State Seal Calendar

Meeting Proceedings for December 10, 1997


          1                          STATE OF FLORIDA
                             CONSTITUTION REVISION COMMISSION



                                    COMMISSION MEETING



              DATE:                   December 10, 1997
              TIME:                   Commenced at 9:00 a.m.
         11                           Concluded at 2:30 p.m.

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

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










          1                             APPEARANCES


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




          1                             PROCEEDINGS

          2             (Quorum taken and recorded electronically.)

          3             SECRETARY BLANTON:  All commissioners indicate your

          4        presence.  All commissioners indicate your presence.

          5             (Pause.)

          6             SECRETARY BLANTON:  A quorum is present,

          7        Mr. Chairman.

          8             CHAIRMAN DOUGLASS:  Come to order, please.  Well just

          9        a moment here.  If you'll bear with me just a minute, I

         10        have too many papers on my desk.  Will the Commissioners

         11        and guests in the gallery please rise for the opening

         12        prayer given this morning by Reverend Darden Battle,

         13        pastor of East Hill Baptist Church in Tallahassee.

         14        Reverend Battle.

         15             REVEREND BATTLE:  Join as we pray.  Almighty and

         16        everloving God, we call upon you for your wisdom and your

         17        understanding.  We pray, Father, that you would be with

         18        those that deliberate today, that they would seek not to

         19        know what is best for them or their concerns, but that

         20        they would know what is best under your wisdom and your

         21        guidance.  That you would give them the leadership to make

         22        those decisions that are best for those for whom they

         23        represent.  Bless them now, Father.  In the name of Christ

         24        we pray, amen.

         25             CHAIRMAN DOUGLASS:  Thank you very much, Reverend.


          1        Commissioner Hawkes, please come forward and lead us in

          2        the pledge of allegiance.

          3             (Pledge of Allegiance.)

          4             CHAIRMAN DOUGLASS:  Before we start I'd like to

          5        remind you that we have pages.  And so you have a yellow

          6        button on your desk.  If you need something done, like

          7        delivering a message or getting a coke or whatever, push

          8        your button and the page will come to your desk and be at

          9        your bidding.

         10             Mr. Buzzett, could you introduce our pages?  All you

         11        pages, as your names are called, please rise, Mr. Buzzett

         12        will identify you.  They are in the back.

         13             MR. BUZZETT:  These students are from the Cobb School

         14        in Tallahassee:  Rachel Sandler, Forrest Underwood, Linh

         15        Trang, Sarah Woodberry, Brett Guido, Justin Sorrell, Helen

         16        Travis, Laura Deeb, Carolanna Lawson, Angela Pinder.  I

         17        hope I got everybody.

         18             CHAIRMAN DOUGLASS:  Did we get everybody?  If we

         19        didn't we'll get you later.  We appreciate you young men

         20        and young ladies for doing this and we look forward to

         21        working with you.  And is it the Cobb Cougars; is that

         22        correct?  See, I'm not up on it.  The Cubs, okay, that's

         23        good.  That's one of our old junior high schools here,

         24        it's now middle school I guess and that's what it is now.

         25             We'll now proceed to the daily order of business,


          1        Commissioner Barkdull.

          2             COMMISSIONER BARKDULL:  Mr. Chairman, members of the

          3        commission, you have on your desk the proposed special

          4        order calendar for today.  And I would at this time move

          5        its adoption and I will make some explanations because

          6        some of the matters are going to be pulled off and some

          7        are going to be temporarily passed.

          8             CHAIRMAN DOUGLASS:  All right.  You're making a

          9        motion then to approve the special order and then you're

         10        going to --

         11             COMMISSIONER BARKDULL:  Make some comments about it.

         12             CHAIRMAN DOUGLASS:  All those in favor of the motion,

         13        please say aye; opposed like sign.

         14             (Verbal vote taken.)

         15             CHAIRMAN DOUGLASS:  Motion carries.  You may

         16        continue.

         17             COMMISSIONER BARKDULL:  Thank you.  I've been

         18        informed that the chairman of the committee to consider

         19        the cost factor in the Article V has an announcement to

         20        make in reference to that committee.  Commissioner Mills.

         21             CHAIRMAN DOUGLASS:  Commissioner Mills, you're

         22        recognized.

         23             COMMISSIONER MILLS:  Mr. Chairman, that matter is

         24        postponed to a time certain, 2:00.  So I suppose we would

         25        need a motion to waive the rules simply to take up that


          1        motion at this time, which will again be simply to

          2        postpone it to Friday.

          3             Just to report to the commission, that committee has

          4        met twice and members of that committee, Commissioner

          5        Ford-Coates, Commissioner Butterworth, Commissioner

          6        Thompson and Commissioner Planas have been incredibly

          7        diligent.  We've had two set of long hearings, the staff

          8        has worked hard and I think that we will bring to you a

          9        clarified issue with a couple of options.

         10             Just for background, if you wish to come to a meeting

         11        to be briefed on this, tomorrow at 4:00, we'll announce

         12        the room, we will have another hearing on this.  Also, the

         13        legislative, the committee on intergovernmental relations

         14        has done a great job on providing figures and I want to

         15        commend them and Billy Buzzett as well.  And just to tell

         16        you that the issues that you are considering are in terms

         17        of basic policy to justice issue of what is the state

         18        court system.  And a lot of what will happen tomorrow is a

         19        definition of what particular functions should be funded

         20        by the state, what functions should be funded by the local

         21        government.  As you know, and heard the debate, there is a

         22        distinction now.

         23             The other issue is how much annually this would cost,

         24        if it is shifted to the state.  The figures range between

         25        250 million and 600 million at this time, but that


          1        obviously depends on which functions you chose to allocate

          2        to the state.

          3             I think it's important for us to understand these

          4        justice functions are being paid for by taxpayers one way

          5        or the other.  The issue is whether it should be a state

          6        function and therefore perhaps more broadly spread or it

          7        should be a local function.  And the last issue of the

          8        cost is when should it be implemented.  The current bill,

          9        for your information, says the Legislature can begin

         10        implementation in 2001, but the actual effective date is

         11        2004.  So the effect of that is the Legislature may begin

         12        in 2001 but must be up to speed as to whatever the

         13        definition is by 2004.  So those are the issues you'll be

         14        dealing with.

         15             You may have heard from the clerks' association the

         16        issues of whether clerks' functions should be in or out,

         17        local or state.  Those are the issues you'll be

         18        confronting.  If you wish to have more information, we

         19        will be meeting tomorrow at 4:00.  It is one of those

         20        25-year issues so I think you'll have an opportunity to

         21        address this.  And, again, I want to thank the staff.

         22             And I guess, Commissioner Sundberg, I need to make a

         23        motion to waive the rules.  And with Commissioner

         24        Sundberg's permission to postpone the time certain

         25        consideration, which was 2:00 today, until Friday.


          1             COMMISSIONER SUNDBERG:  I've agreed with Commissioner

          2        Mills to that postponement to a time certain on Friday to

          3        be set on the special order calendar, Mr. Chairman of the

          4        rules committee.

          5             CHAIRMAN DOUGLASS:  I have a question of Commissioner

          6        Mills and Commissioner Sundberg.  Have you considered

          7        passing it until the next meeting in January?

          8             COMMISSIONER SUNDBERG:  Not for a moment.

          9             CHAIRMAN DOUGLASS:  The reason I ask is --

         10             COMMISSIONER MILLS:  Absolutely.

         11             (Laughter.)

         12             CHAIRMAN DOUGLASS:  -- I attended the committee

         13        meeting and it appeared to me you all might still be

         14        meeting.

         15             COMMISSIONER MILLS:  Mr. Chairman, Commissioner

         16        Sundberg and I occasionally disagree, but not that

         17        directly.  I think the committee is at a time where it may

         18        be able to sharpen the focus, we may not be able to

         19        produce a final product.  If not, it would be my intention

         20        to come to the floor and report that.  If we do have a

         21        final product, Commissioner Sundberg wants to be able to

         22        consider that.

         23             CHAIRMAN DOUGLASS:  I understand.  In other words, if

         24        you haven't concluded to the point where the committee

         25        feels it's ready to come forward, you'll come back and


          1        make the same motion that you're making today.

          2             COMMISSIONER MILLS:  Perhaps, Mr. Chairman, it might

          3        be fair to say we could present, pass out to the

          4        commissioners, the issues they could expect to confront.

          5             CHAIRMAN DOUGLASS:  Without objection, the motion to

          6        pass this until 9:00, special order meeting on Friday, if

          7        that will be the case.  Is there any objection?

          8        Commissioner Langley.

          9             COMMISSIONER LANGLEY:  At least one.  Yes, sir.  I --

         10        you know, Friday is sometimes a hard day for some of us to

         11        be here.  To get this just out of committee on Thursday

         12        and expect us all to be ready to vote on it Friday those

         13        of us, or you all who might be here, what's the hurry on

         14        this particular item?  It's one of the most complicated

         15        and important items that we're going to have before us.

         16        And I respectfully request the honorable commissioner,

         17        former chief justice, to not rush to judgment on this.

         18             CHAIRMAN DOUGLASS:  Commissioner Langley, I assume

         19        you're going to be here Friday.  You never miss meetings

         20        unless you're excused.

         21             COMMISSIONER LANGLEY:  May I be excused?

         22             (Laughter.)

         23             CHAIRMAN DOUGLASS:  No.  We need to discuss the

         24        attendance problem.  We've been trying to address that,

         25        Commissioner Langley, but that's another matter.


          1             I happen to agree with you, and the reason I raise

          2        the point, it's my understanding that if they have not

          3        completed their work, they are going to move to pass it

          4        until January and then it would be in our hands by then.

          5        That's the reason I raised the point.

          6             Now there has been an objection and there is a motion

          7        to waive the rules to defer it to a time certain which is

          8        nine -- the meeting Friday this month, this week.  All

          9        those in favor of that motion, please say aye, all

         10        opposed.

         11             (Verbal vote taken.)

         12             COMMISSIONER MILLS:  Can I declare a point of order?

         13        If you don't vote the motion, you have time certain until

         14        2:00 today.

         15             CHAIRMAN DOUGLASS:  Let's rule on this and then you

         16        can make a motion.

         17             COMMISSIONER LANGLEY:  If I may, Mr. Chairman, I

         18        would like to amend the motion to allow them to have the

         19        meeting, but to bring this back before us in the first

         20        meeting in January.  Again, they don't even know what they

         21        are going to do or if they are going to do Thursday.

         22             CHAIRMAN DOUGLASS:  Do you object to that amendment,

         23        Commissioner Mills?  Do you object to that amendment to

         24        your motion?

         25             COMMISSIONER MILLS:  No, I don't object to that


          1        because I expect that's what's going to happen, but I want

          2        to act in good faith with Commissioner Sundberg whose

          3        proposal it is.  I suspect that Commissioner Sundberg

          4        would not oppose a motion on Friday to postpone --

          5             CHAIRMAN DOUGLASS:  At the moment there has been a

          6        motion to amend the motion before we voted and the -- I

          7        guess it's a substitute motion maybe.

          8             COMMISSIONER LANGLEY:  Amendment is fine.

          9             CHAIRMAN DOUGLASS:  Okay.  And we're going to vote on

         10        the amendment which is that we will defer this to a time

         11        certain which will be at the January session, the first

         12        January session.  Is that your amendment, Commissioner

         13        Langley?

         14             COMMISSIONER LANGLEY:  Yes, sir, or substitute

         15        motion, whichever.

         16             CHAIRMAN DOUGLASS:  Whichever it happens to be.  All

         17        in favor of that say, please say aye.  Wait a minute,

         18        Commissioner Sundberg wants to address --

         19             COMMISSIONER SUNDBERG:  Is that a nondebatable

         20        motion?

         21             CHAIRMAN DOUGLASS:  No, you can debate it.  I'd like

         22        to get us off of this procedural hangup and move on.

         23             COMMISSIONER SUNDBERG:  I'd be delighted to do that,

         24        Mr. Chairman.  Quite frankly, I was not quite certain the

         25        purpose of your referral of this to a select committee at


          1        the last time that this was done.  And -- but I would

          2        concede that I think some valuable information has been

          3        developed during that period of time.  I think it's been

          4        presented to this select committee.

          5             But I do not see any reason to postpone beyond, and I

          6        agreed with Mr. Mills to postpone it to a time certain on

          7        Friday.  I sense that this body is ready to vote on this

          8        issue.

          9             Now it may not be in the most exquisite form, but it

         10        was my understanding that's what style and drafting will

         11        do before it comes back to get a final vote before this

         12        body.  What we need to do at this time, it occurs to me,

         13        is to move this matter forward, and if in fact there is

         14        tweaking to be done, because I have already agreed with

         15        the chairman of the select committee to some amendments to

         16        the language.  And as I say, I think we need to move this

         17        forward.  And so I oppose moving this to the January

         18        plenary session.

         19             CHAIRMAN DOUGLASS:  Okay.  I don't want to cut off

         20        any other debate.  Does anybody else want to address the

         21        amendment?  The amendment is we defer this one until

         22        January.  The original motion, which it seeks to amend, is

         23        we defer it until Friday of this week.  So first of all

         24        we'll vote on the amendment.  If you favor -- Commissioner

         25        Langley.


          1             COMMISSIONER LANGLEY:  I didn't close on my

          2        amendment.

          3             CHAIRMAN DOUGLASS:  Close.

          4             COMMISSIONER LANGLEY:  Just briefly.  One, there is

          5        no hurry to do this and I don't want to embarrass anybody,

          6        but everybody who thoroughly understands what you're going

          7        to be voting on, raise your hand.  Mine is not up.  The

          8        chief justice understands it, but it takes twenty-two

          9        votes to eventually pass it.  I just think we ought to

         10        have a full understanding, and not knowing the final

         11        product but a few hours before it may be taken up on

         12        Friday is not good statesmanship for us in our

         13        responsibilities in here.

         14             This is a big item.  This is maybe a half-a-billion

         15        dollar item and it should not one that we rush to and not

         16        really understand before we do it.  Admittedly, from the

         17        committee, they don't even have all the facts yet

         18        themselves and there are more numbers coming in.  So

         19        what's the hurry?  I mean, we'll be here until May and

         20        this is one of the most important things we have to do.

         21             And selfishly, I can't be here Friday.  Unless you

         22        can intervene for me in the circuit at home, Mr. Chairman,

         23        I can't be here.

         24             CHAIRMAN DOUGLASS:  I'll try that if you give me a

         25        shot at it.


          1             COMMISSIONER LANGLEY:  I don't think that will pass

          2        the ethics requirements.  But I think there is no hurry on

          3        this, it is one of the biggest items we face.  And I

          4        respectfully ask the body to continue this until January.

          5             CHAIRMAN DOUGLASS:  Commissioner Langley, as a matter

          6        of an aside, you might be tempting some of these people to

          7        make sure they bring this up on Friday.

          8             COMMISSIONER LANGLEY:  I support it in general.

          9             CHAIRMAN DOUGLASS:  This is a substitute motion.  I

         10        think that's the correct, what it is.  It's a substitute

         11        motion that Commissioner Langley has made, which is to

         12        defer this until the January meeting and continue with the

         13        committee, select committee.  Does everybody understand

         14        what they are voting on?  The motion before you is to

         15        defer it until January, Commissioner Langley's substitute

         16        motion.  All those in favor, say aye, opposed.

         17             (Verbal vote taken.)

         18             CHAIRMAN DOUGLASS:  It carries, the substitute motion

         19        carries.  It will be deferred until the January meeting.

         20        Commissioner Barkdull.

         21             COMMISSIONER BARKDULL:  Mr. Chairman, going down the

         22        daily order of business that's now been ratified, with the

         23        exception of the deferral we just made, let me ask you to

         24        turn to your Page 3 of your calendar and I'll go through

         25        here and give you some, what I have been informed by


          1        various members of the body that I anticipate will happen.

          2        It may not, as you see.

          3             The first item that we have is the matter of

          4        reconsideration which I put on, which was the magistrate

          5        court.  And I want to ask that that be temporarily passed

          6        until we get beyond some other items that are going to be

          7        temporarily passed, pending some amendments being

          8        prepared.

          9             CHAIRMAN DOUGLASS:  Without objection, it will be

         10        temporarily passed for this meeting.  It will be brought

         11        up at this meeting.

         12             COMMISSIONER BARKDULL:  It will be brought up at this

         13        meeting.

         14             CHAIRMAN DOUGLASS:  So done.

         15             COMMISSIONER BARKDULL:  The next one is the special

         16        committee which we just had that's not been deferred until

         17        a report of the committee in January.

         18             The next items that we come to are committee

         19        substitute for Proposal 66, 61 and Proposal 74, which all

         20        relate to Article V in elections.  It's my understanding

         21        amendments are being prepared on that and that either the

         22        committee chairman or Commissioner Langley, somebody has

         23        indicated they want that continued, temporarily passed but

         24        it will be taken up at this meeting.

         25             CHAIRMAN DOUGLASS:  Without objection --


          1             COMMISSIONER LANGLEY:  It's ready?

          2             CHAIRMAN DOUGLASS:  If it's ready --

          3             COMMISSIONER BARKDULL:  If it's ready we'll take it

          4        up then.  Then we come down to proposition 115 by

          5        Commissioner Corr that relates to judicial candidates

          6        accepting contributions from The Bar.  Then the next item

          7        is committee substitute for Proposal 45, which is a merger

          8        of the Game and Freshwater and I understand that that's

          9        going to be referred also to the committee on the

         10        judiciary -- legislative, legislative.

         11             CHAIRMAN DOUGLASS:  It's been referred to the

         12        committee on, the legislative committee for consideration

         13        by that committee before it comes to --

         14             COMMISSIONER BARKDULL:  Then that will be removed

         15        from the calendar today.

         16             CHAIRMAN DOUGLASS:  Commissioner Henderson.

         17             COMMISSIONER HENDERSON:  Just a clarification there.

         18        I think we approved the calendar earlier with this on it,

         19        and now I understand that you're referring it to the

         20        legislative committee; is that right?

         21             CHAIRMAN DOUGLASS:  That is correct.  And I had

         22        announced that to the rules committee before the meeting.

         23        And I think it is the chairman's prerogative to refer it

         24        to another committee.  If you want to appeal the rule of

         25        the Chair, you can.


          1             COMMISSIONER BARKDULL:  I had indicated when I made

          2        the motion there would be some comments about the matter.

          3        Maybe I didn't make myself clear, but I had spoken to

          4        Commissioner Henderson before and indicated it was being

          5        referred to the legislative committee.  If you want

          6        another motion on it or you want to appeal the ruling of

          7        the Chair, I guess that's your prerogative.

          8             COMMISSIONER HENDERSON:  Mr. Chairman, I'm not ready

          9        to do that, but I would -- the question is if -- do you

         10        think if it's referred to legislative committee that it

         11        will be back before this body by the end of the week?

         12             CHAIRMAN DOUGLASS:  I can't answer that.  The

         13        committee will meet and there's a good possibility it will

         14        be, but I certainly can't predict what the committee will

         15        do.

         16             COMMISSIONER HENDERSON:  It seems that -- the

         17        procedure is a little unsure to me, because we had a

         18        committee substitute from the executive committee that

         19        came to the full body, which considered it.  And so it

         20        just seems to me another way of doing this would be if

         21        there were some specific issues, objections or concerns,

         22        that a select committee could be put together in the same

         23        manner as Article V funding to work these things out.  I

         24        just think we're 90 percent close to closure on this

         25        issue.


          1             CHAIRMAN DOUGLASS:  Well, I have referred it to the

          2        legislative committee, and I don't believe, and I hope

          3        not, that after the legislative committee has considered

          4        it and comes back to the floor that it will be necessary

          5        to have a select committee.

          6             I do agree with you and the reason that I did decide

          7        to refer it to legislative committee is the importance of

          8        the issue, number one.  And number two, the way I read the

          9        committee substitute after it came out was that it does

         10        indeed need legislative scrutiny because it seems to me

         11        that one of the things that's done in this proposed

         12        amendment is to give certain legislative, or could be

         13        interpreted that way, to give now-legislative functions

         14        over to this commission.  And that may be perfectly

         15        permissible, but I think the legislative committee should

         16        be able to consider it before it comes to the floor.

         17             COMMISSIONER HENDERSON:  Mr. Chairman, before

         18        deciding whether to move to appeal the order, the ruling

         19        of the Chair, could I ask -- could I inquire of the

         20        legislative committee chairman?

         21             CHAIRMAN DOUGLASS:  Certainly.  I don't have any

         22        problem with that.  I'm not sure whether -- that's all

         23        right, Commissioner Thompson.  We're an open group.  He's

         24        ready.

         25             COMMISSIONER HENDERSON:  Mr. Thompson -- Commissioner


          1        Thompson, if I were to represent to you that we were very

          2        close to closure on this issue, do you think we would we

          3        be able to get a hearing before the legislative committee

          4        so that this could be back before the floor on Friday?

          5             COMISSIONER THOMPSON:  The only problem I have with a

          6        hearing is time and notice.

          7             CHAIRMAN DOUGLASS:  Notice we can give today and it

          8        would be sufficient notice.

          9             COMISSIONER THOMPSON:  I don't know what other

         10        measures we have there right now.  Is Debbie in here?

         11        What else do we have in the legislative committee.

         12             MS. KEARNEY:  Today?

         13             COMISSIONER THOMPSON:  No, it's tomorrow.

         14             CHAIRMAN DOUGLASS:  I think to save time let's assume

         15        they can't get it done and complete their work.  I'm still

         16        referring it to that committee, unless I'm overruled by

         17        the commission.  Because I feel when the committee reads

         18        it, they are going to come to the same conclusion I think

         19        that I did, that the legislative committee should consider

         20        it.  And if it requires putting it over until January, we

         21        can live with it.

         22             I have the same concerns about this issue that

         23        Commissioner Langley raised in his prior question, that I

         24        don't believe until the legislative committee considers

         25        it, it will be ready for floor action.  That's why I


          1        referred it.

          2             COMISSIONER THOMPSON:  We have a pretty full agenda

          3        there now.  You know, a lot depends on how much debate we

          4        have on the various things.  I'll be glad to, within the

          5        rules, add it and see if we can get to it, certainly.  I

          6        would imagine though we could get to it as quickly as a

          7        select committee could, formed and deliberating.

          8             COMMISSIONER HENDERSON:  I'm, of course, hoping that

          9        the amendments that will be prepared will demonstrate to

         10        the legislative committee it's not a legislative issue.  I

         11        just want to represent to the commission that there has

         12        been a lot of work done on this issue over the course of

         13        the last three weeks and we are very close to closure on

         14        it.  And I'm trying to keep parties focused on the need to

         15        reach closure to the issue.  And that's my only reason for

         16        standing here at this time.

         17             CHAIRMAN DOUGLASS:  Okay.  The Chair has ruled it's

         18        referred to the legislative committee and it will be

         19        noticed for the Friday meeting.

         20             COMISSIONER THOMPSON:  Mr. Chairman, Thursday

         21        meeting.

         22             CHAIRMAN DOUGLASS:  Excuse me, Thursday meeting.

         23             COMMISSIONER BARKDULL:  Mr. Chairman, members of the

         24        commission, to continue on with the calendar.  We did not

         25        receive 144 so that will not be up for consideration.  All


          1        the remaining matters on the calendar are available for

          2        today.

          3             CHAIRMAN DOUGLASS:  Very well.  Are there any further


          5             COMMISSIONER BARKDULL:  Yes, sir.  We have meetings

          6        scheduled obviously for the remainder of this week.  We

          7        have meetings scheduled for January.  And at this time we

          8        plan to hold the schedule that was distributed to you for

          9        January, which was a five-day week and a three-day week.

         10        Obviously we're running short on time.

         11             These facilities and the Senate staff is not going to

         12        be available to us after the end of February.  And in all

         13        probability, the sooner we can get out of here towards the

         14        end of February the happier I think the Senate is going to

         15        be, and I don't blame them.  They have got to get ready

         16        for the legislative session.

         17             Yesterday we had six committee meetings scheduled.

         18        We had no quorum for three of them.  Those of you that

         19        have been here, these comments don't apply to you.  Those

         20        of you who have not been here or are not here today, they

         21        do apply to you.  We asked to be on this commission and

         22        there were many other people that asked to be on this

         23        commission.  And I think by virtue of accepting

         24        appointments on it, we have an obligation to be here, as a

         25        responsibility to the citizens of Florida, as a


          1        responsibility to the people that come up here to appear

          2        before our committee meetings, and as a courtesy to the

          3        other members of this commission.

          4             We had committee meetings yesterday with no quorums,

          5        where we had the public present, we had people that wanted

          6        to testify and we were able to take some of that, but all

          7        the commissioners and the committee members were not able

          8        to hear it.  Now we have known for a long time when these

          9        meetings were.  And very frankly, it occurs to me if

         10        somebody can't discharge the responsibilities that they

         11        took to be on this commission, there are a lot of other

         12        people out there that would like to take your place.  And

         13        I wish you'd think about that.

         14             CHAIRMAN DOUGLASS:  Thank you, sir.  For your

         15        information, Commissioner Jennings had to be excused today

         16        and called and asked to be excused, as did Commissioner

         17        Argiz.  I think everybody else is here accept maybe one or

         18        two that did not request to be excused and they may be

         19        here later, I don't know.  Commissioner Morsani.

         20             COMMMISSIONER MORSANI:  Most of us try to make all

         21        the meetings, but the problem that some of us are having,

         22        we have businesses to run, of substantial size.  To be

         23        here five days, and especially twice in one month, is very

         24        difficult.  I try in my own company to, every Monday, do

         25        everything I can do on Monday so I can have Tuesday,


          1        Wednesday, Thursday and Friday for this commission or for

          2        any other outside activities that I get myself, these

          3        high-paying jobs, involved in.

          4             And it's very difficult for everybody else to work

          5        their schedules around mine in Tampa, Florida, even though

          6        they have been pretty good about it, just so I have Monday

          7        free.  Now I'm only one of 37, and I understand that, but

          8        somehow we need -- there are some pressing issues that do

          9        happen to us that have hundreds of employees every week

         10        that we have to address.  And I can't do that and be here

         11        two or three Mondays a month, sir.  I can't do that.

         12             CHAIRMAN DOUGLASS:  Well right now the one we're

         13        talking about started on Tuesday and I think the other

         14        meetings are going to do the same thing.

         15             COMMISSIONER MORSANI:  That's not what the schedule

         16        says.

         17             CHAIRMAN DOUGLASS:  We'll see about that.  I'll take

         18        that into consideration when we go further.

         19             But the one thing I want to point out I was told by

         20        the appointing authorities, all of them, that they

         21        informed everybody that was appointed they would have to

         22        be here and they could devote probably one-half of their

         23        working time to these meetings or more.

         24             And I know that was true with the appointing

         25        authority from those of you that were appointed by the


          1        Governor.  And I've been told by Commissioner Jennings

          2        that that's what she said and also what the Speaker said.

          3        And I know the Chief Justice made that clear.

          4             So when we took this, as Commissioner Barkdull

          5        pointed out, we knew we were going to have some

          6        difficulties, but I certainly want to accommodate those

          7        people as best we can that can't be here.  On the other

          8        hand, one person that can't be here will not and should

          9        not keep the commission from meeting.

         10             I think Commissioner Barkdull's comments were

         11        directed to the fact that we had these meetings scheduled

         12        and we couldn't get quorums in a committee and I think

         13        we'll take care of that in a different fashion.  We'll

         14        have these meetings first and we'll vote on things.  So if

         15        you want to miss those, you can miss them.  But the

         16        committee meetings are extremely important, very

         17        important.  I think that's what Commissioner Barkdull is

         18        talking about.

         19             Commissioner Marshall, I see you are standing.  You

         20        are recognized, sir.

         21             COMMISSIONER MARSHALL:  Yes, thank you, Mr. Chairman.

         22        To go back to the calendar, if I'm in order, Proposal 40,

         23        which we temporarily passed in November, I believe

         24        requires more attention by the education committee.  I

         25        think that was the consensus of the members of the


          1        committee.  I wanted to clear that with Commissioner

          2        Jennings, but she's not here this morning.  I believe it

          3        was the intention of the committee to treat that matter

          4        further.

          5             And with regard to 131, Proposal 131, that was voted

          6        down yesterday by the committee on ethics and elections.

          7             COMMISSIONER BARKDULL:  Page 131?

          8             COMMISSIONER MARSHALL:  Page 5, Commissioner,

          9        Proposal 131.

         10             CHAIRMAN DOUGLASS:  They are on the calendar right

         11        now, they're not on special order, that one isn't.  131 is

         12        on the calendar, but hasn't been placed on special order.

         13        So that would be considered by the rules committee as to

         14        whether it goes on special order on Friday.  Am I right,

         15        Commissioner Barkdull?

         16             COMMISSIONER BARKDULL:  Yes, sir.

         17             CHAIRMAN DOUGLASS:  So 131 is not on special order,

         18        Commissioner Marshall, but Proposal 40, which relates to

         19        authorizing certain counties to be divided into more than

         20        one school district, is on the special order as approved

         21        by the committee on education.  And as I understand it,

         22        what you are suggesting and asking is that it be

         23        temporarily passed until the next meeting.

         24             COMMISSIONER MARSHALL:  The vice chairman of the

         25        committee is here and may want to comment on that.


          1             CHAIRMAN DOUGLASS:  Commissioner Riley, you're

          2        recognized.

          3             COMMISSIONER RILEY:  What I understood you to ask was

          4        that this be sent back to the committee, which is meeting

          5        between now through Friday and perhaps we could come to a

          6        conclusion and then bring it back Friday, rather than pass

          7        it again until January.

          8             CHAIRMAN DOUGLASS:  So are you making a motion, one

          9        of you, to temporarily pass it until Friday's meeting?

         10             COMMISSIONER RILEY:  I so move.

         11             CHAIRMAN DOUGLASS:  All in favor say aye; opposed.

         12             (Verbal vote taken.)

         13             CHAIRMAN DOUGLASS:  It is so done.  The Secretary

         14        reminds me it's referred back to the committee for

         15        consideration on Thursday.  So you may want to change your

         16        order and take that up early in your meeting to make sure

         17        it comes back on Friday.  And that is the case.  All

         18        right, Commissioner Barkdull.

         19             COMMISSIONER BARKDULL:  I am through with the

         20        comments in reference to the calendar and the changes that

         21        have been made.  I suggest we proceed.

         22             CHAIRMAN DOUGLASS:  All right.  The first proposal

         23        for consideration is Proposal No. 61, I believe.

         24        Commissioner Wetherington?  Commissioner Wetherington, I

         25        think you are chairman of the judiciary committee and the


          1        first proposal to come before the body today is out of the

          2        judiciary committee.  Would you make the presentation of

          3        that, please, sir, or you could yield to someone else to

          4        do it if you like.

          5             COMMISSIONER WETHERINGTON:  Proposal 61, you say?

          6             CHAIRMAN DOUGLASS:  Sixty-six, excuse me.  You have

          7        got 66 and then we go to 61.

          8             COMMISSIONER WETHERINGTON:  Thank you very much.

          9             CHAIRMAN DOUGLASS:  That's the correct one.

         10             COMMISSIONER WETHERINGTON:  Thank you, Mr. Chairman.

         11        That's why I was looking down at my papers.  In terms of

         12        the function of judiciary in the state of Florida and our

         13        country, there are two important principles; one is the

         14        principle of independence of the judiciary, the other is

         15        the principle of accountability.

         16             The judicial role as defined as far back by Roscoe

         17        Pound and Judge Oliver -- Justice Oliver Wendell Holmes

         18        requires the judges to apply the law to the cases that

         19        come before them in a fair, objective and impartial

         20        manner, and to exercise their judgment based upon what

         21        they deem to be the law that applies in that particular

         22        case and not to be influenced by any other factors, either

         23        their personal prejudice, bias or outside influences.

         24             Therefore, one of the big factors involved in

         25        judicial independence and accountability is the method of


          1        selecting and retaining judges.  No system of selecting

          2        and retaining judges, in my opinion, is perfect.  There

          3        are criticisms that can be made of the merit retention and

          4        selection system.  And those arguments that have been put

          5        forth are that to some extent you are changing one form of

          6        politics to another.  And you're perhaps allowing special

          7        interest groups, maybe the media in some instances to have

          8        an undue influence on judiciary.  There are a lot of

          9        objections to merit retention, some of them are good

         10        objections.

         11             There are a tremendous number of objections to

         12        electing judges, having to do with the independence of the

         13        court, and the court's ability to properly perform its

         14        function, all kinds of other considerations such as sums

         15        of moneys that are raised from attorneys and other

         16        unseemly things that happen in judicial elections.

         17             And as a consequence, the issue of electing judges or

         18        selecting judges by merit retention has been coming up

         19        time and again in Florida.  As you know, it was voted on

         20        in 1978 and narrowly defeated the merit retention

         21        proposal.  The proposals have been introduced and the

         22        question of whether or not we should address the merit

         23        retention has been put forth.

         24             I think probably on balance the merit retention

         25        system is best, although not perfect.  But I recognize


          1        probably in the state of Florida that doesn't reflect the

          2        point of view of the great majority of people, it probably

          3        doesn't reflect the majority of commissioners.

          4             Therefore, in our committee on the judiciary we have

          5        a proposal which would work as follows and that is, there

          6        would be the ability of the circuit to opt to have merit

          7        retention, if it so selected.  If it wanted to retain the

          8        elected system with respect to trial judges, it could do

          9        so.  If it wanted to select merit retention, it could do

         10        so.  So it would be a local option proposition.  The

         11        option would apply both to circuit judges as well as

         12        county judges.

         13             It seems to me that circuits that believe that the

         14        best method of selecting judges is through a merit

         15        selection and retention system should have that

         16        opportunity.  Those that wish to retain an elected system

         17        should have that opportunity.  This proposal would permit

         18        this type of option.  It would provide at least a basis in

         19        our Constitution for merit retention in those areas that

         20        feel, based upon their local consideration, that merit

         21        retention is the best method for them to follow.  That's

         22        basically what this proposal is.  This proposal was also

         23        passed favorably by the judiciary committee.

         24             CHAIRMAN DOUGLASS:  All right.  There are three

         25        amendments on the table.  First of all, I'll ask -- I


          1        forgot to ask the clerk to read the matter, he reminded me

          2        as I looked at him.  Would you read Proposal 66?

          3             READING CLERK:  Committee substitute for Proposal 66,

          4        a proposal to revise Article V, Sections 10 and 11,

          5        Florida Constitution, providing for circuit court judges

          6        and county court judges to run for reelection unless the

          7        electors within the circuit or within the county approve a

          8        local option whereby the circuit court judges or the

          9        county court judges are selected by merit selection and

         10        are subject to a vote of retention.

         11             CHAIRMAN DOUGLASS:  All right.  The presentation has

         12        been made.  There are three amendments on the table.

         13        Amendment No. 1 is authored by Commissioner Langley.

         14        Commissioner Langley, you're recognized to offer your

         15        amendment.  He has it and he will read it.

         16             READING CLERK:  By Commissioner Langley, on Page 2,

         17        Line 28, strike 2004 and insert 2000.

         18             COMMISSIONER LANGLEY:  This was an oversight in

         19        drafting, and I think the way the proposal is currently

         20        worded, there will be an election in '98.  And so it will

         21        become effective in 2000 rather than 2004.  I think there

         22        is no objection to that, no debate.

         23             CHAIRMAN DOUGLASS:  Is there any debate on the

         24        amendment?  If not, all those in favor of amendment No. 1,

         25        which is on your desk, signify by saying aye; opposed like


          1        sign.

          2             (Verbal vote taken.)

          3             CHAIRMAN DOUGLASS:  It carries.  Now we move to

          4        amendment 2.  Would you read amendment 2, please.

          5             READING CLERK:  By Commissioner Langley, on Page 2,

          6        Line 31, after the period insert, any future election to

          7        exercise the local option to select circuit court judges

          8        by merit selection and retention rather than by election

          9        shall be invoked by filing with the secretary of state a

         10        petition signed by the number of electors equal to at

         11        least 10 percent of the votes cast in the circuit in the

         12        last preceding election in which presidential electors

         13        were chosen.  Any future election to exercise the local

         14        option to select county court judges by merit selection

         15        and retention rather than by election shall be invoked by

         16        filing with the secretary of state a petition signed by

         17        the number of electors equal to at least 10 percent of the

         18        votes cast in the county in the last preceding election in

         19        which presidential electors were chosen.

         20             CHAIRMAN DOUGLASS:  Commissioner Langley.

         21             COMMISSIONER LANGLEY:  Thank you, Mr. Chairman.  This

         22        was, you know, after we had worked out the compromise of

         23        the opt in/opt out, this was an afterthought.  What if a

         24        county voted to continue to elect their judge in 19 --

         25        pardon me, in the year 2000 but became unhappy with that,


          1        how would they ever get it back to the people to go to

          2        merit selection.

          3             And to do this, this amendment says that it would

          4        take 10 percent of the electors in that county to ask that

          5        it be put back on the ballot so that they could at that

          6        time choose to go to merit selection.  Now for those of

          7        you who may be interested, this does not provide for the

          8        reverse of that.  It does not say we chose merit selection

          9        and now we can get 10 percent and get out and reelect our

         10        county judge, it doesn't do that.  It is solely an opt in,

         11        a belated opt in, it is not a belated opt out.  That's

         12        another issue.

         13             CHAIRMAN DOUGLASS:  Commissioner Sundberg -- do you

         14        yield -- I guess you yield to the Commissioner.

         15             COMMISSIONER SUNDBERG:  I have a question.

         16             CHAIRMAN DOUGLASS:  Commissioner Langley yields.

         17             COMMISSIONER SUNDBERG:  Commissioner, I'm sympathetic

         18        to this amendment and I think it is appropriate.  I'm a

         19        little concerned about the line, using the term "future."

         20        That could not be construed to apply to the first election

         21        that is to take place after the adoption.  Let's assume

         22        that this is adopted in '98.  The first, essentially, the

         23        election that we've all agreed this will be required after

         24        this is adopted will be in the future from the time this

         25        is adopted in '98.  Am I making any sense to you?


          1             COMMISSIONER LANGLEY:  You always make sense.  If I

          2        understand what you're saying there may be some language,

          3        you know, there about any election after the year 2000.

          4             COMMISSIONER SUNDBERG:  Right, because future could

          5        be construed by somebody to mean, well, this first

          6        go-around has to be, you know, you need that.  If we may

          7        include language like that, I'd like to support this

          8        amendment.

          9             CHAIRMAN DOUGLASS:  Commissioner Smith, do you have a

         10        question?

         11             COMMISSIONER SMITH:  Yes.

         12             CHAIRMAN DOUGLASS:  Do you yield?  Commissioner

         13        Langley yields.

         14             COMMISSIONER SMITH:  Commissioner Langley, I was very

         15        pleased to see this amendment.  I discussed this matter

         16        last night with the chair of the judiciary committee.

         17             I want to know, however, what I see is a frustration

         18        among the people about how judges are elected.  Sometimes

         19        what happens is, as Commissioner Wetherington said, you

         20        have two bad systems but because people only see one side

         21        of the bad system, they want to change.  And sometimes

         22        when they change, they find out, I jumped out of the

         23        frying pan and into the fire and I want to go back.  So

         24        I'd like to know what the rationale is for allowing

         25        individuals to opt back in but not allowing them to opt


          1        back out.

          2             COMMISSIONER LANGLEY:  As I stated, Commissioner

          3        Smith, I think that's a perfectly debatable option and I

          4        would welcome an amendment to do that, if that's what you

          5        wish.  We've had two instances in my home county where we

          6        went to an appointed superintendent, got a bad one and the

          7        people voted to go back to elected.  Well, also, many of

          8        you know we went to nonpartisan school board elections for

          9        a couple of times and backed out of that in some counties.

         10             So you're right, until they taste the grass on the

         11        other side of the fence, it may not be what they think.

         12        If you'd like to prepare that and offer it, that's fine.

         13        It is not, as I explained, it is not a subject of the

         14        amendment I'm offering now and would not be contradictory

         15        to the amendment I'm offering now.  It would be another

         16        alternative.

         17             CHAIRMAN DOUGLASS:  Commissioner Langley, that raises

         18        the question, which I'm going to leave the chair and ask

         19        it because I'm not a proponent or opponent of this.  But

         20        since this is a merit retention proposition, there would

         21        be an election every four years to turn the rascals out,

         22        would there not, assuming they are rascals?

         23             COMMISSIONER LANGLEY:  Whatever the merit retention

         24        system provided, yes.  None of them have ever been turned

         25        out.


          1             CHAIRMAN DOUGLASS:  Well, that doesn't mean they will

          2        not be --

          3             COMMISSIONER LANGLEY:  I understand.

          4             CHAIRMAN DOUGLASS:  -- we hope, because there are

          5        some that probably should be from time to time.

          6             My question is, this is a different situation, is it

          7        not, from a school superintendent where you don't have

          8        retention?  In other words, everybody that's appointed

          9        under this system, if I understand it, and the way it

         10        works with the Supreme Court and Appellate Courts at the

         11        present, has to stand before the public for retention and

         12        then you vote yes or no.  If you got one that was

         13        sufficiently bad that the public wanted to turn them out,

         14        they would have that opportunity; would they not?  That is

         15        a distinction; isn't it?

         16             COMMISSIONER LANGLEY:  Yes, sir.  As you know, the

         17        state of California turned three out at one time on the

         18        Supreme Court.

         19             CHAIRMAN DOUGLASS:  That would be the distinction

         20        between this and your school superintendent.

         21             COMMISSIONER LANGLEY:  Yes, sir.

         22             CHAIRMAN DOUGLASS:  Commissioner Smith.

         23             COMMISSIONER SMITH:  I'd just like to make a comment

         24        on that.  California turned three out because they were

         25        highly controversial.  The problem is we can have people


          1        who are incompetent but well-liked and not controversial

          2        and so therein lies the difference.

          3             In California, you know, they were saying, we're not

          4        going to have any death penalty, we're going to change all

          5        the laws.  And because of that widespread controversy, the

          6        populous was informed as to their philosophy and what they

          7        were doing and said, we don't like it.  But we can have

          8        totally incompetent judges that the public doesn't know

          9        about because they won't do anything controversial.

         10             CHAIRMAN DOUGLASS:  Commissioner Smith, I'm not going

         11        to rule you out of order, but you're debating the main

         12        motion at the moment.  I think the issue before us is the

         13        amendment.

         14             COMMISSIONER SMITH:  I tried to respond to the

         15        chair's comment.  And if I was out of order, I shall sit

         16        down.

         17             CHAIRMAN DOUGLASS:  Mine wasn't meant to be a comment

         18        because I may be on your side.

         19             Commissioner Sundberg.

         20             COMMISSIONER SUNDBERG:  Mr. Chairman, I'd like to

         21        offer a technical amendment to the amendment to address

         22        the issue about the question I put to Commissioner

         23        Langley.

         24             CHAIRMAN DOUGLASS:  Could you place it on the desk

         25        please?


          1             COMMISSIONER SUNDBERG:  I can.

          2             CHAIRMAN DOUGLASS:  Would the clerk please read the

          3        amendment to the amendment offered by Commissioner

          4        Sundberg?

          5             READING CLERK:  Amendment to the amendment by

          6        Commissioner Sundberg:  On Page 1, Line 1 and Page 1, Line

          7        5, strike "future election" and insert "election after the

          8        year 2000."

          9             COMMISSIONER SUNDBERG:  Pardon me, there is another

         10        line.  The amendment should also address the fifth line

         11        where it talks about -- oh, you announced both lines.  I'm

         12        sorry, fine.  I offer that amendment.

         13             CHAIRMAN DOUGLASS:  Does everybody understand the

         14        amendment?  Commissioner Langley, do you understand his

         15        amendment?

         16             COMMISSIONER LANGLEY:  Yes, sir, it's clarifying.  I

         17        have no objection.

         18             CHAIRMAN DOUGLASS:  All those in favor of the

         19        amendment to the amendment signify by saying aye; opposed,

         20        like sign.

         21             (Verbal vote taken.)

         22             CHAIRMAN DOUGLASS:  The amendment to the amendment is

         23        adopted and now we revert to the amendment.  The

         24        proponent, Commissioner Langley, has spoken.

         25             COMMISSIONER BARKDULL:  There is an amendment on the


          1        desk.

          2             CHAIRMAN DOUGLASS:  There's another amendment on the

          3        desk.  I think we need to take this one up first.  Is it

          4        an amendment to this amendment?

          5             COMMISSIONER BARKDULL:  No, sir, I thought you were

          6        going --

          7             CHAIRMAN DOUGLASS:  No, we haven't voted on this

          8        amendment yet.  All right.  We are on Commissioner

          9        Langley's amendment No. 2 as amended by Commissioner

         10        Sundberg's amendment to the amendment.  And we will now,

         11        unless there is -- does anybody want to speak in

         12        opposition to the amendment?

         13             If not, we will proceed to vote.  All those in favor,

         14        push your button.  And this is on the amendment as

         15        amended.  It is not on the main motion.

         16             (Vote taken and recorded electronically.)

         17             CHAIRMAN DOUGLASS:  Everybody voted?  Announce the

         18        vote.

         19             READING CLERK:  Thirty-one yeas and zero nays,

         20        Mr. Chairman.

         21             CHAIRMAN DOUGLASS:  The amendment has been adopted.

         22        There's a third amendment on the desk.  Would you read the

         23        amendment by Commissioner Barkdull.

         24             READING CLERK:  By Commissioner Barkdull, schedule of

         25        this proposal.  If adopted in 1998 then in all circuits


          1        and counties wherein this proposal received the majority

          2        vote of approval there, it shall be a merit retention

          3        election for all circuit and county judges in such

          4        circuits and counties at all subsequent general elections.

          5             CHAIRMAN DOUGLASS:  Commissioner Barkdull, on your

          6        amendment.

          7             COMMISSIONER BARKDULL:  Mr. Chairman, members of the

          8        commission, to explain the amendment.  As the proposal is

          9        before us now, there will be a vote in '98 to whether the

         10        counties should have the local option to vote in 2000 to

         11        have merit retention.  In those counties and circuits in

         12        which that would pass in 2000, then the people that are up

         13        for election in 02 would be the first ones that would be

         14        subject to merit retention.

         15             There are a number of offices that become vacant in

         16        2000.  If we're going to adopt this procedure it seems to

         17        me that if a circuit or a county -- if the state votes

         18        this proposal in by majority vote statewide and there is

         19        within a circuit or within a county a vote of a majority

         20        of the people that approve it, we have a number of

         21        circuits that are one-county circuits in which they would

         22        be able to go into, if this amendment was proposed -- as

         23        proposed was passed, that they would have the merit

         24        retention elections in the year 2000 rather than waiting

         25        to the year 2002, and having to have an additional


          1        election system that we have now.

          2             The purpose of it is if a circuit or a county

          3        approves by a majority vote in '98, then in the year 2000

          4        those judges that came up for election in that year will

          5        be subject to merit retention.  And they would thereafter,

          6        in the circuits or counties in which a vote was not passed

          7        by majority in '98, they would continue to vote whether

          8        they wanted merit retention for the future of their

          9        circuits and counties.  I yield for questions.

         10             CHAIRMAN DOUGLASS:  You yield to Commissioner Hawkes?

         11             COMMISSIONER BARKDULL:  Yes, sir.

         12             COMMISSIONER HAWKES:  Well, Mr. Chairman, actually I

         13        think I rose to speak against the amendment, but maybe

         14        it's a question.

         15             CHAIRMAN DOUGLASS:  It's a little bit early.

         16             COMMISSIONER HAWKES:  Let me phrase the question and

         17        make sure I understand it then.  I thought that the

         18        question that would be put before the voters was going to

         19        be, do you think that circuits and counties ought to have

         20        a right to go to merit selection if they wish to.  And I,

         21        in my rather rural area of the state, might think that,

         22        well, I hear about problems in South Florida and maybe

         23        they ought to have a right to do that, but maybe we don't

         24        want to do it where we know our county judge and might

         25        want to elect him.


          1             And what this does, I think, and correct me if I'm

          2        wrong, is it prevents me from voting to give perhaps Dade

          3        or Broward County an option I think they may appreciate

          4        without committing myself to doing it in my district and I

          5        may not want to do it in my district.

          6             COMMISSIONER BARKDULL:  No, sir, that's not the

          7        purpose of this amendment and I don't think it does what

          8        you say.  Because if your county votes not to have it in

          9        year '98, they will not have it until they vote it in.

         10             COMMISSIONER HAWKES:  Wonder if a majority of the

         11        citizens in my county want to give the option to Dade but

         12        they don't necessarily want to elect their county court

         13        judge -- I mean, I think that what you're doing is you're

         14        preventing people from voting for the amendment if they

         15        want to allow a choice without also committing to doing it

         16        themselves.  I mean, it's one thing to say, give people a

         17        choice, it's another step, I think, to make the choice.

         18             COMMISSIONER BARKDULL:  I understand your point.

         19             CHAIRMAN DOUGLASS:  All right.  Any further questions

         20        or any further proponents of the amendment?  All right.

         21             Opponents?  Anybody want to speak in opposition to

         22        the amendment?  Does everybody understand the amendment or

         23        do you want it reread?  Read it again, the amendment,

         24        please.  I'm not sure I understand it.

         25             READING CLERK:  By Commissioner Barkdull, if adopted


          1        in 1998 then in all circuits and counties wherein this

          2        proposal received the majority vote of approval there it

          3        shall be a merit retention election for all circuit and

          4        county judges in such circuits and counties at all

          5        subsequent elections.

          6             CHAIRMAN DOUGLASS:  All right.  Proponents, any?

          7        Commissioner Barkdull.

          8             COMMISSIONER BARKDULL:  It's been explained and I

          9        think in response to Mr. Hawkes' question that certainly

         10        is a problem and it's a legitimate concern.  And so I

         11        think the body ought to understand what Mr. Hawkes'

         12        position was.  My position is if the majority of people

         13        within a county or a circuit think they should have merit

         14        retention, then they should not have to go through a

         15        second local option provision.  There is obviously merit

         16        to the other side and I think Commissioner Langley

         17        probably is going to speak to it.

         18             CHAIRMAN DOUGLASS:  All right.  Opponents?

         19        Commissioner Langley.

         20             COMMISSIONER LANGLEY:  I think Commissioner Hawkes is

         21        imminently correct that in those of you that like merit

         22        selection probably don't like this amendment because

         23        you're going to force people, like myself who would vote

         24        for the people having the choice but not necessarily vote

         25        for, especially on a county judges level, not necessarily


          1        vote for merit selection of a county judge.

          2             But I certainly think people in the county ought to

          3        have that right to choose.  So you're going to lose that

          4        middle ground of people who say voting yes now is voting

          5        yes then so I'm going to have to vote no now.

          6             COMMISSIONER BARKDULL:  Do you yield for a question?

          7             COMMISSIONER LANGLEY:  Certainly.  You have a very

          8        impish expression your face, but --

          9             CHAIRMAN DOUGLASS:  That's not unusual.

         10             COMMISSIONER BARKDULL:  If I took out counties would

         11        you support it?

         12             COMMISSIONER LANGLEY:  Don't box me in.

         13             COMMISSIONER BARKDULL:  Because I think there is

         14        merit in your position and Commissioner Hawkes'.  And I

         15        would be willing to strike the word "counties" and just

         16        leave it to the circuit situation.

         17             CHAIRMAN DOUGLASS:  Is that a motion to amend your

         18        amendment?

         19             COMMISSIONER BARKDULL:  I'm trying to get more

         20        support over here.

         21             CHAIRMAN DOUGLASS:  Did you get an answer to your

         22        question?

         23             COMMISSIONER BARKDULL:  He doesn't want to be locked

         24        in.

         25             CHAIRMAN DOUGLASS:  That's an answer.  Commissioner


          1        Sundberg.

          2             COMMISSIONER SUNDBERG:  As unaccustomed as I am to

          3        being on the other side from Judge Barkdull, I have to

          4        agree with those who oppose this.  What you're essentially

          5        doing is building in an implied compound question.  They

          6        are really two different issues.

          7             One issue is do you believe it appropriate to have

          8        local option, circuit by circuit and county by county with

          9        respect to merit retention and selection of judges.  The

         10        other issue is do you, in fact, in this county want to

         11        have merit selection.  And I just think that it would

         12        be -- it's in fact misleading and I have to agree with you

         13        that what it's going to do is make the 1998, or pardon me,

         14        the year 2000 election, you're going to anticipate it in

         15        '98.  And I just think that's bad business.  I speak

         16        against it.

         17             CHAIRMAN DOUGLASS:  Any other opponents?  Would you

         18        like to close, Commissioner Barkdull?

         19             COMMISSIONER BARKDULL:  Well I'd like to get an

         20        amendment up there to strike the word "county" out of it.

         21        Can I make oral an amendment?

         22             CHAIRMAN DOUGLASS:  Go ahead.

         23             COMMISSIONER BARKDULL:  I move that we strike, for

         24        purposes of consideration, any reference to counties and

         25        that this proposal only relate to circuits.


          1             CHAIRMAN DOUGLASS:  Now, write it out and bring it up

          2        here, please, so we can comply with the rules.

          3             Read the amendment to the amendment.

          4             READING CLERK:  On Page 1, Lines 2 and 6, strike the

          5        word "counties".

          6             CHAIRMAN DOUGLASS:  Does everybody understand the

          7        amendment to the amendment?  He's going to take out the

          8        counties and leave it only as the circuits.  That if they

          9        pass the amendment by majority vote, then they would

         10        proceed to merit retention in '98; is that right?

         11             COMMISSIONER BARKDULL:  2000.

         12             CHAIRMAN DOUGLASS:  2000, all right.  Everybody

         13        understand the amendment as amended?  All in favor of the

         14        amendment say aye; opposed like sign.

         15             (Verbal vote taken.)

         16             CHAIRMAN DOUGLASS:  It fails.

         17             COMMISSIONER BARKDULL:  I'd like to withdraw

         18        amendment three.

         19             CHAIRMAN DOUGLASS:  It's too late.  I'm going to take

         20        a vote anyway.  We'll let you withdraw it.

         21             I understand we have a fourth amendment.  Who is

         22        offering it?  Commissioner Smith is offering amendment

         23        No. 4 which is not on the table yet.  Do you want to go

         24        ahead and tell us what it is while they're getting it

         25        here?  It won't be before the body until it's in writing.


          1             COMMISSIONER SMITH:  Yes, thank you, Mr. Chairman.  I

          2        think -- first of all, I really think that we've come a

          3        long way with regard to this very, very difficult issue

          4        that continues to come up, came up in Article V and just

          5        keeps coming up.  I really believe in the spirit of what

          6        the judicial committee did, and that is to say, look,

          7        let's let the people decide.  We're not any wiser than the

          8        people and we understand this is a diverse state.

          9             I would like to make an amendment that would allow

         10        people to opt in or opt out.  And the language will

         11        basically say that people will be allowed, with that

         12        10 percent of the electors, to select circuit court judges

         13        by merit selection and retention or to select circuit

         14        court judges by election.  I think by leaving it with only

         15        opting for merit selection, we show our, quote, bias, end

         16        quote, toward the merit selection system.  People should

         17        be able to experiment with it.

         18             Additionally, for those who really favor merit

         19        selection, what you could be doing in a closed vote is

         20        making people who are not sure vote against it by saying,

         21        I'll be stuck with this forever.  So there are people who

         22        might say, I'll vote for this and if it doesn't work, we

         23        can come back and change it later.

         24             So basically it's an opt in or opt out and I think

         25        this will really improve the proposal.  Thank you.


          1             CHAIRMAN DOUGLASS:  The amendment is not on the

          2        table, so we don't know exactly what it says yet.  Anybody

          3        want to ask any questions while we're waiting?

          4        Commissioner Morsani.

          5             COMMISSIONER MORSANI:  Mr. Chairman, I agree with

          6        Mr. Smith at this point as far as at least his

          7        explanation.  I think one of the purposes that I hope this

          8        commission can do is continue to create flexibility in

          9        this Constitution.  And it seems like this opt in and opt

         10        out amendment is where I hope we are in our state because

         11        some of the counties that were small counties five years

         12        ago are now large counties and so on and so forth.

         13             And I would continue we hope to endeavor to have

         14        flexibility in what we create in this document.  And I

         15        would, I realize Commissioner Langley's amendment is, and

         16        I agree with Mr. Smith that I think we can't have a bias

         17        toward one or the other because it is dynamic.  And I

         18        would strongly want to support an opt in and opt out

         19        provision.

         20             CHAIRMAN DOUGLASS:  All right.  The reading clerk has

         21        something there.  Can you read what you think you have,

         22        sir?

         23             READING CLERK:  On Page 2, Line 31, after the period

         24        insert, "Any election after the year 2000 to exercise a

         25        local option to select or elect circuit court judges by


          1        merit selection and retention or election rather than by

          2        election shall be invoked by filing with the secretary of

          3        state a petition signed by the number of electors equal to

          4        at least 10 percent of the votes cast in the circuit in

          5        the last preceding election in which the presidential

          6        electors were chosen.

          7             "Any election after the year 2000 to exercise the

          8        local option to select or elect county court judges by

          9        merit selection and retention or election rather than by

         10        election shall be invoked by filing with the secretary of

         11        state a petition signed by the number of electors equal to

         12        at least 10 percent of votes cast in the county in the

         13        last preceding election in which presidential electors

         14        were chosen."

         15             CHAIRMAN DOUGLASS:  Commissioner Langley, this is

         16        what you left out of yours; wasn't it?

         17             COMMISSIONER LANGLEY:  I do not claim any authorship

         18        of this amendment.  I think we're passing the sense of

         19        that I certainly -- and we've discussed this with

         20        Commissioner Sundberg.  This certainly needs to be more

         21        artfully drafted and I think the drafting committee can do

         22        this.  But the sense of it is to allow the counties, if

         23        vote in 1990 to go to merit, then they can in '92 or

         24        thereafter go back --

         25             CHAIRMAN DOUGLASS:  Us older people don't recognize


          1        2000.  We're still in 1990.

          2             (Laughter.)

          3             CHAIRMAN DOUGLASS:  It's 2000 and 2002.

          4             COMMISSIONER LANGLEY:  Right, thank you.

          5             CHAIRMAN DOUGLASS:  All right.  Everybody understand

          6        this amendment?  This amendment would change it from the

          7        original amendment that was made and passed.  So I'm not

          8        sure how to treat this.  This is an amendment to your

          9        amendment really, which has already passed.

         10             COMMISSIONER LANGLEY:  Yes.  It is an amendment to

         11        the bill as amended is what it would amount to.  But

         12        basically it's another option is all it is.  It doesn't

         13        contradict, as I said when I explained the first

         14        amendment, it doesn't contradict the first amendment, it

         15        adds to it.  It says not only can you opt in, you can opt

         16        out.

         17             CHAIRMAN DOUGLASS:  Well, regardless of how we get

         18        there, what this amendment does is allow, after they adopt

         19        the provision for merit retention, that a county can opt

         20        in or out after the year 2000 by getting 10 percent of the

         21        people, electorate that voted in the last election on a

         22        petition and then it will come up in the next election on

         23        that issue.  Is that correct, Commissioner Smith?

         24             COMMISSIONER SMITH:  That is correct.  And let me

         25        thank staff for trying to assist me with drafting this.  I


          1        was trying to keep up with the debate on the other motions

          2        but I will be happy to be more precise in the drafting.

          3             CHAIRMAN DOUGLASS:  I presume Commissioner Barkdull

          4        wants to ask you the same question that he asked

          5        Commissioner Langley in which he said he was keeping his

          6        options open.

          7             COMMISSIONER BARKDULL:  I don't have any questions

          8        for Commissioner Smith, I think he's doing fine.

          9             CHAIRMAN DOUGLASS:  Very well.  Anybody want to speak

         10        in favor?  Commissioner Evans.

         11             COMMISSIONER EVANS:  I have a question.  This new

         12        language, Commissioner Smith, could that in any way be

         13        construed that the people have to take some kind of

         14        action?  If the people want to maintain the status quo,

         15        maintain the current election system, do they have to take

         16        some kind of action to opt in?  I would like to think the

         17        answer to that -- I mean to opt out.  I would like to

         18        think the answer to that is no, that they can maintain the

         19        status quo by doing nothing.

         20             COMMISSIONER SMITH:  That's correct; that's correct.

         21             CHAIRMAN DOUGLASS:  Okay.  Anybody else want to be

         22        heard on this amendment?  Commissioner Wetherington.

         23             COMMISSIONER WETHERINGTON:  I think it's an

         24        improvement.  I would support it.

         25             CHAIRMAN DOUGLASS:  Anybody else want to be heard?


          1        Then we'll proceed to vote.  This is to the proposal as

          2        amended.  Does everybody understand it?  We'll go over it

          3        again if you don't.

          4             Wait a minute.  I'm telling you we're on amendment

          5        four.  I already passed that.  All in favor of amendment

          6        four, the last one, say aye; opposed, like sign.

          7             (Verbal vote taken.)

          8             CHAIRMAN DOUGLASS:  It carries.  Now we'll vote on,

          9        as you're already doing, on the motion to adopt the

         10        proposal as amended.  Anybody that doesn't understand it

         11        now, let me hear from you.  Commissioner Barkdull.

         12             COMMISSIONER BARKDULL:  Mr. Chairman, I think there

         13        are people that want to debate this.  As I understood,

         14        Commissioner Wetherington was explaining what the proposal

         15        did.

         16             CHAIRMAN DOUGLASS:  Close the machine.  We'll start

         17        over.  Erase all those green things off and we'll have,

         18        whoever wants to speak for this will have an opportunity

         19        to do so.  For the amendment -- I mean for the motion as

         20        amended.  Any proponents?

         21             Any opponents?  Commissioner Connor.

         22             COMMISSIONER CONNOR:  Yes, sir.  Thank you,

         23        Mr. Chairman.  I appreciate very much the work

         24        Commissioner Wetherington and the judicial committee did

         25        on this issue.  And certainly as far as I'm concerned this


          1        kind of proposal, as amended, is the most acceptable form

          2        in which this could be offered.

          3             I rise however, Mr. Chairman, to oppose the proposal

          4        because of my opposition to the merit retention system.

          5        The effect of this amendment would in effect be to expand

          6        the merit retention system for trial judges, both county

          7        and circuit judges.

          8             The basis for this kind of proposal in part is that

          9        it would help depoliticize the process.  I would suggest

         10        to you for those who believe that merit retention

         11        depoliticizes the process, that they are naive and

         12        unfamiliar with the process.  The effect of the merit

         13        retention system, I would suggest to you, is to simply

         14        concentrate political power in the hands of fewer people.

         15        It has the tendency, rather than keeping the politics

         16        above the ground, to drive the politics under the ground.

         17             The people in whom political power becomes

         18        concentrated, typically, are large law firms, contributors

         19        to the Governor and the media.  Because frankly the

         20        appointing authority is typically more sensitive to the

         21        media perspective regarding an appointment than the public

         22        is, I would suggest, to an election.

         23             The effect of merit retention has been that we have

         24        not taken out of office a single judicial officer under

         25        the process.  I think there are very good reasons for


          1        that.  First of all, without an opponent running against a

          2        particular judge, there is no one to sharpen the issues or

          3        sharpen the concerns that may be involved with the

          4        retention of a particular candidate.

          5             Secondly, the voters don't know who will replace that

          6        candidate.  They simply have no idea who that would be.

          7        And I would submit to you the public opts typically then

          8        to dance with the devil they know than the one that they

          9        don't.

         10             So the effect of the merit retention system in our

         11        state has been to ensure the perpetuation into office of

         12        whomever is the beneficiary of the merit retention

         13        process.  And I would submit to you that it's not a

         14        process that we ought to expand.  I am not suggesting that

         15        we contract it, I'm suggesting simply that we don't expand

         16        it.

         17             In closing, I would just make this observation from a

         18        column from the St. Pete Times, which was authored by one

         19        who is in support of the merit retention process who has

         20        indicated the way in which this process can be abused.

         21        And I would suggest to you it was abused in its worst form

         22        in Palm Beach County.

         23             With regard to the nominee from the judicial

         24        nomination committee for a circuit judge proceeding, the

         25        author made this observation, but Sachs, referring to the


          1        nominee, but Sachs would be a dubious choice even if she

          2        were qualified; she isn't.  That's because her husband,

          3        Boca Raton lawyer Peter S. Sachs, used his clout as a

          4        member of The Florida Bar's Board of Governors to ensure

          5        her nomination.

          6             "Two of The Bar's three representatives on the

          7        nine-member commission were his choices.  One of the

          8        Governor's three representatives, lawyer Ted Bovin

          9        [phonetic], is a former chairman of the county's

         10        Democratic party, whose candidates Peter Sachs has often

         11        supported.

         12             "Still another commission member belongs to a large

         13        law firm that helped bankroll Maria Sachs when she ran

         14        unsuccessfully for a county judgeship last year.  Small

         15        wonder then that the commission insisted on nominating

         16        Mrs. Sachs even after she had been caught fudging her

         17        trial experience."

         18             I would submit to you, ladies and gentlemen, very

         19        simply that we ought not to expand this process.  It does

         20        not depoliticize the process and, in fact, rather than

         21        fostering a system of accountability, I would submit to

         22        you, it provides an unhealthy insularity for judges who

         23        ought not to be beyond the removal by the people.  Thank

         24        you.

         25             CHAIRMAN DOUGLASS:  Further debate?  Commissioner


          1        Brochin.

          2             COMMISSIONER BROCHIN:  I rise, too, to oppose this

          3        proposal, but for different reasons than those expressed

          4        by Commissioner Connor.  I think the Constitution has some

          5        very fundamental aspects to it.  And the way you select

          6        your executive branch, your legislative branch and your

          7        judicial branch is perhaps the most fundamental purpose of

          8        the Constitution.

          9             And to write a Constitution that allows counties to

         10        opt in and opt out, elect circuits, elect county court

         11        judges, is not a uniform system in the state of Florida

         12        that should be a part of our Constitution.  I'm in favor

         13        of merit retention.  I think that's a positive thing to

         14        do, not because it depoliticizes the system, in fact it

         15        does not.

         16             What it does do is it produces highly competent

         17        judges in an effective way so the judicial branch can

         18        perform its function.  And it is not a representative body

         19        of the people, but it is rather a protector of the

         20        Constitution.

         21             But nevertheless to write into our Constitution a

         22        system that allows you to go to Dade County and appear

         23        before an elected judge and then go 30 miles north and

         24        appear before a judge that's subject to merit retention,

         25        and then continue up the coast and maybe have county or


          1        circuit court judges opted in or opted out, in my humble

          2        estimation is not appropriate for our Constitution.  We

          3        should either have it done one way because what's good for

          4        one county should be good for the other.

          5             Trial judges affect the people of the state of

          6        Florida.  What a trial judge says in Leon County will

          7        affect a court perhaps in Volusia County.  And our

          8        Constitution ought to be uniform in that respect, if

          9        nothing else.  So for different reasons I'll oppose this

         10        and vote against it.

         11             (Commissioner Thompson assumes the Chair.)

         12             COMISSIONER THOMPSON:  Commissioner Zack.

         13             COMMISSIONER ZACK:  I would like to elect the judges

         14        who I appear before in Dade County.  That by far would be

         15        my choice.  However, our concern here today when we look

         16        at this question is how do we have the best possible

         17        judiciary, whether in Dade County or Broward County or

         18        Leon County.  How do you have the best possible judge to

         19        appear before?

         20             And frankly, there are different issues that affect

         21        Dade County -- and I'll only express my view regarding

         22        Dade County because that's where I primarily practice --

         23        and other parts of the state.

         24             I don't know how many of you had the opportunity to

         25        read a Miami Herald article a number of years ago, and I


          1        highly recommend it to each of you, called the Jurist

          2        Impurist.  And I would like to talk to you about that

          3        article and what was said in that article.

          4             And I personally witnessed everything that appeared

          5        in that article.  I have had the privilege of serving on

          6        the Judicial Nominating Commission in the 11th Circuit,

          7        Dade County, which was the bottom up, and being special

          8        counsel to Governor Graham, which is, I guess, the top

          9        down when you receive the three names.  And I can assure

         10        you that everything that was discussed in the article is

         11        absolutely correct.

         12             What you have in Dade County is 100-plus judges who

         13        appear on the ballot after numerous other local and state

         14        races.  There is little or no knowledge whatsoever about

         15        who you're voting for.  The way to get elected in Dade

         16        County is to have a good name.  And I don't mean a good

         17        name based on your reputation as a fine lawyer or jurist.

         18             I once wrote an article that you really don't need

         19        any money whatsoever to run as judge in Dade County, you

         20        just needed to change your name to Juanita Leavenhand Levy

         21        because at that point you were assured to get a majority

         22        of all votes in Dade County.  Because people vote based on

         23        a name that sounds vaguely familiar or that sounds like a

         24        name that they grew up with, someone in their family, a

         25        certain ethnic group.  And this is how people are


          1        selected.  That's not how we should select our judges.

          2             We need to select judges based on the quality of

          3        their intellect, their ethics, their years of experience.

          4        And I agree with Mr. Connor, there is no question that

          5        there will be politics whenever three people get together.

          6        There is no question in my mind that's the case.

          7             However, the issue is where do we get the best

          8        judges, in what type of format.  And I was practicing in

          9        Florida as all of you here, I think we're all that old,

         10        when appellate judges were elected.  And I look back at

         11        the reputation of our appellate courts at the time that

         12        all our appellate judges were elected.  And I look at the

         13        court system, the appellate court system today, and see a

         14        vast, vast improvement.  I don't think that can be

         15        questioned by anybody in this room or outside this room

         16        who honestly looks at the system.

         17             And I consider the appellate rights that are decided

         18        by those appellate judges at least as important, and

         19        probably more important because they stand for principles

         20        that are applied to all cases, than the decisions that are

         21        made by trial judges.  As Mr. Brochin discussed that it

         22        was okay to continue on, Commissioner Brochin discussed,

         23        it was all right to have appellate judges determined by

         24        merit selection.  Well, the same principles apply.

         25             And I readily understand that there may be a


          1        difference in different communities, counties, circuits

          2        around the state where there is a small bar association

          3        with one or two judges who, frankly, have to practice

          4        together, who understand that their word is their bond,

          5        who understand that they are constantly seeing each other,

          6        case in and case out, and will for the rest of their

          7        professional lives, compared to counties where you have

          8        15-, 20,000 lawyers in one county.  And you may never ever

          9        know most of those lawyers who you come in contact with,

         10        and certainly you rarely come in contact with most of them

         11        more than one time.

         12             In any event, it is not a perfect system.  I would

         13        prefer not to have to have a merit selection system.  I

         14        like electing judges.  However, it just doesn't work in

         15        Dade County.  And we ought to have the option of

         16        explaining that to the voters of Dade County and letting

         17        them decide how to select the best possible judge.

         18             COMISSIONER THOMPSON:  Further debate; further

         19        debate?  Commissioner Nabors.

         20             COMMISSIONER NABORS:  Very quickly.  I'd like to give

         21        a perspective.  I've served in a nominating commission at

         22        every level, Supreme Court, circuit and trial.  And

         23        personally I like the merit retention process.  My service

         24        was positive, I served with commissioners that tried to do

         25        the right thing, without political influence, tried to


          1        send the right names up.

          2             However, I think this is an example, and I hate to

          3        disagree with my good friend Mr. Brochin, but I think this

          4        is an example, and the other example, you have got to

          5        recognize the diversity of this state.  And we have got a

          6        vastly different state in the Panhandle and various small

          7        counties than we do in South Florida.  I don't consider it

          8        a constitutional compromise to recognize that through this

          9        process.

         10             What I might feel personally in terms of senatoring

         11        the Constitutional merit selection, it doesn't bother me

         12        that we allow local areas to make changes that are more

         13        suitable to their areas.  I don't consider this to be a

         14        compromise in terms of any kind of Constitutional

         15        structure.  There are many times we are going to have to

         16        recognize that there is areas of this state that are

         17        dramatically diverse.  We have an unusual state.

         18             I travel the state probably as much as anybody in

         19        this room and I see Holmes County, Calhoun County, Dade

         20        County, Palm Beach County, Manatee County and I know each

         21        area has its own personality.  And this is a fundamental

         22        choice that I don't see anything constitutionally

         23        repugnant about allowing that choice to be made at the

         24        local level.  So I speak in support of the proposal.

         25             COMISSIONER THOMPSON:  Commissioner Evans.


          1             COMMISSIONER EVANS:  I speak in opposition to the

          2        proposal for reasons that have not been expressed yet as

          3        well as to address some of the concerns of Commissioner

          4        Zack.

          5             He spoke to the concern that in Dade County judges

          6        are elected on the basis of name recognition because

          7        primarily the people do not know the candidates.  There is

          8        a proposal that is in front of the commission to allow the

          9        people to get to know the candidates; that is, to remove

         10        the, in my opinion, unconstitutional gag rule.  Our

         11        Constitution does provide that every person may speak,

         12        write and publish his sentiments on all subjects.

         13             It additionally states that no law shall be passed to

         14        restrain or abridge the liberty of speech.  And the gag

         15        rule has certainly indeed abridged the freedom of speech

         16        of judicial candidates and it also does prevent the people

         17        from having the knowledge.

         18             Thomas Jefferson stated that if a nation expects to

         19        be ignorant and free in a state of civilization it expects

         20        what never was and never will be.  He continued, I know of

         21        no safe depository of the ultimate powers of the society

         22        but the people themselves.  And if we think they are not

         23        enlightened enough to exercise their control with a

         24        wholesome discretion, the remedy is not to take it away

         25        from them but to inform their discretion by education.


          1        This is the true corrective of abuses of Constitutional

          2        powers.

          3             So again, the answer to our problems with the people

          4        not having knowledge is to allow the people to have

          5        knowledge.  It is not to take away from the people their

          6        right to vote because they are not knowledgeable enough to

          7        vote.

          8             I am also reminded of a presentation to the education

          9        committee by Mr. Dubois Ausley.  I'm not able to recall

         10        right now Mr. Ausley's position.  Could you help me,

         11        Commissioner Jennings?

         12             COMMISSIONER JENNINGS:  He was there as a member of

         13        the Governor's Commission on Education on the governance

         14        committee.

         15             COMMISSIONER EVANS:  Okay, a member of the Governor's

         16        Commission on Education as a member of the governance

         17        committee speaking to the education committee for the

         18        revision commission.

         19             And I can't quote exactly, but when asked why did we

         20        need a constitutional amendment requiring the appointment

         21        of all school superintendents, since we already have the

         22        local option, his answer was that we need to make it

         23        mandatory throughout the state because the people are not

         24        giving up their right to vote voluntarily.  So we have to

         25        have people in certain parts of the state to force people


          1        in other parts of the state to give it up.

          2             So I can see the progression of thought.  First, take

          3        away the people's right to know the candidates by invoking

          4        the gag rule.  Second step, take away the elective choice

          5        because they have a lack of knowledge.  The third step

          6        then is to make it mandatory in all counties and circuits

          7        because the people aren't giving it up voluntarily.  And

          8        then the fourth step would be to take away all the

          9        retention choice because, again, of the lack of knowledge.

         10             The people still can't hear the judicial candidates

         11        on a retention issue as to what their position is in their

         12        private lives which definitely influences their position

         13        in their public lives.  The people have the right to know.

         14             So let's not say that the answer to our problems in

         15        Dade County is taking away the right to vote on a

         16        county-by-county basis and open the door to future attacks

         17        on the people.  You have to remember the very first

         18        sentence of the very first section of the very first

         19        article in the Constitution is, "All political power is

         20        inherent in the people."  It is sad when the people are

         21        not educated enough to exercise their political power, but

         22        the option is not taking it away.  Thank you.

         23             CHAIRMAN DOUGLASS:  I'd like to interrupt the debate

         24        for just a moment.  We have with us and going to be

         25        presented to us the newest justice of the Florida Supreme


          1        Court who was just appointed.  And I don't know who it is,

          2        I haven't seen her yet, so if you would bring her forward.

          3        All right, everybody please rise, Justice Pariente.

          4             (Applause.)

          5             CHAIRMAN DOUGLASS:  In just a moment I'll let her say

          6        just a few words.  But 20 years ago I don't think we would

          7        have had a very attractive lady as our justice.  What's

          8        happened in the last 20 years has greatly improved our

          9        system.  And Justice Pariente has served on the Fourth

         10        District Court of Appeal since 1993 and she comes to this

         11        job extremely well qualified in many respects.

         12             Justice Pariente, all of us here as you can see are

         13        standing, are very pleased with your nomination and your

         14        ascendancy to this office.

         15             (Applause.)

         16             JUSTICE PARIENTE:  Please be seated.  This is really

         17        overwhelming because I got a call yesterday about quarter

         18        of 4:00 from J. Hardin Peterson.  And usually, for those

         19        that know, when you get a call from J. Hardin Peterson

         20        that means, you know, thumbs down because you get the call

         21        from the Governor if it's, if you get appointed.  And Jay

         22        does the dirty work, as I guess Dexter did when he was in

         23        that position.

         24             But Jay said, no, don't think there is a problem, but

         25        we need you up here tomorrow morning at 9:30 and it's not


          1        for an announcement.  So I assume that it's not for an

          2        announcement.  Then I start thinking, what could it be?

          3             So I came up on minute's notice and the Governor

          4        about I guess a half hour ago asked me if I would like to

          5        serve.  And then we went into a press conference.  The

          6        Governor had all these prepared remarks about the

          7        appointment and then it got to the end and it said, Judge

          8        Pariente remarks.  And my remarks weren't written down.

          9        So I got my first taste of what it's like to have a press

         10        conference.  And it was rather overwhelming.

         11             Anyway, it's wonderful to be here and see so many

         12        people, friends and colleagues that I know serving on this

         13        important position.  Justice Kogan, I definitely need to

         14        speak with you.  And it's very exciting and I thank you

         15        for your ovation and I'm sure you have very important work

         16        to get back to.  Thank you.

         17             (Applause.)

         18             CHAIRMAN DOUGLASS:  We were indeed honored to have us

         19        be your first public appearance as justice.  And she

         20        immediately takes office as soon as Justice Kogan can

         21        swear her in, I think is the case.

         22             COMMISSIONER KOGAN:  Actually when she goes upstairs

         23        and signs the oath that's it.

         24             CHAIRMAN DOUGLASS:  So she will be it as soon as she

         25        leaves here, then, I guess, assuming the secretary of


          1        state is in today.

          2             COMMISSIONER KOGAN:  I won't touch that one.

          3             (Laughter).

          4             CHAIRMAN DOUGLASS:  I'll relinquish the rostrum to

          5        Mr. Thompson.

          6             COMISSIONER THOMPSON:  Continuing our debate on

          7        Proposal No. 66.  Commissioner Smith, you're recognized.

          8             COMMISSIONER SMITH:  Thank you, Mr. Chairman.

          9        Believing as I do, Article I, Section 1 of the Florida

         10        Constitution, that all rights are in fact reserved to the

         11        people, that is the reason why I wholeheartedly support

         12        this proposal.

         13             If you would look at the minutes of the Article V

         14        commission proceedings, I think you would agree no

         15        individual and no organization opposed merit selection and

         16        retention more than I did as an individual and the

         17        National Bar Association did as an organization.  But I am

         18        not here for the purpose of representing H. T. Smith's

         19        views.  I'm here to try to make a Constitution better for

         20        the people of the Florida over the next 20 years.

         21             And I wholeheartedly embrace as a philosophy the

         22        statement made by my dear friend, Commissioner Morsani, if

         23        we believe the Constitution should be a living document

         24        and being a descendent of slaves and knowing that slavery

         25        was both a part of the federal Constitution and the


          1        Florida Constitution, I am proud of the fact that our

          2        Constitution is alive and vibrant and has a flexibility to

          3        one day say, I'm a slave and the next day say, I'm a free

          4        man, with the same words being in the Constitution.  That

          5        was that I was property.  So I believe that we definitely

          6        should have flexibility in the Constitution.

          7             Secondly, it always gives me pause when I find myself

          8        on the other side of a thoughtful, insightful

          9        knowledgeable person like Bobby Brochin who is very, very

         10        sincere.  And he says, and I agree, that we can find

         11        ourselves in a situation where, for instance, I'm

         12        practicing before an elected judge in Dade County and an

         13        appointed judge in Broward County.

         14             But I point out to my dear friend that I do that

         15        every day now in Dade County.  I appear before judges who

         16        are appointed by the Governor and that same day I go to

         17        another judge who ran for election.  So I am not that

         18        worried about having that problem inter-county when I

         19        already have it intra-county and intra-circuit.

         20             Thirdly, I oppose merit selection on behalf of the

         21        National Bar Association for many of the reasons expressed

         22        by my friend, Mr. Connor.  Having been a part of a group

         23        that very rarely was in the meeting before the meeting

         24        which was really the meeting, I am always a little

         25        concerned about these nine-member group meetings.


          1             But the difference that I come to from my good friend

          2        Mr. Connor is I don't think it's my prerogative, in terms

          3        of discharging my duty on this commission, to push my idea

          4        about what I think is best to the people of Clay County,

          5        Hillsborough County, Monroe County.

          6             And I find myself agreeing with Commissioner Evans

          7        but coming up with a different conclusion.  And that is,

          8        let the people decide.  How -- what more democracy can you

          9        have than to say, for your branch of government, the

         10        judiciary, that you will decide, you will decide how to

         11        select the people who will decide the important judicial

         12        issues and the important legal issues that affect your

         13        lives.  This, I believe, will be one of the most important

         14        issues that will go before the voters if we approve it.

         15             And those who support merit selection and those who

         16        support election of judges can say, I can support this

         17        because this gives me, this gives us, the people of

         18        Florida, the opportunity to make a decision on what we

         19        want, not the 37, quote, eggheads, end quote, not The

         20        Florida Bar, not the big law firms, not the people who are

         21        in the room, but the people of the state of Florida.

         22             I urge you in the strongest possible terms to give

         23        this decision to the people of Florida by supporting

         24        Proposal 66 as amended.

         25             COMISSIONER THOMPSON:  Further debate; further


          1        debate?  Commissioner Douglass, you are recognized.

          2             CHAIRMAN DOUGLASS:  Mr. Chairman, members of the

          3        commission, in 1978 I made almost the same speech that

          4        Commissioner Connor made, sitting almost in the same seat.

          5        And I lost, and it went to the ballot.  I wrote articles

          6        favoring the election of judges, trial judges in The Bar

          7        Journal and anywhere else they would print them because I

          8        was convinced at that time that that was the way to go.

          9             I must admit I was looking at it from the standpoint

         10        of a state of a different makeup, a state of a different

         11        population, more from a provincial view of a small-town

         12        boy who grew up in Florida, which I think Mr. Connor or

         13        Commissioner Connor shares with me.  If you have that

         14        background you tend to want everybody elected because you

         15        remember when everybody knew who the people were that were

         16        involved in the election and you voted for them on the

         17        basis of personal knowledge.

         18             Times have changed in the 68 years that I've lived

         19        and the 43 years that I practiced law.  They have changed

         20        so dramatically in the number of lawyers that now pervade

         21        our society.  They have changed dramatically in the number

         22        of judges that are now on the bench.  When I started

         23        practicing law, and I hate to refer back to history, in

         24        1955 I knew the name of every judge in Florida, circuit

         25        judge and county judge, the day I got out of law school.


          1             And the Supreme Court was the only appellate court

          2        and you had a right of appeal in every case from the

          3        circuit court directly to the Supreme Court.  I made my

          4        mark at the law firm, which was a big law firm at the time

          5        of five people, Caldwell, Parker, Foster and Wiggington.

          6        I was the fifth one who replaced Mallory Horne who was

          7        making $160 a month, and I made 250 a month.  And Mallory

          8        has never forgiven me for that.

          9             But in any event, what I'm trying to say to you is

         10        that we are now living in a different state, with

         11        different people, with a large, huge population.  And our

         12        system of justice, if it is to survive, has got to be

         13        free, free from the whims as described by Commissioner

         14        Zack.  Free from the influence of lawyers and large firms,

         15        small firms and otherwise when you have a partisan

         16        election.  It so much greater than it is under the merit

         17        retention system that you can't imagine it.

         18             If you are appearing before a judge or have an

         19        opportunity to think you're going to appear before a judge

         20        and you're a lawyer and his man calls you up and asks for

         21        $250, you send it.  And I can assure you in retention

         22        elections that's not the case.  I can assure you, however,

         23        that that creates in the eyes of the public the concept

         24        that the lawyers who contributed that money will receive

         25        favoritism when they go before that judge.  I like to


          1        think they don't, but most people believe otherwise.

          2             And I think that it's important that we address this

          3        problem on the trial level where it's more important than

          4        it is even on the appellate level where we now have it and

          5        it has worked so well.

          6             I wish to also, Commissioner Connor, tell you that I

          7        am probably more familiar with the Palm Beach situation

          8        than the fellow who wrote the article.  I was involved in

          9        it, and I appointed a special committee, at the request of

         10        the Governor, headed by the most respected judges and

         11        chaired by one of the most respected lawyers in the state

         12        to look into that.  And what you described is not exactly

         13        what happened.

         14             And what came out of it, however, was a full public

         15        airing of the Judicial Nominating Commission.  And it

         16        resulted in the next time someone came up for appointment

         17        to that commission, there were 50 applicants to serve,

         18        when in some circuits we couldn't even get people to apply

         19        to serve on the JNC.  So it was eliminated.  And it

         20        resulted in a great improvement in all of the JNCs in

         21        South Florida, primarily because it was publicly aired and

         22        commented on by the press.

         23             The lady that you talked about was not appointed.

         24        The lady that you think was created a position for by the

         25        JNC didn't make it.  She was not the best qualified person


          1        on the list.  One of the people on that list was a

          2        Republican who had supported the Governor's opponent, not

          3        only vociferously, but with money.  And so it was assumed

          4        by the press that he would never appoint this man.  There

          5        is one thing they overlooked about him, he was an

          6        outstanding human being and a great lawyer.

          7             There was no doubt from day one when we went over

          8        that list that he was the person on that list that was

          9        best qualified to be a circuit judge.  Among other things

         10        he was a Hispanic and that was not exactly a household

         11        thing to do in Palm Beach County as well.  It is now

         12        because the Governor selected, as he should have, that

         13        person to be the circuit judge.  That person probably

         14        would have never been a circuit judge under an elected

         15        process.  He was by far the best qualified person.

         16             The reason I give you that is because I didn't want

         17        to leave that subject unanswered to tell you what really

         18        happened, the rest of the story.  What happened in that

         19        instance was the selection of a judge that I'm very proud

         20        to have been involved with the Governor in considering and

         21        making that selection.

         22             I sort of agree with Commissioner Brochin's approach

         23        to this.  I would prefer to have in the Constitution the

         24        absolute requirement that all judges are selected in this

         25        manner.  But I recognize that the Constitution should


          1        leave the leeway at least for those circuits in small

          2        counties that want to opt out to opt out.

          3             I have always supported the proposition that in small

          4        counties, rural counties, they need a county judge, they

          5        need a resident county judge.  They need one that comes

          6        from there, that sits there, that drinks coffee with them,

          7        that goes to the functions in these small towns and

          8        counties.  It's the one place in America where you really

          9        do have the contact with your public officials on a daily

         10        basis.  And I've always supported that concept.  And I

         11        think this leaves that available to those small counties

         12        to do that, to continue to elect those judges.

         13             I can also tell you that we would not, in all

         14        probability, have the African-Americans that are serving

         15        on the bench on the bench unless we had a merit selection

         16        type process.  I think all or most all, nearly all of the

         17        African-Americans, great distinguished judges in this

         18        state, were selected by merit retention that's almost true

         19        and it was -- it's not any more but it was originally for

         20        women to go to the bench.  It took merit retention.

         21             The only weakness in this system, if there is one, is

         22        the selection of the Judicial Nominating Commissions.  And

         23        I found, however, that that works pretty well too.  You

         24        have three from The Bar and you have three from the

         25        Governor and then those six select the other three.


          1             And consequently, you do wind up with a rather

          2        diverse group.  Part of it is dependent on The Bar and the

          3        Governor making appointments of diversity to increase the

          4        numbers of minorities that serve on these commissions and

          5        that has been done.  And as a result, our judiciary has

          6        been greatly improved.

          7             The idea that you get somebody to run against a

          8        sitting judge is very, very tenuous, if it at all is true.

          9        A sitting judge never draws an opponent.  We had a sitting

         10        judge to my knowledge who the JNC found had stolen money,

         11        had committed perjury.  And the Supreme Court, rather than

         12        removing him from the bench said that it occurred so long

         13        ago, the theft, that it was not -- he had reformed and was

         14        doing okay and that the perjury charge, he was not made

         15        aware of it because it was perjury in the proceeding

         16        before the JNC and therefore they gave him a reprimand.

         17             He had no opponent when he came up for reelection.

         18        One of the reasons was that 100 or more members of The Bar

         19        signed a petition saying, you know, we like him and he

         20        works hard and don't get rid of him.  And I think anybody

         21        that would have chosen to run, although they probably

         22        would have won even though he had the support of the local

         23        newspaper, that he would probably still have won.

         24             Now that would not have occurred under merit

         25        retention.  He would have never been on the bench.  He was


          1        elected in the first instance.  And the statistics show

          2        that of those who have been removed from the bench by the

          3        JNC 70 percent or 72 percent first got there by election.

          4        And I'm not sure my figures are exactly right, but it is

          5        three-fourths approximately.  And I think Commissioner

          6        Kogan can probably verify that.  I've seen that published

          7        in several places.

          8             My point, and the reason I left the chair, was that I

          9        think if we don't do anything else in the judicial system,

         10        if we don't offer to the people the right or the ability

         11        to vote on this type of a selection process for judges, I

         12        fear we will have not met the challenge that we were given

         13        when we were appointed to this commission.

         14             And therefore I leave the chair to come to ask you,

         15        each of you, to search your hearts and try to do something

         16        to allow the people to have the opportunity to do what I

         17        believe and many others believe would improve and make our

         18        judiciary a much, much better and fairer way for people to

         19        receive justice.  After all, that's all the courts are for

         20        is to attempt to, and I say attempt because it's not a

         21        pure science always, if they can, to render justice to the

         22        citizens, both those that are before them and those that

         23        are not.

         24             I therefore ask you to avoid the demagoguery that I

         25        did in '78.  And I made some pretty tough speeches around


          1        that I'm having to backtrack on after I got older and

          2        wiser, but to follow what is the correct course, which is

          3        to allow the people to select and make a merit retention

          4        system.

          5             And I will add that without Commissioner Langley's

          6        amendment leaving this opt out and opt in provision, I

          7        might have had some difficulty making this call.  With it

          8        in there, I think it is as perfect a provision as we can

          9        send to the public for their vote and I urge you to vote

         10        for it.

         11             COMISSIONER THOMPSON:  Further debate?  Further

         12        debate, Commissioner Morsani.

         13             COMMISSIONER MORSANI:  It is certainly enjoyable

         14        hearing all my learned colleagues, if I may call you

         15        colleagues here this morning, especially you in the

         16        judiciary, and I think that Chairman Douglass, all of you

         17        have been very eloquent in your positions, both pro and

         18        con.

         19             As a -- and you all know my position has been pretty

         20        clear.  But I thought due to the fact that all of you-all

         21        of the legal persuasion that I should again speak as a

         22        commoner in these halls, and that is that in large

         23        counties, if you would, that we don't know who the judges

         24        are, who is running for judge.

         25             And as Commissioner Zack has said, there are hundreds


          1        on the ballot.  We don't -- no matter how much we want to

          2        educate the public, they are not educated, unfortunately,

          3        and they do not know who they are voting for for judges.

          4        And that's a terrible sin on our part, but it's reality.

          5             So if we as a body are to use our vision and our

          6        wisdom and I think wisdom, the definition of wisdom, is to

          7        be able to see the results of your decisions in the

          8        future, that we who are asked to serve on this commission

          9        today are supposed to use our vision and wisdom to where

         10        we are going for the next 20 years.  So I strongly urge

         11        your support, I am not on the judiciary committee, but I

         12        strongly urge your support for this.  I think it is the

         13        right thing for our state, I think it's the right thing

         14        for the times.

         15             And just the other day in Pinellas and Hillsborough

         16        County, and maybe some of you saw it and I'm sure there

         17        was a state -- when we look at the number of people in

         18        Hillsborough County as an example and Pinellas County, in

         19        Hillsborough County, less than 50 percent of the people

         20        that are residents of Hillsborough County were from

         21        Florida.  In Pinellas County, less than 75 percent of the

         22        people are from Hillsborough -- from Pinellas County or

         23        from the state of Florida.

         24             This is a trend all over our state.  People,

         25        unfortunately the breakdown we have in communities because


          1        of the dynamic growth are creating these differences

          2        within our state and within our communities.  And we have

          3        the responsibility to address them.  I strongly urge your

          4        support for this change.  I think it is positive, and I

          5        believe we'd be doing a disservice to our citizenry if we

          6        don't enact this.  Thank you very much.

          7             COMISSIONER THOMPSON:  Further debate, Commissioner

          8        Barton.

          9             COMMISSIONER BARTON:  Yes, I rise in opposition to

         10        Proposal 66.  In this room of two-thirds lawyers, it's

         11        probably not the most popular position to have.  However,

         12        I would like to remind all present that out in the real

         13        world, two-thirds of the people are not lawyers.

         14             Regarding the election of circuit and county judges,

         15        other than in isolated incidences, or only one county I

         16        heard of spoken here today, the problems that are

         17        mentioned don't seem incumbent in most of the counties in

         18        our state and I wonder why we're changing a process that

         19        we've had for a long time to accommodate one county or a

         20        few urban areas.

         21             Also, we entrust to our voters the right to elect at

         22        county and district levels a number of people, including

         23        state representatives, state senators, county

         24        commissioners, school boards, constitutional officers and

         25        more.  I would raise the question that I believe that most


          1        voters believe that they are quite capable of doing this

          2        job and have done it quite well throughout a number of

          3        years.  And they are able to elect the judges in their

          4        local areas because in most cases they know them or they

          5        can learn to know them.

          6             I would also mention that we have the ability to

          7        reelect or unelect, if you will, every four or six years

          8        those judges.  And in all deference to our chairman, we

          9        just did that in our county a few years ago.  I was

         10        campaign manager for the judge who was successful in

         11        unseating the judge who had been there 20 years.

         12             The elective process is quite unique.  What it allows

         13        is for us to meet the people who will serve us.  And I

         14        think that's particularly important in cases of judges

         15        where they can come down from the bench, if you will, and

         16        they can interact with the people, which they don't really

         17        get to do in their courtroom.  Most of us don't go before

         18        the judges who serve in our communities.

         19             Finally, I believe that people are angry about losing

         20        their rights, about being disenfranchised for the ability

         21        to vote, particularly the ability to vote.  For it is the

         22        most fundamental and basic right that we have.  And once

         23        you have lost the ability to vote for somebody, you will

         24        never, likely, regain that ability.  I would not give it

         25        up, in any case.


          1             We live in a nation whose founding document begins

          2        with the words, We the People.  I urge all of you to

          3        listen to We the People and allow us to retain the rights

          4        that we have been given.  Thank you.

          5             COMISSIONER THOMPSON:  Further debate, Commissioner

          6        Evans.

          7             COMMISSIONER EVANS:  I'd like to respond to the

          8        fundraising question that Commissioner Douglass raised.

          9        He said if we went to the retention system that we would

         10        not have judges approaching lawyers asking for money and

         11        with or without the veiled threat that if they do not give

         12        it, they will have adverse holdings against their clients.

         13             First of all, fundraising problems will not be

         14        resolved with retention.  A judge will have to have a very

         15        well-funded bank account well in advance of his retention.

         16        He will have to wage a campaign against organized groups

         17        as well as against the media.  The media will wage a

         18        campaign with unlimited resources, if the sitting judge

         19        does not or has not promoted the social agenda of the news

         20        media.  If I were a judge I would certainly much rather

         21        face a definite person in an election campaign than face

         22        the media with all of its resources.

         23             As far as the statistics on the JQC taking discipline

         24        action are concerned, I can't help but wonder how many

         25        occasions of misconduct does the JQC choose not to pursue.


          1        For instance, the gentleman in Miami who said that he was

          2        certainly threatened by a sitting judge if he did not give

          3        a monetary contribution.  I wonder, did the JQC take

          4        action?  I wonder, did the people ask the Legislature to

          5        impeach the judge for this misconduct?

          6             I suspect there are a lot of people who do not even

          7        know that the Legislature has the impeachment power, but

          8        rather they wait for JQC.  Did the JQC act on this person?

          9        And if not, why not?  What must be done to make the JQC

         10        act in instances of misconduct, especially if the JQC is a

         11        proponent of this judge, rather than an opponent of this

         12        judge.

         13             Did the JQC, for instance, act against the Supreme

         14        Court when it passed the gag rule, unconstitutionally

         15        passed the gag rule.  I think I know the answer to that

         16        one.  So I don't know that the statistics are valid.  I

         17        don't know that we have statistics available on how many

         18        times the JQC chooses not to act.  We only have the

         19        statistics on how many times they choose to act and I

         20        wonder if the statistics are skewed.

         21             So just keep in mind those other two instances.  I

         22        think that we have to be fully informed on all the issues

         23        in order to make the decision.

         24             COMISSIONER THOMPSON:  Further debate?  Further

         25        debate?  Commissioner Connor, for what purpose?


          1             COMMISSIONER CONNOR:  I'd like to reply to

          2        Commissioner Douglass' remarks, if I may, Mr. Chairman.

          3             COMISSIONER THOMPSON:  I'm going to let everybody

          4        talk all you want to, but I'm afraid you're supposed to

          5        debate a measure but one time.  Nobody has called a point

          6        of order, but --

          7             COMMISSIONER CONNOR:  I don't want to act in a manner

          8        out of order.

          9             COMISSIONER THOMPSON:  No, go ahead.  I think unless

         10        somebody raises a point of order, but we need to be

         11        cautious about that as we proceed.

         12             COMMISSIONER CONNOR:  I'll be brief and cautious,

         13        Mr. Chairman, if I may.

         14             With respect to -- Chairman Douglass has registered a

         15        concern, appropriately so, about contributions by lawyers

         16        to judicial candidates and the power that that creates in

         17        those people.  I would suggest to you that you wind up

         18        concentrating even more power in the hands of a member who

         19        sits on a Judicial Nominating Commission or who can

         20        influence the decision of the Judicial Nominating

         21        Commission much more so than a lawyer who makes a

         22        contribution.

         23             However, I would suggest to you that in line with

         24        what Ms. Evans has suggested, that to the extent that

         25        there are matters that need correction I would suggest


          1        that changing that gag rule was one and also eliminating

          2        contributions by lawyers would be less radical than

          3        stripping the public of the right to decide who will sit

          4        in judgment over them.

          5             And then finally I would simply make the observation

          6        that as I understand it there are about eight times the

          7        number of judges who sit on the bench who are elected than

          8        there are who are appointed.  And when one takes into

          9        account the number of disciplinary proceedings and

         10        compares the number who are elected and who are appointed,

         11        I think it is important to keep that ratio in mind because

         12        I think perhaps you'll find that the numbers are not

         13        skewed as badly as some would have you believe.

         14             Thank you, Mr. Chairman.

         15             COMISSIONER THOMPSON:  Further debate?  Commissioner

         16        Langley.

         17             COMMISSIONER LANGLEY:  I'd just like a few minutes to

         18        promote this bill, this proposal, and speak in favor of

         19        it.  And it may seem somewhat inconsistent because I think

         20        the next thing on our docket is my proposal that says all

         21        judges should be elected.

         22             And in a perfect world, if you go back to the Old

         23        Testament, the judges, you know, were just anointed and

         24        God got out of that business I guess because we don't have

         25        that anymore.  So we leave it to the fallacies of the


          1        people to somehow come up with these judges of the people.

          2             In a perfect world we wouldn't have these problems.

          3        I think that the biggest problems with elected judges is

          4        in the financing of the elections.  And in my proposal

          5        following it says that all the judicial elections would be

          6        financed by the people, and not by individuals.  But

          7        anyway that's another thing.

          8             And there's a lot of movement up here for total merit

          9        selection, there is a lot of movement up here for total

         10        election of judges.  I think this is a good compromise

         11        because it protects those people who truly believe they

         12        should elect their judges, and it gives the people of

         13        let's say Dade County, if I may, it gives them a choice of

         14        solving what is perceived to be a big problem in the

         15        selection or election of their judges.

         16             You know, the people of Dade County may say, we like

         17        it the way it is.  And, frankly, I predict that they will.

         18        And that's Dade County and that's their problem.  But it

         19        still allows Wakulla County and Franklin County and the

         20        other counties to keep electing their judges if they want

         21        to.  I think it's the best we're going to get out of this

         22        and I plan to support it, but I also plan to support

         23        electing all of them.

         24             COMISSIONER THOMPSON:  Further debate?  Commissioner

         25        Wetherington to close.


          1             COMMISSIONER WETHERINGTON:  I'll yield to

          2        Commissioner Douglass.

          3             COMISSIONER THOMPSON:  The gentleman yields to

          4        Commissioner Douglass.

          5             CHAIRMAN DOUGLASS:  I think Commissioner Langley just

          6        said what I would have said in closing, which is, we're

          7        not passing this, Commissioners.  What we're doing is

          8        giving the people the opportunity to vote on this.

          9        Because what we do here, as he's pointed out before, we

         10        don't do these things as a commission, we put before them

         11        our best effort to have them vote on things that if they

         12        do pass we believe will improve the Constitution and will

         13        improve our administration of justice in this case.

         14             So if the people are in fact concerned enough and

         15        they don't want to accept the merit retention system

         16        that's being offered, they have the opportunity to opt out

         17        on the county level and on the circuit level, but they

         18        also have the opportunity to see that their judges are

         19        selected in a much more, I think, efficient and proper

         20        manner where you get the best people to serve.

         21             The fallacy that most judges are elected is a

         22        fallacy.  Having sat in the Governor's Office, most judges

         23        that are sitting were originally appointed when there was

         24        a vacancy that occurred.  And then an election occurs and

         25        very few of them received opposition.  When you see 36


          1        people apply for a county judgeship in Leon County

          2        recently, yet when there was an election only four ran,

          3        the choice and the wide diversity of the candidates is so

          4        much of an advantage to the general public when the

          5        selection is finally made that I think we should offer to

          6        the public the opportunity to vote on this very important

          7        issue in the form in which it has been amended and is now

          8        before you.  And I urge you to vote yes.

          9             COMISSIONER THOMPSON:  So the question recurs on

         10        passage of Proposal No. 66 as amended.  The clerk will

         11        unlock the machine and the members will proceed to vote.

         12        Have all members voted?  All members have voted.  The

         13        clerk will lock the machine and announce the vote.

         14             READING CLERK:  28 yeas and four nays, Mr. Chairman.

         15             COMISSIONER THOMPSON:  So the measure passes.

         16        Mr. Chairman, do you want to -- pardon me?  Okay, I

         17        announce that Senator Scott's button didn't work.  Which

         18        way did you vote?

         19             COMMISSIONER SCOTT:  Yes.

         20             COMISSIONER THOMPSON:  That makes 29.  So the measure

         21        passes.

         22             CHAIRMAN DOUGLASS:  Thank you, Commissioner Thompson.

         23        Announcement, the lunch break, we are going to take lunch.

         24        We are going to take a 30-minute break at 12:00.  The

         25        lunch is here, it's in the back, it's not gourmet, but


          1        it's within your $6 state allowance.  So it will be back

          2        there.  We're going to try to take a 30-minute break at 12

          3        and then we'll be back in at 12:30.

          4             And we'll proceed now to the next item on the

          5        calendar, if I can find it.  Now we'll take up Proposal

          6        No. 61.  Will the clerk please read it?

          7             READING CLERK:  Proposal 61, proposal to revise

          8        Article V, Sections 10 and 11, Florida Constitution,

          9        providing for circuit and county judges to be subject to a

         10        vote of retention rather than running for reelection.

         11             CHAIRMAN DOUGLASS:  That's offered by -- well, it's

         12        been disapproved by the committee.  Commissioner

         13        Wetherington, would you want to yield to the person who

         14        introduced that to present it or would you like to present

         15        it?

         16             COMMISSIONER WETHERINGTON:  I think I'm the person

         17        that presented it, introduced it.

         18             CHAIRMAN DOUGLASS:  All right, sir.

         19             COMMISSIONER WETHERINGTON:  In light of the --

         20             CHAIRMAN DOUGLASS:  Just a minute.  Do you have a

         21        point of order?

         22             COMMISSIONER BROCHIN:  I think so.

         23             CHAIRMAN DOUGLASS:  Point of something.

         24             COMMISSIONER BROCHIN:  I'll tell you what it is and

         25        you can tell me if it's a point of order.


          1             CHAIRMAN DOUGLASS:  Okay.

          2             COMMISSIONER BROCHIN:  I've asked for an amendment to

          3        be prepared for Proposal 61, which they're doing right

          4        now.  So perhaps I could ask that it be passed just

          5        momentarily until the amendment is drafted.

          6             CHAIRMAN DOUGLASS:  Any objection?  Without objection

          7        we'll pass it and go to the next one at the moment,

          8        Proposal 74.  Will the clerk read 74.

          9             READING CLERK:  Proposal 74, a proposal to revise

         10        Article V, Section 10, Florida Constitution, providing for

         11        the election of justices of the Supreme Court and judges

         12        of the District Court of Appeal; providing for public

         13        financing for judicial elections.

         14             CHAIRMAN DOUGLASS:  Now, Commissioner Wetherington,

         15        that's the one you want to yield to Commissioner Langley

         16        on.  Commissioner Langley, on No. 74 which you've already

         17        put us on notice of.

         18             COMMISSIONER LANGLEY:  I -- thank you, Mr. Chairman.

         19        This does what I just talked about imposing on the other

         20        bill and this makes all judicial officers elected.  But I

         21        really would not believe in that unless it also did not

         22        have with it the provision about public financing of all

         23        judicial elections.

         24             What I propose, and it would be left up to the

         25        Legislature to make the actual details, laws, rules or


          1        regulations pertaining to it, but what would be proposed

          2        was that there would an equal allocation of public TV

          3        time, there would be an equal allocation of editorial type

          4        question/answers by the commissions and that nobody would

          5        be out there raising tons and tons of money, no lawyers

          6        would be contributing to their election and no special

          7        interests would be involved in their election.  I think

          8        this is the way to deal with our judicial problems.

          9             And if -- you know, again, who knows until we try it

         10        whether or not it is going to be the perfect answer.  But

         11        I certainly think when you hear about these elections it

         12        all boils down to money, and the bad aspects of

         13        contributing lawyers and special interests as well as the

         14        ungodly sums that are spent.  You know, in Dade County I

         15        understand up to three-quarters of a million dollars was

         16        spent to obtain an office that pays 103 or 105 or

         17        something like that.

         18             So this is just a -- it may not be the panacea, but

         19        it certainly is, I think, an answer to those problems and

         20        ought to be available to the people to say, let's do that.

         21             CHAIRMAN DOUGLASS:  Commissioner Barnett.

         22             COMMISSIONER BARNETT:  Thank you, Mr. Chairman.  I

         23        talked briefly with Commissioner Langley.  And the part of

         24        his proposal that I think we should give more

         25        consideration to is indeed what he just talked about and


          1        that is the public financing of judicial elections.

          2             I do not support the other part of his proposal,

          3        which is the election of judges.  But in light of the

          4        action that we've taken on the prior position, I would

          5        like to move, and I think with his concurrence, that we

          6        amend this proposal to delete all of the language up to

          7        paragraph B on Page 2, Line 13.  And that would retain

          8        within this proposal the provisions relating to public

          9        finance so that we can focus on that issue, that issue

         10        alone without the discussion that goes with election.

         11             CHAIRMAN DOUGLASS:  Commissioner Barnett, you may not

         12        be aware but there is a proposal dealing with public

         13        financing of elections which would be the vehicle I would

         14        think this would be attached to or debated when it comes

         15        up.  And that is not on special order now, but you can

         16        certainly, you and Commissioner Langley, can make sure

         17        that that's involved.  And it may be the only thing that

         18        passes out of public financing proposal.

         19             The reason I'm aware of that is I introduced it, it's

         20        the only one I've introduced.  I tried introducing one and

         21        it was defeated seven to nothing in committee.  So I tried

         22        this one.

         23             But in any event, I would appreciate it very much if

         24        we could reserve that for a more full discussion on public

         25        financing.  And I think Commissioner Connor is going to


          1        join me in that proposal.

          2             COMMISSIONER BARNETT:  Mr. Chairman, if I might for a

          3        minute.  Perhaps it would be a good idea to go ahead and

          4        amend this proposal by deleting the language I referred to

          5        and then you may want to defer this proposal to that

          6        committee so that the language on public financing of

          7        judiciary is actually before the committee.

          8             CHAIRMAN DOUGLASS:  I accept that, as long as it's

          9        going to be referred for consideration with the whole

         10        subject, that's correct.

         11             COMMISSIONER BARNETT:  And I endorse that.  I think

         12        that this subject deserves a full debate of the issues.

         13             CHAIRMAN DOUGLASS:  So you've got to put an amendment

         14        on the table, I guess.  It's being drafted at the moment.

         15        Commissioner Langley, do you want to respond to that?

         16             COMMISSIONER LANGLEY:  If you all are through messing

         17        up my proposal.

         18             CHAIRMAN DOUGLASS:  We tried.

         19             COMMISSIONER LANGLEY:  I don't want the first without

         20        the -- I don't want the first provision; i.e, election,

         21        without the financing.  So if it's the Chair's decision to

         22        put off the issue of financing, then I would move to

         23        temporarily pass this.

         24             CHAIRMAN DOUGLASS:  It's not my decision.  There is

         25        an amendment made by Commissioner Barnett to delete


          1        everything except the provision for public financing of

          2        elections.  And that's what's before the house, the body.

          3             COMMISSIONER LANGLEY:  Mr. Chairman, my only problem

          4        with that is I don't want to get this married to bunch of

          5        other election financing.

          6             CHAIRMAN DOUGLASS:  So you rise in opposition to her

          7        amendment?

          8             COMMISSIONER LANGLEY:  No, I just want to remain pure

          9        in the judicial financing elections and no others.

         10             CHAIRMAN DOUGLASS:  So you favor her amendment?

         11             COMMISSIONER LANGLEY:  I'm thinking.  I will not

         12        oppose her amendment to my bill, but I don't want my bill

         13        married to a bunch of other public office financing.

         14             CHAIRMAN DOUGLASS:  It wouldn't necessarily be

         15        married to it, but the consideration would come in

         16        committee, which it has not.

         17             COMMISSIONER LANGLEY:  May I suggest this, if

         18        Commissioner Barnett would agree.  I would move so that we

         19        temporarily pass this bill and then it will be available

         20        later when we take up the vote.

         21             CHAIRMAN DOUGLASS:  Would you object then if this

         22        bill, or this proposal rather in its form that you have it

         23        before the body, you withdraw it with the understanding

         24        that the whole thing would be assigned to the ethics and

         25        elections committee?


          1             COMMISSIONER LANGLEY:  I think the motion would be I

          2        move the rules be waived and this proposal be referred to

          3        ethics and elections committee.

          4             CHAIRMAN DOUGLASS:  All in favor of Commissioner

          5        Langley's proposal say aye; no.

          6             (Verbal vote taken.)

          7             CHAIRMAN DOUGLASS:  Motion carries.  Okay.  We move

          8        to 115, Proposal 115.  Read it.

          9             READING CLERK:  Proposal 115, a proposal to revise

         10        Article V, Section 10, Florida Constitution, prohibiting

         11        judicial candidates from soliciting and accepting campaign

         12        contributions from members of The Florida Bar.

         13             CHAIRMAN DOUGLASS:  Commissioner Wetherington, this

         14        comes out of your committee but it was proposed by

         15        Commissioner Corr.  Would you like to make your

         16        presentation, Commissioner?  Commissioner Kogan.

         17             COMMISSIONER KOGAN:  It came before our elections and

         18        ethics committee yesterday and we considered it yesterday

         19        and it came out with an unfavorable recommendation.  I

         20        understand it's also in front of the judiciary committee

         21        so I don't know how you want to handle that.

         22             CHAIRMAN DOUGLASS:  It's on the calendar from the

         23        judiciary committee and it comes with an unfavorable --

         24        disapproved by the committee on ethics and elections.  It

         25        comes out of elections and ethics, you're absolutely


          1        right.  I'm sorry, but it doesn't go to judiciary.

          2             COMMISSIONER KOGAN:  They don't have it.

          3             CHAIRMAN DOUGLASS:  That's correct.

          4             COMMISSIONER KOGAN:  Okay.  All right.

          5             CHAIRMAN DOUGLASS:  And it's Commissioner Corr's

          6        bill.  Do you yield to him?

          7             COMMISSIONER KOGAN:  I yield to him to proceed.

          8             CHAIRMAN DOUGLASS:  You're telling us that your

          9        committee disapproved this bill?

         10             COMMISSIONER KOGAN:  Right.  Commissioner.

         11             COMMISSIONER CORR:  Thank you, Mr. Chairman.  That is

         12        correct.  The proposal was in front of both committees, it

         13        was disapproved by the committee on ethics and elections

         14        and then was in front of the judiciary which told me at

         15        the time that it was referred there by mistake.

         16             Is it in order at this time to go ahead and discuss

         17        it?  What this does is prohibit judicial candidates from

         18        accepting campaign contributions from lawyers that may

         19        appear before them.  In presenting this yesterday, I was

         20        saying that at least 50 percent of the contributions made

         21        to judicial candidates came from lawyers.  Hearing debate

         22        this morning and hearing it yesterday, I realize that that

         23        is even higher, maybe 90 percent or more.

         24             There is good reason to worry about, we've heard

         25        about this all morning, the actuality of appearance of


          1        bias in the courtroom as a result of this.  As one judge

          2        admitted during our public hearings, where the necessary

          3        campaign funds come from is always in the back of my mind.

          4             Obviously one of the major initiatives that we just

          5        passed will move in the direction of doing away with

          6        judicial elections altogether.  But this has still a lot

          7        of hurdles in front of it when it ultimately goes to the

          8        voters.  Asking voters to give up a right they already

          9        have obviously in 1978 approved, may be something that

         10        will never happen.  And then the view of voters that an

         11        appointed system is just dominated by major law firms or

         12        the media as another issue.

         13             So in the event that initiative does not pass, going

         14        to this election reform potential for judicial candidates,

         15        then we may have at least one step in the right direction

         16        if we were to pass this proposal.  Basically what we end

         17        up with is a system that retained elections of judges, but

         18        would not have contributions coming from lawyers that may

         19        appear before them.  It keeps the judges accountable to

         20        the electorate, it solves the issue or at least solves

         21        some of the issues with the potential for influence or

         22        bias in the courtroom and arguably has a better chance of

         23        passing and providing the needed reform that we heard

         24        during our public hearing process.  Thank you,

         25        Mr. Chairman.


          1             CHAIRMAN DOUGLASS:  First of all, does anybody have

          2        any questions?  Commissioner Langley.  Do you yield,

          3        Commissioner Corr?  He does.

          4             COMMISSIONER LANGLEY:  Commissioner Corr, a question.

          5        If they don't get it from lawyers, and 90 percent of the

          6        campaign contributions are from lawyers, who's going to

          7        finance the campaigns?  And as a question in conjunction

          8        with that, would this not just render the rich able to run

          9        for this office?

         10             COMMISSIONER CORR:  That is a point that was brought

         11        up in committee.  I think it's a valid one.  It may mean

         12        that we just have a system where rich people can be

         13        elected to office and then I would argue maybe even stupid

         14        rich people because they were willing to fund their

         15        election in the first place.

         16             But, given that, we would still move away from that

         17        potential for bias from getting those campaign

         18        contributions from lawyers that may appear before judges.

         19        I'd argue that a good, vigorous judicial candidate that

         20        got out into the county or the circuit that they were

         21        running in and met voters has the potential to raise the

         22        necessary campaign funds, if they took the initiative to

         23        do that, from entities other than lawyers.

         24             CHAIRMAN DOUGLASS:  Anybody -- first proponents.

         25        We're going to go in the right order from now on.  The


          1        proponents, if you want to speak for it, speak now or

          2        forever hold your peace.  All right, opponents.

          3        Commissioner Sundberg, you were something because you were

          4        trying to get up.  Which are you?

          5             COMMISSIONER SUNDBERG:  I had a question.

          6             CHAIRMAN DOUGLASS:  Beg you pardon?

          7             COMMISSIONER SUNDBERG:  I had a question.

          8             CHAIRMAN DOUGLASS:  Why didn't you say so?

          9        Commissioner Corr will yield to your question.

         10             COMMISSIONER SUNDBERG:  Commissioner Corr, have you

         11        considered just technically -- and I will take the

         12        opportunity to speak in opposition to it -- but my

         13        question is, are you aware that at least ethically now,

         14        under the Code of Judicial Conduct, that judges themselves

         15        are precluded from soliciting campaign contributions?

         16        They must ethically do it through a committee.  I'm not

         17        sure that your language addresses that.  It simply says a

         18        judge may not; a judge does not now.  And I'm not

         19        suggesting that's a cure-all and that lawyers are so

         20        stupid that they don't understand who wants the money when

         21        it's done through a committee, but I'm not sure you're

         22        curing the problem you want to cure.

         23             COMMISSIONER LANGLEY:  Mr. Chairman.

         24             CHAIRMAN DOUGLASS:  I don't think you need to respond

         25        to that unless you want to.  Okay, opposition,

                     DIVISION OF ADMINISTRATIVE HEARINGS (904) 488-9675


          1        Commissioner Langley.

          2             COMMISSIONER LANGLEY:  Just a question again of the

          3        sponsor and we don't mean to --

          4             CHAIRMAN DOUGLASS:  Another question.

          5             COMMISSIONER LANGLEY:  Just knowing the complication

          6        of legal minds, I think where you use the word "and" there

          7        ought to be "or".  Because I think as written I could

          8        either solicit or accept, the way it's written, and not

          9        violate yours because yours says I have to solicit and

         10        accept.  So I could have somebody else solicit and I'll

         11        accept or I can have somebody else accept and I'll

         12        solicit.  I don't know, maybe that was in committee too

         13        but I don't think you're curing the problem.

         14             COMMISSIONER CORR:  That's a good point.  If it's

         15        worth an amendment, if it will make a difference, then

         16        I'll take it.  But my gut feeling is it probably won't

         17        make a difference in the final analysis.

         18             CHAIRMAN DOUGLASS:  Commissioner Planas was next.

         19             COMMISSIONER PLANAS:  Yesterday I went ahead and

         20        voted against it in the ethics committee and I made a

         21        couple or two reasons there.  One of them I said was

         22        common sense since judges' friends mostly are lawyers.  So

         23        if you cannot go ahead and take a contribution from a

         24        friend, who are you going to take it from?  I hate to see

         25        that.  I hate to see Commissioner Morsani one day run for


          1        office and he cannot take it from dealers.  Those are his

          2        friends.  That's one of the reasons I do believe I oppose

          3        that.

          4             Number two, I would hate to see then who would be the

          5        contributors to judges.  I think that there is a good

          6        reason that lawyers could contribute and I stand for that.

          7        Thank you.

          8             CHAIRMAN DOUGLASS:  All right.  In opposition,

          9        Commissioner Morsani.

         10             COMMISSIONER MORSANI:  My good friend, Mr. Planas, I

         11        agree with him.  I think that to make a -- if it makes a

         12        statement that attorneys are trying to buy influence

         13        because they give to a campaign, I just don't believe

         14        that.  And I think that -- as he said, if I want to run

         15        for office, and I want all my fellow dealers to support

         16        me, I would expect them to do so, I would try to make that

         17        happen.  I'm opposed to it, I don't think it's good public

         18        policy, and I hope we would vote it down.

         19             CHAIRMAN DOUGLASS:  Any other opposition?

         20        Commissioner Zack.

         21             COMMISSIONER ZACK:  I think it's important to note

         22        for the record that lawyers can't give more than $500

         23        under any circumstances.  And that hasn't been said by

         24        anybody in here.  In judicial campaigns, which are

         25        thousands and thousands in Dade County, hundreds and


          1        thousands of dollars, you can't assume that a $500

          2        donation is going to really do anything, frankly.  If that

          3        is your concern as far as judges being influenced, I just

          4        think the practicality is that it just doesn't happen

          5        based on the system as it exists today.

          6             If in fact you had what this proposal suggests in

          7        place I think you also have friends and families of

          8        lawyers who are going to ask those lawyers who appear in

          9        front of those judges; are they good, are they competent,

         10        are they on time, are they just.  And you're going to have

         11        the same result anyway.  So for that and other reasons

         12        we've discussed before, I'm opposed to it.

         13             CHAIRMAN DOUGLASS:  Commissioner Barnett in

         14        opposition.

         15             COMMISSIONER BARNETT:  Thank you, Mr. Chairman.  This

         16        proposal raises a lot of problems for me, but one of them

         17        that has not been discussed is I believe this proposal

         18        would be unconstitutional under our U.S. Constitution,

         19        First Amendment free speech right.  And I just raise that

         20        for those of you who may be interested in that.

         21             Secondly, I think there is a misperception about why

         22        lawyers give contributions to judge.  First, I'm with a

         23        large law firm.  I'm with one of those large law firms

         24        that people keep talking about.  And I can tell you that

         25        we are very, very circumspect about any campaign


          1        contributions to judicial candidates, not because we don't

          2        believe it's important for all of us, whether we are

          3        lawyers or not, to participate in the whole election

          4        process.  I think that's part of a citizen's right to

          5        contribute to candidates for office if they are good

          6        public servants.

          7             But it's because of the appearance of impropriety and

          8        a concern that there would be an appearance of impropriety

          9        if we as a firm collected a lot of money, bundled it and

         10        gave it to a candidate or even if we as individual lawyers

         11        regularly gave the maximum, which Commissioner Zack said

         12        was $500.

         13             So in those occasions, and they are frankly rare when

         14        you look at the number of lawyers we have and the number

         15        of circuits we work in, in those occasions where we do

         16        make campaign contributions to judges it's usually a very

         17        small amount.  And it's because of the recognition that

         18        sometimes it does take money to have an election.

         19             Some of the financing issues of campaigns, frankly,

         20        are why I support -- one of the reasons I strongly support

         21        merit retention of all judges, to avoid the impropriety,

         22        the appearance of impropriety, and the need.  But I just

         23        wanted to raise those two points; first the constitutional

         24        issue and then second to respond from a member of one of

         25        the large law firms.


          1             CHAIRMAN DOUGLASS:  All right.  This is in

          2        opposition.  Do you yield to Commissioner Connor?

          3             COMMISSIONER BARNETT:  Yes.

          4             COMMISSIONER CONNOR:  I do have an inquiry.

          5        Commissioner, why would a prohibition against lawyers

          6        contributing to a judicial campaign, in an effort to

          7        enhance the public confidence in the administration of

          8        justice, be any more violative of a gag rule which would

          9        prevent a judicial candidate from speaking to issues, any

         10        more violative of the First Amendment?

         11             COMMISSIONER BARNETT:  I don't know that the, quote,

         12        gag rule -- which I reject that characterization, frankly,

         13        of that proposal -- I don't think they are the same issue

         14        at all.  But when we get to the gag rule, we can talk

         15        about the cases that have addressed the First Amendment

         16        issues related to the types of issues that judges or

         17        candidates for judicial offices can comment on.

         18             The question with regard to campaign contributions

         19        and limiting individuals' rights or prohibiting

         20        individuals' rights to make campaign contributions is an

         21        entirely different issue I think under the U.S.

         22        Constitution and certainly raises First Amendment

         23        questions.

         24             CHAIRMAN DOUGLASS:  All right.  Any other opposition?

         25        Commissioner Sundberg.


          1             COMMISSIONER SUNDBERG:  In opposition, Mr. Chairman.

          2        Commissioner Corr, I have seen this movie, I ran in the

          3        last popular election for the Supreme Court of Florida,

          4        the statewide election.  And it's a long way from

          5        Pensacola to Key West.  It is very difficult to fund a

          6        judicial race.

          7             If you preclude lawyers from contributing, what

          8        you're doing is saying those people presumably who are

          9        most qualified to assess the qualifications of the judge,

         10        and his or her ability to serve or to continue to serve,

         11        are precluded.  So where does then a judicial candidate

         12        go?

         13             Well, if I were running, I guess, a campaign -- and,

         14        of course, these are all the evils that are inherent in

         15        the popular election of judges because judges do not and

         16        should not have a constituency.

         17             Let me tell you, since talking anecdotally about

         18        large law firms control who gets appointed, anecdotally at

         19        the time I was appointed to the court I practiced in a

         20        firm of three lawyers.  I never gave and never have given

         21        a dime to the Governor who appointed me.  Insofar as media

         22        support, they didn't have the slightest idea who I was

         23        much less for them to support my candidacy for the court.

         24             But I tell you, where do you go for those

         25        contributions?  You say, Don't go to lawyers.  And if you


          1        get out and hustle, you can raise these funds elsewhere.

          2             Well at the time I had to run in 1976, one of the

          3        most critical issues before the court at that time had to

          4        do with recreation leases and the validity of those

          5        leases.  And there were associations of condominium owners

          6        who were violently opposed to the validity of those leases

          7        because they were an annuity to a developer.

          8             On the other hand, you had associations of developers

          9        who were totally in favor of them.  That was an issue

         10        before the court.  So a pretty logical place for me to go

         11        raise funds would have been to the condominium owners and

         12        the developers, wouldn't it, because they had a stake in

         13        the action.  They would have had an interest.  I'm not

         14        sure that it's a very wholesome interest they would have

         15        in that judicial election.  Hence -- and this goes to the

         16        gag rule.  And, I'm sorry, because you keep mixing that

         17        in, too.  And I, like Commissioner Barnett, reject that

         18        characterization.

         19             It is very difficult, very difficult to say it is

         20        appropriate for a judicial candidate to go out and take

         21        positions.  If I want to develop a constituency to raise

         22        money and for support, I go after all the labor unions and

         23        I say, Look, I am pro labor and I want you to understand

         24        I'm pro labor, hence, you are to contribute to my

         25        campaign.  So what happens when an issue comes to the


          1        court involving a labor management issue?  Aren't I

          2        obliged to go ahead and vote in favor of the labor unions

          3        on that issue?  This is all in the same ball of wax.

          4             It all stems from electing judges, and as long as the

          5        people, and they have the right to choose to elect their

          6        judges, I think that's a wrong decision.  But as long as

          7        they exercise that decision, then you have to take what

          8        comes with it.  And what comes with it is the necessity to

          9        raise money to mount a campaign to either seek that office

         10        or to remain in that office once elected.  So I speak in

         11        opposition to your proposal.

         12             CHAIRMAN DOUGLASS:  Any other opponents?  Do you want

         13        to close, Commissioner Corr?

         14             COMMISSIONER CORR:  Thank you, Mr. Chairman.  I just

         15        close by thanking those like Commissioner Sundberg and

         16        others that have more experience in this than I do for

         17        your comments.  I think we've probably heard enough on

         18        this.  The intent is to get at some reform in the judicial

         19        election process, given the potential for merit retention

         20        and selection not to be passed on the ballot.  And I'll

         21        just ask for your favorable consideration here.  Thanks.

         22             CHAIRMAN DOUGLASS:  All right, let's vote.

         23             (Vote taken and recorded electronically.)

         24             CHAIRMAN DOUGLASS:  Has everybody voted?  Okay.

         25        Announce the vote.


          1             READING CLERK:  Seven yeas and 27 nays, Mr. Chairman.

          2             CHAIRMAN DOUGLASS:  Well I understand that Proposal

          3        61, the amendment has been prepared, Commissioner Brochin.

          4        Before we break for lunch, do you want to bring that up

          5        and then we'll revert to that on the special order.  Is

          6        that agreeable, Commissioner Barkdull?

          7             COMMISSIONER BARKDULL:  Yes, sir.

          8             CHAIRMAN DOUGLASS:  Incidentally, after this, we're

          9        going to have a couple of introductions and the

         10        opportunity for anybody that didn't vote on the -- was out

         11        of the chamber.  I understand one or two people were out

         12        of the chamber when we voted on the proposal on merit

         13        retention.  They will have the opportunity either then or

         14        after lunch to record their vote with the unanimous

         15        permission of the group.  So we'll do that.

         16             But first we'll go to Commissioner Brochin's

         17        proposal.  Commissioner Brochin.  This is Proposal 61 in

         18        your packet.

         19             COMMISSIONER BROCHIN:  Proposal 61, as I understand

         20        it, is the proposal for merit retention for both circuit

         21        and county court judges.  The amendment that I've prepared

         22        and placed on the desk, I believe, offers that to only

         23        allow for merit retention for the circuit court judges,

         24        but not merit retention for the county court judges.

         25             And I did it for two reasons.  And one is to offer


          1        another alternative to the merit retention issue in the

          2        form of a compromise.  The opt in provisions, opt out

          3        provisions, county/circuit court provisions we just

          4        passed, fairly convincingly, was a compromise, as I

          5        understand it, to those who both favor merit retention and

          6        oppose merit retention.  And the compromise was offered as

          7        a way of letting the people decide.  I found that to be an

          8        unacceptable compromise for the Constitution.

          9             This, I would submit to you, is a compromise of

         10        sorts, but it is a compromise that I believe is acceptable

         11        for placement in the Constitution because it still

         12        maintains the fundamental consistency throughout the state

         13        of how we select our judges.  And that is, we would select

         14        our judges by merit retention for the circuit, the

         15        appellate and Supreme Court judges, and leave for the

         16        county courts to be elected.

         17             There is also the second point would be, I believe,

         18        there's a reason for that.  Much of what I have heard as

         19        to why we should elect judges deals with the closeness to

         20        the people and the ability to respond.

         21             First of all, I don't think the judicial branch of

         22        government is a representative body.  I don't think its

         23        function is to respond to the majority will of the people.

         24        That is a very, very fundamental concept that we either

         25        need to accept or reject, but it all stems from that.


          1             Because if you believe the judicial branch of

          2        government is a representative body that should respond to

          3        the people's will, then election of judges may be the

          4        proper way to go.

          5             If you don't believe it's a representative body and

          6        its purpose as the judicial branch of government is to

          7        protect the Constitution and to give each and every

          8        individual the fair and equal chance that they have before

          9        the law, then the question isn't whether it's a

         10        representative body; the question is how can we put the

         11        best people to perform that function in the judicial

         12        branch of government?  Not to depoliticize it, but what

         13        system do we have, in light of the amendments dealing with

         14        freedom of speech, freedom of association, campaign

         15        financing, what system can we come up with that will place

         16        people in the judicial branch that will properly fulfill

         17        that function.

         18             The distinction between a circuit court judge and a

         19        county court judge at least begins to make that

         20        distinction by saying that county courts, jurisdictionally

         21        wise, deals with some issues that people appear for them

         22        often without lawyers, often on issues that are very

         23        personal to them, as most issues are, but county court has

         24        jurisdiction on matters under I think it's $15,000.  It

         25        has jurisdiction of landlord/tenant matters, traffic court


          1        matters, matters where people appear before the courts, as

          2        I mentioned, often without counsel.

          3             So although I think and still believe merit retention

          4        is the appropriate way to go uniformly, this at least

          5        gives us the opportunity for a compromise of sorts which

          6        hopefully yields the best result without doing violence in

          7        my mind to the way you select your judicial branch judges.

          8             We often say, Let the people decide.  And it's a cry

          9        that I'm going to try to avoid because it's an easy one in

         10        my opinion.  Everything we are doing ultimately we can

         11        always say, Let the people decide, because that is exactly

         12        what is going to happen.  So whether you're taking away

         13        the election of judges or whether you're maintaining it, I

         14        don't think the issue is whether the people should decide

         15        because ultimately they will.  This is their Constitution.

         16        Our purpose is to propose one that's better in our minds.

         17             And to me, this area needs attention in the state, it

         18        needs amendment in the state, it needs improvement.  And

         19        to argue that it's just a matter of whether the people

         20        decide or not in some ways shirks our responsibility.

         21             So I offer this amendment to the pure merit retention

         22        selection system that Proposal 61 is as a way to hopefully

         23        convince some of you that maybe this is a proper

         24        compromise to let the people decide on a better way for

         25        our Constitution to function.  Thanks.


          1             CHAIRMAN DOUGLASS:  All right.  The amendment, would

          2        you read the amendment?

          3             READING CLERK:  By Commissioner Brochin, on Page 1

          4        Line 16 through Page 3 Line 4, delete those lines and

          5        insert lengthy amendment.

          6             CHAIRMAN DOUGLASS:  Everybody understand the

          7        amendment?  Anybody want to speak as a proponent?  Any

          8        questions of the proposer?  Anybody want to speak as an

          9        opponent?

         10             I have a question.  If you should adopt -- if the

         11        commission should adopt this, how would you propose

         12        putting it on the ballot; vote for one or the other but

         13        not both?

         14             COMMISSIONER BROCHIN:  No, the amendment as prepared

         15        is actually fairly simple.  It just adds circuit court

         16        judges to the current merit retention system.

         17             CHAIRMAN DOUGLASS:  Okay.

         18             COMMISSIONER BROCHIN:  In other words, now we have

         19        the Supreme Court, the appellate court, this would just

         20        add the circuit court.

         21             CHAIRMAN DOUGLASS:  If the people pass the other

         22        proposal, then it would still be opt in/opt out.

         23             COMMISSIONER BROCHIN:  Well, I'm assuming at some

         24        point in time we will look at this whole thing in a

         25        holistic way and the inconsistencies that we're passing


          1        out, not just today but prior to today, will be rectified

          2        before we --

          3             CHAIRMAN DOUGLASS:  We will do that when we have our

          4        style and drafting.  All right.  If you're ready to vote

          5        on this, we will.  Commissioner Morsani, you rise.

          6             COMMISSIONER MORSANI:  Maybe I'm confused; I hope

          7        nobody else is.  The one we already passed, Amendment 66,

          8        if 66 flies --

          9             CHAIRMAN DOUGLASS:  Let me try.

         10             COMMISSIONER MORSANI:  -- then this isn't applicable.

         11        But we're going to pass this or, pardon me, your

         12        recommendation is that you pass this not in lieu of 66, or

         13        whatever the number was, and then you're suggesting then

         14        that drafting take all this and put it in the same --

         15        obviously I'm confused.

         16             COMMISSIONER BROCHIN:  And the process we're going

         17        through merits your confusion.

         18             CHAIRMAN DOUGLASS:  Let me save a little time.

         19             COMMISSIONER BROCHIN:  Proposal 66 that we passed is

         20        inconsistent with this proposal.  We could not have both

         21        proposals presented to the people because they would be

         22        inconsistent and hopelessly everyone would be confused.

         23             But as I understand the process of what we're going

         24        through now is by majority vote we are sending certain

         25        proposals to style and drafting that will ultimately all


          1        come back to us for a second, and I hope third and fourth,

          2        look at a constitutional document that we will ultimately

          3        submit to the people.

          4             We have already passed inconsistent proposals and

          5        sent them out by majority because, quite frankly, it will

          6        depend on the makeup of this commission from day to day.

          7        And a majority can be gathered differently depending on

          8        who's here and the thought process of the commission.  But

          9        ultimately, as I understand it, we're going to have to

         10        weed out those that are inconsistent and vote on the

         11        entire document at some point in time.

         12             CHAIRMAN DOUGLASS:  All right.  I'm going to rule

         13        that this particular proposal as amended is out of order

         14        in view of the fact that we just passed another proposal

         15        that's on the same subject.  On the other hand, I would

         16        like to entertain a motion to leave it pending for further

         17        consideration.  Commissioner Brochin.

         18             COMMISSIONER BROCHIN:  I think it's inconsistent; I

         19        agree with the premise.  What I don't understand is why on

         20        this one you decided it's inconsistent, hence it should be

         21        pending when we have passed inconsistent --

         22             CHAIRMAN DOUGLASS:  Okay.  We will vote on it.

         23        That's the best way to handle that so I won't rule.  I'll

         24        withdraw my ruling, and if you're ready to vote, we'll

         25        vote.  This is on the amendment first.  Everybody that's


          1        in favor of the amendment say aye; no, no.

          2             (Verbal vote taken.)

          3             CHAIRMAN DOUGLASS:  It is amended.  Now on the

          4        proposal as amended, we will now vote.  Clear the

          5        machine -- no, we don't have to clear the machine.

          6        Everybody vote.  Has everybody voted?

          7             (Vote taken and recorded electronically.)

          8             READING CLERK:  Eleven yeas and 22 nays,

          9        Mr. Chairman.

         10             CHAIRMAN DOUGLASS:  Let me suggest I have entertained

         11        a motion to allow the votes of Commissioner Hawkes and

         12        Commissioner Thompson to be recorded on Proposal 61, merit

         13        retention, they were out of the room.  And Commissioner

         14        Hawkes votes yes and Commissioner Thompson votes no.  I'd

         15        like unanimous approval to allow that to be recorded in

         16        the vote.  Without objection it will be so recorded.

         17             All right.  Now there are a couple of other things I

         18        wanted to do before we break for lunch.  Number one, I

         19        want to introduce two fine lawyers that are now on our

         20        staff, if you'll give me just a second, sir.  Deborah

         21        Ben-David who is here.  She comes to us from Justice

         22        Grimes where she was his clerk and assistant.  And she is

         23        working as assistant or deputy general counsel.  There she

         24        is over here.  And the other lawyer that is now with us

         25        comes to us from the Attorney General's Office where she


          1        received great training from Commissioner Butterworth,

          2        Chris Martinez, who is now with us part-time as counsel.

          3             We're going to invite the pages to have lunch today

          4        and a separate facility will be provided for your lunch,

          5        pages.  And someone from the staff will take care of that.

          6        Now without -- I'll entertain a motion that we adjourn for

          7        lunch and we'll reassemble at 12:30.

          8             COMMISSIONER BARKDULL:  I'd so move, Mr. Chairman.

          9        And I'd like to put the commission on notice, right after

         10        lunch I'll call up the motion to reconsider 87.

         11             CHAIRMAN DOUGLASS:  Very well.  We will then adjourn,

         12        lunch is in the back, and we will reassemble at 12:30,

         13        reconvene.

         14             (Lunch recess from 11:50 a.m. to 12:30 p.m.)

         15             SECRETARY BLANTON:  All commissioners indicate your

         16        presence; all commissioners indicate your presence.

         17             (Quorum taken and recorded electronically.)

         18             SECRETARY BLANTON:  A quorum is present,

         19        Mr. Chairman.

         20             CHAIRMAN DOUGLASS:  All right, if you'd come to

         21        order, please.  Commissioner Barkdull, you announced you

         22        wanted to bring up the motion to reconsider that you

         23        filed.

         24             COMMISSIONER BARKDULL:  It's proposition 87 which

         25        creates a magistrates court.  I'd like to move it be


          1        reconsidered at this time.

          2             CHAIRMAN DOUGLASS:  All right.  The motion to

          3        reconsider is not debatable and if you want to reconsider

          4        it and it is voted to reconsider, then you revert to the

          5        motion and then it can be debated, amended or whatever.

          6        So understand that this is on the motion to reconsider.

          7        And all those in favor of reconsidering Proposal 87,

          8        please signify by voting yes; and those opposed, no.

          9             Now this is a motion to reconsider.  If you want to

         10        reconsider, you vote yes.  We're reconsidering Proposal 87

         11        which was to create magistrates courts.  Be sure, if you

         12        want to reconsider -- then there will be debate on the

         13        motion.

         14             (Vote taken and recorded electronically.)

         15             CHAIRMAN DOUGLASS:  All right.  Close the machine.

         16             READING CLERK:  Fifteen yeas and 12 nays,

         17        Mr. Chairman.

         18             CHAIRMAN DOUGLASS:  All right.  We revert to the

         19        motion, the motion to reconsider Proposal No. 87,

         20        Commissioner Barkdull.

         21             COMMISSIONER BARKDULL:  Mr. Chairman, members of the

         22        commission, this is a proposal that was offered by

         23        Commissioner Wetherington that in effect creates an

         24        additional trial court in Florida.  I voted in the

         25        affirmative when I saw what was going to happen with it in


          1        order that we could put it on reconsideration and some of

          2        us could have a little time to think about it.

          3             After thinking about it, I've come to the conclusion

          4        that all this does is add another trial court which we

          5        don't need.  We spent 30 years trying to get rid of 27

          6        different types of trial courts in the state.  We've given

          7        the Legislature absolute flexibility as to where they can

          8        put jurisdiction.  All the jurisdiction is laid in the

          9        circuit court unless the Legislature puts it in the county

         10        court.

         11             The Legislature has, over the years, changed the

         12        jurisdiction of the county courts in a number of

         13        instances.  They have raised the monetary amount to

         14        15,000; they have given the county courts the authority to

         15        handle certain types of equity matters and matrimonial

         16        matters.  And there is nothing that prevents the

         17        Legislature from creating a division either in the county

         18        court or in the circuit court to do what I understand

         19        Commissioner Wetherington has pointed out is a problem as

         20        to how they handle certain matrimonial or domestic matters

         21        to be in conformity with some federal legislation.

         22             I don't know how creating an additional court is

         23        going to add anything to the authority that the

         24        Legislature already has to adjust jurisdiction between

         25        either the county court or the circuit court.  And if they


          1        want to name a special division, a division of

          2        magistrates, to consider domestic matters, I don't think

          3        it amounts to a hill of beans as far as what the title is

          4        concerned.

          5             The problem is who's got the power.  And the power

          6        will either be in a circuit judge or in a county judge.

          7        This can be accomplished by legislation; it does not need

          8        to be an entirely separate Constitutional court which we

          9        would have to organize and staff.  And I urge you to

         10        defeat this proposal.

         11             CHAIRMAN DOUGLASS:  I guess we should have the clerk

         12        read the proposal again so we know where we are.

         13             READING CLERK:  Proposal 87, a proposal to revise

         14        Article V, Section 1, Florida Constitution, allowing the

         15        Legislature to establish by general law a system of family

         16        magistrates.

         17             CHAIRMAN DOUGLASS:  All right.  We're just as if

         18        we're on it brand new.  So the proponents will be heard

         19        from first.  Commissioner Wetherington.

         20             COMMISSIONER WETHERINGTON:  Let me first address a

         21        major concern of Commissioner Barkdull and take a slight

         22        disagreement on the law with Commissioner Barkdull.

         23             If it were true that the Legislature could establish

         24        what we now call general masters and child enforcement

         25        hearing officers and solve the problem, obviously, I


          1        wouldn't have submitted the proposal.  We won't want to

          2        put something in the Constitution that the Legislature can

          3        do by themselves.

          4             The problem is this, legally, based on decisions of

          5        the Supreme Court of Florida, it's been specifically held

          6        that with respect to masters, and the same would apply to

          7        hearing officers, family court hearing officers, matters

          8        such as visitation, matters such as child support or maybe

          9        past due child support that comes up post-judgment, all

         10        matters of any kind, no matter how small or how large,

         11        cannot be referred to a master without the consent of the

         12        parties.  That means without the affirmative consent of

         13        the parties, you can't refer any of these matters out.

         14             Now that causes a problem in the following sense.

         15        Number one, we are under pressure from the federal court

         16        to provide expedited hearings on these matters.  And the

         17        number of pro se litigants that are coming up and raising

         18        these matters is increasing constantly.  So there isn't

         19        any question that the courts need some help.  That's why

         20        in 16 of the counties we have the general master system

         21        that we have and there were like 7,600 hearings heard last

         22        year.

         23             So the problem is simply this, unless -- and it's not

         24        a separate court.  This is simply an adjunct to the

         25        circuit court, which presently exists, which we have now.


          1        Unless there is some constitutional status, Article V

          2        status, to these judicial assistants -- we can call them

          3        magistrates, we can call them hearing officers -- then

          4        these emergency referrals that come out, which can include

          5        domestic violation, they can include visitation, they can

          6        include post-decretal child enforcement, none of these

          7        matters technically can be referred out without going

          8        through a consent system that's, frankly, extremely

          9        burdensome and capable of dramatically impairing the

         10        effectiveness of these judicial, quasi-judicial officers.

         11             So the idea is very simple.  As we did, although it's

         12        a different problem with the traffic court hearing

         13        officers, there is a provision allowing the Legislature to

         14        give jurisdiction and authority to traffic court hearing

         15        officers.  This is not another court; this is simply an

         16        adjunct to the circuit court.

         17             Allowing the Legislature to do this would simply

         18        allow them to establish procedures and qualifications and

         19        decide what matters can be referred without consent, if

         20        necessary, to comply with federal regulations or to assist

         21        the court on small matters, and what matters can be

         22        referred with consent and in order to help the courts of

         23        our state, not only now but in the future, with respect to

         24        an area in the law that's continuing to expand and

         25        particularly with the impact of the pro se litigants


          1        continuing to become more problematic.

          2             This is an area where we have to have speedy justice,

          3        like we have to do in the criminal law.  We can't have

          4        interminable delays on these important decisions, which

          5        can occur because we're not going to get a tremendous

          6        number of increases in judges in the future, if the past

          7        foretells the future.  We're not going to get all the

          8        judges that we need to do all this work without the

          9        assistance of other professionals.

         10             I agree, I'm in favor of Article V, and I'm not

         11        interested in creating other courts.  I would be against

         12        creating other courts.  I would be against putting this in

         13        the Constitution if it could be done by the Legislature.

         14        I would never suggest that.  But because there are these

         15        Florida Supreme Court holdings, which I think are sound,

         16        and this goes way back to the history of the master, which

         17        goes back into the 14th Century, masters have been there

         18        helping the court of equity since the 14th Century, it's a

         19        well-established part of our system.

         20             And the only reason why there has to be anything in

         21        the Constitution is because of these decisions that have

         22        been rendered, correctly, by the Florida Supreme Court in

         23        this area.

         24             The sole purpose of this proposition is to provide a

         25        basis in the future for our family courts to be able to


          1        handle this increasing volume of difficult problems under

          2        the supervision and regulation, because in every instance

          3        there is the right of review that can be established, and

          4        I would expect would be established by the Legislature,

          5        for any of these decisions.

          6             There's a right to vacate any decision in ten days.

          7        But you could initially refer these emergency matters out

          8        without the consent of the parties.  You could comply with

          9        the federal regulations, you're not creating an additional

         10        court system, in my humble opinion.  And you can't do it

         11        without some recognition in the Constitution.

         12             So that's the purpose of it and in my view,

         13        respectfully, Judge Barkdull, that's the legal basis upon

         14        which I'm proceeding.  And if I didn't feel that that

         15        basis was needed, there is no way in the world I would put

         16        something like this on the table.

         17             CHAIRMAN DOUGLASS:  I might point out that this was

         18        amended and we didn't state that at the outset it was

         19        amended and what was deleted was the proposal,

         20        Commissioner Wetherington's original proposal had, or the

         21        Supreme Court may establish these magistrates.  And that's

         22        been deleted from the proposal at the previous meeting.

         23             Now, do you have questions first?  Commissioner

         24        Morsani.

         25             COMMISSIONER MORSANI:  I would like very much to hear


          1        from the Chief Justice Kogan and Attorney General

          2        Butterworth, the two leading people in the judiciary of

          3        our state, on their opinions, please.

          4             CHAIRMAN DOUGLASS:  Well I think now that you

          5        buttered them up pretty good, by virtue of their titles

          6        they are entitled to that respect, I would think.

          7        Commissioner Kogan.

          8             COMMISSIONER KOGAN:  Let me say this, I agree

          9        completely with Commissioner Wetherington on this

         10        particular point.  I have had constant communication from

         11        the larger urban areas that say these are a necessity,

         12        especially from Dade County that has a tremendous caseload

         13        and really need something like this to help the system

         14        function more efficiently.  So that's the best I can say,

         15        Frank, to your inquiry.

         16             CHAIRMAN DOUGLASS:  That's Commissioner Morsani,

         17        Commissioner Kogan.  I mean, I realize he was nice to you.

         18             (Laughter.)

         19             COMMISSIONER KOGAN:  Commissioner Morsani.

         20             CHAIRMAN DOUGLASS:  Now Commissioner Butterworth.

         21             COMMISSIONER BUTTERWORTH:  Since the Chief Justice

         22        already spoke, I will agree with his comments.

         23             CHAIRMAN DOUGLASS:  That's unusual.  Are you sure you

         24        don't want to reconsider?

         25             COMMISSIONER BUTTERWORTH:  Mr. Chairman, I do believe


          1        this is something that is needed, definitely in the areas

          2        such as Dade County.  I think it's a very good program.

          3        If in fact it can be done right now, I think the

          4        Legislature should do it.  I come down on the side I

          5        believe it can be done now, but the Chief Justice is

          6        saying that it cannot be; obviously my opinion is just one

          7        lowly opinion.

          8             CHAIRMAN DOUGLASS:  I don't want to preclude this,

          9        but since you are up, I want to ask you one question on

         10        this.  Couldn't you create this same situation by using

         11        the county judges, the existing judges, by designating a

         12        division of the county court and having those judges

         13        fulfill these functions under existing law?

         14             COMMISSIONER BUTTERWORTH:  I would assume the Supreme

         15        Court would have the authority to make them acting circuit

         16        judges in order that this work get done.  They're already

         17        authorized to do it now.

         18             The issue is one which is of utmost importance.  My

         19        office does a lot of child support enforcement and also in

         20        the area of dependency.  And really there is no greater

         21        need in the court system than additional personnel to

         22        handle these matters.  If in fact the only way to do it is

         23        through a constitutional amendment, I would be in favor of

         24        it, but I do believe it could be done now.  But the chief

         25        justice is saying no.


          1             I know full well that if it goes before the court, we

          2        can save a lot of time I guess by -- I don't know.  But

          3        thank you very much for the nice comments.

          4             CHAIRMAN DOUGLASS:  Commissioner Barkdull.

          5             COMMISSIONER BARKDULL:  Mr. Chairman, members of the

          6        commission, what Commissioner Wetherington pointed out --

          7             CHAIRMAN DOUGLASS:  Wait a minute, I have got to have

          8        the proponents first, I think.  Are there other

          9        proponents?

         10             COMMISSIONER ZACK:  Yes.

         11             CHAIRMAN DOUGLASS:  Commissioner Zack.

         12             COMMISSIONER ZACK:  I have a question for

         13        Commissioner Wetherington.  Would these magistrates also

         14        be assigned the rank and file divorce type cases or are

         15        these just -- I'm not clear in my mind exactly what would

         16        be the responsibility, when the parties would have their

         17        opportunity to object and therefore insist on a circuit

         18        judge, which counties it would apply to as a local option

         19        type decision where it's needed.  I'm unclear about how

         20        this would actually go into effect.

         21             I'm very much opposed to any additional layering of

         22        the courts.  But by the same token if there is a need that

         23        can't be met, I'm concerned about that.  So if you could

         24        respond to some of those questions, I'd appreciate it.

         25             COMMISSIONER WETHERINGTON:  Of course.  It can be


          1        anything the Legislature -- I'll start by saying it can be

          2        anything the Legislature ultimately elects it to be, but

          3        what I would envision would probably be something like

          4        this.

          5             On emergency matters, on visitation matters, for

          6        example, maybe temporary child support matters, on

          7        post-judgment child support enforcement matters or

          8        visitation matters that come up.  Now these matters could

          9        be referred to magistrates without the consent of the

         10        parties but subject ultimately to review by a circuit

         11        judge.  This gets you a quick hearing, this satisfies the

         12        requirements insofar as the federal government is

         13        concerned concerning expedited hearing on child support

         14        and visitation matters with respect to any other matters

         15        in law along the line.

         16             For example, the parties might want to stipulate to a

         17        magistrate doing the final hearing, which they do

         18        frequently with masters, with general masters.  In those

         19        matters, then the consent of the parties would be

         20        considered.  In other words, for anything dispositive, and

         21        significant, determinative decisions, that would be

         22        subject to the consent of the parties.

         23             But on emergency matters, on routine matters, on

         24        visitation, on enforcement of child support or maybe

         25        domestic violence where frequently we need a quick


          1        hearing, these matters would simply be able to be referred

          2        to the magistrates, they could hear them, enter a

          3        decision.  The decision is subject to review.

          4             But we found, for example, that our exception rate in

          5        Dade County from the masters' decisions is only about

          6        2 percent.  So only about 2 percent of the time are we

          7        getting exceptions.  So basically it's the more routine

          8        things, the emergency matters, the child support matters

          9        that can be referred out.  Anything other than that would

         10        require the consent of the parties.  That's basically the

         11        way I think the system should be worked.

         12             Ultimately this would all have to be determined by

         13        the Legislature.  They would decide what the magistrates

         14        could hear and what they couldn't hear and that would be

         15        based upon their evaluation of the considerations of when

         16        consent in other matters should be needed and when consent

         17        should be dispensed with in order either to meet the

         18        federal guidelines or to help the court expedite the

         19        caseload.

         20             Did I answer all the -- was there anything else that

         21        I missed?

         22             CHAIRMAN DOUGLASS:  Commissioner Thompson.

         23             COMISSIONER THOMPSON:  I had a question, if he will

         24        yield.

         25             COMMISSIONER WETHERINGTON:  Yield.


          1             COMISSIONER THOMPSON:  Thank you.  I'm not clear as

          2        to how these magistrates would be selected.

          3             COMMISSIONER WETHERINGTON:  The method of

          4        selection -- the method of selection, the qualifications

          5        and all that would be established by the Legislature.

          6             COMISSIONER THOMPSON:  The reason I asked that is we

          7        spent the better part of the morning talking about it on

          8        judicial officers that we've all been familiar with for

          9        years and so I thought it might be relevant and still

         10        think it is because I think, if I understand this, my next

         11        question is you can't do this now other than in an

         12        advisory capacity; is that correct?

         13             In other words, these magistrate or special masters'

         14        reports now have to come to someone who is selected,

         15        pursuant to the Constitution, by the voters or under the

         16        merit selection process before there is some binding

         17        decision on the litigants; is that correct?

         18             COMMISSIONER WETHERINGTON:  The way it works is this,

         19        if the court wants to refer a matter out, whether it is a

         20        small matter or large matter, to a master, the court has

         21        to get the affirmative consent of the parties.  If the

         22        parties give their affirmative consent, the master could

         23        hear the matter and the master's finding of fact has the

         24        same weight that a jury verdict has.  The master's

         25        recommendations of law are not in any way binding.


          1             If the parties disagree with the finding of the

          2        master, they have ten days in which to file exceptions to

          3        the trial judge.  The circuit judge will then hear those

          4        exceptions and will either overrule those exceptions or

          5        sustain those exceptions.  That's the way the system works

          6        now.

          7             Nothing can be referred out, regardless of whether

          8        it's child support, child support enforcement, visitation,

          9        either before they enter the final judgment or after they

         10        enter the final judgment, without going through the

         11        consent process.

         12             What you could do under the new system that you can't

         13        do constitutionally now, is the Legislature could decide

         14        that maybe matters of visitation, maybe matters of

         15        temporary child support, maybe matters of collecting child

         16        support after judgment could be referred to magistrates,

         17        subject to the ability to go back to the judge -- it would

         18        be a binding decision subject to being able to go back to

         19        the judge in ten days and ask to vacate that particular

         20        judgment, which you would not have to have the pre-consent

         21        procedure to go through.  That's constitutionally what you

         22        could do under the new system that you can't do under the

         23        present system.

         24             CHAIRMAN DOUGLASS:  You have the floor, Commissioner

         25        Thompson.


          1             COMISSIONER THOMPSON:  Thank you.  I don't understand

          2        all you just told me about it, but what I'm concerned

          3        about, let me express my concern because I don't even have

          4        this measure in front of me.

          5             You referred to ten days where somebody who was

          6        selected with some remote connection to the voting public

          7        would have some say-so over whether or not this decision

          8        was binding on these parties because right now they have

          9        to consent before they get into that process.  We're going

         10        to allow, by legislative creation, them to be exposed to

         11        that process without their consent --

         12             COMMISSIONER WETHERINGTON:  That's correct.

         13             COMISSIONER THOMPSON:  -- and what you're saying is

         14        then when the decision is made by somebody that is

         15        selected by somebody, we don't know exactly how at this

         16        point, but somebody is going to set up these folks and

         17        designate who's hearing all this, they are going to make

         18        these decisions, and then they're going to come back and

         19        just -- we're going to have an appeal in ten days from the

         20        date that the master makes their report on just the facts

         21        or just the law or both or -- am I following you in any

         22        way?

         23             COMMISSIONER WETHERINGTON:  Yeah, up to a certain

         24        point you are.  But the answer is this:  The magistrates,

         25        for example in Dade County, to take an example, have been


          1        selected by the court, their rating on The Bar polls, they

          2        have an average rating of 87 percent.  They are extremely

          3        well-qualified professionals, they have the full

          4        confidence of the family bar in Dade County.

          5             They are lawyers, all of them that have greater than

          6        ten years' experience and most of them are experts in

          7        family law.  They have the qualifications of any circuit

          8        judge basically selected in the state of Florida now, but

          9        they are selected by the judges of the court.

         10             A matter of visitation is referred over to them and

         11        they listen to the evidence on the matter of visitation.

         12        If the parties agree, the matter of visitation is referred

         13        over to them.  They hear the evidence on visitation and

         14        they decide that it's every other weekend for the

         15        noncustodial parent, based on what they hear.

         16             If either side objects, they file exceptions to that.

         17        Under the procedures that presently govern masters, they

         18        file those objections within ten days after the decision.

         19        It then goes to the circuit judge.  The circuit judge

         20        listens to the objection, see if there was a basis for the

         21        decision.  If the circuit judge decides there was a basis

         22        for the decision, the circuit judge affirms the decision

         23        of the master.  If the judge decides there is no basis for

         24        the decision, the judge would reverse the decision of the

         25        master.


          1             We get objections in Dade County in about 2 percent

          2        of the cases.  The masters, for example, heard over 7,000

          3        hearings last year.  Out of those 7,000 hearings, there

          4        were 2 percent objections.  So it's not just,

          5        Commissioner, these people, who are they?  They are

          6        well-established, well-recognized professionals.  They are

          7        experts in family law that have the confidence of the

          8        family bar, they have the confidence of the court and they

          9        have the qualifications of circuit judges in the state of

         10        Florida.  We're doing that right now.

         11             The only difference is it will expedite matters,

         12        particularly in the child support area where we're under a

         13        federal guideline constraint, and perhaps in emergency

         14        cases, particularly with a lot of pro se people, for the

         15        court to be able to refer a matter out initially to be

         16        heard by one of the magistrates, and let the magistrate

         17        take the evidence, realizing that probably about

         18        95 percent of the time the parties are going to find it

         19        acceptable.  If they don't find it acceptable, they will

         20        still have a right to come back to the constitutional

         21        officer and make their particular objections.

         22             There isn't any -- the huge difference on it is that

         23        you can refer out a lot of these matters that require

         24        emergency treatment or require federal guideline

         25        consideration without having to go through the initial


          1        consent process.  That's really the main constitutional

          2        difference in all this.  We have this system right now in

          3        16 out of 20 counties.  This isn't something foreign or

          4        something new.  This is something that's well established.

          5             We wouldn't need to put it in the Constitution if we

          6        had the right, constitutionally, to make the initial

          7        referral without going through a consent process.  We

          8        don't have that right; that's why it's being suggested.

          9             COMISSIONER THOMPSON:  The copy of Proposal 87 I'm

         10        looking at, none of the safeguards that you have just been

         11        through are listed in there.  It looks like a very simple

         12        amendment that allows the Legislature, and I guess this

         13        language about the Supreme Court may establish by rule --

         14             COMMISSIONER WETHERINGTON:  That's out.

         15             COMISSIONER THOMPSON:  -- has been stricken.

         16             A family court magistrate system to hear family law

         17        matters.  One of the first things you said is that now

         18        people have to do this voluntarily.

         19             COMMISSIONER WETHERINGTON:  Right.

         20             COMISSIONER THOMPSON:  This would allow the

         21        Legislature to change that.  And so these magistrates

         22        would have authority over people who didn't want them to

         23        have authority over them.  That's one of the concerns that

         24        I have heard expressed.

         25             Another concern I have heard expressed is what about


          1        the qualification.  I understand what you are doing in

          2        Dade County and I think that's fine.  But how do we know

          3        what the Legislature will do?  For example, will these

          4        magistrates have to be lawyers?

          5             COMMISSIONER WETHERINGTON:  I trust the Legislature

          6        is -- I trust the Legislature.  And I trust what they're

          7        going to do is they're going to take a look at what

          8        everybody else is doing and they're going to see that

          9        everybody has lawyers doing it.  They are going to listen

         10        to the family law people, they're going to listen to

         11        people and they're going to do what they do in any case

         12        and they're going to decide, here is the best way we do

         13        it.  We want lawyers, we don't want lawyers.

         14             I don't distrust the Legislature, I have a lot of

         15        confidence in the Legislature.  I'm willing to give them

         16        this authority because they set the jurisdiction, for

         17        example, already with respect to some extent to circuit

         18        judges and county judges.  I'm willing to trust them.  I

         19        don't think they're going to do something real wild in

         20        this area.  So, yeah, it will give the Legislature some

         21        prerogative.  But so what?  What's wrong with that?

         22             COMISSIONER THOMPSON:  And the kind of thing that I

         23        mentioned would be possible then, that you could have

         24        nonlawyers in these capacities and others and that these

         25        people would be bound in their family matters by these


          1        individuals.

          2             COMMISSIONER WETHERINGTON:  If the Legislature

          3        decided they wanted to take people that didn't know

          4        anything about the law or family law and put them in,

          5        yeah, that would be possible.  I wouldn't bet the farm

          6        that that's what they are going to do, but, yeah, the

          7        Legislature does -- they could do anything crazy I guess

          8        they want to, but I guess they can do that now.  But I

          9        don't expect they're going to do something crazy.  Are

         10        they?

         11             COMISSIONER THOMPSON:  Are you asking me?

         12             (Laughter.)

         13             (Commissioner Scott assumes the Chair.)

         14             COMMISSIONER SCOTT:  Further questions?  Okay.  Well,

         15        I have the rules chairman and the chairman.  Judge

         16        Barkdull, you are recognized, Commissioner Barkdull.

         17             COMMISSIONER BARKDULL:  Mr. -- Commissioner

         18        Wetherington, I'm reading -- they handed me now Proposal

         19        87 and I just wanted to ask you a question.  Just before

         20        the underlined sentence, the last sentence which we're

         21        talking about, it provides, The Legislature may establish

         22        by general law a civil traffic hearing officer system for

         23        the purpose of hearing civil traffic infractions.

         24             Now I understand the Legislature has done that.  And

         25        now we come to the language you want to add.  The


          1        Legislature may establish by general law a family court

          2        magistrate system to hear family law matters.  If

          3        established, the family court magistrate system shall be

          4        funded by the state.

          5             And I've got a query.  Is that making the funding of

          6        these family court magistrates different than the funding

          7        of the civil traffic hearing officers?

          8             COMMISSIONER WETHERINGTON:  Yes.  The counties, as I

          9        understand it, certainly in Dade, the counties pay for the

         10        traffic hearing officers.

         11             COMMISSIONER BARKDULL:  That's what I thought.

         12             COMMISSIONER WETHERINGTON:  They do.  But there are a

         13        lot of people around that think that on some of these

         14        Article V officers, that really probably the state ought

         15        to pay their salaries.

         16             COMMISSIONER BARKDULL:  I understand that comment and

         17        I generally agree with you, but I don't know to what

         18        extent a family court magistrate system is.  And if this

         19        should be approved, we are then mandating that the state

         20        fund a system that I'm not aware of what it is.

         21             COMMISSIONER WETHERINGTON:  The Legislature doesn't

         22        have to establish it in the first place.

         23             COMMISSIONER BARKDULL:  It says, if established.

         24             COMMISSIONER WETHERINGTON:  Well they don't have to

         25        establish it.  But when they establish it --


          1             COMMISSIONER BARKDULL:  We don't need it.

          2             COMMISSIONER WETHERINGTON:  Well, maybe they will

          3        decide that we don't need it.  If they decide that we do

          4        need it, they have got to figure out what they're willing

          5        to fund and what -- just like they do in every -- is the

          6        Legislature incapable of making this decision?  I mean,

          7        don't they make decisions like this everyday?  I think

          8        they do.

          9             COMMISSIONER SCOTT:  Okay, Commissioners, let's get

         10        back to your questions.  Commissioner Douglass is

         11        recognized.

         12             CHAIRMAN DOUGLASS:  I recall a discussion of this

         13        before that one of the thorny questions that went

         14        unanswered is what is a family court?

         15             COMMISSIONER WETHERINGTON:  Family law matters --

         16             CHAIRMAN DOUGLASS:  Now you ought to have been able

         17        to answer that quicker than that.

         18             COMMISSIONER SCOTT:  Commissioner Wetherington.

         19             COMMISSIONER WETHERINGTON:  Yeah, I can answer that.

         20        There's two parts to it.  What I'm talking about now in

         21        terms of the magistrate system I'm talking basically about

         22        the divorce area; the child support, domestic violence,

         23        that particular area of the court.  I'm not really at this

         24        time including the juvenile division because the juvenile

         25        division deals with the criminal component, at least a


          1        good part of it, and then it deals with the HRS component.

          2             I'm talking about the divorce court that handles the

          3        civil domestic violence, jurisdiction, the divorce, the

          4        child support, paternity and all that kind of stuff.

          5        That's what we refer to when we talk about family law.

          6             CHAIRMAN DOUGLASS:  So they would do jury trials?

          7             COMMISSIONER WETHERINGTON:  No, they would not do

          8        jury trials.

          9             CHAIRMAN DOUGLASS:  We have jury trials in paternity

         10        cases.  Don't they require a jury trial if they demand it?

         11             COMMISSIONER WETHERINGTON:  They may.  I don't think

         12        anybody is going to give the magistrate the jury trials.

         13             CHAIRMAN DOUGLASS:  All right.  Then it doesn't

         14        include paternity cases.

         15             COMMISSIONER WETHERINGTON:  If there is a demand for

         16        a jury trial, the answer to that question would be it

         17        would not.  If there is not a demand for a jury trial,

         18        that may be one of the matters where the Legislature would

         19        say, We want paternity to be heard by magistrates only on

         20        the consent of the parties.  They may say they want the

         21        consent of the parties for that, like they could with

         22        anything else.  I don't know what view they would take on

         23        it.

         24             CHAIRMAN DOUGLASS:  Now, my next question is based on

         25        what was said the other time is if I have a client who


          1        wants a temporary injunction without notice --

          2             COMMISSIONER WETHERINGTON:  Correct.

          3             CHAIRMAN DOUGLASS:  -- I can go to one of these

          4        magistrates, who may or may not be lawyers, they are

          5        certainly not elected judges, I guess they are judges, and

          6        I can say, I want a temporary retraining order and I can

          7        get it from that magistrate.  That's a family law matter;

          8        isn't it?

          9             COMMISSIONER WETHERINGTON:  Absolutely not.  The only

         10        way a matter can get to a magistrate is if it's referred

         11        by the court.

         12             CHAIRMAN DOUGLASS:  All right, it's been referred,

         13        the case is pending, it's Wetherington versus

         14        Wetherington.  Mrs. Wetherington is my client and she

         15        tells me --

         16             COMMISSIONER WETHERINGTON:  You're getting awfully

         17        close to home here.

         18             CHAIRMAN DOUGLASS:  It's certainly not you, it's

         19        another Wetherington.

         20             COMMISSIONER WETHERINGTON:  Oh, okay.

         21             COMMISSIONER SCOTT:  Let's stick to questions and

         22        answers here.

         23             CHAIRMAN DOUGLASS:  Anyway, Mrs. Scott, I'm

         24        representing her.  And I go and I say, you know, I'm

         25        already there.  We have got a family matter proceeding in


          1        the court, and it's been referred to this judge, and he's

          2        not a magistrate, he's a judge if he's in the court

          3        because we run through that with workers comp judges.

          4        They are not judges, but we call them judges.

          5             So we come in there then and I say, you know,

          6        Mr. Scott has just been a terrible guy and I need a

          7        temporary injunction without notice.  And I make a great

          8        case and this nonlawyer judge as it might be says, Gee, I

          9        like you, and he grants the temporary injunction, and then

         10        Mr. Scott violates it.  This same judge can lock him up;

         11        can he not?

         12             COMMISSIONER WETHERINGTON:  No.

         13             CHAIRMAN DOUGLASS:  Why not?  You referred the case

         14        to him.

         15             COMMISSIONER WETHERINGTON:  The first thing that

         16        would happen in that instance is that Mr. Scott, under

         17        this situation, assuming someone would grant something

         18        without notice, but assuming that could be, and assuming

         19        it's properly referred by the judge, Mr. Scott would come

         20        back in, if he didn't like that, he would either ask for a

         21        hearing in front of the magistrate or he would go to the

         22        judge who was in charge of that particular section and

         23        particular case and he would say, This is in error.  And

         24        if the judge agreed, the judge would set it aside, just

         25        like he would do any other matter.


          1             CHAIRMAN DOUGLASS:  That doesn't always happen in

          2        temporary injunctions; does it?  As a matter of fact, they

          3        violate them and they can be hauled into court; isn't that

          4        true?

          5             COMMISSIONER WETHERINGTON:  If you violate a

          6        temporary injunction and it's otherwise properly issued by

          7        the court, and you violate it and you know about it, it's

          8        been served on you, yes, you can be held in contempt of

          9        court.

         10             Now it may very well be in that particular matter

         11        that the contempt of the court part of the thing may or

         12        may not be something that the court is going to refer out.

         13        It may decide on contempt matters that I'm not going to

         14        refer contempt matters out, or it may decide, I am going

         15        to refer contempt matters out, subject to the same review

         16        by the circuit judge.  There is no magic in any of this.

         17        This happens all the time.

         18             CHAIRMAN DOUGLASS:  Don't you believe that most

         19        people that were analyzing this that aren't as

         20        sophisticated as some of the judges that speak to this

         21        would view this as the creation of another court called a

         22        family court matters court.

         23             COMMISSIONER WETHERINGTON:  Well right now we have

         24        got eight magistrates --

         25             CHAIRMAN DOUGLASS:  No, my question is, wouldn't most


          1        people think it's a family court?

          2             COMMISSIONER WETHERINGTON:  No, they wouldn't because

          3        I have never heard that said about our general master

          4        system in Dade County or any of the other 16 counties.  I

          5        have never heard one person in the state of Florida with

          6        7,000 hearings in Dade County ever come up and say,

          7        There's another court up here; there's a general master

          8        court.  I've never heard one human being ever say that.

          9             What they have said is, I have got Judge X.  Judge X

         10        has referred this to the magistrate for determination,

         11        subject to the supervision of Judge X, and if I don't like

         12        what goes on down there, I'm going back to the judge.  I

         13        never heard anybody suggest, until I came here today, that

         14        this is some other kind of special court, not a single

         15        human being.  It hasn't been written, it hasn't been put

         16        in a smoke stack or anywhere else.  The first time I ever

         17        heard it is here.

         18             CHAIRMAN DOUGLASS:  Well this is the first time I

         19        ever heard of a court -- a special master all of a sudden

         20        is a court.

         21             COMMISSIONER WETHERINGTON:  I didn't say it was a

         22        court.

         23             CHAIRMAN DOUGLASS:  Well you said you never heard of

         24        it now because it doesn't exist; does it?

         25             COMMISSIONER WETHERINGTON:  Yeah, it does.


          1             CHAIRMAN DOUGLASS:  No, no, no, no.  If it exists, we

          2        don't need this constitutional provision.

          3             COMMISSIONER WETHERINGTON:  I'm trying to tell you

          4        that functionally a tremendous amount of what would occur

          5        under a magistrate system is now and has been for many,

          6        many years going on.  And that's why we have been able to

          7        survive in Dade County, and probably a number of other

          8        circuits, with this tremendous volume of family cases and

          9        provide expeditious justice.

         10             We have been able to do it because last year if we

         11        didn't have those eight, in effect, people performing what

         12        judges would otherwise have to hear, I don't know what we

         13        would do.  They had 7,000-plus hearings last year with a

         14        2 percent exception rate.  And these masters rated

         15        87 percent on the average on the Bar with all the lawyers

         16        voting on them.  That's better than the judges did.  And

         17        they're all people of superb experience and background and

         18        qualifications.  They're rated by the lawyers on The Bar

         19        poll.  Everybody is ecstatic with them.

         20             And I've never heard anybody come in and say, Isn't

         21        it a terrible thing that this lawyer over here is a

         22        20-year practitioner in family law, like Betty Kessler or

         23        some of the outstanding people, gee, they heard my case

         24        and I didn't have one of those judges hear my temporary

         25        support case.  I have never heard that.


          1             CHAIRMAN DOUGLASS:  Judge, I'm afraid to ask you any

          2        more questions because I don't think we've got time.

          3        We're going to adjourn at 2:00.

          4             But my question still reverts, we're not talking

          5        about masters, are we?  We're talking about a

          6        constitutional class of new judges called magistrates, and

          7        there is no qualification for membership in The Bar such

          8        as for county judges; there is no qualification for five

          9        years membership, there are no qualifications.

         10             And what we're asking ourselves to do here is to

         11        recommend to the people that they create this new class of

         12        courts, not these special masters which everybody loves,

         13        and the reason they love them is they can't lock them up,

         14        is one of the reasons, isn't it?  They can't do anything

         15        on their own, it has to go back to the circuit judge

         16        before they enforce whatever the case is, don't they?  Now

         17        answer --

         18             COMMISSIONER WETHERINGTON:  If anybody objects --

         19        first of all, the answer is it goes back to, the report

         20        goes back to the judge and the judge signs the report.

         21        But the answer is I don't think I'm going to convince you

         22        on this, Mr. Chairman.

         23             CHAIRMAN DOUGLASS:  No, no, I'm not trying to be --

         24             COMMISSIONER WETHERINGTON:  I'm not going to convince

         25        you.


          1             CHAIRMAN DOUGLASS:  -- I'm just trying to get an

          2        answer which I don't think I'm going to get.  And I

          3        relinquish the chair to the next question.

          4             COMMISSIONER SCOTT:  Further questions?  And, by the

          5        way, we'll let the record show that there are many, many

          6        Mr. and Mrs. Scotts, Mr. and Mrs. Wetheringtons in this

          7        state.  Commissioner Mills is recognized.

          8             COMMISSIONER MILLS:  Mr. Chairman, I detect some

          9        sentiment, it's perhaps confusion.  I don't think anybody

         10        knows more about the court system than Judge Wetherington,

         11        and a lot of us know less.  There is some question about

         12        the ability of the Legislature to do this, there is some

         13        question about the use of the term "court", there is some

         14        question about, I mean, now that I've become so concerned

         15        about Article V costs, there appears to be a mandate that

         16        that be funded by the state, I don't know what that costs.

         17             So, I would offer to the Chair, either the current

         18        chair on the chair chair, the option to -- that I would

         19        offer a motion to refer to committee to allow some of

         20        these things to be worked out.

         21             If that is not the sense of the body and the body

         22        wants to vote on it now, they could vote against that

         23        motion.  I would offer to the Chair the motion to re-refer

         24        to committee to answer -- both to answer some of these

         25        questions, if possible, and to elevate the level of


          1        understanding of some of the members, including myself.

          2             COMMISSIONER SCOTT:  Okay.  Before we take that

          3        motion, our status here is that we have reconsidered a

          4        motion, a proposal that previously received a favorable

          5        recommendation.  The proposal is back before us for

          6        whatever action the body might take, including voting it

          7        or temporarily passing it or some other action,

          8        re-referring it.  So before we take that motion, Judge

          9        Wetherington, do you have any comments?

         10             COMMISSIONER WETHERINGTON:  I think it's time -- we

         11        had a vote on this before.  We have had a full discussion.

         12        I don't think we should keep deferring everything.  If I

         13        haven't been able to make myself clear on it, then I feel

         14        very badly about it.  But we have been over it now, we've

         15        debated it twice and the problem is, do we want to keep

         16        postponing everything?  I feel we ought to vote it up or

         17        down.

         18             COMMISSIONER SCOTT:  Commissioner Nabors, you rise

         19        for what purpose?

         20             COMMISSIONER NABORS:  I'd like to ask this quick

         21        question.

         22             COMMISSIONER SCOTT:  He'll yield.

         23             COMMISSIONER NABORS:  As I understand this issue, the

         24        reason we need the constitutional amendment is really to

         25        allow the system to work, without the requirement of the


          1        consent of the parties.

          2             COMMISSIONER WETHERINGTON:  That's correct, in

          3        certain specified cases, yes.

          4             COMMISSIONER NABORS:  I think there is perhaps

          5        sympathy for the idea, but trouble with the language.  It

          6        may be that some kind of a temporary -- I'm one that likes

          7        to vote on things and move them, but I think some of the

          8        language and the use of "court", maybe with a little time

          9        we might be able to achieve that objective with language

         10        that gives some comfort to some of the people that have

         11        problems with it.

         12             COMMISSIONER WETHERINGTON:  That's probably a good

         13        suggestion.

         14             COMMISSIONER SCOTT:  Okay.  The Chair will now

         15        entertain motions in the order of request.  Commissioner

         16        Mills.

         17             COMMISSIONER MILLS:  If it was the sense of

         18        Commissioner Nabors' motion to temporarily pass this, I'd

         19        be glad to make that motion.

         20             COMMISSIONER NABORS:  If that's the place you were

         21        trying to drive us to by the question, it could be to

         22        temporarily pass or refer it to committee, whatever we

         23        need to do to buy a little time maybe until next month.

         24             COMMISSIONER MILLS:  If the motion would be to

         25        re-refer to committee with the understanding -- I mean, I

                     DIVISION OF ADMINISTRATIVE HEARINGS (904) 488-9675


          1        understand the reluctance of some to re-refer to committee

          2        and I would actually defer to Judge Wetherington's wishes

          3        one way or the other.  A move to temporarily pass puts it

          4        off today.  And if you would prefer to have it in

          5        committee to redraft, that's fine.  If you prefer to

          6        temporarily pass, that gives you an opportunity to work

          7        with other individuals.

          8             COMMISSIONER WETHERINGTON:  Well, I don't want -- if

          9        everybody feels like we ought to defer this one and they

         10        don't understand it -- is that right?  People don't

         11        understand it?

         12             COMMISSIONER MILLS:  Well, we'll find out.

         13             COMMISSIONER SCOTT:  Okay.  Commissioner who moves

         14        to --

         15             COMMISSIONER MILLS:  I move to temporarily pass.

         16             COMMISSIONER SCOTT:  Commissioner Mills moves to

         17        temporarily pass Proposal 87.  Is there further

         18        discussion?  All in favor say aye; opposed.

         19             (Verbal vote taken.)

         20             COMMISSIONER SCOTT:  Unlock the machine and proceed

         21        to vote.  A vote yes is to defer, a vote no is to not

         22        temporarily pass this matter.  Have all commissioners

         23        voted?

         24             (Vote taken and recorded electronically.)

         25             COMMISSIONER SCOTT:  Lock the machine and record the


          1        vote.

          2             READING CLERK:  Twelve yeas and 20 nays,

          3        Mr. Chairman.

          4             COMMISSIONER SCOTT:  So the matter is not temporarily

          5        passed.  Is there further discussion on the proposal?

          6             CHAIRMAN DOUGLASS:  I'd like to make a motion to

          7        refer this to another committee to have it considered, and

          8        particularly I would suggest because of the implications

          9        of the Article V costs, that it be referred to the select

         10        committee on Article V.

         11             COMMISSIONER SCOTT:  Without objection, first of all,

         12        we will show Commissioner Hawkes voting in the negative on

         13        the last matter.  We keep locking out different

         14        commissioners on the front row there.  I was locked out on

         15        the prior vote earlier today.

         16             Now, motion by Commissioner Douglass to refer this

         17        matter to -- would you restate the motion?

         18             CHAIRMAN DOUGLASS:  Select committee on Article V

         19        costs.

         20             COMMISSIONER SCOTT:  Select committee on Article V

         21        costs.  Discussion on that motion?  All in favor of that

         22        motion say aye; opposed?

         23             (Verbal vote taken.)

         24             COMMISSIONER SCOTT:  The motion fails.  Okay.  We're

         25        now still on the matter.  Further discussion on


          1        Proposal 87?

          2             Commissioner Butterworth.

          3             COMMISSIONER BUTTERWORTH:  The way you looked at me I

          4        don't think you want me to take too long so I won't.

          5             COMMISSIONER SCOTT:  Actually, no, don't interpret

          6        that.  Which side are you on first?

          7             (Laughter.)

          8             COMMISSIONER BUTTERWORTH:  I'm very much in favor of

          9        getting accomplished what Commissioner Wetherington wants

         10        done.  I personally believe that what we're talking about

         11        is really, to some extent, Article V costs because the

         12        county is picking up funding that if in fact the

         13        Legislature had provided the county with a sufficient

         14        number of judges, it would not be necessary to do just

         15        what he's doing.

         16             I believe that this could be done with retired

         17        judges, under the present system, with the adequate

         18        funding.  And for that reason, I feel opposed to this

         19        because there is a very easy way of accomplishing what

         20        should be accomplished and the state should pay for it.

         21             COMMISSIONER SCOTT:  Further discussion?

         22        Commissioner Smith.

         23             COMMISSIONER SMITH:  Mr. Chairman, if in fact this

         24        matter is voted upon favorably, this proposal, and the

         25        matter goes to style and drafting, can the concerns with


          1        regard to the language, as expressed by Commissioner

          2        Nabors, be dealt with there, or is that so substantive

          3        that it can't be dealt with in style and drafting?

          4        Because that would have a big factor on how I vote, the

          5        answer to that question.

          6             COMMISSIONER SCOTT:  Let me make a stab at it here.

          7        I would say that probably not because the expression would

          8        be from the commission, this is what we want to do, it

          9        would be that one sentence that's before you.  It would be

         10        my impression that we, in general, substantive questions

         11        like this would have to be dealt with.  The question of

         12        how we would word it or what we might add and so forth

         13        would be more of a style and drafting.  But I don't want

         14        to set a precedent that that's -- this may come up time

         15        and again.

         16             I think what we're trying to do is to get these

         17        questions of policy resolved by amendments, by whatever,

         18        and acted on before it goes in.

         19             Further discussion?  Okay, Commissioner Wetherington,

         20        do you wish to close?

         21             COMMISSIONER WETHERINGTON:  I think this is something

         22        that we're going to need in the state of Florida in this

         23        very critical area of family law in the future.  I wish we

         24        had all the retired county judges that could come and take

         25        over this work, but we don't have them.  The


          1        Legislature -- I don't think that's the solution.

          2             And besides that, we're dealing with people that are

          3        specialists.  The people that serve here are specialists;

          4        they are specially trained in their field and their

          5        specialty is family law.  It's an area of enormous

          6        importance to our people.  We're able to get these

          7        wonderful professionals, and actually, if you take a look

          8        at the total benefit package that they're paid and the

          9        salary, for substantially less in terms of expense than

         10        providing a new judge.

         11             We know in the future that we're not going to get an

         12        unlimited number of new judges because the past has told

         13        us that.  These professionals are there now.  We have a

         14        basis to increase their effectiveness, to increase our

         15        ability to handle in a fair and expeditious manner this

         16        heartrending area of family law in our state.  And the

         17        only way we can do it is to give some constitutional

         18        recognition to these magistrates so that they can most

         19        effectively help the court.

         20             Based on the strong support of the family law

         21        section, the family lawyers, other people who have studied

         22        this, I think this is something we ought to do.

         23             COMMISSIONER SCOTT:  Okay.  On Proposal 87, unlock

         24        the machine and commissioners prepare to vote.  Have all

         25        commissioners voted?  Have all commissioners voted?


          1             (Vote taken and recorded electronically.)

          2             COMMISSIONER SCOTT:  Lock the machine and record the

          3        vote.

          4             READING CLERK:  Fifteen yeas and 19 nays,

          5        Mr. Chairman.

          6             COMMISSIONER SCOTT:  And so the proposal fails of

          7        adoption.  Okay.  (Pause.)  Read the next proposal.

          8             READING CLERK:  Committee substitute for Proposal 13,

          9        proposal to revise Article I, Section 22, Florida

         10        Constitution, providing that a defendant charged with a

         11        capital offense may not be sentenced to death unless such

         12        sentence is recommended by nine members of a jury of 12

         13        persons.

         14             COMMISSIONER SCOTT:  Commissioner Brochin, this is

         15        your proposal.

         16             COMMISSIONER BROCHIN:  I would ask that this proposal

         17        be passed until the January calendar.  I need to obtain

         18        some further data before I'm prepared to go forward and

         19        there's another provision before declaration of rights we

         20        want to look at.

         21             COMMISSIONER SCOTT:  Commissioner Brochin moves to

         22        temporarily pass this matter.  Is there any objection to

         23        the matter being temporarily passed?  Without objection,

         24        show it temporarily passed to the meeting in January,

         25        subject to the rules committee's action.


          1             The next proposal, what's the next proposal?

          2        Proposal 1 which is -- for what purpose, Commissioner

          3        Smith?

          4             COMMISSIONER SMITH:  Thank you, Mr. Chairman.  As

          5        chairman of the declaration of rights, I respectfully

          6        request, because Commissioner Sundberg had to leave, that

          7        we go to Proposal 24.  Our proposal has been acted upon

          8        and we have the proponent of that proposal, Commissioner

          9        Rundle, here, if that's okay.

         10             COMMISSIONER SCOTT:  Without objection we'll

         11        temporarily pass that matter and may or may not -- we'll

         12        get back to it whenever, since the sponsor is out of the

         13        room.  Read the next proposal.

         14             READING CLERK:  Proposal 24, a proposal to revise

         15        Article IV, Section 8, Florida Constitution, requiring

         16        that a state prisoner serve at least 85 percent of his or

         17        her term of imprisonment unless granted pardon or

         18        clemency.

         19             COMMISSIONER SCOTT:  Commissioner Rundle is

         20        recognized.

         21             COMMISSIONER RUNDLE:  Thank you, Mr. Chairman.  We

         22        actually are somewhat working on an amendment to this.  So

         23        I would like to do what Commissioner Brochin did and ask

         24        that this be reset.  We may be able to do this by Friday,

         25        if that's the pleasure of the general commission.


          1             COMMISSIONER SCOTT:  Without objection, we show the

          2        proposal temporarily passed and consult with the rules

          3        committee for scheduling of the special order regarding

          4        the matter.

          5             What have we got next?  Read Proposal 85.

          6             READING CLERK:  Proposal 85, a proposal to revise

          7        Article I, Section 24; Article III, Sections 1, 2, 3, 4,

          8        5, 7, 8, 9, 11 --

          9             COMMISSIONER SCOTT:  Is this Commissioner Sundberg's

         10        proposal?  Is this Commissioner Sundberg's also?  Let's

         11        temporarily pass it for the moment.  Also I am recognizing

         12        we have about 15 minutes before committee meetings.  What

         13        do we have next?

         14             READING CLERK:  70.

         15             COMMISSIONER SCOTT:  Read the next proposal.

         16             READING CLERK:  Committee substitute for Proposal 70,

         17        a proposal to revise Article X, Section 4, Florida

         18        Constitution, providing a value limitation on the

         19        homestead exemption; authorizing the Legislature to change

         20        the amount of the value limitation; providing that the

         21        homestead exemption does not apply to certain property.

         22             COMMISSIONER SCOTT:  Commissioner Mills.

         23             COMMISSIONER MILLS:  Mr. Chairman, I think we may

         24        have an amendment pending, but just to remind the

         25        commission, this is the establishment of a ceiling for the


          1        exemption from homestead exemption for debtors.  And this

          2        basically protects honest, hard-working citizens who

          3        should be entitled to collect their debts.

          4             What we have done is set a ceiling of 200,000 which

          5        still makes us the highest in the country, along with

          6        Minnesota, where previously we had no ceiling whatsoever,

          7        which meant that people could avoid legitimate debts

          8        through buying very expensive homesteads.

          9             There are a couple of questions raised, and with the

         10        amendments on the desk we might be able to handle those.

         11        One of the questions was, what would happen in the future

         12        since $200,000 in 1997 is probably not going to be

         13        $200,000 in the year 2010.  There is an amendment to

         14        accord to the Legislature the absolute discretion to

         15        increase this number.  So that might actually handle a

         16        couple of other issues that have been raised.

         17             But I think Commissioner Planas might have an

         18        amendment order on the desk at this point; I'm not sure

         19        the order in which those amendments had been presented.

         20             COMMISSIONER PLANAS:  Commissioner Mills, yes.  Last

         21        time we were here in session we introduced an amendment

         22        raising from 200,000 to 500,000, plus also requiring a

         23        five-year residence before you could get this amount.

         24             COMMISSIONER MILLS:  That was my recollection as

         25        well.  That amendment may be pending.


          1             COMMISSIONER PLANAS:  Commissioner Alfonso introduced

          2        that for me and I thought it passed.

          3             COMMISSIONER MILLS:  He introduced it for you, but we

          4        didn't pass it.  We temporarily passed it at the time.  We

          5        took up the amendment and it was introduced.  So I don't

          6        know what the status of that amendment is.

          7             (Chairman Douglass resumes the Chair.)

          8             CHAIRMAN DOUGLASS:  She says the amendment was read

          9        and the proposal was temporarily passed with that

         10        amendment pending.  It hasn't been adopted or defeated.

         11             COMMISSIONER MILLS:  Right.

         12             CHAIRMAN DOUGLASS:  Commissioner Barkdull, question.

         13             COMMISSIONER BARKDULL:  Can we get the amendment

         14        read?

         15             CHAIRMAN DOUGLASS:  Read the amendment.

         16             READING CLERK:  By Commissioner Planas, on Page 1,

         17        Line 23, delete that line and insert:  "One, a homestead

         18        of a person who has been a resident of the state for at

         19        least five years to the extent of 500,000."

         20             CHAIRMAN DOUGLASS:  Where are we in the debate?  Or

         21        are we in the debate?  Did we temporarily pass it?

         22             COMMISSIONER MILLS:  Mr. Chairman, we temporarily

         23        passed it with this amendment pending.  So we're on

         24        Commissioner Planas' amendment.

         25             CHAIRMAN DOUGLASS:  This same amendment?


          1             COMMISSIONER MILLS:  Yes, that's where we're at.

          2             CHAIRMAN DOUGLASS:  Okay.  So we're back now on the

          3        motion and the amendment is before the body and the debate

          4        will be on the amendment.  A proponent of the amendment,

          5        Commissioner Planas.

          6             COMMISSIONER PLANAS:  Ladies and gentlemen,

          7        Commissioners, the reason why I put this amendment is that

          8        almost everybody has been complaining about people from

          9        other states coming to the state of Florida and this and

         10        going to this very liberal law that we have got here.  And

         11        all of a sudden, as soon as they get to the state of

         12        Florida, they declare bankruptcy.  I have established that

         13        for -- a five years residence limit before you can declare

         14        bankruptcy in the state of Florida.

         15             In addition to that, the 200,000 that Commissioner

         16        Mills had put in, I had raised it to $500,000.  The reason

         17        for that, I do not believe that the cost of a home is the

         18        same type of cost in Dade County as it is in Calhoun

         19        County.  So I thought that I was going to give the benefit

         20        of the doubt to people living in the areas that are more

         21        expensive.  Thank you, Mr. Chairman.

         22             CHAIRMAN DOUGLASS:  All right.  This is on the

         23        amendment.  On the amendment, Commissioner Barkdull.

         24             COMMISSIONER BARKDULL:  I have a question of

         25        Commissioner Planas, please.  Do I understand the purpose


          1        of the amendment is that if a person has lived here seven

          2        years, that they can then protect a homestead up to

          3        500,000?

          4             COMMISSIONER PLANAS:  Five years.

          5             COMMISSIONER BARKDULL:  I said a person that's lived

          6        here seven years.

          7             COMMISSIONER PLANAS:  Right, correct.

          8             COMMISSIONER BARKDULL:  They could protect a

          9        homestead up to 500,000.

         10             COMMISSIONER PLANAS:  Correct, sir.

         11             COMMISSIONER BARKDULL:  A person that's only lived

         12        here four years cannot protect anything in homestead.

         13             COMMISSIONER PLANAS:  Correct.

         14             CHAIRMAN DOUGLASS:  All right, Commissioner Brochin

         15        was up first and then Commissioner Scott is next.

         16             COMMISSIONER BROCHIN:  I just had a question about

         17        the amendment.  Does the amendment do both, raise the

         18        limit to 500,000 and it also requires a five year

         19        residency before you can avail yourself to any exemption?

         20        It requires both, your amendment?

         21             COMMISSIONER PLANAS:  It requires both.  And I do

         22        understand what Commissioner Barkdull was telling us.  I

         23        do understand that it's very important for us to adopt a

         24        residence limitation because we do not want for people

         25        from other states coming down and making a mockery out of


          1        this law.  That is the most important thing, and I do

          2        understand it.  I will entertain any ideas, but let's make

          3        it a residence factor there also.

          4             CHAIRMAN DOUGLASS:  Commissioner Scott.

          5             COMMISSIONER SCOTT:  I have an inquiry of the Chair

          6        or whoever.  There are several of us that don't have the

          7        amendment.

          8             CHAIRMAN DOUGLASS:  It's being distributed.  I was

          9        told that it was being distributed.  I had a handwritten

         10        copy of it.  It says, a homestead of a person that has

         11        been a resident of the state for at least five years to

         12        the extent of $500,000, he's inserting on Page 1 at Line

         13        23.  He's deleting that line and inserting what I just

         14        read.  I understand that there's another amendment, two

         15        more that are being passed out as well.

         16             The pending one is being passed out, Commissioner

         17        Scott, then there are two others.  Do you have anything

         18        while we're waiting?

         19             COMMISSIONER SCOTT:  Yes, Mr. Chairman, I had thought

         20        his amendment was simply raising the limit here to get at

         21        some of the newspaper and other stories about high-valued

         22        homes versus, in a lot of our areas on the coast, an

         23        average home might be 3 or $400,000.  But now I see that

         24        it also puts a residency.  So in view of the time here and

         25        so forth, I would like a chance to propose an amendment to


          1        his amendment or at least get this all collected up so we

          2        can see where we are.

          3             CHAIRMAN DOUGLASS:  All right.  We'll take a short

          4        standing here while everybody gets these amendments out so

          5        you can have them, because there are two more that are

          6        being offered as well.

          7             It's my understanding that your amendment,

          8        Commissioner Planas, removes the homestead exemption of

          9        any kind for anybody that hasn't lived here five years; is

         10        that correct?  In other words, you wouldn't get your

         11        $25,000 exemption or any kind?  That's what his amendment

         12        says.

         13             (Off-the-record comment.)

         14             CHAIRMAN DOUGLASS:  I asked him and the answer was,

         15        yeah, that's what he wants to do.  Do you want to do that,

         16        Commissioner Brochin?  Is that what you want to do?

         17             COMMISSIONER BROCHIN:  No.  I think this amendment

         18        deals with the right to execute on somebody who has a

         19        homestead, not the right to claim.

         20             CHAIRMAN DOUGLASS:  So anybody that hasn't lived here

         21        five years, they can levy on his homestead.

         22             COMMISSIONER BROCHIN:  This amendment, I think, says

         23        anyone who hasn't lived here five years, that home is

         24        subject to execution for a judgment, no matter what the

         25        value of it is.


          1             CHAIRMAN DOUGLASS:  Whether it's homestead or not.

          2             COMMISSIONER BROCHIN:  Well if it's not homestead it

          3        would be subjected to --

          4             CHAIRMAN DOUGLASS:  That's true.  But what you're

          5        doing is removing the homestead exemption from forced sale

          6        from people that have little-bitty houses.

          7             COMMISSIONER BROCHIN:  Right, but not removing it

          8        from a tax exemption for the first $25,000.

          9             CHAIRMAN DOUGLASS:  I got you.  We'll probably get to

         10        that later.  All right.  Where are we on the amendment?

         11        Somebody tell me where we are.  Commissioner Mills, you

         12        had the floor at some point.  Commissioner Mills.

         13             COMMISSIONER MILLS:  Mr. Chairman, this is what I

         14        would propose to do to set us up so we can vote on what

         15        everybody wants to do.  Commissioner Planas has an

         16        amendment which suggests $500,000 as a limit and this

         17        five-year time span.

         18             An amendment is being passed out with my name on it

         19        that I would like to offer as a substitute amendment to

         20        Commissioner Planas' amendment which simply wipes out the

         21        second part of the paragraph which limits legislative

         22        discretion.  What this will do is so the Legislature can

         23        decide what the limit is, by general law.  So that means

         24        if the Legislature decides to move to 300,000, it can.  If

         25        they decide to move to 400,000, they can.  And this gives


          1        ultimate discretion for future consideration of inflation.

          2             So there are two other pending amendments by

          3        Commissioner Hawkes which are -- I have looked at, they

          4        make sense, and I will be glad to accept those as

          5        amendments to my substitute.

          6             So to sort of line the amendments up, if you approve

          7        of the $200,000 level with legislative discretion, you

          8        would vote for my substitute.  And Commissioner Hawkes has

          9        offered his amendments to the substitute, I would accept

         10        those as amendments to the substitute.  If you don't want

         11        that approach and you want to vote for Commissioner

         12        Planas' approach, you would vote against my substitute and

         13        then vote for his amendment.

         14             At the appropriate time, I would like to close on my

         15        amendment and explain why it's better.

         16             CHAIRMAN DOUGLASS:  Now you have made a substitute

         17        motion to all pending motions.

         18             COMMISSIONER MILLS:  No, there is only one pending.

         19        Commissioner Planas' amendment is pending.  I'm offering a

         20        substitute for that.  I was informing the body that

         21        Commissioner Hawkes has two amendments.

         22             CHAIRMAN DOUGLASS:  So you accept those as part of

         23        your substitute motion?

         24             COMMISSIONER MILLS:  Yes, but I think formally he may

         25        have to offer them.  I agree --


          1             CHAIRMAN DOUGLASS:  I'll recognize Commissioner

          2        Hawkes to offer as an amendment to your substitute motion

          3        his amendments.  Commissioner Hawkes.  Let's read the

          4        substitute first and then you might want to know what

          5        we're doing.

          6             READING CLERK:  Substitute amendment by Commissioner

          7        Mills, on Page 2, Lines 16 and 17, delete those lines and

          8        insert Paragraph A, Section 1 for purposes of this

          9        section.

         10             CHAIRMAN DOUGLASS:  Now Commissioner Hawkes wants to

         11        offer two amendments, one at a time, to the substitute

         12        motion.  Commissioners, I wonder if everybody might come

         13        to order a little bit.  If you all are as confused as I

         14        am, we are going to need to get straightened out.  Right

         15        now Commissioner Hawkes has the floor.  Commissioner

         16        Hawkes is going to offer amendments to the substitute

         17        motion proposed by Commissioner Mills, which we just read.

         18        Commissioner Hawkes.  You have the floor, Commissioner

         19        Hawkes.

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

         21        guess the first amendment I'll take up would be the one

         22        that's on the full sheet lines.  It says, on Page 2, Line

         23        14, delete "change" and insert "raise".  This is the issue

         24        that there was broad consensus of approval last time we

         25        met.  It basically gives the Legislature authority to


          1        raise the exemption.  It doesn't give the Legislature

          2        authority to lower the exemption.

          3             And I don't think that there should be any confusion

          4        as to what that does.  It just clarifies the way the

          5        amendment was explained to us originally.  The second

          6        amendment, Mr. Chairman, if you want me to proceed with

          7        that one --

          8             CHAIRMAN DOUGLASS:  Go ahead.

          9             COMMISSIONER HAWKES:  -- it says on Page 2, Line 23,

         10        delete the words "hinder, delay or."  And the reason for

         11        this is that if you are having financial difficulties, you

         12        are probably going to make your home mortgage payment

         13        before you pay your Visa payment.  If you do that, you

         14        have hindered or delayed Visa in collecting their payment

         15        and therefore your homestead would not be exempt to the

         16        extent that you paid your homestead mortgage payment

         17        before you paid your other payments.

         18             Obviously one of the reasons that you get the

         19        favorable interest rates on your mortgage that you do is

         20        because bankers know that that's one of the very first

         21        bills you're going to pay.  And the reason that they

         22        charge you such a high interest rate on unsecured credit

         23        cards is because that's one of the last bills you're going

         24        to pay.

         25             And hinder and delay don't have any defined case law


          1        meaning that I'm aware of.  And so I left the word

          2        "defraud" so if you are outright defrauding creditors,

          3        they could go after your homestead, but not on the case

          4        where you're just making choices.  And I would be happy to

          5        answer any questions, Mr. Chairman.

          6             CHAIRMAN DOUGLASS:  All right.  Now we have -- would

          7        you like to make those in the form of one motion to amend

          8        or would that be too -- or do you want to do them

          9        separately?

         10             COMMISSIONER HAWKES:  I can do them together.

         11             CHAIRMAN DOUGLASS:  All right.  We'll do the first

         12        motion to amend the Constitution.  Would you read the

         13        first motion to amend by Commissioner Hawkes?  We're on

         14        the substitute motion.  We will not get back to the

         15        amendment of Commissioner Planas until we complete this

         16        substitute.  All right.  Read the first amendment we're

         17        voting on.

         18             READING CLERK:  Amendment to the substitute

         19        amendment, on Page 2, Line 14, delete "change" and insert

         20        "raise".

         21             CHAIRMAN DOUGLASS:  All right.  Does everybody

         22        understand that proposed amendment to the substitute?

         23        Commissioner Barnett.

         24             COMMISSIONER BARNETT:  By inserting the word "raise",

         25        therein you limit the authority of the Legislature because


          1        they otherwise, if the word is "change", they could have

          2        lowered it.  Is that the intent?

          3             COMMISSIONER HAWKES:  That's my intent, yes.

          4             CHAIRMAN DOUGLASS:  Commissioner Barkdull.

          5             COMMISSIONER BARKDULL:  I move that the time for

          6        recess be extended until the conclusion of the debate on

          7        70 and announcements.

          8             CHAIRMAN DOUGLASS:  All in favor say aye; opposed,

          9        like sign.

         10             (Verbal vote taken.)

         11             CHAIRMAN DOUGLASS:  So we'll go forward and conclude

         12        everything on this particular pending matter, and then we

         13        will have announcements, and then we will go to committee

         14        meetings.

         15             Any questions to Commissioner Hawkes on his first

         16        amendment?  Commissioner Scott.

         17             COMMISSIONER SCOTT:  Commissioner, does this mean

         18        that the Legislature could raise this to some other figure

         19        regardless of the amount?

         20             COMMISSIONER HAWKES:  The Legislature could, if they

         21        chose, and especially the way that this amendment --

         22        before it was tied to the increase in the median prices of

         23        homes.  Now it is not tied to that under this.  The

         24        Legislature could choose, for whatever reason, in the

         25        legislative discretion they decided were important, they


          1        could raise the homestead exemption to whatever amount

          2        they decided was appropriate.  They could go any number,

          3        higher or over 200,000.

          4             CHAIRMAN DOUGLASS:  But they couldn't lower it; is

          5        that right?

          6             COMMISSIONER HAWKES:  That was taken out in

          7        Commissioner Mills' amendment on Lines 16 and 17,

          8        paragraph A1.  He ends it right there.

          9             CHAIRMAN DOUGLASS:  So what it would be if they adopt

         10        your amendment then, if I understand you, is that they

         11        couldn't lower it, but they could raise it, if the

         12        amendment is adopted.  And that's the intent that you

         13        have; is that correct?

         14             COMMISSIONER HAWKES:  Yes.

         15             CHAIRMAN DOUGLASS:  Does everybody understand that?

         16        On the first amendment to the substitute amendment, this

         17        amendment offered by Commissioner Hawkes.  All in favor

         18        say aye; opposed.

         19             (Verbal vote taken.)

         20             CHAIRMAN DOUGLASS:  Carries.  Now Amendment No. 2

         21        offered by Commissioner Hawkes to the substitute

         22        amendment.  Commissioner Hawkes.

         23             COMMISSIONER HAWKES:  This is where I struck the

         24        words "hinder or delay".  In other words, your homestead

         25        is exempt up to 200,000 and this paragraph provides some


          1        exceptions to the 200,000.  Those exceptions, as currently

          2        drafted, are if you did something that hindered a

          3        creditor, or if you did something that delayed a creditor,

          4        or if you did something that defrauded a creditor.

          5             Well obviously the word "defraud" has some meaning in

          6        the case law and the courts have defined defraud and we

          7        all understand that intuitively.  Hinder and delay are

          8        different concepts and I would submit that any time anyone

          9        comes into any kind of financial difficulty at all, they

         10        are going to make choices as to which bills to pay in

         11        priority basis.

         12             And lenders know that when they're making the loans.

         13        And they give you a lower interest rate on your home

         14        mortgage compared to perhaps your business office because

         15        they know that you'll pay your home mortgage first.  And

         16        all this says is that if you pay your home mortgage first,

         17        even though that may be found to hinder a creditor or may

         18        delay that creditor from collecting his money, it does not

         19        disrupt or provide an exemption or exception to your

         20        homestead exemption.

         21             CHAIRMAN DOUGLASS:  All right.  Are there any

         22        questions on the second amendment offered by Commissioner

         23        Hawkes?  Commissioner Planas.

         24             COMMISSIONER PLANAS:  Yes, it's not a question.  May

         25        I be an opponent to this?


          1             CHAIRMAN DOUGLASS:  Not yet.  Questions?

          2        Commissioner Brochin has a question.

          3             COMMISSIONER BROCHIN:  Commissioner Hawkes, currently

          4        under Florida law can a creditor execute, if there was an

          5        intent to defraud?  Is this necessary in the Constitution?

          6             COMMISSIONER HAWKES:  My understanding is that there

          7        was a bankruptcy law case where the judge refused to go

          8        beyond the homestead.  He said once there is homestead, he

          9        is not going to go beyond that to determine if there was

         10        fraud in acquiring the homestead.  And the allegation was

         11        that there was fraud.  And I think that the reason that

         12        this provision is before you is because of that case.

         13             But what they have added to that was that was an

         14        allegation of fraud, which is a whole lot different than

         15        hinder or delay.  And so to address that concern from that

         16        case, but striking the hinder and delay.

         17             CHAIRMAN DOUGLASS:  I've been told, maybe this will

         18        help, Commissioner Brochin, that we haven't read this.  We

         19        haven't had the clerk read this second amendment.  So I'm

         20        going to ask him to do so.  And then if you have

         21        additional questions, you still have the floor.  Would you

         22        read the second amendment, Hawkes amendment.

         23             READING CLERK:  By Commissioner Hawkes, amendment to

         24        the substitute amendment, on Page 2, Line 23, delete the

         25        words "hinder, delay or".


          1             CHAIRMAN DOUGLASS:  Any questions, further questions?

          2        Commissioner Brochin, did he answer them?  Any questions

          3        directed to the second amendment of Commissioner Hawkes?

          4             If not, all in favor of this amendment to the

          5        substitute motion, signify by saying aye; opposed,no.

          6             (Verbal vote taken.)

          7             CHAIRMAN DOUGLASS:  It carries, it is adopted.  Now

          8        there is a third amendment on the desk by Senator --

          9        excuse me, Commissioner Scott, and would you read that,

         10        please?  This is to the substitute amendment still.

         11             READING CLERK:  By Commissioner Scott, amendment to

         12        the substitute amendment, on Page 1, Line 23, delete the

         13        word "two" and insert "four".

         14             CHAIRMAN DOUGLASS:  All right.  Commissioner Scott,

         15        you're recognized on the amendment.

         16             COMMISSIONER SCOTT:  Mr. Chairman, I want to refresh

         17        the commissioners what we're talking about here.  We're

         18        talking about a situation where you, your wife, your child

         19        is driving a car, has a terrible accident, maybe people

         20        killed.  Now we're talking about execution, if there is a

         21        judgment against them, on your home or your parents' home

         22        or whatever.  And I have some tremendous concerns about

         23        that in the first place, particularly in the area of tort

         24        matters, such as an automobile accident.

         25             I mean, if someone goes -- we've seen these cases on


          1        TV and 60 Minutes and wherever about the health care or

          2        other executives that have multimillion dollar homes that

          3        are bankrupt basically but yet they still have this home;

          4        that's fine.  If we want to address that, then this

          5        amendment would at least put it in a range of where you

          6        would pick up many, many thousands -- I can't find the

          7        sheet that people were distributing regarding this -- but

          8        you pick up at least the high end.

          9             I don't think that this proposal is such a great

         10        idea, but I do have sympathy and I recognize the concerns

         11        of the business community about people who borrow money

         12        and run up big bills and then don't pay and then they

         13        still live in fancy homes.

         14             Just like on the other issues that we have debated

         15        such as the Article V issues, what is a nice home in

         16        Holmes County or Taylor County or wherever is one thing,

         17        and what it costs.  And maybe 200,000 might be all right

         18        for that.  In the areas that I'm familiar with and where I

         19        live and a lot of the people that I represent in public

         20        life, the average home may well be, because of the cost of

         21        living in the area, well up close to the 200,000 that's

         22        provided in here.

         23             So what this amendment does is just say that

         24        basically for all purposes of this proposal that 400,000

         25        which picks up again, I think, tens of thousands of homes


          1        that might be the big offenders.  But it at least gives

          2        some recognition to the concern of people who live on the

          3        coastal areas of Florida perhaps that they, you know, that

          4        they at least are able to maintain their home, they don't

          5        lose it.

          6             I know one of the things that's also -- elderly

          7        people have often paid off their mortgages.  This basic

          8        proposal, if you have a $250,000 home but you have a

          9        $200,000 mortgage, then you would be protected because the

         10        50,000 would be less.  But in many cases our parents or

         11        elderly people have paid off.  So they happen to have a

         12        home and maybe that's what they have.  And they have an

         13        accident going to the grocery store and they end up losing

         14        it.  So I would like to adopt this amendment to raise the

         15        overall limit of this proposal to 400,000.  That's what

         16        the amendment does.

         17             CHAIRMAN DOUGLASS:  My understanding on the table is

         18        a substitute for Commissioner Scott's amendment to the

         19        substitute amendment.  And I think maybe it's a very

         20        simple one, Commissioner Planas, if I read it right, just

         21        raising the price from 400,000 to 500,000.

         22             COMMISSIONER PLANAS:  That's correct.

         23             CHAIRMAN DOUGLASS:  Now we're on the -- somebody tell

         24        me where we are.

         25             COMISSIONER THOMPSON:  I think you can amend the


          1        substitute.  You can't substitute for a substitute, I

          2        think.

          3             (Off-the-record comment.)

          4             CHAIRMAN DOUGLASS:  I think you're overruled by the

          5        secretary.

          6             COMISSIONER THOMPSON:  That's all right, I'm

          7        overruled by Mills, he's speaking Latin back here.

          8             CHAIRMAN DOUGLASS:  Where we are, if you're for the

          9        $500,000 limit as opposed to the $400,000 limit that's in

         10        Commissioner Scott's proposal, vote aye.

         11             COMMISSIONER MILLS:  May I speak against it?

         12             CHAIRMAN DOUGLASS:  It didn't get any votes, don't

         13        speak against it.  All opposed say no.

         14             (Verbal vote taken.)

         15             CHAIRMAN DOUGLASS:  It fails.

         16             We revert to the substitute motion of Commissioner

         17        Mills as amended by the three -- we've got to do

         18        Commissioner Scott's now.  Now you can vote.  Commissioner

         19        Scott, you have made a motion to amend the substitute

         20        motion, which is on the table, that you have explained.

         21        Is there any discussion on Commissioner Scott's amendment?

         22             (Off-the record comment.)

         23             CHAIRMAN DOUGLASS:  Before we do that Commissioner

         24        Planas has a substitute motion to amend or to --

         25        substitute motion changing from 400,000 to 500,000 the


          1        limit set in Commissioner Scott's proposal and we will now

          2        take debate or -- on that issue between the 500,000 and

          3        the 400,000.  Commissioner Planas as a proponent.

          4             COMMISSIONER PLANAS:  Commissioner Scott gave a very

          5        good argument in the sense that he said there is a lot of

          6        elderly people that went out and paid for their houses.

          7        Those houses that were paid for during a long time and all

          8        of a sudden something could happen and everybody would

          9        have lost all their money.

         10             There is also a saying here that a lot of banks and

         11        financial institutions would be out of money for things

         12        that are owed to them.  We must remember also that every

         13        one of you guys, every Commissioner in here gets probably,

         14        if they do the same as I do, probably ten letters a week

         15        about opening a credit card, about getting a bank account.

         16             All of those financial institutions are going out

         17        there and soliciting every day from all types of people,

         18        either from the poor to the rich, to open an account.

         19        They are going out and trying to solicit for us to spend

         20        money and spend money all the time.  So they are also

         21        proponents of us spending money without regard, without

         22        regard of the type of money that we have.

         23             Mr. Commissioner -- Mr. Chairman, if I may have order

         24        here, please.

         25             CHAIRMAN DOUGLASS:  Now you may have peace and quiet


          1        for the moment.

          2             COMMISSIONER PLANAS:  Thank you.  Now, I do

          3        understand that there's a need, a tremendous need.  I'm a

          4        businessman.  I'm just a poor mechanic like Mr. Morsani

          5        is.

          6             (Laughter.)

          7             COMMISSIONER PLANAS:  The other day I was hit by two

          8        businesses that had an account with us and they declared

          9        bankruptcy.  They owe me each one approximately six to

         10        $10,000.  So I could not cover them.  Now, if we go and

         11        check the records, the people that go ahead and declare

         12        bankruptcy in the state of Florida, it's a very minor

         13        percentage, very minor percentage.

         14             However, those people that go ahead and declare

         15        bankruptcy are also a very small amount of money when they

         16        declare whatever they owe.  We're talking also here now

         17        about people that have a house in Dade County, in Broward

         18        County, West Palm Beach, Sarasota area, where the cost of

         19        living is a little higher than all the other counties.

         20        And if you go and check those records, those people that

         21        live in those areas, they will not declare bankruptcy for

         22        500,000 when they have as much money as they have to

         23        declare bankruptcy -- I got lost in here.

         24             What I was saying is that people with higher income

         25        don't declare bankruptcy as much as say people with lower


          1        income.  That's why we have the 100,000 limitation or the

          2        200,000 limitation.  We need to protect also some

          3        businessmen out there that spend a lot of money for their

          4        houses, they spend a lot of money for their children and

          5        so forth.  And all of a sudden if they declare bankruptcy,

          6        which hardly occurs, which hardly occurs, we need to have

          7        protection for them.  Thank you.

          8             CHAIRMAN DOUGLASS:  All right.  This is in favor,

          9        proponents, Commissioner Zack.

         10             COMMISSIONER ZACK:  I'm in favor of the substitute

         11        for several reasons.

         12             CHAIRMAN DOUGLASS:  What we're debating is the Planas

         13        substitute for Commissioner Scott's -- Commissioner Scott

         14        was 400,000 and Commissioner Planas is 500,000, and that's

         15        what the issue is.  And if you're a proponent of 500,000,

         16        it's your turn to speak.  And Commissioner Zack has the

         17        floor to do that.

         18             COMMISSIONER ZACK:  Thank you, Mr. Chairman.

         19             I have the same concerns Senator Scott, Commissioner

         20        Scott expressed earlier about the whole issue here.  But

         21        the one thing that's for certain is that it is not likely

         22        to pass the voters in any regard.  And I think that the

         23        higher the number that we use, and that's why I used 500,

         24        you could use a million, frankly.  I'd be inclined to

         25        raise it to a million, I'm not willing to put that forward


          1        at this time.

          2             But I think, you know, how can anybody say a million

          3        dollars isn't enough?  I don't think anybody can say that.

          4        And I think you have a much better chance of having it

          5        passed by the voters, which is the ultimate result here

          6        that we're trying to achieve, not just getting some

          7        substitute to a substitute to an amendment passed today.

          8             We really have to look at what our long-term goal is,

          9        and that is to present something that will be accepted by

         10        the voters.  And I think 500,000 has a lot better

         11        likelihood of being accepted by the voters than the 400.

         12        And I'm not sure that a higher number shouldn't be used

         13        ultimately as well.  But for the time being, I'm speaking

         14        in favor of Commissioner Planas' motion.

         15             CHAIRMAN DOUGLASS:  All right, in favor.

         16        Commissioner Wetherington.

         17             COMMISSIONER WETHERINGTON:  I think we ought to treat

         18        people fairly if they don't have any money, but I think we

         19        should also treat people fairly if they have accumulated

         20        some money.  I don't think we should just take the

         21        attitude that we only protect people that don't have any

         22        money.  People like Mr. Planas and others that have worked

         23        hard, maybe they have to have a home for different

         24        reasons.  Maybe sometimes it's connected to their

         25        business, maybe they employ 100 people.  I don't think


          1        they should be discriminated against simply because they

          2        have that lifestyle.

          3             Florida, for better or worse, the whole history of

          4        Florida has been that we have attracted people from other

          5        states.  And one way we have done it, frankly, is to give

          6        incentives to people to come to this state and to live

          7        here and to invest in this state.  So there's a special

          8        reason for homestead exemption in Florida.  It's been part

          9        of our success.

         10             There have been abuses.  I think a good case can be

         11        made that those abuses should be eliminated.  But $500,000

         12        would seem to me to be the minimum amount if you're going

         13        to abolish it at all.  I think a good case can be made to

         14        leave it alone, but if you're going to change it, I

         15        certainly think that we should -- 500,000 is about as low

         16        as we ought to go.

         17             CHAIRMAN DOUGLASS:  And we will, when we revert to

         18        finally getting to the motion and have the opportunity to

         19        debate whether we ought to have it at all.  This is on the

         20        $500,000 proponents.  Commissioner Mills.

         21             COMMISSIONER MILLS:  In opposition.

         22             CHAIRMAN DOUGLASS:  Are there any other proponents?

         23        All right, Commissioner Mills as an opponent.

         24             COMMISSIONER MILLS:  If we intend to do this at all,

         25        we need to do this rationally.  And to put us sort of in


          1        touch with rationality in ourselves, what would you guess

          2        the number, the percentage of the number of homes over

          3        $500,000 in the state of Florida would be?

          4             So let's assume that all of those people will vote in

          5        their self-interest, four-tenths of 1 percent.  That's how

          6        much in touch we are with the value of homes.

          7             CHAIRMAN DOUGLASS:  How many people does that

          8        represent?

          9             COMMISSIONER MILLS:  Well, 2.3 children -- I don't

         10        know.  Whatever 2.3 times four-tenths of 1 percent is, not

         11        a lot of people; 60,000, you have an ironclad number.

         12             The point is, I am, of all folks, in favor of

         13        protecting individual rights.  The other rights that are

         14        entitled to be protected are those of the hardworking

         15        people who play by the rules, pay their bills and are

         16        entitled to be paid.  If someone goes bankrupt, if the

         17        message that we want to send is you're entitled to live in

         18        a $500,000 home and go bankrupt and not pay your mechanic,

         19        then vote for this amendment.  Right now we have no limit

         20        whatsoever; 500,000 is the moral equivalent of no limit

         21        whatsoever.

         22             Let me make the second point, having said that.  If

         23        this state, through its representatives, believes that

         24        200,000 is not enough, the amendment you're about to vote

         25        on says they can change it to 400,000, to 500,000, to

                     DIVISION OF ADMINISTRATIVE HEARINGS (904) 488-9675


          1        anything they want.  And I am very comfortable that

          2        Senator Scott has --

          3             CHAIRMAN DOUGLASS:  Commissioner Scott.

          4             COMMISSIONER MILLS:  -- Commissioner Scott and

          5        Senator Scott has influence in the Senate.  If they wish

          6        to raise the limit, they can do that.  If they wish to put

          7        formulas in, they can do that.  This sets a $200,000

          8        ceiling, this allows us to get ourselves off the list as

          9        the debtor's haven of the country.  And $500,000 is

         10        essentially the equivalent of not having a cap at all.

         11             CHAIRMAN DOUGLASS:  We're either going to have to

         12        shut down or we're going to have to bring this thing to a

         13        vote because we have got committee meetings set that are

         14        at a time certain, to end at 4:00 which I'm going to get

         15        to later.  But I think we have debated this enough.  With

         16        your permission, we'll start voting first on the

         17        substitute of Commissioner Planas, which is to make the

         18        change from 400,000 to 500,000, and Commissioner Scott's

         19        amendment.  Now all of those in favor of the substitute

         20        say aye; all those opposed say no.

         21             (Verbal vote taken.)

         22             CHAIRMAN DOUGLASS:  The substitute is adopted.  Now

         23        on the next matter, we revert to -- we have another

         24        amendment?  I'm going to ask the rules chairman to just

         25        move that we adjourn if we're going to keep this up.  We


          1        have got to have these committee meetings.  We cannot

          2        debate this matter indefinitely.  It's not that difficult

          3        an issue.  When we get to it, we may defeat it anyway.

          4        Commissioner Thompson.

          5             COMISSIONER THOMPSON:  Is this amendment another

          6        substitute amendment?

          7             SECRETARY BLANTON:  No, it's to the proposal.

          8             COMISSIONER THOMPSON:  To the proposal itself?

          9             SECRETARY BLANTON:  Yes.

         10             CHAIRMAN DOUGLASS:  Commissioner Barkdull.

         11             COMMISSIONER BARKDULL:  In light of the observation

         12        of the Chair, I am going to move that this matter be

         13        temporarily passed, to be rescheduled by the rules

         14        committee.

         15             CHAIRMAN DOUGLASS:  All right.  All those in favor of

         16        that, say aye; all opposed say no.

         17             (Verbal vote taken.)

         18             CHAIRMAN DOUGLASS:  It's temporarily passed.  What's

         19        left pending is the substitute amendment, and we'll take

         20        that up when it's brought back again.  Now, Commissioner

         21        Barkdull, I would entertain a motion to extend the time

         22        for the committee meetings past 4:00 to 4:30 and to extend

         23        the time for the beginning of the next committee meetings

         24        to 4:30.

         25             COMMISSIONER BARKDULL:  All right, Mr. Chairman.


          1        First I'll move that the committee meeting times be

          2        extended from 2:00 to 2:30.

          3             CHAIRMAN DOUGLASS:  All right.  It's been moved that

          4        we extend the time from 2:00 to 2:30 for the committee

          5        meetings.  All in favor, say aye; opposed no.

          6             (Verbal vote taken.)

          7             CHAIRMAN DOUGLASS:  That is the case; it passes.

          8             COMMISSIONER BARKDULL:  Now the second set of

          9        committee meetings that are scheduled for 4:00, I move

         10        that they commence at 4:30.

         11             CHAIRMAN DOUGLASS:  All right.  It is moved that the

         12        second set of committee meetings begin at 4:30.  All in

         13        favor, say aye; opposed no.

         14             (Verbal vote taken.)

         15             COMMISSIONER BARKDULL:  Mr. Chairman, the rules

         16        committee is scheduled to meet at 5:00.  I suggest that we

         17        move that time to 5:30.

         18             CHAIRMAN DOUGLASS:  The rules committee meeting is to

         19        be set at 5:30.  All in favor, say aye; all opposed.

         20             (Verbal vote taken.)

         21             CHAIRMAN DOUGLASS:  It carries.

         22             COMMISSIONER BARKDULL:  All right.  Now,

         23        Mr. Chairman, for the benefit of those on the judicial and

         24        the general provisions committees, the calendar for those

         25        two committees is the same calendar that was available


          1        yesterday when there was no quorum present to consider the

          2        matters.  So they will be the matters that will be taken

          3        up, plus any additions that may have been assigned to

          4        those committees overnight.

          5             CHAIRMAN DOUGLASS:  Before that, I think --

          6        Commissioner Barnett, do you have something that

          7        intervenes over his announcements?

          8             COMMISSIONER BARNETT:  No.

          9             CHAIRMAN DOUGLASS:  Go ahead, Commissioner Barkdull.

         10             COMMISSIONER BARKDULL:  The special order calendar

         11        that I'll recommend to the committee for your information

         12        will be those items on today that we temporarily passed,

         13        except where we specifically referred them over to January

         14        or to a select committee, the items on the general

         15        calendar which we did not reach, and the proposals that

         16        may be voted out or action taken on in any committee

         17        today.

         18             I want to call the attention of the cochairs that the

         19        time for your consideration of proposals is running short.

         20        If you want to make any motions in that regard, tomorrow

         21        or Friday.  I also want to call the attention to members,

         22        some of you have indicated to staff that you want to

         23        withdraw some proposals.  So be prepared tomorrow or

         24        Friday to announce those that you want to withdraw.

         25             I had some discussions about Friday's meeting, and I


          1        want to throw out something for you to think about; we'll

          2        take a consensus of the group tomorrow.  And that is, on

          3        Friday come in 8:30 in the morning, plan on adjourning at

          4        1:30 or 2:00, with no break for lunch, but have available

          5        during the morning snacks or fruit in the refreshment room

          6        behind the podium.  That is all the announcements I have,

          7        Mr. Chairman.

          8             CHAIRMAN DOUGLASS:  Commissioner Barnett.

          9             COMMISSIONER BARNETT:  I wanted to withdraw two items

         10        if I could.

         11             CHAIRMAN DOUGLASS:  Proceed quickly.

         12             COMMISSIONER BARNETT:  I wanted to withdraw proposal

         13        No. 145 and Proposal No. 146.  Proposal 145 --

         14             CHAIRMAN DOUGLASS:  We'll take them up one at a time.

         15        Proposal 145 she moves to withdraw.  What is 145?

         16             COMMISSIONER BARNETT:  It deals with extending full

         17        financial disclosure to all elected officials as opposed

         18        to constitutional officers.

         19             CHAIRMAN DOUGLASS:  Does everybody understand the

         20        motion?  Commissioner Barnett has moved to withdraw her

         21        Proposal No. 145, which is to extend financial reporting

         22        to all --

         23             COMMISSIONER BARNETT:  Full financial.

         24             CHAIRMAN DOUGLASS:  -- full financial disclosure to

         25        all elected officials.


          1             COMMISSIONER BARNETT:  As opposed to now it is just

          2        constitutional officers.

          3             CHAIRMAN DOUGLASS:  Correct.  Now you move to

          4        withdraw that?  All in favor of allowing her to withdraw

          5        that, say aye; all opposed.

          6             (Verbal vote taken.)

          7             CHAIRMAN DOUGLASS:  It unanimously is withdrawn.  Now

          8        you have one more.

          9             COMMISSIONER BARNETT:  One more, Proposal No. 146.

         10        Both of these were public proposals which I endorsed, but

         11        we have had discussion of them which is why I am now

         12        withdrawing them; 146 deals with single-member districts

         13        as opposed to multi-member legislative districts.

         14             CHAIRMAN DOUGLASS:  All right.  She moves to withdraw

         15        Proposal 146 which provides for multi-member districts

         16        instead of single-member districts.  All those in favor of

         17        allowing her to withdraw that, say aye; opposed, like

         18        sign.

         19             (Verbal vote taken.)

         20             CHAIRMAN DOUGLASS:  It is withdrawn.  Commissioner

         21        Rundle.

         22             COMMISSIONER RUNDLE:  Mr. Chairman, I likewise would

         23        like to withdraw a proposal.  It was a public proposal, it

         24        was entertained in committee.  We had TPd it earlier and

         25        I've been informed that the head of the ethics commission


          1        does not really desire to have this particular proposal

          2        passed.  So based on that, I would like to withdraw

          3        Proposal No. 63 dealing with the ethics commission.

          4             CHAIRMAN DOUGLASS:  Commissioner Rundle moves to

          5        withdraw Proposal 63.  All in favor, say aye; opposed,

          6        like sign.

          7             (Verbal vote taken.)

          8             CHAIRMAN DOUGLASS:  It is withdrawn.  We're not going

          9        to take up any more because we've got the 2:30 meetings.

         10        Commissioner Barkdull.

         11             COMMISSIONER BARKDULL:  I move we recess until the

         12        hour of 9:00 tomorrow morning.

         13             CHAIRMAN DOUGLASS:  All right.  Before we recess,

         14        before we recess, I want to tell you that we're going to

         15        have to try to make it move a little quicker and I haven't

         16        been helping that too much, but if we would all be a

         17        little more orderly in the chamber I think we can move

         18        quicker.  We got -- later in the day we got a little bit

         19        lax, but that will not happen in the morning.

         20             So on the motion to adjourn, without objection we'll

         21        adjourn until tomorrow morning at 9:00.

         22             (Session recessed at 2:30 p.m, to be continued on

         23   December 11, 1997 at 9:00 a.m.)




          1                             CERTIFICATE

          2   STATE OF FLORIDA:

          3   COUNTY OF LEON:

                        WE, JULIE L. DOHERTY, KRISTEN L. BENTLEY and
          5   MONA L. WHIDDON, Court Reporters, certify that we were
              authorized to and did stenographically report the foregoing
          6   proceedings and that the transcript is a true and complete
              record of our stenographic notes.

          8             DATED this ______ day of ____________, 1997.


         11                      JULIE L. DOHERTY, RPR


         13                      _________________________________
                                 KRISTEN L. BENTLEY

         16                      MONA L. WHIDDON
                                 COURT REPORTERS
         17                      DIVISION OF ADMINISTRATIVE HEARINGS
                                 1230 APALACHEE PARKWAY
         18                      TALLAHASSEE, FLORIDA  32399-3060
                                 (904) 488-9675







                     DIVISION OF ADMINISTRATIVE HEARINGS (904) 488-9675