proposal that simply said that Lottery funds would

          2        be used to enhance education, that was defeated.  So as a

          3        point of order, I would suggest that it's out of order to

          4        circle back to that.

          5             CHAIRMAN DOUGLASS:  We're on reconsideration, it's

          6        not out of order if somebody offered it.

          7             COMMISSIONER SUNDBERG:  We're not on reconsideration

          8        of Commissioner Crenshaw's.

          9             CHAIRMAN DOUGLASS:  Well, I'm going to rule that it's

         10        wide open.  The proposal is on the floor, it's being

         11        reconsidered, it can be amended, it can be debated and

         12        everything else.

         13             COMMISSIONER SUNDBERG:  Somehow I sensed that would

         14        be your ruling.  It seems to me that we have just got a

         15        light on this.  And I understand and I think we ought to

         16        be amenable to perhaps some phase-in language.  We've done

         17        it with respect to the scholarship.  But sooner or later

         18        we have got to pay the fiddler, and unless we want to just

         19        carry that burden as a charge against the Lottery proceeds

         20        forever and a day, and I don't think you want to do that.

         21             In terms of addressing this by circumscribing what,

         22        essentially identifying what you can't use it for, the

         23        mind of man also has trouble in trying to identify.  It

         24        never occurred to me that the Legislature would

         25        appropriate these funds for the state motor pool.  So it


          1        seems to me we have to, and they have, and it seems to me

          2        we have to talk about what they can do.

          3             All of us are concerned again that when you're trying

          4        to in the future prescribe what will happen, that you

          5        don't -- that you can't probably consider all the

          6        ramifications.  I would suggest to you though that

          7        scholarships are something that will be enduring forever

          8        and a day, as a subject matter.  That the pre-school

          9        program, and if you watch the tapes you would be convinced

         10        that that's going to be with us probably for the 20 years

         11        before we address this again.  And I suggest to you that

         12        by adding back in and recognizing, as Commissioner

         13        Barkdull has pointed out to us, that it's not good

         14        practice to put statutory references in the Constitution;

         15        however, I couldn't think of a better way to do it

         16        right -- within the time constraints we had.  And I think

         17        we have, to an extent, cured it by saying, to these school

         18        councils or their successors and purpose.

         19             And I suggest to you that the very reason for

         20        flexibility will be an incentive for the Legislature to

         21        keep them in place or something that looks like them in

         22        place because that does give the Legislature, indirectly,

         23        the ability, the flexibility to deal with issues we

         24        haven't even thought of yet.  I think the Legislature, and

         25        I agree with that policy decision, that this was a good


          1        way to address problems in the school.  This was a good

          2        way to address trying to make our educational system

          3        better because it was closer to the people and it was

          4        closer to the students.

          5             The Legislature has the ability to appropriate

          6        whatever amount they choose through these school councils

          7        to enhance education in ways we have not thought of yet.

          8        So to that extent I think we do have a safety valve.  I

          9        think it is time that we need to move this along.  I think

         10        the people expect it of us.  And I suggest we move it

         11        along.

         12             CHAIRMAN DOUGLASS:  Commissioner Riley?

         13             COMMISSIONER RILEY:  Mr. Chairman, because I would

         14        also like to move it along and don't want to kill it and

         15        yet would like to make it better, I move that we TP this

         16        for today.

         17             CHAIRMAN DOUGLASS:  Commissioner Rundle?

         18             COMMISSIONER RUNDLE:  I would support that.

         19             COMMISSIONER RILEY:  I move to TP it for it.

         20             COMMISSIONER RUNDLE:  I think that's probably a good

         21        idea, Mr. Chairman.  I think a lot of us support it but it

         22        needs work.

         23             CHAIRMAN DOUGLASS:  All right.  Is this a motion

         24        to --

         25             COMMISSIONER RILEY:  It is --


          1             CHAIRMAN DOUGLASS:  For a time certain?

          2             COMMISSIONER RILEY:  For a time certain.

          3             (Off-the-record comment.)

          4             CHAIRMAN DOUGLASS:  We'll let you ride on that.  I

          5        think the motion we're looking for is a motion to continue

          6        to a time certain -- to postpone for a time certain.  I

          7        think it takes a majority vote, otherwise it takes

          8        two-thirds.  But we will, without objection, temporarily

          9        pass this to be set on the calendar by the Rules Committee

         10        at the earliest possible moment that it's available to be

         11        set.  Without objection, it is done and we will move to

         12        the next item.  Is that all right, Commissioner Barkdull?

         13             COMMISSIONER BARKDULL:  Yes, sir, the earliest

         14        possible moment would be tomorrow morning.

         15             CHAIRMAN DOUGLASS:  I said when it's practical to be

         16        done.  I'm going to leave that to you in the Rules

         17        Committee.  Now, we do move now to Proposal No. 167 which

         18        I will ask the clerk to read first.

         19             READING CLERK:  Proposal 167, a proposal to revise

         20        Article VIII, Section 5, Florida Constitution; providing

         21        for the electors of a county to regulate the possession,

         22        purchase, and sale of firearms prohibiting that a county

         23        may not prohibit the possession, purchase, or sale of

         24        firearms and ammunition.

         25             CHAIRMAN DOUGLASS:  All right.  If you-all please,


          1        let's have some order and pay a little bit of attention

          2        here.  This particular proposal now we have had a

          3        tremendous amount of letters and form letters and all

          4        kinds of things generated.  I had a call from one

          5        commissioner who said, Please tell them not to give my fax

          6        number out it, was jammed up for two full days.  And

          7        E-mail people, Commissioner Barnett hasn't even been able

          8        to get in the chat room, but whatever the case is, I would

          9        like to get people to take their seats for this

         10        presentation if you could, please.  Now, Commissioner

         11        Rundle, that we have restored order, please proceed.

         12             COMMISSIONER RUNDLE:  Thank you very much,

         13        Mr. Chairman.  And I do want to say that I apologize to

         14        all the commissioners that I set that paper tiger on them

         15        and wished I could have spared them all the faxes but

         16        unfortunately that's not the nature of the beast.  What

         17        I'd like to do, Mr. Chairman, is deal with a substitute

         18        amendment that I have filed.

         19             CHAIRMAN DOUGLASS:  All right.  Or is it a substitute

         20        amendment or is it an amendment or a substitute proposal?

         21             COMMISSIONER RUNDLE:  It is an amendment to my

         22        amendment.

         23             CHAIRMAN DOUGLASS:  It's an amendment to the

         24        proposal.

         25             COMMISSIONER RUNDLE:  Amendment to the proposal.


          1             CHAIRMAN DOUGLASS:  Now, you read the proposal, now

          2        we need to read the amendment.

          3             READING CLERK:  By Commissioner Rundle, on Page 1,

          4        Lines 26 through 29, delete those lines and insert, Each

          5        county shall have the authority to require a background

          6        check and waiting period of not less than three days

          7        excluding weekends and legal holidays in connection with

          8        the sale of any firearm occurring within such county.

          9             For the purposes of the subsection, the term sale

         10        means the transfer of money or other valuable

         11        consideration for any firearm.

         12             CHAIRMAN DOUGLASS:  All right.  Now that is the

         13        amendment.

         14             COMMISSIONER RUNDLE:  Correct.  Now we have an

         15        amendment to the amendment.  Would you read that?

         16             READING CLERK:  Amendment to the amendment by

         17        Commissioners Scott and Smith, on Page 1, Line 20, insert,

         18        Holders of a concealed weapons permit as prescribed in

         19        Florida law shall not be subject to the provisions of this

         20        subsection.

         21             CHAIRMAN DOUGLASS:  All right.  The first thing we

         22        need to take up is the amendment to the amendment.

         23        Commissioners Smith and Scott offered that, who wants to

         24        present it, Commissioner Smith?

         25             COMMISSIONER SMITH:  Thank you, Mr. Chairman.


          1        Commissioner Scott is here.  So I'm going to --

          2             CHAIRMAN DOUGLASS:  You are going to defer to

          3        Commissioner Scott?

          4             COMMISSIONER SMITH:  Yes.

          5             CHAIRMAN DOUGLASS:  You are recognized, Commissioner

          6        Scott, to the amendment to the amendment.

          7             COMMISSIONER SCOTT:  Mr. Chairman, Commissioners,

          8        what this does is take the language from article, I think

          9        it is Article I, Section 8, which is the three-day waiting

         10        period and background check provision and just applies it

         11        to this provision which says that people who have already

         12        had the background checks who have concealed weapons

         13        licensed as prescribed by law, which I believe would

         14        include law enforcement officers and state attorneys and

         15        whoever, judges, they would not have to wait and that's

         16        about that simple and I understand the sponsor doesn't

         17        have a problem with that.

         18             CHAIRMAN DOUGLASS:  The amendment to the amendment is

         19        that we do what he said and do you rise for a question?

         20        Commissioner Sundberg.

         21             COMMISSIONER SUNDBERG:  Commissioner Scott, you are

         22        sure this does not exculpate somebody who is selling a

         23        weapon from the provisions of these laws -- of this

         24        provision?

         25             COMMISSIONER SCOTT:  It's the exact language that --


          1             COMMISSIONER SUNDBERG:  I mean, do you remember

          2        seeing those guys in the automobile in the video, so they

          3        go get a concealed weapons permit and they start selling

          4        them out of the back seat of their car, I don't know, I'm

          5        not unsympathetic to this, but I think we need to be

          6        careful we have not opened it up that somebody can get a

          7        concealed weapons permit and sell all the weapons they

          8        want to.

          9             COMMISSIONER SCOTT:  This language is identical to

         10        the language that says, The holder of a concealed weapon

         11        permit as prescribed in Florida law shall not be subject

         12        to the provisions of this paragraph.

         13             Well, it says this subsection because that's what

         14        that bill drafting says.  And I don't know the answer to

         15        that other than the purpose of it is that someone who has

         16        a license, it is my understanding, that's the way it is

         17        currently, I don't know about selling, but currently if

         18        you have a concealed weapons license that you would not

         19        have -- you could have the instantaneous background check

         20        and whatever that's now --

         21             COMMISSIONER SUNDBERG:  How about if you simply

         22        added, Shall not be subject to the provisions of this

         23        subsection when purchasing a weapon?

         24             (Off-the-record comment.)

         25             COMMISSIONER SCOTT:  My intent was to --


          1             COMMISSIONER SUNDBERG:  When purchasing a weapon.

          2             COMMISSIONER SCOTT:  When purchasing -- would not be

          3        subject to it.  It would by implication, I suppose, not

          4        subject the seller other than they would have to, if you

          5        had the license, they would not have to do the waiting

          6        period.

          7             CHAIRMAN DOUGLASS:  Commissioner Smith, did you want

          8        to respond to that?

          9             COMMISSIONER SMITH:  I just want to make sure that

         10        everyone understands that when a concealed firearms permit

         11        is obtained there is a background check, and a

         12        verification of proficiency in handling of a weapon.  So

         13        that the requirements for the waiting period and the

         14        requirements for the check have already been met.  And so

         15        it is our intent only to allow the concealed firearm

         16        permit holder to not have to go through a process that

         17        they have already gone through in obtaining the concealed

         18        firearm.  And I think the suggested language clarifies

         19        that and I would ask to you support it.

         20             CHAIRMAN DOUGLASS:  All right.  Commissioner Rundle?

         21             COMMISSIONER RUNDLE:  Question, Commissioner Smith,

         22        are you suggesting the language that Commissioner Sundberg

         23        just suggested?

         24             COMMISSIONER SMITH:  Well, I have no objection to it

         25        being clarified that this deals with the concealed firearm


          1        permit holder purchasing a firearm if there is any

          2        question that it may relate to a concealed firearm permit

          3        holder taking his old Cadillac and selling weapons out of

          4        the back of his Cadillac near the schoolground.  No, we

          5        don't want to do that.

          6             CHAIRMAN DOUGLASS:  Hope he has got a Lexus.

          7             COMMISSIONER RUNDLE:  So if Commissioner Scott were

          8        to agree with my amendment, then I would accept

          9        Commissioner Sundberg's language for his amendment a

         10        friendly amendment.

         11             CHAIRMAN DOUGLASS:  All right.  At the moment we have

         12        pending Senator -- Commissioner Scott's amendment to the

         13        amendment, your amendment.  And I don't understand that

         14        anybody has offered an amendment to that amendment.

         15             COMMISSIONER RUNDLE:  Well, Commissioner Sundberg,

         16        are you going to be offering --

         17             (Off-the-record comment.)

         18             CHAIRMAN DOUGLASS:  You'll have to have it in writing

         19        and on -- okay.  It would be a substitute amendment which

         20        would include the language of the Scott/Smith amendment

         21        and the additional language proposed by Commissioner

         22        Sundberg.  So it would be in the nature of a substitute

         23        amendment for the amendment.  For the Scott/Smith

         24        amendment.

         25             COMMISSIONER MORSANI:  Mr. Chairman?


          1             CHAIRMAN DOUGLASS:  Yes.  Commissioner Morsani?

          2             COMMISSIONER MORSANI:  Under Article I, Section 8,

          3        you have -- how is all that going to flow, Article I,

          4        Section 8, then over to Article VIII, Section 5, how does

          5        all that work?

          6             COMMISSIONER RUNDLE:  Well, of course we didn't get

          7        an opportunity to get into the details yet and I know the

          8        devils are in the details.  But the thought here was, was

          9        not to have a conflict.  I think what Commissioner Scott

         10        is trying to accomplish is to just restate what's in

         11        Paragraph B of Section 8 under Article VIII, Section 4.

         12        So that there is no confusion about the carrying concealed

         13        weapons permit being applicable both at this state level

         14        and at the county level.

         15             COMMISSIONER MORSANI:  This is going to come under

         16        the county ordinance rather than the state?

         17             COMMISSIONER RUNDLE:  Correct.  So really it is just

         18        adopting the same language that's in one section of the

         19        Constitution into the other.

         20             COMMISSIONER MORSANI:  Thank you.

         21             CHAIRMAN DOUGLASS:  All right.  We are waiting, I

         22        guess, on the drafting of the substitute amendment.  There

         23        is another amendment which has been brought forward which,

         24        I guess, it is an amendment to the Rundle Amendment.

         25        Would we take that up now?  We have got the substitute.


          1        All right.  Would you read the substitute amendment?

          2        Would everybody please pay attention, please?  Thank you.

          3        Read the amendment.

          4             READING CLERK:  By Commissioner Sundberg, a

          5        substitute amendment, on Page 1, Line 20, insert, Holders

          6        of a concealed weapons permit as prescribed in Florida law

          7        shall not be subject to the provisions of this subsection

          8        when purchasing a firearm.

          9             CHAIRMAN DOUGLASS:  All right.  Now, this is on the

         10        substitute amendment which is the Scott/Smith Amendment as

         11        substituted with the additional language by Commissioner

         12        Sundberg.  And you are saying you accept that as a

         13        friendly amendment and would like for us to vote on it to

         14        add it to your amendment; is that right?

         15             COMMISSIONER RUNDLE:  Correct, I accept that as

         16        friendly.

         17             CHAIRMAN DOUGLASS:  Okay.  With no further debate,

         18        all those in favor of the substitute amendment which is to

         19        the Rundle amendment, signify any by saying aye.  Opposed.

         20             (Verbal vote taken.)

         21             CHAIRMAN DOUGLASS:  All right.  We are now on the

         22        Rundle Amendment which is the amendment before us and we

         23        have on the table a Langley Amendment to the Rundle

         24        Amendment.  Commissioner Langley, we will read it and then

         25        you have the floor.  Would you read the amendment to the


          1        amendment by Commissioner Langley?

          2             READING CLERK:  Amendment to the amendment by

          3        Commissioner Langley, new subsection C, it shall be

          4        illegal to murder any natural person, female or male.  The

          5        Legislature shall enact laws providing punishment for the

          6        violation of this provision.

          7             CHAIRMAN DOUGLASS:  Commissioner Langley?

          8             COMMISSIONER LANGLEY:  Well, this is such a novel

          9        idea that I thought surely if law is going to stop the

         10        illegal use of handguns we ought to outlaw murder and that

         11        would certainly stop murder.  I mean it is a logical

         12        conclusion.  But, you know, history shows I think murder

         13        has been illegal since Cain slew Abel.  And making it

         14        illegal doesn't do a bit of good and the people that are

         15        being to regulate you think by this provision are not

         16        going to obey in law either.

         17             Law-abiding citizens don't use guns to murder people.

         18        And law-abiding citizens don't sell guns illegally.  And

         19        the people who sell them illegally are going to keep

         20        selling them illegally.  And what are you doing to the

         21        private collector?  What do I do as an estate lawyer when

         22        I have a gun collection to sell in the estate?  I can't

         23        have an auction.  I can't sell them because they have got

         24        to wait whatever the county -- by the way, this is no less

         25        than three.  It could be as much as ten years.  You know,


          1        the waiting period could be ten years or five years or in

          2        New York City I think it is 180 days but that certainly

          3        cured crime there in New York City.

          4             CHAIRMAN DOUGLASS:  The amendment doesn't reach that.

          5             COMMISSIONER LANGLEY:  Pardon?

          6             CHAIRMAN DOUGLASS:  You're arguing the merits of her

          7        amendment, not your amendment at the moment.

          8             COMMISSIONER LANGLEY:  Well, my amendment is that, of

          9        course, it's offered in jest, but it is just the whole

         10        thing should be in jest.  And, again, is this not a

         11        province of the Legislature?

         12             CHAIRMAN DOUGLASS:  If this is an amendment in jest,

         13        then I'll rule you out of order.

         14             COMMISSIONER LANGLEY:  Well sometimes this whole

         15        procedure ought to be out of order then.  Rather than

         16        stepping on your toes, I'll withdraw the amendment rather

         17        than stepping on your toes.

         18             CHAIRMAN DOUGLASS:  You are not stepping on my toes,

         19        you are stepping on the commission's toes and the rules,

         20        sir.  And you move to withdraw your amendment?

         21             COMMISSIONER LANGLEY:  Yes, sir.

         22             CHAIRMAN DOUGLASS:  All right.  Without objection, it

         23        is withdrawn.  Commissioner Rundle?

         24             COMMISSIONER RUNDLE:  Thank you, Mr. Chairman.

         25        Commissioners, let me just, if I could, explain the


          1        amendment that I have filed and I would like to tell you

          2        that I have given it considerable thought.  The first

          3        proposal that I had was, I suppose, far too broad and I

          4        thought that there were a lot of interesting issues that

          5        were raised by a lot of you Commissioners and a lot of

          6        citizens in Florida.  And I gave it a great deal of

          7        thought and worked with a number of experts on language

          8        and I felt that this amendment really would alleviate a

          9        lot of the concerns that were raised with the first

         10        language.

         11             And I did -- do not take this in jest.  I will tell

         12        you that I take this very, very seriously.  And I do

         13        believe that this is an opportunity for this commission to

         14        do something very important that will have an impact on

         15        the daily lives of Floridians.  So I do not take this in

         16        jest.

         17             This proposal, the amendment basically does three

         18        things.  The Constitution provides, and this is why it

         19        must be done by Constitution, provides that there is a

         20        three-day waiting period and background checks for retail

         21        sales of handguns.  The state law provides that, actually

         22        incorporates that language, and specifically exempts, and

         23        I quote, it says under Section 790.33, This section does

         24        not include gun collectors shows or exhibits or gun shows.

         25             Therefore, the only way to really address some of


          1        those folks that are not subject to the three-day waiting

          2        period and background checks is it has to be done

          3        constitutionally.  And essentially all this proposal does

          4        is it only says if you want to as a local community.  This

          5        really is to allow local communities, local governments,

          6        to take some control over protecting themselves.  It is

          7        really a public safety issue for them.

          8             It does not mean that if there is an area of the

          9        state that doesn't have particularly a gun problem, or

         10        doesn't feel like they need any greater waiting periods or

         11        they don't care about gun shows, that's okay.  They don't

         12        need to do that in their community.  But there are some

         13        communities, there are some governments, local

         14        governments, around this state that do feel they need to

         15        have that ability.

         16             So all this provision does, and you will notice that

         17        where it falls is under Article VIII, Section 4, the first

         18        section deals with the sale of alcohol.  So all we are

         19        saying is we add this section that says local government

         20        can do the same thing for firearms.  And in my view, it

         21        would address at least four things that a local community

         22        could do.  One, it could provide more stringent waiting

         23        periods, right now under state law it is three days.

         24             If a local community wanted to make it five days and

         25        the community voted upon it through democratic process,


          1        they should be able to do that.  The other thing it would

          2        allow them to do is background checks.  If they wanted to

          3        have a more comprehensive background check, they should

          4        have the ability to do that.

          5             It also, the third thing it would do, is it would

          6        include firearms.  If you look at the Constitution, it

          7        really only pertains to handguns at this point.  So as you

          8        know, those are pistols, revolvers, anything that can be

          9        held within one hand.  It does not address assault rifles

         10        and assault shotguns.  So this would give local government

         11        the ability, if they wanted to, to include a three day --

         12        I'm sorry, waiting periods and background checks on all

         13        firearms.  Or they might decide they only want to do

         14        handguns and not firearms, but that should be up to them.

         15        So it broadens the scope of what firearms they can

         16        regulate.

         17             The third -- fourth thing that it does is it closes

         18        what I call a very deadly loophole and it has to do a lot

         19        with gun shows, flea markets, swap shops and that is that

         20        if you are a law abiding citizen and you go to a gun

         21        store, there are certain things you have to do, you talked

         22        about those.  You have to submit to a background check,

         23        you have got to go back and get your weapon in three days,

         24        and that's the way -- and the gun store owner has to do

         25        those things and there is a paper trail and we know what


          1        guns you own.

          2             But criminals are not going to go to a store when

          3        they go to a gun show down the street where it is totally

          4        unregulated.  Now, I don't know if you know how these gun

          5        shows work, I didn't until I really got into this issue

          6        and really started looking at it and understanding the

          7        impact that it was having not only in our country but in

          8        our state and in particularly urban areas.

          9             These gun shows, for instance, are no questions

         10        asked, cash and carry, no background checks, no waiting

         11        periods, no paper trail, no tracing, no nothing.  That's

         12        why what we are seeing is an increase throughout America

         13        but particularly in Florida because they know that there

         14        is this loophole.  They are coming to Florida in droves.

         15             Almost every other weekend in the state of Florida

         16        there is a gun show.  And what's really disturbing to a

         17        lot of communities, maybe not to other communities, but to

         18        some communities is that they are held on public property.

         19        They are held in gymnasiums, school gymnasiums.  They are

         20        held in civic centers.  And I'll give you an example.  The

         21        Mayor of Tampa, I'm told, at one point he got so fed up

         22        with the gun shows and the militia and the kind of people

         23        that it attracted to their communities that she said, No,

         24        I'm not going to give a permit for gun shows here, not

         25        going to do it.  And the opposition filed a lawsuit and it


          1        said, You can't prevent us because the law says we can do

          2        that.  And they won.

          3             And the Tampa community that didn't want the gun show

          4        in their publicly-funded property was stuck.  They had no

          5        control or no say over what they felt was a very important

          6        issue for their community.

          7             I would call to your attention, I know in some ways

          8        this is kind of a cheap shot to use, they call it Hall of

          9        Famers, but I use these only because I think they are

         10        names you will recognize, Timothy McVeigh, the Oklahoma

         11        bomber.  It is well established what he did is he and his

         12        tribe would go and steal firearms, rifles, shotguns and go

         13        to gun shows and sell them because nobody would find them

         14        and that's how they financed themselves.

         15             Same thing with David Koresh, you know, from the Waco

         16        incident, the cult leader.  What he did was he bought a

         17        lot of his firearms and ammunition at gun shows.  I use

         18        those only because that shows you the kind of element that

         19        a lot of these communities, particularly urban areas, are

         20        struggling with.

         21             Let's talk a little bit about the gun crisis, the gun

         22        emergency as our Mayor says we have especially in Miami

         23        but not just Miami, in all urban areas throughout the

         24        state of Florida.  And I don't know about you, but I am

         25        getting really fed up with always seeing on the ten most


          1        violent list of all the cities in the United States, of

          2        all the cities in all this great nation, look at this six

          3        months ago reported that four of the ten most violent

          4        cities in the country are located in one state.  And guess

          5        which state that is, that's our state.

          6             Now are guns the only problem that contribute to

          7        violate crime, no, but they are a major contributing

          8        factor.

          9             In urban areas if you want to talk about debts

         10        deaths, in the state of Florida, Dade, Broward, Palm

         11        Beach, Duval, Orange, Pinellas, and Hillsborough County

         12        accounted for more than half of all the firearm-related

         13        deaths in the state of Florida.

         14             So of the 2,059 deaths, 1,113 of these were in seven

         15        counties.  And youth deaths, age 24 and under, 81 percent

         16        of them occurred in urban counties.  Age 19 and under, 56

         17        percent occurred in urban counties.  Four and under,

         18        75 percent occurred in urban areas.

         19             What we are asking in some of these urban areas is to

         20        please help us, allow us to help ourselves, to help

         21        protect ourselves.  We don't want to impose on other

         22        people in other areas of the state if what's working -- if

         23        the law is working for them now, then so be it.  That's

         24        good.  We are glad.  But there are some of us in urban

         25        areas that desperately need to have our hands untied.  We


          1        desperately need a safety valve and we can't get it

          2        without changing the Constitution.

          3             One last area, if I may, support.  What is the

          4        support for this?  I know that you-all were faxed to

          5        death, I know that.  And again, and I understand some of

          6        my friends here have some deep scars and wounds from

          7        previously proposing similar-type legislation and I really

          8        do, I appreciate that and I respect that and I must tell

          9        you I really worked through these issues, I worked through

         10        this language to make sure that it was the most

         11        conservative but would still have the best impact that we

         12        could achieve as a commission.

         13             But the support is there, you just have to look at

         14        the history for just a moment.  First of all, in 1990,

         15        when this was put in the Constitution, the people of the

         16        state of Florida had the opportunity to vote for a waiting

         17        period.  It was an incredible hands down, 2,840,912

         18        Floridians voted in favor of the waiting period.  That won

         19        by 84 percent.

         20             If you look at the voter trend poll that was just

         21        taken in October, it told you that 74 percent of

         22        Floridians, and I'm just going to refresh your memory of

         23        this, you may have gotten a copy of this, said that they

         24        support waiting periods and background checks and more

         25        stringent rules that will make sure that these deadly


          1        firearms do not get in the hands of criminals and the

          2        wrong people.  Law abiding citizens want that and even if

          3        it means that may be a little inconvenient for them,

          4        that's what they want.  They are prepared to do that.

          5             Last but not least, just to make sure we were going

          6        to do something really positive because I tell you with

          7        great sincerity, I want this ballot to be very successful.

          8        I do not want to put anything on it that I would think

          9        would drag it down.  So I wanted to test the language and

         10        make sure that it was right and make sure that we had a

         11        winner here.  And we did a poll, it was a grass roots

         12        effort, in Miami there is a group called the Miami

         13        Coalition for Drug Free and Safe Neighborhoods.  It is

         14        very grass roots, it has been there for a long time.  They

         15        put up money because they believed so deeply in this and

         16        so did the folks in Washington.  They hired, what I'm

         17        told, is a very respected pollster by the name of Peter

         18        Heart (phonetic).  I think I mailed, if not all of the

         19        results, most of the results out to you.

         20             And it was this language, this very exact language

         21        that we tested, so there is no doubt about it.  And they

         22        said hands down 75 percent and it was across the board.

         23        It didn't matter male, female, black, white, it wasn't

         24        bipartisan lines.  They did six geographical regions of

         25        the state of Florida.  And I guarantee you, many of you,


          1        in your hometowns are greatly supported by the citizens.

          2             So as we go into open -- I'm going to open for

          3        questions.  I do want to just assure you that this

          4        language is good language, the people do support it, they

          5        want to be protected, and we just want to have some leeway

          6        within our own communities at a local level and we are

          7        doing that, we did that with merit selection.  That's not

          8        nearly as popular as this, I'm sorry to say, but it isn't,

          9        and we did that.  We are looking at school districts, we

         10        are bringing things home.  This makes sense.  So with

         11        that, I open it up for questions.

         12             CHAIRMAN DOUGLASS:  Commissioner Morsani?

         13             COMMISSIONER MORSANI:  I would like to ask some

         14        questions for clarification.

         15             COMMISSIONER RUNDLE:  Please.

         16             COMMISSIONER MORSANI:  In your early dissertation you

         17        mentioned that the statutes prohibit them from like the

         18        gun -- the gun shows, the statutes, and I guess I ask the

         19        legislators who may be present, why are those statutes in

         20        place that prohibit, well, that's not the question, that's

         21        a poor choice of words.  Why do the statues exempt the

         22        very things that Commissioner Rundle is addressing?

         23             (Off-the-record comment.)

         24             COMMISSIONER MORSANI:  Mr. Thompson?  Why did the

         25        Legislature exempt the very things that, like the gun


          1        shows, why are those exempted in the statute?

          2             COMMISSIONER THOMPSON:  I'm sorry, I'm not really

          3        that familiar with the statute.  I'm not sure that's a

          4        state exemption either, that could be a federal exemption.

          5             COMMISSIONER RUNDLE:  If I may, I mean, he was asking

          6        why.  But as I understand it, there are two areas where

          7        they are exempt.  One is in the Constitution, it says

          8        "retail".  And the gun shows and gun collector shows and

          9        auctions and those things are not considered storefront

         10        retail shops.

         11             And in the state statute, without boring you, and I

         12        can give you a copy, they define what is a retail

         13        establishment, in fact, if you give me just a second if it

         14        is real important I can --

         15             COMMISSIONER MORSANI:  No, that's okay.  You have

         16        answered enough.  Now why won't the Legislature, if you

         17        have this problem, and I think we have the problem all

         18        over the state, why has the Legislature refused to address

         19        it to your satisfaction?

         20             COMMISSIONER RUNDLE:  Well, let me put it this way.

         21        Even if they were to not have reiterated it, because

         22        that's really what they are doing, they were restating the

         23        law in their preemption statute, you would still have to

         24        deal with the problem of retail in the Constitution.

         25             In other words, the Constitution exempted them, the


          1        Florida Legislature comes and reinstates that with greater

          2        description, but they couldn't change it to apply to gun

          3        shows unless you changed the Constitution because retail

          4        is in the Constitution, Florida Constitution.

          5             CHAIRMAN DOUGLASS:  Commissioner Morsani, did you ask

          6        another question?  Commissioner Thompson has a response.

          7             COMMISSIONER THOMPSON:  Let me just tell you what the

          8        present Constitution says, you might have already read

          9        that.  The present Constitution just has a three-day

         10        mandatory waiting period for handgun purchases and those

         11        are retail sales.  I don't think that prohibits the

         12        Florida Legislature from doing anything that it chooses to

         13        do in respect to private sales or whatever.  It is just

         14        that it hasn't done so, that's what you are saying.

         15             CHAIRMAN DOUGLASS:  Commissioner Thompson, his

         16        question he directed to you when you were -- I believe you

         17        were distracted -- was do you know why the Legislature

         18        hasn't done that.

         19             COMMISSIONER THOMPSON:  No, I'm sorry I don't know

         20        that.  I've been out of it 11 years.

         21             CHAIRMAN DOUGLASS:  I started to say that he hasn't

         22        been there in so long he couldn't tell.

         23             COMMISSIONER THOMPSON:  And they wouldn't even do

         24        what I wanted them to do then.

         25             COMMISSIONER MORSANI:  I guess we are all wrestling


          1        with this.  There is no question about it, I think we are

          2        all supportive of trying to figure out what to do.  My

          3        question, you know, I don't pay much attention to all

          4        those faxes and letters and we all have them -- we have

          5        hundreds and hundreds of letters and faxes on this issue

          6        and we know why that transpired, so I'm not intimidated by

          7        that at all.

          8             But I keep asking the question why can't we do it

          9        statutewise rather than put it in this Constitution, there

         10        is my real problem.  It has nothing to do with them.  I'm

         11        opposed to them.  I don't think there is any use, any

         12        reason for people to have handguns specifically and so on

         13        and so forth, but that's a personal opinion.  I think they

         14        should all be outlawed but I wouldn't get very far with

         15        that philosophy.

         16             But I have a great concern about getting this into --

         17        it goes back to the former discussion which I am opposed

         18        to also about the money being -- saying we can only use it

         19        for certain things and I have the same, going back to

         20        Mr. Brochin's, is it really the right thing for the

         21        Constitution and that's where I am, Commissioner Rundle.

         22             COMMISSIONER RUNDLE:  I would say that in addition to

         23        what I have already said with respect to the Constitution,

         24        that we will -- when you were talking about the faxes that

         25        you were receiving, that's really your answer.  As to why


          1        the -- it is very difficult for a lot of my elected

          2        friends and colleagues who I have a great deal of respect

          3        for to withstand that kind of opposition and time and time

          4        again people have come and asked from communities, for

          5        instance, our Mayor from Dade County tried at that last

          6        year and said, Please, would you just change the

          7        preemption statute so we can save ourselves down in Dade

          8        even if you don't want to do it for the rest of the state

          9        that's okay, just allow us and they won't and they haven't

         10        and I don't believe they will.

         11             CHAIRMAN DOUGLASS:  Commissioner Evans-Jones?

         12             COMMISSIONER EVANS-JONES:  Question for Commissioner

         13        Rundle.  You are assuming that the county commission will

         14        be the body who will determine what time frame this is and

         15        if the county wants to do it so an elected body will do

         16        that and then the sheriff's department will be the one to

         17        enforce I assume whatever the county says or who will do

         18        that?

         19             COMMISSIONER RUNDLE:  It could be -- the first answer

         20        to your question is yes.  It will obviously be done by

         21        democratic process and everyone would have input as to

         22        what wouldn't be included, what would, what would the time

         23        frame be.  I suppose they could say it would be the local

         24        sheriff, they may stay with FDLE which is now the

         25        background check.  But I think those are the kinds of


          1        things that should be done at a local community level.

          2             COMMISSIONER EVANS-JONES:  Thank you.

          3             CHAIRMAN DOUGLASS:  All right.  Further discussion

          4        now.  Commissioner Connor?

          5             COMMISSIONER CONNOR:  Mr. Chairman, I'd like to speak

          6        in opposition to the proposal.

          7             CHAIRMAN DOUGLASS:  Before you do that, we have got

          8        another amendment that's just been put on the table.  I

          9        hate to interrupt you, but would you read the amendment,

         10        please?  And say who it is by.

         11             READING CLERK:  Amendment --

         12             CHAIRMAN DOUGLASS:  It is an amendment to the

         13        amendment and it is by --

         14             READING CLERK:  Amendment to the amendment by

         15        Commissioners Alfonso and Evans-Jones on Page 1, Line 15,

         16        after the comma insert, Nor more than five days.

         17             CHAIRMAN DOUGLASS:  All right.  Commissioner Alfonso

         18        or Evans-Jones, do you want to be heard on your amendment

         19        to the amendment?  Commissioner Alfonso?

         20             COMMISSIONER ALFONSO:  With all due respect,

         21        Commissioner Rundle, we proposed this amendment just to

         22        really say does it really mean what you say.  I mean, is

         23        it three days or is it ten years?  That's all we are

         24        asking.  If it is three to five days -- or the other

         25        question I would have then if this amendment is not


          1        satisfactory is why wouldn't you just mirror the language

          2        in the Constitution then and is it mandatory three days?

          3        I don't understand.  It seems like this is an open-ended

          4        thing that can allow it to drag on and that's my question

          5        to you.

          6             COMMISSIONER RUNDLE:  The answer is that it should be

          7        up to the local community.  The federal law is five days

          8        and even the federal law said, Well, if the states have

          9        their own law that we won't impose ours on them.  And so

         10        what this proposal does is say, Let the local community

         11        decide.  It depends on your needs, their turnaround time,

         12        may apply to different types of weapons, but, I mean, come

         13        on, this is kind of another one in jest.  If we are saying

         14        no less than three and no more than five, you are giving

         15        them the ability to do four days?

         16             COMMISSIONER ALFONSO:  No, what I'm saying is, if I

         17        want to go out and buy a shotgun because I like to bird

         18        hunt or turkey hunt, am I going to go buy one in January

         19        for next year's season, the following March?  Am I going

         20        to have to wait a year?  Am I going to have to wait three

         21        weeks?  I don't know, I'd like to know.  I surely don't

         22        mind wait three to five days, I understand that.  I'd like

         23        to know.  And if we are going to put it in the

         24        Constitution -- I mean, who is to say that you get a

         25        county that says you have to wait six months.


          1             COMMISSIONER RUNDLE:  But I think that the answer is

          2        that you go to your county commission, that's where you

          3        put your pressure on your mayors, your commissioners, your

          4        council people, just like you do on every other issue that

          5        impacts you.

          6             I'll tell you quite frankly New York, everyone wants

          7        to know how New York reduced its murder rate and how it's

          8        reduced its violent crime rate and what they did was they

          9        put six months waiting on all firearms, but attached a

         10        $180 fee.  I mean, they made it virtually impossible for

         11        people to keep getting a firearm.  Now that was New York's

         12        choice.  That's what they voted on, that's what they

         13        wanted.  That would be up to a local community.  They

         14        wanted to make it seven days.  I'll tell you, Dade County

         15        before 1987 when the preemption statute went into effect,

         16        it was two weeks.  Broward County, I think, had 21 days.

         17        So it really is up to the local communities what works

         18        best for them.

         19             CHAIRMAN DOUGLASS:  This is on the amendment to the

         20        amendment.  Commissioner Smith.

         21             COMMISSIONER SMITH:  Thank you, Mr. Chairman.  While

         22        I am supportive of the underlying measure, I too share the

         23        same concern as my turkey hunting commissioner friend

         24        Alfonso.  And I think I asked Commissioner Rundle to

         25        rethink this because we are supposed to be moving


          1        technologically into a situation where we can have even

          2        faster checks, you know, the federal government is

          3        supposed to by November to implement a situation that is

          4        instantaneous checks.  I think if you put it out like

          5        this, I know what you are trying to do, but if you put it

          6        out like this where hunters and people who are legitimate

          7        gun owners say, You mean to tell me there is a possibility

          8        that I can -- I have to wait three months or six months to

          9        buy a gun, oh, absolutely not, this is outrageous.

         10             And it is possible for that to happen and I would

         11        have to strongly support this proposal.  If you can't get

         12        it done in three to five days, we know we can do it now

         13        because it is being done now, three days.  Why should we

         14        allow them to extend it, but that's not important to

         15        extend it?  Why should we leave it open?  I mean, there

         16        are some legislative bodies that are not very responsible

         17        either way on issues like this.  So they could come in and

         18        say six months, a year, three years, or whatever.

         19             I wholeheartedly support this amendment and I'm going

         20        to support the underlying proposal but I want to support

         21        this amendment so we don't accidentally kill the baby

         22        while we are trying to clean the baby up.

         23             CHAIRMAN DOUGLASS:  Commissioner Langley?

         24             COMMISSIONER LANGLEY:  If Commissioner Rundle would

         25        yield.


          1             CHAIRMAN DOUGLASS:  She yields.

          2             COMMISSIONER LANGLEY:  Won't this solve your gun show

          3        problem and your out of the car problem?  People are going

          4        to ignore it anyway, but assuming they were not to ignore

          5        it, wouldn't it solve your gun show problem?  It would

          6        solve your selling on the street problem?  What doesn't it

          7        solve?

          8             COMMISSIONER RUNDLE:  It does solve the problem with

          9        respect to applying waiting periods and background checks

         10        on all firearms sold anywhere in that community.  So from

         11        that perspective it will cover that population.

         12             I guess I just --

         13             CHAIRMAN DOUGLASS:  Commissioner Rundle I think we

         14        are just on this amendment now.

         15             COMMISSIONER RUNDLE:  Well, I was responding --

         16             CHAIRMAN DOUGLASS:  Go ahead.  We are on the Alfonso

         17        amendment.

         18             COMMISSIONER RUNDLE:  Correct.  He asked me how it

         19        applied to gun shows.

         20             CHAIRMAN DOUGLASS:  Go ahead.

         21             COMMISSIONER RUNDLE:  I think though that, you know,

         22        I don't want to belabor too much three to five days, but I

         23        think if the concept here is to allow local communities to

         24        deal with these issues, and they deal with a lot more

         25        important issues too, then we have to have some confidence


          1        in them and some confidence in their process of their

          2        Democratic process.  So I hate to tie their hands by just

          3        giving them a couple of days but in terms of the gun

          4        shows, it is true, it will help alleviate that problem.

          5             CHAIRMAN DOUGLASS:  All right.  Now we are on the

          6        amendment.  Commissioner Ford-Coates?

          7             COMMISSIONER FORD-COATES:  I rise to speak against

          8        the amendment.  It seems to me as we look at this proposal

          9        as a whole, but this amendment in particular, that in a

         10        state like Florida that is so diverse, the metropolitan

         11        areas that have a problem with this need to be dealing

         12        with this based on what they perceive as the best possible

         13        method.  And a story that someone shared with me, which I

         14        think is illustrative of this situation is if our neighbor

         15        has a house that's burning, and we say, Yes, we will loan

         16        you our garden hose, great, we have given them the hose,

         17        but we are trying to control the amount of water they can

         18        put on that fire.

         19             To me, that decision should be made at the local

         20        level if we are going to give them the tool to make the

         21        decision then they should be able to make the entire

         22        decision and I urge you to vote against this amendment.

         23             CHAIRMAN DOUGLASS:  All right.  We are on the

         24        amendment.  Any further discussion on the amendment?

         25        Amendment to the amendment it is.  Commissioner Freidin?


          1             COMMISSIONER FREIDIN:  I'm troubled with Commissioner

          2        Smith's favoring this amendment because almost always I

          3        turn around and say, Commissioner Smith, how should I vote

          4        on this?  But, this time I'm having a problem with it for

          5        the reason that Commissioner Ford-Coates expressed.

          6             This is the -- the idea here is to give local

          7        governments the power.  But for another reason too, and

          8        I'd like to ask Commissioner Rundle to correct me if I'm

          9        wrong.  But it seems to me the delay in -- or the waiting

         10        time for somebody to have -- to get a gun is, for two

         11        purposes.  One is to give them time to do a background

         12        check.  But the other is for a cooling-off period that

         13        sometimes people have reasons that they want to use that

         14        gun that are not legal reasons and the whole purpose here

         15        is to give them an opportunity to -- or to give government

         16        the opportunity to slow that down and let whoever it is

         17        that wants to, you know, use their gun to solve whatever

         18        problem they have, some time to think about it.  And to

         19        maybe come to a different conclusion.

         20             So for that reason, I think it would be a terrible

         21        mistake for us to pass this amendment and injure the

         22        proposal which seeks to give local communities the

         23        opportunity to deal with what is a very, very serious and

         24        very real problem in those communities.

         25             CHAIRMAN DOUGLASS:  All right.  This is on the


          1        amendment to the amendment.  Commissioner Evans-Jones?

          2             COMMISSIONER EVANS-JONES:  I would just like to speak

          3        in favor of the amendment and believe it or not, it was a

          4        friendly amendment because I think that if you leave it

          5        open-ended like this that there will be a real hue and cry

          6        from everybody.  And I don't think it will pass quite

          7        frankly on the ballot.  And I think that question would be

          8        raised by legitimate people who want to do this.  How long

          9        am I going to have to wait is the question they are going

         10        to have to do.  And I just think it would be very wise and

         11        prudent and really a good addition to your proposal.

         12             CHAIRMAN DOUGLASS:  Commissioner Zack?

         13             COMMISSIONER ZACK:  I agree with Ms. Freidin that the

         14        two reasons intellectually to do this bill and to pass

         15        this bill is for a background check and a cooling-off

         16        period and that's why I'm in favor of the amendment.  I

         17        just come out completely opposite, and I rarely do that.

         18             But the fact of the matter is, if we want to ban

         19        handguns we ought to say, Let's ban handguns and give the

         20        local communities a right to ban handguns by having a

         21        180-day or 360-day waiting period, that's not a cooling

         22        off period, that's a ban.

         23             So I'm in favor of the amendment.  I too consider it

         24        a friendly amendment if, in fact, what you're interested

         25        in doing is what you are saying you want to do.


          1             CHAIRMAN DOUGLASS:  Okay.  Now, are we ready to vote

          2        on the amendment to the amendment which is the one we've

          3        been discussing expanding it from three to five days; is

          4        that correct?  All right.  Open the machine and we'll vote

          5        on the amendment to the amendment.  Okay.  Lock the

          6        machine and announce the vote.

          7             (Vote taken and recorded electronically.)

          8             READING CLERK:  Twenty-three yeas, four nays,

          9        Mr. Chairman.

         10             CHAIRMAN DOUGLASS:  All right.  The amendment to the

         11        amendment is adopted and we are now on the amendment as

         12        amended.  Commissioner Connor, I had previously recognized

         13        you before we had the amendment so you have the floor.

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

         15        rise in opposition to the proposal.  I commend

         16        Commissioner Rundle on her candor about why I go to the

         17        Constitution and that's because notwithstanding the

         18        polling date that Commissioner Rundle has been able to

         19        generate in this case, the Legislature has heard from a

         20        different set of people and has a different perspective on

         21        what the people's view is on this issue.

         22             And I can tell you from my own experience in the

         23        gubernatorial campaign, there are lots and lots of people

         24        out there who cherish the rights that have been accorded

         25        them under the Second Amendment to keep and bear arms.  So


          1        I'm not going to address the issue on the turkey hunter

          2        exception or the duck hunter or the deer hunter.  I think

          3        we ought to deal with it straight up just as Commissioner

          4        Zack has suggested.

          5             There are many, many people in this state and there

          6        are many, many people in this country who feel that

          7        government has failed in its essential responsibility

          8        which is to protect the public's safety.  And so they feel

          9        very, very strongly that they should be able to preserve

         10        their constitutional right to keep and bear arms so that

         11        among other things, they can provide for their personal

         12        safety and for their family's safety.

         13             And if you think this proposal would prevent the next

         14        David Koresh or the next Timothy McVeigh from engaging in

         15        their unlawful acts, I would suggest to you plainly and

         16        simply you are naive.  It will not in any way deter those

         17        folks from engaging in a course of unlawful conduct.

         18             But what it will do in a very real sense is to impair

         19        people in the exercise of their Second Amendment rights

         20        and it will impair their ability and it will impair their

         21        sense of their ability to preserve their safety and to

         22        preserve the safety of their family.

         23             I remember a number of years ago living in a small

         24        town in central Florida, Lake Wales, we had two little

         25        babies at the time and underwent during the middle of the


          1        night an attempted break-in in our house.  It was without

          2        a doubt one of the most terrifying experiences I have ever

          3        been through.  And went through casting about of trying to

          4        find something to defend myself.  And the best I could

          5        come up with that night was a tennis racket.

          6             Now I've got my wife, I've got my two little girls at

          7        that time in my house and I don't know who is coming but

          8        I'm betting that they are not breaking in with a tennis

          9        racket and I'm feeling pretty ill-equipped to take care of

         10        myself.

         11             After the situation was clear, the police had come

         12        and we were deemed to be safe, and spending the balance of

         13        the night in an utterly sleepless state, 8:00 the next

         14        morning, I'm downtown at a store trying to buy a gun.  I

         15        didn't want to wait three days, I didn't want to wait five

         16        days, I didn't want to wait 20 minutes.  I wasn't going to

         17        let another day go by, Lord willing, without buying a gun

         18        to use it in my own personal defense and to use it in the

         19        defense of my family.

         20             Now, since that time, the people, through the

         21        Constitution and the Legislature through its authority

         22        which had been conferred on it, have acted in such a way

         23        to try to achieve an appropriate balance in how we deal

         24        with the situation.  I think that the Legislature has

         25        struck an appropriate balance.  I am not -- it's -- I'm


          1        convinced we use a lot of arguments for convenience.  The

          2        polling data is unpersuasive.  If it was persuasive,

          3        parental consent would have already been passed and we'd

          4        be on our way in that regard.

          5             But I can tell you as a practical matter the

          6        overwhelming sentiment of support, I think you'll find

          7        from experience if you deal with these issues out on the

          8        stump, is that people cherish and want to preserve their

          9        Second Amendment rights.

         10             They don't want to see us act as a super Legislature

         11        accomplishing a political agenda which has been

         12        unsuccessful in the arena where the people have elected

         13        representatives.  They don't want a, what they view in

         14        many respects as an appointed, elitist, lawyer-dominated

         15        group to come in and say, We are going to take away from

         16        you what your elected officials have been unwilling to

         17        take away from you which is your discretion in this

         18        regard.

         19             When we compare this to local control of alcohol, I

         20        would submit to you, that we trivialize the Second

         21        Amendment rights that we cherish and enjoy under the

         22        Federal Constitution.  I don't believe that's an apt

         23        comparison.  But I guarantee you that you will find out

         24        what the real sentiment of the public is if you pass this

         25        proposal and I'll bet money, and I'll lay odds with you,


          1        that it will be strongly against the passage of this

          2        proposal.  Thank you.

          3             CHAIRMAN DOUGLASS:  All right.  Commissioner Smith.

          4             COMMISSIONER SMITH:  Thank you, Mr. Chairman.  First

          5        of all, I rise to speak in favor of this proposal.  I am a

          6        concealed firearm permit holder.  I am a multiple gun

          7        owner.  I am a veteran of the Vietnam War having not just

          8        been there but having fought in the war.  I am a strong

          9        proponent of the right to bear arms.

         10             I agree with my friend Commissioner Connor when he

         11        says they're arguments of convenience because one of the

         12        first powerful arguments that I heard that convinced me to

         13        vote in favor of merit selection came from Commissioner

         14        Langley who is a member of the Judiciary Committee.  I had

         15        opposed merit selection, Article V Task Force and

         16        Commissioner Langley quite persuasively and eloquently

         17        stated what's good for south Florida may not be good for

         18        north Florida.  And what we're doing now is we're allowing

         19        different parts of the state, circuit by circuit, county

         20        by county, to make a judgment as to what's best for them.

         21             The second argument that I heard that I found quite

         22        persuasive when we dealt with other issues is the issue of

         23        government closest to the people being better for the

         24        people, being more effective.  And now the proponents of

         25        those two arguments, I find, some of them on the opposite


          1        side of this issue.

          2             And let me tell you why I think this is a good law.

          3        First, because, Commissioner Connor, I think you're right

          4        when you say that the Legislature has now made a good

          5        balance.  But in the balance, there is a loophole.  See,

          6        the people like the balance, that's why in 1990 they

          7        supported this, the people and even the lawyers like me

          8        didn't realize that this loophole existed.

          9             I didn't know that I could just -- criminals know,

         10        but I didn't know I could walk into a gun show in Dade

         11        County on Dade County property and just buy a handgun

         12        without a check.  I want the checks.  When I get on an

         13        airplane it's an inconvenience when I'm trying to rush

         14        here like yesterday and I'm stopped to be searched, that's

         15        very inconvenient to me, I don't like it until I think

         16        about the fact that somebody can blow the airplane up and

         17        then I start cooperating.

         18             You know, sometimes the guy stops you and you get a

         19        little flippant and then you think about it and say, Well,

         20        you know, he's just trying to prevent the criminal from

         21        getting on the airplane and blowing that airplane up.

         22             Let's talk about what this doesn't do.  The Second

         23        Amendment provides a right to keep and bear arms.  Does

         24        this proposal prevent any law abiding citizen from keeping

         25        arms, not at all.  Not one iota.  Does it in any way


          1        affect the bearing of arms?  A lot of the faxes that we

          2        received talked about going from county to county.  As if

          3        going from Dade County to Broward County passing this law

          4        somehow affects your keeping your arm or bearing your arm,

          5        it does not at all.

          6             This only regulates the purchase of firearms and it

          7        closes that loophole.  Now as a gun owner, as a proponent

          8        of the Second Amendment I found myself in the opposite

          9        position that you had, Commissioner Connor, because I had

         10        my Army-issued 45-caliber pistol on my desk one Saturday

         11        and ran out to my car and took it across the street.  And

         12        when I got back there was a 6'4" burglar in my office.  I

         13        am 5'5", I am not a fighter.  And I was thinking, Oh, my

         14        God, does he have my gun?  I'm really going to be in

         15        trouble.  And I said to him, Is anybody else in there?  He

         16        said, No.  I said, Let me go upstairs and check and I got

         17        to my pistol before he did.  And therefore he got arrested

         18        and went to jail because I was able to outsmart him.

         19             So there will be situations where having a gun,

         20        possessing and owning a gun, legally can be dangerous,

         21        sometimes a gun goes off and kills a child but I don't

         22        think that's any reason why people shouldn't have a right

         23        to legally own a gun.  And there will be situations like

         24        yours and a lot of other citizens have where at late at

         25        night you hear your daughter say, Daddy, Daddy, there's a


          1        man out here, and you want to have that protection.

          2             But I think what we want to send to the people of

          3        Florida is, this proposal does not take away people's

          4        guns.  It does not prevent a lawful citizen from owning as

          5        many guns as they want to legally own.  It does not, now

          6        that we have this proposal by Commissioner Alfonso,

          7        circuitously and under the rug ban handguns by allowing

          8        some city to pose a six-month or a year waiting period

          9        which, in effect, is as far as I'm concerned a ban in

         10        disguise.  Because whether it's a situation that you have

         11        or I've been invited to turkey hunt with my friend,

         12        Commissioner Alfonso, I don't have a shotgun.  I guess

         13        I've got to get a shotgun.  We're supposed to go in April.

         14        I shouldn't have to wait, you know what I mean, I

         15        shouldn't have to wait three or four months to get a

         16        shotgun to go turkey hunting.

         17             So I think that this is a step in the right direction

         18        and, Commissioner Connor, I'd want to take you up on that

         19        wager, maybe a lunch, because I think that the evidence

         20        from 1990 clearly shows that the people of Florida believe

         21        strongly in the Second Amendment; however, they believe

         22        that this type of regulation will keep guns out of the

         23        hands of those who are mentally infirmed and keep guns out

         24        of the hands of those people who terrorize our families or

         25        kin to the person that showed up that night where you had


          1        to have the tennis racket.

          2             COMMISSIONER CONNOR:  The Chief Justice has informed

          3        me, Mr. Chairman, that it was not appropriate or lawful to

          4        offer to engage in a bet so we'll -- we won't have any

          5        real consideration.

          6             CHAIRMAN DOUGLASS:  If he can handle burglars, he can

          7        handle betters.

          8             COMMISSIONER SMITH:  Let me just close by saying

          9        this, the first time I ever played golf with preachers, we

         10        had two preachers and two non-preachers in the game and we

         11        said, Okay, before we start, What are we going to bet?

         12        And the preacher said, We can't bet, but we can have a

         13        prize.

         14             (Laughter.)

         15             CHAIRMAN DOUGLASS:  Okay.

         16             COMMISSIONER CONNOR:  We'll put a prize on the line.

         17             CHAIRMAN DOUGLASS:  All right.  Commissioner Langley.

         18             COMMISSIONER LANGLEY:  In opposition to the gun

         19        control bill.  You know, the history of this, and I

         20        certainly think this is totally legislative and should be

         21        a legislative prerogative.  The history of Chapter 790 and

         22        the amendment that went on the ballot and all was not a

         23        two-hour debate as we are having here perhaps and all of

         24        this, but it was a debate in the process through the House

         25        and the Senate and committees and public hearings that


          1        culminated in what you see in the Constitution and what

          2        you see in Chapter 790 with the concealed weapons permit.

          3             And the problem before that, there was a collage of

          4        laws throughout the state.  In my county to get a gun

          5        permit, you put up a $100 bond and had two people say,

          6        You're a pretty good guy, that's all you had to do.

          7             In Seminole County, adjoining Lake County, the

          8        sheriff there said he's the only one that needed to carry

          9        a gun and you didn't get any gun permits.

         10             So a person could be perfectly legal in Lake County

         11        and cross the river into Seminole County and be a felon

         12        for carrying a gun, that was the reason that we did the

         13        preemption law and the reason we agreed after much public

         14        debate to have a uniform system across the state and to

         15        forbid local laws relating to that.

         16             Now if gun shows are the problem, they can be

         17        regulated by the Legislature today and probably should be

         18        if, in fact, these things that you paraded before us are

         19        true, they should be regulated, I don't have any problem

         20        with that.  But what you're doing here is not only

         21        handguns, it's all firearms including rifles and shotguns,

         22        22 rifles or 410, whatever, that anybody is dealing with.

         23        And you're getting to the private sale.

         24             I was just talking with Commissioner Anthony who

         25        happens to be a gun collector and we were talking about


          1        some guns.  But under this law, if I wanted to sell

          2        Commissioner Anthony one of my guns or trade a gun with

          3        him, who would do the background check?  And do we have to

          4        wait five days before we can make that trade?  And in that

          5        five days, who's going to do the background check on which

          6        one of us?  Since we're trading guns, do we both have to

          7        have a background check or whether we ignore that law and

          8        we become felons overnight?

          9             There is local control when you talk, Mr. Smith,

         10        about selecting a judge is a whole lot different from

         11        taking away your constitutional right to possess a

         12        firearm.  And if I can't possess it today, I can't possess

         13        it.  So if you're going to make me wait five days, that's

         14        still the same.

         15             You know, Washington, D.C., New York City have the

         16        toughest firearm laws in the world and correspondingly the

         17        highest murder rates in the world.  It doesn't work.

         18        Criminals are not going to pay any attention to this.

         19        You're going to penalize Commissioner Anthony and me and

         20        Commissioner Alfonso who have guns and trade guns and buy

         21        guns and sell guns and never intend to use them in a

         22        criminal action.  I have a gun collection probably

         23        two-thirds of which have never been fired, you know,

         24        they -- much less even have been used for any illegal

         25        purpose.


          1             And you have to consider it and equate it with the

          2        drug laws.  I assume it's illegal to sell drugs in Dade

          3        County today.  So that law isn't working because the

          4        people who would sell drugs are going to ignore it and go

          5        on and sell their guns.  Why make criminals out of

          6        innocent people?  The good people aren't going to use the

          7        guns for bad purposes and those are the people you're

          8        going to curtail.  Let's regulate gun shows or let the

          9        Legislature regulate gun shows.  But, you know, it's

         10        really, I think, most importantly a matter for the state

         11        Legislature in appropriate hearings with good

         12        representation, hearing from the public, reasoning these

         13        things out, see how it fits with the other parts of the

         14        law, and it's not up to us to do it.

         15             CHAIRMAN DOUGLASS:  Commissioner Zack?

         16             COMMISSIONER ZACK:  I guess we have a lot of gun

         17        collectors on this ground and I consider myself one of

         18        those and I'm also a sporting clays enthusiast.  And about

         19        two weeks ago I went and bought a new shotgun.  And when I

         20        bought that shotgun it was like buying a set of golf clubs

         21        or a tennis racket, I couldn't wait to go out and shoot

         22        it.  I knew it was going to solve all my problems as far

         23        as hitting those darn things.  And I always find it's the

         24        archer and not the arrow as far as equipment is concerned.

         25             However, I waited the time that was necessary to wait


          1        and it didn't hurt me any.  Now I also went to the gun

          2        show in Miami about two weeks ago, three weeks ago, walked

          3        around there and saw the exact kind of weapons that we're

          4        talking about here today.

          5             So I can tell you from firsthand experience that they

          6        do, in fact, exist if anybody has any doubt about that.

          7        And I listened to Commissioner Connor's example and it

          8        concerned me greatly.  Most certainly he's been a dear

          9        friend of mine for 25 years at least and would not want

         10        anything bad to happen to him or his family who I've known

         11        likewise as long.  But there is one thing I'm certain of,

         12        that if the day after that happened he would have called

         13        any one of his friends, including myself, we would have

         14        immediately provided him with a weapon, there is no

         15        question in my mind about that, that we all know people

         16        who have handguns or shotguns and if we need to have

         17        something for our own protection we have the ability to

         18        get it.

         19             The reason I'm in favor of this, while being strongly

         20        in support of the Second Amendment is because I'm looking

         21        at not preventing David Koresh or Timothy McVeigh from

         22        doing the horrible deeds that they've done because I don't

         23        think this will do it.  I agree with Commissioner Langley

         24        in this one case.  But the fact is, that the majority of

         25        violence that occurs is in the home among family members.


          1             And what I'm concerned about is I can give

          2        Commissioner Connor my handgun or a handgun or a shotgun

          3        but I can't rush in, nor do I want to rush in, and stand

          4        between a husband and a wife who have had a horrible spat

          5        and who are not thinking particularly right-headed at that

          6        moment and one of them goes out and buys a gun and shoots

          7        the other one at that gun show with a weapon from that gun

          8        show.

          9             So when I look at the issue here, and that is to

         10        avoid people from dying, I think we do that by passing

         11        this.  And I know that New York and D.C. have very high

         12        crime rates.  What I don't know is how much higher they

         13        would be if they didn't have the laws that they presently

         14        have in place.  So that's why I'm voting for it.

         15             CHAIRMAN DOUGLASS:  All right.  Anybody else?

         16        Commissioner Butterworth -- Commissioner Evans, excuse me.

         17             COMMISSIONER EVANS:  I have a question of

         18        Commissioner Rundle if it's appropriate.

         19             CHAIRMAN DOUGLASS:  If she will rise.  You have the

         20        floor.

         21             COMMISSIONER EVANS:  This background check, there is

         22        no definition in the amendment, and I'm wondering what is

         23        the background check, who decides what the background

         24        check is, what are the limits of it.

         25             COMMISSIONER RUNDLE:  The way I understand it, it


          1        occurs today, is that the purchaser is the one who makes

          2        an application and it gets submitted to FDLE, which is the

          3        Florida Department of Law Enforcement, and I think there

          4        is an $8 or $25 fee or something like that.  They run it

          5        for a criminal history check.  They then present that to

          6        the person, you know, who is selling them that firearm.

          7             Whether or not a community wanted to expand that a

          8        bit for mental health issues, alcohol addiction, drug

          9        addiction issues, again, I think those would be things

         10        that could be done at the local community.  Whether it

         11        could be by the sheriff, as opposed to FDLE, again, I

         12        think those are the kinds of things the local government

         13        would decide what works best for their own community.

         14             CHAIRMAN DOUGLASS:  Commissioner Butterworth?

         15             COMMISSIONER BUTTERWORTH:  As a proponent.  I

         16        believe, and I traveled the state quite a bit over the

         17        last couple of decades, and I find that we do have a

         18        couple of Floridas, probably more than two, but probably

         19        less than six.  And I don't believe there is anywhere in

         20        the state of Florida, no matter where you stand on this

         21        bill, and no matter where the public out there might stand

         22        on it, there is no one that wants a felon to have a

         23        firearm.  And there is no one that wants anyone that is

         24        mentally ill to have a firearm.  And I do believe when

         25        people voted on this issue a decade ago, they thought that


          1        gun shows would have been included, only common sense

          2        would have said that there would be.

          3             Any problems I think anyone would have with this

          4        particular proposal by Commissioner Rundle should have

          5        been taken care of with the two very fine amendments that

          6        were adopted by us.  One of them, which exempted out the

          7        persons who already have a concealed weapons permit.  And

          8        secondly, the five-day issue by Commissioner Alfonso.  I

          9        think those two are the main reasons why someone would be

         10        opposed to this.

         11             From the standpoint of here we have the chief law

         12        enforcement officer and the state attorney of our largest

         13        circuit and also a letter and strong support from a strong

         14        Mayor of Miami Dade County, Alex Pinellas, saying that

         15        with our population of 2 million plus and our tremendous

         16        crime problem that we have, we believe it's imperative for

         17        Dade County to be able to have the option of making the

         18        purchasing of firearms a little more difficult in our

         19        particular community or at least we have the option to

         20        address that issue.

         21             I doubt very much if Crestview has the same problem

         22        as Miami.  I doubt very much if Two Egg, Florida has the

         23        same problem as Hialeah.  But I do believe that our super

         24        counties that are larger than perhaps 75 percent of the

         25        states in this union should have the opportunity to


          1        address themselves in a limited way that we're allowing

          2        them to do to address what they consider to be the most

          3        important crime problem facing them as a community today.

          4             If you go into any schools, if you go into any

          5        schools, elementary schools, middle schools, and you ask

          6        those children, What are you most afraid of, and what you

          7        see right now, I see it from time to time and every time I

          8        do go into the schools, they are more concerned about

          9        firearms than anything else and access to firearms.

         10             In essence, they are worried not about whether or not

         11        they are going to lose their lunch money, they are worried

         12        about whether or not they are going to lose their life in

         13        school or going to or from school.  I urge you to pass

         14        this.

         15             CHAIRMAN DOUGLASS:  Commissioner Freidin?

         16             COMMISSIONER FREIDIN:  I had an experience maybe six

         17        weeks ago that I thought I would share with you because at

         18        the time it happened I didn't even know -- I never heard

         19        of Proposal 167 and I didn't know it was going to be

         20        offered.  I -- my family and I are fortunate enough to

         21        live in what is one of the most beautiful areas of the

         22        state of Florida, Coconut Grove, Florida.  And within

         23        jogging distance of our home is an area called Dinner Key

         24        Marina which is where the City Hall of Miami is and it is

         25        a beautiful marina and it is my jogging route.


          1             When I leave the house, I go down and I jog around

          2        and I look at the sailboats and I look at the beautiful

          3        yachts that are moored there and I have a peaceful and

          4        lovely time.  I go around City Hall but I also go around

          5        an area called -- that's called Dinner Key auditorium, or

          6        Dinner Key Convention Center I guess it's called now.  And

          7        I have been doing that jog for probably 20 years now --

          8        and I must admit, the jog has turned now to a fast walk.

          9             (Laughter.)

         10             After about 18 of those 20 years I decided that was

         11        enough.  But sometime, I think it was in early December, I

         12        was walking through that area and I noticed that there was

         13        something going on at the convention center.  I didn't

         14        really pay much attention to it and I kept going.

         15             And then as I was walking, all of a sudden I saw

         16        there was lots of cars parked in what's usually an empty

         17        parking lot.  I saw some teenage boys in battle fatigues

         18        and they were like going around and hiding behind trucks

         19        and playing like they were playing battle games, war

         20        games.  And then I realized that they had guns in their

         21        hands and then I looked and I realized that they were real

         22        guns and then I paid more attention and I realized what

         23        they were doing was they all had at least a couple of guns

         24        in their hands, these are teenage boys, and they were

         25        walking into the gun show.  And on the way into the gun


          1        show they were playing with their guns.

          2             And this was being done in a public area in an open

          3        parking lot where often I bring my children with me.  And

          4        it was an absolutely terrifying experience to me.  I

          5        realized that this gun show, which I had noticed but

          6        really never paid much attention to, was drawing these

          7        kinds of people, these actual children who had guns that

          8        were obviously bringing their guns to the gun show.  I now

          9        realize what they were probably doing was bringing them

         10        there to sell them or to trade them or to trade up or to

         11        trade for something more powerful, I don't know.

         12             But the point is, it was a very terrifying experience

         13        to me to see these people playing in the area.  Now I

         14        don't suggest that that's a problem that is the only

         15        pervasive problem, but what I do suggest is that the very

         16        notion that people would be all gathered together in order

         17        to, you know, I saw an article in which these gun shows

         18        where called Tupperware parties for criminals.  And I

         19        actually thought that was an apt description of what it

         20        was, it seemed like these kids were involved in.

         21             I think that it encourages people to take the

         22        responsibility of ownership of a gun very lightly and I

         23        think that local governments, I certainly would want my

         24        county to be able to control this and to regulate sales of

         25        firearms at these kinds of gatherings and I urge your


          1        passage of this bill.

          2             CHAIRMAN DOUGLASS:  All right.  Would you like to

          3        close?  This is the proposal, the amendment that we're

          4        talking about and it's as amended, the two ways we talked

          5        about.  And if you would like to close, Commissioner

          6        Rundle.

          7             COMMISSIONER RUNDLE:  Thank you, Mr. Chairman.

          8        Really what we're asking is that you allow us at a local

          9        level, we're not asking to impose it on everyone, it's

         10        really giving rights back to local communities if they

         11        want the opportunity to help themselves save lives.  And I

         12        really do believe based on -- I used some famous cases and

         13        Commissioner Connor asked me, Well, what about real cases

         14        in your community.  I didn't refer to those because I

         15        didn't think they would mean anything to you.  We see the

         16        mayhem that is created by some of these loopholes and we

         17        see the tragedies, we see the dead bodies, we see the

         18        injuries and lots of these criminals will tell you,

         19        especially gang members and others, that they got them

         20        from the gun shows.

         21             So what we're asking is to allow us, at our own

         22        level, in our own community, to be able to close that

         23        deadly loophole, that's all we're asking.  And to let

         24        communities deal with background checks and waiting

         25        periods.  And that's all.  And that's a very simple


          1        request that will have a true meaningful difference on the

          2        impact of lives and public safety in communities

          3        throughout this state.  Thank you.

          4             CHAIRMAN DOUGLASS:  All right.  The proponent having

          5        closed, we've adopted the amendment as amended and now

          6        we're voting on that as the proposal.  So if you will

          7        unlock the machine, we will vote.  Unlock the machine.

          8        Has everybody voted?  Lock the machine and announce the

          9        vote.

         10             (Vote taken and recorded electronically.)

         11             READING CLERK:  Twenty yeas, eight nays,

         12        Mr. Chairman.

         13             CHAIRMAN DOUGLASS:  By your vote you have adopted the

         14        amendment.  Commissioner Barkdull, the next order of

         15        business would be the report, I guess, of the Select

         16        Committee on the Initiatives.

         17             COMMISSIONER BARKDULL:  Mr. Chairman, it's my

         18        understanding that Commissioner Freidin has a substitute

         19        for my 130 which I have no objection to it being

         20        considered rather than 130.  My question is should we --

         21             CHAIRMAN DOUGLASS:  All right.  So what this is, as

         22        I've explained, is you're yielding to Commissioner Freidin

         23        who has a substitute which is the Select Committee's

         24        recommendation?

         25             COMMISSIONER BARKDULL:  That's correct.


          1             CHAIRMAN DOUGLASS:  And that would, in effect, deal

          2        with all of these proposals that are on it?

          3             COMMISSIONER BARKDULL:  Yes, sir.  And if that's

          4        adopted, I would withdraw my others or remove them.  If

          5        it's not adopted, then these will stay alive on the

          6        calendar for consideration.

          7             CHAIRMAN DOUGLASS:  All right.  I understand.

          8             COMMISSIONER BARKDULL:  It has to be passed out.  The

          9        Select Committee's substitute needs to be passed out.

         10             CHAIRMAN DOUGLASS:  All right.  So there is a strike

         11        everything amendment is what it is, I think; is that

         12        correct?

         13             COMMISSIONER BARKDULL:  They need to passed it out.

         14             CHAIRMAN DOUGLASS:  It's being passed out.  My next

         15        question is, it's 4:35 and obviously this is not going to

         16        be a subject that we're going to be able to take up in a

         17        short period of time.

         18             COMMISSIONER BARKDULL:  I move we extend the time of

         19        adjournment until the conclusion of this matter.

         20             CHAIRMAN DOUGLASS:  Well, no, no.  I think that was

         21        exactly what I was getting to.  I believe we should extend

         22        the time beyond a reasonable hour.  We've had some pretty

         23        tough discussions today and debates.  And as the Chair, I

         24        think we would be a lot better off if we got started on

         25        this and we knew what we were dealing with, if this is the


          1        will of the body, and we knew what the substitute was and

          2        you might have a presentation on it.  And then we prepared

          3        to adjourn at the assigned time and you could make your

          4        announcements or whatever, we'd have time for that, if

          5        that's the will of the body.

          6             Now I realize we have a lot of work to do but I think

          7        anything we do from now on, there are a lot of people that

          8        are tired and it would be better to be fresh with this.

          9             COMMISSIONER BARKDULL:  I gathered from the rumblings

         10        of the group and the comments of the Chair that we will

         11        interrupt this debate at five minutes to 5:00 and take it

         12        up again tomorrow.

         13             CHAIRMAN DOUGLASS:  That's -- well, we'll just see

         14        how it plays here.  We're going to get this amendment

         15        before you anyway, whatever else we do.  Commissioner

         16        Freidin, has it been passed out?  Does anybody know?

         17        Everybody got one but me.  Commissioner Mills --

         18        Commissioner Henderson, excuse me.

         19             COMMISSIONER HENDERSON:  I've been quiet all week.

         20             CHAIRMAN DOUGLASS:  You've been absent too.

         21             COMMISSIONER HENDERSON:  I've been around.  But I

         22        believe the motion is in order that after announcements we

         23        would recess until tomorrow.

         24             CHAIRMAN DOUGLASS:  You mean now or after we get this

         25        proposal before us?


          1             COMMISSIONER HENDERSON:  I'm just saying, this side

          2        of the building here is ready to recess, okay?

          3             CHAIRMAN DOUGLASS:  All right.  If you could hold

          4        your motion just long enough for us to have this amendment

          5        presented by Commissioner Freidin, I'd entertain that

          6        motion with great glee after we did that.  Could you do

          7        that for me?

          8             All right.  Commissioner Freidin, I'm going to ask

          9        everybody to please give us your attention just a minute

         10        and then we're going to go.  Commissioner Mills, could you

         11        and Senator Silver, who is not supposed to be on the floor

         12        talking to you, please quit and we'll proceed to see if we

         13        can get out of here.  Commissioner Freidin, you're

         14        recognized.  Commissioner Evans-Jones?

         15             COMMISSIONER EVANS-JONES:  I just wondered if it's

         16        the appropriate time to move that we reconsider Committee

         17        Substitute for 172 and 162.

         18             CHAIRMAN DOUGLASS:  Well, we'll treat that as a

         19        motion to reconsider.  That's not out of order, is it,

         20        Commissioner Barkdull?

         21             COMMISSIONER BARKDULL:  No, sir.

         22             COMMISSIONER EVANS-JONES:  This is the Independent

         23        Reapportionment Commission.

         24             CHAIRMAN DOUGLASS:  You have moved to reconsider it

         25        and it will be placed on the calendar for reconsideration.


          1             (Off-the-record comment.)

          2             CHAIRMAN DOUGLASS:  I'm trying to get to that.  We're

          3        going to read the amendment first if you will come to

          4        order and listen to the Clerk.  The Clerk is going to read

          5        the amendment which is the work of the Select Committee on

          6        Reapportionment.  Would you read the amendment, please?

          7             READING CLERK:  Proposal 130, a proposal to revise

          8        Article XI, Section 3, Florida Constitution; requiring an

          9        initiative petition to be signed by a specified percentage

         10        of the electors from each congressional district.

         11             CHAIRMAN DOUGLASS:  Now, the amendment is a

         12        substitute for that.  And would you read that, please?

         13             READING CLERK:  By Commissioner Freidin, delete

         14        everything after the proposing clause and insert lengthy

         15        amendment.

         16             CHAIRMAN DOUGLASS:  Now, do you all have before you

         17        the amendment?  Commissioner Freidin, if you would just

         18        briefly explain what this proposal does then we will

         19        proceed to the other matters at hand.  You have the floor.

         20             COMMISSIONER FREIDIN:  Mr. Chairman, when I was a

         21        baby lawyer in Steve Zack's firm and when he was my boss,

         22        Steve is much older than I am, (Laughter.) I learned that

         23        you should never ever talk to the jury when the jury had

         24        one foot out the door and I really think that it would

         25        be -- it would make more sense for us to take -- I'm glad


          1        that it's all on your desks.  I would appreciate -- I

          2        would ask that the members read this proposal tonight so

          3        that when we get in here in the morning everybody will be

          4        totally fresh and ready to discuss it and I would like to

          5        explain it at that time.

          6             CHAIRMAN DOUGLASS:  Very well.  I want to recognize,

          7        before you do anything else, that in the gallery today is

          8        a long-suffering citizen of the state of Florida who's put

          9        up with a lot of adversity for many, many years, she is

         10        the living widow of Commissioner Morsani.  She is here and

         11        he and Carol are celebrating their 47th wedding

         12        anniversary.  She's present in the gallery.  We're honored

         13        to honor you both.  And all in great fun, Frank, you've

         14        obviously been a great husband and father.  Now,

         15        Commissioner Barkdull.

         16             COMMISSIONER BARKDULL:  Mr. Chairman, I would yield

         17        to Commissioner Connor for a moment.

         18             CHAIRMAN DOUGLASS:  Commissioner Connor?

         19             COMMISSIONER CONNOR:  Mr. Chairman, having conferred

         20        with my colleague, Mr. Langley, in an effort to spare this

         21        body the agony of further debate on the controversial,

         22        apparently within this body, issue of parental consent and

         23        being of a mind to take my appeal to the elected

         24        Legislature in an effort to get this matter up before the

         25        citizens of Florida, with the consent of this body, we'd


          1        like to withdraw Mr. Langley's motion to reconsider which

          2        is scheduled to be heard at 1:00 a.m. tomorrow -- excuse

          3        me.  Yes, we'll crack the whip, you'll be here at 1:00

          4        a.m.  We think we can get our folks here at 1:00 a.m.

          5             CHAIRMAN DOUGLASS:  At this time, without objection,

          6        the motion to reconsider, to reconsider is withdrawn.

          7        Now, Commissioner Barkdull, you're recognized.

          8             COMMISSIONER BARKDULL:  First I'd like to move to

          9        reconsider Proposition No. 2, affirmative action, which

         10        was passed yesterday and I was on the affirmative.  Next

         11        I'd like to reconsider Proposition 6 which was a sales tax

         12        sunset and I was on the affirmative of that also.

         13             CHAIRMAN DOUGLASS:  It seems to me that's already

         14        been moved to reconsider, I think, according to the

         15        journal.

         16             COMMISSIONER BARKDULL:  No, sir.  Well, if it has,

         17        fine, if it hasn't --

         18             CHAIRMAN DOUGLASS:  Proposal 6?

         19             COMMISSIONER BARKDULL:  Proposal 6.

         20             CHAIRMAN DOUGLASS:  The journal says that

         21        Commissioner Mills -- no, that was another proposal.  I'm

         22        sorry, you're correct.  That was 144.

         23             COMMISSIONER BARKDULL:  I just want to be sure.

         24        No. 2 and No. 6 are the two that I'm moving for right now.

         25             CHAIRMAN DOUGLASS:  You're moving to reconsider


          1        those?

          2             COMMISSIONER BARKDULL:  Now, I'd like to announce the

          3        Sovereign Immunity Committee meets in Room 317 immediately

          4        upon adjournment or 5:00.  Style and Drafting is going to

          5        meet in the morning, as I understand it, Commissioner

          6        Mills at 8:00, 317?

          7             CHAIRMAN DOUGLASS:  Commissioner Mills?

          8             COMMISSIONER MILLS:  7:30.

          9             CHAIRMAN DOUGLASS:  Where are you meeting,

         10        Commissioner Mills?

         11             COMMISSIONER MILLS:  317.

         12             CHAIRMAN DOUGLASS:  All right.  Any further

         13        announcements?  Do you need anything?  Just a moment.

         14        We're TPing the 130 until tomorrow morning.  It will be

         15        the first item on the order; will it not?

         16             COMMISSIONER BARKDULL:  Yes, sir.

         17             CHAIRMAN DOUGLASS:  Commissioner Mathis, do you have

         18        a question?

         19             COMMISSIONER MATHIS:  I had a question.  Commissioner

         20        Barkdull, did you ask for reconsideration of Commissioner

         21        Sundberg's Proposal No. 2 on equal opportunity?

         22             CHAIRMAN DOUGLASS:  Yes, he did.  He moved for

         23        reconsideration on that.

         24             COMMISSIONER BARKDULL:  I did.

         25             COMMISSIONER MATHIS:  Well, can I -- just so I can


          1        get an understanding, can I understand why?

          2             CHAIRMAN DOUGLASS:  I guess he'll do that when it

          3        comes up for consideration.

          4             COMMISSIONER MATHIS:  So I should object now?

          5             CHAIRMAN DOUGLASS:  No, no.  You get to hear him say

          6        why he wants you to reconsider.  You're not waiving

          7        anything, Commissioner Mathis.

          8             All right.  Any further questions?  Anything else?

          9        Commissioner Barnett?

         10             COMMISSIONER BARNETT:  The reconsiderations though

         11        will come up at 9:00 in the morning; is that when they

         12        will be?  Just so we know when to be here to discuss this

         13        issue.

         14             CHAIRMAN DOUGLASS:  They don't have to come up the

         15        first thing.  It is up to the Rules Committee or the order

         16        as to where they come up and so we'll just wait and see on

         17        that.

         18             COMMISSIONER BARNETT:  Well, just some idea.  They

         19        have been coming up right at 9:00, is that the intention?

         20             CHAIRMAN DOUGLASS:  Well, and then we TP'd them like

         21        the one we had today.  We had one up first and we TP'd it

         22        until later in the week.

         23             COMMISSIONER NABORS:  Mr. Chairman?

         24             CHAIRMAN DOUGLASS:  Yes, Commissioner Nabors.

         25             COMMISSIONER NABORS:  It's hard to hear --


          1             CHAIRMAN DOUGLASS:  All right.  Could everybody hold

          2        it down just a minute.  Commissioner Nabors has a

          3        question.

          4             COMMISSIONER NABORS:  Commissioner Barkdull, you

          5        moved to reconsider which proposals?

          6             COMMISSIONER BARKDULL:  Pardon?

          7             COMMISSIONER NABORS:  Which proposals?  I didn't hear

          8        which proposals.

          9             COMMISSIONER BARKDULL:  I moved to reconsider the

         10        sales tax sunset No. 6.

         11             CHAIRMAN DOUGLASS:  And No. 2.  And then we had

         12        another motion to reconsider that was made by Evans-Jones

         13        on the Reapportionment Commission.  Those will not

         14        necessarily be coming up first thing in the morning at

         15        all.  They will be on the calendar and they will come up

         16        in due course or they can come up anytime that the Rules

         17        Committee puts them up.

         18             (Off-the-record comment.)

         19             CHAIRMAN DOUGLASS:  Beg your pardon?

         20             COMMISSIONER SUNDBERG:  They must come up this

         21        session, correct?

         22             CHAIRMAN DOUGLASS:  No.

         23             (Off-the-record comment.)

         24             CHAIRMAN DOUGLASS:  They will come up tomorrow unless

         25        we extend them over.  We extended one over today so we


          1        actually have four.  On these items, I know the Rules

          2        Committee is going to try to give you notice when they are

          3        going to come up so we don't go through this I wasn't here

          4        business and have to do it again.  All right.

          5        Commissioner Barkdull?

          6             COMMISSIONER BARKDULL:  I move we recess until the

          7        hour of 9:00 a.m. tomorrow morning.

          8             (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