State Seal Calendar

Meeting Proceedings for February 23, 1998 (File size=304K


          1                          STATE OF FLORIDA
                             CONSTITUTION REVISION COMMISSION



                                    COMMISSION MEETING



              DATE:                   February 23, 1998
              TIME:                   Commenced at 1:00 p.m.
         11                           Concluded at 5:00 p.m.

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

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









          1                             APPEARANCES


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





          1                             PROCEEDINGS

          2             SECRETARY BLANTON:  Quorum call.  Quorum call.  All

          3        commissioners indicate your presence.  All commissioners

          4        indicate your presence.

          5             Quorum present, Mr. Chairman.

          6             (Quorum taken and recorded electronically.)

          7             CHAIRMAN DOUGLASS:  All right.  Would all

          8        unauthorized persons please leave the chamber.  Will the

          9        commissioners and the guests in the gallery please rise

         10        for the opening prayer given this afternoon by Fred Harris

         11        of Tallahassee.

         12             MR. HARRIS:  Thank you, Mr. Chairman.  Ladies and

         13        gentlemen, let us prey.

         14             Dear God, we stand on the threshold of a grand and

         15        glorious future.  We have the opportunity to participate

         16        in a spiritual awakening for which this world has long

         17        awaited.  A time when we will recognize that we are all

         18        children of one God and therefore brothers and sisters.  A

         19        time when we will embrace selfless service toward those in

         20        need.  A time when the predominant attitude will be one of

         21        hope and expectation for better times to come.  A time

         22        when families will flourish and all endeavor to take the

         23        highest path in their every decision.  This future will be

         24        when time and truth, beauty and goodness will be manifest

         25        in all of our lives.  But this effort will not appear


          1        magically by divine fiat.  It requires our daily

          2        participation and contribution to make it a reality.  It

          3        requires a society which is built on a foundation of

          4        equality, justice, and opportunity for all.  That

          5        foundation of love begins with our Constitution which

          6        recognizes the fundamental rights and obligations shared

          7        by all.

          8             God, please bless the people who comprise this

          9        Constitution Revision Commission and grant them the

         10        wisdom, strength, and vision necessary to discern the

         11        divine pattern and incorporate it into the amendments that

         12        they propose.  Help them fashion a Constitution which will

         13        secure our freedom, protect our rights, and promote the

         14        highest good for the people of Florida, and in so doing,

         15        set an example for the world.  We ask, dear Lord, that you

         16        daily grant us tolerance to honor each person's path to

         17        you.  That you encourage us to count our blessings and

         18        remind us not to neglect our time with you for it is in

         19        our personal relationship with you that we are able to

         20        become centered in your love.  Having become so centered,

         21        help us become a conduit for your love, spreading it to

         22        all those we encounter.  Amen.

         23             CHAIRMAN DOUGLASS:  Please remain standing for the

         24        pledge of allegiance led this afternoon by Commissioner

         25        Clay Henderson and his son Craig.  Commissioner Henderson


          1        and Craig.

          2             (Pledge of Allegiance.)

          3             CHAIRMAN DOUGLASS:  I think there are some other

          4        family members present.  Commissioner Mills, would you

          5        like to introduce us to your family if they are around

          6        where we can see them.

          7             COMMISSIONER MILLS:  Yes, Mr. Chairman.  My wife

          8        Beth; my mother, Marguerite; and my daughter, Marguerite,

          9        the three-year-old who is going to be a member of the

         10        commission some day.  And by the way she's going, it could

         11        be ten years.

         12             CHAIRMAN DOUGLASS:  All right.  We're glad to have

         13        you.  Commissioner Henderson.

         14             COMMISSIONER HENDERSON:  At our last gathering Frank

         15        Morsani leaned over to me and said, You know, I've spent

         16        more time with you in the last six months than my family.

         17        And I thought that would be a good idea for Frank to meet

         18        the rest of my family.  So Judge Mary Jane Henderson, my

         19        wife, and our daughter, Ardis, on the front row there.

         20             CHAIRMAN DOUGLASS:  All right, is there anyone else?

         21        I do see, Commissioner Lowndes, you're bashful and timid.

         22        Our other Commissioner Lowndes, Rita is up here.  Rita,

         23        we'd like to recognize you.

         24             COMMISSIONER LOWNDES:  She's been here so often, I

         25        thought she was kind of a permanent member.


          1             COMMISSIONER FORD-COATES:  Mr. Chairman, as long as

          2        we are doing this, since I've never done this before, I'd

          3        like to introduce my husband, Brian Ford-Coates, who is

          4        the official observer.

          5             CHAIRMAN DOUGLASS:  He's been a commissioner without

          6        vote because he's made every proceeding I think we've had

          7        along with Commissioner Ford-Coates who's been one of the

          8        most diligent attendees and people we've had.

          9             Commissioner Barkdull, you're recognized.

         10             COMMISSIONER BARKDULL:  Mr. Chairman, Members of the

         11        Commission, you have received in the mail last week the

         12        proposed calendar for this week and you have on your desk

         13        the calendar of the date.  Be sure you have the one that

         14        says under the date, Monday, February 23rd, corrected.

         15        And then the pink packet that you have on your desk will

         16        correspond to that calendar.

         17             If you have one that does not have "corrected" on it,

         18        please raise your hand and the staff will substitute it

         19        because there was a correction made in it.  At this time,

         20        Mr. Chairman, I'd like to defer to Chairman Mills of the

         21        Style and Drafting Committee for his report of that

         22        committee which lays out the groundwork rules for this

         23        week.

         24             CHAIRMAN DOUGLASS:  Commissioner Mills, you're

         25        recognized.


          1             COMMISSIONER MILLS:  Mr. Chairman, members, you have

          2        a very brief two paragraph description of an overview of

          3        the way we're going to handle the 58 remaining proposals

          4        before you this week.  Let me just give you the

          5        background, thinking of the Chairman and thinking of the

          6        committee when doing this.  We have over the course of the

          7        last months traveled several thousands miles and

          8        considered hundreds of proposals and we have now dwindled

          9        those down to some 58 proposals.

         10             This would be our first opportunity to actually look

         11        at all of those at one time, a bit of a forest through the

         12        trees issue.  We can begin to see what the forest looks

         13        like.  And the way that these have been organized are by

         14        topics that we believe, as the Style and Drafting

         15        Committee, and we solicit your advice will be logical for

         16        public consideration.  That is, there are a series of

         17        issues that would pass that relate to the environment.

         18        There's a series of issues that you would pass that relate

         19        to education, series that you would pass that relate to

         20        the judiciary, to criminal justice, et cetera.

         21             What you have before you in the long list is an

         22        attempt to classify those by those various categories.

         23        Ultimately, it will be our task as a commission to group

         24        those for ballot and to draft ballot language again with

         25        the goal that the public will be able to understand to the


          1        maximum what we are doing.  What you have before you

          2        today, when you begin to consider these set of issues,

          3        we've titled them, for example, the environment is one of

          4        the first issues you'll consider.  There are five or six

          5        individual proposals that you've passed over this period

          6        of months that relate topically to environment.

          7             The method we would proceed with is, I've suggested

          8        that we might limit debate on each of these topics since

          9        we are relatively familiar at this point and that we would

         10        consider each of these during that period of time.  So we

         11        will spend a couple of hours or an hour on the

         12        environment, a couple of hours or an hour on elections.

         13        And after that period of time, we will have -- some of

         14        those proposals will have received 22 votes.  Some of

         15        those proposals will have received a majority of those

         16        present and voting.  And perhaps some of those will not

         17        receive a majority.

         18             The procedure from here is, because we are going back

         19        to the public with three more hearings, just because

         20        something does not receive 22 votes, but still receives a

         21        majority, it was the thinking of our committee that they

         22        should not at this point die.  However, it was the

         23        thinking of the committee that if at this point this --

         24        and the wisdom of this commission in looking at all of the

         25        proposals before us, if, in fact, a proposal is unable to


          1        get even a majority, it probably will never pass ultimate

          2        muster and it will probably be diverting to the public to

          3        consider those proposals.

          4             So anything that gets a majority or 22 votes

          5        continues to public hearings.  Now the language that you

          6        saw, you see in here relating to reconsideration was

          7        simply a method to allow those voters -- to allow the

          8        input of the public again.  For example, if you get a

          9        majority vote but not 22 and you're persuaded during

         10        public hearings that this is a better idea than you

         11        thought, this reconsideration will allow you to bump that

         12        up to 22 votes.

         13             Conversely, if during the public hearings you're

         14        persuaded what you previously voted for 22 votes is not a

         15        good idea, you're entitled to move to reconsider, if you

         16        get a majority and take that up again and that can be

         17        ultimately then killed.

         18             At that point, we then go on to Style and Drafting to

         19        group these and ultimately come back for final passage.

         20        Now I suspect there are a couple of questions and I'll be

         21        glad to address them.  Commissioner Connor.

         22             COMMISSIONER CONNOR:  Commissioner Mills, I have a

         23        question about the procedure.  And let me tell you frankly

         24        one concern I have is that -- and several instances when

         25        members of the public have contacted me about proposals


          1        and lobbying the commission about those proposals on

          2        matters that have already passed by a majority vote.  I've

          3        suggested to them that they keep their powder dry, wait

          4        until the public hearing process to have input and be

          5        heard at that time rather than burden the commission in

          6        the interim by more paper, phone calls, E-mails, et

          7        cetera.

          8             And I'm concerned, frankly, that we, at least I have

          9        been operating, perhaps mistakenly, under the premise that

         10        for those matters that passed by majority vote they would

         11        come to the public arena where the public would be heard

         12        from.  We could then take that information into account in

         13        voting on proposals and we would have one last cut at

         14        this.

         15             So I'm -- I can appreciate the problem associated

         16        with a rather large number of proposals that we have and

         17        the desire to dwindle them down.  But frankly, that's my

         18        concern is that we would be asking members to pass again

         19        without having had the benefit of public input which I, at

         20        least, and members of the public understood they would

         21        have before these matters were potentially eliminated for

         22        lack of adequate consideration or lack of an adequate

         23        vote.

         24             COMMISSIONER MILLS:  Well, that's a reasonable

         25        question.  That is the issue.  If you want to, during this


          1        week of consideration dwindle down at all.  We have a

          2        week, and it's probably the most focused time we have

          3        because we have focused it down to a number of issues.

          4        And, of course, there has been considerable public input.

          5             If you look at the breadth of the proposals, I think

          6        you'll see that -- it's hard to foretell what this

          7        commission will do.  There are not that many that are

          8        likely to be killed by a majority vote, but there are

          9        some.  And so the question that you have as a commission,

         10        as to whether you want to adopt this report, is whether

         11        you want to do that.  There are, I think, Mr. Chairman, 56

         12        proposals.  And the issue is, is this the time?  Do we

         13        know enough after having, I guess, several months of

         14        public and committee input make a determination.

         15             That was, I believe, the thinking of the committee

         16        and chairman that if at this point it was unable to get

         17        even a majority, that it was unlikely in the future that

         18        it would get the requisite 22 votes.

         19             CHAIRMAN DOUGLASS:  Commissioner Hawkes is next.

         20        You're next, Commissioner Smith.

         21             COMMISSIONER HAWKES:  Thank you, Mr. Chairman.

         22        Commissioner Mills, I can appreciate with 56 proposals

         23        that it would be desirable to cut them down so that Style

         24        and Drafting could have an easier time performing their

         25        job but also so the public could have an easier time in


          1        offering their input to the commission.  And instead of

          2        maybe voting some up and some down, maybe if the

          3        committee, the Style and Drafting Committee, came forward

          4        and said, These are the proposals that have less than

          5        maybe 18 votes when they passed.

          6             And these proposals, we're not going to have a vote

          7        on whether or not you support it or don't support it;

          8        we're going to have a vote on whether or not you think it

          9        ought to go forward or not go forward, change the question

         10        so that if I vote no, I'm not voting against the proposal,

         11        I'm voting against it going forward.  And all we're doing

         12        then is tying to narrow down the 56 to 40 or 50 or 20 or

         13        whatever that number happens to be.  But we start with

         14        those that might have some question as to whether or not

         15        they could receive 22 votes anyway if that would be

         16        something the commission would support.

         17             COMMISSIONER MILLS:  Well, you also have that

         18        information available before you in terms of how many got

         19        more than 22 votes.  But again, I think it was the feeling

         20        of the committee at this point that this group is pretty

         21        sensitive to public input.  This group has had a lot of

         22        time to think about these and that we may be coming to a

         23        point at which it's time to make some final decision.

         24             CHAIRMAN DOUGLASS:  Commissioner Smith?

         25             COMMISSIONER SMITH:  Thank you, Mr. Chairman.  First


          1        of all, I really appreciate the difficulty that Style and

          2        Drafting has with regard to trying to decide how we're

          3        going to get from where we are right now to the final

          4        product.  My input is as follows.  One, I would hope that

          5        with regard to those proposals that have already gotten 22

          6        votes that we not vote again on those proposals at all at

          7        this juncture.

          8             We have some proposals, and I've discussed at least

          9        one of them with a colleague that had won by one vote or

         10        two votes, 14-13, 15-14.  And a lot has to do sometimes,

         11        as the Chair has indicated, with who is present.  So with

         12        a lot of those votes that are under 22, and I don't know

         13        whether we want to just say under 22 or under 18 votes or

         14        whatever.  Obviously, I think that we should look at

         15        readdressing those issues because I think that although

         16        Commissioner Connor has a very good point about input of

         17        the public, if, in fact, these are issues that I think

         18        can't get the requisite number of votes eventually, at

         19        least a majority vote, they are not going to get on the

         20        ballot anyway.

         21             So I really believe that there is a compromise in the

         22        Style and Drafting recommendations and I would hope that

         23        with regard to those that have 22 votes already that we

         24        definitely move forward with having those issues, issues

         25        that will be discussed at public hearing.  And the other


          1        issues, 14-13 votes, 15-12 votes, things like that, I have

          2        no objection in taking another crack at those.

          3             CHAIRMAN DOUGLASS:  Commissioner Nabors?

          4             COMMISSIONER NABORS:  The only comment I would add to

          5        what Commissioner Smith said is, I understand the

          6        procedure that we're going through, that even those who

          7        got 20, 22 votes or even greater, that we would have the

          8        opportunity to amend those by majority vote.  If we just

          9        wipe those off and take them up at the end, it would

         10        probably take 22 votes to amend them.  So there may be

         11        some housekeeping we might need to do during this week,

         12        even those who got more than 22.

         13             CHAIRMAN DOUGLASS:  Commissioner Mills, do you want

         14        to address that?

         15             COMMISSIONER MILLS:  Well, Mr. Chairman, that was

         16        part of the sense of the committee and the Chairman in

         17        doing this has a fair opportunity to readdress some of

         18        these issues before we get to ultimate pairing in a higher

         19        extraordinary way.  There are some amendments to some of

         20        the various proposals that are still pending that are

         21        probably wise, some that are technical, and others that

         22        just may simply make sense to the body.  So I think

         23        Commissioner Nabors' point is probably well taken.

         24             CHAIRMAN DOUGLASS:  Commissioner Lowndes?

         25             COMMISSIONER LOWNDES:  Yes, I'm on the Style and


          1        Drafting Committee and I think the Style and Drafting

          2        Committee has come up with a good plan.  I'd like to point

          3        out a couple of things about it.  And one of them is that

          4        when something gets 22 votes under the Style and Drafting

          5        Committee's proposed plan, that's a final vote on it

          6        unless it is put up for reconsideration.  The -- and we

          7        don't have to deal with it again unless a majority of the

          8        people want to deal with it again.

          9             The second point I would make is, I think we have to

         10        come to a time when we would begin to prioritize things.

         11        There are a lot of things we've talked about that are good

         12        ideas.  And if you deal with them separately and

         13        individually and in a vacuum, you would say, That's a good

         14        idea.  But we've got to come to the proposition and decide

         15        which one of these good ideas are the ones we want to put

         16        in the Constitution because I don't think we can put all

         17        56 or 58 or whatever on the ballot because I think if we

         18        do, we are going to create a self-defeating circumstance.

         19             So I think when we vote on these as in the style --

         20        proposed for the Style and Drafting Committee, I think

         21        that we need to prioritize.  I think we need to decide

         22        which one of our good ideas we want on the ballot.  And I

         23        think this gives us the opportunity to do that.  Thank

         24        you.

         25             CHAIRMAN DOUGLASS:  All right.  Commissioner Smith?


          1             COMMISSIONER SMITH:  Question of Commissioner

          2        Lowndes.  Commissioner Lowndes, let's just take an issue.

          3        Judge Barkdull, Proposal 153 corrects the schedule which

          4        deals with JQC.  It had 22 votes, 22 to 0.

          5             Now does that mean that that will not be voted on

          6        again this week?

          7             COMMISSIONER LOWNDES:  Yes, it will be voted on this

          8        week.

          9             COMMISSIONER SMITH:  It will be voted on this week?

         10             COMMISSIONER LOWNDES:  Yes, sir.  And if it's voted

         11        on this week and if it gets 22 votes, that is a final vote

         12        with respect to that unless it's reconsidered.  But in the

         13        final vote -- the final, final vote is going to be when

         14        that is grouped in a series of technical amendments.

         15             CHAIRMAN DOUGLASS:  All right.  Somebody that hasn't

         16        spoken.  Y'all have both spoken.  Somebody else that

         17        hasn't spoken wants to speak?  Now Commissioner

         18        Wetherington I think is trying to go.

         19             COMMISSIONER WETHERINGTON:  I'm just trying to get

         20        clear what we're going to be doing this week.  We voted on

         21        these things, how many times are we going to vote on them?

         22        I mean, at some point or later, you know, we have to make

         23        a decision on some of these things.  And I think we can't

         24        keep postponing and deferring.  We've had 12 days of

         25        public hearings, 5,000 letters and stuff like that.  We've


          1        had a lot of input already and we've discussed these

          2        things in committee and here a great deal.  There's some

          3        we have to keep working on that are very complicated and

          4        are going to require maybe further analysis.

          5             But it seems like we should be at the point where we

          6        should be taking some votes this week and things that

          7        clearly aren't going to make it, we should get rid of.

          8        And in that spirit, I've got one that's a proposal I have

          9        and I know it has a very slight majority and I'm probably

         10        going to withdraw it because it isn't going anywhere.

         11             CHAIRMAN DOUGLASS:  What's the number?  We'll do it

         12        right now.

         13             (Laughter.)

         14             COMMISSIONER WETHERINGTON:  I'll do it right now if

         15        you want me to.

         16             CHAIRMAN DOUGLASS:  I didn't want to ask you -- to

         17        see if I understand what you're talking about, today and

         18        this week the items that will be on the agenda, no matter

         19        what the vote was, except those that have died by not

         20        getting a majority vote, anything that got over a majority

         21        vote we'll run through them and vote.  Those that get 22

         22        votes, that will be a final vote on that proposal unless

         23        somebody moves to reconsider; is that correct?

         24             COMMISSIONER MILLS:  That's correct.

         25             CHAIRMAN DOUGLASS:  So if there is no motion like on


          1        these 28 to nothings, if there is no motion to reconsider,

          2        that's a final vote, it's over.  Then those that get a

          3        majority vote will go forward for public hearing along

          4        with those that received the 22 votes and then when we

          5        come back to our next meeting, we'll have nothing but

          6        final votes; is that right?  And reconsideration of those

          7        that got 22 votes?

          8             COMMISSIONER MILLS:  That's correct.  And as you

          9        evaluate this proposal, think about the constraints we're

         10        dealing with.  We -- to take any final votes, final, final

         11        votes this week before we go back to public hearings

         12        doesn't make sense.  I mean, in other words, 22 votes that

         13        we say we made our final decision without potential for

         14        reconsideration before going back to the public.

         15             However, we have learned enough in the last four

         16        months to know that there are some issues which need to be

         17        changed.  And furthermore, when you sit down and look at

         18        the relationship of these issues to each other, and that

         19        is when you look at all of the issues we've dealt with

         20        that dealt with the judiciary, all the issues we've dealt

         21        with that deal with elections, I think it helps your

         22        perspective as to see which things that you wish to go

         23        forward.

         24             In other words, it is a useful process to discuss

         25        these things in context on this day knowing that you have


          1        a chance to correct these, a chance to move some forward

          2        and to face the public hearings and final decision, but

          3        this is the first time you have had a chance -- it is the

          4        first time you have had a chance to see the entire

          5        spectrum of what you passed.

          6             And so I think, Mr. Chairman, that it was the intent

          7        of the committee to try to provide a fair process

          8        considering the upcoming public hearings and to be fair to

          9        the commission in terms of maximizing the commission's

         10        input.  Of course we're willing to accept all

         11        reasonable --

         12             CHAIRMAN DOUGLASS:  And I'm going to recognize

         13        Commissioner Henderson who has not been recognized.  I'll

         14        get back to you fellows that have been speaking before.

         15             COMMISSIONER HENDERSON:  I'm just trying -- thank

         16        you, Mr. Chairman, Commissioner Mills, helping me

         17        understand this.  First of all, I think you've all done an

         18        outstanding job of trying to bring this back together for

         19        us to attempt to winnow (sic) this a little bit before we

         20        go to public hearing.  But I'm not sure about the

         21        statements that are being made here about this might be

         22        the last time we vote on something because the reality of

         23        it is that if it gets 22 votes and it goes to public

         24        hearing, then the next thing the committee is going to do

         25        is to vote to group these things.  And what will be back


          1        before us will be either -- would be something that --

          2        we're getting close to ballot language at that point.

          3             So you're going to look at a grouped question or

          4        whether or not an individual matter is worthy of standing

          5        on its own.  So even though we might not be -- I think you

          6        all said we voted on this last time this week.  We're

          7        still coming back for the grouping, are we not, and for a

          8        final vote on the actual language of the proposition as it

          9        goes to the voters; is that not correct?

         10             COMMISSIONER MILLS:  That's correct.  And really if

         11        you -- there are a couple of different policy issues.

         12        This would be the last time with some exceptions you see

         13        these things as individual proposals.

         14             (Off-the-record comment.)

         15             CHAIRMAN DOUGLASS:  Commissioner Thompson?

         16             COMMISSIONER MILLS:  Next time we can come back we

         17        will have to start grouping these things.

         18             CHAIRMAN DOUGLASS:  Commissioner Thompson?

         19             COMMISSION THOMPSON:  Mr. Chairman, a lot of good

         20        questions have been raised.  I had one or two myself on

         21        how we're going to respond to the public when they come up

         22        and want something to be killed dead, dead, dead.  Or if

         23        there is something that nobody has filed and they want us

         24        to talk about.  I wonder though, Mr. Chairman, if it

         25        wouldn't be wise for us just to go ahead with what we know


          1        we have before us.  We have some reconsiderations and we

          2        have some issues, I think, like some of the sovereign

          3        immunity issues and so forth that we haven't dealt with,

          4        get on with our business.  We can talk about this as we go

          5        today and maybe come up with some kind of a unanimity.

          6             CHAIRMAN DOUGLASS:  Yeah, I think that would be a

          7        good proposal to save time.  We can debate this a long

          8        time but I think it would be more appropriate to move

          9        forward.  We have a page or so here of items that have to

         10        be reconsidered and a couple that have not been considered

         11        that are on today.  When we conclude that, we can come

         12        back to this motion and that will give everybody time to

         13        think about it.

         14             If that's agreeable, the Chair will rule we will

         15        temporarily pass this motion until such time as we

         16        complete the current special order which includes the

         17        matters on reconsideration and the two or three items that

         18        are up for special order today.

         19             All right.  With that being the case, Commissioner

         20        Barkdull, I'd call on you to direct us to the calendar,

         21        please.

         22             COMMISSIONER BARKDULL:  Well, you've got the calendar

         23        in front of you and the ruling of the Chair, then let's

         24        revert to the order of business as established in the

         25        calendar.  The first matter that's up on reconsideration


          1        is Proposal No. 13 by the Committee on Declaration of

          2        Rights.  It's pending on a motion to reconsider by

          3        Commissioner Riley.

          4             CHAIRMAN DOUGLASS:  All right.  This was on the

          5        committee substitute for Proposal 13 by the Committee on

          6        Declaration of Rights and Commissioner Brochin.  Read it,

          7        please.

          8             READING CLERK:  Committee substitute for Proposal

          9        No. 13, a proposal to revise Article 1, Section 22,

         10        Florida Constitution; providing that a defendant charged

         11        with a capital offense may not be sentenced to death

         12        unless such sentence is recommended by 9 members of a jury

         13        of 12 persons.

         14             CHAIRMAN DOUGLASS:  For those of you that weren't

         15        here and haven't been paying too much close attention

         16        today, this is the capital offense proposal.  It was

         17        originally the proposal by Commissioner Brochin which was

         18        a 9-3 vote to impose the death penalty.

         19             He changed it to a unanimous vote by amendment, or

         20        sought to.  It was then amended to provide for three

         21        alternative sentences including the death penalty, life

         22        imprisonment, solitary confinement, or life imprisonment

         23        without parole in both instances.  And I think that was

         24        what was adopted, was it not, Commissioner Brochin?

         25             And then it was on a motion to reconsider.  It is now


          1        a motion to reconsider that vote made by Commissioner

          2        Riley.  We will debate the motion to reconsider only.  Is

          3        there anything to be -- anybody wants to say on the motion

          4        whether or not we reconsider.  Commissioner Scott?

          5             COMMISSIONER SCOTT:  Mr. Chairman, Commissioner

          6        Mills, I have an inquiry of the Chair.  This matter will

          7        today be then voted on reconsideration or not voted or

          8        whatever.  Now are we going to take that up again and vote

          9        on it again this week?

         10             CHAIRMAN DOUGLASS:  No.  I rule we don't.  It would

         11        be superfluous to do it again this week.  We're having the

         12        same vote on this we're going to have on the others,

         13        Commissioner Scott.  It either does or doesn't.  Now I'm

         14        perfectly amenable if the committee -- the Rules Committee

         15        wants to bring it up again during the week, that's fine

         16        with me.  But my own thought is if we have the debate on

         17        it today, if it's defeated on reconsideration, then we

         18        must then go back to it.  If it's granted on

         19        reconsideration we have to address it.  So we're on

         20        reconsideration at the moment only.  The question may be

         21        premature.

         22             COMMISSIONER SCOTT:  Mr. Chairman, it may be

         23        premature because we've got these other items on

         24        reconsideration.  And my question is, are we going to

         25        debate and vote on them on reconsideration today and then


          1        redebate them later this week again and when it would

          2        require 22 votes I assume to do something.

          3             CHAIRMAN DOUGLASS:  What I perceive is right now

          4        we're on the issue of whether or not we're going to vote

          5        to reconsider.  If that fails, then the -- it will stand

          6        as it passed, as an issue.  It would then go on the

          7        calendar the same as the other items that received

          8        majority vote and probably be placed at the end of the

          9        special order.  That's up to you-all on the committee.

         10             Rather than take it up the second time today, if it

         11        votes to reconsider it, and then we go back and debate it,

         12        I think we could consider whether or not we wanted to

         13        consider that the final vote on it.  It might not get the

         14        majority vote on reconsideration either, Commissioner

         15        Scott, we haven't reached that point yet.

         16             I'm saying, you have a valid question but it may be

         17        premature.  We're on the motion to reconsider regardless

         18        where we wind up.  Commissioner Brochin, Commissioner

         19        Riley's motion, but you want to address it, correct?

         20             COMMISSIONER BROCHIN:  I'd like to, yes.

         21             CHAIRMAN DOUGLASS:  Okay.

         22             COMMISSIONER BROCHIN:  I'm not sure I understand

         23        procedurally where we're going.

         24             CHAIRMAN DOUGLASS:  Right now we're on the motion to

         25        reconsider.  If it fails, then we'll deal with that next.


          1             COMMISSIONER BROCHIN:  Let me argue then in favor of

          2        the motion to reconsider with the idea that we should not

          3        pass out the proposal that was passed out last time we

          4        were here.  And by way of reminder, and this could go back

          5        to what Commissioner Mills was addressing as a close vote,

          6        the proposal that passed that is supposedly going forward,

          7        I believe passed by 16 to 13 and it was therefore

          8        relatively close.

          9             I will tell you there are two components to this, the

         10        proposal that we passed by 16 to 13 which I'd ask you to

         11        reconsider because I consider it to be a very poor idea,

         12        both in terms of practicality but even more so a poor idea

         13        for our Constitution.  By way of reminder, what that

         14        proposal did was to mandate the jury and the jury only to

         15        make a decision on the sentencing in capital offenses.

         16        And it would now give juries three options under that

         17        scheme that would be a mandate.

         18             It would not only be a jury mandate, what it does do,

         19        it reverted it back to a 7-5 or simple majority vote of

         20        that jury and that jury would have the option of, as I

         21        understand it, the penalty of death, the penalty of life

         22        imprisonment without parole, the penalty of life

         23        imprisonment in solitary confinement, and I suppose the

         24        fourth provision would be life imprisonment.

         25             This is not, in my view, appropriate language for the


          1        Constitution.

          2             CHAIRMAN DOUGLASS:  All right.  Now we're on the

          3        motion to reconsider, not arguing the proposal.

          4             COMMISSIONER BROCHIN:  Okay.  Well, I thought that's

          5        why we ought to reconsider --

          6             CHAIRMAN DOUGLASS:  That's why you want to reconsider

          7        it.  You feel that what's now there should not be what we

          8        do.

          9             COMMISSIONER BROCHIN:  I believe that we ought to

         10        defeat this proposal and this proposal should not go

         11        forward as a constitutional amendment on the death

         12        penalty, and that's why I ask that it be reconsidered and

         13        you vote in favor of it.  And beyond that, I suppose there

         14        are more articulate reasons as to why.

         15             CHAIRMAN DOUGLASS:  If the motion to reconsider

         16        passes, obviously you'll have an opportunity to debate

         17        anything you want to debate.  Anybody on the motion to

         18        reconsider?  Commissioner Smith, excuse me -- Commissioner

         19        Evans?

         20             COMMISSIONER EVANS:  I have a question.

         21             CHAIRMAN DOUGLASS:  Yes, Commissioner Evans.

         22             COMMISSIONER EVANS:  If we vote to reconsider and

         23        then -- well, I don't know at what point, but is there

         24        ever a possibility that the original language would get a

         25        chance to get substituted back in?


          1             CHAIRMAN DOUGLASS:  Well, you can offer an amendment

          2        if it's voted to -- if we vote to reconsider, it is open

          3        for amendment.  You can offer any kind of amendment.

          4             COMMISSIONER EVANS:  And that would be when we are on

          5        reconsideration, not on the vote for reconsideration?

          6             CHAIRMAN DOUGLASS:  That's right.  It would be after

          7        this vote.  If it is successful that it be reconsidered,

          8        you can offer any amendment you want.

          9             COMMISSIONER EVANS:  Okay.  Thank you.

         10             CHAIRMAN DOUGLASS:  Commissioner Smith?

         11             COMMISSIONER SMITH:  Thank you, Mr. Chairman.  I am

         12        asking that we vote to reconsider it for the reason raised

         13        by Senator Scott with his question because if we vote to

         14        reconsider it, the vote we then take is this week's vote,

         15        we have got to take this week's vote anyway.  In other

         16        words, it's 16-13, correct, and with it being 16-13, at

         17        some point we have got to vote on it.

         18             CHAIRMAN DOUGLASS:  All right.  Well, let's vote on

         19        the reconsider -- I told him I'd wait and rule to see if

         20        we reconsidered it and then I'm going to ask the Rules

         21        Committee to meet and caucus and tell me how to rule on

         22        that point.  But at this point, we are on the motion to

         23        reconsider.  Commissioner Morsani?

         24             COMMISSIONER MORSANI:  If we vote not to reconsider

         25        it, can we kill this devil?


          1             CHAIRMAN DOUGLASS:  No, you would have to kill it

          2        when it comes back up for --

          3             COMMISSIONER MORSANI:  But it's not going to be

          4        reconsidered.

          5             CHAIRMAN DOUGLASS:  No, no, it passed.  So you'll

          6        reconsider --

          7             COMMISSIONER MORSANI:  I don't want anything to do

          8        with it.  How do we do that?

          9             CHAIRMAN DOUGLASS:  You have to wait.  You have to

         10        wait.  Commissioner Barkdull?  You can pass the

         11        reconsideration and then vote against it.  Commissioner

         12        Barkdull?

         13             COMMISSIONER BARKDULL:  Mr. Chairman, that's a point

         14        I just wanted to make to Commissioner Morsani.  I'm in the

         15        same boat he is.  I'm going to vote to reconsider but that

         16        doesn't mean I'm going to vote for it on the merits

         17        because I'm going to vote to defeat it.

         18             CHAIRMAN DOUGLASS:  Very well.  Does everybody

         19        understand?  Once it is on reconsideration you get to vote

         20        all over again.  If you don't like it, you can vote no,

         21        you can vote for amendments, you can vote to pass it, you

         22        can vote whatever you want to.

         23             COMMISSIONER MORSANI:  Let me ask Commissioner

         24        Thompson, is that okay?

         25             CHAIRMAN DOUGLASS:  Let's get his view, the minority


          1        view.

          2             COMMISSIONER THOMPSON:  Glad you asked that because I

          3        want everybody to understand what we're talking about.

          4        This thing has passed.  Do you understand that?  I mean,

          5        it has passed like so many things have passed and somebody

          6        has filed a motion to reconsider.  So if you want it to

          7        stay passed, you vote against the motion to reconsider.

          8        If you want to bring it up, change it, or if you want to

          9        defeat it, you vote for the motion to reconsider.

         10             CHAIRMAN DOUGLASS:  Let's get on to the motion to

         11        reconsider.  All those in favor of the motion to

         12        reconsider, say aye.  Opposed.

         13             (Verbal vote taken.)

         14             CHAIRMAN DOUGLASS:  Motion to reconsider carries.

         15        We're now on the proposal as amended.  And I recognize --

         16        do you have an amendment on the table?  Does somebody have

         17        an amendment on the table?  No amendments on the table.

         18        All right.  Commissioner Brochin?

         19             COMMISSIONER BROCHIN:  Actually, I'd like to seek at

         20        this point a clarification.  If I understand it correctly,

         21        now that we have, are reconsidering it and we are going to

         22        vote on this, if we defeat the proposal that we once

         23        passed, then I am assuming it would revert back to the

         24        amendment that I initially filed?

         25             CHAIRMAN DOUGLASS:  No, if you defeat this, it is a


          1        dead subject only to a motion to reconsider to be heard

          2        tomorrow.  Or to be made by tomorrow and heard the next

          3        day.

          4             COMMISSIONER BROCHIN:  But the motion that passed,

          5        the amendment that passed --

          6             CHAIRMAN DOUGLASS:  It won't even do that unless it

          7        is amended.

          8             COMMISSIONER BROCHIN:  But the amendment that passed

          9        that we are reconsidering was a substituted amendment for

         10        the amendment that I offered on the unanimous --

         11             CHAIRMAN DOUGLASS:  The Chair rules if you vote to

         12        kill this, you vote no on the pending proposal, which is

         13        the way it was amended and the way it was passed; if you

         14        vote against that, it's dead.  But if you vote for it,

         15        just like it is now, and it gets a majority vote, it would

         16        go forward.  Commissioner Barkdull?

         17             COMMISSIONER BARKDULL:  Mr. Chair, if there is a vote

         18        for it, now as amended, and it should pass, it would be

         19        subject to a reconsideration.  Or if it fails, it would be

         20        subject to a reconsideration.

         21             CHAIRMAN DOUGLASS:  It is okay with me.  I'll

         22        reconsider it forever.  All I want to do is just get a

         23        vote on it.  Commissioner Scott?

         24             COMMISSIONER SCOTT:  Mr. Chairman, I still think it

         25        is important to clarify that this matter is now back on


          1        its first vote and so whatever happens to it happens.  But

          2        if it goes forward, it is still going to -- if it is voted

          3        positively, it would still have to be revoted later this

          4        week if that's the procedure --

          5             CHAIRMAN DOUGLASS:  That's correct.

          6             COMMISSIONER SCOTT:  -- the commission follows.  But

          7        if it fails, it's dead.

          8             CHAIRMAN DOUGLASS:  That's correct too.  All right,

          9        debate on the proposal.  Commissioner Wetherington?

         10             COMMISSIONER WETHERINGTON:  With all due respect, the

         11        suggestion of an option which includes life imprisonment

         12        with solitary confinement, I have never heard of anything

         13        like that, it's as unrealistic as anything in the world I

         14        can think about.  Talking about taking somebody and

         15        sticking them by themselves for life, I mean, it is almost

         16        unthinkable.

         17             What does this advance anything?  You are keeping the

         18        same ability to kill somebody, you are keeping the same

         19        ability to put them in life, and you are putting a couple

         20        of other things in.  To me it seems like, with all

         21        deference, it seems like a terrible proposal.  I'd rather

         22        have absolutely nothing than to have this.

         23             CHAIRMAN DOUGLASS:  Commissioner Wetherington, do you

         24        realize that's a federal law and the person that was

         25        convicted in Denver was sentenced to that sentence?


          1             COMMISSIONER WETHERINGTON:  I think it is ridiculous.

          2             CHAIRMAN DOUGLASS:  That's fine, but you said you

          3        never heard about it.

          4             COMMISSIONER WETHERINGTON:  No, I didn't hear about

          5        that, but I think it is ridiculous.

          6             CHAIRMAN DOUGLASS:  We get your point.  All right.

          7        Any further debate on the proposal?  All right.  Are you

          8        ready to vote?  Are you ready to vote?  I am told somebody

          9        has an amendment.  Now, it is not on the table.  If you

         10        have an amendment, it has to be on the table.

         11        Commissioner Brochin, do you have one on the table?

         12             COMMISSIONER BROCHIN:  Because of the ruling, which

         13        I'm not sure I understand nor agree with, I wanted to get

         14        a vote, and I still do, that if this proposal is defeated,

         15        that we consider, which we never have, and never voted on,

         16        the amendment that I offered for unanimous jury

         17        consideration.  So I still have to believe, if you think

         18        this through logically, if you are defeating this

         19        amendment, which was the substitute amendment for my

         20        original amendment on reconsideration, then if you defeat

         21        it, then my amendment for unanimous consideration has to

         22        be considered at that time.

         23             If that's not the case, which seems to make sense to

         24        me, then I need to get an amendment to put back the

         25        amendment that I originally filed to the committee


          1        substitute.

          2             CHAIRMAN DOUGLASS:  Is it your understanding that if

          3        somebody -- now that we are on reconsideration, we voted

          4        to reconsider it, if somebody moved to reconsider the

          5        amendment we could proceed on that?

          6             COMMISSIONER SCOTT:  Yes, exactly, Mr. Chairman, how

          7        did you know?

          8             CHAIRMAN DOUGLASS:  I finally figured out that's what

          9        he wants to do.  So what he wants is a motion -- but it

         10        has to be somebody that voted with the prevailing side on

         11        the amendment.  I think it passed.  We voted on the

         12        amendment.  The amendment he wants to get out of the way

         13        is the one that replaced his.

         14             Commissioners, what he wants to do is remove the

         15        amendment that passed to replace the one that he had which

         16        was to provide for a unanimous jury verdict for death.

         17        That's what he is trying to get to.

         18             (Off-the-record comment.)

         19             CHAIRMAN DOUGLASS:  That's correct.  So if he moves

         20        to reconsider that, it won't work.  It goes then back to

         21        the 9-3 vote; is that correct?  Why doesn't somebody just

         22        offer an amendment to accomplish what you want to

         23        accomplish?  There is now an amendment on the table.

         24        Please read the amendment.

         25             READING CLERK:  By Commissioner Brochin on Page 1,


          1        Line 23 through 31, delete and insert all of said lines

          2        and insert, Death by unanimous vote of the jury.

          3             CHAIRMAN DOUGLASS:  All right.  There is an amendment

          4        to strike everything except death by unanimous vote of the

          5        jury will now be the requirement for death penalty; is

          6        that right, Commissioner Brochin, is that your amendment?

          7             COMMISSIONER BROCHIN:  If I can just get a second to

          8        look at it.  (Pause.)  It is closer.  I hesitate.  If you

          9        will pass this, I will write the amendment so I can get it

         10        in the proper procedural posture.

         11             CHAIRMAN DOUGLASS:  All right.  We are going to take

         12        a five-minute recess for Commissioner Brochin to write his

         13        amendment.  We are not going to do it except by the rules.

         14        And we will take a five-minute recess.  Now you get your

         15        stuff together there and get us an amendment, please, sir.

         16             (Brief recess.)

         17             CHAIRMAN DOUGLASS:  Come to order, please.  Everybody

         18        take their seat.

         19             SECRETARY BLANTON:  All commissioners indicate your

         20        presence.  Quorum call.  Quorum call.  All commissioners

         21        indicate your presence.

         22             CHAIRMAN DOUGLASS:  All right.  Do we have a quorum?

         23             SECRETARY BLANTON:  Quorum present, Mr. Chairman.

         24             (Quorum taken and recorded electronically.)

         25             CHAIRMAN DOUGLASS:  Everybody be seated.  All right.


          1        Commissioner Brochin has the floor and he's offering an

          2        amendment which is on the table.  Would you read the

          3        amendment, please?  All right.  Everybody pay attention

          4        here, it's the Brochin amendment we have been waiting for

          5        with bated breath.  Read the amendment, please.

          6             READING CLERK:  By Commissioner Brochin on Page 1,

          7        Lines 20 through 31, delete all of said lines and insert,

          8        No person shall be sentenced to death unless unanimously

          9        recommended by a 12-person jury.  This subsection shall

         10        not retroactively affect any death sentence imposed before

         11        its effective date.

         12             CHAIRMAN DOUGLASS:  All right.  Commissioner Brochin,

         13        you are recognized on your amendment.

         14             COMMISSIONER BROCHIN:  This is the proposal that I

         15        brought forward very early in the process, in fact, that's

         16        why it got its original number so low at 13.  Let me just

         17        take one minute to explain the mechanics of it before I

         18        tell you why we ought to and why we need to do this.

         19             The way this works is actually not only fundamentally

         20        fair but it is fundamentally simple.  And it works this

         21        way, the 12-persons who try and listen to the evidence as

         22        to whether the defendant is guilty would then again go

         23        into a sentencing hearing phase which is done today, they

         24        would hear evidence regarding whether or not the death

         25        penalty should be imposed for this particular defendant.


          1             After that same 12-person jury that heard the

          2        evidence as to whether or not he was guilty, and after

          3        that same 12 person jury hears the evidence on whether or

          4        not the death penalty shall be imposed, they would then

          5        make a recommendation to the judge as to whether the death

          6        sentence should be imposed.

          7             This would be a constitutional protection or

          8        threshold that would say unless all 12, just like they did

          9        when they voted to convict them, voted to invoke the death

         10        penalty, then the court would not have the option, when

         11        sentencing, of sentencing him to death but could use all

         12        other options available under the criminal laws for

         13        sentencing.

         14             If, on the other hand, the 12-person jury unanimously

         15        recommends that sentence be imposed, then the judge takes

         16        that recommendation and has the clear constitutional

         17        authority to go ahead and impose the death sentence.

         18             This is the way 28 states out of 38 states in our

         19        country do it.  They require as a minimum threshold

         20        requirement that they unanimously say that we have heard

         21        the evidence on this case and we, the same jury, believe

         22        that we should also invoke the death penalty for this

         23        case, because it is of such heinous and atrocity that

         24        penalty is deserving in this state.

         25             It does not eliminate the death penalty, it does not


          1        increase the death penalty.  It simply places in our

          2        Constitution a protection to say that with all of the

          3        other arbitrary and capricious factors, with all the other

          4        human elements that go into this, the state of Florida

          5        uniformly, whether you are in Pensacola, Jacksonville,

          6        Miami or Orlando, we all know that 12 persons will have

          7        unanimously said that the penalty is appropriate in these

          8        circumstances.

          9             Now a lot has been written about the death penalty.

         10        And even when I got home to Miami there is a special

         11        edition saying more than ever, the courts labor in the

         12        shadow of the death penalty.  It is frustrating, divisive

         13        and so time consuming that it threatens the quality of

         14        justice in the rest of the courts case loads; asking, is

         15        "Old Sparky" worth it.

         16             As we struggle, and we will struggle in the next 20

         17        years to implement this penalty, there are going to be a

         18        lot of factors that are going to be out of the citizenry's

         19        control.  This is a protection to know that 12 people

         20        unanimously believe it is appropriate.  It takes 12 people

         21        to convict, it takes 12 people to take our property

         22        unanimously in this state, it takes 12 people to take

         23        15 -- or six people unanimously to take $15,000 out of our

         24        pocket.

         25             Certainly we ought to have the constitutional


          1        protection in that before the Governor of this state, the

          2        Chief Justice of this state, the Attorney General of this

          3        state move forward under their due constitutional

          4        authority, that they know that 12 people who heard that

          5        evidence believe that this is appropriate.

          6             It will take out some of the arbitrary results that

          7        we have seen.  And if that doesn't convince you, if that

          8        doesn't convince you, this statistic should:  In the last

          9        20 years, 70 people in death rows in this country, 70,

         10        have been released because of indicia of innocence.

         11        Seventy.  With DNA evidence developing the way it is, with

         12        scientific evidence developing the way it is, human beings

         13        make mistakes.  That's why our entire criminal justice

         14        system is built on the premise that you have to show not

         15        that they are guilty, but that they are guilty beyond a

         16        reasonable doubt.

         17             And I suggest to you, most humbly, that when it comes

         18        to the ultimate sentence of death, that we should not have

         19        not only no reasonable doubt, we should have no doubt.

         20        And therefore the time for this proposal has come.

         21        Florida needs to step up to where the rest of the country

         22        is in terms of trying to implement this penalty.

         23             Now I know, and I know this from talking to many of

         24        you, you are concerned about putting this on the ballot.

         25        That it is not going to pass, that it is not a popular


          1        cause.  And, indeed, it is not a popular cause.  But

          2        constitutions by their very essence are not supposed to be

          3        about just popular issues.  They are supposed to be about

          4        protections of our liberties and our democracy.  And we do

          5        turn guilty people free and we do make sure before we

          6        execute people that they are guilty, even at the expense

          7        of not executing people because that's what democracy

          8        demands.

          9             And our state is behind on this.  Our state needs to

         10        be where it is all 12 say yes.  So I ask that you think

         11        about this.  I think that -- I don't want to say, keep it

         12        alive because that's becoming already pass‚ here, but

         13        let's hear what the people have to say about this.  I

         14        think we are underestimating greatly by saying this is a

         15        bad issue, it is going to pull all the issues down, there

         16        are no constituents out there because I don't think you

         17        are going to present it as whether it is for the death

         18        penalty or against the death penalty.

         19             I think I'm going to ask them this question, and that

         20        question is:  Should we have 12 jurors telling us which

         21        cases are appropriate for the death penalty?

         22             So for all those reasons I ask that you think, think

         23        hard and pass this amendment.

         24             CHAIRMAN DOUGLASS:  Commissioner Barkdull.

         25             COMMISSIONER BARKDULL:  Will the gentleman yield for


          1        questions?

          2             CHAIRMAN DOUGLASS:  He yields.

          3             COMMISSIONER BARKDULL:  Commissioner Brochin, what

          4        public hearing did we have any testimony that requested

          5        this?

          6             COMMISSIONER BROCHIN:  We had no public hearing of

          7        anybody that requested it.  I will tell you I had no

          8        letters of anybody writing me to ask me to put this on the

          9        ballot.  I don't think there is any public ground swell as

         10        a popular issue.  This is not a popular issue.

         11             COMMISSIONER BARKDULL:  Mr. Brochin, this is

         12        something that can be done by statute; can it not?

         13             COMMISSIONER BROCHIN:  Yes.

         14             COMMISSIONER BARKDULL:  Thank you.

         15             CHAIRMAN DOUGLASS:  Any further debate on the

         16        amendment?  Everybody understand the amendment?  All in

         17        favor of the amendment say aye.  All opposed.

         18             (Verbal vote taken.)

         19             CHAIRMAN DOUGLASS:  Let's vote.  Open the machine.

         20             (Vote taken and recorded electronically.)

         21             CHAIRMAN DOUGLASS:  Lock the machine and record the

         22        vote.

         23             READING CLERK:  Twelve yeas, 16 nays, Mr. Chairman.

         24             CHAIRMAN DOUGLASS:  The amendment fails.

         25             We now are on the proposal which was a committee


          1        substitute, proposal as amended.  I guess -- can you read

          2        -- I presume what we need to read is the amendment in

          3        order to read what we are voting on.  The proposal was

          4        amended.

          5             (Off-the-record comment.)

          6             CHAIRMAN DOUGLASS:  All right.  What we are on now is

          7        the amendment which, proposal rather, which passed which

          8        was that the jury would set, in death cases, a penalty of

          9        death by a seven to five vote, life imprisonment, solitary

         10        confinement as an alternative by a seven to five vote, or

         11        life imprisonment without parole.  That's what's before

         12        the body.  Commissioner Kogan.

         13             COMMISSIONER KOGAN:  Mr. Chairman, can I ask a

         14        question?  Am I to understand that this will require on

         15        the verdict form that goes to the jury during the

         16        bifurcated section dealing with penalty, three different

         17        categories; one death, the other life imprisonment and

         18        solitary confinement and the other life imprisonment

         19        without possibility of parole?

         20             And the second question is:  Is the jury's vote

         21        mandatory upon the judge?  Can anybody answer that

         22        question?  I don't know.

         23             CHAIRMAN DOUGLASS:  I think Commissioner Langley

         24        offered an amendment which said the judge, it would

         25        recommend to the judge, didn't you, Commissioner Langley,


          1        when it was on the floor?

          2             COMMISSIONER LANGLEY:  No, sir, Mr. Chairman.  This

          3        was your idea and you wanted it binding on the judge,

          4        whatever -- the jury actually became the sentencing body,

          5        but the sentence was announced and actually adjudicated by

          6        the judge.

          7             COMMISSIONER KOGAN:  The reason I raise that point --

          8             CHAIRMAN DOUGLASS:  There would be no override.

          9             COMMISSIONER KOGAN:  -- is under the terms and

         10        conditions of the U. S. Supreme Court's decision in Furman 

         11        vs. Georgia, and subsequent decisions, you cannot have a

         12        jury death penalty vote that's binding on the judge.

         13        That's the reason I raise that particular point, just a

         14        point of information.

         15             CHAIRMAN DOUGLASS:  All right.  So you rise in

         16        opposition to the proposal, sir?

         17             COMMISSIONER KOGAN:  Well I wouldn't like us to go

         18        ahead and adopt a proposal that on its face violates the

         19        U.S. Supreme Court's decision in Furman vs. Georgia.

         20        That's the problem that I am having here unless somebody

         21        can show me that this doesn't violate it.

         22             Because very simply, as a result of Furman vs. 

         23        Georgia, Florida had to reinstitute the death penalty with

         24        a new death penalty law in the Legislature setting up

         25        aggravating and mitigating circumstances and certain


          1        requirements to conform to that particular opinion before

          2        a valid death sentence can be imposed.  That's the reason

          3        I raise this.

          4             CHAIRMAN DOUGLASS:  I understand, I think everybody

          5        else does.  Does anybody else want to speak in favor or

          6        against the proposal?  Commissioner Brochin.

          7             COMMISSIONER BROCHIN:  I'd like to speak against it.

          8        I think this is a bad idea.  Not only do I think it is

          9        unconstitutional because it takes out, as Judge or

         10        Commissioner Kogan mentioned, the discretion of the judge

         11        to sentence, I think writing into your Constitution a

         12        lock-down of votes as to how a jury should sentence people

         13        is improper for a constitutional amendment.  Could be

         14        proper for a statutory process, but it is wholly

         15        inappropriate Constitutionally.

         16             I also think that we have not thought through this

         17        third alternative, if you will, of solitary confinement --

         18        life imprisonment, solitary confinement, for whatever that

         19        means, I'm not really sure.  But certainly before we go

         20        forward and lock it down in the Constitution, which would

         21        be very difficult to change at some subsequent time, we

         22        ought to know what we are saying when we say life

         23        imprisonment and solitary confinement.

         24             It is not an amendment that I think will do us proud

         25        to take to the public to tell them that this is an option


          1        that we have conceived of and are asking to be put in the

          2        Constitution.

          3             So therefore in light of this commission's will not

          4        to require unanimous verdicts, it seems to me that this

          5        idea ought to be defeated and we will simply have the

          6        status quo.

          7             CHAIRMAN DOUGLASS:  Anybody else?  Anybody want to be

          8        heard?  If not, we will vote on the proposal.  Does

          9        everybody understand what we are voting on?  Unlock the

         10        machine.

         11             (Vote taken and recorded electronically.)

         12             CHAIRMAN DOUGLASS:  Has everybody voted?  Lock the

         13        machine and announce the vote.

         14             READING CLERK:  Zero yeas, 29 nays, Mr. Chairman.

         15             CHAIRMAN DOUGLASS:  By your vote you have defeated

         16        this.  It is no longer with us for future reference.  It

         17        is finis, under any interpretations, Commissioner Smith.

         18             All right.  The next item on the special order,

         19        Proposal No. 130.  Would you read it, please?

         20             READING CLERK:  Proposal 130, a proposal to revise

         21        Article XI, Section 3, of the Florida Constitution;

         22        requiring an initiative petition to be signed by a

         23        specified percentage of the electors from each

         24        congressional district.

         25             CHAIRMAN DOUGLASS:  A motion by Commissioner Freidin


          1        to reconsider.

          2             (Off-the-record comment by Commissioner Freidin.)

          3             CHAIRMAN DOUGLASS:  Commissioner Freidin, your mic

          4        isn't on.

          5             COMMISSIONER FREIDIN:  Then turn it on.

          6             (Laughter.)

          7             COMMISSIONER FREIDIN:  Thank you, Madam Secretary.

          8        Actually this is Commissioner Zack's motion to reconsider,

          9        but I guess, Commissioner Zack, you want me to talk for

         10        it, talk to it.

         11             The reason that I believe that Commissioner Zack

         12        moved to reconsider, which would be my thinking as well,

         13        was this was -- this matter came before you on the report

         14        of the Select Committee on Initiatives.  And we suggested,

         15        you will recall, a program that was perhaps overly

         16        ambitious.  And the idea behind the motion to reconsider

         17        is to discuss with you and to hope that perhaps you would

         18        vote to reconsider this matter so that it could be amended

         19        and make the program a little bit less ambitious.

         20             Let me be a little more specific.  The proposal that

         21        came from the special or the Select Committee on

         22        Initiatives was, really had two aspects to it.  One was to

         23        increase the number of congressional districts to all,

         24        where you had to collect signatures.  And the second part

         25        of it was the idea of having public hearings and a


          1        timetable that would slow down the initiative or the

          2        process to get on the ballot a little bit.  So there were

          3        really two discrete aspects.

          4             The debate seemed to center, at least in my

          5        recollection, the debate seemed to center more on the

          6        concern about increasing the requirements that signatures

          7        be gathered from all congressional districts than on the

          8        question of the public hearings.

          9             And the purpose of the motion to reconsider is simply

         10        to bring this back up so that we could amend the proposal

         11        in order to take out the congressional districts and leave

         12        that as it is, and simply add in the public hearings and

         13        the timetable that would go with the public hearings.

         14             CHAIRMAN DOUGLASS:  All right.  We're on the motion

         15        to reconsider.  We read this; didn't we?  Okay.  Any

         16        further discussion on the motion to reconsider?

         17        Commissioner Henderson.

         18             COMMISSIONER HENDERSON:  Mr. Chairman, in opposition

         19        to the motion to reconsider.  The whole amendment went

         20        through all those issues regarding the initiative process.

         21             And I guess as Ms. Freidin, Commissioner Freidin was

         22        on behalf of Commissioner Zack, I'll be on behalf of

         23        Commissioner Anthony, who we all know is on his honeymoon

         24        this week, I presume he is on his honeymoon this week.  We

         25        presume that, we don't know.  You know, every way you try


          1        to tinker with the initiative process caused some kind of

          2        unintended consequences, which is why I think so many of

          3        us felt that we didn't need to tinker with it at all.

          4             So I guess we can spend a lot of time continuing to

          5        rehash this issue, but I really don't think we're going to

          6        get anywhere with it.

          7             CHAIRMAN DOUGLASS:  Commissioner Zack, in whose name

          8        Commissioner Freidin spoke and in whose name Commissioner

          9        Henderson asked the question, you're recognized.

         10             COMMISSIONER ZACK:  Speaking on behalf of

         11        Ms. Freidin, who I moved to reconsider because she

         12        couldn't, that was the whole basis for the motion to

         13        reconsider.  I was opposed to it before, I plan to vote

         14        against it again.  The fact of the matter is that it is

         15        time that this matter be put to bed and we get on to some

         16        important matters that we do have before us.

         17             CHAIRMAN DOUGLASS:  All right.  Commissioner Rundle.

         18             COMMISSIONER RUNDLE:  Question for Commissioner

         19        Freidin.  Does this include each, a percent of each of the

         20        congressional districts or is it the remaining language of

         21        half?

         22             COMMISSIONER FREIDIN:  The proposal that we are

         23        seeking to have reconsidered deals with the congressional

         24        districts.  The purpose of the motion to reconsider is to

         25        take that completely out of the mix, put back into the


          1        proposal, make an amendment to put back into the proposal

          2        the issue of the public hearings, but leave the

          3        congressional districts exactly as it is.

          4             COMMISSIONER RUNDLE:  So --

          5             COMMISSIONER FREIDIN:  I'm sorry.

          6             COMMISSIONER RUNDLE:  -- you remain with the

          7        8 percent in one-half of all the congressional districts.

          8        And really all you're adding are the public hearings.

          9             COMMISSIONER FREIDIN:  And the schedule that goes

         10        along with the public hearings.

         11             COMMISSIONER RUNDLE:  And the schedule.

         12             COMMISSIONER FREIDIN:  Now, I would have to say that

         13        I very carefully followed the rules and didn't debate the

         14        merits, tried not to debate the merits of this proposal

         15        and I was really only talking to you about why we ought to

         16        reconsider.

         17             But since there have been some issues with regard to

         18        the merits of the proposal that have been raised about

         19        tinkering and unintended consequences and that sort of

         20        thing, as long as I have the floor, Mr. Chairman, I would

         21        like to respond at least, if this is an appropriate time,

         22        to that.

         23             CHAIRMAN DOUGLASS:  We're on reconsideration so the

         24        only thing that's really here is whether or not we should

         25        reconsider the vote.


          1             COMMISSIONER FREIDIN:  It seems to me that it is

          2        germane to the question of whether to reconsider because

          3        we -- the issue really is, is this something that we want

          4        to do because we won't reconsider it if it's not something

          5        we want to do.

          6             The real issue here is informing the public and

          7        trying to find ways that the public can be more informed.

          8        You know, when we started this process and we started

          9        going through public hearings in North Florida, and I'm

         10        not going to mention any names, but there are actually

         11        people who I remember walking to lunch with at one of

         12        those first public hearings who said to me, Was this net

         13        ban thing on the amendment?

         14             Now these are people who are Constitution Revision

         15        Commissioners, who are presumably well-informed citizens

         16        who take a lot of time and trouble and they didn't

         17        remember ever having voted on it.  And that's the point of

         18        all this.  The point of all this is this is our

         19        Constitution, this is something that shouldn't be amended

         20        without people really understanding what they are doing.

         21        And the whole idea behind the public hearing process and

         22        slowing down the process just a little is to give the

         23        public the opportunity or a greater opportunity to become

         24        well-informed and to learn about the issues that they are

         25        being asked to vote on to change the organic law of our


          1        state.

          2             CHAIRMAN DOUGLASS:  All right.  On the motion to

          3        reconsider, Commissioner Riley.

          4             COMMISSIONER RILEY:  I have a question for

          5        Commissioner Freidin.  Commissioner Freidin, if it is

          6        reconsidered, as I understand what you want to do, to

          7        change back to the way it is, the district, the number of

          8        districts, then the only substantive change in it at that

          9        point would be the public hearings.

         10             COMMISSIONER FREIDIN:  Well it would be to provide

         11        for public hearings.  And what goes along with the public

         12        hearings by virtue of necessity would be a timetable that

         13        would require that certain things be done.  And it would

         14        end up requiring that all petitions be filed in order to

         15        qualify for the ballot six months in advance of the

         16        election rather than three months in advance.  I don't

         17        want to mislead you, but that's the effect of it.

         18             COMMISSIONER RILEY:  And because of that change then

         19        it can't be done by the Legislature but it must be done by

         20        the Constitution?  I mean, can the public hearings, which

         21        I think is a very important part, be done by legislative

         22        decision?

         23             COMMISSIONER FREIDIN:  I don't know if it could be

         24        done by the Legislature because this is something that is

         25        a requirement, a prerequisite to getting on the ballot.  I


          1        don't know that that actually could be done by the

          2        Legislature.

          3             CHAIRMAN DOUGLASS:  On the commission -- on the

          4        motion to reconsider Proposal No. 130, any further

          5        discussion?  If not, all those in favor of

          6        reconsideration, say aye.  Opposed.

          7             (Verbal vote taken.)

          8             CHAIRMAN DOUGLASS:  It fails.  No reconsideration

          9        will be held.  We now go to Committee Substitute for

         10        Proposals 138 and 89 by the Committee on Education and

         11        Commissioners Nabors and Riley.  Would you read it,

         12        please?

         13             READING CLERK:  Committee Substitute for Proposal

         14        Nos. 138 and 89, a proposal to revise Article X, Section

         15        15, of the Florida Constitution; limiting the use of state

         16        lottery net proceeds to financing certain educational

         17        facilities or funding early childhood care and education

         18        programs.

         19             CHAIRMAN DOUGLASS:  There is an amendment on the

         20        desk.

         21             (Off-the-record comment.)

         22             CHAIRMAN DOUGLASS:  All right.  This is on the motion

         23        to reconsider the Lottery proposal which passed on

         24        February 9th and it was deferred until today.  So we're

         25        now on a motion to reconsider.


          1             (Off-the-record comment by Commissioner Crenshaw.)

          2             CHAIRMAN DOUGLASS:  Excuse me, it was killed.  It was

          3        killed by a vote of 15 to 17.  You're right, Commissioner

          4        Crenshaw.  And we're now on a motion to reconsider the

          5        vote by which this proposal failed.  And, Commissioner

          6        Nabors, you're recognized.

          7             COMMISSIONER NABORS:  Members of the Commission, let

          8        me -- this proposal, the original proposal that failed

          9        passed once, failed once.  And one of the -- and in our

         10        view, those of you that worked on this, feel this is a

         11        very important and popular concept.

         12             The difficulty was, is in both the passage and the

         13        failure, those of us who believe in this were trying to be

         14        very severe in terms of the dedication of money.  And we

         15        had great debate about creating a hole in the budget,

         16        potentially of 500 -- $450 million and how to phase that

         17        over four years.  We listened to the commission and we

         18        realized that for that severe a position, you're not going

         19        to have a majority vote.  But it still doesn't obviate the

         20        wisdom of having some instructions by the people to future

         21        legislators on the use of Lottery money.

         22             So what we hope to do if we can reconsider is to come

         23        back with a proposal that's a short proposal, which

         24        enumerates an enhancement in educational ideas.  It

         25        doesn't bind the Legislature, it allows legislative debate


          1        to occur, does not create any hole in the budget, but we

          2        think it would be a popular meeting of the citizens, and

          3        would give some instructions from the citizens to the

          4        Legislature as to how to use the Lottery money.

          5             So I would urge you to let us reconsider so we can

          6        look at the language that we want to place before you.

          7             CHAIRMAN DOUGLASS:  Commissioner Riley.

          8             COMMISSIONER RILEY:  Commissioners, I would ask that

          9        we do reconsider this issue.  I think we have heard from

         10        the public and we heard what they said.  They said the

         11        Lottery fund was a very important, very specifically

         12        important issue.

         13             I think we tried to make it right.  And obviously we

         14        didn't get it quite right.  Commissioner Nabors and I have

         15        two different suggestions that if we get the opportunity

         16        we can present to you today that get it just about as

         17        simple as you can get.  But if you read the Constitution

         18        as it is right now, there is no, no guarantee, no

         19        requirement in the Constitution that these funds be used

         20        for education, much less enhancement.

         21             I would ask that we vote to reconsider this and let's

         22        do get it right.  The public knows that this is important.

         23        And if you're not sure, look at the newspaper articles

         24        because when we left here, every time we brought this up,

         25        that was the first thing that people wrote about.  I would


          1        ask that we do reconsider it, let's get it right, let's

          2        put it before the public and go from there.

          3             CHAIRMAN DOUGLASS:  All right.  Commissioner

          4        Sundberg.  Commissioner Rundle, you're next; Commissioner

          5        Smith, you're next.

          6             COMMISSIONER SUNDBERG:  I urge you to vote in favor

          7        of reconsidering this issue.  As Commissioner Riley said,

          8        there may be some disagreement over the precise way in

          9        which we address it, but I suggest to you that the people

         10        of the state of Florida will think it passing odd if we do

         11        not do something about the Lottery.

         12             There has been -- any issue has, I don't think, had

         13        any more ground swell of public concern than the issue of

         14        the use of Lottery funds.  So I suggest to you we need to

         15        keep this alive so we can get it right.  And I also

         16        suggest to you that I think it will be a very positive

         17        issue on the ballot.  I think it will attract voters to

         18        favorably consider all of the propositions that we put

         19        before them.

         20             So I urge you to vote in favor of reconsideration.

         21             CHAIRMAN DOUGLASS:  Commissioner Rundle.

         22             COMMISSIONER RUNDLE:  Commissioner Riley, am I to

         23        understand that if we vote in favor of reconsideration,

         24        which I'm leaning towards, because I think a lot of this

         25        is very good, that you might be changing the language


          1        to -- more simply to say that these Lottery monies should

          2        be used only for enhancement, educational enhancement

          3        programs?  Are you going in that direction?

          4             COMMISSIONER RILEY:  Without arguing the merits of

          5        the proposal itself, I will tell you that Commissioner

          6        Nabors has one that lists very succinctly about four

          7        different areas, not deciding any -- no limitations and

          8        starts out with the dollars must be used to enhance

          9        education, and then lists a few options, not requirements.

         10             The one that I have, if that doesn't meet the

         11        approval of the group, is basically that the dollars would

         12        be used for the enhancement of education, not deciding at

         13        all what that is.  And the second part of that

         14        specifically says the bonding part because by law they

         15        have already done that.  So that would need --

         16             COMMISSIONER RUNDLE:  Then I would support your

         17        motion.  I think we should keep this alive and see if we

         18        can't work it to a position where the voters will want it

         19        and will approve it.

         20             CHAIRMAN DOUGLASS:  Commissioner Smith.

         21             COMMISSIONER SMITH:  Mr. Chairman, I rise for a

         22        question.  And I'm not trying to muddy the waters.  I'm

         23        not sure whether or not the question I'm asking now was

         24        the question that you said that you will take later.  But

         25        let me ask it, and if that's the question you are going to


          1        take later, just advise me because I'm a little unclear.

          2             Three things can happen right now that I see:  One,

          3        we can vote not to reconsider and as Commissioner Thompson

          4        said, it is dead, dead, dead.  Secondly, we can vote to

          5        reconsider it, vote favorably by a simple majority, not

          6        22, or we can vote unfavorably, or we can vote and it

          7        could come out with 22.  I want to know what would be the

          8        difference, if any, if it's reconsidered and it's a

          9        majority voting in favor of it as opposed to 22 or if

         10        there is no difference at this point.

         11             CHAIRMAN DOUGLASS:  My understanding is there really

         12        is no difference.  It would go forward for consideration,

         13        the public hearing, and we would come back and vote on it.

         14        Am I right on that, Commissioner Barkdull?  I am right.

         15             All right.  You rise on the motion to reconsider.

         16        Somebody else -- Commissioner Morsani, you're on the

         17        motion to reconsider?  You have the floor.

         18             COMMISSIONER MORSANI:  Thank you.  I recommend that

         19        we do not reconsider this motion.  I think that we've been

         20        around this enough times.  I don't think it's -- first of

         21        all, as you all know, the legislative body never said it

         22        was going for education.  The media and the teachers union

         23        of this state told the people and the media picked up on

         24        it and they told them and they never have retracted and

         25        said, No, we told you it's going for education, but nobody


          1        ever told us that.

          2             So I don't think that this body in these chambers has

          3        the responsibility.  I think that we -- there is not any

          4        way we're going to go in these areas that are delineated.

          5        I strongly think that we should defeat it, let's go on,

          6        let's quit hashing these things.  This is the third or

          7        fourth time now this has come up.  It's been defeated

          8        every time.  Let's put this thing to bed once and for all.

          9             CHAIRMAN DOUGLASS:  All right.  On the motion to

         10        reconsider, any further discussion on the motion to

         11        reconsider?  All those in favor of the motion say aye.

         12        Opposed.

         13             (Verbal vote taken.)

         14             CHAIRMAN DOUGLASS:  Well, we're going to have to

         15        vote.  Open the machine.

         16             (Vote taken and recorded electronically.)

         17             CHAIRMAN DOUGLASS:  Has everybody voted?  Except the

         18        Chairman.  Well that solved that.  It wouldn't matter

         19        whether I voted or not, would it?  Lock the machine and

         20        announce the vote.

         21             READING CLERK:  Thirteen yeas, 15 nays, Mr. Chairman.

         22             CHAIRMAN DOUGLASS:  All right.  By your motion, you

         23        fail to reconsider Proposals 138 and 89.

         24             We now move to Proposal No. 144 by Commissioner

         25        Barnett who is not here.  She asked that this be deferred


          1        until at least 4:00.  She won't be here until then.  She

          2        had to take her son to Shands, I think was the message I

          3        got.  She asked to be excused until 4:00.  Without

          4        objection, we'll pass that until later, indefinitely at

          5        least until later this afternoon or tomorrow.

          6             The next proposal is No. 168 by Commissioner Corr.

          7        Would you read it, please?

          8             READING CLERK:  Proposal 168, a proposal to revise

          9        Article IV, Section 6 of the Florida Constitution;

         10        providing that an entity purportedly within an executive

         11        department which is not subject to the direct supervision

         12        of the agency head is a department; providing that the

         13        amendment does not affect the status of such entities to

         14        issue revenue bonds before a specified date; creating

         15        Article IV, Section 14, Florida Constitution; creating a

         16        State Board of Agriculture; providing for the board to

         17        appoint the Commissioner of Agriculture; creating Article

         18        XII, Section 23 of the Florida Constitution; providing

         19        that the amendment does not affect the status of such

         20        entities in existence on the effective date of the

         21        adoption of the amendment.

         22             CHAIRMAN DOUGLASS:  All right.  This was adopted as

         23        amended by 18 to 5 vote on February 10th with a pending

         24        motion to reconsider by Commissioner Barkdull and deferred

         25        until today.  Commissioner Barkdull, you have the floor on


          1        the motion to reconsider.

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

          3        There's an amendment that's offered.  The amendment is in

          4        your pink packet and is also being passed out.

          5             CHAIRMAN DOUGLASS:  Beg your pardon?  Just a minute,

          6        we'd like to get a little order.  We're on a motion to

          7        reconsider.  No amendments at this point.

          8             COMMISSIONER BARKDULL:  Well, I wanted to state the

          9        purpose of the reconsideration.

         10             CHAIRMAN DOUGLASS:  All right, sir, you have the

         11        floor.

         12             COMMISSIONER BARKDULL:  This motion to reconsider was

         13        with the concurrence of Commissioner Corr and also with

         14        the concurrence of the chairman of the Executive

         15        Committee, Commissioner Alfonso.  The purpose of it is to

         16        cure a glitch in the original proposal.  So I urge a

         17        motion to reconsider.

         18             CHAIRMAN DOUGLASS:  All right.  All those ready to

         19        vote on the motion to reconsider.  All those in favor of

         20        the motion to reconsider say aye.  Opposed.

         21             (Verbal vote taken.)

         22             CHAIRMAN DOUGLASS:  Motion carries.  Now it's moved

         23        to reconsider and there's an amendment on the table.

         24             READING CLERK:  On the desk, Mr. Chairman.

         25             CHAIRMAN DOUGLASS:  All right.  Would you read the


          1        amendment, please?  Is this just one amendment?

          2             COMMISSIONER BARKDULL:  I have one amendment.  I

          3        understand there is a second amendment.

          4             CHAIRMAN DOUGLASS:  All right.  Read Amendment No. 1

          5        by Commissioner Barkdull that's moved.  Read it, please.

          6             COMMISSIONER BARKDULL:  It's in the pink packet.

          7             READING CLERK:  By Commissioner Barkdull, on Page 2,

          8        between Lines 29 and 30, insert Section 3, Section 15 of

          9        Article IV, the Florida Constitution is created to read,

         10        Custodian of state records and office of custodian of

         11        state records and the duties of that office shall be

         12        established by law.

         13             CHAIRMAN DOUGLASS:  All right.  Now, I'm going to ask

         14        again if everybody could please keep order.  And if

         15        everybody could stay in their seats for a little while, I

         16        think it would speed up our program a little bit and quit

         17        going around talking to everybody and we'll try to get

         18        this over today.  Now, Commissioner Barkdull, your

         19        amendment.

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

         21        members of the commission.  In the proposal that has been

         22        adopted, we reduced the cabinet from its present

         23        components to two.  One of those positions that was

         24        eliminated was secretary of state.

         25             In the proposal that was adopted there is a reference


          1        to custodian of the public records and there is no

          2        provision in the Constitution that creates such an office.

          3        What this amendment does is to create that office.  It

          4        would be a statutory office with statutory terms as far as

          5        election selection and what the duties are.

          6             What it primarily involves is who is going to be the

          7        keeper of the seal and the state records and where

          8        something would be filed in the event of the infirmative

          9        of the chief executive.  Because that's referenced --

         10        we've already referenced in the proposal that we passed

         11        this custodian and all this does is create the position.

         12        And I move the adoption of the amendment.

         13             CHAIRMAN DOUGLASS:  All right.  Does everybody

         14        understand the amendment?  Any debate on the amendment?

         15        All in favor of the amendment say aye.  Opposed.

         16             (Verbal vote taken.)

         17             CHAIRMAN DOUGLASS:  Amendment carries.  All right.

         18        Is there another amendment on the table?  Read the

         19        amendment.  Who is it by?

         20             READING CLERK:  By Commissioner Zack on Page 2, Lines

         21        19-22, strike all of said lines and insert:  Section 2,

         22        Section 12, Article IV, the Florida Constitution, as

         23        amended in Section XIV, of said article is created to

         24        read:  Department of Elder Affairs.  The Legislature may

         25        create a Department of Elder Affairs and prescribe its


          1        duties.  The provisions governing the administration of

          2        the department must comply with Section 6 of Article IV of

          3        the State Constitution.

          4             CHAIRMAN DOUGLASS:  All right.  Commissioner Zack?

          5             COMMISSIONER ZACK:  Again, this just allows the

          6        Legislature to do it if it chooses to do it in its wisdom.

          7        And based on the aging of our society and the demographics

          8        of Florida, we felt it was very important to allow the

          9        Legislature to form this department if in their wisdom

         10        they think it's appropriate.

         11             CHAIRMAN DOUGLASS:  All right.  Any discussion on the

         12        amendment?  All in favor of the amendment say aye.

         13        Opposed.

         14             (Verbal vote taken.)

         15             CHAIRMAN DOUGLASS:  Amendment carries.  We're now on

         16        the proposal as amended which we previously passed.  The

         17        two amendments have now been passed and we're on

         18        consideration for voting again on reconsideration.  Does

         19        anybody want to debate this again?  I think we had a full

         20        debate on it before.  Commissioner Butterworth?

         21             COMMISSIONER BUTTERWORTH:  I just have a question.

         22        Don't we already have a Department of Elder Affairs?  Or

         23        Elder to Elderly, is that the difference?

         24             CHAIRMAN DOUGLASS:  The change is to change it from

         25        Elderly to Elder.  This should really be a glitch.


          1             COMMISSIONER BUTTERWORTH:  This is really a very

          2        important amendment.

          3             CHAIRMAN DOUGLASS:  That's correct.  I have been, I

          4        don't know about Commissioner Zack, but the people that

          5        run Elderly Affairs, it was transcribed wrong when it was

          6        adopted and put in the Constitution.  It should have been

          7        Elder Affairs and there are a lot of people that want it

          8        changed to be just Elder Affairs.

          9             Now the only two that are in here at the moment that

         10        might qualify in this regard are Commissioner Barkdull

         11        and -- I don't qualify, I'm too young, but Commissioner

         12        Marshall isn't here.  So this is not one that creates a

         13        great deal of concern.  Are you ready to vote on the

         14        proposal?  Open the machine.  Everybody voted?  Lock the

         15        machine.

         16             (Vote taken and recorded electronically.)

         17             READING CLERK:  Twenty-eight yeas, zero nays,

         18        Mr. Chairman.

         19             CHAIRMAN DOUGLASS:  All right.  We move on to

         20        committee substitute for Proposals 172 and 162 by the

         21        Committee on Legislative and Commissioners Thompson and

         22        Evans-Jones.  It's on a motion to reconsider by

         23        Commissioner Evans-Jones.  You have the floor.

         24             COMMISSIONER EVANS-JONES:  Thank you, Mr. Chairman.

         25             CHAIRMAN DOUGLASS:  Oh, wait a minute.  I guess I


          1        better have it read, hadn't I.

          2             READING CLERK:  Committee substitute for Proposals

          3        Nos. 172 and 162, a proposal to repeal Article III,

          4        Section 16, Florida Constitution; relating to legislative

          5        apportionment and create Article 2, Section X of the

          6        Florida Constitution; providing for a commission to

          7        establish legislative and congressional districts;

          8        providing for the appointment of members to the

          9        commission; requiring that the Chief Justice of the

         10        Supreme Court fill certain vacancies on the commission;

         11        requiring meetings and records of the commission to be

         12        open to the public; providing certain exceptions;

         13        requiring that the commission file its final report with

         14        the Secretary of State within a specified period;

         15        requiring that the Supreme Court determine the validity of

         16        the plans; providing for the Supreme Court to establish

         17        the districts under specified circumstances; providing for

         18        the assignment of senatorial terms that are shortened as a

         19        result of apportionment; deleting requirements that the

         20        Legislature apportion the state into legislative

         21        districts.

         22             CHAIRMAN DOUGLASS:  Commissioner Evans-Jones?

         23             COMMISSIONER EVANS-JONES:  Thank you.  You-all voted

         24        favorably for this before and we wanted to move to

         25        reconsider it because some of you were concerned that the


          1        size of the reapportionment commission was not large

          2        enough and some of you felt that with the larger

          3        commission it would be more diverse and, therefore, more

          4        to your liking.  I think it was Commissioner Alfonso who

          5        suggested that we enlarge it.  And I certainly have no

          6        objections.

          7             So what we're doing here, if we move to reconsider,

          8        would be taking that amendment to enlarge it,

          9        Mr. Chairman.  So I urge you to vote for reconsideration.

         10             CHAIRMAN DOUGLASS:  Any discussion on the amendment?

         11             (Off-the-record comment.)

         12             CHAIRMAN DOUGLASS:  Beg your pardon?  Oh, excuse me.

         13        I got ahead of you, Commissioner Evans-Jones.  All in

         14        favor of reconsideration, if there is no further

         15        discussion, say aye.  Opposed.

         16             (Verbal vote taken.)

         17             CHAIRMAN DOUGLASS:  It carries.  Now you may offer

         18        your amendment.

         19             COMMISSIONER EVANS-JONES:  Thank you, Mr. Chairman.

         20             CHAIRMAN DOUGLASS:  I'll have her read it.  It's on

         21        the table?

         22             COMMISSIONER EVANS-JONES:  Yes.

         23             CHAIRMAN DOUGLASS:  Read the amendment, please.

         24             READING CLERK:  By Commissioner Evans-Jones, on Page

         25        2, Line 10 through Page 3, Line 12, delete those lines and


          1        insert lengthy amendment.

          2             CHAIRMAN DOUGLASS:  Commissioner Evans-Jones?

          3             COMMISSIONER EVANS-JONES:  Thank you, Mr. Chairman.

          4        What we're doing, as I indicated a few minutes before, we

          5        had previously had the Speaker of the House and the

          6        minority leader to appoint two members and the President

          7        of the Senate and the minority leader of the Senate to do

          8        the same thing.  In this amendment we're increasing the

          9        number that they may appoint to four.  So we're increasing

         10        the size from 9 to 17 and that is the major part of this

         11        amendment.

         12             We also have said in here that, if you'll look at

         13        your amendment here, this was passed.  Each says, Each

         14        district shall be composed of contiguous territory and may

         15        not include territory of any other district of the same

         16        house.  Districts shall be established in accordance with

         17        the Constitution of the state and of the United States,

         18        shall be as nearly equal in population as practical and

         19        may not be drawn in a matter that dilutes that voting

         20        strength of any racial or language minority group.

         21             And then we have said here, Except to meet the

         22        foregoing requirements, the commission shall consider

         23        creating districts that consist of compact territory and

         24        division of county shall be avoided whenever possible.

         25        That part of the amendment was adopted before.  But we


          1        moved the compact down because there was some concern that

          2        it dilutes the minority voting strength, Mr. Chairman.

          3             CHAIRMAN DOUGLASS:  All right.  Any discussion on the

          4        amendment?  Commissioner Scott?

          5             COMMISSIONER SCOTT:  Mr. Chairman, Commissioners, and

          6        Commissioner Evans-Jones, I just want to make a point on

          7        this amendment.  This amendment does not in any way cure

          8        the basic objections that have been raised and that

          9        continue to be raised by a lot of people in this state,

         10        minorities and otherwise.  So I just want to make the

         11        point.  The amendment, if that's what the proponent wants,

         12        but it doesn't really address them.  I request to be heard

         13        if this is adopted when it comes back for a final vote.

         14             CHAIRMAN DOUGLASS:  Well, we're on the amendment at

         15        the moment.  And you don't oppose the amendment; is that

         16        what I understood you to say?  You just want to reserve

         17        the right to oppose it later?

         18             COMMISSIONER SCOTT:  This doesn't fix the basic

         19        objection, so just by adding, you know, doubling the

         20        number to 16 -- I just want to make that point so that

         21        people don't really think they are voting that this cures

         22        all ills.

         23             CHAIRMAN DOUGLASS:  Commissioner Zack, you had your

         24        hand up or microphone up, do you want to be recognized on

         25        the amendment?


          1             COMMISSIONER ZACK:  Yes, I would.  Would you yield to

          2        a question, Commissioner?  As I understand, there's two

          3        parts of the amendment.  Part I is increasing the size so

          4        you get more diversity and you get more input from more

          5        people.

          6             Part II is so that there is no question that minority

          7        districts are drawn first and that compactness is not

          8        considered in drawing the minority districts.  And then

          9        after those districts are drawn, then compactness is

         10        considered in drawing the remaining districts; is that

         11        what it's intended to do?  Is that what it does?

         12             COMMISSIONER FORD-COATES:  That's what it does,

         13        Commissioner Zack, and that's what it's intended to do to

         14        solve anybody's problem there.

         15             COMMISSIONER ZACK:  And the belief was that

         16        compactness was always to be subservient in creation of

         17        minority districts.  However, the intent of the amendment

         18        was to move that language after the creation of the

         19        minority districts so it's clear that minority districts

         20        will be drawn before other districts and compactness will

         21        not affect the number of minority districts or the shape

         22        of minority districts.

         23             COMMISSIONER EVANS-JONES:  That's exactly true,

         24        Commissioner Zack, thank you.

         25             CHAIRMAN DOUGLASS:  All right.  Any further


          1        discussion on the amendment?  All right.  All in favor of

          2        the amendment say aye.  Opposed.

          3             (Verbal vote taken.)

          4             CHAIRMAN DOUGLASS:  The amendment carries.  Now we're

          5        on the proposal as amended.  Commissioner Evans-Jones, is

          6        there another amendment?

          7             COMMISSIONER EVANS-JONES:  Mr. Chairman, I had

          8        substituted that amendment that I've been telling you-all

          9        about but apparently it did not make it.  They're using

         10        the amendment.  They read the amendment that was in the

         11        pink book.

         12             CHAIRMAN DOUGLASS:  All right.  So what we have acted

         13        on is the substitute amendment that you offered; is that

         14        correct?

         15             COMMISSIONER EVANS-JONES:  Yes.  Actually the other

         16        amendment had not even been offered so we had put that --

         17             CHAIRMAN DOUGLASS:  And what it was is the amendment

         18        as it now stands that we passed includes the two items.

         19        One is it expanded the commission as you explained.  And,

         20        two, it changed the compact provision as explained by

         21        Commissioner Zack.  Is that what we just passed?

         22             COMMISSIONER EVANS-JONES:  That's right,

         23        Mr. Chairman.

         24             CHAIRMAN DOUGLASS:  So now we have the proposal as

         25        amended which creates the commission, as you described,


          1        with the provisions which now read differently than the

          2        original proposal; is that right?

          3             COMMISSIONER FORD-COATES:  Yes, Commissioner.

          4             CHAIRMAN DOUGLASS:  Now you're recognized to discuss

          5        the proposal at this time as amended.

          6             COMMISSIONER FORD-COATES:  Thank you.

          7        Commissioners --

          8             CHAIRMAN DOUGLASS:  Just a minute.  They are doing

          9        to -- just offer the -- what happened here is we discussed

         10        two amendments that they had on the table that you had

         11        combined into one which they didn't have; is that right?

         12             COMMISSIONER EVANS-JONES:  Actually, we were trying

         13        to withdraw the two that were in the book.  Neither one of

         14        those in the book are what we wanted.

         15             CHAIRMAN DOUGLASS:  All right.  Withdraw the two

         16        amendments that were on the table and place on the table

         17        the substitute amendment.

         18             (Off-the-record comment.)

         19             CHAIRMAN DOUGLASS:  All right.  Let's do this.  The

         20        first amendment was described by you which increases the

         21        size of the commission.  All in favor of that as an

         22        amendment say aye.  All opposed, no.

         23             (Verbal vote taken.)

         24             CHAIRMAN DOUGLASS:  It passes.  The next amendment

         25        was Commissioner Zack's amendment, was it not?


          1             COMMISSIONER EVANS-JONES:  It really was not -- it

          2        was not in there but it's really one amendment which has

          3        both of those issues in it.

          4             CHAIRMAN DOUGLASS:  We'll take a three-minute recess

          5        until we get the right amendment.

          6             (Brief recess.)

          7             CHAIRMAN DOUGLASS:  Come to order.  The first two

          8        amendments that were on the table have been withdrawn and

          9        the present amendment has been explained but we will

         10        explain it again.  Please take your seat.  We'll come to

         11        order.

         12             All right.  Read the present amendment.  I think

         13        we've had it explained, but we'll read it again.

         14             READING CLERK:  By Commissioners Barton and

         15        Evans-Jones.

         16             CHAIRMAN DOUGLASS:  All right.  Pay attention,

         17        please.

         18             READING CLERK:  By Commissioners Barton and

         19        Evans-Jones.  On Page 2, Line 10 through Page 3, Line 17,

         20        delete those lines and insert lengthy amendment.

         21             CHAIRMAN DOUGLASS:  All right.  Commissioner Zack or

         22        Evans-Jones, you want to re-explain this?  Commissioner

         23        Zack, I don't think -- it would just take a minute.  We've

         24        already explained it but you may want to explain it again

         25        so we'll be sure we know what we're voting on, the


          1        amendment only.

          2             COMMISSIONER ZACK:  Commissioner Evans-Jones is not

          3        here.

          4             CHAIRMAN DOUGLASS:  She stepped out for a moment.

          5             COMMISSIONER ZACK:  As I understand it, there are two

          6        parts to the amendment.  The first was to deal with the

          7        number of people on the commission which was expressed by

          8        a number of commissioners during the debate as being too

          9        small a body and, therefore, it was increased to allow

         10        more people to participate in the process and in that

         11        commission.

         12             The second issue that was raised was whether or not

         13        the compactness requirement could be used to lessen the

         14        number of minority seats that were drawn.  As a result of

         15        that, the minority districts were drawn first under the

         16        new provision and then the language that you see, which

         17        has been dropped from before the creation of the minority

         18        districts regarding compactness, comes afterwards and

         19        compactness would then not be a criteria when it came to

         20        drawing minority districts.

         21             MR. CHAIRMAN:  All right.  Everybody understand --

         22             COMMISSIONER ZACK:  Is that correct?

         23             CHAIRMAN DOUGLASS:  Commissioner Evans-Jones?

         24             COMMISSIONER EVANS-JONES:  Yes, that's correct.

         25             CHAIRMAN DOUGLASS:  Does everybody understand the


          1        amendment?  All right.  Ready to vote on the amendment?

          2        All right.  Commissioner Henderson?

          3             COMMISSIONER HENDERSON:  Mr. Chairman, Commissioner

          4        Morsani and I are here and we don't understand it and we

          5        just had this language handed to us.  I am confused and I

          6        want to get it right.

          7             COMMISSIONER EVANS-JONES:  All right.  Maybe I can

          8        explain it further.  Commissioner, what we have done is we

          9        have increased the size of the commission to 17, you

         10        understand that?  All right.  And we were -- there had

         11        been concern expressed that we needed to put compactness

         12        in the next paragraph which says, Except -- have you got

         13        that in front of you?

         14             On Line 26, and it says there, Except to meet the

         15        foregoing requirements, the commission shall consider

         16        creating districts that consist of compact territory and

         17        division of counties should be avoided whenever possible.

         18        Before we had said they should consider the compactness,

         19        it was up right behind the voting strength of a racial or

         20        language minority group and it said then it should

         21        consider that and we felt this would not dilute that.

         22             COMMISSIONER HENDERSON:  Let me ask you this.

         23             COMMISSIONER EVANS-JONES:  All right.

         24             COMMISSIONER HENDERSON:  Does this language, in

         25        effect, constitutionalize, to use the Barnett verb that


          1        we've been using here, does it constitutionalize the

          2        current kind of districts that we have now for these long

          3        skinny minority districts that obviously, that I wouldn't

          4        think would be compact.

          5             COMMISSIONER EVANS-JONES:  Well, that's true but they

          6        have to consider the voting strength of the racial or

          7        minority group.  And that may create a long group.  If

          8        they can do it otherwise, we prefer the compactness, but

          9        that may not be able to be done.

         10             COMMISSIONER HENDERSON:  Okay.  What does the term

         11        "dilutes the voting strength of any racial or language

         12        minority group" mean?  Is that in context of their

         13        percentage of the population or their current percentage

         14        in the Legislature?

         15             COMMISSIONER EVANS-JONES:  I'm not sure we took

         16        that -- do you know, Commissioner Zack, where we took that

         17        language from?

         18             COMMISSIONER ZACK:  The language dilutes the voting

         19        strength of any racial or language minority group.

         20             COMMISSIONER HENDERSON:  Does that refer to a

         21        mathematical number of the population at large or does

         22        that refer to a percentage that's currently sitting in the

         23        Legislature?

         24             COMMISSIONER ZACK:  That's a terminology that comes

         25        from the Voting Rights Act itself and that you cannot draw


          1        districts that dilute minority voting strength.  In other

          2        words, you can't do what's called cracking or packing

          3        where you would take a minority district and divide it in

          4        half and put it in two majority districts or pack too many

          5        minorities into one district.  That's a technical term of

          6        lawsuits that are filed are called vote dilution lawsuits.

          7             COMMISSIONER EVANS-JONES:  That was in it originally

          8        too.  We have not changed that at all, Commissioner

          9        Henderson.

         10             CHAIRMAN DOUGLASS:  Does everybody understand the

         11        amendment?  Commissioner Planas, we're on the amendment.

         12        Commissioner Planas?

         13             COMMISSIONER PLANAS:  On Page 2, Line 17, failure to

         14        achieve such diversity shall not be grounds for

         15        challenging the authority of the commission.

         16             COMMISSIONER EVANS-JONES:  Yes.  That was in there

         17        before and it's still in there.

         18             COMMISSIONER PLANAS:  How will you interpret that?

         19             COMMISSIONER EVANS-JONES:  Commissioner Zack?

         20             COMMISSIONER ZACK:  That relates to the composition

         21        of the committees themselves, not to the creation of the

         22        maps.  The districts can always be challenged in any vote

         23        dilution case.  I also would point out that if you pass

         24        this, these are the kind of issues that will be discussed

         25        during our public hearing.  And if, in fact, additional


          1        amendments need to be made regarding any concerns of the

          2        minorities, those can be made at that time as well.  But

          3        as it stands here, the reason for the amendments was to

          4        make sure that there would be no vote dilution in any of

          5        these cases resulting from a compactness argument.  That

          6        is not to say that people can come into the state, or any

          7        people in the district can challenge these districts at

          8        any time for all kinds of reasons.  And they have done it

          9        continually, as the Senate and the House is aware of.

         10             And in all likelihood, that is with us in our

         11        political landscape.  But what it says is this commission

         12        itself will create those minority districts.  And, again,

         13        you have what is called Shaw and Miller (phonetic)

         14        considerations which is, you know, 14th Amendment

         15        considerations and violating the 14th Amendment, all of

         16        which are part of the deliberations that this commission

         17        will take part in.

         18             COMMISSIONER PLANAS:  Now another question.  In here

         19        it does not guarantee at all that members could be picked

         20        up from one certain area of the state, correct?

         21             COMMISSIONER EVANS-JONES:  Correct.

         22             CHAIRMAN DOUGLASS:  Commissioner Barkdull?

         23             COMMISSIONER BARKDULL:  Will Commissioner Zack take

         24        the floor, please, for a question?  Commissioner Zack?  In

         25        response to a question you gave Commissioner Planas about


          1        the failure to achieve such diversity shall not be grounds

          2        for challenging the authority of the commission.  It's my

          3        understanding that you gave him a response that that would

          4        be to the districts that were created or recommended by

          5        the commission.

          6             It occurs to me from the reading of this, is that you

          7        cannot challenge the makeup of the commission because of

          8        the lack of ethnic, racial, or gender diversity.

          9             COMMISSIONER HENDERSON:  That's what I said.  I'm

         10        sorry, I misunderstood you, but --

         11             COMMISSIONER ZACK:  I may have not said it clearly

         12        enough, but that's what I said.  It only applies to the

         13        commission itself, not to the districts that they draw.

         14             CHAIRMAN DOUGLASS:  All right.  On the amendment,

         15        Commissioner Hawkes.

         16             COMMISSIONER HAWKES:  Question.

         17             CHAIRMAN DOUGLASS:  Who to?

         18             COMMISSIONER HAWKES:  Well, either Commissioner

         19        Evans-Jones or Commissioner Zack, whoever can better

         20        answer it.  I was wondering, the language in the amendment

         21        is members of the House who are not members of the same

         22        party or members of the Senate who are not members of the

         23        same party.  And I was wondering last year, for instance

         24        in the House, three members the Democratic party were

         25        removed from the Democratic party by a vote of other


          1        members of the Democratic party.  I think they have since

          2        allowed them back in.

          3             And also currently, I believe, some members of the

          4        House are considering forming either their own faction of

          5        a party or their own separate party.  And I was wondering,

          6        what happens if Florida, in its growth toward more

          7        political diversity in parties, decides that, in fact, two

          8        parties doesn't represent the people of this state, wonder

          9        if we go to three parties or four parties or wonder if a

         10        group of members just get together for reapportionment

         11        purposes and form a separate party.  Could, in fact, they

         12        pick out the four members then to be represented on a

         13        reapportionment committee?

         14             COMMISSIONER EVANS-JONES:  Commissioner Hawkes,

         15        that's not the way that I understand it.  The purpose was

         16        that the president of the Senate would get to select four

         17        members and then if you had like an independent candidate,

         18        they would have to join with the other minority groups and

         19        they would also get to pick four, but that would just be

         20        from the group there.

         21             COMMISSIONER HAWKES:  But it doesn't -- it doesn't

         22        require that.  I mean, in fact, it's -- I think that the

         23        problem is is that the president of the Senate and the

         24        Speaker of the House are constitutional officers defined

         25        in the Constitution.  And this other group or this person


          1        that you're trying to find is not constitutionally defined

          2        and can, in fact, be defined --

          3             COMMISSIONER EVANS-JONES:  Well, we had talked about

          4        that and the staff person who was advising us said that we

          5        had never used the language that said "minority leader".

          6        So he thought this was clearer and better constitutional

          7        language.  Maybe Commissioner Zack can answer it better

          8        than I can.

          9             COMMISSIONER ZACK:  My answer would be the same as

         10        yours.

         11             COMMISSIONER HAWKES:  So -- a thought, Mr. Chairman.

         12        So if 12 members of the Florida House decide to form their

         13        own political party and, in fact, even obtain staffing in

         14        the House and are recognized by the House as a separate

         15        party, they have -- either they have a full voice, in

         16        which case a party that may be bigger than them has no

         17        voice, or they would have no voice; is that correct?  I

         18        mean, if we had three parties in the House?

         19             COMMISSIONER EVANS-JONES:  If we had three parties in

         20        the House, Commissioner Hawkes, those two minor parties

         21        would have to join together.

         22             COMMISSIONER HAWKES:  But this doesn't say that.

         23        This says that they --

         24             COMMISSIONER EVANS-JONES:  Well that's what we were

         25        saying, I believe, and that's what --


          1             COMMISSIONER HAWKES:  Well, this says all they have

          2        to be is a separate party.  It doesn't say that they have

          3        to be the next in number, in which case there --

          4             CHAIRMAN DOUGLASS:  No, you're reading the wrong

          5        amendment, I think.

          6             COMMISSIONER ZACK:  No, that's not what it says.

          7        Members of the Senate who are not members of the same

          8        party as the president, let's assume the president is

          9        Republican.  Let's assume there are two other parties, the

         10        Bull Moose party and the Democratic party.  Then they get

         11        together and designate from their deck group four members.

         12        Okay.  Four commissioners.

         13             COMMISSIONER EVANS-JONES:  Yes, they would designate

         14        one person to appoint the four commissioners, and I think

         15        that's what it says.

         16             COMMISSIONER ZACK:  Each one would have a say in it.

         17             COMMISSIONER EVANS-JONES:  Right.

         18             CHAIRMAN DOUGLASS:  Is that clear?  All right.  Any

         19        further questions?  And this is on -- let's see, we

         20        adopted the amendment.  We're on the proposal.  We did

         21        adopt the amendment.  We're on the amendment, Commissioner

         22        Scott, okay?

         23             COMMISSIONER SCOTT:  Marilyn, in 1982 --

         24             CHAIRMAN DOUGLASS:  Commissioner.

         25             COMMISSIONER SCOTT:  Commissioner.  In 1982, the


          1        president of the Senate was elected by a coalition of

          2        Democrats and Republicans.  Basically, what you call

          3        conservative Democrats, if that's such a word, in many

          4        instance, and 12 Republicans.  So that means that in this

          5        instance, if this were 1982, am I correct, not of the

          6        party of the president would mean that those other, ever

          7        how many Democrats, 16 or whatever, they wouldn't have any

          8        voice because we elected a Democrat, Kurtis Peterson, in

          9        that instances, he's on the wall here.

         10             So he would pick four and then the Republicans would

         11        pick four and the other 15 Democrats would have no

         12        input -- or ever how many -- am I correct the way this is

         13        written?

         14             COMMISSIONER EVANS-JONES:  Well, I think you probably

         15        are correct.  So perhaps they wouldn't want to do that and

         16        get together with that sort of a coalition sense that they

         17        wouldn't have any representation.  But I say to you, I

         18        really do think that the president of the Senate and what

         19        we're trying to say is then another person who would be

         20        elected by the other minority members would also be able

         21        to choose four.

         22             CHAIRMAN DOUGLASS:  All right.  We're on the

         23        amendment.  Commissioner Henderson?

         24             COMMISSIONER HENDERSON:  Amendment to the amendment

         25        on the desk.


          1             CHAIRMAN DOUGLASS:  There is an amendment to the

          2        amendment on the desk by Commissioner Henderson which he

          3        moves.  Would you read the amendment?

          4             READING CLERK:  By Commissioner Henderson on Page 1,

          5        Line 26, delete, Except to meet the foregoing

          6        requirements.

          7             CHAIRMAN DOUGLASS:  Commissioner Henderson,

          8        Commissioner Zack, you're familiar with this amendment to

          9        your amendment?

         10             COMMISSIONER ZACK:  No, he's not familiar with it.

         11             CHAIRMAN DOUGLASS:  I didn't think he was listening

         12        to you either.

         13             COMMISSIONER ZACK:  That's right.  I guess I got the

         14        answer to the question.  And I didn't like the answer to

         15        my question so I thought I'd frame it as an issue and that

         16        is that the -- apparently the language that -- what the

         17        amendment does is take us back to what we previously

         18        approved as a body.  There, in the amendment that is

         19        before you, there is a change and that change, in effect,

         20        constitutionalizes the process by which we are currently

         21        doing business which says you would go deal with the

         22        minority districts first and then spill over into

         23        everything else.  And I don't think that's the way you do

         24        business.

         25             I think that the term -- you have the overriding


          1        language in there about the voting rights, that do not

          2        dilute the voting strength of any racial or language

          3        minority group and that you try to achieve compactness.

          4        And to go further than that, I understand what you're

          5        trying to do, I just would -- that's a whole set of

          6        problems that I think may well take away from some of the

          7        flexibility -- some flexibility that may achieve a better

          8        voting strength.

          9             So I don't like the process that we have now, these

         10        districts that -- where you don't know whose district you

         11        live in in effect.  I'm in one of those counties where

         12        there is a little sliver of a district that runs, you

         13        know, connects house to house, and I think that's bad

         14        public policy and if this legitimizes that, I don't want

         15        to go there.  So that's the proposal.

         16             CHAIRMAN DOUGLASS:  All right.  There's an amendment

         17        to the amendment by Commissioner Henderson which he just

         18        explained.  Does everybody understand the amendment?  Any

         19        more discussion on the amendment to the amendment?  All

         20        right.  Commissioner Zack, I'm waiting a second.

         21             COMMISSIONER EVANS-JONES:  Mr. Chairman?

         22             CHAIRMAN DOUGLASS:  Commissioner Evans-Jones.

         23             COMMISSIONER EVANS-JONES:  The reason that we put it

         24        there was just as Commissioner Henderson said, and I still

         25        think they are going to have to do the other anyway.  So


          1        we did have it.  The commission shall consider creating

          2        districts that consist of compact territory and we do want

          3        that if possible.  So I frankly don't have any problem

          4        with that amendment.

          5             CHAIRMAN DOUGLASS:  All right.  Everybody understand

          6        the amendment to the amendment?  All in favor say aye.

          7        Opposed.

          8             (Verbal vote taken.)

          9             CHAIRMAN DOUGLASS:  Amendment carries.  Now we're on

         10        the amendment as amended.  Commissioner Zack --

         11        Commissioner Evans-Jones.

         12             COMMISSIONER EVANS-JONES:  I'll close.  I just urge

         13        you to vote for the amendment.

         14             CHAIRMAN DOUGLASS:  All those in favor of the

         15        amendment say aye.  Opposed.

         16             (Verbal vote taken.)

         17             CHAIRMAN DOUGLASS:  It carries.  It's now amended.

         18        We're now on the proposal as amended which was passed 18

         19        to 13 on February 9th, motion to reconsideration by

         20        Commissioner Evans-Jones deferred until today and now

         21        we're on the proposal.  Proponents?  Do you want to be

         22        heard again?

         23             COMMISSIONER EVANS-JONES:  I can close.

         24             CHAIRMAN DOUGLASS:  Got an opponent?  You're an

         25        opponent?  Commissioner Scott in opposition.


          1             COMMISSIONER SCOTT:  Commissioners, let me talk to

          2        you a minimum about what this is really all about.  Let's

          3        pick another issue, let's pick sentencing guidelines, for

          4        example.  Now the proposal is to create an independent

          5        commission of 16 people and then they are going to elect

          6        the 17th and they are going to decide how long criminals

          7        should be sentenced and what kind of guidelines would be

          8        used or not used in a case that Attorney General

          9        Commissioner Butterworth and I and others have been

         10        arguing about for years.

         11             Let's create an independent commission to do that.

         12        So I want you to imagine that that's the proposal that's

         13        before us.  Let's take another one.  How about raising

         14        taxes in the state in a booming economy.  Let's create an

         15        independent commission, not elected by you or your

         16        neighbors or your community and let's let this commission

         17        decide what the taxes are going to be in this state, how

         18        much they will be raised.

         19             Same if you go to education, for example, and some of

         20        the issues there.  And I know you-all have heard a lot of

         21        discussion about that.  Let's create an independent

         22        commission to determine whether we're going to go back to

         23        the basic skills, whether we're going to raise the grade

         24        point average, whether we're going to have charter schools

         25        in this state.  Let's create an independent commission to


          1        do that.  What I would like to point out to you is that

          2        establishing these districts is the very heart of all of

          3        that.  It's not just one of those, it's every single one.

          4        I mean, it is the basic right of people to have their

          5        elected representatives determine how their votes are

          6        going to be counted.  And so, that's the first point I

          7        would make.  I'm not going to go into a big, long argument

          8        today because I think we're going to have, I assume,

          9        another day where the vote might be different.  I mean, a

         10        different requirement of the vote.

         11             But let's go, who's the most familiar?  We've got a

         12        commission now of 16 people in a state of 14-some million.

         13        Who are you going to appoint to handle redistricting in

         14        Miami?  Who are you going to appoint in Broward County

         15        with 1.8 million people?  Two people, three people?  What

         16        about the Jewish condominium vote?  What about the Latin

         17        minorities?  What about the blacks?  What about the

         18        Caucasian?  Who is going -- and who are you going to get

         19        that knows as much about that as someone who's gone out

         20        there and gotten elected?

         21             I might feel better if it was a county commissioner.

         22        Although in some instances you may not want that.  But I

         23        mean, at least somebody that's out there.  The people have

         24        said to the Legislature, if you're to solve things that

         25        affect their liberty, their pocketbooks, their very lives.


          1        So I want you to think about that as you understand the

          2        concern.

          3             My principal concern in this is the issue of minority

          4        representation.  Now this proposal, this proposal would,

          5        in effect, vitiate or destroy the current Senate plan in

          6        this state and the House plan.  Right now, and I want to

          7        get away for just a moment from a -- say, from the

          8        minority issue.  Right now, the Senate plan, the Senate

          9        plan that's been approved by everybody, including the U.S.

         10        Supreme Court, divides 43 of the 67 counties into more

         11        than one district and only eight Senate districts are

         12        entirely within any single county.

         13             So if you look at that, why is it like that?  It's

         14        like that because, we, former members, and they went out

         15        and fought to get minority districts established in these

         16        reapportionment plans.  And you should have been here last

         17        Monday, I wish all of you had been here.  But when some of

         18        the Congress people were here, Carrie Meek, Corrine Brown,

         19        all of whom were at the federal and state issues seminar

         20        along with many members of the Legislature, including, I

         21        believe, all five or at least four of the black members of

         22        the Florida Senate.  And let me tell you about some of

         23        their concerns with this.

         24             You see, if you took a cookie cutter or you tried to

         25        go by counties, what's going to happen is you're not going


          1        to have as many minority seats in the Legislature, that's

          2        for starters.  So this basic fundamental right that

          3        decides life, liberty, and property, why would we want --

          4        it's another idea that sounded good when talked about in

          5        the abstract, but why would we want to entrust this to a

          6        commission that's appointed by legislative leaders and you

          7        cannot help but to recognize what's happening in the

          8        state.  It's very divisive issues that are going on.  And

          9        to say that we're going to go out now and take -- and in

         10        effect take away.

         11             I want you to remember that my concern is the

         12        minority seats.  We took this, Senator Jennings --

         13        Commissioner Jennings will remember, hundreds of hours, I

         14        spent in Tampa in a three-judge panel.  We went to the

         15        U.S. Supreme Court to argue for protection and won it on a

         16        5-4 vote, the first one upheld in modern times in the

         17        country.  When the federal court throughout Corrine

         18        Brown's district in Jacksonville, the Florida Senate

         19        immediately grabbed ahold of this, forced it to be

         20        determined within like 14 days, as I recall, and fixed the

         21        district and repassed a congressional redistricting plan

         22        that cured the objection.  And Corrine Brown would not be

         23        at least seated in Congress if that were not true.

         24             So if you want to hear -- I think this is the major

         25        concern that we have with trying to do an independent


          1        commission.  Now, I know the arguments otherwise and see

          2        Commissioner Martin Dykeman up there.  I've always wanted

          3        to do that, Martin.  We used to do more of that in the

          4        Senate.

          5             But in the very same article where he says, you know,

          6        this is really a great idea and the people that don't want

          7        it are misinformed, the next paragraph says, Well, we

          8        really ought to have multimember districts in this state.

          9        Same article, right, Martin?  Said, we ought to have

         10        multimember districts which, and I want you to listen to

         11        this, some of the commissioners, would be judiciously

         12        used.  Judiciously used.

         13             Now what does that mean in Tampa, for example?  What

         14        does that mean to Senator Hargrett's seat, judiciously

         15        used?  What does that mean in Jacksonville to Betty

         16        Holzendorf?  So I would urge you to consider some of that.

         17        I didn't plan to debate this today because I didn't know

         18        it would be on reconsideration.  But I just want to make

         19        the point whether it's 8 commissioners or 16

         20        commissioners.

         21             Let me tell you another concern I had.  Sixteen

         22        people and you've got to select a chairman.  What if they

         23        don't select the chairman?  Then the Supreme Court of the

         24        state of Florida, whoever the Chief Justice is, is my

         25        understanding, would pick the deciding vote on this


          1        commission.  Do you think the people in Liberty City in

          2        Miami, the people of Miami Beach, do you think that's what

          3        they want?  We're here because we're supposed to get

          4        familiar with these things and understand them.  They may

          5        never understand that, that the chief justice of the

          6        Supreme Court would pick the deciding vote that's going to

          7        decide their future.  They might understand, depending on

          8        where they are, that 25 percent of this commission is

          9        going to be picked by the minority leader of the House or

         10        the minority leader of the Senate and that may or may not

         11        concern them.

         12             So I just want to point out to you some of the

         13        problems with this.  Judiciously using multimember

         14        districts doesn't work.  And I think while we said we want

         15        single-member, I think that we've got to have the people

         16        who are familiar with the parts of this state and let the

         17        elected representatives make the decisions.  I just wanted

         18        to point out that this change in the proposal really

         19        doesn't change the concern that a lot of people and the

         20        growing concern that people have in this state.  Thank you

         21        very much.

         22             CHAIRMAN DOUGLASS:  Commissioner Evans-Jones?

         23             COMMISSIONER EVANS-JONES:  Commissioner Scott, this

         24        proposal never did sound good to you, let's be realistic.

         25        It has sounded good to me since 1983 and that was when the


          1        Democrats had been in charge of the redistricting.  I can

          2        tell you now that it was not done fairly then and I can

          3        tell you that it will not be done fairly now when the

          4        Republicans are in charge.

          5             What we're trying to do here is establish fairness

          6        and equity.  And this is the only opportunity that the

          7        citizens of Florida will ever have to be able to do that.

          8        We don't know whether the Democrats are going to be in

          9        charge in 10 or 15 years or whether the Republicans are.

         10        But we do know, if we establish this independent

         11        reapportionment commission, that it's going to be an equal

         12        number and it's going to be fair.  And indeed, if they

         13        can't decide upon their chairman, I have a lot of

         14        confidence in the Supreme Court Justice.

         15             And I think to raise these red herrings about

         16        minorities, I think that's just, you know, really not

         17        true.  What we have been concerned with and what we are

         18        concerned with, and I already told you the story about

         19        asking where I live, you cannot expect the Senators and

         20        the members of the House not to be concerned with their

         21        own district and whether they are going to be running for

         22        Congress and all of that, I mean, that is a fact that has

         23        been done.  It will continue to be done.  We have been

         24        here all over the state.

         25             Frankly, the people don't want the Legislature to


          1        redistrict themselves because they don't trust them to do

          2        it fairly.  And I can tell you, we can put this plan in

          3        front of the people and they are going to vote for it.  I

          4        have every confidence that they will because it's fair,

          5        it's well thought out, and it's something that we

          6        desperately need here in the state of Florida and indeed

          7        in every state.

          8             So I say to you that perhaps you have raised red

          9        herrings that are really not true.  The minorities are

         10        going to be treated fairly, I can assure you of that.  And

         11        I feel that they have equal opportunity to go if they're

         12        not and go to the courts and have it done as they do

         13        today.

         14             So I urge you, fellow commissioners, this is not

         15        perfect but it's a whole lot better than what we are

         16        presently operating under.  So I urge you to vote yes and

         17        let's get this before the people so that they can know

         18        that we are trying to have fairness in the selection of

         19        the congressional districts, the House districts, and the

         20        Senate districts.  I urge your support.

         21             CHAIRMAN DOUGLASS:   Commissioner Hawkes.

         22             COMMISSIONER HAWKES:  Thank you, Mr. Chairman.  And

         23        I'll try to be brief, Members.  I think that one of the

         24        reasons that we obviously went from 9 members to 17

         25        members is because someone believed that if we had more


          1        members we would have more diversity.  Now why would we

          2        want more diversity?  Well, I would assume we would want

          3        more diversity because we can get a better product.  And I

          4        would submit that if 16 is good, 160 might even be better

          5        and that's what the Legislature has.

          6             I will tell you that if you do this, you are in fact

          7        disenfranchising members of the state from participating

          8        in reapportionment.  Right now in the Florida House, this

          9        isn't a hypothetical, there are members in the Florida

         10        House who are in a feud or a dispute with their party

         11        leadership, and that's not unusual.  There are oftentimes

         12        disputes between some members of a party and their

         13        leadership.  Are they going to get to fully participate

         14        when that party leadership decides which one shall select

         15        the four?  Well, I would submit they are not going to be

         16        able to participate unless they can make peace and how are

         17        they going to have to make peace, they are going to have

         18        to sacrifice some other principle that they have in order

         19        to have some small voice in what the four are.

         20             Right now African-Americans are better than

         21        10 percent of the Florida Senate, are they going to get

         22        better than 10 percent?  Probably not because there is not

         23        enough seats to go around.  On almost every plan that's

         24        passed out of the Legislature, there has been bipartisan

         25        votes on those plans.


          1             And with bipartisan votes, you know, because the

          2        Speaker of the House, what's his goal?  Well, I would

          3        think the same thing as the Republican, his goal is

          4        probably to make sure there are Republicans that come to

          5        the Legislature.  And what's the minority leaders in the

          6        House?  Probably the Democrats come to the Legislature.

          7             Is that everybody's goal that is in the Legislature?

          8        It's not.  It wasn't when I was there and we went through

          9        reapportionment.  I wanted to make sure that Citrus County

         10        kept a House member and Citrus County had a small voice in

         11        reapportionment.  Is that terrible?  Does that offend the

         12        sensibilities of the people of the state of Florida?  I

         13        don't think so because I kept our community whole and in

         14        some of the plans they wanted to split Citrus County in

         15        half and they didn't.

         16             But my interest was -- my primary interest to me,

         17        keeping my little tiny county whole, didn't even appear on

         18        the radar scope of the Republican leadership, certainly

         19        didn't appear on the radar scope of the Democratic

         20        leadership.  But because I was able to participate, that

         21        goal was met and my community was content and they were

         22        happy and that's a good thing.

         23             You cut this commission down to 16 members and you

         24        are definitely disenfranchising groups and segments and

         25        parts of Florida.  A diverse group does a better job and I


          1        would ask that you defeat this proposal.  Thank you.

          2             COMMISSIONER EVANS-JONES:  May I answer his question?

          3             CHAIRMAN DOUGLASS:  Yes, go ahead.

          4             COMMISSIONER EVANS-JONES:  Commissioner Hawkes,

          5        indeed you will have public hearings.  We have never had

          6        public hearings before.  We are going to know who is

          7        really making the decisions and this is going to be an

          8        opportunity for the citizens of Florida to be able to say,

          9        You are going to be drawing the lines and I know who you

         10        are.  And I think it is going to be much more equitable

         11        and much fairer.

         12             COMMISSIONER SCOTT:  Mr. Chairman?

         13             CHAIRMAN DOUGLASS:  You are answering a question?

         14             COMMISSIONER SCOTT:  I wanted to correct one thing

         15        since she said there were no public hearings, which is not

         16        correct.  There are public hearings for a year.  And, in

         17        fact, if I could make a point, the Legislature for several

         18        years prepares for this and has the staff and collects the

         19        data, and people know who is doing it.  And they know who

         20        to blame if they don't like it and they can vote them out

         21        of office.  But it is not correct that we didn't have --

         22        in 1980 maybe, I don't remember public hearings then, but

         23        I'm telling you the last time we had a ton of public

         24        hearings everywhere in this state.

         25             And we had interactive TV, computers, people could


          1        program into it.  I mean, it was a totally open and, you

          2        know, thoroughly debated process.  So I just want to

          3        mention this has got nothing to do with public hearings.

          4        And while I'm up here, and I don't want to -- this is the

          5        last time, Commissioner Evans-Jones, I don't want you to

          6        tell me that it is a red herring, all the stuff that we

          7        have done to try to get minority seats in this district,

          8        that is not a red herring.  That is not a red herring,

          9        these are real concerns.

         10             You should talk to Lincoln Diaz-Balart, the

         11        congressman.  You should talk to Carrie Meek or Corrine

         12        Brown or Alcee Hastings.  These are real concerns, or Matt

         13        Meadows in the Senate.

         14             So I just want to make that point.  There is a

         15        serious concern about protecting minority districts.  And

         16        as far as splitting, I don't think I made myself clear

         17        about splitting counties.  George Kirkpatrick's area where

         18        Commissioner Mills is from, he has got parts of a lot of

         19        counties but that's the way they wanted it.  They wanted

         20        eight counties to have parts so that they would all have

         21        input and he goes around and has hearings and meetings and

         22        wherever in all that district.

         23             So this proposal is going to say, Well, don't split

         24        counties, and that's forgetting about the minority issue.

         25        Enough said.  I just hope that you will seriously think


          1        about this today and between the time that we have a final

          2        vote on it and whether this is something that we think is

          3        good and whether the idea of it, and it is not true that I

          4        have always been against it.  I thought at first,

          5        certainly from a partisan point of view, it was not a --

          6        might not be a bad idea to talk about.

          7             But after hearing from everybody and remembering the

          8        fights that we've had to protect minority rights, I just

          9        don't think it is a good idea and I hope you-all will keep

         10        thinking about it, those of you who think you may still be

         11        for it.

         12             CHAIRMAN DOUGLASS:  All right.  Commissioner Mills

         13        and then Commissioner Zack will be next and Commissioner

         14        Connor, Commissioner Planas.  And I'm going to ask

         15        Commissioner Thompson to take the podium while I go rest

         16        for a moment after that stirring debate.

         17             (Commissioner Thompson assumes the Chair.)

         18             COMMISSIONER MILLS:  Mr. Chairman, I thought we might

         19        have been on closing and therefore I was going to ask

         20        Commissioner Evans-Jones a question but apparently since

         21        that's not a problem --

         22             COMMISSIONER THOMPSON:  I think we changed gears and

         23        we are debating again and maybe we ought to let her close

         24        again.

         25             COMMISSIONER MILLS:  I would suggest that.  I want to


          1        just talk a little bit about the racial equity issue

          2        because of any concern that may have been expressed about

          3        this commission.

          4             Let's talk about our history of how we got here.

          5        Voting Rights Act of 1965, I think, Commissioner Smith,

          6        there is a show on tonight, Four Little Girls, about the

          7        bombing of the church in Alabama, about the reality of

          8        trying to obtain voting rights in the south and how that

          9        came about.  Well, the Voting Rights Act of 1965 is really

         10        why we have achieved racial equity and that is fortunately

         11        or unfortunately a federal act.

         12             Section 2 of the Voting Rights Act, Section 5 of the

         13        Voting Rights Act, which has been imposed, neither Florida

         14        nor the rest of the south rushed into racial equity.

         15        Neither Florida nor the rest of the south rushed into one

         16        person, one vote.  I made a statement on the floor last

         17        time I thought it was 50 to 1, the worth of the vote in

         18        Dade County and the worth of the vote in the Panhandle.  I

         19        was wrong, it was 100 to 1.  And that was, unfortunately

         20        or fortunately, the Legislature.

         21             The Legislature has -- does wonderful things and I

         22        think Commissioner Scott mentioned a number of the things

         23        the Legislature should do.  One of the problems with the

         24        Legislature doing reapportionment is it gets awfully

         25        distracted from doing those other things.  They become a


          1        number of conversations that get diverted and I can

          2        remember in '82, I think '82 and '83, because I think

          3        there were about five special sessions on reapportionment.

          4        It can't help but being diverted.

          5             The issue of racial equity, the fact that in '82 and

          6        in '92, there has been increased access is a great thing

          7        for this state.  It will continue to be a great thing for

          8        this state because of the protections of the Voting Rights

          9        Act and the fact that maybe we have all learned something,

         10        that maybe racial equity has become more a part of the

         11        ethic of this state.  And I don't think the Legislature

         12        would do a worse job at that, I think they would do a fine

         13        job at racial equity.  And I don't think the appointees of

         14        the Legislature will be racist, I think they will do a

         15        fine job.  Not only because of the way this state has

         16        evolved, but because of the still, small voice, the law,

         17        which says you cannot discriminate.

         18             And that is why a commission makes sense because it

         19        does allow independence, it does restore public faith, it

         20        doesn't change the law with regard to racial equity and I

         21        think that we can have confidence in that group as well

         22        and we can have confidence in the Constitution and the

         23        federal government to continue to support and guarantee

         24        voting rights.

         25             And furthermore and lastly, it will make the public


          1        feel better.  It will make the public feel better about

          2        how the most fundamental aspect of their lives with

          3        respect to the Legislature is carried out.  When

          4        Commissioner Crenshaw originally proposed it, it was a

          5        good idea.  When Commissioner Evans-Jones originally

          6        proposed it, it was a good idea.  Today it is still a good

          7        idea, not for partisan reasons, but because it is the

          8        right thing to do for this state.

          9             COMMISSIONER THOMPSON:  Commissioner Zack, for what

         10        purpose?

         11             COMMISSIONER ZACK:  To, one, introduce an amendment,

         12        and, two, to move to temporarily pass it once the

         13        amendment is introduced.

         14             COMMISSIONER THOMPSON:  Well, let's read the

         15        amendment.

         16             READING CLERK:  By Commissioner Zack on Page 2, Line

         17        10 through Page 3, Line 17, delete those lines and insert

         18        lengthy amendment.

         19             COMMISSIONER THOMPSON:  Why don't you explain the

         20        amendment?

         21             COMMISSIONER ZACK:  The reason for the amendment is

         22        because what Commissioner Henderson did, and I believe

         23        unintentionally, was to make this, if it is passed, to be

         24        a problem for minorities and Commissioner Scott would be

         25        100 percent correct on that.


          1             By inserting the compactness requirement and deleting

          2        before it, Except to meet the foregoing requirements, all

          3        of a sudden you have compactness up against creation of

          4        minority seats.  Minority seats are generally not the most

          5        compact seats that you will ever see drawn.

          6             So as a result of that, when -- and I think

          7        Commissioner Henderson did not realize what he was

          8        doing -- and this amendment will delete all of the

          9        compactness requirements.  And what that does is, is it

         10        allows this commission to do exactly what it should do and

         11        that is to follow the United States Constitution, to make

         12        sure all districts are contiguous and of even population.

         13        That is the law of this country.

         14             Now, what compactness requirements are has changed

         15        almost year by year during the last ten years.  I have had

         16        the privilege, and I say it as a distinct privilege, of

         17        representing a democratically controlled, or at least a

         18        20/20 Senate, and a Republican Senate and it has been a

         19        tremendous privilege to be involved in the lawsuits that

         20        Commissioner Scott has talked about, to appear before the

         21        United States Supreme Court and to argue the matters and

         22        to try the case on behalf of the Florida Senate.

         23             What we have here are two issues that are being --

         24        that need to be addressed separately.  The first issue is

         25        minority representation.  And as a Cuban American, as a


          1        person committed to minority representation, I can tell

          2        you that anything that is done to reduce minority

          3        participation, I am totally, absolutely, and forever

          4        opposed to.

          5             However, there is a 14th Amendment equal protection

          6        issue that people who believe -- everyone in this country

          7        has the same rights and you can't draw districts that hurt

          8        individuals who have like rights and that's what Shaw and

          9        Miller talked about, drawing these bizarre districts.  And

         10        that's why we had to go back into court and we had to

         11        correct.  And we were able to correct Corrine Brown's seat

         12        and Senator Hargrett's seat and we were able to do that

         13        based on the law as it changed.  That law is continuing to

         14        change.

         15             Now, as you look at those changes, which again are

         16        every time -- there have been very few cases.  Just so you

         17        understand this.  If any of you are confused, it is easy

         18        to understand why you are confused because the United

         19        States Supreme Court has only spoken about these issues on

         20        very few occasions and the various appellate courts around

         21        the county have ruled in different ways.

         22             And even the first case which is the Seminole case

         23        involving reapportionment, which is called "Jingles" was a

         24        plurality opinion, you couldn't even get a majority of the

         25        Supreme Court of the United States to agree as to what the


          1        reapportionment law was.  And depending on who is arguing

          2        it, you can make different arguments about what was said

          3        in that Seminole case.  That's more than you care to know

          4        about the legal matters pertaining to reapportionment.

          5             But it is a changing area of the law.  So the

          6        consideration of minority districts is one that whether it

          7        is the commission, or the Senate, or the House is going to

          8        be considered.

          9             Now let me explain to you the way this is done today.

         10        Reubin Askew told me when I first took on this

         11        representation that the most delicate nerve in the body of

         12        any politician is their district lines.  And in the old

         13        days, they walked around, long before my time, I guess

         14        with colored pencils, is what Reubin told me, you can tell

         15        their shirts all had these different colors on their white

         16        shirts and they threw their lines as they went along.

         17        Well we are in the millennium, that's not how it's done

         18        anymore.  It is done on computer.

         19             And it was done on computer ten years ago on these

         20        massive million dollar computers.  This time it will be

         21        done on everyone's PC.  Every person in this state will be

         22        able to buy a program for their computer and will be able

         23        to draw a district.  Every single person in this chamber

         24        who wants input into the process will be able to draw one

         25        of these maps, this is what it looks like, okay?  And they


          1        change instantaneously by the press of a key on your

          2        computer, everyone has the same information.

          3             You get tiger maps, what you call "tiger maps," which

          4        has block by block voter information.  For example, who

          5        the voter is, what they have for cereal in the morning,

          6        whether they are Republican, Democrat, how many times they

          7        voted in the last ten elections.  You can put in whatever

          8        elections you want.  Everyone has the same information.

          9             So whether you have the Florida Senate or this

         10        reapportionment commission drawing these districts, the

         11        districts that will be presented to them will be the same.

         12        I don't remember, we had hundreds last time, hundreds and

         13        hundreds.  I presume this time there will be thousands of

         14        districts to look at.  I don't think the Legislature wants

         15        to look at thousands of districts to tell you the truth.

         16             But the fact of the matter is that it is not the

         17        question of protecting minorities because minorities must

         18        be protected.  Because if they are not, I'll tell you,

         19        they are going to be in the courthouse in a split second

         20        and HT will be representing them or somebody else will be

         21        helping them in this chamber.

         22             And the fact of the matter is -- or Jacinta.  Nobody

         23        is going to allow minorities not to be represented and not

         24        to have the representation that they are entitled to under

         25        the Constitution of the United States and under the case


          1        law, period.

          2             So the real issue, the real issue is who is going to

          3        draw the lines?  And I respect the fact that there are

          4        people who believe that the Legislature should draw the

          5        lines.  I believe also that, as upset as anyone might be

          6        about the president -- the chairman of this group being

          7        designated by the Florida Supreme Court, people are still

          8        outraged, outraged is the only word you can use about a

          9        fellow who came in from New Orleans with a scissors and

         10        Scotch tape and took three different maps and cut them

         11        apart and Scotch taped them back together and changed the

         12        entire political face of this state with no input from

         13        anybody in the Legislature or a Florida citizen except

         14        what appeared in court.  That is categorically wrong.

         15             So -- and by the way, I believe the Legislature --

         16        because before you had a 20/20 split -- I truly believe

         17        that that contributed if not was the sole cause to the

         18        issue that caused the deadlock.  We don't have that

         19        anymore.  And what you do have is the question of who is

         20        best capable of drawing those lines, whether it be a

         21        disinterested commission who is looking at all the same

         22        plans that are going to be presented to the Legislature or

         23        the Legislature.  And there can be an honest difference of

         24        opinion as to who should draw those lines.

         25             However, if you are involved in the process, and the


          1        inherent conflict that exists, that must exist, in drawing

          2        your own district and drawing districts for people who you

          3        sit next to, just like we sit next to each other day in

          4        and day out, you have to fall on the side of an

          5        independent commission who is there to do the right thing

          6        day in and day out and has no other concern, no other

          7        concern because they are gone after they draw this

          8        district.  But to draw good districts that will be

          9        challenged by anybody in this state if they feel those

         10        districts in any way jeopardize minority participation.

         11             Now the reason for the amendment is that it deletes

         12        all the issues involving compactness so that there can be

         13        no question that minorities will not suffer because of any

         14        compactness arguments.  Whatever compactness issues there

         15        are, they are in the Constitution, they are in Shaw, they

         16        are in Miller, they are in the cases that they have

         17        developed, and they are in cases that we know nothing

         18        about, never thought about, never heard of, not even on

         19        the radar screen right now.  But will continue to evolve

         20        in the case law.  And this commission will have the

         21        opportunity to read those cases and do what is legally,

         22        constitutionally, and morally correct.

         23             I would ask that this amendment be TPed so that we

         24        can have an opportunity to look at this issue, talk to

         25        minorities that have contacted us, to -- Ms. Barnett --


          1        Commissioner Barnett asked to be present at this, she will

          2        be back tomorrow morning.  And make sure that we are doing

          3        the right thing.  And all I'm suggesting, it be TPed until

          4        tomorrow.

          5             COMMISSIONER THOMPSON:  Commissioner Evans-Jones, a

          6        suggestion has been made that your proposal be temporarily

          7        passed.  Do you have a preference?

          8             COMMISSIONER EVANS-JONES:  I think I would prefer to

          9        just vote on the amendment and then move toward

         10        Commissioner Zack's amendment.

         11             COMMISSIONER THOMPSON:  Okay.  Commissioner Zack, the

         12        proposer is opposed to temporarily passing it and it is

         13        usually an accommodation to the person proposing it.  Have

         14        we been voting on motions to temporarily pass?  Normal

         15        parliamentary procedure is there is no such thing as a

         16        motion to temporarily pass.

         17             COMMISSIONER EVANS-JONES:  I would like to have an

         18        opportunity to talk to Commissioner Zack, so let's TP it.

         19             COMMISSIONER THOMPSON:  Let's TP it for a while.

         20        Commissioner Scott, for what purpose?

         21             COMMISSIONER SCOTT:  Just in case I don't happen to

         22        be in the room or something, what he is talking about

         23        doesn't change one thing.  The question is, who gets to

         24        sit at the table.  Who has to interact with the whole

         25        group that's making the decision, and what do they -- are


          1        they representative of the area you are trying to protect?

          2        So I don't want anybody to be misled that just because you

          3        make some language change here that therefore everybody is

          4        guaranteed.

          5             You could have complied with the U.S. Supreme Court

          6        decisions on minority districts and probably only had one

          7        instead of five black Senators in the Florida Senate up

          8        until the Hargrett case that we were able to fight

          9        through.  So I just want to -- on his amendment, I don't

         10        want anybody to think that that fixes anything.

         11             COMMISSIONER THOMPSON:  Commissioner Henderson, for

         12        what purpose?

         13             COMMISSIONER HENDERSON:  Thank you, Mr. Chairman.

         14        The purpose is to hopefully get out of the doghouse

         15        because the purpose of this amendment is to correct an

         16        unintended consequence of an amendment which we previously

         17        adopted.  And I think this does that and I think this will

         18        help us deal with that issue.  So my personal preference

         19        would be to go ahead and approve it and move on with it so

         20        I can get out of the doghouse.

         21             COMMISSIONER THOMPSON:  Well, your amendment was

         22        adopted wasn't it, earlier?  Okay.  Well, let's show it

         23        temporarily passed and go on to the next item,

         24        Commissioner Barkdull.

         25             COMMISSIONER BARKDULL:  We revert now to the special


          1        order as proposed.  And the first item up is Proposal

          2        No. 91 by Commissioner Hawkes.

          3             COMMISSIONER THOMPSON:  Commissioner Hawkes, you

          4        continue to temporarily pass that?  Okay.  Read the next

          5        proposal.

          6             COMMISSIONER BARKDULL:  Wait, Mr. Chairman, let me

          7        ask Commissioner Hawkes a question.  Are we ever going to

          8        get to this?

          9             COMMISSIONER THOMPSON:  Commissioner Hawkes, will you

         10        yield?  He yields.

         11             COMMISSIONER BARKDULL:  Are we ever going to take

         12        this up?

         13             COMMISSIONER HAWKES:  I'm not sure, it depends on

         14        what the courts rule.

         15             COMMISSIONER BARKDULL:  If we are going to wait for

         16        the courts, that could be a long time coming.

         17             COMMISSIONER HAWKES:  And if we are done with our

         18        work, then we are done with your work.  But I think the

         19        court is going to resolve it and I'd like to come to you

         20        with a ruling from the court.

         21             COMMISSIONER BARKDULL:  Okay, sir.

         22             COMMISSIONER THOMPSON:  Proposal 46 by Commissioner

         23        Anthony, now he's not here today.  And this is sovereign

         24        immunity, isn't it?  So are we ready to go on sovereign

         25        immunity, Commissioner Barkdull?


          1             COMMISSIONER BARKDULL:  I understand the committee

          2        met.  I do not know whether they came to a conclusion, but

          3        I do know that Commissioner Anthony is not scheduled to be

          4        here this week as I understand it.  Commissioner Connor

          5        has got a report.

          6             COMMISSIONER CONNOR:  Mr. Chairman, I'll be happy to

          7        report on the work of the committee.  The committee did

          8        meet today to consider Proposal 59 and various proposed

          9        amendments thereto.  And the outgrowth of our discussion

         10        was that no new consensus emerged about these issues.  And

         11        so the posture that we are in as we come back to the issue

         12        of sovereign immunity is that the committee recommended

         13        unfavorably as to the proposal of Commissioner Anthony

         14        which was proposal No. 46, the committee recommended

         15        unfavorably as to proposal No. 77, which was the proposal

         16        originally sponsored by Commissioner Freidin.  Which

         17        altogether abolished sovereign immunity.

         18             And Commissioner Anthony's would extend, would

         19        constitutionalize sovereign immunity for municipalities

         20        and political subdivisions which is already taken care of

         21        by statute.

         22             The committee recommended favorably on Commissioner

         23        Zack's proposal, which was Proposal No. 59.  But I think

         24        it is fair to say that as an outgrowth of the discussion

         25        this morning.  Commissioner Zack and perhaps Commissioners


          1        Lowndes and Morsani have additional proposed amendments

          2        that they would like the body to consider as it relates to

          3        Proposal No. 59.

          4             Proposal No. 59 is a proposal that would raise the

          5        caps to $200,000 and index it according to the CPI.  And I

          6        assume that there are amendments on the desk,

          7        Mr. Chairman, that would address 59.  There are, to my

          8        knowledge, no amendments as they relate to 77 or 46.

          9             COMMISSIONER THOMPSON:  Commissioner Connor, I'm not

         10        clear now.  What is the future of your committee?  Have

         11        you considered and that's your report and you recommend we

         12        take up these?

         13             COMMISSIONER CONNOR:  Our recommendation was that you

         14        favorably consider 59.  And unfavorably consider 77 and

         15        46.

         16             COMMISSIONER SCOTT:  But Zack did have --

         17        Commissioner Zack did have some amendments that he wanted

         18        to address to his underlying Proposal 59.

         19             COMMISSIONER CONNOR:  Mr. Chairman, what became clear

         20        from our discussion was that beyond the original

         21        recommendations of the committee we weren't able to come

         22        to any new consensus about prospective amendments.

         23             COMMISSIONER THOMPSON:  Okay.  I think then the best

         24        way to proceed is to -- first of all, I think the report

         25        of the chairman is that they have done all they can do and


          1        they are recommending we take up 59.  So I'm going to stay

          2        in the order that we are in, we have Proposal 46.  If

          3        Commissioner Anthony was here, I would recommend that he

          4        withdraw that.  But since he is not here, I would

          5        recommend to you-all that we just temporarily pass that.

          6             The next proposal will be 59 and we will take it up

          7        and I'm given to understand that the amendments are on the

          8        table and we can debate those amendments and proceed

          9        accordingly.  So take up and read Commissioner Zack's

         10        Proposal No. 59.

         11             READING CLERK:  Proposal 59, a proposal to revise

         12        Article X, Section 13, Florida Constitution; providing

         13        limitations upon the amount of damages payable by the

         14        state when a court finds the state liable; providing for a

         15        bad faith surcharge; placing a limit on attorney's fees.

         16             COMMISSIONER THOMPSON:  Commissioner Zack, you are

         17        recognized on your Proposal 59.

         18             COMMISSIONER ZACK:  The only amendments deal with

         19        issues that were raised both by persons in this body and

         20        by governmental entities that appeared before us and they

         21        wanted to make it perfectly clear that punitive damages

         22        would not be allowed, number one.  And, number two, that

         23        there would be no waiver of sovereign immunity for

         24        planning functions because government has to govern.

         25             So those are the two additional amendments.  Now the


          1        proposal itself provides that the cap will be raised from

          2        100- to $200,000 per person and that costs will not be

          3        included in that amount, that a bad faith provision will

          4        be part of the law, and a bad faith provision -- and I

          5        don't know to what extent we have time or the desire to

          6        talk about bad faith -- but the simple discussion of it is

          7        that an opportunity will be given to the governmental body

          8        to pay the claim in a timely fashion.

          9             And if they are given all information necessary then,

         10        and they should pay it, and they don't pay it, in a

         11        subsequent bad faith trial, a jury will determine whether

         12        or not they acted in good faith in failing to pay the

         13        money when it was due.  If they did not act in good faith,

         14        then there would be no limitation on sovereign immunity.

         15             There also is a CPI increase so this matter does not

         16        become a problem as it has in the past.  What we have

         17        determined through various hearings and hours of debate is

         18        that a citizen in Florida in 1981 when this was first

         19        adopted who had $100,000 worth of the benefits if they

         20        were injured today would need at least, at least $200,000,

         21        to be able to secure the same medical care that that

         22        citizen in the state of Florida could do in 1981.  And

         23        that the 1998 citizen of Florida has at least the same

         24        rights as the citizens of Florida had in 1981.  And this

         25        just makes sure that occurs.


          1             I talked to Commissioner Sundberg earlier today.  I

          2        want to make sure that a third amendment doesn't have to

          3        be placed in this amendment which it says, Provisions may

          4        be made by general law for bringing suit against the

          5        state.  I'm concerned about the "may" being discretionary

          6        and I think that word needs to be "shall" be made by

          7        general law.  If I am correct on that, I would propose

          8        that as an additional amendment to this Amendment No. 1.

          9        Commissioner Sundberg, if you would have an opportunity

         10        during the debate to look at that issue for us.

         11             COMMISSIONER THOMPSON:  Okay.  If you want to make

         12        any of those changes, get them up here on the table.  Now,

         13        my understanding is the first three amendments that were

         14        left pending, by the way, with the bill, you will notice

         15        that reference in your calendar, are also printed in your

         16        Constitutional Revision Commission packet with the pink

         17        cover on it.  And the first two, the lead name is

         18        Commissioner Lowndes, and the last is Commissioner

         19        Langley.  And my understanding is you-all want to withdraw

         20        those; is that correct?

         21             COMMISSIONER LOWNDES:  That's correct.

         22             CHAIRMAN DOUGLASS:  Okay.  Show Commissioner Lowndes'

         23        proposed amendment is withdrawn.  Commissioner Langley is

         24        not here so I assume Commissioners Lowndes and Morsani are

         25        signed on with him.  Do you want to withdraw that one


          1        also?  Show those three that are in the packet, so that

          2        everybody is clear, withdrawn.

          3             Now, Commissioner Zack, do you have an amendment on

          4        the desk?

          5             COMMISSIONER ZACK:  Commissioner Sundberg, have you

          6        had an opportunity to review that?  I'm going to put it on

          7        the desk right now.

          8             COMMISSIONER THOMPSON:  Okay.  I think you have some

          9        on the desk already.  What you are talking about, you have

         10        been explaining your proposal and you probably have been

         11        explaining it as you would have it amended and it hasn't

         12        been amended yet.

         13             COMMISSIONER ZACK:  What I explained is the proposal

         14        exactly as it has been amended, and it's designated

         15        Amendment No. 1 to No. 59.  You should all have that on

         16        your desk.  The only change that I have discussed that I'm

         17        not prepared to make at this moment, and will after this

         18        has been debated, is whether you have to change the word

         19        to, provisions "may" be made --

         20             COMMISSIONER THOMPSON:  Do we have Amendment 1 on the

         21        desk?

         22             READING CLERK:  On the desk, Mr. Chairman.

         23             COMMISSIONER THOMPSON:  By Commissioner Zack?

         24             READING CLERK:  By Commissioner Zack.

         25             COMMISSIONER THOMPSON:  Okay.  We are not technically


          1        on that even though you've explained it.  Read the

          2        amendment.

          3             READING CLERK:  By Commissioners Lowndes, Zack,

          4        Morsani, and Hawkes.  On Page 1, Lines 15 through 28,

          5        delete those lines and insert lengthy amendment.

          6             COMMISSIONER THOMPSON:  Okay.  Commissioner Zack,

          7        have you just explained that amendment now, is that our

          8        understanding?

          9             COMMISSIONER ZACK:  That is my understanding that I

         10        explained it, yes.

         11             COMMISSIONER THOMPSON:  Okay.  Why don't you give us

         12        a nutshell explanation again of what the difference is

         13        between this amendment and what your base proposal is, I

         14        think that would be helpful.

         15             COMMISSIONER ZACK:  You want me to do a nutshell

         16        again of that amendment?

         17             COMMISSIONER THOMPSON:  How it differs from the

         18        initial proposal.

         19             COMMISSIONER ZACK:  It is exactly the same as the

         20        initial proposal except it now specifically provides that

         21        there is no sovereign -- waiver of sovereign immunity as

         22        to planning functions of government and that there is no

         23        waiver for punitive damages, that's the only thing it does

         24        that changes the original proposal.

         25             COMMISSIONER THOMPSON:  Okay.  Is there debate on


          1        this amendment No. 1 by Commissioner Zack?  Has everybody

          2        found it on your desk?  It should be on your desk and we

          3        want to be sure everybody has had an opportunity to review

          4        it.

          5             COMMISSIONER ZACK:  Oh, excuse me.  There are two

          6        other changes, I'm sorry.  We seemed to be debating this

          7        for so long that I kind of incorporated it.  It actually

          8        reduces.  The original amount was 250,000 per person and

          9        500,000 per incident.  But based on remarks that were

         10        made, I believe by Commissioner Connor, we reduced the

         11        amount from 250 to 200, but we also removed the per

         12        incident requirement so that if you had a busload of

         13        children, God forbid, who got in an accident, each would

         14        be entitled to $200,000 as opposed to a $500,000 for the

         15        whole bus.  So those are the changes that are also in

         16        there.

         17             COMMISSIONER THOMPSON:  Are claims bills addressed?

         18             COMMISSIONER ZACK:  Claims bills, I understand, will

         19        be addressed by an amendment that Commissioner Lowndes has

         20        to this amendment.  But we wanted to separate them because

         21        they really stand on their own.  One is geared strictly to

         22        dealing with the problems we presently have with claims

         23        bills where this pertains to the sovereign immunity cap.

         24        And even though there is some crossover, they are not one

         25        and the same.


          1             COMMISSIONER THOMPSON:  Okay.  Commissioner Nabors?

          2        Will the gentleman yield, he yields.

          3             COMMISSIONER NABORS:  I'm trying to follow along

          4        here.  But doesn't it also change -- your original

          5        proposal, as I read it, put a limitation on attorney's

          6        fees, did it not?  So the attorney's fees shall not exceed

          7        25 percent of the amount awarded against the state?

          8             COMMISSIONER ZACK:  I think that's the law, period,

          9        on the waiver of sovereign immunity cases.  I think that

         10        is statutorily the law.

         11             COMMISSIONER NABORS:  That may be statutory but it's

         12        not in the Constitution.

         13             COMMISSIONER ZACK:  My intent is, again, that the

         14        same limitation on attorney's fees would continue to apply

         15        that presently exists.

         16             COMMISSIONER NABORS:  But that's not in your --

         17             COMMISSIONER ZACK:  I would consider that a friendly

         18        amendment if you, in fact, want to include that though I

         19        think that it's presently the case and it wouldn't be

         20        altered by anything that we are doing here.

         21             COMMISSIONER THOMPSON:  Commissioner Connor, for what

         22        purpose?

         23             COMMISSIONER CONNOR:  To address Mr. Zack's

         24        perception that that's a friendly amendment.  It is my

         25        perception that you are not interested in


          1        constitutionalizing attorney's fees on these matters.  And

          2        so --

          3             COMMISSIONER ZACK:  That's why we left it out because

          4        there are concerns among various members of the commission

          5        that we did not want to put in the Constitution things

          6        that really shouldn't be there.

          7             Now what should or should not be in that Constitution

          8        depends on, I guess, where you sit on these issues.  But

          9        it was one less thing that we wanted to be memorializing

         10        in the Constitution.

         11             COMMISSIONER THOMPSON:  Commissioner Ford-Coates, for

         12        a question?  Does the gentleman yield?  He yields.

         13             COMMISSIONER FORD-COATES:  The change in the proposal

         14        to eliminate the cap per incident, is there an estimate of

         15        the impact on government?  Because in reality, when we are

         16        talking about all these dollars, we are talking about what

         17        the taxpayers are going to have to pay in these incidents.

         18        So do we have any kind of an estimate on what that's going

         19        to cost government in relation to either -- well, let me

         20        ask that question first.  Specifically taking the cap

         21        off --

         22             COMMISSIONER ZACK:  We've had three hearings on this

         23        matter and that was the first question that we asked that

         24        we wanted to be provided with.  No one ever answered that

         25        question directly.  There were a lot of estimates but if


          1        you assume that actuarially it is the same amount of money

          2        the 1981 is buying, you know, there shouldn't be that much

          3        of an increase but I can't tell you what the increase is;

          4        however, it is an insurable risk that can be insured over.

          5             COMMISSIONER FORD-COATES:  So would you agree that

          6        the bottom line on this is that there are going to be more

          7        costs to local government which will require local

          8        government to raise taxes?

          9             COMMISSIONER ZACK:  Absolutely not.  Ms. Barnett may

         10        want to do that, but I do not.  The fact of the matter is

         11        that wherever government is going to be impacted, there

         12        will, on a year-to-year basis, be an allocation of the

         13        amount of money that is there.  And the fact is that if

         14        there are additional premiums, then there may be other

         15        programs that are being phased out.  There may be other

         16        situations that do not have to be funded in that

         17        particular year.

         18             I don't know the effect and it will be a different

         19        effect on the different entities.  Will it cost more

         20        money?  Absolutely.  But that's part of the overall budget

         21        of government and this is one of the obligations that

         22        government should have.

         23             COMMISSIONER FORD-COATES:  Okay.  So it will cost

         24        more money requiring government -- it will require

         25        government to have to pay more money to pay these


          1        additional costs therefore having to raise taxes probably?

          2             COMMISSIONER ZACK:  It may turn out to be just the

          3        opposite.  It may be that if government recognizes their

          4        obligation to pay this that there will be additional

          5        safeguards put in place so that there will be less

          6        injuries.

          7             But the fact of the matter is that -- by the way,

          8        Commissioner Morsani reminded me that somebody said that

          9        they estimated, and I don't know what the estimate was

         10        based on, an increase in their premiums that could be

         11        between 5 percent and 20 percent, but they didn't explain

         12        how that actuarially was determined.

         13             COMMISSIONER FORD-COATES:  Okay.

         14             COMMISSIONER THOMPSON:  Okay.  We have a couple of

         15        amendments I'd like to go ahead and take up.  The first

         16        one is by Commissioners Lowndes and Morsani, Amendment 1

         17        to Amendment 1.  Commissioner Lowndes, are you prepared?

         18        If you are, read the amendment, please.

         19             READING CLERK:  By Commissioners Lowndes and Morsani

         20        on Page 2, Line 2, after the period insert lengthy

         21        amendment.

         22             COMMISSIONER THOMPSON:  Commissioner Lowndes, you are

         23        recognized to explain the amendment to the amendment.

         24             COMMISSIONER LOWNDES:  Mr. Chairman, this amendment

         25        to the amendment is really an addition to the amendment,


          1        it doesn't change the amendment proposed by Commissioner

          2        Zack.  It really doesn't have much relationship to the

          3        amendment proposed by Commissioner Zack.  It adds to that

          4        amendment the structure to allow arbitration proceedings

          5        to be brought in claims which exceed the cap.  The idea is

          6        this is offered as a solution to the claims bill problem.

          7             Rather than having to bring a claims bill, an injured

          8        person could go into the circuit court and claim that

          9        their injuries, the damages from their injuries, exceeded

         10        $200,000.  And at that point, the circuit court would

         11        appoint a panel of three arbitrators and the arbitrators

         12        then would hear the case and reach a decision.  The rules

         13        that govern the proceedings would be determined by the

         14        Supreme Court.

         15             This expands the liability of the government to -- it

         16        deals with those cases where there are severe damages and

         17        severe injuries.  It is believed by some people, including

         18        myself, to be a better solution to the problem than the

         19        solution that exists today which is to come to the

         20        Legislature for a claims bill.

         21             I would be happy to answer any questions.  Before my

         22        good friend Commissioner Ford-Coates gets up and asks me

         23        if I have any idea how much more this is going to cost, I

         24        have to tell her I don't and it perhaps will cost more.

         25        But I'd be happy to answer any questions.


          1             COMMISSIONER THOMPSON:  Other questions?

          2        Commissioner Brochin, for what purpose?

          3             COMMISSIONER BROCHIN:  For a question.

          4             COMMISSIONER THOMPSON:  For a question.  He yields.

          5             COMMISSIONER BROCHIN:  Am I reading this right that

          6        if you have a claim that exceeds the amount, say, today of

          7        $100,000, that the person has to forgo his right or her

          8        right to a jury trial?

          9             COMMISSIONER LOWNDES:  They don't have to forgo their

         10        right to a jury trial unless they want to get more money

         11        than the cap for larger damages.

         12             COMMISSIONER BROCHIN:  In other words, if they are

         13        claiming, hypothetically, $300,000 in damages, their only

         14        recourse is through arbitration and they don't have a

         15        right to a jury?

         16             COMMISSIONER LOWNDES:  Not if they want the $300,000.

         17        They have the right to a jury trial if they want $100,000.

         18             COMMISSIONER THOMPSON:  Commissioner Scott?

         19             COMMISSIONER SCOTT:  On the amendment, not a

         20        question.

         21             COMMISSIONER THOMPSON:  Oh, you just want to speak on

         22        the amendment.  Are there further questions?  Okay.  You

         23        are recognized on the amendment.

         24             COMMISSIONER SCOTT:  With due regard to Commissioner

         25        Lowndes, this is the amendment that we had the other day


          1        basically, and correct me if I'm wrong, that says that you

          2        no longer are going to have a right to a jury trial in a

          3        seriously injured case.  And, I mean, I just don't think

          4        it is a good idea to create this binding arbitration.  We

          5        have been very careful about that in a number of areas in

          6        the law.  There have been proposals to have binding

          7        arbitration in lieu of people having their day in court

          8        before.

          9             COMMISSIONER THOMPSON:  Further debate on the

         10        amendment?  Commissioner Brochin.

         11             COMMISSIONER BROCHIN:  My thought is as a collateral

         12        one and it more goes to the issue of whether we are going

         13        to have sovereign immunity.  If you're going to have

         14        sovereign immunity, I think then you have got to think

         15        long and hard before you switch that determination over to

         16        the judicial branch.  Sovereign immunity is based on the

         17        fact that, as I understand it, governmental entities have

         18        to have a cap in terms of what amount of money they can

         19        afford so they don't have return to their electorate and

         20        get more, therefore, we don't tax the king.

         21             So I think you are putting the cart before the horse

         22        by saying we are going to change the whole process over to

         23        the judicial branch before we at least decide what we are

         24        going to do with sovereign immunity.  And, therefore, I

         25        think we need to do it the other way around in terms of


          1        some sort of order.  And I know procedurally that's become

          2        difficult.  But, to me, if it is the current system, and

          3        the claims bill process is broken, we need to fix the

          4        claims bill process through the Legislature but not fix it

          5        through -- as long as sovereign immunity is already

          6        intact.

          7             COMMISSIONER THOMPSON:  Okay.  Why don't we figure

          8        out some new amendments that have come up.  Let's go to

          9        the second amendment to Commissioner Zack's amendment.

         10        Let's see.  Excuse me, we will continue on this amendment.

         11        Any further debate on the amendment by Commissioner

         12        Lowndes and others to the amendment by Commissioner Zack?

         13        Commissioner Lowndes, you are recognized to close.

         14             COMMISSIONER LOWNDES:  I would just point out that

         15        you are not depriving people of a jury trial.  People

         16        don't really have their right to a jury trial for amounts

         17        in excess of the cap at this point.  Their right for a

         18        jury trial for amounts in excess of the cap only will lead

         19        them to the Legislature for a claims bill.  They can't,

         20        regardless of what the jury awards, they can't collect

         21        more than the cap.  So they really don't have a right to a

         22        jury trial for money or damages in excess of the cap.

         23             This is an effort to make a new procedure to replace

         24        a procedure which is not working.  This is, and seems to

         25        me, that the philosophical issue here is do you believe


          1        that people who are seriously injured by the negligence of

          2        government should be able to recover damages commensurate

          3        with the injuries.  And if those injuries and damages are

          4        in excess of the cap they can't recover them now, they can

          5        go to the Legislature who may or may not deal with their

          6        problem.  This gives them an opportunity to deal with the

          7        problem.

          8             As I say, it is somewhat of a philosophical matter.

          9        One of the things that the people who are against raising

         10        the caps and doing away with sovereign immunity say, We

         11        don't want to be subject to runaway juries.  I'm kind of

         12        shocked, but I've gotten a number of letters from people

         13        in government, county attorneys and whatnot, saying, We

         14        don't want to be burdened by runaway juries.

         15             Well one thing this proposal does, it doesn't burden

         16        government with runaway juries.  It burdens them with,

         17        presumably, a panel of arbitrators appointed by the court

         18        who perhaps would have a more realistic and less emotional

         19        approach to the award of damages.  I recommend the

         20        proposal to you.

         21             COMMISSIONER THOMPSON:  So the question recurs on the

         22        adoption of the amendment as proposed by Commissioners

         23        Lowndes and Morsani.  All those in favor of that amendment

         24        please say aye.  And those who oppose it say no.

         25             (Verbal vote taken.)


          1             COMMISSIONER THOMPSON:  The amendment is not adopted.

          2        Okay.  Let's go to the board, I sincerely didn't hear.

          3        Okay.  The Secretary will unlock and the members will

          4        proceed to vote on the Lowndes/Morsani amendment.

          5             (Vote taken and recorded electronically.)

          6             COMMISSIONER THOMPSON:  Have all members voted?  All

          7        members voting.  The clerk will lock the machine and

          8        announce the vote.

          9             READING CLERK:  Thirteen yeas, 13 nays, Mr. Chairman.

         10             COMMISSIONER THOMPSON:  You just wasted 29.95 of the

         11        taxpayers in doubting me.  Read the next amendment.

         12             READING CLERK:  By Commissioner Zack on Page 1, Lines

         13        15 and 16.  Delete those lines and insert, Suits against a

         14        state.  Suits may be brought against the state, its.

         15             COMMISSIONER THOMPSON:  Commissioner Zack, is that a

         16        technical amendment?

         17             COMMISSIONER ZACK:  It is a technical.

         18             COMMISSIONER THOMPSON:  Everybody has it on their

         19        desk but it is a technical amendment that just amends the

         20        provision of the Constitution that is there now to make

         21        clear that suits may be brought; is that correct?

         22             COMMISSIONER ZACK:  That is correct.  There is some

         23        additional amendatory language that is being typed up

         24        right now.  We are less than five minutes away, I think,

         25        from doing it.  We could either -- go on to the next


          1        matter and TP it for five minutes, we'll come back to it.

          2        Or take it up first thing tomorrow morning or whatever the

          3        Chair's pleasure.

          4             COMMISSIONER THOMPSON:  Does it amend that amendment

          5        to the amendment or does it --

          6             COMMISSIONER ZACK:  Yes.

          7             COMMISSIONER THOMPSON:  But it doesn't amend this

          8        amendment to the amendment?  We can adopt this amendment

          9        as a technical amendment --

         10             COMMISSIONER ZACK:  That's correct.  It's a separate

         11        provision.

         12             COMMISSIONER THOMPSON:  Okay.  We are on the

         13        amendment to the amendment.  Any questions or concerns?

         14        Commissioner Barkdull, for what purpose?

         15             COMMISSIONER BARKDULL:  To ask Commissioner Zack a

         16        question, please.

         17             COMMISSIONER THOMPSON:  Does Commissioner Zack yield?

         18        He yields.

         19             COMMISSIONER BARKDULL:  Is the purpose of this

         20        amendment to make it mandatory on the Legislature to waive

         21        sovereign immunity?

         22             COMMISSIONER ZACK:  That is correct.

         23             COMMISSIONER BARKDULL:  That's a substantial change

         24        over what's in the Constitution now.

         25             COMMISSIONER ZACK:  Well, what we felt is that unless


          1        we put this mandatory language, then we ought to just go

          2        home and forget about the whole thing because there was no

          3        reason to proceed forward when it doesn't even increase

          4        the cap.  So we said it is not going to be a choice if we

          5        go forward.  It is going to be in the Constitution and

          6        they will be obligated to do that.

          7             COMMISSIONER BARKDULL:  I just want to be sure that

          8        everybody understands if you adopt this, and the proposal,

          9        if it is adopted, is going to mandate the Legislature do

         10        it.

         11             COMMISSIONER ZACK:  That's correct.  Thank you.

         12             COMMISSIONER THOMPSON:  Excuse me for characterizing

         13        it as technical.  It is technical if your main amendment

         14        is adopted; is that what you're saying?

         15             COMMISSIONER ZACK:  That is correct.

         16             COMMISSIONER THOMPSON:  Okay.  Commissioner Lowndes,

         17        for what purpose?

         18             COMMISSIONER LOWNDES:  I'd like to oppose the

         19        amendment --

         20             COMMISSIONER THOMPSON:  You are recognized.

         21             COMMISSIONER LOWNDES:  -- on the grounds that it is

         22        not a technical amendment at all.  The Constitution

         23        presently says that suits -- that the Legislature has the

         24        right to determine what suits could be brought against the

         25        state and Legislature has by statute determined that.  If


          1        you eliminate the Legislature's right to decide what suits

          2        could be brought against the state, you are left simply

          3        with the proposition the state can be sued as anybody else

          4        can be sued without the Legislature deciding which is

          5        proper and which is not proper.

          6             So I think it's a very significant change from

          7        existing law and I don't think it is a technical amendment

          8        at all.  And I don't think it is necessary to

          9        Mr. Zack's -- Commissioner Zack's main amendment.

         10        Commissioner Zack's main amendment raises the caps under

         11        existing law.  And provides that those caps will continue

         12        to be raised as time passes.

         13             It raises the cap, as I say, under existing law.  If

         14        you adopt this so-called technical amendment, it is going

         15        to change existing law.  And it is really going to do

         16        away, presumably, even with the caps because the caps come

         17        up under the laws passed for the Legislature and determine

         18        what suits can be brought against the state.  So I would

         19        oppose the amendment.

         20             COMMISSIONER THOMPSON:  Commissioner Nabors, for what

         21        purpose?

         22             COMMISSIONER NABORS:  Not to repeat, but I would

         23        oppose it too.  I think it is a significant change we can

         24        debate whether or not ultimately on this proposal whether

         25        or not the Constitution could deal with caps, but this is


          1        a fundamental change that goes, you know, beyond what we

          2        have dealt with before.  And I think I agree with

          3        Commissioner Lowndes.

          4             COMMISSIONER THOMPSON:  Commissioner Zack to close.

          5             COMMISSIONER ZACK:  This is an important issue.  And

          6        I don't want anyone -- I know it is late in the day,

          7        everyone should listen up.  We want to make sure people

          8        are doing what they really believe is right on a very

          9        important issue and to have a moment to think about what's

         10        happening.

         11             And I'm going to try and address it in as

         12        dispassionate a way as possible.  You have sovereign

         13        immunity today.  My proposal, the initial proposal, does

         14        exactly what I said before and I'm not going to go through

         15        it again.  But one of the changes we are making says

         16        "shall" waive sovereign immunity, not "may".  Because

         17        without the word "shall", the Legislature can do whatever

         18        they want.  That's in raising the cap.  There's a separate

         19        issue, again, related but separate as to how to deal with

         20        verdicts over the cap.

         21             Traditionally it had been dealt with by a claims

         22        bill.  In our last session, we heard from the president,

         23        from other speakers, about the problems with the claims

         24        bill process.  We talked about justice being for all

         25        people not just people who could afford the best


          1        lobbyists.  The fact of the matter is that the Lowndes

          2        amendment will do away with the claims bill process and

          3        you will have the ability to collect against the sovereign

          4        without a cap.

          5             All right.  Now there are going to be a lot of people

          6        who are opposed to that, I can assure you, that you are

          7        going to hear.  We have heard from many, you are going to

          8        hear from more, to go through this process without

          9        mandating it on the Legislature, without requiring the

         10        Legislature to actually use this method in dealing with

         11        verdicts over the cap.

         12             COMMISSIONER THOMPSON:  Commissioner Barkdull for

         13        what purpose?

         14             COMMISSIONER BARKDULL:  A point of order.

         15             COMMISSIONER THOMPSON:  State the point.

         16             COMMISSIONER BARKDULL:  The Lowndes amendment did not

         17        pass.

         18             COMMISSIONER ZACK:  I understand that, okay.  But the

         19        Lowndes amendment was intended to deal with everything

         20        over the cap, correct?

         21             COMMISSIONER BARKDULL:  I assume so, but why are we

         22        concerned with that when it didn't pass?

         23             COMMISSIONER ZACK:  I thought that we were still

         24        debating some of the reasons that the Lowndes --

         25             COMMISSIONER BARKDULL:  As I understand, this


          1        amendment that's on the floor just changes "may" to

          2        "shall".

          3             COMMISSIONER ZACK:  If you are only talking about

          4        that aspect, then I stand corrected.  And the reason to do

          5        that, however, is for the exact same reasons we intended

          6        to do it at the Lowndes amendment and that's why I was

          7        discussing it.  But this is this simple, and the same

          8        rationale applies either way.  There are going to be lots

          9        of discussion about raising the cap at all.  If we are

         10        going to raise it and if we are going to listen to the

         11        concerns as we should of citizens of the state and change

         12        it if we decide to change it by a super majority vote,

         13        then let's do it.  But let's not waste our time because we

         14        are kidding ourselves to think the Legislature is going to

         15        do this if we don't put "shall" there.

         16             COMMISSIONER BARKDULL:  Would the gentleman yield for

         17        a question?

         18             COMMISSIONER ZACK:  Yes, sir.

         19             COMMISSIONER BARKDULL:  Is this a filibuster to get

         20        another amendment prepared?

         21             (Laughter.)

         22             COMMISSIONER ZACK:  I've got five more minutes.

         23             COMMISSIONER THOMPSON:  Why don't you have mercy and

         24        go ahead and close on the amendment?

         25             COMMISSIONER ZACK:  You need to vote for this.  If


          1        you don't vote for this and you don't vote for this

          2        amendment, you really shouldn't vote for the whole matter

          3        and we should just can it because we shouldn't waste

          4        whatever equity we have with the people in voting to

          5        change the cap and then kicking it back to the Legislature

          6        who hasn't seen fit to raise the $100,000 cap one dime

          7        after a year where there have been no claims bills passed.

          8             COMMISSIONER THOMPSON:  It is here, the amendment is

          9        here.  You don't have to keep talking.

         10             COMMISSIONER ZACK:  Just in time.

         11             COMMISSIONER THOMPSON:  Commissioner Barkdull?

         12             COMMISSIONER BARKDULL:  Well, can the gentleman yield

         13        for one question?

         14             COMMISSIONER THOMPSON:  Will you yield for a final

         15        question?

         16             COMMISSIONER ZACK:  I don't think I have to because I

         17        got the amendment up.  But, yes, I'll be happy to.

         18             COMMISSIONER BARKDULL:  Would you believe me, sir,

         19        that if this is defeated I will show you how to raise the

         20        cap without putting this in the Constitution?

         21             COMMISSIONER ZACK:  I believe, Judge, you could do

         22        that, no matter what.  But we may have a different view as

         23        to when it would occur.

         24             COMMISSIONER THOMPSON:  We are on the adoption of the

         25        amendment to his own amendment by Commissioner Zack.  All


          1        those in favor of that amendment to the amendment say aye,

          2        and those who oppose say no.

          3             (Verbal vote taken.)

          4             COMMISSIONER THOMPSON:  The amendment is not adopted.

          5        Now we're back on the amendment.  Is there another

          6        amendment on the desk?  Another amendment to the amendment

          7        by Commissioner Zack on the desk.  Read the amendment.

          8             READING CLERK:  By Commissioner Zack on Page 1, Lines

          9        15 through 28, delete those lines and insert, Suits

         10        against the state.  Provision shall be made by general law

         11        for bringing suit against the state, its political

         12        subdivisions, agencies, districts, and municipalities, as

         13        to all liabilities now existing or hereafter originating;

         14        lengthy amendment.

         15             COMMISSIONER THOMPSON:  Commissioner Zack to explain

         16        the amendment.

         17             COMMISSIONER ZACK:  I believe that we struck the

         18        words -- let me see the original one.

         19             COMMISSIONER THOMPSON:  Would this best be offered as

         20        a substitute?

         21             COMMISSIONER ZACK:  There is no reason not to offer

         22        it as a substitute.

         23             COMMISSIONER THOMPSON:  It is the complete text of

         24        what you want to do?

         25             COMMISSIONER ZACK:  It is exactly what I intend to


          1        do.

          2             COMMISSIONER THOMPSON:  Okay.  Show this offered as a

          3        substitute amendment then, please.  Okay.  We are on the

          4        substitute.  Now, do you want to tell us what the

          5        difference is between this and the one you are

          6        substituting it for?

          7             COMMISSIONER ZACK:  There were a number of different

          8        cleanup provisions.  One was where we talked about bad

          9        faith as it pertains to general law.  There is no reason

         10        to put general law.  Bad faith is really a creation of

         11        case law and we are able to do that.  The -- there was a

         12        word "recoverable".  Again, it is just a technical word.

         13        And I think that's about it.  And Commissioner Sundberg

         14        can --

         15             COMMISSIONER THOMPSON:  The amendment is being handed

         16        out to you now but I think everybody needs to get

         17        comfortable and have an opportunity to look at it,

         18        Commissioner Zack, which Commissioner Sundberg is doing,

         19        if you want to explain it to us.

         20             COMMISSIONER SUNDBERG:  I'm prepared to help with the

         21        explanation if Commissioner Zack would like me to.

         22             COMMISSIONER THOMPSON:  He is happy for you to.

         23        Please proceed.

         24             COMMISSIONER SUNDBERG:  Thank you, Mr. Chairman.

         25        Without inserting the word "shall" there -- or has that


          1        already been -- I'm sorry, I'm not sure what posture we

          2        are in.  Has "shall" already -- has that amendment

          3        already --

          4             (Off-the-record comment.)

          5             COMMISSIONER SUNDBERG:  The "shall" is dead?

          6             COMMISSIONER THOMPSON:  The way I understand it now,

          7        the original text of his proposal is now being used as a

          8        vehicle for this which is the new proposal.  So nothing in

          9        between there has been adopted as I understand it.

         10             COMMISSIONER SUNDBERG:  Thank you.  The word "shall"

         11        on Line 15 is placed in there, as Commissioner Barkdull

         12        observed, so as to require, constitutionally, the

         13        Legislature to waive the immunity in the respects that are

         14        set forth in here.

         15             As Mr. Zack said, unless it is made mandatory, you

         16        haven't hit a lick and if anything, you may have limited

         17        the Legislature's ability which currently exists to, in

         18        this session just coming up, to waive sovereign immunity

         19        completely.  Because this would tend to -- if it remained

         20        "may", they will be limited in the amount of waiver they

         21        could impose.  The other change that is of some

         22        significance is at Line 19 where the phrase, "to the

         23        extent private parties would be liable to the claimant,"

         24        is really hopefully a more artful way of expressing what

         25        was eliminated, a line that was eliminated, that said that


          1        the state would only be liable for or would not be liable

          2        for planning functions.

          3             This is a better way of saying it.  It's the way the

          4        statute now that waives sovereign immunity expresses that.

          5        That's the essence of these amendments other than what you

          6        already talked about.

          7             COMISSIONER THOMPSON:  Okay.  Further questions in

          8        respect to this amendment?  Commissioner Barkdull, for

          9        what purpose?

         10             COMMISSIONER BARKDULL:  I just wanted to be noted to

         11        be opposed to it.  Further debate or questions in respect

         12        to this substitute amendment which would be the new

         13        language of the proposal as I understand it?  Hearing

         14        none, Commissioner Zack to close.

         15             COMMISSIONER ZACK:  You heard it all really.  There

         16        is no reason again that a citizen of the state of Florida

         17        shouldn't today enjoy the same rights that a 1981 citizen

         18        had.  This is a modest increase.  We've heard everywhere

         19        we went in the state of Florida about how the system was

         20        being abused.

         21             Unless you pass this, you have no accountability.

         22        That is the one word we heard over and over and over again

         23        wherever we went.  We want accountability in government.

         24        And unless you pass this provision, you will have a

         25        situation which happens today.  The $100,000 cap isn't a


          1        $100,000 cap.  First of all, it's not paid for a couple of

          2        years even when it should be paid.

          3             So you have the present value of money.  The carrying

          4        cost, so what is that?  90,000?  80,000?  You then have

          5        costs which are excluded from the cap.  Another 10,000?

          6        So now where are you, 80-, 70,000?  And then what happens?

          7             Then you get a call on the eve of trial and they say

          8        to you, Hey, you know, you're not going to try this for

          9        $10,000, knock off another $10,000.  So now you're at a

         10        cap that's really $70,000, how it works in the real world

         11        with real people.

         12             And you call up a risk manager and what do they say?

         13        I've got 200 cases.  I don't care if I have 400 cases.

         14        There's no reason why I have to settle this case with you

         15        even though I have an absolute obligation to settle with

         16        you.  Even if it's a quadriplegic, it doesn't make any

         17        difference.  I don't have to settle.  There is nothing you

         18        can do.  I'm just going to hang up the phone on you.  It

         19        makes no difference in my life.

         20             Well, what this bill does -- and by the way,

         21        Commissioner Anthony, and I don't speak for Commissioner

         22        Anthony and I know that he would probably be opposed to

         23        any change because that's what his position is and that's

         24        what government's position is in general.  However he

         25        admitted if there is going to be a change, this is the


          1        most reasonable change that you could possibly craft.

          2             As a matter of fact, I really believe that government

          3        should get behind this because this is a -- an ability for

          4        a small fix, if you will, that will solve a lot of the

          5        anger that we felt in the public hearings by people who

          6        are being abused by the system.  It is a very modest

          7        proposal.  As I said at the commission, the mistake I made

          8        was offering it too early.  I should have offered it at

          9        the end of all the debate as a compromise position.

         10             But this balances the concerns of government and the

         11        concerns of the wrongful -- the wrong party and it gives

         12        you an opportunity to hold the government accountable for

         13        their actions and for a modest increase that allows people

         14        who are injured to be help.

         15             And to answer Commissioner Ford-Coates' question

         16        about increase and certain taxes and so forth, you pay one

         17        way or another.  Whether this person who walks into

         18        Jacksonville Memorial Hospital without any money, the

         19        citizens are going to pick that up one way or another.

         20        But the fact of the matter is that government should pay a

         21        very modest amount, that $200,000 is, and should be

         22        accountable for not paying when they don't pay.

         23             COMISSIONER THOMPSON:  Commissioner Barkdull, for

         24        what purpose?

         25             COMMISSIONER BARKDULL:  To ask the gentleman a


          1        question since I didn't get to oppose it.

          2             COMISSIONER THOMPSON:  Does the gentleman yield?  He

          3        yields.

          4             COMMISSIONER BARKDULL:  Commissioner Scott -- excuse

          5        me, Commissioner Zack, this provision which you say will

          6        be a substitute amendment now has the word "shall" in it

          7        so that's mandatory on the Legislature?

          8             COMMISSIONER ZACK:  Yes, it is.

          9             COMMISSIONER BARKDULL:  Commissioner Zack, would you

         10        believe me if I told you that after you get beyond the

         11        word "shall" all this language that you've got in here

         12        could be put in the statute?

         13             COMMISSIONER ZACK:  I believe a lot of things could

         14        be put in statute, absolutely.  And a lot of things we do

         15        can be put in the statute.  And the question is whether

         16        the Legislature has the desire or the will and the will,

         17        the political will, to put into statute or whether or not

         18        this group that meets once every 20 years, who hears these

         19        concerns and recognizes there's a problem can solve this

         20        problem by adopting this amendment.

         21             COMMISSIONER BARKDULL:  And with the word "shall" in

         22        here, they're going to have to do it.

         23             COMMISSIONER ZACK:  I hope they have to.

         24             COMISSIONER THOMPSON:  Commissioner Wetherington, for

         25        what purpose?


          1             COMMISSIONER WETHERINGTON:  I'd like to ask

          2        Commissioner Zack a question.

          3             COMMISSIONER SCOTT:  The gentleman yields.

          4             COMMISSIONER WETHERINGTON:  I'd like to say that I'm

          5        very sympathetic trying to do something with sovereign

          6        immunity.  But apart from the merits of this, here's the

          7        question.  You've taken the language that says, "to the

          8        extent private parties would be liable to the claimant,"

          9        which is language that's taken from the statute.  And then

         10        you take the cap language.

         11             That phrase from the statute, "to the extent a

         12        private individual is liable," as a matter of statutory

         13        construction, has given rise to hundreds and hundreds and

         14        hundreds of cases in the state of Florida defining that

         15        which is not what an individual would be liable for and

         16        that which an individual is liable for.

         17             There is a whole body, a very, very, very complicated

         18        jurisprudence on that that's been developed as a question

         19        of statutory construction.  If we adopt this phrase that

         20        you've got and put it in the Constitution, then the

         21        question can be raised as to whether we are freezing and

         22        constitutionalizing the present status of the

         23        jurisprudence in the state of Florida that's all arisen

         24        from statutory construction.  And is, therefore, every

         25        decision after the amendment is passed going to be a


          1        constitutional decision, a constitutional interpretation

          2        of those particular words, which up to now have all been

          3        statutory.

          4             So this is one problem that occurs to me in terms of

          5        the way in which it's being done as opposed to -- because

          6        up until now the Legislature has some discretion as to

          7        what they can grant sovereign immunity for and what they

          8        don't want to grant sovereign immunity for.  But you see

          9        my point?

         10             The point is you're taking this statutory phrase

         11        which has now been construed in hundreds of cases to mean

         12        certain things.  You've taken that standard and you're

         13        putting it in the Constitution.  You've got all this

         14        jurisprudence out there.  And is now every case going to

         15        be now a constitutional interpretation?  There's some

         16        problems, in other words, it seems to me, with the

         17        constitutionalizing of that particular standard and the

         18        status of the law on sovereign immunity as it exists today

         19        apart from the question of -- what would you say in

         20        response to that?

         21             COMMISSIONER ZACK:  I understand that question.  I

         22        was hoping you were going to ask me that question.  And

         23        the reason I was hoping you would ask that question is

         24        because that language is Justice Sundberg's language and

         25        he's going to have the opportunity to explain to you why


          1        that language was used as opposed to the language which

          2        originally was there involving planning functions.  And I

          3        know there is an excellent response to that.  So I thank

          4        you for the question.  Justice Sundberg?

          5             COMISSIONER THOMPSON:  Commissioner Sundberg, do you

          6        wish to respond?

          7             COMMISSIONER SUNDBERG:  Yes, sir.

          8             Commissioner Wetherington, you are absolutely right

          9        that this is an attempt to utilize a body of law that has

         10        gained some, you know, some currency with respect to what

         11        you're talking about.  Very complicated, didn't start out

         12        complicated, it was made complicated by cases that

         13        followed a commercial carrier of course.

         14             But in any event, that's true and that's going to

         15        continue on.  It is simply a means of addressing a

         16        concept.  And will it become a constitutional concept?

         17        Yes, it will to the extent of waiver of sovereign

         18        immunity.  And this will become a constitutional waiver of

         19        sovereign immunity.  And it is simply an attempt to use a

         20        phrase that has some common currency.

         21             I don't think it is frozen at any particular point in

         22        time.  And I think when courts are called upon to construe

         23        whether or not, and they've adopted a number of tests, you

         24        know, is it discretionary?  Is it planning?  Is it

         25        operational?  It is a concept that at least has, you know,


          1        has had some understanding breathed into it by this body

          2        of law.  Will it become a constitutional interpretation?

          3        Yes, it will.

          4             COMISSIONER THOMPSON:  Okay.  Commissioner

          5        Wetherington for a question to Commissioner Sundberg?  He

          6        yields.

          7             COMMISSIONER WETHERINGTON:  So, Commissioner

          8        Sundberg, what you're saying then is -- and believe me,

          9        I'm sympathetic with the increasing amount of money people

         10        get in some of these cases.  But what we're saying then is

         11        this.  We're not only increasing the cap, we're also

         12        freezing the Legislature's ability to determine in which

         13        cases a waiver of sovereign immunity under the

         14        Constitution will be granted and which cases the waiver of

         15        sovereign immunity will not be granted because we're

         16        taking away now from them, in the future, that capability

         17        because we're now adopting this phrase and we're

         18        constitutionalizing this phrase.

         19             And that means the Legislature can't ever change

         20        whatever that phrase means.  So we're taking away from

         21        them, really, what the Constitution presently gives them

         22        which is the right to determine when we are going to waive

         23        sovereign immunity and that's a pretty big thing we're

         24        taking away, isn't it?

         25             COMMISSIONER SUNDBERG:  Let me respond by saying you


          1        may be right, that's not the intent and this may need some

          2        more work in progress.  What is intended is the

          3        Legislature would be required to waive it to this extent

          4        and under these circumstances.  But I think what is

          5        intended is the Legislature would retain the right to

          6        waive sovereign immunity completely.

          7             COMMISSIONER WETHERINGTON:  But do you understand the

          8        problem I have?  The Legislature -- if this is adopted,

          9        the Legislature can never waive sovereign immunity in any

         10        way that would be construed as inconsistent with this

         11        standard that's presently in force.  Right now they can do

         12        that.  They can change the standard tomorrow and they can

         13        say, We've decided that we're going to create some

         14        exceptions to sovereign immunity and they can list those

         15        exceptions just like the federal Tort Claims Act that has

         16        26 exceptions.  If this is passed, they can no longer do

         17        that.  They are frozen by this language in the

         18        Constitution.

         19             COMMISSIONER SUNDBERG:  That is absolutely correct

         20        if, in fact, as I say, this is mandatory.  It is my

         21        perception and we keep doing this language over and over

         22        again so some of it is getting lost.  As I perceive what

         23        is intended is to say there is going to be a

         24        constitutional irreducible minimum that the Legislature is

         25        going to be required to do.  It shall do it in this


          1        fashion.

          2             As I perceive the intent is, it would still, and the

          3        language probably needs some revision to accomplish that,

          4        but the Legislature would still have the discretion to

          5        waive sovereign immunity in its entirety.

          6             COMMISSIONER WETHERINGTON:  But not less than what's

          7        in the statute.

          8             COMMISSIONER SUNDBERG:  No, no, no.

          9             COMMISSIONER WETHERINGTON:  They cannot say if this

         10        passes, right, that we are not going to waive sovereign

         11        immunity in any situation under the law where it's

         12        presently waived.

         13             COMMISSIONER SUNDBERG:  Correct.  But that does not

         14        mean -- for example, if this were added as a Section 2 to

         15        what is already existing in the Constitution which says

         16        that the Legislature, roughly, made by general law, waives

         17        sovereign immunity.  That's roughly what the language

         18        says, okay?  So they may do that.  They may waive it in

         19        its entirety under any circumstances they choose.  In

         20        addition, they shall waive it in the fashion that this

         21        dictates.

         22             COMMISSIONER WETHERINGTON:  So if a problem comes up

         23        tomorrow and the Legislature takes a look at something

         24        that right now is considered to be not in the

         25        discretionary function exception and they decide for


          1        reasons that, Look, wait a minute.  There's a real problem

          2        here.  We have to have sovereign immunity here, they could

          3        not do that.

          4             COMMISSIONER SUNDBERG:  If, in fact, the language

          5        permits them the discretion to do that.  I keep saying the

          6        same thing over and over again which means I'm not

          7        communicating what I'm trying to say.  If you took the

          8        existing language that's in the Constitution now, is there

          9        any question that the Legislature may, in any fashion it

         10        chooses, deal with the issue of waiving sovereign

         11        immunity?

         12             COMMISSIONER WETHERINGTON:  There is no question

         13        right now.  But if you change it you're going to take from

         14        them that capability.

         15             COMMISSIONER SUNDBERG:  That's step one, that's

         16        Section 1.  What I'm suggesting -- and I think I'm

         17        agreeing with you -- the language now is a work in

         18        progress and needs some more work because you would add

         19        this as two.  And this would be a constitutional

         20        requirement that the Legislature at least do this.  It

         21        would not preclude them from doing something different or

         22        even greater so long as it was at least greater or

         23        different than that.

         24             COMMISSIONER THOMPSON:  Speaking of waiving, for what

         25        purpose does Commissioner Douglass keep waving his


          1        microphone?

          2             CHAIRMAN DOUGLASS:  I have a question.  I just

          3        remarked to Commissioners Henderson and Morsani, Now I

          4        know sitting here how you can get so confused that you

          5        don't really know what you're voting on.  And I sort of

          6        found myself in that position and I may want to move to

          7        reconsider my vote on the Lowndes amendment if I could ask

          8        a series of questions.

          9             Number one, I guess Commissioner Sundberg appears to

         10        be the expert in residence here, if he would yield to a

         11        question.

         12             COMMISSIONER THOMPSON:  Gentleman yield?

         13             COMMISSIONER SUNDBERG:  I'll yield to Commissioner

         14        Zack whose proposal didn't answer your question.  I don't

         15        know how I got elected to that.

         16             CHAIRMAN DOUGLASS:  I just elected you because

         17        Commissioner Zack wasn't there.  But in any event, my

         18        question is, number one, there is no sovereign immunity

         19        provision as such in the present Constitution, is there?

         20        In fact, the language now says the Legislature may provide

         21        for suits against the state.

         22             COMMISSIONER SUNDBERG:  Exactly.

         23             CHAIRMAN DOUGLASS:  And that has nothing -- it

         24        doesn't say anything about sovereign immunity, just grants

         25        the Legislature the power to do it.  The Doctrine of


          1        Sovereign Immunity is not grounded in statute either, is

          2        it?

          3             COMMISSIONER SUNDBERG:  No, it's in common law.

          4             CHAIRMAN DOUGLASS:  In fact, it's in our law because

          5        our Constitution says that we adopt the common law of

          6        England in 1776; is that not correct?

          7             COMMISSIONER SUNDBERG:  Actually, it says as of

          8        July 4, 1776, but you're correct.

          9             CHAIRMAN DOUGLASS:  That's right, the specific date.

         10        And at that date the common law there was this sovereign

         11        law -- sovereign immunity which applied to torts and there

         12        weren't many torts in those days anyway as I understand.

         13             COMMISSIONER SUNDBERG:  Absolutely.

         14             CHAIRMAN DOUGLASS:  So from that developed the

         15        proposition that the state could not be liable for its

         16        torts except as permission given by the state; is that --

         17        that's how we got where we are.

         18             COMMISSIONER SUNDBERG:  That's how we got where we

         19        are.

         20             CHAIRMAN DOUGLASS:  And then originally for many,

         21        many years up approximately to 1981 municipalities did not

         22        have any form of sovereign immunity because they didn't

         23        have common law; is that correct?

         24             COMMISSIONER SUNDBERG:  That's not precisely correct.

         25        They were perceived to have sovereign immunity with -- or


          1        be immune from suit for their pure govern --

          2             CHAIRMAN DOUGLASS:  That was not predicated entirely

          3        on the common law, however.

          4             COMMISSIONER SUNDBERG:  Absolutely, because they were

          5        a creature of statute.

          6             CHAIRMAN DOUGLASS:  Right.  The municipal

          7        corporations, they called then, were in a different

          8        category from the state and the county and these things.

          9        And so, also, prior to 1981, you could sue the driver of a

         10        state road department truck and you could recover, could

         11        you not, for his negligence even though he was driving the

         12        state road department truck?

         13             COMMISSIONER SUNDBERG:  Yes, you could.

         14             CHAIRMAN DOUGLASS:  So we came along and the

         15        Legislature changed the law and the Supreme Court changed

         16        the law, not without your dissent in this regard and they

         17        extended this immunity from suit to the cities even for

         18        proprietary functions like running the bus company,

         19        running the hospital and these things.

         20             COMMISSIONER SUNDBERG:  The water system.

         21             CHAIRMAN DOUGLASS:  The water system, whatever.  And

         22        they also precluded any suits against the employee that

         23        committed a negligence if he did it in the course of his

         24        employment.

         25             COMMISSIONER SUNDBERG:  Yes, they did.


          1             CHAIRMAN DOUGLASS:  So they changed the law

          2        completely at that point.  And didn't we have a two-year

          3        period in the '60s or early '70s where there was no

          4        sovereign immunity for tort?

          5             COMMISSIONER SUNDBERG:  That is correct.

          6             CHAIRMAN DOUGLASS:  And so we keep developing until

          7        we have this protective shield now over the state, the

          8        cities, all government that everybody seems to not like

          9        where they can injure you, they can commit torts -- the

         10        employees in the course of their employment -- and injure

         11        a citizen and his recourse is limited to the grace and

         12        mercy of the $100,000 limit at the present time or 200,000

         13        for a full accident at the present time.  And then hire a

         14        lobbyist, pay some more money and try to get a claims bill

         15        which you can't get.  That's what's now left for the

         16        average citizen; is that not correct?

         17             COMMISSIONER SUNDBERG:  Yes.  Why is it I feel like

         18        Charlie McCarthy here?  Go ahead.

         19             (Laughter.)

         20             CHAIRMAN DOUGLASS:  Well, you're not quite the same.

         21        You're much better.  Explain to me then, if what

         22        Commissioner Lowndes was attempting to do with his

         23        amendment, and this is why I want to consider moving for

         24        reconsideration.  As I understand it, what Commissioner

         25        Lowndes was trying to do was to say, Okay, if you come in


          1        here and you have this cap, whatever it is, whether it be

          2        200,000, 500,000, whatever the cap is, and it applies to

          3        all these agencies that have more automobiles than anybody

          4        in the state, then what he's saying is after you have your

          5        lawsuit, in effect, and you got a million dollar verdict

          6        and you can only get 250, you go to this panel; am I

          7        right, to consider how much you get of that over and above

          8        the verdict; is that what you proposed, is that -- would

          9        that be the substance of what that amendment would do?  In

         10        other words, it would come into play after the limit.

         11             COMMISSIONER SUNDBERG:  That's not my understanding,

         12        Mr. Chairman.  My understanding is if you had a claim that

         13        would exceed the limits of the waiver of sovereign

         14        immunity that you would ab initio go into this process.

         15             CHAIRMAN DOUGLASS:  All right.  So it would afford

         16        you, if you thought your claim was more than that, you had

         17        the option then of going into this court of claims or very

         18        similar to the Tort Claims Act to the federal government,

         19        I assume is what he's trying to accomplish; is that the

         20        case?  So that if we adopt Commissioner Zack's amendment

         21        or the original proposal, the option that's afforded by

         22        Commissioner Lowndes' thing would still be there.

         23             COMMISSIONER SUNDBERG:  Yes.  And let me, as I

         24        understand, and none of these originated with me.  I tried

         25        to embody in this document a concept that continues under


          1        federal law, under state law, and presumably would

          2        continue under the Lowndes proposal.  And that is, you go

          3        back to the -- initially to the issue of for what type of

          4        acts can the sovereign be responsible.

          5             Okay.  And the case law now, as Judge Wetherington

          6        quite clearly pointed out, and it's developed over the

          7        Overton opinion, starting with commercial carrier.  But a

          8        basic premise of that was, and that's where the language

          9        to the same extent or to the extent that private parties

         10        would be, the premise was there are certain acts by

         11        government to which the government, the public purse, is

         12        not obliged to respond.  You know, we talk about where you

         13        locate -- the executive decision of where you locate the

         14        traffic light as opposed to it being malfunctioned.

         15             In other words, I assume that there would still be

         16        some acts where government has acted or failed to act and

         17        someone is injured and there still would be no recovery.

         18        And that's the thought that was trying to be embodied

         19        within to the same extent as private parties.

         20             CHAIRMAN DOUGLASS:  So that if I wanted to reach the

         21        result as a sort of compromise between my concept of right

         22        and some governmental person's concept of right, then I

         23        would wanted to support Commissioner Lowndes proposal,

         24        would I not -- or amendment.  Because it would still

         25        afford, regardless of all the other chicanery, lobbying,


          1        or anything that went out, it would still afford a

          2        constitutional right to an injured party that readdresses

          3        his injury in some forum and that's what he's trying to do

          4        as I understand it; am I right about that?

          5             COMMISSIONER SUNDBERG:  Yes, I think it is in a

          6        different forum.  The forum --

          7             CHAIRMAN DOUGLASS:  Okay.  But it is a forum.

          8             COMMISSIONER SUNDBERG:  Correct.

          9             CHAIRMAN DOUGLASS:  Then I move to reconsider his

         10        amendment.  I voted with the prevailing side.

         11             COMMISSIONER SCOTT:  Okay.  Commissioner Douglass has

         12        moved to reconsider the vote by which Commissioners

         13        Lowndes and Morsani's amendment failed to pass.

         14             CHAIRMAN DOUGLASS:  I have made my speech.

         15             COMISSIONER THOMPSON:  Is there debate on that

         16        motion?  That would be Amendment No. 1 to Amendment No. 1.

         17        If anybody needs to have a copy of it or if you lost a

         18        copy of it, let us know and we'll give you a copy.  Okay.

         19        Is there a debate on the motion to reconsider?  Hearing

         20        none, since it's your amendment, Commissioner Lowndes,

         21        you're recognized.

         22             COMMISSIONER LOWNDES:  I would suggest we defer that

         23        until we get through with the amendment of the main motion

         24        here because it really is an addition to that.  And I

         25        think, as Commissioner Brochin mentioned earlier, we kind


          1        of have the cart before the horse in that regard.  So I

          2        would suggest we don't take up the motion to reconsider at

          3        this time, that we take it up after we get through with

          4        the amendments.

          5             COMISSIONER THOMPSON:  Commissioner Ford-Coates, for

          6        what purpose?

          7             COMMISSIONER FORD-COATES:  To ask a question.

          8             COMMISSIONER SCOTT:  You're recognized.

          9             COMMISSIONER FORD-COATES:  On the process here, I'm a

         10        little confused as to where we are.  Can't understand why.

         11        The substitute amendment, before we can get to this point

         12        on reconsideration, the substitute amendment that

         13        Commissioner Zack has here, once we dispose of that, do we

         14        then have to vote on Proposal 59, that's my first

         15        question.  This is not my last shot at this, that was one

         16        of the questions.

         17             If it wins, it is the proposal but I can still stand

         18        up and speak on the issue, correct?  I need to know that.

         19        Then the second question, I just need to clarify where we

         20        are.  The Zack amendment that starts out, Provision shall

         21        be paid by general law, is the same wording in that phrase

         22        that we defeated earlier; am I correct in that?

         23             COMISSIONER THOMPSON:  Okay.  Let me see if I can

         24        clarify it with the help of the Secretary here and then

         25        anybody that wants to speak to it can.  We took up a


          1        couple of amendments, one of which was Commissioner

          2        Lowndes' amendment.  It failed.  Then we took up an

          3        amendment by Commissioner Zack.  We were back on his

          4        original amendment and then he offered this amendment that

          5        we're actually on as a substitute for that amendment.

          6             Now the amendment as drawn by Commissioner Lowndes,

          7        was to the amendment that he is substituting this one for.

          8        So I don't know how to reconsider an amendment in the

          9        middle of this substitute.

         10             (Off-the-record comment.)

         11             COMMISSIONER SCOTT:  The only way we can do that, I'm

         12        advised, is if this substitute fails, we'll be back on

         13        that amendment.  We can reconsider the amendment that was

         14        drawn to that amendment at that time.  So we're on the

         15        substitute.

         16             (Off-the-record comment.)

         17             COMISSIONER THOMPSON:  What you can do is, you can

         18        come up and just tweak this -- yes, you can come up and

         19        offer this as an amendment.

         20             COMMISSIONER ZACK:  Mr. Chairman, I've been advised

         21        that I can withdraw this at this time.  Frankly, I have

         22        just had a conversation with Commissioner Wetherington

         23        which I think resolves the issues we discussed here.  I

         24        would like to have an opportunity over the evening to meet

         25        with Commissioner Wetherington, Commissioner Sundberg.  I


          1        know that we'll have language in the morning so I'd like

          2        to withdraw this particular amendment at this time as long

          3        as I am sure that I'll be able to resubmit it tomorrow

          4        morning; is that correct, Mr. Chairman?

          5             COMISSIONER THOMPSON:  I'm sorry, the Secretary and I

          6        were trying to figure out the procedure and you wanted to

          7        TP the whole matter?

          8             COMMISSIONER ZACK:  What I wish to do, if it's

          9        necessary to actually do more than TP and withdraw it so

         10        you can consider the Lowndes amendment at this time and I

         11        will reintroduce it tomorrow morning after you have had

         12        the chance to vote on the Lowndes amendment.

         13             COMMISSIONER SCOTT:  You want to withdraw the

         14        substitute?

         15             COMMISSIONER ZACK:  At this time to be resubmitted

         16        tomorrow.

         17             COMMISSIONER SCOTT:  Okay.  So we're back on your

         18        Amendment No. 1 to --

         19             COMMISSIONER ZACK:  Which would give the motion for

         20        reconsideration an opportunity to be heard.

         21             COMMISSIONER SCOTT:  Okay.  Commissioner Barkdull,

         22        for what purpose?

         23             COMMISSIONER BARKDULL:  To make a motion on

         24        adjournment.

         25             COMISSIONER THOMPSON:  Motion of highest dignity.


          1             COMMISSIONER BARKDULL:  I move that we extend the

          2        time of adjournment until we conclude the debate on the

          3        Lowndes amendment and we have announcements and so forth.

          4             CHAIRMAN DOUGLASS:  Okay.  Commissioner Barkdull has

          5        moved that we extend the time of adjournment to the

          6        conclusion of debate and vote -- and disposition or just

          7        debate?

          8             COMMISSIONER BARKDULL:  Well, Commissioner Zack had

          9        indicated he wanted it overnight but he wanted a ruling on

         10        the --

         11             COMMISSIONER SCOTT:  I'll tell you what my

         12        recommendation is.  I think we ought to leave it all up in

         13        the air overnight if we're going to leave part of it up in

         14        the air overnight and come back to it.  Commissioner

         15        Barkdull, would you accept that as a motion to adjourn

         16        after announcements --

         17             COMMISSIONER BARKDULL:  Yes, I'll take that.  Then I

         18        would suggest we go to announcement and we will adjourn.

         19             COMISSIONER THOMPSON:  Okay.  Show this proposal and

         20        pending amendments and pending motions for reconsideration

         21        deferred until tomorrow, temporarily passed until

         22        tomorrow.  And now we'll take up the issue of what to do

         23        about the rest of the week.

         24             (Chairman Douglass resumes the Chair.)

         25             CHAIRMAN DOUGLASS:  All right.  Commissioner


          1        Barkdull, we haven't made much progress today so we better

          2        get it straight on what we're going to do.

          3             COMMISSIONER BARKDULL:  Well, I don't think anybody

          4        is listening.

          5             CHAIRMAN DOUGLASS:  No, nobody is listening.  And I

          6        tell you, I found out sitting on the floor that a lot of

          7        people aren't listening including me when I was on the

          8        floor.

          9             COMMISSIONER BARKDULL:  Mr. Chairman, I move that the

         10        time for consideration of all the matters on

         11        reconsideration that were not disposed of today be

         12        deferred until tomorrow.

         13             CHAIRMAN DOUGLASS:  All in favor say aye.  Any

         14        opposed?

         15             (Verbal vote taken.)

         16             CHAIRMAN DOUGLASS:  Motion carries.

         17             COMMISSIONER BARKDULL:  Do I have any announcements

         18        on withdrawals?  I think Commissioner Henderson wanted to

         19        withdraw something.

         20             CHAIRMAN DOUGLASS:  Commissioner Henderson had a

         21        withdrawal.  Earlier you said you wanted to withdraw one

         22        of your proposals?

         23             COMMISSIONER BARKDULL:  Somebody had a withdrawal.

         24        Wetherington?

         25             CHAIRMAN DOUGLASS:  Oh, yes, it was Commissioner


          1        Wetherington.  Well, you're in the same line of fire,

          2        Commissioner Henderson.

          3             COMMISSIONER WETHERINGTON:  In order to move things

          4        along, I had to propose the amendment --

          5             CHAIRMAN DOUGLASS:  Pay attention, please.

          6             COMMISSIONER WETHERINGTON:  -- that with respect to

          7        the retirement age of judges that we just have a flat 72

          8        instead of the way we've got it now which is if you

          9        don't -- if you complete half of your term you get one

         10        way, if you don't complete -- it's a change that was

         11        recommended by the Article V Commission.  It's a good

         12        idea.  It passed 14 to 13.  It's not a major matter in

         13        light of what we're talking about.  It's a close vote so

         14        I'm just going to withdraw it.

         15             CHAIRMAN DOUGLASS:  All right.  Without objection,

         16        it's withdrawn.  All right.  Commissioner Barkdull?

         17             COMMISSIONER BARKDULL:  Mr. Chairman, Members of the

         18        Commission, I want to alert you to the fact that there is

         19        mail addressed to all members of the commission over in

         20        the commission office in the historic capitol and the

         21        staff wishes you'd stop by and pick up your paper.

         22             I want to announce that the Rules and Calendar

         23        Committee will meet upon adjournment or recess tomorrow

         24        night.  The room will be announced in the morning.  That's

         25        all the announcements that I have.  I don't know whether


          1        there are any other announcements by Select Committee

          2        chairman or Commissioner Mills as chairman of Style and

          3        Drafting.

          4             CHAIRMAN DOUGLASS:  Commissioner Mills?

          5             COMMISSIONER MILLS:  Mr. Chairman, I wanted to make

          6        sure to invite any members who wanted to come to the Style

          7        and Drafting meeting which is being held in the commission

          8        conference room, Commissioner Jennings looks anxious to

          9        come.  That we'll be trying to sort out both the procedure

         10        and be talking about how we'll be taking up things in

         11        order tomorrow.  There was a discussion -- Mr. Chairman,

         12        if you want, I could do this in the morning.

         13             CHAIRMAN DOUGLASS:  I don't want to get like we did

         14        this morning where we spent 45, 50 minutes talking in

         15        circles and didn't come up with anything.  And you're

         16        going to meet; is that correct?

         17             COMMISSIONER MILLS:  Yes, and I can tell you the one

         18        remaining issue if people would like to think about it.

         19             CHAIRMAN DOUGLASS:  All right.  Everybody listen now.

         20        Some of the ones who did the most talking aren't here

         21        either.

         22             COMMISSIONER MILLS:  Well, it must be because they

         23        agree, I'm sure.  The one remaining issue is during the

         24        course of this week, everybody I have talked to so far

         25        says, Yes, it makes sense if a proposal cannot get even a


          1        majority vote, it should probably drop from further

          2        consideration.  If a proposal gets a majority vote it will

          3        continue to be considered.  The one point of contention

          4        is, is if a proposal gets 22 votes, does it give it any

          5        special status when we come back after the public

          6        hearings?

          7             There are some that say no, some that say yes, and I

          8        think that those that said -- well, that's the issue.

          9             CHAIRMAN DOUGLASS:  When your proposal, the 22 vote

         10        status, you could still amend those by majority vote at

         11        the next meeting after the public hearings and then it to

         12        be a 22 vote like it did for everything else.

         13             COMMISSIONER MILLS:  The only difference in the

         14        discussion that I've had with folks, and our proposal is,

         15        that if you did not like a proposal that got 22 votes this

         16        week, you would have to move to reconsider it.  So that

         17        gives it some extra status.  Other folks said, Just treat

         18        it as if -- like everything else.  It has more than a

         19        majority, you go out to public hearings.  When you come

         20        back it needs to get 22 votes.

         21             CHAIRMAN DOUGLASS:  All right.  Now are you going to

         22        make a recommendation on that in the morning after your

         23        committee meetings?

         24             COMMISSIONER MILLS:  Yes, we may have a consensus.  I

         25        mean, we have a couple of people who like the other


          1        process.  A couple of people who like this process.  I, at

          2        this point, don't see a whole lot of difference.

          3             CHAIRMAN DOUGLASS:  All right.  Then we're going to

          4        announce -- when is your meeting?

          5             COMMISSIONER MILLS:  Now.

          6             CHAIRMAN DOUGLASS:  All right.  Anybody that has got

          7        a dog in this fight or wants to get one in it, please go

          8        to this meeting and fight it out in the committee so we

          9        don't have to do it on the floor again.  Is that

         10        understood, that we can save a lot of time.  Is there

         11        anything else, Commissioner Mills?  Commissioner Barkdull?

         12             COMMISSIONER BARKDULL:  I move we recess until the

         13        hour of 9:00 a.m. tomorrow morning.

         14             CHAIRMAN DOUGLASS:  All right.  We stand in recess

         15        until 9:00 a.m. tomorrow morning.

         16             (Session adjourned at 5:00 p.m., to be continued on

         17        February 24th, 1998.)










          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