State Seal Calendar

Meeting Proceedings for February 12, 1998 (File size=260K)


          1                          STATE OF FLORIDA
                             CONSTITUTION REVISION COMMISSION


          4                         COMMISSION MEETING




          8   DATE:                   February 12, 1998

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











          1                             APPEARANCES


              CLARENCE E. ANTHONY
          4   ANTONIO L. ARGIZ (ABSENT)
              PAT BARTON
          6   ROBERT M. BROCHIN
          7   KEN CONNOR
              CHRIS CORR (EXCUSED)
              VALERIE EVANS
              PAUL HAWKES (ABSENT)
              DICK LANGLEY (ABSENT)
         13   JOHN F. LOWNDES
              STANLEY MARSHALL
         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             (Quorum taken and recorded electronically.)

          3             SECRETARY BLANTON:  Quorum call, quorum call.  All

          4        commissioners indicate your presence.  All unauthorized

          5        visitors please leave the chamber.  Quorum present,

          6        Mr. Chairman.

          7             CHAIRMAN DOUGLASS:  All right.  If everybody will

          8        take your seats, we'll have the morning prayer.  Would you

          9        please take your seats.  All right.  Would everybody

         10        please rise for the morning prayer.

         11             This morning we're happy to have again Reverend Emory

         12        Hingst, pastor of St. Stephen's Lutheran Church in

         13        Tallahassee.  Reverend, if you can get them to move, you

         14        can say our prayer.

         15             REVEREND HINGST:  Let us begin our prayer in silence,

         16        perhaps taking a breath to consider who we are, for what

         17        purpose we are here and to continue to let God's presence

         18        be known.

         19             Almighty yet loving Lord God, the beginning and end

         20        of all that we are and all that we have you create,

         21        preserve, forgive, replenish, renew and continue to create

         22        as the love of the world.  You give society the privilege

         23        and responsibility to wisely use our resources, to be

         24        responsible to structure our society in striving for

         25        justice for all citizens particular in your revelation to


          1        the Judeo-Christian tradition, justice for those who are

          2        the most vulnerable.

          3             Thank you for this awesome freedom and

          4        responsibility.  In that light, we ask you to give these

          5        commissioners the eyes to see your presence in the

          6        citizens and the environment they serve.  Give these

          7        commissioners the ears to hear your voice in the voices of

          8        the people and to see clearly the public they are asked to

          9        support.  Give them wisdom, knowledge, patience, kindness,

         10        gentleness, humility in affirmations and negations and

         11        deliberations.

         12             And, lest we forget others, we ask for your peace and

         13        health for all communities of our world.  Hear our

         14        petitions in your grace.  Amen.

         15             CHAIRMAN DOUGLASS:  Commissioner Riley, would you

         16        lead us in the pledge of allegiance to the flag?

         17             (Pledge of Allegiance.)

         18             CHAIRMAN DOUGLASS:  All right.  Order, please.

         19        Commissioner Barkdull.

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

         21             CHAIRMAN DOUGLASS:  Just a moment.  Okay.  We're

         22        starting off this morning like we did yesterday and we

         23        couldn't get anything done.  I would hope everybody could

         24        sort of stay in their seats and resist too much talking

         25        back and forth while people are on the floor today.


          1             And I want to congratulate you, Commissioner

          2        Henderson.  You were in your seat all day yesterday and

          3        I'm proud of that.

          4             COMMISSIONER HENDERSON:  Mr. Chairman, do I need to

          5        ask permission to go to the bathroom?

          6             CHAIRMAN DOUGLASS:  Just raise your hand.

          7             (Laughter.)

          8             CHAIRMAN DOUGLASS:  Commissioner Barkdull will give

          9        you permission.  Commissioner Barkdull.

         10             COMMISSIONER BARKDULL:  Mr. Chairman, Members of the

         11        Commission, you have a proposed special order calendar in

         12        front of you today.  There are a number of items on

         13        reconsideration and then the special order starts with

         14        Proposition No. 58, which I'm not sure is in the packet

         15        but I believe is over at the desk and is going to be

         16        distributed now.  This is the one we had to withdraw from

         17        Declaration of Rights yesterday and place on the calendar.

         18        It concerns age in the nondiscriminatory section of the

         19        Declaration of Rights.

         20             One of the items on reconsideration is number six,

         21        which was there -- I placed on reconsideration.  I'd like

         22        to withdraw that motion at this time with the concurrence

         23        of the body.

         24             CHAIRMAN DOUGLASS:  All right.  Without objection the

         25        motion for reconsideration, that one, incidentally, is the


          1        Nabors' proposal on finance and taxation.

          2             COMMISSIONER BARKDULL:  That's correct, sales tax

          3        sunset.

          4             CHAIRMAN DOUGLASS:  The sunset of the sales tax.  And

          5        you're moving to -- you're actually moving to withdraw

          6        your motion to reconsider.

          7             COMMISSIONER BARKDULL:  Yes, sir.

          8             CHAIRMAN DOUGLASS:  Everybody understand?  All those

          9        in favor say aye; opposed?

         10             (Verbal vote taken.)

         11             CHAIRMAN DOUGLASS:  Without objection it is --

         12             COMMISSIONER BARKDULL:  Now, Mr. Chairman, all the

         13        remaining motions to reconsider that are on the first --

         14             CHAIRMAN DOUGLASS:  By unanimous consent it is

         15        withdrawn.  I'm reminded that that's what it takes to

         16        withdraw a motion to reconsider.

         17             COMMISSIONER BARKDULL:  Now, Mr. Chairman, I move you

         18        that we temporarily pass all the other motions for

         19        reconsideration on the calendar.  I see some of the

         20        people's proposals that are involved are not here and some

         21        of the makers of the motions to reconsider are not here

         22        until later on in the day.

         23             CHAIRMAN DOUGLASS:  And some of those we may have to

         24        carry over to the next meeting.

         25             COMMISSIONER BARKDULL:  The first item then would be


          1        No. 58 which should be being given out right now.  And I

          2        think Commissioner Anthony wants the floor.

          3             CHAIRMAN DOUGLASS:  This is the age matter.  And I

          4        would hope we could take up next, early or the first thing

          5        the Article V cost report.  That's the next item on the

          6        calendar.  Commissioner Smith.

          7             COMMISSIONER SMITH:  I'm just asking a question.

          8        With regard to the motion made by Commissioner Barkdull to

          9        temporarily pass all the items that are on

         10        reconsideration, what does it take to pass that?  Because

         11        I --

         12             CHAIRMAN DOUGLASS:  Pass that motion, you want to

         13        take them up?

         14             COMMISSIONER SMITH:  Not all of them up, but I

         15        think -- Commissioner Barkdull moved to reconsider

         16        Proposition 2 and the proponents, key proponents, Sundberg

         17        and Smith, are here.

         18             CHAIRMAN DOUGLASS:  Well there are a lot of the

         19        opponents that aren't here, which that may be why you want

         20        to take it up.

         21             (Laughter.)

         22             COMMISSIONER SMITH:  There is nothing like a good

         23        clear answer.  Thank you, very much.

         24             CHAIRMAN DOUGLASS:  I tell you, we're going to have

         25        to quit acknowledging people aren't here, aren't we,


          1        Commissioner Smith, on both sides of the issues I guess.

          2        We'll proceed with the age.

          3             COMMISSIONER ANTHONY:  Mr. Chairman.

          4             CHAIRMAN DOUGLASS:  Commissioner Anthony.

          5             COMMISSIONER ANTHONY:  Mr. Chairman, I'd like to make

          6        a motion that we take up Proposals 59, 76 and 77 after the

          7        Proposal 58 this morning.

          8             CHAIRMAN DOUGLASS:  All right.  Commissioner

          9        Barkdull.

         10             COMMISSIONER BARKDULL:  Those were the sovereign

         11        immunity matters and it was my understanding that all the

         12        parties involved are not in agreement yet.

         13             COMMISSIONER ANTHONY:  That's why we have debate on

         14        the floor, Commissioner Barkdull, so we can come to

         15        consensus on these matters.  I think that yesterday we

         16        started this discussion at around 11:30.  Chairman

         17        Douglass then came on the floor, started debate on this

         18        issue at 11:45, went to 12:00, and then we came back after

         19        lunch and did not continue the discussion on this matter.

         20             I think I request a consideration of the Chair and

         21        the membership of this commission, let's take up this

         22        matter and I made this request in January.  So I ask that

         23        we take up this matter this morning so that we can have a

         24        discussion that the people want on sovereign immunity.

         25             CHAIRMAN DOUGLASS:  Commissioner Connor.


          1             COMMISSIONER CONNOR:  Mr. Chairman, respectfully, and

          2        appreciative of Commissioner Anthony's concerns, and I'm

          3        not sure what the appropriate order is, I would, in

          4        arguing against that, would simply request that we be

          5        permitted to temporarily pass those proposals for this

          6        reason:  As you know, the select committee on sovereign

          7        immunity was a creature that came rather late in the game.

          8        We had three proposals that came before us and then

          9        literally at the 11th hour we had a new, unique proposal

         10        which was altogether different from the proposals that

         11        were put on the table that came to us.

         12             And much of the time yesterday was spent on the floor

         13        in an attempt to scurry around and draft something and

         14        satisfy different people's considerations and concerns.

         15        And I am one of those, frankly, who have grave concerns

         16        about that.  Both from a philosophical standpoint and from

         17        a public policy standpoint.

         18             My sense is, however, from talking with various

         19        partisans who are involved in this, that they would like

         20        additional time, particularly in light of the new proposal

         21        that came to the floor late in the game, to have an

         22        additional opportunity to continue to try to refine that

         23        language.  We met as late as yesterday at lunch with our

         24        committee and heard from different people about these

         25        matters.


          1             And I frankly think the quality of the product, and

          2        as a consequence the quality of the debate would likely be

          3        enhanced if additional opportunity were given to have

          4        input on the various proposals.  And our committee either

          5        could meet further or perhaps the various folks that are

          6        involved could meet further, but I think we might have the

          7        product enhanced so that our debate would sharpen when

          8        those matters came up.

          9             CHAIRMAN DOUGLASS:  Commissioner Connor, I think

         10        Commissioner Langley had spoken and he wanted to be on

         11        that, I think he was working with the group on that.

         12             COMMISSIONER CONNOR:  He met with our committee

         13        yesterday, he did indeed.

         14             CHAIRMAN DOUGLASS:  And that I think is one reason I

         15        feel that we ought to TP it until you have an opportunity

         16        in the committee to come up with something.  I don't think

         17        you have come up with anything.

         18             COMMISSIONER ANTHONY:  Mr. Chairman.

         19             CHAIRMAN DOUGLASS:  Commissioner Scott.

         20             COMMISSIONER SCOTT:  Mr. Chairman, he has a motion on

         21        the floor which is a majority vote, simple majority vote,

         22        to amend the special order calendar.  I don't even know

         23        what's going on with this issue or which way I would vote

         24        on it.

         25             But I want to start expressing right now a concern


          1        that this is an issue of major import, a higher level,

          2        obviously, than probably some percentage -- I don't want

          3        to be mean about it, 70 percent of the stuff we've been

          4        debating in here -- and I think that if Commissioner

          5        Anthony wants to have this advanced that we ought to do

          6        it.

          7             I want to express the concern that we've got to get

          8        finished here, you know.  And we've now got one more week,

          9        there's going to be discussions from the leadership and

         10        Style and Drafting and Rules about that, but, I mean, one

         11        more week in February.  I think we ought to do it and I'm

         12        in favor of his motion.

         13             CHAIRMAN DOUGLASS:  If you want to be heard on the

         14        motion, I don't believe it's a motion to amend, is it,

         15        Commissioner Barkdull?

         16             COMMISSIONER BARKDULL:  I took it as a motion to

         17        amend the calendar to place this on after the

         18        consideration --

         19             CHAIRMAN DOUGLASS:  That's what I mean.  It was a

         20        motion to amend, not a motion --

         21             COMMISSIONER CONNOR:  Then, Mr. Chairman, my position

         22        simply is in opposition to the motion only because, as I

         23        understand it, deferring this would not be the

         24        precipitating cause of our coming back.  My understanding

         25        is we're coming back in any event.


          1             And that because of the very thing that Commissioner

          2        Scott has pointed out, that this is a matter of

          3        extraordinary importance, I think, and would have

          4        significant and far-reaching implications.  My own

          5        estimation is, particularly in light of the Senate

          6        President's comments yesterday and the struggle the

          7        Legislature has had, that we would do well to refine our

          8        thinking and sharpen the issues more carefully before

          9        putting it to the body.

         10             And I say that, frankly, without having a commitment

         11        either way on these issues.  I have a lot of sympathy, I

         12        know and you can talk with folks who have been in the

         13        committee, I have a lot of sympathy for the concerns that

         14        Commissioner Anthony has raised.  My desire simply is to

         15        afford us the best opportunity to produce the best product

         16        that will result in the most clear and careful

         17        consideration.

         18             CHAIRMAN DOUGLASS:  So you oppose the motion to

         19        amend?

         20             COMMISSIONER CONNOR:  Yes.

         21             CHAIRMAN DOUGLASS:  Commissioner Ford-Coates.

         22             COMMISSIONER FORD-COATES:  It seems to me that I

         23        think Commissioner Anthony has expressed quite clearly

         24        that this is an issue of prime importance to him.  And the

         25        fact that he happens to be getting married this week is


          1        going to interfere with the minor detail of, you know, his

          2        honeymoon is coming up and he's not going to be here the

          3        week that this is discussed.

          4             I would suggest that we go ahead and debate some of

          5        the pros and cons and problems of the issue, finish our

          6        debate and then perhaps entertain a motion to temporarily

          7        pass it.  If we don't want to have the final vote, I think

          8        we should at least be allowed to sufficiently hear

          9        Commissioner Anthony's information on the process and

         10        other issues.  And I support his motion.

         11             CHAIRMAN DOUGLASS:  I'm looking for some compromise

         12        that might accommodate.  Would it be appropriate to go

         13        ahead with the special order as set and then have

         14        Commissioner Anthony make his debate on, actually on

         15        something that's not really before us and probably won't

         16        be until the next meeting, as Commissioner Connor pointed

         17        out.

         18             I have no objection to that.  And I'm sure most

         19        others don't have any objection to him making his debate.

         20        On the other hand, I don't think we can control the

         21        special order based on that altogether.  We do accommodate

         22        all the time but not for the next meeting.  It's going to

         23        be the most important meeting we have.  And it's very

         24        essential that everybody be here and at that point I feel

         25        sure that everybody will be here that can.


          1             And I don't have -- as an accommodation I don't have

          2        any problem with Commissioner Anthony making his remarks.

          3        They are generally addressed to the subject I think.

          4             COMMISSIONER ANTHONY:  Mr. Chairman, thank you very

          5        much for that consideration, but I'm not requesting that

          6        consideration.  I'm requesting that we move the items and

          7        that I be given a chance to have some input on the

          8        proposals that are before us and that would be in order

          9        once we approve, hopefully we approve this motion.

         10             Mr. Chairman, I am not one that misses meetings and I

         11        have been here during the process and having input on

         12        proposals throughout this process.  If we're going to hold

         13        up this item because of Commissioner Langley not being

         14        here, I ask you to compare my voting record and

         15        attendance.  And I would beg to say that my attendance

         16        here at these meetings has been more than 80 percent at

         17        these meetings.

         18             And all I'm doing is requesting, as I requested of

         19        you, that we put this item up to when I am here, because I

         20        have been waiting to provide input to the members of this

         21        commission on this item.  And that's the consideration

         22        that I'm asking of the commission, that you give me this

         23        opportunity and give Commissioner Zack this opportunity,

         24        and Freidin, who have proposals on this issue to have an

         25        opportunity to talk to you about the pros and cons.


          1             Whichever way you will fall on this item, it's just

          2        the pros and cons that I'd like you to be able to hear

          3        from me while I'm here.  And I ask your consideration.

          4             CHAIRMAN DOUGLASS:  Anybody else want to be heard on

          5        the motion?  All in favor of the motion, say aye; opposed?

          6             (Verbal vote taken.)

          7             CHAIRMAN DOUGLASS:  All right.  The motion carries.

          8        Where does that leave us, Commissioner Barkdull?

          9             COMMISSIONER BARKDULL:  Proposition 58, and then we

         10        go to Article V costs and then we go to the sovereign

         11        immunity three that Commissioner Anthony had in his

         12        motion.

         13             CHAIRMAN DOUGLASS:  Is that agreeable to you now,

         14        Commissioner Anthony?  We'll be going to it third on the

         15        order.  That will be this morning.

         16             Fifty-eight, read 58.

         17             COMMISSIONER BARKDULL:  Mr. Chairman, I may have

         18        misstated.  He asked that it be taken up after 58 and

         19        ahead of the Article V costs.

         20             CHAIRMAN DOUGLASS:  All right.  It will be taken up

         21        after 58.  Fifty-eight.  We called 58 yesterday, I think.

         22        Read the Proposal 58 by Commissioner Zack.

         23             READING CLERK:  Proposal 58, a proposal to revise

         24        Article I, Section 2, Florida Constitution; providing that

         25        a person may not be deprived of any right because of age.


          1             CHAIRMAN DOUGLASS:  Commissioner Zack, you're

          2        recognized on the proposal.

          3             COMMISSIONER ZACK:  We've withdrawn that and

          4        submitted a substitute that should be before the body at

          5        this time.

          6             CHAIRMAN DOUGLASS:  All right.  Is the substitute --

          7             COMMISSIONER ZACK:  It's an amendment.

          8             CHAIRMAN DOUGLASS:  It's an amendment?

          9             COMMISSIONER ZACK:  Yes.

         10             CHAIRMAN DOUGLASS:  Is the amendment on the table?

         11             COMMISSIONER ZACK:  Yes, it is.

         12             CHAIRMAN DOUGLASS:  Would you read the amendment?

         13             READING CLERK:  By Commissioner Zack, delete

         14        everything after the proposing clause and insert

         15        Section 1, Section 21 of Article I, of the Florida

         16        Constitution is revised by amending the section to read,

         17        Article I, Declaration of Rights; to access courts, the

         18        courts shall be open to every person for redress of any

         19        injury and injustice -- excuse me, and justice shall be

         20        administered without sale, denial or delay.

         21             CHAIRMAN DOUGLASS:  Commissioner Zack on the

         22        amendment which is really sort of a substitute; isn't it?

         23             COMMISSIONER ZACK:  Yes, it is.

         24             CHAIRMAN DOUGLASS:  Would you explain what you are

         25        now asking us to do on this amendment?


          1             COMMISSIONER ZACK:  First let me explain the reason

          2        for the amendment.  The concern that was expressed in

          3        committee, the Declaration of Rights Committee, about just

          4        adding age to Section 2 was that we really weren't sure

          5        where that would lead us.

          6             There were a number of concerns vis-a-vis adding

          7        rights to minors.  In fact, you could argue that anybody

          8        at any age could drive, anybody at any age could do many

          9        things, drink, et cetera, that presently they are not

         10        allowed to do.  Also, there are concerns about, on the

         11        other end of the spectrum, on the long in the tooth, where

         12        I'm on that side of that spectrum, about the mandatory

         13        retirement ages and things of that nature.

         14             So the reason for the original proposal and for the

         15        amendment, and the amendment actually has a laser effect

         16        of curing a problem as opposed to a more broad-based,

         17        uncertain effect.  And the problem was one that was

         18        addressed to us at every single meeting that we had around

         19        the state.  And I'm proud to say that I attended every

         20        single one of those meetings.

         21             And there wasn't any issue that was more debated,

         22        more passionately debated, than the rights of people over

         23        25 years of age to receive remuneration in the event of

         24        the wrongful death or injury to their parents.

         25             And we've heard, and I'm not going to take the time


          1        of this body which has a very full agenda today, to

          2        reiterate each of the horror stories, and that's the only

          3        way to describe them, as horror stories, that we heard at

          4        those public hearings.

          5             I was thinking last night that -- when I was thinking

          6        about this matter coming up first thing this morning, I

          7        happen to have a 25-year-old son and a 23-year-old

          8        daughter.  I happen to think they love me both equally, I

          9        hope they do at least.  They were raised in the same

         10        household with the same affection.  And if this afternoon

         11        I'm walking across the street and I'm hit and killed by a

         12        bus with a -- a bus with an intoxicated driver and, a

         13        private bus most certainly, and tomorrow they find out

         14        that I had died, that each of them would have the same

         15        pain and each of them would have the same loss.

         16             And there is no intellectual justification that can

         17        be expressed, I believe, in this chamber.  And there are

         18        very few things where we cannot honestly disagree and we

         19        have honestly disagreed on many, many of those.  But on

         20        this issue, frankly, there is no intellectual or logical

         21        reason that my daughter should recover and my son

         22        shouldn't.  And I ask you to support this motion.

         23             CHAIRMAN DOUGLASS:  Commissioner Connor.

         24             COMMISSIONER CONNOR:  Mr. Chairman, I rise to speak

         25        in favor of the proposed amendment.  And I'm very


          1        appreciative of Commissioner Zack and others for being

          2        sensitive to the concerns that I had raised about

          3        potential unintended consequences.  And I agree with

          4        Commissioner Zack that this is a very targeted, laser-type

          5        way to address the concern.

          6             I do think it's appropriate to be in the Constitution

          7        because we're talking about either the denial or

          8        impairment of people's rights.  And I believe it to be the

          9        role of the Constitution to protect the rights of the

         10        people.  I would make this observation with respect to age

         11        23 versus 25 or older.  That this proposal would not in

         12        any way impair the ability of the jury to determine the

         13        amounts to be awarded a decedent's survivor based on their

         14        age.  In other words, a 45-year-old child, the jury, with

         15        respect to the amount of the recovery, could take into

         16        account the facts at issue and make rationally-based

         17        distinctions on how much should be recovered.

         18             What this does is simply to say that the right to

         19        make a recovery can't be denied or abridged in any way.

         20        So the jury still has the opportunity to take into account

         21        those kinds of factors that would be appropriate in

         22        assessing the amount that ought to be awarded.  And I dare

         23        say, I dare say, that a jury could well find that a

         24        30-year-old child and a 3-year-old child ought to be and

         25        should be treated differently with respect to the loss of


          1        a parent, for example.

          2             So I encourage your favorable consideration.  I think

          3        it's properly within our purview.  I think it does not

          4        open the door to the unintended consequences that I was

          5        concerned about, and I think it does remedy a gross

          6        injustice that is present in the law.

          7             CHAIRMAN DOUGLASS:  Commissioner Smith?

          8             COMMISSIONER SMITH:  Thank you, Mr. Chairman.  As the

          9        Chair of the Declaration of Rights Committee, I rise just

         10        for a brief point of information.

         11             As was said, this matter was withdrawn from the

         12        Declaration of Rights Committee.  I would ask that none of

         13        you take any adverse inference from that.  Basically there

         14        was a miscommunication as to what the status of this

         15        proposal was, as to whether it was withdrawn, whether it

         16        was going to go in Article I, Section 2, Article I,

         17        Section 21.

         18             And once we found out that it fell through the cracks

         19        and the Declaration of Rights Committee had closed shop

         20        and was not taking up any other proposals, and since it's

         21        so laser-like and so specific and deals with one specific

         22        issue, we felt it was appropriate, especially with time

         23        running out, to bring it to the body, debate it, hopefully

         24        a very, very small period of time, and vote it up or down.

         25        Thank you.


          1             CHAIRMAN DOUGLASS:  Commissioner Freidin?  Did you

          2        rise for a question?

          3             COMMISSIONER BARKDULL:  I was going to ask

          4        Commissioner Zack to take the floor, but I'll yield to

          5        Commissioner Freidin.

          6             COMMISSIONER FREIDIN:  I also rise to speak in favor

          7        of this, in fact, because I was very impressed, sadly

          8        impressed, with the testimony that we heard at our public

          9        hearings uniformly.

         10             I only wanted to raise one additional point and it

         11        will be very brief and that is that this will also apply

         12        in cases where parents lose children.  Because if a parent

         13        loses a child over 25, this will apply.  You know, you

         14        could have a child who just, unfortunately, is killed on

         15        their 25th birthday and that would presently defeat the

         16        right, there would be no right to recover.  So I just

         17        wanted to make that clarification.

         18             CHAIRMAN DOUGLASS:  All right.  Commissioner

         19        Evans-Jones.

         20             COMMISSIONER EVANS-JONES:  I have a question please

         21        of Commissioner Zack.  Commissioner Zack, does this simply

         22        apply to the wrongful act or does it apply to everything

         23        like Supreme Court judges?  Do they now have to retire at

         24        a certain age?

         25             COMMISSIONER ZACK:  The reason has nothing to do with


          1        retirement whatsoever.

          2             COMMISSIONER EVANS-JONES:  That's what I wanted to

          3        clarify.

          4             CHAIRMAN DOUGLASS:  The substance of your amendment

          5        is that you have moved it over to the access to the courts

          6        section.

          7             COMMISSIONER ZACK:  That's right.  It's now in

          8        Section 21.

          9             CHAIRMAN DOUGLASS:  Correct.  Commissioner Barkdull.

         10             COMMISSIONER BARKDULL:  Commissioner Zack, at the

         11        present time the 25 and the wrongful death cause of action

         12        is a creature of the Legislature; isn't it?

         13             COMMISSIONER ZACK:  That is correct.

         14             COMMISSIONER BARKDULL:  The whole wrongful death

         15        action is a creature of the Legislature.

         16             COMMISSIONER ZACK:  That's also correct.

         17             COMMISSIONER BARKDULL:  So you're moving a cause of

         18        action into the Constitution.

         19             COMMISSIONER ZACK:  That is one of the ways of

         20        looking at it.  I don't look at it quite that way.  I look

         21        at it as not a cause of action but providing the same

         22        rights for, as I said, my son and daughter.

         23             COMMISSIONER BARKDULL:  I understand, but if the

         24        Legislature had made the age 21 then there wouldn't be any

         25        difference.


          1             COMMISSIONER ZACK:  I still would put it in the

          2        Constitution because the Legislature can change their mind

          3        tomorrow.

          4             COMMISSIONER BARKDULL:  I understand that.  But what

          5        I'm trying to get to is this is a right that was created

          6        by statute.  And now we want to enlarge -- we want to set

          7        it in concrete for 20 years in the Constitution.

          8             COMMISSIONER ZACK:  I want to set it for longer than

          9        20 years.  I don't believe there is any reason to

         10        differentiate between somebody 25 and 24.

         11             COMMISSIONER BARKDULL:  Twenty-five and 24 is a

         12        statutory number that was put in there.  They can change

         13        it to 21, they can change it to 30 or they can change it

         14        to 50.

         15             COMMISSIONER ZACK:  Not once it's in the

         16        Constitution.

         17             COMMISSIONER BARKDULL:  I understand what you are

         18        trying to do, but you're really trying to take what's a

         19        statutory cause of action and put it in the Constitution.

         20             COMMISSIONER ZACK:  I don't agree with that

         21        characterization of it.

         22             COMMISSIONER BARKDULL:  Well the cause of action is

         23        created by statute; isn't it?

         24             COMMISSIONER ZACK:  We have already said so.

         25             CHAIRMAN DOUGLASS:  Commissioner Zack, to clear up


          1        the confusion, you're saying the Legislature could repeal

          2        the whole thing because you say in any action for personal

          3        injury or wrongful death if they repeal the entire

          4        wrongful death statute then --

          5             COMMISSIONER ZACK:  Of course if it applies to

          6        everybody and all the citizens in the state of Florida,

          7        they can take away every right.  They can take it away for

          8        everybody.  I don't think the citizens of the state of

          9        Florida will allow that to occur.

         10             CHAIRMAN DOUGLASS:  My point is you're not trying to

         11        write the statute, you're just saying if there is one that

         12        you're not going to discriminate on age.

         13             COMMISSIONER ZACK:  I agree, Mr. Chairman.

         14             CHAIRMAN DOUGLASS:  Commissioner Riley.

         15             COMMISSIONER RILEY:  I have a question for

         16        Commissioner Zack and a comment on Commissioner Barkdull's

         17        comment that this is a right in statute.

         18             I would say it's a wrong in statute that's trying to

         19        be righted by this.  So getting back then to that and

         20        reading the first part of Section 21, as it is currently

         21        in the Constitution, how then could statute put into --

         22        how could the Legislature put into statute something that

         23        limits redress based upon age, as it has, given the first

         24        sentence as I read it?

         25             Do you understand my question?  I mean, how is


          1        that -- how is that correct what the Legislature did, the

          2        limits because of age that they put on --

          3             COMMISSIONER ZACK:  Section 21 has been reviewed many

          4        times by the courts and it happens to be one of the most

          5        fundamental rights, as I look at it, that we have in our

          6        Declaration of Rights.  But it has been determined

          7        previously that what the Legislature did in this regard,

          8        as I understand it, is constitutional.  And unless we make

          9        this change, it will not occur otherwise.

         10             COMMISSIONER RILEY:  I guess that's my question.

         11        What it says is that the court shall be open to every

         12        person for redress of any injury.  It doesn't say anything

         13        about the age of 25.  So how can that be right if it's

         14        already in here?  Maybe I should be asking Commissioner

         15        Kogan this.

         16             COMMISSIONER ZACK:  I always will defer to our Chief

         17        Justice in responding to any legal question, if he wants

         18        to.

         19             CHAIRMAN DOUGLASS:  It's a simple answer.  The court

         20        held it was constitutional for the Legislature to create

         21        the cause of action in any manner they saw fit.  And they

         22        didn't take the issue to deny equal access to the courts.

         23        So what he's trying to do is put it in the Constitution as

         24        if you have it, then the court has to recognize this.  I

         25        think that's what he's doing.


          1             COMMISSIONER ZACK:  That is correct.

          2             CHAIRMAN DOUGLASS:  Commissioner Thompson.

          3             COMISSIONER THOMPSON:  I just wanted to ask a

          4        question or two seriously for information that might help

          5        us all.  And I'm sincere in asking these.  I'm going to

          6        vote against this, but I'm not asking these to be

          7        unfriendly.  I just want to try to understand it.

          8             The way I understand it, this whole cause of action

          9        for wrongful death for people who are not dependent on

         10        someone had to be created by the Legislature because it

         11        was not a common law right nor is it a right under our

         12        Constitution, obviously; is that correct?

         13             COMMISSIONER ZACK:  You know, I cannot tell you for

         14        sure.  It sounds basically -- I don't know if it was a

         15        common law right or not.  And I have not reviewed it from

         16        that point.  And Mr. Connor may be aware.

         17             COMMISSIONER CONNOR:  There was no common law right

         18        to wrongful death.  Wrongful death actions were purely

         19        creatures of statute.

         20             COMMISSIONER ZACK:  The wrongful death statute

         21        itself?

         22             COMISSIONER THOMPSON:  Pardon me?

         23             COMMISSIONER ZACK:  Are you referring to the wrongful

         24        death statute itself?

         25             COMISSIONER THOMPSON:  Yeah, that's what you're


          1        addressing this to, aren't you?

          2             COMMISSIONER ZACK:  Well, you know, going back to I

          3        guess Torts 101, my professor used to talk about how the

          4        acts on the train that we have today goes back to England

          5        many, many years ago.  That as long as the person died in

          6        an accident, there was no problem, but if they became

          7        injured or maimed, there was.  So they just made sure that

          8        nobody survived those accidents.  This is a legislative

          9        way of making sure nobody survives those accidents.

         10             COMISSIONER THOMPSON:  Well I guess what you're

         11        saying is Commissioner Connor is right, that it's a

         12        creature of the Legislature, the wrongful death act.

         13             COMMISSIONER ZACK:  It is.  I didn't understand that

         14        that was your question, that you were limiting it to

         15        wrongful death.

         16             COMISSIONER THOMPSON:  And the logic for sometimes

         17        children in particular and other people who are not

         18        dependent on the person who has died for support is really

         19        the crux of the problem you're trying to address here.

         20             COMMISSIONER ZACK:  That is, correct.  It's the

         21        emotional loss, the pain and suffering that exists.

         22             And again, I thought the interesting statement by

         23        Commissioner Connor about a birthday, actually my son

         24        turned 25 about a week ago.  So one week before he had all

         25        those rights.  It just doesn't make any sense to take that


          1        away based on one week.

          2             CHAIRMAN DOUGLASS:  Commissioner Morsani.

          3             COMMISSIONER MORSANI:  Before I can vote I have to

          4        ask my colleague and expert and advisor, Commissioner

          5        Thompson.

          6             CHAIRMAN DOUGLASS:  His fees are very large in this

          7        area.  I understand he's working very hard in this area.

          8             (Laughter.)

          9             COMMISSIONER MORSANI:  He has told me not to vote

         10        until I talk to him, so here I am.

         11             Tell me why -- I heard this and I don't know -- why

         12        did the Legislature address this and why is it a

         13        legislative statute?  What is the reasons for the

         14        Legislature taking this action and if -- and why didn't

         15        they undo this action if it's not just?

         16             COMISSIONER THOMPSON:  I don't know a full answer to

         17        that, just like I don't guess any of us know a full answer

         18        to anything.  Let me give you my best shot and I'm

         19        certainly subject to being corrected and augmented by

         20        others that are more informed than I am.

         21             But as Commissioner Connor said, the right to a

         22        wrongful death action was not something that people had at

         23        common law.  And particularly some of the elements of

         24        that, if you weren't dependent on somebody, then you

         25        couldn't get money that you weren't going to get if they


          1        were alive.  And so the other thing you couldn't get is

          2        being compensated in some way for the speculative damages

          3        of how you felt about it, which is pain and suffering.

          4             So the Legislature over a period of time did go ahead

          5        and enact a wrongful death statute that allows, in certain

          6        circumstances, people who are not dependent, and

          7        otherwise, to collect through a wrongful death action.

          8        They made certain exceptions for age and so forth.  In

          9        other words, if you were 50 years old and your parent was

         10        70 years old and you weren't dependent, they might have

         11        been dependent on you at that stage in your life, then

         12        they made certain exceptions.  And I'm not at all positive

         13        what the exceptions are today.

         14             But all legislation, as we all realize, is a product

         15        of compromise, just about what we're doing here.  He filed

         16        this proposal in one form, got concerned about the

         17        far-reaching impacts of that, and decided to change his

         18        form until he got something that he thought would be

         19        palatable to us.  And that's certainly the way the

         20        legislative process works.

         21             This is a rifle shot, as he says, at trying to get to

         22        a specific statute that the Legislature, as Commissioner

         23        Barkdull has pointed out, can change up and down and in

         24        and out and in fact was not a common law right.  So the

         25        Legislature has exercised its discretion in that area.  We


          1        certainly have a right to exercise our discretion in that

          2        area also if we think that's right and we think we

          3        understand the implications of this.

          4             CHAIRMAN DOUGLASS:  Commissioner Connor.

          5             COMMISSIONER CONNOR:  Mr. Chairman, I'd like, if I

          6        might, to respond further to that question.

          7             Commissioner Morsani, I think Commissioner Scott can

          8        attest to this, that the very issue that came to us in the

          9        context of medical malpractice cases and people who are

         10        over age 25 couldn't make a recovery for mental pain and

         11        suffering and the like, really came as a result of a

         12        compromise that was reached in large measure, as I

         13        understand it, probably between Senator Scott and Senator

         14        Myers.

         15             Senator Myers being a physician and the FMA being a

         16        very powerful and influential lobby within the

         17        Legislature, they had enough clout to get it through,

         18        plain and simple.

         19             Now what is typically recoverable on behalf of a

         20        child under the wrongful death act is the following:

         21        First of all, loss of support and services.  Those are the

         22        economic losses.  Then in addition to that, a child may

         23        recover for mental anguish associated with a parent's

         24        loss, together with what's called the loss of parental

         25        guidance, companionship and instruction.


          1             And what this amendment to the Constitution will do,

          2        would say that when the Legislature recognizes within its

          3        inherent authority that certain elements of damages are to

          4        be recoverable, the Legislature may not restrict the

          5        elements of damage differently based on age.  But take

          6        into account, if you will, sir, that the jury may take

          7        into account the distinctions of age in arriving at its

          8        award.

          9             For example, one would scarcely expect that a

         10        26-year-old child who is out of the home, who has a job

         11        and is not dependent at all upon their parent for support

         12        whom they lost in the accident would be awarded by the

         13        jury consideration for loss of support and services.  But

         14        they could recover for mental pain and suffering, which

         15        they cannot now do, in proportion to what the jury felt

         16        was factually justified.

         17             So what this does, it retains to the jury the ability

         18        to make distinctions based on the evidence.  But it just

         19        simply says in terms of a right itself, the Legislature

         20        may not discriminate on the basis of age.  I have, in my

         21        experience, I have tremendous confidence in juries and

         22        know that juries are very capable of making those kinds of

         23        rationally-based distinctions based on the law that the

         24        court instructs them to take into account and based on the

         25        evidence that's before it.


          1             But this does, in effect, level the playing field in

          2        a very real sense.  And rather than eliminating rights,

          3        which the Legislature historically has had the power to

          4        do, based on special interest legislation or whatever, it

          5        just says, hey, we're not going to allow discrimination on

          6        the basis of age, but the jury clearly can make

          7        distinctions on the basis of age based on the evidence

          8        before it.

          9             CHAIRMAN DOUGLASS:  Commissioner Smith.

         10             COMMISSIONER SMITH:  Thank you, Mr. Chairman.  I have

         11        a very brief example of a real-life situation I just

         12        handled, Commissioner Morsani, that might amplify just how

         13        you know justice is.  And although Commissioner Barkdull

         14        is right, that the Legislature does -- this is a creature

         15        of statute, one, and two, they have the right to determine

         16        whether it should be 21 years of age, 25.  Wherever you

         17        stop, somebody is going to say it's arbitrary.  If they

         18        set it at 29 and you are 30, they are going to think it's

         19        arbitrary.

         20             I just handled a case where my 27-year-old male

         21        client was waiting for his mother and father at the altar

         22        to get married.  His mother and father were killed on the

         23        way to the wedding of their 27-year-old son.  It was so

         24        devastating; the only thing in the car recognizable was

         25        the wedding present, and it didn't have a scratch on it.


          1        Nothing else you could identify as a particular item,

          2        ashtray, you couldn't tell that it was.

          3             Twenty-seven was able to recover for what

          4        Commissioner Thompson described as speculative damages,

          5        but what I would describe as the pain and suffering of

          6        losing both of his parents as he stood at the altar

          7        waiting for them so that the wedding could start and all

          8        of the other loss that comes with losing a parent.

          9             Now, if they had been killed as a result of wrongful

         10        death, he gets nothing.  What this is trying to do is say

         11        to the Legislature, Yes, you have the authority because it

         12        is a creature of statute to set the guidelines with regard

         13        to this.  But whatever it is, we are not going to

         14        discriminate against age.  We are not going to allow you

         15        to discriminate against age.  So, that's the purpose we

         16        are trying to -- what we talked about yesterday in

         17        leveling the playing field, the issue of ports or

         18        seaports, owned by a city or county, just level the

         19        playing field.  That's what we are trying to do here.

         20             I hope that example showed you why people out in the

         21        community wherever we went were so passionate about this

         22        because it's inherently unfair.  I understand the purist

         23        standpoint that certain things should be left to the

         24        Legislature, but the only way that we can make these

         25        things fair, in my judgment, to right a wrong is to enact


          1        this constitutional provision.  Thank you.

          2             CHAIRMAN DOUGLASS:  Commissioner Sundberg.

          3             COMMISSIONER SUNDBERG:  Commissioner Zack for a

          4        question, please.

          5             CHAIRMAN DOUGLASS:  He yields.

          6             COMMISSIONER SUNDBERG:  Commissioner Zack, is it your

          7        considered legal opinion and the intent of this proposal

          8        that it would not deprive the Legislature from, in its

          9        next sessions coming up, eliminating actions for wrongful

         10        death or survival all together, is that correct?

         11             COMMISSIONER ZACK:  I've already indicated that, as

         12        long as they do it uniformly and it applies to everyone in

         13        the State of Florida, they can do what they choose to do.

         14             COMMISSIONER SUNDBERG:  And this measure simply says,

         15        If there's to be a cause of action for wrongful death or

         16        other action of personal injury, that the Legislature

         17        would be limited in its ability to build-in any sort of

         18        convictions that relate to age that discriminate against

         19        anyone on the basis of age; Is that accurate?

         20             COMMISSIONER ZACK:  That is absolutely accurate.

         21             COMMISSIONER SUNDBERG:  Thank you.

         22             CHAIRMAN DOUGLASS:  Commissioner Scott.

         23             COMMISSIONER SCOTT:  Mr. Chairman, Commissioners, I

         24        was in the forefront of passing this wrongful death

         25        statute in the year after Dempsey Barron left the


          1        Legislature.  I never succeeded before that.  But I have

          2        advocated this issue in the Legislature.  Having said

          3        that, however, I do not think that we should put this in

          4        the Constitution.  It is another example of something

          5        where there may be, not that there should be, but there

          6        may be at least an argument someone could make at a

          7        certain age that, you know, that this right terminates.

          8        It is true that the Legislature could do, could do --

          9        repeal it uniformly and so forth.  But to go in and pick

         10        one phase of it, I don't think, is something that we

         11        should do here.

         12             Now, I had -- last session, as recently as last

         13        session, I mean, I spoke extensively on this, and

         14        committee, about the medical malpractice issue, why should

         15        there be a difference between what could be recovered and

         16        whatever by an adult child regarding a medical malpractice

         17        action.  But I'm not positive, but I'm probably going to

         18        vote against this because I think it should be left to the

         19        Legislature, like every other right, including the basic

         20        right of even having a wrongful death action.

         21             (Commissioner Jennings assumes the Chair.)

         22             COMMISSIONER JENNINGS:  Further, Chairman Douglass.

         23             CHAIRMAN DOUGLASS:  I just wanted to add this.  It

         24        will be very short.  Those of you that were at our public

         25        hearings, this has been mentioned, but this is an issue of


          1        fairness, that's all it is.  And it's proper that

          2        discrimination be rooted out everywhere that it exists.

          3        It's proper that it be in the Constitution when this has

          4        occurred over a period of time.  It didn't used to be this

          5        way.  What happened was, we got an older population, and

          6        when I get killed, it was the will of those who influenced

          7        legislation to reduce it so that my children couldn't

          8        recover from my death.

          9             That's not only true, it could be the Nursing Home

         10        Relief Act, it could be any number of things that you

         11        could call it.  And we have heard that, and we heard the

         12        great impact that it made on these people, that they were

         13        denied access to the courts.  And that's what this has

         14        done, Commissioner Zack's amendment has done, it has

         15        guaranteed access to the courts if there's a wrongful

         16        death action.

         17             Now, the powerful interests in this state that don't

         18        want people to recover for the wrongful death at all

         19        cannot repeal this statute, but they were successful in

         20        getting this wonderful compromise, and they have kept it

         21        for years, and they kept people like those we heard at our

         22        public hearings.

         23             Now, if you are for fairness and if you are for equal

         24        access to the court by everyone in the state, then you

         25        should support this because it doesn't -- to those of you


          1        that aren't lawyers, this argument about, well, the

          2        Legislature can do this, the Legislature can do that, that

          3        does not apply in a case like this because all you are

          4        saying is, If you have this cause of action, it will be

          5        fair and it will result in people not being discriminated

          6        against because of their age or even because of the age of

          7        their parents.

          8             We have an aging population, they know what I'm

          9        talking about, and I think and I urge you to support

         10        Commissioner Zack's proposal.

         11             COMMISSIONER JENNINGS:  Further on the amendment?

         12        Commissioner Morsani.

         13             COMMISSIONER MORSANI:  I guess -- I've heard the

         14        argument and I certainly was impressed with the difficulty

         15        that people had.  However, I'm not swayed by the rhetoric

         16        to put this in the Constitution.  I apologize to some of

         17        you ladies and gentlemen who work before the Bar and in

         18        these type of situations; however, I think that you -- we

         19        are honestly opening the door to additional litigation.

         20        But that's not the issue.

         21             I happen to think that we talk about the generation

         22        of instant gratification, what the underlying thing here

         23        is, we want gratification because of something that

         24        happened to a loved one.  I don't happen to think that's

         25        right, it's very unfortunate.  It's like war.  Mr. Smith


          1        talks about Vietnam.  Some of us can talk about other

          2        wars.  And that's true.  And no one wants to see people

          3        killed; it is a messy thing, and it hurts and people do

          4        make mistakes.

          5             What we are saying, what we are trying to do here is

          6        put mistakes, like an accident, they are accidents, people

          7        don't run into each other because they want to, they are

          8        accidents.  And also I think this is directed, basically,

          9        at hospitals; there's no question about that.  And I have

         10        come down on both sides.

         11             I think hospitals should be made to do the right

         12        thing, that they need to take all precautions.  I've been

         13        chairman of hospital boards, I know the problem, and that

         14        requires continued, continued scrutiny and inspection of

         15        the policies and procedures in those entities.

         16             But I am going to vote against this proposal because

         17        I really don't think it's being presented for all the

         18        right reasons, and I would urge you to vote against it.

         19             CHAIRMAN DOUGLASS:  Would he yield for a question?

         20             COMMISSIONER JENNINGS:  I'm sure he does.

         21             COMMISSIONER MORSANI:  Sometimes I say no.

         22             CHAIRMAN DOUGLASS:  As I understand your argument,

         23        and I think I understand it, and it's one that I've heard

         24        before, and it's one that's compelling to a lot of people,

         25        you would abolish the entire cause of action for death; is


          1        that correct?

          2             COMMISSIONER MORSANI:  No, that's not what I said,

          3        sir.

          4             CHAIRMAN DOUGLASS:  Well, you don't support a

          5        distinction between older people and younger people, I

          6        know, we have discussed that.  So, you are not doing away

          7        with the whole cause of action, just the part of it that

          8        applies to people that happen to be over 25.

          9             COMMISSIONER MORSANI:  Well, you could construe it

         10        that way.  That's not what I really mean, but that's all

         11        right.  You can come to that conclusion.

         12             CHAIRMAN DOUGLASS:  I came to the conclusion from

         13        your statement that you really didn't think this wrongful

         14        death cause of action was a very good cause of action

         15        anyway; is that right?

         16             COMMISSIONER MORSANI:  That's right.

         17             COMMISSIONER JENNINGS:  Further on the amendment?

         18        Commissioner Lowndes.

         19             COMMISSIONER LOWNDES:  Yes, as much as I hate to

         20        disagree with my great friend, Commissioner Morsani, the

         21        thing that occurred to me during the public hearing, my

         22        first impression of this, and we have heard it so many

         23        times was, that it was simply an economic issue and that

         24        people were chagrined over the fact that they couldn't

         25        recover or profit from the death of a loved one.  But the


          1        more important thing that came through to me was the

          2        concern that I had that people could, physicians and

          3        hospitals, could kind of deal with people's impunity

          4        because they didn't have any relatives of a certain age.

          5        My sense is that the removal of the age provision in the

          6        wrongful death act will have the effect of causing

          7        hospitals and doctors to deal much more carefully with

          8        people.  And you will, in the long run, it's not so much

          9        allowing people to recover, but it is to cause people to

         10        pay attention to what they are doing, realizing that they

         11        are going to be responsible for their acts.  Thank you.

         12             COMMISSIONER JENNINGS:  On the amendment.

         13        Commissioner Zack to close.

         14             COMMISSIONER ZACK:  We have got a very long agenda,

         15        so I'm going to be very brief.  We have been talking about

         16        taking away people's rights, a lot of discussion, we have

         17        had a lot of discussion that what we do should not be

         18        perceived as taking away anyone's rights.  This is truly

         19        giving rights to the citizens of the State of Florida who

         20        deserve those rights.

         21             And Commissioner Thompson, Commissioner Thompson,

         22        Commissioner, I just wanted to address Commissioner

         23        Thompson for a moment before he makes his final decision

         24        on this vote, that Claude Pepper is still watching.

         25             (Laughter.)


          1             COMMISSIONER JENNINGS:  Good line.  Mr. Chairman, you

          2        are back there.  I normally take these kind of things --

          3        excuse me, Commissioner Thompson.

          4             COMMISSIONER THOMPSON:  I have a question for

          5        Commissioner Zack.

          6             COMMISSIONER JENNINGS:  Though he's closed, we are

          7        sort of loose with the rules.

          8             COMMISSIONER THOMPSON:  Can I help you with that, my

          9        friends, Commissioner Zack, it's come to my attention that

         10        you are trying to read the insurance coverage from New

         11        York City to California on this matter.  (Impersonation.)

         12             (Laughter.)

         13             COMMISSIONER THOMPSON:  In the words of Hugh Taylor,

         14        they will pack up their money and go home if you don't be

         15        careful.

         16             (Impersonation.)

         17             COMMISSIONER THOMPSON:  Judge Taylor used to tell us

         18        that when we got a little too anxious on the Plaintiff's

         19        sides.  I do want one question answered by you or

         20        Commissioner Connor or Commissioner Freidin, or anybody

         21        who knows more than I do, which is all of you.

         22             COMMISSIONER ZACK:  (Inaudible impersonation.)

         23             COMMISSIONER THOMPSON:  I'll tell you what, you need

         24        to practice around the supper table a little bit more.

         25             COMMISSIONER ZACK:  That's South Miami Beach.


          1             COMMISSIONER THOMPSON:  Oh.  Does this proposed

          2        change relate only to medical malpractice claims or not?

          3        I'm getting differing opinions from differing experts.

          4             COMMISSIONER ZACK:  It does not.  It's universal and

          5        it's intended to be universal.  It's to give everyone the

          6        same rights, whether they are young or old in this state.

          7             COMMISSIONER THOMPSON:  I know the battle in the

          8        Legislature is always over medical malpractice, and in

          9        reading it, it looks like it refers back to the damages

         10        recoverable for a minor, and a minor then is defined over

         11        on the definition side as someone under 25 years of age,

         12        but I'm going to take your advice on that and vote against

         13        it.

         14             COMMISSIONER JENNINGS:  Okay.  Shall we try a voice

         15        vote?  No, okay.  You all are so picky, my Senators like

         16        voice votes.  On the motion by -- oh, is that it?  On

         17        motion by Commissioner Zack to favorably recommend the

         18        amendment.  Open the machine and record your vote.

         19             (Vote taken and recorded electronically.)

         20             COMMISSIONER JENNINGS:  Lock the machine and announce

         21        the vote.

         22             READING CLERK:  Twenty-one yeas, seven nays, Madam

         23        Chairman.

         24             COMMISSIONER JENNINGS:  And the amendment passes.

         25        Further amendments?


          1             READING CLERK:  None on the desk.

          2             COMMISSIONER JENNINGS:  Okay.  Then the original

          3        proposal as amended is before us.  Commissioner Zack,

          4        anything further?

          5             COMMISSIONER ZACK:  Nothing further.

          6             COMMISSIONER JENNINGS:  Okay.  I keep wanting him to

          7        read it another time, but we don't have to do that.  Then

          8        a motion by Commissioner Zack to favorably recommend the

          9        proposal.  Open the machine and cast your vote.

         10             (Vote taken and recorded electronically.)

         11             COMMISSIONER JENNINGS:  Lock the machine and announce

         12        the vote.

         13             READING CLERK:  Nineteen yeas, seven nays, Madam

         14        Chairman.

         15             COMMISSIONER JENNINGS:  And the proposal is

         16        recommended.  Mr. Chairman, you didn't tell me what was

         17        next.  I thought it was Commissioner Anthony's sovereign

         18        immunity.  Okay, you wanted to do that?  Do you want to

         19        come back up here to do it?  He's gotten as bad as the

         20        rest of us, he's leaving too.  That's all right, sir, you

         21        are excused.

         22             (Laughter.)

         23             COMMISSIONER JENNINGS:  We are not going to tell

         24        them.  Proposal 59, pending.  Okay, let's get us in the

         25        right posture.  We are on Proposal 59, which was in one of


          1        those books, I saw it.  The pink book, the pink book.  And

          2        there is a substitute amendment pending, but for our

          3        edification this was the substitute amendment by

          4        Commissioner Lowndes that we had the discussion yesterday,

          5        as I remember.

          6             Commissioner Lowndes, would you like to refresh our

          7        memory about the substitute amendment?

          8             COMMISSIONER LOWNDES:  I believe that there --

          9             COMMISSIONER BARKDULL:  Madam Chairman.

         10             COMMISSIONER JENNINGS:  Commissioner Barkdull.

         11             COMMISSIONER BARKDULL:  Can I interrupt you?  Could

         12        we have the substitute read in its entirety because the

         13        last sentence I'm concerned about, among other things.

         14             COMMISSIONER JENNINGS:  That's why I wanted

         15        Commissioner Lowndes to tell us about it.  Okay, let's

         16        read the substitute again.

         17             READING CLERK:  Substitute amendment by Commissioners

         18        Lowndes, Zack, Morsani and Hawkes, on Page 1, Lines 11

         19        through 28, strike all of said lines and insert, Section

         20        1, Section 13 of Article X of the Florida Constitution, as

         21        revised by amending that section to read, Article X,

         22        Section 13, suits against the state provision may be made

         23        by general law, for bringing suit against the state as

         24        political subdivisions, agencies, districts and

         25        municipalities.  As to all liabilities now existing or


          1        hereafter originating, provided in such a suit a person

          2        may recover damages up to a maximum amount of $200,000

          3        plus costs, other attorney fees occurred in the suit,

          4        unless amount is increased by general law.  In any event,

          5        the maximum amount of damages shall be increased each year

          6        by the same percentage, as a percentage increase in the

          7        consumer price index or any successor index published by

          8        the federal government.

          9             COMMISSIONER JENNINGS:  Okay.  That was the

         10        substitute amendment read in full.  Commissioner Lowndes.

         11             COMMISSIONER LOWNDES:  Yes, I think there was an

         12        amendment to the amendment which we were discussing

         13        yesterday which was either withdrawn with the idea that a

         14        second amendment or a substitute amendment was going to be

         15        proposed.  The amendment that we were talking about to the

         16        amendment yesterday was the mechanism to, in tort claims,

         17        to have a solution for those in excess of the caps other

         18        than a claims bill by somehow structuring something

         19        similar to the Federal Torts Claim Act.

         20             And I think that that -- I don't know what happened

         21        to my good friend Commissioner Zack, but I think that

         22        there is an amendment pending.

         23             COMMISSIONER JENNINGS:  Well, that is a substitute

         24        amendment.  Have we got an amendment to the substitute?

         25        Oh, the Secretary has it in her hands.


          1             COMMISSIONER ZACK:  That is the arbitration?

          2             COMMISSIONER JENNINGS:  Madam Secretary, is that what

          3        you are passing out, or is that what you are --

          4             COMMISSIONER ZACK:  I think they have handed out an

          5        earlier version and there's been a later version.  We have

          6        just got to make -- there's been about 22 versions of

          7        this.

          8             COMMISSIONER JENNINGS:  I was going to say.

          9             COMMISSIONER ZACK:  So I just want to make sure it is

         10        the correct one.

         11             COMMISSIONER JENNINGS:  Okay.  Do we have an

         12        amendment to the substitute?  Okay, that's what you meant,

         13        you had our copy of it?

         14             (Off-the-record discussion.)

         15             COMMISSIONER JENNINGS:  Okay, let's read the

         16        amendment to the substitute.

         17             READING CLERK:  Amendment to the substitute amendment

         18        by Commissioners Langley, Morsani, Lowndes and Zack.  On

         19        Page 1, Line 14, after the period, insert, There shall be

         20        a waiver for sovereign immunity for excess tort claims,

         21        when any tort claim is filed against the state or any

         22        political subdivision agency, district or municipality

         23        which exceeds a limited waiver of sovereign immunity

         24        established by general law, it shall be submitted by the

         25        court in which it is filed in lieu of trial to a


          1        three-person arbitration panel that shall by majority vote

          2        render a decision on the claim.  The rules that govern the

          3        proceedings of the arbitration panel and any appeal taken

          4        therefrom shall be determined by the State Supreme Court.

          5             COMMISSIONER JENNINGS:  Okay.  Everybody got the

          6        right copy of the amendment to the substitute?

          7             COMMISSIONER ZACK:  Yes.

          8             COMMISSIONER JENNINGS:  Okay.  And the amendment to

          9        the substitute?

         10             COMMISSIONER ANTHONY:  Question.

         11             COMMISSIONER JENNINGS:  Commissioner Anthony.  Who is

         12        the sponsor of the amendment to the substitute?

         13             COMMISSIONER ANTHONY:  Commissioner Morsani, or

         14        Lowndes, or Zack.  Would you yield for a question?

         15             COMMISSIONER JENNINGS:  Ask the question and then

         16        we'll find out who wants to answer it.

         17             COMMISSIONER ANTHONY:  Let me make sure I'm clear, in

         18        fact what this amendment does is take away sovereign

         19        immunity for governmental entities and place it for

         20        resolution in the court system or through an arbitrational

         21        panel; is that correct, Commissioner Lowndes?

         22             COMMISSIONER LOWNDES:  I think that is a little bit

         23        of a broad statement.  It really deals only with tort

         24        claims, number one.  And number two, it deals with those

         25        tort claims in excess of the cap.  And rather than having


          1        those tort claims in excess of the cap be subject to claim

          2        bills, it provides for a judicial way of resolving it.

          3             COMMISSIONER ANTHONY:  Commissioner, further

          4        questions?

          5             COMMISSIONER JENNINGS:  You are recognized,

          6        Commissioner Anthony.  Of who, Commissioner Morsani,

          7        Commissioner Lowndes?

          8             COMMISSIONER ANTHONY:  Lowndes.

          9             COMMISSIONER JENNINGS:  Okay, Commissioner Lowndes.

         10             COMMISSIONER ANTHONY:  Is this another court system

         11        being put in place, and what is the cost of such a process

         12        being put in place?

         13             COMMISSIONER LOWNDES:  Well, to answer those

         14        questions in reverse order, I don't know what the cost is.

         15        But I don't think it's another court system.  What it

         16        provides for presumably is, number one, the rules to be

         17        promulgated by the Supreme Court.  But it provides for an

         18        arbitration proceeding with arbitrators appointed by

         19        circuit court judges.

         20             COMMISSIONER ANTHONY:  So, you are proposing -- and

         21        further questions, ma'am?

         22             COMMISSIONER JENNINGS:  Yes.  But Commissioner

         23        Anthony, I understand that on your desk is the wrong

         24        version.  So, we can take all of our versions of

         25        amendments to Proposal 59 and just hold them for a minute.


          1        They are bringing the corrected version now.

          2             COMMISSIONER ZACK:  I understand that Mr. Anthony's

          3        question was directed to any of the proposers.

          4             COMMISSIONER JENNINGS:  Are you answering the

          5        previous question, or the one he was about to ask?

          6             COMMISSIONER ZACK:  The previous one, where

          7        Commissioner Lowndes said he wasn't sure of the cost and

          8        so forth.  The fact of the matter is that this is no new

          9        court system.  I think I would be opposed to any new court

         10        system.  I have voted against any new court system in

         11        prior votes.

         12             All this does is allow the circuit judge in which the

         13        case is filed to appoint a three-person arbitration panel

         14        which will award a judgment, if in fact that's

         15        appropriate.

         16             And, no, I don't think this is just, should be viewed

         17        just as a waiver of sovereign immunity.  I look at it as a

         18        better process than the claims bill process that has been

         19        previously described in this chamber as a disaster.  And I

         20        would address that particular aspect of it, Commissioner

         21        Anthony, and it reminds me very much of the response of

         22        Taltran (phonetic) to the question about the courts of

         23        justice.  And he said, Yes, the courts of justice are

         24        opened to all people, just like the Ritz Hotel.  And those

         25        people that can afford justice as described to us


          1        previously in this chamber, who can afford the best

          2        lobbyists and can afford to make the political

          3        contributions necessary and go through the claims bill

          4        process that has been admitted to be one that is not fair,

          5        that does not give equal justice, that is capricious, that

          6        on a year-to-year basis, depending on the winds, that the

          7        Legislature can change.

          8             But this is to bring reason and fairness to a process

          9        that has been stipulated as being unfair to those who have

         10        gone through it.  So, no, I don't believe that you have

         11        properly described it.

         12             COMMISSIONER JENNINGS:  Commissioner Scott.

         13             COMMISSIONER SCOTT:  Thank you.  I have a question

         14        for Commissioner Lowndes.

         15             COMMISSIONER JENNINGS:  We'll ask Commissioner

         16        Lowndes to yield the floor, take the floor and yield for a

         17        question.

         18             COMMISSIONER SCOTT:  Commissioner, I don't know what

         19        version is what, but from what you just described and the

         20        one version that I have, this would mean that you would be

         21        taking away the right to trial by jury in tort claims

         22        against the state?

         23             COMMISSIONER LOWNDES:  No.  As I understand how this

         24        would work, and Commissioner Zack could correct me, if you

         25        were injured by the state you would have two choices.  You


          1        have got to read this in context with the committee

          2        proposal, but you have two choices.  One choice is to go

          3        into court and have a jury trial.  And if you did that,

          4        you would be subject to the caps which the Legislature has

          5        set and which are adjusted by the main part of this

          6        amendment.  Your other choice would be to say, is to say

          7        to the court, I think my claim is better than the amount

          8        of the caps or larger than the amount of the caps and I

          9        would like to have it determined by a panel of

         10        arbitrators.

         11             And if you took the second route, you would give up

         12        the right to a jury trial, you would subject yourself to a

         13        panel of arbitrators who then would determine the amount.

         14        And I think that that's about as best as I could explain

         15        it.

         16             COMMISSIONER SCOTT:  Okay.  Further question, Madam

         17        Chair.  What about the city or whoever is being sued, do

         18        they have -- they have the right to a trial by jury.  You

         19        would be depriving them of that right, then?

         20             COMMISSIONER LOWNDES:  Yes.

         21             COMMISSIONER SCOTT:  Thank you.

         22             (Chairman Douglass resumes the Chair.)

         23             CHAIRMAN DOUGLASS:  Commissioner Morsani.

         24             COMMISSIONER MORSANI:  Mr. Chairman, I think that all

         25        of you need to take in context, and Commissioner Lowndes


          1        alluded to it.  You have got to look at the entire thing,

          2        and I think we are missing that.  And that is the -- this

          3        is the amendment to the amendment.  Which the amendment to

          4        the amendment -- no, the amendment has not been delineated

          5        and articulated as yet, so you can't take this in

          6        isolation.

          7             This portion, as Commissioner Zack said, and

          8        Commissioner Lowndes, is only addressing or attempting to

          9        address the claims bill process and replace the claims

         10        bill process with this process.

         11             This is not -- so, this amendment would go to the

         12        amendment which, in effect, goes back to the current

         13        sovereign immunity as far as caps.  So, you can't take

         14        this in isolation as the entire sovereign immunity

         15        proposal.  So, I want to make that perfectly clear, you

         16        have got to look at this as strictly, we are attempting to

         17        address the claims bill portion of the sovereign immunity

         18        problem.

         19             CHAIRMAN DOUGLASS:  Commissioner Brochin.

         20             COMMISSIONER BROCHIN:  I think this is an

         21        extraordinarily fundamental change that we are considering

         22        here.  And I actually think that we are doing it a little

         23        bit backwards because I think we first need to decide what

         24        we are going to do with sovereign immunity before we make

         25        a decision on how we are going to implement it.


          1             I think this is, essentially, Commissioner Anthony,

          2        is doing just what you think it's doing, and it's waiving

          3        sovereign immunity.

          4             COMMISSIONER ANTHONY:  It is.

          5             COMMISSIONER BROCHIN:  Now, if that's the decision

          6        that's going to be made, then we should think about how to

          7        implement it through a court system.  But sovereign

          8        immunity principles have to be based on the ability of the

          9        Legislature to make the determination of the appropriate

         10        caps and; therefore, the appropriate waiver of those caps,

         11        if indeed the principle of sovereign immunity is going to

         12        remain intact.

         13             This fundamentally changes it to the extent that we

         14        are taking that decision out of the legislative branch and

         15        putting it into the judicial branch, which in my mind

         16        could have no other effect but to lift the principle of

         17        sovereign immunity.  Not necessarily a concept that I'm

         18        against, but I just believe we ought to get to the

         19        ultimate issue first, and that is, what are we going to do

         20        with sovereign immunity, before we can figure out, once we

         21        get rid of sovereign immunity, how we are going to

         22        implement it.  Because the collateral issue is, is there a

         23        problem with the claims process in the legislative branch.

         24        I think the answer is yes.  But if sovereign immunity

         25        remains intact, then the process ought to remain in the


          1        legislative branch, it ought to be fixed in the

          2        legislative branch.  If sovereign immunity is going to be

          3        lifted, then I think it is appropriate to consider

          4        implementing it through the judicial branch.  So, it's

          5        hard to make this decision, in my view, out of that

          6        particular context.

          7             CHAIRMAN DOUGLASS:  Commissioner Nabors.

          8             COMMISSIONER NABORS:  Mr. Lowndes, let me ask you

          9        another question, my good friend, Mr. Lowndes.  I am

         10        saying a little bit about what Commissioner Brochin is

         11        saying, and it has addressed an issue which I'll talk

         12        about as we deal with sovereign immunity.  My concern is,

         13        that the current statutory waiver that we have basically

         14        waves tort claims or any action which a private individual

         15        would have, and that brings all of the issues, that there

         16        is no waiver for governmental-playing type activities.

         17        So, anything we do constitutionally, one of the things

         18        that you will hear me argue about is to make sure we don't

         19        do anything to expand and interfere with those basic

         20        concepts that what the Legislature has done, whether

         21        200,000 or unlimited, it relates to issues in which a

         22        private individual having an action recognizing the

         23        distinction for government.  So, that's somewhat why I am

         24        concerned, and I'll be looking at these for that issue.

         25        And I hope the other commissioners understand that.


          1        That's why language in this one which talks about exceeds

          2        a limited waiver of sovereign immunity, we need to make

          3        sure it doesn't encompass not only private actions above

          4        whatever the Legislature does but those other type of

          5        activities.  We need to be vigilant if we are going to

          6        deal with sovereign immunity that we don't go beyond some

          7        unintended consequence.

          8             COMMISSIONER LOWNDES:  That is a long question, but I

          9        think the answer to it is this, is that the provision in

         10        the Constitution at this point says that the Legislature

         11        by general law can determine suits against the state, and

         12        that's not changed by this.  The Legislature still has the

         13        right to determine the suits against the state.

         14             This would deal with those suits against the state

         15        that the Legislature has said is okay, which is what you

         16        are saying, it's those which a private individual would be

         17        liable for.

         18             CHAIRMAN DOUGLASS:  Commissioner Sundberg.

         19             COMMISSIONER SUNDBERG:  Respectfully, Commissioner

         20        Lowndes, and I have the same concerns that Commissioner

         21        Nabors has.  And I conclude that this is as opposed to --

         22        because what you will have if this is passed, in my

         23        judgment, is you will have a constitutional waiver of

         24        sovereign immunity to the extent expressed in this, and

         25        then you will have the ability of the Legislature to waive


          1        sovereign immunity with respect to other liabilities of

          2        the state.  And I think Commissioner Nabors' concern is a

          3        real valid concern.

          4             Currently, I submit to you that if in fact someone is

          5        injured and brings a suit against a municipality or a

          6        county asserting that they were injured because of the

          7        placement of a traffic control device at a particular

          8        intersection or the failure to locate one at that

          9        intersection, which is in fact under the current state of

         10        the law perceived to be a pure governmental planning

         11        function for which there is no waiver of sovereign

         12        immunity, that if this in the form in which it is

         13        presented passes, we'll now make available a cause of

         14        action, certainly to be arbitrated, but nonetheless, it'll

         15        create a cause of action where none exists.

         16             The person who wrote the opinion respecting the

         17        waiver of sovereign immunity said it can't be a tort to

         18        govern, and this can make it a tort to govern by making

         19        those governmental decisions.

         20             So, I suggest to you, that unless you want to

         21        significantly change the state of the law with respect to

         22        liability, not just the amount -- the recovery of damages

         23        in excess of a cap, that you are going to have to limit

         24        this back by either using the terms "operational

         25        functions" or something that makes it clear that you are


          1        not waiving -- you are not waiving sovereign immunity for

          2        those acts that, from time in memorial, not because the

          3        sovereign can do no wrong, sovereigns do wrong all of the

          4        time, but because it is a function of separation of

          5        powers, that a jury should not be put in a position of

          6        second guessing the city council when the city council

          7        determines, for whatever reasons, fiscal or otherwise,

          8        that a traffic control device is not to be placed at a

          9        particular intersection.

         10             And I suggest to you that this goes much farther --

         11        you know, talk about unintended consequences, I think this

         12        clearly could be -- because I don't think that you are

         13        trying to do that, but I think that's what the result

         14        would be.

         15             CHAIRMAN DOUGLASS:  Commissioner Anthony.

         16        Commissioner Morsani first.

         17             COMMISSIONER MORSANI:  I would like for Commissioner

         18        Zack or Commissioner Lowndes to address it.  We talked

         19        about that, Commissioner Sundberg; we discussed that,

         20        Commissioner Sundberg.  And I was told this would not

         21        affect the planning and so on and so forth.  I understand

         22        the concerns, but Commissioner Zack, would you please

         23        address that?  Because we thought that was covered in my

         24        opinion, but --

         25             COMMISSIONER ZACK:  We agree with Commissioner


          1        Sundberg.  I have addressed it.  If you want anything

          2        further, I mean, it cannot be a tort to govern; the

          3        planning functions were not intended to be dealt with in

          4        this manner.  There are a number of issues here that need

          5        to be fine-tuned, most certainly.

          6             CHAIRMAN DOUGLASS:  When we didn't have sovereign

          7        immunity at all for municipalities, governmental functions

          8        were accepted?

          9             COMMISSIONER ZACK:  Always.

         10             CHAIRMAN DOUGLASS:  So, from that standpoint,

         11        regardless of what you say, the common law was that

         12        governmental functions are accepted?

         13             COMMISSIONER SUNDBERG:  As to municipalities, that

         14        was true.  That was not true, with respect, I think,

         15        Mr. Chairman, with respect to states and counties.

         16        Municipalities were always treated differently.  They had

         17        a proprietary government.

         18             CHAIRMAN DOUGLASS:  There was no liability for

         19        counties in a state.

         20             COMMISSIONER SUNDBERG:  Absolutely.

         21             CHAIRMAN DOUGLASS:  In that two-year period, and in

         22        that two-year period, they applied the same rule in these

         23        courts as they did to municipalities.

         24             COMMISSIONER SUNDBERG:  I'm sympathetic to this, but

         25        I'm not sympathetic to rolling the whole street up, all


          1        right.

          2             COMMISSIONER ZACK:  Neither are we, that's not the

          3        intent.  I'm very impressed with the Chairman's

          4        recollection of what happened about 15 years ago,

          5        actually, on a year-to-year basis.

          6             CHAIRMAN DOUGLASS:  I'm better at that than I am what

          7        happened last week.

          8             COMMISSIONER ZACK:  For a long time this was a matter

          9        that changed annually, and the interpretation of the

         10        courts as to what became a governmental function or

         11        proprietary function or what wasn't often depending on how

         12        difficult a case they had before them.  And this was

         13        intended to bring some uniformity to it, the changes were.

         14             But we are in agreement, Commissioner Lowndes, I

         15        believe would agree, and this was discussed during the

         16        course of our deliberation, that this was not intended to

         17        change that part of the law, Mr. Chairman.

         18             CHAIRMAN DOUGLASS:  You have really been wanting to

         19        get up, and I want to recognize you.  Commissioner

         20        Anthony.

         21             COMMISSIONER ANTHONY:  Thank you.  As a matter of

         22        fact, it may not be intended, but as a matter of fact, it

         23        is, and it does change and it takes away the sovereign

         24        immunity of local governments and government entities in

         25        toto by giving it to an arbitration panel who in fact will


          1        place an unfunded mandate, and none of us really want an

          2        unfunded mandate, unlimited, runaway arbitration panel.

          3        We talk about a jury system, this would be truly, truly an

          4        unlimited.

          5             And in that regards, because Commissioner Zack has

          6        proposed this amendment to the Constitution, I want to

          7        give him on behalf of the voters, the citizens of this

          8        state, a check, a blank check that is made out to Zack in

          9        the amount of unlimited funds that he's cost to the

         10        citizens of this Florida, citizens of this state by

         11        proposing this.

         12             And what it's for, it's for the bankruptcy, the

         13        bankruptcy of local government.  And in fact, that's what

         14        indeed would happen if we continue to dwindle away with

         15        sovereign immunity or attempt to get rid of sovereign

         16        immunity.  I run a very poor community and if this

         17        proposal that Freidin is proposing passes, I want to give

         18        her a key to the city of South Bay.  You deserve a key to

         19        my city hall, because in fact, I may as well give the keys

         20        to the city -- of our city, of our city governments, all

         21        400 local governments, to the proposers of this proposal.

         22             In fact, right now, if anything occurs in terms of --

         23        and I want to go on record saying that, if anything

         24        happens by action of a local government personnel that

         25        destroys the life of an individual and their ability to


          1        make a living, I'm very sympathetic to that.  And no

          2        assumptions should be made that those officials who are

          3        employed by local government intend to cause harm to

          4        anyone.  I don't believe that.  I will not believe that.

          5             If they are carrying out their duties as employees,

          6        driving a bus and other performed duties that they have, I

          7        don't think that they intend to hurt anyone.  I will say

          8        to you that we provide services that no one else wants to

          9        provide.  We have risky business that we provide the

         10        services for all of us that are in this room.  And if we

         11        are going to continue to provide those services, we can't

         12        allow those people who want to have a blank check to have

         13        those blank checks.

         14             At every commission meeting, I balance issues related

         15        to providing local government services on the record, not

         16        in my private, corporate world, on the record, in the

         17        Sunshine.  Talk about whether or not I should pave a

         18        street, or my other priority is whether or not I should

         19        hire more police officers.

         20             We have been brought into court based upon those

         21        matters of discussion, saying that we have not carried out

         22        our responsibilities in a deliberate fashion to not harm

         23        people by lawyers, by people who are really trying to find

         24        a way to recover.  If I cannot make those decisions

         25        without the cause or the concern of being sued by people,


          1        then I'm not going to be able to make very good decisions

          2        as a local government official.

          3             It could be said that people who come before the

          4        Legislature are not providing an opportunity -- provide an

          5        opportunity to get judgments.  We are averaging right now

          6        almost a dozen claim bills per year.  In the 1980s we were

          7        averaging 26, now we are averaging 12.  And if you look at

          8        the statistics, except last year where the leadership

          9        decided that they did not want to take up any claims bills

         10        because they wanted to look at the process, they wanted to

         11        find ways to improve the process, they wanted to find ways

         12        to streamline the process.  That is being worked on.

         13             Why are we going to put something in the Constitution

         14        that the Legislature can deal with?  And Chairman Douglass

         15        talked yesterday about those strong lobbyists from local

         16        government associations.  I say to you that I'm proud to

         17        be a past president of the Florida League of Cities.  We

         18        represent the people.  We don't give campaign

         19        contributions.  So, in fact, if nothing has been changed

         20        because the people and the representatives of associations

         21        such as the counties and the cities have come before the

         22        Legislature and have not been -- have been successful in

         23        stopping these caps from being increased, that tells me

         24        something.  That tells me that big money lobbyists have

         25        not been able to impact the legislative process, not been


          1        able to change the process, and that the proud citizens of

          2        Florida, and I'm so proud that the citizen associations of

          3        Florida have had the strength to hang together and to stop

          4        these changes by, and proposed by many members of the

          5        legislative or lobbying corps of the private sector.

          6             The proposal is unnecessary, it is truly unnecessary

          7        to take away something that is legislatively directed and

          8        consistently have been used.

          9             It also to me can cause a financial impact on local

         10        governments that we can't even calculate.  It is a blank

         11        check, folks.  You may as well look at communities all

         12        around this state and say to them, You can close your

         13        doors right now.

         14             And the question is can we buy enough insurance?

         15        Yeah.  If we do buy enough insurance to cover all of the

         16        claims that may occur on local government, something else

         17        is going to suffer; police services, housing for the

         18        elderly, housing for the poor, fire protection.  It may

         19        cost us a million dollars or more to get coverage if

         20        sovereign immunity is taken away.

         21             All these proposals before you -- and I wanted to get

         22        to this and I know it may go off a little bit of the

         23        amendment that is proposed, just a little -- but I wanted

         24        to make sure that you understood that there are people who

         25        you are impacting.  There are budgets that are being


          1        impacted.  There are lives that are being impacted.  And I

          2        know there are also lives that are not being brought back

          3        in full because of this process.

          4             But I say to you, if you want to hurt local

          5        government in your communities that you live in, this is

          6        the proposal to do so.  To take away sovereign immunity on

          7        state, counties and political subdivisions, cities they

          8        are in, would clearly destroy the substance and the

          9        structure of our local governments.

         10             CHAIRMAN DOUGLASS:  Commissioner Zack, he had his

         11        hand up while he was speaking.

         12             (Off-the-record comment.)

         13             CHAIRMAN DOUGLASS:  Absolutely, you have a personal

         14        privilege.

         15             COMMISSIONER SMITH:  I'd like to join as a proponent

         16        so I can share in the blank check with Mr. Zack and not

         17        have him get all of it himself.

         18             CHAIRMAN DOUGLASS:  Commissioner Zack.

         19             COMMISSIONER ZACK:  I'm going to accept on behalf of

         20        the people of the state of Florida and the committee, and

         21        it was the committee proposal.  But I don't think this is

         22        a time for show-and-tell.  And I don't think it's very

         23        funny, frankly.

         24             And I also don't think this is a place to make jury

         25        arguments and to present props because if it was, I would


          1        have presented a videotape of a young man who is a

          2        quadriplegic who had a city who had rebar on its beach.

          3        Rebar is metal sticking up out of the sand.

          4             And that city knew about it.  As a matter of fact,

          5        they got letters from people who walked along the beach

          6        every single day.  And they wrote letters to the

          7        commission.  And the commission was told that if you don't

          8        get rid of this rebar somebody is going to get hurt,

          9        somebody may die, somebody may become paralyzed.

         10             And this young man, not knowing the rebar was there

         11        because it was high tide, ran into the water, struck his

         12        head on that rebar, and became a quadriplegic.  He was

         13        about 18-years-old.  And I would have a videotape here,

         14        Mr. Anthony, to show you and I would ask you to present

         15        him with that check because he needs that check.

         16             He needs that check to live.  He needs that check to

         17        wake up in the morning and have someone dress him and feed

         18        him and move his muscles and change his clothes and get

         19        rid of the bedsores and teach him how to speak again.  He

         20        needs that check real bad.  And the fact of the matter is

         21        that when the city was told about it, and after the

         22        accident, what does an adjuster do?  I don't have to pay

         23        this, I don't care what you say.  Gee, I like those

         24        letters, they are pretty good.  Actually, they are kind of

         25        funny when I read them in retrospect because it's


          1        $100,000.

          2             Somebody else take care of him.  Those hospitals you

          3        talked about that we pay for have to take care of him.  We

          4        take care of that person one way or another, but you don't

          5        want to.

          6             Now the fact of the matter is that that young man

          7        received in excess of $100,000 because he came up here and

          8        there was a claims bill passed eventually.  The only

          9        reason it was passed is because that city had a social

         10        conscience and understood that it was wrong morally,

         11        ethically, and legally to limit his recovery to $100,000.

         12             By the way, I wasn't the plaintiff's lawyer in that

         13        case.  I didn't get any fee as the plaintiff's lawyer.  I

         14        happened to represent the city in that case.  The fact of

         15        the matter is that we come here today to right a wrong on

         16        behalf of the citizens in the state of Florida.

         17             And we know that there are vested interest groups.

         18        And I received the same letters, Mr. Anthony, that you

         19        have, that you helped draft, from people who I represent,

         20        frankly, telling me this is wrong because they don't want

         21        to pay any more money.  Everything we do in this chamber

         22        affects somebody; somebody is happy and somebody is sad.

         23             And we keep talking about that it shouldn't be in the

         24        Constitution, let the Legislature do it.  Let me tell you,

         25        the citizens of the state of Florida have this


          1        Constitutional Revision Commission.  It's the citizens'

          2        commission.

          3             And I believe it was put in place so that once every

          4        20 years, not very often, the wrongs of this state and the

          5        inability of the average citizen to convince the

          6        Legislature that what they're doing is wrong and they have

          7        the right to vote on what we put on that ballot and then

          8        they'll decide for themselves whether it's a problem they

          9        want fixed or not.  But that's our obligation here.

         10             And no one wants an unlimited check.  The only thing

         11        we ask here is for what the preacher this morning asked of

         12        all of us.  And I saw you shaking your head when he said

         13        "protect the most vulnerable."

         14             And when you go to the court in England of Old

         15        Bailey, the oldest courthouse the common law has, and you

         16        look at it, on top of it, it says "protect the widow,

         17        defend the orphan."  That comes from the Bible.  The fact

         18        is those people are the ones who need protecting.  And

         19        those people that will benefit from what we do here today

         20        are those people that need protecting.

         21             And that young man that wakes up everyday as a

         22        paraplegic deserves justice.  He doesn't deserve justice

         23        because it's a free check.  He deserves it because there

         24        was a wrong committed by someone and that wrong was

         25        determined to be a wrong by a jury or by a government


          1        entity and they are entitled to be compensated for that

          2        wrong.  And we need to make sure there is a process in

          3        place.  And we heard what the President of the Senate

          4        said.

          5             And, Mr. Anthony, had you been present at any of the

          6        meetings of this committee where you had presented a

          7        proposal, had you been present at any of those meetings,

          8        you would have heard the abuses that occur.  And you would

          9        have heard the claims supervisor for the Senate come and

         10        testify about the abuses and what you have to do to go

         11        through the process.  And why there was no claims bill

         12        passed at all because when the President of the Senate

         13        looked at what had gone on before found it to be patently

         14        unfair and unjust.

         15             And after we heard the different people who came and

         16        testified before us for hours, we determined that this was

         17        a matter that needed to be corrected.  And we hope that

         18        you, each and every one of you when you vote, protect

         19        those who are most vulnerable.

         20             CHAIRMAN DOUGLASS:  All right.  Commissioner Connor.

         21             COMMISSIONER CONNOR:  Thank you, Mr. Chairman.

         22             Commissioner Anthony, I've been a trial lawyer for 25

         23        years.  I'm a member of the Academy of Florida Trial

         24        Lawyers.  And it may surprise you to know that I voted

         25        against every single proposal that came before our


          1        committee.  I voted against it because I wasn't satisfied

          2        that on the strength of what I had seen that we'd come up

          3        with the right solution, and that we had done it in the

          4        right way.  And you know from my comments yesterday that

          5        my concern about the process is as grave as my concern

          6        about the product.

          7             But I do want to help you put this in context, ladies

          8        and gentlemen.  In 1981 the Florida Legislature, pursuant

          9        to the constitutional waiver of limited immunity

         10        established statutory caps of liability for governmental

         11        entities at $100,000 per person and $200,000 per incident.

         12             In the ensuing 17 years, Commissioner Anthony, the

         13        real purchasing power of that $100,000 has eroded by about

         14        45 percent, according to the Consumer Price Index.  In

         15        other words, a citizen who would recover $100,000 in 1981

         16        because of an injury sustained wrongfully at the hands of

         17        government, today would recover only $55,000.  Manifestly

         18        unfair I think all of you would agree.

         19             Imagine if your wages had been frozen at 1981 levels

         20        or the employees of your city's wages had been frozen at

         21        1981 levels.  You would regard that as an administrator as

         22        manifestly unfair.

         23             When you look at the Medical Price Index you'll see

         24        the erosion has been even greater, dramatically greater

         25        than the Consumer Price Index.  Commissioner Anthony, what


          1        that means is that with respect to people who are

          2        catastrophically injured and who require continuing

          3        medical care in the future, that their ability to secure

          4        that care is eroded all the more.  Manifestly unjust in my

          5        estimation.

          6             The per incident limitation means that if you have 40

          7        children on a school bus and they're in a collision with a

          8        train or a tractor-trailer or it goes down an embankment

          9        and rolls and there are multiple injuries and you have 40

         10        children who are seriously injured, guess what, in the

         11        aggregate those 40 can recover only $200,000.  Not

         12        $200,000 per child, but $200,000 for the whole bus load of

         13        children.  Again, I would submit to you, that's manifestly

         14        unfair.

         15             I think all of us would agree that government, no

         16        less so than individuals, should be held accountable for

         17        its wrongdoing.  Why?  Because we know that accountability

         18        and responsibility run hand in hand.  If you don't hold a

         19        person accountable for the consequences of their

         20        wrongdoing, they are far less likely to be responsible in

         21        their behavior in the future.  And I think that's

         22        particularly important when we talk about governmental

         23        entities.  We're not -- we don't want to protect

         24        government as much as we want to protect the people.

         25             But what I would submit to you very simply is this:


          1        That there are tensions to be balanced.  There are

          2        tensions to be balanced.  And we have to worry about

          3        whether or not we bankrupt the City of Palm Bay or Port

          4        Saint Joe or Apalachicola as a consequence of a terrible

          5        act which was unintended and we have to balance how we

          6        deal with the necessity of keeping order and providing

          7        essential government services, and at the same time

          8        balance that over against the needs of that person who has

          9        been wrongfully injured.

         10             Now late in this process we began to be exposed to a

         11        concept that nobody had thought of before that seemed to

         12        resonate with a lot of people in our committee and seemed

         13        to, in my estimation, begin to provide the basis for an

         14        emerging consensus that had not yet developed because this

         15        matter was taken up late in the game and we didn't have it

         16        on the table that I think may satisfy the philosophical

         17        objections that people like I have about operating outside

         18        our purview, and at the same time address a very serious

         19        injustice that occurs every day.

         20             And we have the President of the Senate, one of the

         21        branches of our Legislature who says, Look, I've got to be

         22        frank with you, this stinks.  The way it works now is not

         23        working right.  And we need to do something about it.

         24             So, Mr. Chairman, with all deference to my dear

         25        friend Commissioner Anthony for whom I have the greatest


          1        admiration and respect and for whom I have the best wishes

          2        that may he not look back on what's happening on this

          3        commission while he's on his honeymoon, if he does he's in

          4        deep trouble, I respectfully move, given the issues that

          5        have been raised rightfully by Senator Scott about the

          6        issue about jury trial, by Commissioner Sundberg about the

          7        issue about the scope of the waiver, governmental versus

          8        proprietary and operational versus planning distinctions,

          9        that we temporary pass this measure, give us the

         10        opportunity to meet in the interim, see if we can forge a

         11        consensus that properly balances the concerns that

         12        Commissioner Anthony and other representatives of

         13        sovereign immunity has against the manifest injustices

         14        that occur every day as a sequence of the unfortunate and

         15        regrettable wrongdoing of people in government, who are,

         16        after all, mere mortals just like everybody else.

         17             Thank you.

         18             CHAIRMAN DOUGLASS:  There's a motion to temporarily

         19        pass.  Commissioner Barkdull.

         20             COMMISSIONER BARKDULL:  I wanted to ask Commissioner

         21        Connor a question just to be sure that this was included

         22        in the discussion assuming the --

         23             COMMISSIONER CONNOR:  Be all directed to all the

         24        proposals, yes.

         25             COMMISSIONER BARKDULL:  All the proposals.


          1             CHAIRMAN DOUGLASS:  And amendments.

          2             COMMISSIONER BARKDULL:  And amendments.

          3             COMMISSIONER CONNOR:  And substitute amendments.

          4             COMMISSIONER BARKDULL:  Commissioner Connor, you will

          5        take into consideration, I assume, the impact of possible

          6        punitive damages or lack thereof.

          7             COMMISSIONER CONNOR:  Without question.  That's on

          8        the table and has been addressed.

          9             COMMISSIONER BARKDULL:  That's what I wanted to be

         10        sure.

         11             COMMISSIONER CONNOR:  Yes, sir.

         12             CHAIRMAN DOUGLASS:  All right.  There's a motion to

         13        temporarily pass.  Commissioner Anthony, do you want to be

         14        heard on that?  Are you all right with that?

         15             COMMISSIONER ANTHONY:  Yes, Mr. Chairman.

         16             CHAIRMAN DOUGLASS:  Okay.  All in favor say aye;

         17        opposed?

         18             (Verbal vote taken.)

         19             CHAIRMAN DOUGLASS:  By unanimous vote it is

         20        temporarily passed and we refer to the Select Committee

         21        all measures that have been introduced and all amendments

         22        and substitute amendments that have been offered for

         23        consideration by the committee to report back at our next

         24        meeting.  And we'll set a meeting today before you leave.

         25        Okay.  Commissioner Barkdull.


          1             COMMISSIONER BARKDULL:  I request, sir, a 10-minute

          2        recess.

          3             CHAIRMAN DOUGLASS:  Just a minute.  Commissioner

          4        Evans, I am going to apologize to you.  You sit out of my

          5        sight.  I'm right-eyed.

          6             COMMISSIONER EVANS:  I know.

          7             CHAIRMAN DOUGLASS:  And I understand you've been

          8        trying to get the floor.  And I certainly didn't mean to

          9        deprive you of the floor.

         10             COMMISSIONER EVANS:  I just have a question that does

         11        not have to be answered right now, but I would like it to

         12        be answered by this committee.  I've been confused by what

         13        Commissioner Jennings said yesterday and what some of the

         14        other commissioners have said today.  And I need to know

         15        if we are persuaded by Commissioner Anthony, I need to

         16        know does the Legislature have the power to fix the claims

         17        bill process without us as a body taking any action

         18        whatsoever.  So I see the answer is yes.

         19             CHAIRMAN DOUGLASS:  The answer is probably yes.  And

         20        of course we could abolish the claims bill and we would

         21        probably be unanimously supported by the Legislature.  All

         22        right.  We're going to have a 10-minute recess.  Not by

         23        all the people that are involved, of course.

         24             (Pause.)

         25             CHAIRMAN DOUGLASS:  For the record, the amendment


          1        that was on the floor was never read; is that right?  The

          2        wrong one was read.  So come to order.  We're going to

          3        read the amendment you've been discussing.  It's never

          4        been read.  I'm told that we read the wrong amendment.  So

          5        just listen up.  This is the amendment that was on the

          6        floor by -- amendment to the substitute by Commissioners

          7        Langley, Morsani, Lowndes and Zack, move the amendment

          8        which was not read.  It's going to be read, but it's all

          9        going to the committee, Commissioner Connor.

         10             Would you read it, please?

         11             READING CLERK:  Amendment to the substitute amendment

         12        by Commissioners Langley, Morsani, Lowndes and Zack, on

         13        Page 1, Line 14, after the period insert, When any tort

         14        claim is filed against the state or any political

         15        subdivision, agency, district or municipality which

         16        exceeds the limited waiver of sovereign immunity

         17        established by general law, it shall be submitted to the

         18        court in which it is filed in lieu of a trial, to a

         19        three-person arbitration panel that shall by majority vote

         20        render a decision on the claim.

         21             CHAIRMAN DOUGLASS:  All right.  We're in recess until

         22        11:15.

         23             (Brief recess.)

         24             CHAIRMAN DOUGLASS:  I've gone eight minutes too long.

         25        Sign in for quorum call.  Give us a quorum call.


          1             READING CLERK:  Quorum call, quorum call.  All

          2        commissioners report to the Chair.

          3             CHAIRMAN DOUGLASS:  All right.  There is a quorum

          4        present.  We'll come to order.  And the next proposal is

          5        the one on Article V cost, it is Proposal Nos. 31 and 55

          6        committee substitute.  It's by Commissioners Sundberg and

          7        Zack, recommended as a committee substitute and approved

          8        by the Committee on the Judicial.

          9             It's amended by consideration and deferred to the

         10        Select Committee on Article V Cost.  It is now time to

         11        hear it.  And if you would -- do we need to read the title

         12        or should we read the title and then the amendment?

         13             All right.  Read the title.

         14             READING CLERK:  Committee substitute for Proposals 31

         15        and 55, a proposal to revise Article V, Section 14,

         16        Florida Constitution; and create Article V, Section 21,

         17        Florida Constitution; providing for salaries, costs, and

         18        expenses of the judiciary, state attorneys, public

         19        defenders, and clerks of the circuit court, and their

         20        respective staffs, to be funded from state revenues

         21        appropriated by the general law; providing for counties to

         22        fund the cost of construction, maintenance, utilities, and

         23        security of facilities for the judiciary, public

         24        defenders, state attorneys, and clerks of the circuit

         25        court, and their respective staffs; requiring the


          1        Legislature to appropriate funds according to a phase-in

          2        schedule established by the general law.

          3             CHAIRMAN DOUGLASS:  Now read the amendment.

          4             READING CLERK:  Amendment by Commissioner Sundberg,

          5        on Page 2, Lines 3 and 9, delete judiciary and insert,

          6        state court system.

          7             CHAIRMAN DOUGLASS:  All right.  First of all, we'll

          8        adopt the amendment.  The amendment is more of a technical

          9        change, I think.  It has been adopted, okay.  It's part of

         10        the proposal.  Commissioner Mills, who was chairman of the

         11        select committee, you have the floor.

         12             COMMISSIONER MILLS:  Mr. Chairman, I believe you have

         13        an amendment there offered by the committee which is

         14        titled I think Mills, Butterworth, et cetera.

         15             CHAIRMAN DOUGLASS:  All right.  There's an amendment

         16        on the desk by Mills, Butterworth, et al.  Read the

         17        amendment.

         18             READING CLERK:  By Commissioners Mills, Butterworth,

         19        Thompson, Ford-Coates and Sundberg, delete everything

         20        after the proposing clause and insert lengthy amendment.

         21             COMMISSIONER MILLS:  Mr. Chairman.

         22             CHAIRMAN DOUGLASS:  Tell us what the lengthy

         23        amendment does, Commissioner Mills.

         24             COMMISSIONER MILLS:  Yes, sir.  This is the work

         25        product of your Select Committee on Article V Cost and I


          1        first want to thank Commissioners Thompson, Butterworth,

          2        Ford-Coates and Planas for their diligence in doing this

          3        and the diligence of our staff and John Dew and others

          4        that spent a lot of time on this.

          5             (Off-the-record comment.)

          6             CHAIRMAN DOUGLASS:  What's the problem?

          7             COMMISSIONER HENDERSON:  The amendment --

          8             COMMISSIONER MILLS:  The amendment -- as I recall,

          9        the amendment is in your packet.  It is in the pink

         10        packet.  What you had in the special order packet is the

         11        amendment.

         12             CHAIRMAN DOUGLASS:  I think it's the last item in the

         13        pink packet; isn't it?  Okay, let's all get on the same

         14        page.  It's the last item in the pink package.  And that's

         15        a committee substitute which is the amendment that's on

         16        the floor, which is a strike everything and start over

         17        amendment.  So they've rewritten the proposal.

         18             (Off-the-record comment.)

         19             COMMISSIONER BARKDULL:  I have not offered that.

         20             COMMISSIONER MILLS:  Mr. Chairman, let me suggest a

         21        procedure.  Let me discuss what everybody has in their

         22        packets and then we can have some time for people to sort

         23        out these amendments.  But what the recommendation of the

         24        committee is is in the packets and everybody has that in

         25        front of them.


          1             CHAIRMAN DOUGLASS:  That's the way we'll proceed.

          2        And as I understand it, it may be on the table, but he has

          3        not offered the amendment yet.  We're going to the

          4        committee substitute which will be the proposal that is

          5        proposed by the committee; is that correct?

          6             COMMISSIONER MILLS:  Yes, sir.  Mr. Chairman, that is

          7        the base proposal.  There may be a couple of amendments to

          8        the base proposal, but the base proposal is what you have

          9        in the packet.

         10             CHAIRMAN DOUGLASS:  All right, proceed.

         11             COMMISSIONER MILLS:  Mr. Chairman, as first I said, I

         12        want to thank the members of the committee and the staff

         13        that worked on this.  This is a 25-year issue so it's

         14        something that I think both this commission and those that

         15        worked on it should both take some pride in if we resolve

         16        and take some care in doing and understanding.

         17             I talked to Commissioner Barkdull about the history

         18        of this.  In 1968, the revision commission did propose

         19        Article V reforms.  I frankly had not recalled that, but

         20        they in fact did that, but the Legislature didn't propose

         21        it because of controversy.  In 1969, there was another

         22        Article V reform suggested that failed.  In 1972, there

         23        was yet another Article V reform which ultimately passed,

         24        which created the structure of the court system which we

         25        have today.


          1             And I want to place an exclamation point on the

          2        importance of what we're doing with the court system here.

          3        We've had a lot of discussion and occasional criticism of

          4        the courts.

          5             But what I'd like to say is for those of us that have

          6        done significant work, traveled, et cetera, in other

          7        countries, in my case that includes Poland, Haiti, Latin

          8        America, in justice systems and in emerging democracies,

          9        the one thing about which they are the most jealous is the

         10        independent judiciary.  The independent judiciary is the

         11        baseline of the system that makes our democracy work.

         12             I had this discussion also with Commissioner Morsani.

         13        He had similar experiences as I've had in other countries.

         14        The justice system may be based on who you know, how much

         15        you're willing to finance your issue.  In our country we

         16        have developed a sound judicial process.

         17             Another thing, Rubin Askew, who spoke to us when we

         18        arrived here, was the driving force behind several of

         19        those Article V issues, who other than being in the

         20        executive branch, that is, being the governor, other than

         21        being in the legislative branch also was at one time an

         22        international trade representative for the President and

         23        had occasion to travel around the world.

         24             The one thing that he said he found, and he believes

         25        now the most important element of government is the


          1        independent judiciary.  And I have heard him say that to a

          2        class that I teach that he attends occasionally, every

          3        time.  So what we're talking about is something fairly

          4        important.

          5             The specific issue that Article V, our committee was

          6        asked to address, is how do we share the cost for doing

          7        this.  This is -- the bottom line is there are only about

          8        three areas to draw from; that is, the state taxpayer, the

          9        local property taxpayer and the user, that is, the persons

         10        who use the court system either through paying their

         11        filing fees or through collection of other fines, et

         12        cetera.

         13             The structure that we have presented you, what you

         14        have before you are three paragraphs and each of those

         15        paragraphs deals with a separate source of funding.

         16        Paragraph A, if you'll look at your proposal, starts off

         17        and currently says, all justices and judges shall be

         18        compensated only by state salaries fixed by general law.

         19        Then add, funding for the state court's system, state

         20        attorneys' offices, public defenders' offices, court

         21        appointed counsel shall, except as otherwise provided in

         22        subsection C, be provided from state revenues appropriated

         23        by general law.

         24             Now, so subsection A is the state's share.  And this

         25        definition includes these items that are listed and they


          1        are each separate.  That is, a state court's system, state

          2        attorneys' offices, public defenders', et cetera.  This is

          3        an obligation paid for by the state taxpayers.  And the

          4        first logical question is how much.

          5             When we initially had this discussion, the range of

          6        figures was pretty significant, 400, 500, 600 million.  So

          7        you're going to ask me, how did you get it down to

          8        130 million?  Wizardry, 130 million -- creative financing.

          9             What we have done, and those of you that have --

         10        which I hope is everybody at this point -- this package

         11        with the scales of justice on the front, the essence of

         12        the financial issue is how is the system funded now, which

         13        is on Page 3, and how would the system be funded if this

         14        proposal were in the Constitution, which is Page 6.

         15             I've just described to you the state obligation.  As

         16        you will see between Page 3 and Page 6 this moves the

         17        state's share to approximately 51 percent.

         18             Paragraph B deals with the funding of the clerks when

         19        operating in the judicial system.  What this paragraph

         20        does, and we can walk through it, is to say that the

         21        Legislature is going to hold accountable the clerks for

         22        what they expend and they are going to generate fees to

         23        pay for those costs.

         24             Now what this does as a source of funding is to put

         25        some obligation on users.  Again, I told you there are


          1        three sources we can deal with; the state taxpayers, those

          2        people who use the courts, and the local property

          3        taxpayers.  The second paragraph deals with how we suggest

          4        you construct a system whereby clerks would be funded by

          5        fees.  This entails raising fees.

          6             A logical question is, is it possible to raise those

          7        fees and still operate effectively?  The clerks and others

          8        tell us that -- well there was a study several years ago

          9        that showed that there is available room in raising these

         10        fees.  And you have some specific information in there on

         11        what those fees are.

         12             Paragraph C then describes the county obligation.

         13        County obligation, which is paid by county taxpayers, is

         14        delineated to include cost of construction, lease,

         15        maintenance, utilities and security facilities for those

         16        items before.  In other words, the facilities' costs are a

         17        responsibility of the county.

         18             And one additional area.  And that is, counties shall

         19        also pay reasonable and necessary costs, I think

         20        Commissioner Sundberg has an amendment to this, for local

         21        requirements as determined by general law.  There are some

         22        local requirements that are indigenous to the court system

         23        at a more local level than the state system.  And this

         24        remains.  And this allows the Legislature to arbitrate or

         25        to determine what local is.


          1             We went to some length of saying, if you just say

          2        local -- if you just said local requirements, then

          3        apparently it would be a court interpretation as to what

          4        local requirements mean, which made some of the folks

          5        edgy.  If you didn't say that at all, then I suppose you

          6        might have the option for a local government determining

          7        what they think local options would be, which might have a

          8        different result from the courts making the decision.

          9             And then the only possible advert of this, which we

         10        hope would be fed based on these restrictions and

         11        definitions, would be as provided by general law.  So the

         12        overall effect is to expand the state's share, under this

         13        definition of the state court's system, to reduce the

         14        obligation of a local property taxpayer where we think it

         15        is appropriate.

         16             In other words, a state court system is an obligation

         17        of state government.  And to the extent it isn't, it is

         18        paid for in this plan either by the local taxpayers,

         19        specifically relating to construction, maintenance, et

         20        cetera, or designated local functions, or by clerks' fees.

         21             That essentially is we were operating under the basic

         22        tenet that the state had underfunded or had not fully

         23        funded what would be reasonably defined as a state court

         24        system.  This includes a definition of state court system.

         25        And whereas the associated included some commentary, we're


          1        talking about $130 million at the time of the phase-in.

          2             Now Commissioner Sundberg has worked on this forever

          3        and deserves the credit for taking this proposal from

          4        birth through its growing-up period, which perhaps we

          5        reached the age of majority.

          6             CHAIRMAN DOUGLASS:  Still in the birth canal.

          7             COMMISSIONER MILLS:  We'll try to act as good

          8        midwives.

          9             Commissioner Sundberg, if you wanted to say anything

         10        at this point --

         11             CHAIRMAN DOUGLASS:  Commissioner Mills, I had one

         12        thing occur to me.

         13             COMMISSIONER MILLS:  Yes, sir.

         14             CHAIRMAN DOUGLASS:  Under the present situation, does

         15        the state, through the Legislature, have the power to

         16        appropriate the funds that are generated by the state

         17        courts from fines and forfeitures, under the Constitution?

         18             COMMISSIONER MILLS:  I think the answer to that is

         19        they have the power.

         20             CHAIRMAN DOUGLASS:  Right, I'm not saying whether

         21        they do.  Would this change that?  Would they no longer

         22        have the power to appropriate the fines and forfeitures?

         23             COMMISSIONER SUNDBERG:  Under this proposal they

         24        clearly will have the ability to appropriate the fines and

         25        forfeitures.


          1             CHAIRMAN DOUGLASS:  So what you're saying is this is

          2        not a limitation, it is --

          3             COMMISSIONER SUNDBERG:  And they do now, as a matter

          4        of fact.

          5             CHAIRMAN DOUGLASS:  I know they do, but -- they

          6        don't, but they have the power, as I understand it.

          7             COMMISSIONER SUNDBERG:  Well, they do.  They by

          8        statute designate the distribution of those funds.  All of

          9        them do not go to the clerks, all don't go to judicial

         10        functions.  Some go to law enforcement and the like.

         11             CHAIRMAN DOUGLASS:  They go back into the local area,

         12        I believe, under present law.

         13             COMMISSIONER SUNDBERG:  That's almost an accurate

         14        statement.

         15             CHAIRMAN DOUGLASS:  Right, because we had a lot of

         16        publicity on that, that's the reason I asked.  That may be

         17        what Commissioner Connor --

         18             COMMISSIONER CONNOR:  Indeed it was.  And you use the

         19        term "appropriate" and I want to make sure I understand

         20        that because it can mean different things in different

         21        contexts.

         22             By appropriate you mean to take charge of, take them

         23        over?  When you say -- usually I think of it in terms of

         24        legislation.  When you say appropriate I think of them

         25        legislating funds out of their budget.  I had the sense


          1        that you meant can the Legislature reach into the counties

          2        and take the fines and forfeitures that have been levied

          3        in those counties; is that right?

          4             CHAIRMAN DOUGLASS:  I think that's right.  Do they

          5        have the power to do it, not whether they do it.

          6             COMMISSIONER CONNOR:  Exactly.  They have the power

          7        and you're saying they do.

          8             COMMISSIONER SUNDBERG:  They do, and they do today.

          9             COMMISSIONER CONNOR:  And that's not changed in any

         10        way under this proposal?

         11             COMMISSIONER SUNDBERG:  No, I'll be glad to speak to

         12        that.

         13             CHAIRMAN DOUGLASS:  Where do you find that in the

         14        appropriations bill, Commissioner Scott?  You can run

         15        that.  The fines and forfeitures in the appropriations

         16        bill, if they're appropriating it now, as he said, where

         17        is it in the appropriations bill?

         18             COMMISSIONER SCOTT:  I don't know.

         19             COMMISSIONER SUNDBERG:  They do it -- by appropriate,

         20        that's why I said they have the ability to designate and

         21        what they do is by general law designate the uses by

         22        formulas as to where these funds will go.

         23             CHAIRMAN DOUGLASS:  That's not in the general

         24        appropriations bill.

         25             COMMISSIONER SUNDBERG:  No, it is not.  No, it is


          1        not.  Now that --

          2             COMMISSIONER MILLS:  Mr. Chairman --

          3             CHAIRMAN DOUGLASS:  Yes, sir.

          4             COMMISSIONER MILLS:  -- my recollection, of course

          5        things change in ten years, but this is not an

          6        appropriation by the Legislature, it's authorized by

          7        general law.  And that is not at all changed by this.  As

          8        a matter of fact, I think it's reemphasized.

          9             CHAIRMAN DOUGLASS:  Without belaboring the point, you

         10        can have an appropriation by specific law as opposed to

         11        being in the appropriations bill.

         12             COMMISSIONER MILLS:  That's correct.

         13             CHAIRMAN DOUGLASS:  And the Governor has a line item

         14        veto on those particular statutes.

         15             Commissioner Sundberg.

         16             COMMISSIONER SUNDBERG:  Thank you, Mr. Chairman.  I

         17        would like to recognize at the very beginning of these

         18        comments the significant contribution of John Dew, who is

         19        the senior legislative analyst on the legislative

         20        committee on intergovernmental relations.  He assisted not

         21        only the Select Committee when they were in session, but

         22        met at odd hours, odd places, with those of us who were

         23        trying to negotiate this issue out.  And I found his help

         24        to be of inestimable value.

         25             If I can just sort of recur to what the theme is


          1        here.  Paragraph A of this amendment does provide for a

          2        uniform state court system.  It is intended to, and I

          3        think it does and if -- I don't think you-all have the

          4        benefit of this, it's a document, but basically it talks

          5        about the kinds of expenditures that are included in this.

          6             And they are basically expenditures necessary to

          7        operate a functioning state, uniform state court system.

          8        That we all have believed was the promise of Article V in

          9        1972, I suggest to you that this now fulfills that

         10        promise.

         11             Another issue -- and by the way, talking about the

         12        numbers, I think figures have been used that the potential

         13        for this could be as much as 175 million.  But if in fact

         14        the state ceases to designate fines and forfeitures, as

         15        going to what are -- many of them are county purposes now,

         16        that can actually be reduced down to $71 million

         17        currently.

         18             If it's utilized in year 2004, 2005, which assumes a

         19        6.9 inflation factor, which Mr. Dew provides us, then it

         20        could be, you know, with the application of those as much

         21        as 130 million.  Or, assuming no use of the fines and

         22        forfeitures to offset, it could be as much as 320 million.

         23        But that's in year 2004, 2005 with that inflation factor.

         24        Far, far from the figures that were early on suggested as

         25        would be the obligation to the state to provide for a


          1        uniform state court system throughout the state.

          2             The paragraph B continues in place and

          3        constitutionalizes a fee system for the clerks.  Now don't

          4        confuse fees with fines and forfeitures, they are

          5        different animals.  A fee is basically a user fee.  The

          6        clerks, based on their analysis and their fiscal data,

          7        believe that that will be -- that that can be a revenue

          8        neutral expense of operating the clerks of circuit court

          9        in their judicial function.

         10             For those of you who don't know, clerks of circuit

         11        court also act as fiscal officers for the county and clerk

         12        of the county commission.  We're not talking about any of

         13        those functions.  That's a local government expenditure

         14        and function that's paid for.  We're only talking about

         15        that part of the clerks of circuit court operation that's

         16        related to operation of the court system.

         17             But they believe -- and they gave us an example.  For

         18        example in the 17th Circuit, which is Ft. Lauderdale, the

         19        filing fee there now is $200.  And to my knowledge that's

         20        probably the highest in the state.

         21             Of that $200 filing fee, only $40 goes to the clerk

         22        for performing the clerk's obligations.  Their numbers

         23        tell you that they actually need $50 to operate the

         24        clerk's office in its judicial function, but that leaves

         25        $150 of that filing fee that is not necessary, based on


          1        their figures, to operate the clerk's office.  For

          2        example, $95 of that filing fee currently goes for court

          3        facilities.

          4             Under this proposal, because local government will

          5        now be totally responsible for court facilities for the

          6        state court system, including the state attorneys and the

          7        public defenders and the clerks, that $95 figure need not

          8        be devoted to those purposes and can be used to reduce

          9        those filing fees.

         10             In any event, even if it is not, even if it turns out

         11        not to be revenue neutral in the sense that their -- that

         12        the user fees are sufficient to offset the cost of

         13        operating the clerk's office, there is a provision in B

         14        that says, in the first instance, that the Legislature

         15        will now establish the fee system for the clerk's office.

         16             In other words, the fees will be established in the

         17        first instance for operation of the clerk's office to

         18        cover the cost of that operation.  To the extent that

         19        those fees are insufficient to cover the cost of the

         20        clerk's office in a judicial function, there is a

         21        provision for supplemental appropriation by the

         22        Legislature, but their income is the $95 in Broward County

         23        that would be available for that.

         24             Lastly then, and the third paragraph, does deal with

         25        the commitment of local government.  Local government is


          1        committed to providing, as they traditionally have, the

          2        facilities to house and carry on the judicial function in

          3        those local areas, also to provide the facilities for the

          4        clerk's, the public defenders and state's attorney.  This

          5        is not any new obligation, it is something that they have

          6        carried on forever.

          7             In addition, there is a provision that, as to cost of

          8        programs that are not part of a uniform, or the operation

          9        of a uniform state court system, and they vary across the

         10        state and from circuit to circuit where, because of local

         11        conditions, programs have been instituted, some of them

         12        out of some selfish motive, in the premise that there's

         13        been pre-trial release programs and that sort of thing, to

         14        ease up jail overcrowding for which the counties, you

         15        know, feel the responsibility because they are responsible

         16        for providing jails.

         17             It is those sorts of community-based sort of issues

         18        that are also left the responsibility of the counties

         19        under this proposal.  The bottom line of all of this is

         20        that there is no overpowering obligation being assumed by

         21        the State in providing for a uniform state court system as

         22        is constitutionally required.

         23             But it provides for tax relief to the counties

         24        estimated at $218 million; that is significant tax relief

         25        to local governments, it is good government, it is


          1        appropriate in this day and time to fulfill the promise of

          2        Article V.

          3             This does it in a fair, in my estimation, a fair and

          4        balanced manner.  It attempts to address, and I think the

          5        select committee has really done an extraordinary job of

          6        identifying these costs to get down to actual cost as

          7        opposed to myth and to put forward a balanced proposal

          8        which will protect a functioning, fair, uniform court

          9        system in this state through state funding and at the same

         10        time have the county make the contributions which are

         11        appropriate for the local interests that are involved

         12        here.

         13             All the parties I think are probably reasonably

         14        unhappy with this product, which means it must be the

         15        right thing to do.  So I urge upon you that you adopt this

         16        amendment.  Mr. Chairman, there is a technical amendment

         17        to this, if I might offer it now.  Is that appropriate?

         18             CHAIRMAN DOUGLASS:  Is it on the table?

         19             COMMISSIONER SUNDBERG:  Yes, it's on the table.  By

         20        Sundberg and Nabors.

         21             CHAIRMAN DOUGLASS:  Read the amendment, please.  That

         22        would be amendment number something or other.

         23             COMMISSIONER SUNDBERG:  Number blank on mine.

         24             CHAIRMAN DOUGLASS:  2A.

         25             COMMISSIONER SUNDBERG:  I beg your pardon?


          1             CHAIRMAN DOUGLASS:  Call it 2A.

          2             COMMISSIONER SUNDBERG:  Do you want to read it?

          3             CHAIRMAN DOUGLASS:  Let him read it, whatever number

          4        comes out.

          5             READING CLERK:  Amendment to amendment by

          6        Commissioners Sundberg and Nabors, on Page 2, Lines 25

          7        through 27, delete those lines and insert, Expenses of the

          8        state court system to meet local requirements as.

          9             COMMISSIONER SUNDBERG:  Well, wait just a minute.

         10             CHAIRMAN DOUGLASS:  All right.  Do you want to be

         11        heard on the amendment?

         12             COMMISSIONER SUNDBERG:  Yes, sir, I do because I'm

         13        not sure it amends on the right line that we are working

         14        from.  It should be Lines 20 -- I'm sorry, you are right,

         15        I'm sorry.

         16             What it does, Mr. Chairman and Members of the

         17        Commission, is eliminate on the -- that is on the second

         18        sentence of C, which is the county's contribution, talks

         19        about facilities.  It then talks about the counties being

         20        required to fund the cost of -- pardon me, The counties

         21        shall also pay reasonable and necessary salary costs and

         22        expenses of the state court system to meet local

         23        requirements.  The original version said Should pay the

         24        expense of the state court system, state's attorneys,

         25        public defenders, and clerks of the circuit court when


          1        performing court-related functions to meet local

          2        requirements.

          3             This amendment eliminates state's attorneys, public

          4        defenders, and clerks of circuit court on the premise that

          5        this has been the traditional and it is the inherent

          6        authority of courts.  And let me simply add --

          7             CHAIRMAN DOUGLASS:  Wait a minute, you better explain

          8        that a little better.  If I'm reading what --

          9             COMMISSIONER SUNDBERG:  It doesn't look like it does

         10        it, but I promise you, it eliminates -- it strikes.

         11             CHAIRMAN DOUGLASS:  It strikes, Counties shall also

         12        pay; is that right?

         13             COMMISSIONER SUNDBERG:  No.  Counties shall also pay

         14        reasonable and necessary salaries, costs, and expenses of

         15        the state court system to meet local requirements as

         16        determined by general law.  Because it strikes state

         17        attorneys, public defenders and clerks of the circuit

         18        court when performing court-related functions.  What it

         19        did was eliminate, Mr. Chairman, Lines 25 and 27 in their

         20        entirety and substituted this language which eliminated

         21        those.

         22             CHAIRMAN DOUGLASS:  Does that mean then the

         23        Legislature could do that?

         24             COMMISSIONER SUNDBERG:  Sure.

         25             CHAIRMAN DOUGLASS:  I mean, by requiring the counties


          1        to do that?

          2             COMMISSIONER SUNDBERG:  No.  It is not a requirement.

          3        And that's one of the reasons, Mr. Chairman.  That, the

          4        provision for and, in particular, state's attorneys and

          5        public defenders is a part of the constitutional

          6        impairment that would fall under A on the premise of

          7        having a functional criminal justice system, you must

          8        have, you must have prosecutors and defenders; and hence,

          9        it would be covered under A.

         10             CHAIRMAN DOUGLASS:  The reason I asked that, it is

         11        not a technical amendment, it is a very substantive

         12        amendment to what I was reading, because under the one you

         13        gave us, the counties shall also pay those items, state's

         14        attorneys, public defenders and clerks of the circuit

         15        court when performing court-related duties.

         16             COMMISSIONER SUNDBERG:  Right.

         17             CHAIRMAN DOUGLASS:  And you have now struck that,

         18        right?

         19             COMMISSIONER SUNDBERG:  Exactly.

         20             CHAIRMAN DOUGLASS:  And then now those have to be

         21        paid by the State?

         22             COMMISSIONER SUNDBERG:  They are to be paid by the

         23        State in any event.

         24             CHAIRMAN DOUGLASS:  I know that, but that's not my

         25        question.


          1             COMMISSIONER SUNDBERG:  Well, what is your question?

          2             CHAIRMAN DOUGLASS:  My question is, you changed it so

          3        that -- you had it where the counties paid those items.

          4        You took that out and now you have it where the state does

          5        it.

          6             COMMISSIONER SUNDBERG:  By Paragraph A the State was

          7        obliged to pay it, just like it's obliged to pay certain

          8        judicial costs.  By Paragraph C, if you will hear me out,

          9        by paragraph C, there was also some obligation on the part

         10        of the counties to pay state court system costs, salaries,

         11        et cetera, which were necessary and reasonable and local

         12        in nature.  There will be no obligation on the counties

         13        under the amendment to pay any public defender or state's

         14        attorney's or clerk's costs, because they are -- the

         15        assumption is that they will, in fact, as a part of a

         16        functioning uniform state court system, they will be

         17        covered under A.

         18             CHAIRMAN DOUGLASS:  Well, I wasn't trying to get to

         19        the merits, I was trying to understand that you have

         20        changed, it is not a technical amendment, it is a

         21        substantive change, which is all right, I'm not going to

         22        argue that point.  But I want it to be clear that we are

         23        saying, instead of that language, now that won't apply?

         24             COMMISSIONER SUNDBERG:  Absolutely.  And if I misled

         25        anybody with technical change --


          1             CHAIRMAN DOUGLASS:  I don't think you misled, I just

          2        think that it wasn't clear.

          3             COMMISSIONER SUNDBERG:  All right.

          4             CHAIRMAN DOUGLASS:  Commissioner Thompson, do you

          5        have a question?

          6             COMMISSIONER THOMPSON:  Just a question and a

          7        concern.  I am on the committee, and you know, this thing,

          8        we went over it with a fine-tooth comb, and especially the

          9        last sentence.  In the first sentence of C it does in fact

         10        say that counties won't pay for those offices any expenses

         11        except as included in C, and then we go on to talk about

         12        the facilities, of course.

         13             But then my understanding of that last sentence was

         14        when there's local optional programs that the state

         15        attorney or the public defender or the clerks or anybody

         16        else is pulled into, the state would not be obligated to

         17        pay for those expenses.  It could, it certainly could, but

         18        it would not be obligated to pay for those expenses.

         19             So, this appears to me to be going beyond where I

         20        thought we were going in the committee.  I was satisfied

         21        with the way it is, but I think this is certainly far more

         22        than a technical amendment, I think it has significant

         23        impact if there's a program there that state attorneys or

         24        public defenders are involved in.

         25             COMMISSIONER SUNDBERG:  Commissioner Thompson, I know


          1        of no programs that impact those offices because they are

          2        local in nature.

          3             COMMISSIONER THOMPSON:  Let's leave it like it is,

          4        then, it won't have any impact.

          5             COMMISSIONER SUNDBERG:  Well, all I say to you is

          6        that all of the parties concerned have agreed to

          7        eliminating this language.

          8             COMMISSIONER THOMPSON:  The committee, if that's the

          9        case, and I'm one of them.  And I think they forgot to

         10        tell the Chairman.  Plus, you know, I think we all want --

         11             COMMISSIONER SUNDBERG:  You certainly have the right

         12        to take that position, but the Chairman knows about this.

         13             COMMISSIONER MILLS:  Mr. Chairman, I was given this

         14        amendment previously.  Now, let me add, let's see, as I

         15        understand what it does, and I talked to Mr. Dew about

         16        where he's allocated the finances.  As I understand it,

         17        the finances of these were never allocated to these and

         18        they were in the first paragraph.

         19             The one issue, I think the issue that Commissioner

         20        Thompson raised is what I want just assurance from perhaps

         21        staff or otherwise, that the effect of this is not to

         22        preclude county commissions from continuing certain

         23        programs.  I mean, I know they voluntarily do that even

         24        without the last sentence, as I read this.

         25             But there were at least some expressions, which were


          1        from the state attorneys, and perhaps Commissioner Rundle

          2        who is now perhaps going outside to find out, some

          3        expression of the state attorneys of this issue.

          4             And perhaps Commissioner Sundberg can clarify it for

          5        all of us, if there are state attorney functions which are

          6        to meet local requirements as determined by general law,

          7        the way this read, it would be required to be paid.  And

          8        that decision would be made by the Legislature in general

          9        law.

         10             In other words, the Legislature would say, we believe

         11        this is a local function, we require you, the County, to

         12        pay it.  I mean, that's what -- I think that's what the

         13        language said and I think it was the intent of the

         14        committee, Commissioner Thompson, and you can fill this

         15        in, but the counties were obligated.  There were two

         16        things that the counties were obligated to do under this

         17        proposal.  One, they were obligated to do facilities and

         18        the other attendant issues.

         19             Next, the counties were obligated to pay reasonable

         20        and necessary salary costs, et cetera, of the state court

         21        system, state attorneys, public defenders, et cetera, that

         22        are to meet local requirements, which is -- I mean, the

         23        distinction to me was clear, that in Paragraph A you are

         24        meeting requirements of the state court system.  Only,

         25        this sentence only deals with local requirements related


          1        to those other expenses.

          2             And we had a big discussion, and well enlightened by

          3        Senator Silva, I might recall, that what you have here is

          4        a potential disagreement on what local requirements might

          5        be.

          6             Because you might have the county commission saying

          7        one thing, it was a local requirement, you might have the

          8        court saying other things, so there, this says, as

          9        determined by general law.

         10             CHAIRMAN DOUGLASS:  How should we vote on the

         11        amendment?

         12             COMMISSIONER MILLS:  Well, I'm not exactly sure.  I

         13        know the impact.  The representation has been that there

         14        are no -- Commissioner Sundberg has said that there are no

         15        local programs for state attorneys that would fall under

         16        this.  If he's correct, then this doesn't do anything.

         17             CHAIRMAN DOUGLASS:  Commissioner Barkdull has a

         18        question.

         19             COMMISSIONER BARKDULL:  Commissioner Mills, I wasn't

         20        privy to what y'all heard in the Select Committee, and I

         21        guess I'm fortunate not having to spend the hours that

         22        y'all had to spend, but I do recall from the Article V

         23        Task Force, which had a couple of years of hearings around

         24        the state here which I was privileged to serve on, but

         25        there were programs, and I'm thinking particularly about


          1        Orange County and about Duval County, that had particular

          2        intake programs where they had, as I recall it, 24-hour

          3        on-duty state's attorneys, public defenders and so forth,

          4        but I don't know that all of the other circuits have that.

          5        And this, to me, when I read this language, occurs to me

          6        to be a local provision pertaining to a local circuit.

          7             I was comfortable, and I want to commend the

          8        committee for what they did while I'm on my feet, but I am

          9        concerned about the amendment that Commissioner Sundberg

         10        has offered because it seems to put the obligation to pay,

         11        as I understand it, for the additional work that's done in

         12        those two circuits, and there may be others that I'm not

         13        aware of, that it's presently picked up by the counties as

         14        I understand it, would switch that over to the state if we

         15        adopt this amendment.

         16             COMMISSIONER MILLS:  Mr. Chairman, I'm confident from

         17        what Commissioner Sundberg said and from what Mr. Dew

         18        (phonetic) said that that's not the intention.  We might,

         19        in the long-standing tradition of this commission,

         20        temporarily pass this for five minutes so -- I think

         21        Commissioner Thompson has asked a question, I think he's

         22        entitled to be made comfortable on that issue.  And if

         23        what Commissioner Sundberg represents, and as he

         24        understands it, is the way others understand it, I don't

         25        think it'll be a problem.  It is not a financial problem,


          1        as I understand it, but since these words are going to be

          2        in there for another 20 years, we probably should be

          3        fairly careful about what we say.

          4             CHAIRMAN DOUGLASS:  Well, I want to correct you, it's

          5        not a longstanding tradition that we temporarily pass it

          6        because somebody can't answer a question.  And

          7        Commissioner Scott wants the floor.

          8             COMMISSIONER SCOTT:  Mr. Chairman, if you are going

          9        to temporarily pass it I want to be recognized because I

         10        have a matter that won't take more than five minutes.

         11             CHAIRMAN DOUGLASS:  On this?

         12             COMMISSIONER SCOTT:  No.

         13             CHAIRMAN DOUGLASS:  We haven't got that far yet.  Do

         14        you want to temporarily pass it?

         15             COMMISSIONER MILLS:  I want to temporarily pass it to

         16        a time certain, in 15 minutes, I mean, we will take it up

         17        because this question can be answered yes or no pretty

         18        quickly by a couple of staff people, and I think

         19        Commissioner Thompson raised a question and I think he's

         20        entitled -- I can't answer the question.  I'll tell you, I

         21        can't answer the question.

         22             CHAIRMAN DOUGLASS:  We'll temporarily pass this to a

         23        time certain, 15 minutes from now, to 12 -- whatever 7 and

         24        15 is.  That is the motion.  All in favor of the motion

         25        say yea.  Opposed, no.


          1             (Verbal vote taken.)

          2             CHAIRMAN DOUGLASS:  Now, Commissioner Scott, we are

          3        moving along here.

          4             COMMISSIONER SCOTT:  Mr. Chairman, we want to

          5        conclude the 100 hours that we have spent on this.

          6        Yesterday Commissioner Connor and I spoke with him about

          7        this, made a motion to reconsider Proposals 49, 103 and

          8        185, which was the tax issue, the leasehold.  And at this

          9        time I would like to call up that motion and hopefully get

         10        it disposed of.  He's assured me that it wouldn't take no

         11        more than a few minutes to discuss this.

         12             CHAIRMAN DOUGLASS:  Commissioner Barkdull, without

         13        objection, we'll call it up, okay.

         14             COMMISSIONER CONNOR:  Mr. Chairman, I was on my way

         15        home yesterday from the CRC meeting and encountered a

         16        small businessman on the way and he asked what we are

         17        doing, and I told him about this proposal that we have

         18        just passed.  And he said, Well, what does it do?  And I

         19        said, Well, it provides tax relief for government.  And he

         20        said, Excuse me?  I said, It provides tax relief for

         21        government.  He said, What else does it do?  I said, Well

         22        it ensures that there are a greater number of competitors

         23        in the arena against the private business owner who have a

         24        leveraged advantage if they are associated with the

         25        government.


          1             Well, this fellow is not a lawyer or a Ph.D. and he

          2        was really having difficulty understanding why we would do

          3        this.  So, he asked me if I would put it in a context --

          4        he said, Well, what else have y'all done?  I said, Well,

          5        we have increased the power of government to restrict the

          6        access of law-abiding citizens to buy firearms and protect

          7        themselves, I said, But you shouldn't worry because we

          8        have also increased the power of government to appoint the

          9        judges that will deal with the bad guys that arise out of

         10        the mishmash that we have created there.

         11             He looked at me and said, Well, let me ask you

         12        something, he said, How often do you folks meet?  I said,

         13        Once every 20 years.  He said, Well, that's too often.

         14             CHAIRMAN DOUGLASS:  Commissioner Thompson, I'm going

         15        to assign somebody to go with you when you talk to these

         16        people.

         17             (Laughter.)

         18             COMMISSIONER CONNOR:  Mr. Chairman, I would submit to

         19        you that that's a rhetorical device to illustrate the

         20        point that we ought to be concerned about, which is we are

         21        paying way too much attention and according way too much

         22        concern to protecting government, we need to be paying

         23        more attention to protecting the rights of the people.

         24             Now, I voted for this proposal yesterday with the

         25        expressed understanding that we were going to level the


          1        playing field intra-government and we were going to make

          2        those adjustments, and I'm the first to tell you that I

          3        firmly applaud the Legislature's prerogative and

          4        responsibility for making those kinds of exemptions in

          5        preference to the courts.  I think the Legislature is the

          6        proper branch of government to do that.

          7             But I am gravely concerned that what we have been

          8        doing increasingly as a body is conferring more and more

          9        power to government at the expense of the citizens and

         10        paying less and less attention to the citizens.

         11             And I dare say when somebody has asked before,

         12        Mr. Langley, I believe, How am I going to explain this in

         13        the coffee shop, people are going to have a hard time

         14        understanding those things.  We need to be watching out

         15        for the interests of the citizens, and thus far in the

         16        proposal I would submit to you that we didn't do anything

         17        for the citizens of Florida who have to compete now on an

         18        un-level playing field by virtue of the benefits that we

         19        are according to government at their expense.

         20             CHAIRMAN DOUGLASS:  All right.  Now, we are on a

         21        motion to reconsider the proposal that dealt with the --

         22        explain it.

         23             COMMISSIONER SCOTT:  I want to make clear, this is

         24        not anything to do with abolishing this commission or us

         25        not meeting, I don't want to get it confused with all of


          1        those other issues.

          2             CHAIRMAN DOUGLASS:  I started to say, you were losing

          3        a lot of support there.

          4             COMMISSIONER SCOTT:  Yes.  At this late date.  We

          5        voted on this, we discussed it, I would ask you, you are

          6        going to get one final chance anyway.  I would ask you not

          7        to reconsider it, let's go on with what we did.  It is

          8        not -- if you take that premise that we are giving tax

          9        relief to government, then in effect, we are giving tax

         10        relief to taxpayers because they are the ones that pay

         11        taxes.  So, in that sense, I would urge that we defeat

         12        this motion to reconsider.

         13             CHAIRMAN DOUGLASS:  Commissioner Connor has a

         14        question.

         15             COMMISSIONER THOMPSON:  I think Commissioner Smith

         16        wishes to speak.

         17             COMMISSIONER CONNOR:  I would just like to close on

         18        my motion, that's all.

         19             CHAIRMAN DOUGLASS:  Okay.  You may close.

         20        Commissioner Smith.

         21             COMMISSIONER SMITH:  Thank you.  I just want to give

         22        the Chair and the rest of the commissioners some comfort

         23        in knowing that after the sharp speaking to Commissioner

         24        Connor, that individual stopped by the DoubleTree where I

         25        stay and we had a drink together and he asked me what was


          1        my view and I said that although I was opposed to the

          2        issue of tax breaks, what we did really was to level the

          3        playing field so that municipalities in effect would be

          4        treated the same as counties, and as was stated, a

          5        municipality wouldn't have to go to a county and say,

          6        Well, you have the airport because we won't get the tax

          7        break.

          8             And he said, Well, what about the judges?  And I

          9        said, Well, we listened to the conservative voices among

         10        us who told us that we should give the people the option

         11        to decide how they want to elect their judges.  And

         12        finally he said, Well, what did you-all do with that

         13        second amendment?  I said, Well, we made sure that it's a

         14        lot tougher for criminals to get guns.  And he said to me,

         15        Well, why don't you-all meet every year?

         16             (Laughter.)

         17             CHAIRMAN DOUGLASS:  Commissioner Connor, you have a

         18        problem, you don't drink, do you?

         19             COMMISSIONER CONNOR:  Well, as a matter of fact,

         20        Mr. Chairman, I was going to suggest to you that

         21        Commissioner Smith has already acknowledged he came to

         22        that conclusion after they started drinking.

         23             (Laughter.)

         24             CHAIRMAN DOUGLASS:  All right.  Proceed with the

         25        discussion on sin.


          1             COMMISSIONER CONNOR:  Actually, I would like to just

          2        address the one point that Commissioner Scott made and

          3        tell you why I'm concerned, why I remain concerned.  I

          4        agree with you, Commissioner Scott, that ultimately the

          5        tax payor may receive some benefit by, if the tax burden

          6        winds up being reduced and is diffused among all of the

          7        taxpayers.  And I tried to weigh that with respect to the

          8        disproportionate impact that the small businessman would

          9        suffer in the marketplace.

         10             And my conclusion was, very frankly, was that the

         11        leverage that the competitors were given by virtue of

         12        their association with government in this context, was

         13        such as to produce a greater asymmetry in the marketplace

         14        on the individual business owner than to diffuse -- than

         15        the benefit that resulted from the diffusion among the tax

         16        base.  And I just remain concerned and I'll register my

         17        concerns yet another time, and hopefully in the meantime

         18        there may be some way to wind up providing some tax relief

         19        for people and not just government.  Thank you.

         20             CHAIRMAN DOUGLASS:  All right.  Do you want to close?

         21        If not, we'll proceed to vote on -- oh, excuse me,

         22        Commissioner Evans.

         23             COMMISSIONER EVANS:  Okay.  I just have a question on

         24        this.  Commissioner Scott said that we have another bite

         25        at the apple, we know we have the 22 vote.  My question


          1        is, when we get to the 22 vote on these issues, do we

          2        discuss and debate some more, or is, it's called up and do

          3        our thing and that's it?

          4             HEARING OFFICER:  I think that's to be decided on by

          5        the Rules Committee and has not been yet.  Probably if we

          6        have debate it will be limited, we don't have much time to

          7        do it.  You know, if you are against this, vote for its

          8        reconsideration, if you are for it, you can vote to deny

          9        it.  Isn't that the way you see it, Commissioner Connor?

         10        Okay.  Are you ready to vote?  All in favor of the motion

         11        to reconsider, say yea.  All opposed?

         12             (Verbal vote taken.)

         13             CHAIRMAN DOUGLASS:  I believe the nos have it.  I

         14        would open the machine if you would like.  Okay, we are

         15        still in recess.

         16             COMMISSIONER BARKDULL:  We are temporarily passed, we

         17        are not in recess.

         18             CHAIRMAN DOUGLASS:  Excuse me, we are not in recess,

         19        we are temporarily passed.  Go ahead.  Everybody is

         20        getting in recess, that's why I said that.

         21             COMMISSIONER BARKDULL:  I want to move that the time

         22        of adjournment be extended until we conclude the debate on

         23        Article V, consider the matters on reconsideration and

         24        announcements.

         25             CHAIRMAN DOUGLASS:  All right.  Without objection, it


          1        is done.  The motion to reconsider failed.

          2             COMMISSIONER SCOTT:  Mr. Chairman, I thought a lot of

          3        people I know are planning on leaving at 1:00.

          4             CHAIRMAN DOUGLASS:  Well, you know, we --

          5             COMMISSIONER SCOTT:  And he just extended us until

          6        the conclusion of Article V and --

          7             CHAIRMAN DOUGLASS:  Well, we can go ahead and do some

          8        of the things while we are sitting around here waiting.

          9             COMMISSIONER SCOTT:  I'm just concerned about --

         10             COMMISSIONER BARKDULL:  Commissioner Scott, my

         11        reasoning is, we have -- and I have no objection to

         12        carrying over the matters for reconsideration until we

         13        come back on the 23rd, but I want to be sure they stay

         14        alive, and that's the purpose of the motion.

         15             COMMISSIONER SCOTT:  Well, that is a separate motion

         16        and that's fine.

         17             CHAIRMAN DOUGLASS:  Well, his motion at the moment is

         18        that we proceed until we finish the debate on the Article

         19        V proposal that's now before the body.  That is the

         20        motion.  And announcements and other motions directed to

         21        carrying matters over, that is the motion.  All in favor

         22        of the motion, say yea.  Opposed?

         23             (Verbal vote taken.)

         24             CHAIRMAN DOUGLASS:  The yeas have it.  Now, the next

         25        matter to come before the commission.  Do you have


          1        something to bring forth?  You have a proposal that we

          2        haven't reached, don't you?

          3             COMMISSIONER MATHIS:  I guess I have two things to

          4        do.  I would like to call up the motion for

          5        reconsideration on Proposal No. 2.

          6             CHAIRMAN DOUGLASS:  Well certainly you can do that.

          7        Proposal No. 2 is on reconsideration, it is the proposal

          8        by Commissioner Sundberg, which has been popularly said to

          9        be the affirmative action proposal, which it really isn't,

         10        but that's what everybody says it is.  And it was approved

         11        by the Committee on Declaration of Rights, amended, and

         12        then it was adopted on a 23 to 8 vote, and the pending

         13        motion to reconsideration of Commissioner Barkdull, the

         14        motion to reconsider was deferred.  Commissioner Barkdull,

         15        it's been called up and you are the person that made the

         16        motion to reconsider.  You are recognized.

         17             COMMISSIONER BARKDULL:  Yes, sir, Mr. Chairman, and I

         18        am prepared to proceed on it.  Commissioners, this is a

         19        matter of great importance, like all of the things we have

         20        before us.  And at the time that it was under debate I had

         21        considerable concern about it, I put it on a motion to

         22        reconsider for, number one, I was concerned about how the

         23        impact of this might be with 144 which we had adopted

         24        previously by Commissioner Barnett that also happens to

         25        also be on reconsideration about the arbitrary and


          1        discriminatory sentencing.

          2             In the meantime, I have had an opportunity to spend

          3        some more time in reviewing this and in discussions with

          4        Commissioner Sundberg which were very enlightening to me

          5        yesterday.

          6             CHAIRMAN DOUGLASS:  Now y'all pay attention, this is

          7        on a matter that's going to come back time and again.

          8             COMMISSIONER BARKDULL:  I pointed out the discussion

          9        that I had with Commissioner Sundberg, and I want to thank

         10        him for his candor in explaining this to me because I was

         11        having a great deal of difficulty in determining how this

         12        would work.

         13             And as I understand it, this provision that we put in

         14        the Constitution will be a direction that governmental

         15        agencies which include the state, its agencies, the

         16        political subdivisions, municipalities, counties, public

         17        schools, and universities, community colleges, school

         18        districts, special districts, authorities and other

         19        governmental instrumentalities.

         20             I think they pretty much covered the gamut of every

         21        type of government we probably have in the state, may take

         22        actions, not including financial reparations, necessary to

         23        remedy the present effects of past discrimination.

         24             Now, that was amended to put in not including

         25        financial reparations, which I believe means no direct


          1        appropriations to individuals.  I may be mistaken in that,

          2        but that's my commonplace.  Now, it continues and it

          3        defines what have been past discriminations, and that is

          4        in the areas of publicly-owned housing, public employment,

          5        public accommodations, public education, and public

          6        procurement of goods and services, and the expenditure of

          7        public funds.

          8             Now, this is discrimination that occurred in all of

          9        those areas, going back I don't know how far, I assume

         10        maybe to 1838 when we were a territory as it shows on the

         11        Seal, I don't know.  There's no definitive definition in

         12        that.  The example that Commissioner Sundberg gave me

         13        yesterday as to what this was to accomplish I thought was

         14        very appropriate because I did understand it, I think.

         15             And he pointed out to me that if there had been a

         16        government subsidy for peanut farmers that had been in

         17        existence for quite a while and there was a showing that

         18        there had been a group that had been discriminated against

         19        that grew peanuts, that in the future that past

         20        discrimination could be alleviated by an increase in the

         21        peanut allotment to that farmer today.

         22             Now, if that's true as to the peanut farmer, we have

         23        had discrimination in our colleges in the interval since

         24        1838, which I, now with our higher education caps, I

         25        assume that there will have to be an adjustment in the


          1        enrollment to cure the past discrimination.  We have had

          2        goods that have been bought with public money over a

          3        period of years, assumably above a certain level with

          4        competitive bidding and under a certain level without

          5        competitive bidding.  And I don't hazard to doubt that

          6        they can show that there has been discrimination in those

          7        purchases.

          8             Now, as we go forward, if we are going to alleviate

          9        that past discrimination, are we going to have to have a

         10        set-aside to cure that problem?  And that's applicable in

         11        all of these categories that I delineated.  I don't think

         12        there's any of us that are for continuing any form of

         13        discrimination, and I certainly am not.  But I am

         14        concerned about a constitutional statement that we make

         15        that opens up all of these governments, your school

         16        boards, your municipalities, your flood districts, you

         17        name it.  If it's government in nature and there can be

         18        the showing that is here, which will be a political

         19        question, that there's going to be a request that the

         20        public treasury today provide programs to alleviate this

         21        past discriminatory practice.

         22             So, we have got to understand what we are putting in

         23        the Constitution.  Now, maybe that's what is entirely the

         24        will of this body, to submit this issue to the public, and

         25        that's fine.  But let's be sure that we understand that we


          1        know what we are doing.  I've got to confess that I had

          2        not really understood what were the financial

          3        ramifications of requiring the taxpayers today to try to

          4        eliminate or alleviate a problem that was caused in the

          5        past.

          6             And I just want to be sure that when we go forward

          7        with this program, that the public and this commission

          8        completely understands it.  And maybe I'm wrong in moving

          9        to reconsider it, but I wasn't sure of all of these

         10        implications when we voted the other day and I'm not sure

         11        that I understand how far these ramifications go today.

         12             But I do know that we are making a statement that

         13        will open up to political discussion where all of the

         14        avenues or all of the legislative departments of the

         15        different forms of government that spend money, they are

         16        going to be asked to spend money today to remedy problems

         17        that have existed at least as far back, I think, as 1838.

         18        And I think we should reconsider this matter.

         19             CHAIRMAN DOUGLASS:  All right.  Commissioner Mills.

         20             COMMISSIONER MILLS:  Point of order, Mr. Chairman, we

         21        had a time certain.

         22             CHAIRMAN DOUGLASS:  Okay.  We revert back to the

         23        debate where we were.  We'll come back to this when we

         24        finish Article V.  And it survives even a motion to

         25        adjourn.  Commissioner Riley.


          1             COMMISSIONER RILEY:  If I can take a moment of

          2        personal privilege.

          3             CHAIRMAN DOUGLASS:  You may have a moment of personal

          4        privilege.

          5             COMMISSIONER RILEY:  And it will only be a moment.

          6        We have a member among us who is going to have the

          7        opportunity this weekend to change how he puts down his

          8        status, such as marital, Commissioner Anthony.  This

          9        Saturday, and I am sure that we have all not only bought

         10        our gifts, but received our invitations.  He is, in fact,

         11        getting married, and I think that the record should show

         12        that we honor the institution of marriage and we certainly

         13        send with all of us best wishes, and also to your

         14        wife-to-be.

         15             Now, I must admit, Commissioner Anthony, I asked a

         16        few people what we might perhaps pool money and get for

         17        you and I cannot even mention some of the specifics of

         18        what we might buy for you as a going away gift or the

         19        rental of certain people that we might consider in the

         20        honor of this, so in lieu of that we have a card that we

         21        would like to give you that's very mundane and very basic,

         22        but certainly expresses our best wishes.

         23             CHAIRMAN DOUGLASS:  Great.  Commissioner Scott, on

         24        the subject.

         25             COMMISSIONER SCOTT:  Well, we also are sending a


          1        sympathy card to the bride-to-be.

          2             CHAIRMAN DOUGLASS:  Correct.  And Commissioner Zack

          3        asked me to present this key to the paraplegic ward of

          4        Jackson Memorial Hospital to you.  Congratulations.  Is it

          5        congratulations or best wishes, or both?

          6             COMMISSIONER SCOTT:  Both.

          7             CHAIRMAN DOUGLASS:  We congratulate the man.  The

          8        best.

          9             (Off-the-record discussion.)

         10             CHAIRMAN DOUGLASS:  I'm not going to do anything with

         11        that, Commissioner Jennings.  Commissioner Anthony, you

         12        are recognized to a point of personal privilege.

         13             COMMISSIONER ANTHONY:  She did catch something, the

         14        best.  Let me thank you on behalf of my future bride, for

         15        this card, it really is a blessing and a day I've been

         16        waiting on all of my life.  And many people are shocked,

         17        and so am I that the State of Florida is now noticing

         18        this.  Your invitations may be at -- also a moment of

         19        seriousness, let me thank you-all so much for the wedding

         20        gift that you gave me in allowing me to go off this

         21        morning.  And in going off, let me say that, sometimes the

         22        little things that you do you think are in jest or to just

         23        get attention, but there's somebody that I have probably

         24        bonded with more on this commission than anyone else, and

         25        that's Zack, and all I did was in jest, and I'm sorry


          1        if -- I really am sorry because it was in jest and I

          2        wouldn't do anything to hurt him because I truly love him

          3        as a person.

          4             CHAIRMAN DOUGLASS:  Better be careful now, he might

          5        do something to hurt you.

          6             COMMISSIONER ZACK:  We are not going to get back into

          7        sexual orientation.

          8             COMMISSIONER ANTHONY:  It was only in care.  And

          9        there is nobody that cares more.  And his proposal is, out

         10        of all, the best one that really represents some movement.

         11        So, thank you for the wedding gift and I'm going to try my

         12        best to see you sometime maybe that week, but if not,

         13        thank for your best wishes.

         14             CHAIRMAN DOUGLASS:  All right.  Now, let's hurry up

         15        here, we need to get on.

         16             COMMISSIONER ZACK:  This is going to be very quick.

         17        I wanted to tell Commissioner Anthony that we knew it was

         18        in jest and we took it as it was intended, and I know that

         19        we all want the marriage to work out and we are sure it

         20        will, but in case it doesn't, I'm returning him this check

         21        for unlimited funds, which he'll need.

         22             CHAIRMAN DOUGLASS:  Okay, all right.  Let's get back

         23        to the proposal on Article V costs.  You have the floor,

         24        Commissioner Mills.

         25             COMMISSIONER MILLS:  Well, Mr. Chairman, I feel like


          1        I ought to take the check for Article V or else -- but

          2        we'll leave it alone for now.  What we are going to do is

          3        Commissioner Sundberg has offered to withdraw that

          4        amendment and let us proceed with the proposal as it is.

          5             CHAIRMAN DOUGLASS:  All right.  The amendment is

          6        withdrawn that we were discussing, and now we are on the

          7        proposal itself, which still has the language in it that

          8        was attempted to be removed.  Am I correct, Commissioner

          9        Mills; is that correct?

         10             COMMISSIONER MILLS:  Sir?

         11             CHAIRMAN DOUGLASS:  It goes back to where it was.

         12             COMMISSIONER MILLS:  Yes, sir.  And I believe that

         13        that would still be, you would still be considering an

         14        amendment because we haven't adopted the amendment as

         15        proposed, which was from the committee.

         16             CHAIRMAN DOUGLASS:  That's correct, that's what we

         17        were on.  And this was an amendment to the amendment.

         18             COMMISSIONER MILLS:  So, Mr. Chairman, I would move

         19        the amendment.

         20             CHAIRMAN DOUGLASS:  You move the amendment, which is

         21        what is in your pink book.  After the amendment is

         22        adopted, then we will be on the proposal as amended.  All

         23        of those in favor of the amendment, say yea.  Opposed?

         24             (Verbal vote taken.)

         25             CHAIRMAN DOUGLASS:  All right.  We are now on the


          1        merits of the proposal, which is the amended proposal.

          2        Commissioner somebody, who wants to speak to the merits?

          3        Commissioner Kogan.

          4             COMMISSIONER KOGAN:  Let me just say this.

          5             CHAIRMAN DOUGLASS:  All right.  Attention please.

          6             COMMISSIONER KOGAN:  This is a very, very important

          7        issue, and the reason it's important is simply because the

          8        counties need to have some relief in this particular

          9        matter.  The reason they need the relief was, back in 1972

         10        when this particular original Article V amendment was

         11        passed there were a lot of programs out there that nobody

         12        even knew would exist 25 years later.

         13             And what's happened is, they have undertaken these

         14        programs, they have been financing them to assist the

         15        court system.  And one of the major problems they have

         16        had, especially in the small counties, have been providing

         17        for the attorneys' fees and costs for those attorneys that

         18        are appointed in capital cases as conflict lawyers.

         19             In other words, those cases where the public

         20        defender's offices cannot represent a particular defendant

         21        in a capital case because they have a conflict, either

         22        they represent a codefendant or for some reason they

         23        represented or are representing a witness in the case and

         24        they had to go-ahead and do it.

         25             In the big counties, of course, this is also a drain


          1        for them.  But in your small counties, if you have one

          2        capital case that takes any length of time, and I've yet

          3        to see any capital case that doesn't take any length of

          4        time, their budgets can be wiped out.  This is a very,

          5        very serious matter, and this is something that they have

          6        been asking us to help get them some relief.  And

          7        consequently I would urge you to vote for this particular

          8        amendment.

          9             CHAIRMAN DOUGLASS:  All right.  Anybody else?

         10        Commissioner Evans.

         11             COMMISSIONER EVANS:  Commissioner Kogan.  I like this

         12        amendment, I think it, you know, it does a lot of good

         13        things, but I have a concern about putting this into the

         14        Constitution and a separation of powers' problem if

         15        somehow or another it didn't work out, it had to go to

         16        litigation, the court system has to tell the Legislature

         17        how it appropriates its money.  This kind of separation of

         18        powers problem, I just would like you to address that

         19        concern.

         20             COMMISSIONER KOGAN:  Okay.  You know, everybody -- we

         21        heard this, and whether or not you like the court system,

         22        or whether or not you like all of our rulings, under our

         23        form of government, and even under the doctrine of

         24        separation of powers, ever since Marlborey (phonetic)

         25        versus Madison, which was a few years ago, the fact of the


          1        matter is, all of these matters, when they are contested,

          2        wind up in court.  And there's no way to prevent it, this

          3        is our form of government.

          4             And sooner or later, if there's a contest over any

          5        function of government it finally winds up in court and

          6        the court has to make the decision, that's just the way we

          7        do it, there's no other way.  Everybody understands that,

          8        that eventually when there's a dispute it winds up in the

          9        courts.

         10             (Commissioner Thompson assumes the Chair.)

         11             COMMISSIONER THOMPSON:  Further debate before

         12        Commissioner Sundberg closes?  Commissioner Douglass, for

         13        what purpose?

         14             CHAIRMAN DOUGLASS:  I wanted to ask a question of

         15        Commissioner Sundberg is why I left the stand.

         16             COMMISSIONER THOMPSON:  Commissioner Sundberg, would

         17        you yield to a question by the Chairman before you close?

         18        We have a couple of other speakers and then we will close.

         19             CHAIRMAN DOUGLASS:  First of all, let me say that I

         20        support the concept and what we are trying to do here, and

         21        I think we all do because it is one of the major items we

         22        have been dealing with for years.  I was concerned that --

         23        and I wasn't sure when I was asking the question, I'm

         24        really concerned with the fines and the forfeitures.  And

         25        I'm concerned with them because my understanding has been


          1        that under the present Constitution, whether the

          2        Legislature exercises its jurisdiction to take possession

          3        of those funds or whether they just pass laws saying you

          4        can use those funds, it's still subject to general law in

          5        the present Constitution, the use of those fine and

          6        forfeiture funds, the dispositions of them.  Am I correct

          7        in that regard?

          8             COMMISSIONER SUNDBERG:  You are correct in that

          9        regard.

         10             CHAIRMAN DOUGLASS:  All right.  And if we adopt this

         11        proposal, that would no longer be the case, will it?

         12             COMMISSIONER SUNDBERG:  It will continue to be the

         13        case.  There's nothing in this proposal that in any way

         14        restricts the legislative authority, as I see it, over

         15        fines and forfeitures.

         16             CHAIRMAN DOUGLASS:  All right.  The use of fines and

         17        forfeitures.

         18             COMMISSIONER SUNDBERG:  Yes.

         19             CHAIRMAN DOUGLASS:  In other words, the Legislature

         20        could pass and make all of the fines and forfeitures a

         21        part of their appropriations.

         22             COMMISSIONER SUNDBERG:  They could say that the fines

         23        and forfeitures shall go into a trust fund for the

         24        judiciary, they can do whatever they want to.  They do

         25        that now.


          1             CHAIRMAN DOUGLASS:  I know they can do that now, but

          2        I want to make sure that that's, under your proposal as

          3        it's now amended, it's clear that that will continue.

          4             COMMISSIONER SUNDBERG:  Yes.

          5             CHAIRMAN DOUGLASS:  I was a little bit confused from

          6        your answers.  I got the impression that it wouldn't be.

          7             COMMISSIONER SUNDBERG:  No, then I apologize if I

          8        have led you to believe otherwise.

          9             CHAIRMAN DOUGLASS:  Okay, because that is a very

         10        large sum of money.

         11             COMMISSIONER SUNDBERG:  It's about $104 million.

         12             CHAIRMAN DOUGLASS:  Well, in some counties it's more

         13        than their budget, occasionally, you know, we have had

         14        that problem, where forfeitures and fines, they come in on

         15        a marijuana bust in one of these small counties and they

         16        finance the school system with it.

         17             I'm not necessarily saying that is a bad idea either,

         18        but the Legislature could take control of that money and

         19        prevent that, correct?

         20             COMMISSIONER SUNDBERG:  The Legislature, as in all

         21        things fiscal, has the ability to direct where the fines

         22        and forfeitures shall go.

         23             CHAIRMAN DOUGLASS:  In all things fiscal, they don't

         24        if the Constitution prohibits it.

         25             COMMISSIONER SUNDBERG:  There is no language -- I


          1        represent to you so far as I know there is no language nor

          2        is there any intent to in any way limit the Legislature in

          3        its handling of fines and forfeitures.

          4             CHAIRMAN DOUGLASS:  That answers my question and

          5        makes me feel very comfortable and I'll sleep well tonight

          6        knowing that I have your opinion on this.

          7             COMMISSIONER SUNDBERG:  And you have made a record.

          8             CHAIRMAN DOUGLASS:  And I'm going to go with it.

          9             COMISSIONER THOMPSON:  Commissioner Evans-Jones, for

         10        what purpose?

         11             COMMISSIONER EVANS-JONES:  Question of Commissioner

         12        Sundberg.

         13             COMISSIONER THOMPSON:  Commissioner Sundberg, will

         14        you yield?  He yields.

         15             COMMISSIONER SUNDBERG:  Most assuredly.

         16             COMMISSIONER EVANS-JONES:  Commissioner Sundberg, I

         17        realize that you have withdrawn your amendment, however,

         18        there were a lot of us here who thought it was a great

         19        amendment and I'm very sorry that you decided to do that.

         20             COMMISSIONER SUNDBERG:  Since politics is the art of

         21        the doable, I withdrew it.  I'm assured by those that

         22        urged me to withdraw it that the issue is still open for

         23        discussion and was expressed by Commissioner Thompson as,

         24        we have still got the second or third reading to go on

         25        this, and it's an issue that at the time that it's being


          1        dealt with by Style and Drafting when it comes out, they

          2        represent to me it will still be open.

          3             There are people who assert that they were not

          4        prepared for this and consequently that's why I withdraw

          5        it.

          6             (Chairman Douglass resumes the Chair.)

          7             CHAIRMAN DOUGLASS:  All right.  On the proposal,

          8        Commissioner Freidin was up first and then, Commissioner

          9        Henderson, you go next.

         10             COMMISSIONER FREIDIN:  I had a question that I would

         11        like to direct to Commissioner Kogan.

         12             CHAIRMAN DOUGLASS:  He yields.

         13             COMMISSIONER FREIDIN:  My question is, my

         14        understanding is that under this proposal the Legislature

         15        takes full responsibility for certain enumerated costs of

         16        the court system.  Is there anything in the proposal that

         17        precludes the counties from supplementing what the

         18        Legislature may do?

         19             In other words, if the Legislature in a tough year

         20        cuts back on funding for the court system, what will the

         21        court system do in that situation?

         22             COMMISSIONER KOGAN:  Well there is nothing to prevent

         23        the counties from supplementing it at all.  For example,

         24        if you had a tough year financially in the state

         25        Legislature and they said, we can't fund maybe a pretrial

                     DIVISION OF ADMINISTRATIVE HEARINGS (850) 488-9675


          1        release program, maybe we can't fund a pretrial

          2        intervention program, whatever it is, and the local court

          3        system says, Oh, my goodness, we are going to crumble

          4        unless we do that, there is nothing that prevents the

          5        counties from coming in and picking up those bills.

          6             CHAIRMAN DOUGLASS:  Commissioner Henderson.

          7             COMMISSIONER HENDERSON:  A question and I was going

          8        to ask it of Sundberg, I don't know who was going to

          9        answer it.  I'm confused about something, particularly in

         10        light of the withdrawal of the Sundberg amendment.

         11             In paragraph B the reference to the county court

         12        system, by this I read it as the funding for county courts

         13        performing court-related functions is now a function of

         14        the fee system.  Is that correct?

         15             COMMISSIONER SUNDBERG:  That is correct.

         16             COMMISSIONER HENDERSON:  And Commissioner Sundberg

         17        has answered that as correct.  Can you help me with

         18        this --

         19             CHAIRMAN DOUGLASS:  Take the floor please,

         20        Commissioner Sundberg.

         21             COMMISSIONER HENDERSON:  I think that answered the

         22        question, but is there anytime a county court is not

         23        performing a court-related function?

         24             COMMISSIONER SUNDBERG:  The clerk of the county

         25        court --


          1             COMMISSIONER HENDERSON:  No, I understand the clerk,

          2        but the county clerk performing -- is there any time when

          3        the county courts are not performing a court-related

          4        function?

          5             COMMISSIONER SUNDBERG:  It's the clerks of the county

          6        court.  It is the clerk of the circuit and county courts

          7        which is what the clerk is designated, as the clerk of the

          8        circuit and county court.

          9             COMMISSIONER HENDERSON:  Gotcha.

         10             CHAIRMAN DOUGLASS:  All right.  Anything further?  Do

         11        you want to close?  Commissioner Sundberg to close.

         12             COMMISSIONER SUNDBERG:  Captain Smith says to make it

         13        short.  I urge you adopt this proposal.

         14             CHAIRMAN DOUGLASS:  That's a great speech.  That's

         15        one of your better performances, Commissioner Sundberg.

         16             Now we'll proceed to vote on the committee substitute

         17        as amended.  Open the machine.

         18             (Vote taken and recorded electronically.)

         19             CHAIRMAN DOUGLASS:  Everybody voted?  Unanimous vote,

         20        lock the machine.  Lock the machine and announce the

         21        unanimous vote.

         22             READING CLERK:  Twenty-five yeas, zero nays,

         23        Mr. Chairman.

         24             CHAIRMAN DOUGLASS:  All right.  Now, we're back to

         25        the motion to reconsider Proposal No. 2 and Commissioner


          1        Barkdull's motion.  Had you completed your opening

          2        remarks?

          3             COMMISSIONER BARKDULL:  Yes, sir.

          4             CHAIRMAN DOUGLASS:  Now Commissioner Mathis, did you

          5        have the floor when we quit?  Commissioner Smith did.  All

          6        right.  Commissioner Smith, you may proceed on the motion

          7        to reconsider Proposal No. 2.

          8             COMMISSIONER SMITH:  Thank you very much, Mr. Chair.

          9             First of all, let me remind everyone that this

         10        particular proposal got a favorable recommendation from

         11        the Committee on Declaration of Rights and received a

         12        favorable 23 to 8 vote on Monday.  I was very displeased

         13        with the fact that my schedule in court precluded me from

         14        being here.  But let me try to address the concerns that

         15        have been raised by Commissioner Barkdull.

         16             First of all, with regard to issues of payments, on

         17        the suggestion of Commissioner Connor, we put into the

         18        proposal as clear language as possible that financial

         19        reparations would not be a part of remedy.

         20             Secondly, in concern for others who previously

         21        expressed the concern that Commissioner Barkdull raises

         22        now and that is, you know, since 1619 there's been racial

         23        discrimination but 1838 in Florida we were talking about

         24        the present effects of past discrimination.  And that

         25        would be an objective test.  And if you've read any of the


          1        cases like Ataran, one or two, or the case out of

          2        Virginia, I mean that's pretty difficult.

          3             As a matter of fact, those who are working in the

          4        dissent basically, said this is a standard that can't be

          5        met.  Justice O'Connor responded by saying, yes, it's a

          6        very, very difficult standard and it should be a difficult

          7        standard because of the fact we're not just saying that

          8        everybody that happens to be in the class or the class

          9        itself can automatically, either statistically or because

         10        of the fact that you're in a group that's been

         11        discriminated in the past, you automatically can receive

         12        redress.

         13             A perfect example of that situation was evidenced in

         14        the cases with regard to scholarships.  If in fact under

         15        Florida law it can be demonstrated that there had been

         16        past discrimination in Florida schools, one of the things

         17        I think would happen as a result of the other cases is

         18        that African-Americans or women or Hispanics from Georgia

         19        won't be able to come down and take advantage of the

         20        scholarships in Florida because you would have to tailor

         21        the remedy to the present effect of the past

         22        discrimination.

         23             So under our Florida Constitution, if it can be

         24        demonstrated whether there is past discrimination against

         25        Florida's African-Americans, who were denied a right to go


          1        to college then Florida's African-Americans could possibly

          2        have a situation where they would be given some remedy for

          3        scholarships.

          4             But thirdly and most importantly, and the thing that

          5        I know should give you the greatest concern, and I hope

          6        this language kind of alleviates that, and that is this

          7        constitutional language says that those institutions may

          8        institute policies and procedures and programs.  It does

          9        not mandate those policies and procedures.

         10             There is a legitimate disagreement about remedying

         11        past discrimination and it's a legitimate debate.  And

         12        good people on both sides of the issue can legitimately

         13        disagree.  And we have debated that.  But I think here

         14        what we're trying to do is to provide constitutional

         15        protection for those institutions of government that want

         16        to tailor those types of programs to remedy the present

         17        effects of past discrimination.

         18             And with regard to that, I believe that, one, I agree

         19        with the chairman and I agree with you that we need a

         20        different title for the section.  I don't think it's

         21        strict affirmative action and we're going to work on that.

         22        And Commissioner Mills, who is with Style and Drafting, I

         23        have his right ear and I'm trying to work with him on

         24        that.

         25             It doesn't say it, but I'm saying if we say that,


          1        that's what it's going to get out as, Commissioner

          2        Sundberg.  And I would ask this commission at this point

          3        to vote against reconsidering this because all of the

          4        concerns of the possible opening the door to floodgates of

          5        bankrupting the government, bankrupting the schools I

          6        think are things that cannot happen under the case law and

          7        under the statute as we have narrowly tailored, taking

          8        into consideration all of the issues that were previously

          9        raised.

         10             COMMISSIONER BARKDULL:  I wanted to ask Commissioner

         11        Smith a question.

         12             CHAIRMAN DOUGLASS:  He yields.

         13             COMMISSIONER BARKDULL:  Commissioner Smith, would you

         14        explain to me how we would correct the discriminatory

         15        public procurement of goods under this proposal?

         16             COMMISSIONER SMITH:  Commissioner Sundberg wants to

         17        answer.

         18             COMMISSIONER SUNDBERG:  Precisely how you do it is

         19        the way they do it now.  And we talked about this at

         20        length.  Commissioner Langley was really concerned about

         21        it.

         22             What -- the way you do it is the way they do it now.

         23        If there is a public procurement, they will say in the RFP

         24        or in the bid documents that it doesn't increase the price

         25        of the project, they say a certain percentage, however, of


          1        the project will be supplied by minority contractors

          2        whether that's women, blacks, Eskimos, what have you.  It

          3        doesn't increase the cost of anything.

          4             Just like the universities.  The universities can

          5        say, if our enrollment, you know, we will seek to have

          6        diversity and we are going to encourage diversity to

          7        address the past, the present effects of past

          8        discrimination.  You're not talking about increasing the

          9        cost of anything.  You're simply saying, the cost of these

         10        public programs will stay the same, but we're going to --

         11        we may institute programs as they have now to be sure that

         12        those minorities who in the past were shut out are let in

         13        and are given a boost to get in.

         14             CHAIRMAN DOUGLASS:  All right.  Commissioner Barkdull

         15        to close.

         16             COMMISSIONER BARKDULL:  Well, if they are doing it

         17        now then I don't see why we need it in the Constitution.

         18        And Commissioner Sundberg just got through explaining to

         19        me that they're doing all that they want to do now.  I

         20        don't know why we need this in the Constitution.  I urge

         21        you to adopt the motion to reconsider.

         22             COMMISSIONER SUNDBERG:  Because there are people who

         23        want to stop them from doing it.

         24             CHAIRMAN DOUGLASS:  Have you got anything else you

         25        want to add?  He closed.


          1             (Off-the-record comment.)

          2             CHAIRMAN DOUGLASS:  Just wanted to make sure.  I knew

          3        you were through, Commissioner Smith.  You were sitting

          4        down.

          5             All those in favor of the reconsideration of Proposal

          6        No. 2, as amended, signify by saying aye; opposed?

          7             (Verbal vote taken.)

          8             CHAIRMAN DOUGLASS:  Nos, have it.

          9             Don't leave.  We're not ready to go.  All the

         10        others -- the motion is going to be made to carry forward

         11        all the other reconsiderations.

         12             COMMISSIONER BARKDULL:  Commissioner Mathis I think

         13        wants to withdraw a proposal.

         14             COMMISSIONER MATHIS:  Yes.

         15             CHAIRMAN DOUGLASS:  Okay.  We will do that.

         16             COMMISSIONER MATHIS:  I'd like to make a motion that

         17        we withdraw Proposal No. 41.  And I've gotten the

         18        permission of Commissioner Henderson to do that.

         19             CHAIRMAN DOUGLASS:  Without objection No. 41 is

         20        withdrawn.

         21             Commissioner, do you have one?

         22             COMMISSIONER CONNOR:  No, I had the sense, and

         23        perhaps I'm wrong, that the Chair wanted the Select

         24        Committee on Sovereign Immunity to meet during the coming

         25        week.


          1             CHAIRMAN DOUGLASS:  Absolutely.

          2             COMMISSIONER CONNOR:  And I would suggest either

          3        Tuesday or Thursday afternoon is the only -- no, not for

          4        you?  Or Wednesday morning.  Those are my only

          5        opportunities.

          6             COMMISSIONER ZACK:  We've been up here all this week

          7        and we'll be up here the whole following week.  I would

          8        suggest that we meet either Sunday evening or sometime

          9        that we can meet and have other people in attendance.

         10        There is no way -- if I lived a block away, I'd be happy

         11        to do it.

         12             COMMISSIONER CONNOR:  I'm very sympathetic to that.

         13             CHAIRMAN DOUGLASS:  Commissioner Connor, I think

         14        maybe it's appropriate that you notice it for Sunday at a

         15        time certain, if you could.

         16             COMMISSIONER CONNOR:  I can't.

         17             CHAIRMAN DOUGLASS:  How about some other date before

         18        that?

         19             COMMISSIONER CONNOR:  Monday evening, 6:30 in the

         20        morning, but I -- Sunday is out for me.  If you-all want

         21        to do it monday morning?  When do we start, Mr. Chairman?

         22             CHAIRMAN DOUGLASS:  1:00.

         23             COMMISSIONER CONNOR:  May I suggest 8:30 Monday

         24        morning and suggest that in the interim that we --

         25             CHAIRMAN DOUGLASS:  You can exchange documents.


          1             COMMISSIONER CONNOR:  Yes, exactly.  8:30 Monday

          2        morning.

          3             CHAIRMAN DOUGLASS:  So it's noticed the Select

          4        Committee on Sovereign immunity will meet at 8:30 Monday

          5        morning January -- February, I lost a month, February the

          6        23rd; isn't it?  Yes, at 8:30 in the morning and the place

          7        to be announced.  If it is not announced otherwise, it

          8        will be in the offices of the commission.

          9             COMMISSIONER MORSANI:  On the time, I apologize but

         10        Mr. --

         11             CHAIRMAN DOUGLASS:  8:30.

         12             COMMISSIONER MORSANI:  -- he has to come from Miami.

         13        I'm not going to come in the night before.  I'd make it

         14        9:30.  I can leave home at 4:00 then instead of at 3:00

         15        and I can be here.  And that's how I do it.  And I would

         16        appreciate an hour --

         17             CHAIRMAN DOUGLASS:  We can rely on you to be here

         18        because your plane is never late.

         19             COMMISSIONER MORSANI:  That's right.

         20             CHAIRMAN DOUGLASS:  Okay, you want to do it at 9:30.

         21        Notice it at 9:30 Monday morning, February the 23rd.

         22             Commissioner Freidin.

         23             COMMISSIONER FREIDIN:  Yes, sir.  I would simply move

         24        to reconsider Proposal No. 130 and leave it pending.

         25             CHAIRMAN DOUGLASS:  Which one is that?


          1             COMMISSIONER FREIDIN:  Initiatives.

          2             CHAIRMAN DOUGLASS:  Okay.  Without objection it will

          3        be left pending.  Well, it's left pending anyway.

          4        Commissioner Marshall.

          5             COMMISSIONER MARSHALL:  I move for a reconsideration

          6        of committee substitute for Proposals 138 and 89 by

          7        Commissioner Nabors.  I was on the prevailing side on the

          8        vote.

          9             CHAIRMAN DOUGLASS:  I was being told that

         10        Commissioner Freidin couldn't make the motion that she

         11        made because she was not on the prevailing side.

         12             COMMISSIONER RILEY:  As I understand 130, and that's

         13        the proposal we're talking about, in fact that's why I was

         14        standing, that's Commissioner Barkdull's and that was my

         15        question was whether or not it was withdrawn.

         16             COMMISSIONER BARKDULL:  It was withdrawn.

         17             CHAIRMAN DOUGLASS:  Commissioner Barkdull's was

         18        withdrawn.  I thought you were talking about the committee

         19        substitute that lost.

         20             COMMISSIONER FREIDIN:  I was talking about --

         21             CHAIRMAN DOUGLASS:  But you were not on the

         22        prevailing side so someone on the prevailing side has to

         23        make the motion.

         24             (Off-the-record comment by Commissioner Zack.)

         25             CHAIRMAN DOUGLASS:  Commissioner Zack was on the


          1        prevailing side and he moves to reconsider and leave it

          2        pending.  All right.

          3             Now, Commissioner Marshall, I'm sorry I interrupted

          4        you, but you have the floor.

          5             COMMISSIONER MARSHALL:  Mr. Chairman, I was on the

          6        prevailing side of the vote on committee substitute for

          7        Proposals 138 and 89 by Commissioner Nabors.  And I move

          8        that it be reconsidered.

          9             CHAIRMAN DOUGLASS:  That's the Lottery?  Hasn't it

         10        already been reconsidered?  It has not, okay.  The motion

         11        is made and left pending.  That's what you want to do,

         12        isn't it, Commissioner Marshall?  Okay.  Thank you.

         13             Commissioner Barkdull.

         14             COMMISSIONER BARKDULL:  Mr. Chairman and Members of

         15        the Commission, we still have four matters on

         16        reconsideration that were not reached today.  I'd like to

         17        move that the consideration thereof be deferred until

         18        Monday the 23rd of February and that is the Committee

         19        Substitute for Proposal No. 13, Proposal No. 144, Proposal

         20        No. 168 and Proposal -- Committee Substitute for Proposals

         21        172 and 162.  They are on Pages 2 and 3 of your calendar

         22        today.

         23             CHAIRMAN DOUGLASS:  Without objection, they are

         24        carried forward.  There is only one proposal that's on the

         25        calendar that we haven't reached, I think.


          1             COMMISSIONER BARKDULL:  That's the one on pollution

          2        control.  There's two of them.  There is the one by

          3        Commissioner Scott.

          4             CHAIRMAN DOUGLASS:  His though is a general one that

          5        doesn't require any action, I don't think.  He may have

          6        moved to withdraw it, I don't know whether he did or not.

          7        But anyway, the only one I have that we haven't taken up

          8        would be Proposal 91 and it was on a motion to reconsider.

          9        So you'd be carrying that forward, too?

         10             COMMISSIONER BARKDULL:  Yes, sir.  I'll add that to

         11        the package and carry it forward also.

         12             CHAIRMAN DOUGLASS:  That's right.  Okay.  We have

         13        everything on reconsideration carried forward.

         14             COMMISSIONER BARKDULL:  But Commissioner Scott's 150,

         15        I have no notation on that.  So it would still be on the

         16        calendar.

         17             CHAIRMAN DOUGLASS:  Well, it's not a -- I don't think

         18        it is a proposal.  I wish he was here because he put it

         19        there just generally so we'd have a vehicle if he needed

         20        to amend something.  We can either leave it pending --

         21             COMMISSIONER BARKDULL:  I'd say let's leave it on the

         22        calendar and we'll take care of it on the 23rd.

         23             CHAIRMAN DOUGLASS:  Now are there any other matters,

         24        announcements and so forth?  Commissioner Mills, you are

         25        recognized.


          1             COMMISSIONER MILLS:  Mr. Chairman, I just wanted to

          2        announce a meeting of the Committee on Style and Drafting

          3        on adjournment.  Commissioner Barnett suggested the

          4        cafeteria, but I guess that isn't really a good public

          5        meeting place.  We'll meet in the offices of the Revision

          6        Commission.

          7             CHAIRMAN DOUGLASS:  All right.  In the big room or

          8        something or other.  All right.  Good.  That will be

          9        immediately following this.

         10             All right.  We will be distributing, Billy reminds

         11        me, a fax within the next day or two, before the end of

         12        the week, giving you the calendar as it's now going to be.

         13        And I think you can rely on this as being final pretty

         14        much because we are going to meet a couple times in the

         15        Senate Chamber while the Legislature is in session.

         16        Through the good auspices of Commissioner Jennings, we are

         17        able to do that.  She really went out of her way to allow

         18        us to have those couple of days there.

         19             So when you get those you will know where we are.  We

         20        really can't move any of these meetings now on this

         21        calendar that's coming to you.

         22             Commissioner Barkdull.

         23             COMMISSIONER BARKDULL:  I move we stand in recess

         24        until 1:00 p.m. on Monday, February 23rd.

         25             CHAIRMAN DOUGLASS:  All right.  Without objection, we


          1        do so and thank you very much.  You worked hard this week.

          2             (Session adjourned at 1:00 p.m.)

























          1                             CERTIFICATE


          3   STATE OF FLORIDA:

          4   COUNTY OF LEON:

                        WE, JULIE L. DOHERTY, KRISTEN L. BENTLEY and
          6   MONA L. WHIDDON, Court Reporters, certify that we were
              authorized to and did stenographically report the foregoing
          7   proceedings and that the transcript is a true and complete
              record of our stenographic notes.

          9             DATED this ______ day of ____________, 1998.


         12                      JULIE L. DOHERTY, RPR


         14                      _________________________________
                                 KRISTEN L. BENTLEY

         17                      MONA L. WHIDDON
                                 Court Reporters
         18                      Division of Administrative Hearings
                                 1230 Apalachee Parkway
         19                      Tallahassee, Florida  32399-3060
                                 (850) 488-9675  Suncom 278-9675
         20                      Fax Filing (850) 921-6847