State Seal Calendar

Meeting Proceedings for December 12, 1997

          1                          STATE OF FLORIDA
                             CONSTITUTION REVISION COMMISSION



                                    COMMISSION MEETING



              DATE:                   December 12, 1997
              TIME:                   Commenced at 8:30 a.m.
         11                           Concluded at 1:35 p.m.

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

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








          1                             APPEARANCES


          3   CARLOS ALFONSO
          4   ANTONIO L. ARGIZ (EXCUSED)
              ROBERT M. BROCHIN
              KEN CONNOR
          7   CHRIS CORR
          8   VALERIE EVANS
         10   PAUL HAWKES
         12   DICK LANGLEY (EXCUSED)
              JOHN F. LOWNDES
         13   STANLEY MARSHALL
              JACINTA MATHIS
         14   JON LESTER MILLS
              FRANK MORSANI
              CARLOS PLANAS  (EXCUSED)
         16   JUDITH BYRNE RILEY
              H. T. SMITH
              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:  Quorum call, quorum call.  All

          4        commissioners indicate your presence.  All commissioners

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

          6             CHAIRMAN DOUGLASS:  Would everyone have their seats.

          7        Okay.  Will you come to order, please.  This -- would you

          8        all rise and we'll call on Reverend David Horton, senior

          9        pastor of Trinity United Methodist Church in Tallahassee,

         10        one of our oldest and most important churches.  And we are

         11        delighted to have him this morning.  May we pray.

         12             REVEREND HORTON:  Creator God, we pause before you

         13        before beginning these proceedings to seek your blessing

         14        and your guidance upon these who have gathered to revise

         15        the Constitution of the State of Florida.  We turn to you

         16        because we think of you as a source of wisdom and truth,

         17        as a source of inspiration and insight, we regard you as

         18        the motivation for equity and justice.  We always need

         19        your encouragement as we work with those who come from

         20        different perspectives.  Help all to work toward a

         21        government that serves the people of Florida with

         22        efficiency in economy.  In the name of all that is holy

         23        and worthy we pray, Amen.

         24             CHAIRMAN DOUGLASS:  Commissioner Alfonso, please come

         25        lead the allegiance to the flag.

          1             (Pledge of Allegiance.)

          2             CHAIRMAN DOUGLASS:  All right.  Chairman of rules,

          3        Commissioner Barkdull.

          4             COMMISSIONER BARKDULL:  Mr. Chairman, members of the

          5        commission, you have on your desk a proposed special order

          6        which picks up what we did not consider yesterday, it

          7        picks up the matters that were on the calendar that we did

          8        not reach.

          9             CHAIRMAN DOUGLASS:  We need some order, please.

         10             COMMISSIONER BARKDULL:  It added some of the items

         11        that came out of some committees.  Some of you have

         12        inquired about why matters that did not reach the calendar

         13        that were in your committees and voted out, those that had

         14        amendments to them, had to go back to bill drafting, and

         15        many of them did not get to the office in time to be on

         16        the calendar, and therefore, they're going to obviously

         17        have to go over to January.  I move, sir, that we do

         18        ratify the order as suggested by the rules committee.

         19             CHAIRMAN DOUGLASS:  Already it's been moved that we

         20        adopt the special order recommended by the rules

         21        committee.  Without objection, it is adopted.

         22             COMMISSIONER BARKDULL:  Mr. Chairman, at this time,

         23        I'd like to the call on Commissioner Mills for a report

         24        for the special committee on Article V, Costs.

         25             CHAIRMAN DOUGLASS:  Commissioner Mills, you are

          1        recognized.

          2             COMMISSIONER MILLS:  Mr. Chairman, your committee on

          3        Article V, Costs, met yesterday.  As I reported to you

          4        before, we were examining the issues of what should be

          5        included in the definition of the court system.  We have a

          6        preliminary redraft, which I will ask the staff to

          7        distribute to all of you before we come back next time.

          8             The remaining issues are which items which are

          9        currently in local judicial budgets should be included in

         10        Article V, Costs, if, in fact, we determine that we are

         11        going to acquire those costs to the State, such issues as

         12        regarding ad litem, such issues as translators.  And just

         13        for background information, the committee at this time I

         14        think has the thinking that if it's constitutionally

         15        required, it should be probably part of those things that

         16        we assume the obligation for.

         17             And there is a whole second issue which the committee

         18        will consider next time dealing with the treatment of the

         19        clerks under Article V, their costs and their fees, fines

         20        and forfeitures.  So we will meet again next time and I

         21        think we will have at that point a draft to bring back to

         22        the floor.  Thank you, Mr. Chairman.

         23             CHAIRMAN DOUGLASS:  Thank you, Commissioner Mills.

         24        We'll move to the special order.  Go ahead, excuse me,

         25        Commissioner Barkdull.

          1             COMMISSIONER BARKDULL:  I just have a couple more

          2        comments.  The -- as yesterday -- as we approach the

          3        adjournment today, I want to give you time to withdraw any

          4        matters that you might want to withdraw so that the staff

          5        will know what they are before we come back in January.

          6        At the present time we are scheduled to come back Monday

          7        the 9th of January.  The rules committee does not

          8        contemplate changing those dates that are set.  We hope

          9        that everybody will be here.

         10             The -- during the progress of the morning, I

         11        understand, in the next hour, hour and a half, the snacks

         12        will be in the back room and I hope we can proceed as far

         13        as we can go today.  Obviously, from looking around the

         14        chamber, we are going to have to -- have a problem with

         15        attendance, we will have to see how far we can go.

         16             CHAIRMAN DOUGLASS:  We presently have, I believe, 25

         17        present, 26.  And that's getting pretty sparse.  You

         18        know -- go ahead.

         19             COMMISSIONER BARKDULL:  Excuse me, I've been

         20        corrected.  It is Monday the 12th that we come back up

         21        here.  I am in the wrong month.

         22             CHAIRMAN DOUGLASS:  And the wrong date.  Those of you

         23        that are here, you know, we all appreciate your being

         24        here.  We are having trouble with attendance and it's

         25        pretty obvious that Friday people decide that we won't

          1        miss them and they proceed to go to other pursuits.  And I

          2        don't want to single anybody out, but we are going to have

          3        to have better attendance and we are going to have to have

          4        people stay.  Because what will happen if we don't have

          5        enough people here when we consider these matters, we'll

          6        been doing it all over again.

          7             And I think we are getting to the point where we have

          8        got to start moving.  And we can't keep putting off a lot

          9        of these difficult issues, we are going to have to get to

         10        it and get them refined and passed or defeated.  And I'd

         11        ask all of you to please try to plan your schedule for

         12        these January meetings so you don't have to leave on

         13        Friday.  And you can get here when the meeting starts and

         14        you can be present during the course of the meetings.

         15        Certainly, for constant absentees, the appointing

         16        authorities can take some action in relation to that.  And

         17        I know that they certainly don't want to, but I also know

         18        that when people were appointed they were told that this

         19        was going to be a very time-consuming process.  And

         20        everybody came with their eyes wide open.

         21             I do realize that some things come up that you cannot

         22        take care of.  Commissioner Sullivan had to go have some

         23        medical things today that could not be put off.  And he is

         24        one that came to me early and told me that that was

         25        happening to him.  I don't think that it's anything

          1        serious, I think it's more in the area of testing-type

          2        medical procedures.  But those types of things are going

          3        to happen.  But I do know that some people say, Well, I've

          4        got to go do something for a big client today.

          5             Certainly, all of us that have been in the law

          6        practice know that you can usually get around that and set

          7        it at another time or do it on Saturday and Sunday or

          8        whatever if it's a big enough client.  I think, again,

          9        please pass that word to those members that seem to leave

         10        on the last day, they are really hamstringing the work for

         11        the commission.

         12             The debate yesterday for the unicameral legislature,

         13        for your information, I think was one of the -- for

         14        whatever it's worth -- I think a lot of people agreed with

         15        me, was one of the best debates on a constitutional issue

         16        that's been held.  It was in '78, I was on that one.  I

         17        don't think anything approached the presentations.  There

         18        was not any repetition, which Commissioner Jennings and I

         19        discussed is very, very unusual.  Every person that spoke

         20        had a point of view, they said it and there was no

         21        personal involvement as occurs in most bodies and I want

         22        to compliment this group on what I think will be a

         23        classical inquiry into the legislative branch.

         24             And the television of that, the video is taped and

         25        certainly will probably wind up being used in a lot of

          1        classrooms around the state as an example of a discussion

          2        that really gets to the issues on this.  Commissioner

          3        Evans-Jones, I still voted no, but you just did a great

          4        job.  And in spite of your double close and having

          5        Commissioner Sundberg speak, you did great.  And

          6        Commissioner Sundberg, I'm teasing you, of course, because

          7        your presentation was equally impressive.

          8             COMMISSIONER EVANS-JONES:  A bicameral close.

          9             CHAIRMAN DOUGLASS:  Beg your pardon?

         10             COMMISSIONER EVANS-JONES:  Bicameral close.

         11             CHAIRMAN DOUGLASS:  A bicameral close, all right.

         12        See, what did I tell you.  Now we can start it on the

         13        special order -- yes, Commissioner Evans?

         14             COMMISSIONER EVANS:  I for one, and I know there are

         15        some other people who did not get the change of calendar

         16        neither by fax or mail nor any other way.  I have on my

         17        calendar that we are meeting in January, the 5th, 6th, and

         18        7th, starting at 1:00 on the 5th.  Possible meeting, I

         19        haven't heard whether possible has become actual, 14th

         20        15th and 16th.  And then another meeting, definite, 21st,

         21        22nd, 23rd.  So I need the amended calendar.  Granted this

         22        is not much notice for me, but I still need it.

         23             CHAIRMAN DOUGLASS:  If you haven't gotten it, it's

         24        because for some reason there was a glitch, because

         25        everybody has had it for some time.

          1             COMMISSIONER EVANS:  Everybody has not.

          2             CHAIRMAN DOUGLASS:  Is there a motion to fire

          3        Mr. Buzzett?  You are granted a reprieve.

          4             (Laughter.)

          5             CHAIRMAN DOUGLASS:  Commissioner Barkdull?

          6             COMMISSIONER BARKDULL:  Mr. Chairman, they were

          7        supposed to be stapled to the back of this matter.  It

          8        will be distributed this morning.  It is the week of the

          9        12th and three days of the week of the 26th.  There will

         10        be a copy of it distributed.

         11             CHAIRMAN DOUGLASS:  I think the 12th is Monday.

         12             COMMISSIONER BARKDULL:  1:00 on Monday the 12th and

         13        conclude at 1:00 that Friday on that week.  The week of

         14        the 26th is scheduled to start, I believe, at 9:00 in the

         15        morning on Monday and conclude on Wednesday afternoon.

         16        Those will be three full days.  The chamber is not

         17        available on Thursday, and we are not scheduled to meet on

         18        Friday.

         19             CHAIRMAN DOUGLASS:  All right.  Now, if you have

         20        problems with that, don't bring them up on the floor, go

         21        bring them up with the rules committee and then we'll talk

         22        about it.  Commissioner Freidin?

         23             COMMISSIONER FREIDIN:  Do you know the schedule for

         24        February also?

         25             CHAIRMAN DOUGLASS:  Commissioner Barkdull?

          1             COMMISSIONER BARKDULL:  We will have a tentative -- I

          2        think it's been distributed, but it'll be redistributed

          3        this morning.

          4             CHAIRMAN DOUGLASS:  All right.  February schedule

          5        will be redistributed this morning.  Commissioner Zack?

          6             COMMISSIONER ZACK:  Mr. Chairman, for those going to

          7        south Florida, there is a 12:10 flight and then another

          8        one that leaves at 3:45.  And I'm wondering if it's

          9        possible and there's been some discussion among a number

         10        of people including yourself, about the possibility of

         11        working evenings.  Particularly when we get into January,

         12        because people just go back to the room and have dinner

         13        and go to sleep, we're really here to work and get out and

         14        do whatever we have to do.  If that's a possibility, I

         15        know you need to think about it and reflect on the

         16        schedule and so forth.  But to the extent that that's

         17        possible, I thought that it might be an idea to consider.

         18             CHAIRMAN DOUGLASS:  We have discussed this, it's

         19        under consideration.  On the days when you start at

         20        1:00, that's a distinct possibility.  On the other days,

         21        if you go a full day, you need to go home because anything

         22        that's done after 6:00 or 7:00 becomes rather

         23        nonproductive in this setting.  So we're considering that

         24        and I think that we will address it if we have to.  And

         25        it's been considered and will continue to be considered.

          1             COMMISSIONER ZACK:  The only thing I would ask is

          2        that if it's possible to make the five-day meeting into a

          3        four-day meeting by using Monday evening as opposed to

          4        Friday morning, it might be of some assistance.

          5             CHAIRMAN DOUGLASS:  I think if we don't get started,

          6        it's pretty obvious, we are going to need a six-day

          7        meeting every night on the first week in January to get to

          8        these issues.  We're not going to make that determination

          9        at this point.  We are considering what we're going to do

         10        but I think you can rest assured -- and don't make plans

         11        to leave here early on Friday like everybody, not

         12        everybody but a lot of people seem to do, because in

         13        January you're going to find we've got a lot of these

         14        things and we're going to have to take them up and we need

         15        to do it in an orderly manner.  And now if we don't get

         16        started, we are going to be here and get nothing done

         17        today.

         18             Now unless it's very important -- all right.

         19        Commissioner Riley.

         20             COMMISSIONER RILEY:  I would like to suggest that

         21        instead of the 1:00 beginning in January, that we start as

         22        we have been at the 9:00 a.m.  Would that not give us a

         23        little bit more time and perhaps --

         24             CHAIRMAN DOUGLASS:  Commissioner Riley, I'm referring

         25        your very important suggestion to the rules committee

          1        where it should be addressed.  They set these things and

          2        they're not to be done from the floor.  And I'm not

          3        recognizing any more discussion on this because the place

          4        to do it is in the rules committee and that's why we have

          5        them.  Everybody can get up and tell their individual

          6        problems and we could go all day.

          7             I'm going to call the first -- if that's all from the

          8        rules chairman, we'll proceed to the special order.  And

          9        the first item is committee substitute for Proposal 47

         10        which you will please read.

         11             READING CLERK:  Committee substitute for Proposal 47,

         12        a proposal to create Article VIII, Section VII, Florida

         13        Constitution, and revise Article XI, Section III, Florida

         14        Constitution, providing that the power of self-government

         15        of a county or municipality may not be diminished except

         16        by general law, county charter, or special act approved by

         17        the electors of the county or municipality; providing that

         18        a constitutional initiative that limits the powers of

         19        municipalities or limits the ability of municipalities to

         20        raise revenue must be approved by the electors of a

         21        municipality in order to take effect within a

         22        municipality.

         23             CHAIRMAN DOUGLASS:  All right.  We have two

         24        amendments on the table.  I would like, however, for the

         25        proponent of this to present the proposal first and then

          1        we'll go to the amendments.  Commissioner Nabors, you are

          2        recognized to discuss, as a proponent, to the proposal.  I

          3        understand also that you have an amendment on the table.

          4        If you will tell us first the proposal and then address

          5        your amendment.

          6             COMMISSIONER NABORS:  I don't know whether

          7        Mr. Anthony's schedule is going to permit him to be here

          8        or not.  This is his proposal although he and I -- I

          9        believe he's in agreement with the amendment.  Do you want

         10        to the TP it?

         11             CHAIRMAN DOUGLASS:  First, tell us what the proposal

         12        is then offer your amendment.

         13             COMMISSIONER NABORS:  The proposal and the amendment

         14        are the same, it's a matter of language.  One of the

         15        geniuses of the '68 constitution is a concept of

         16        home-rule, within your charter counties, non-charter or

         17        municipality.  And the proposal basically recognizes the

         18        fact that you could have a statewide initiative, whether

         19        it's constitutional or the legislative on the issue of

         20        local concern, and that that could be a flaming political

         21        issue, for example, in Broward and Dade and could pass and

         22        could diminish the home-rule power within other areas of

         23        the state.

         24             It's not intended to deal with anything like the net

         25        ban, which is a matter of statewide importance.  But the

          1        language, and I'll go over the language in detail, the

          2        language, when you're dealing with matters of local

          3        concern, the proposal basically says that the home-rule

          4        power of counties and cities will not be diminished by any

          5        initiative, except by general law, charter amendment or

          6        special act approved by the voters.  The reason is, if you

          7        have a local problem, then there generally is a mechanism

          8        to deal with that.

          9             If you are a charter government, almost every charter

         10        has an initiative procedure in that.  If you are a

         11        non-charter county, you can -- special act is a solution

         12        or you could have a citizen initiative to create a

         13        charter.  I don't envision that this would ever be a

         14        freestanding proposal.  The concept is, is that if we have

         15        a proposal dealing with legislative initiative that this

         16        would be something that if it passes with a majority

         17        today, and I hope it does, could be considered by style

         18        and drafting to be incorporated into the document.

         19             We've just got to recognize the diversity of this

         20        state.  And you've got to recognize the population

         21        realities.  And you could have, as I say again, a

         22        statewide initiative to deal with the problem in south

         23        Florida, and the votes would be there to take away local

         24        home-rule prerogatives in Orange County, in Okaloosa

         25        County, and Escambia County.

          1             So what is intended to get, it's intended to be

          2        surgical in a sense.  It only would deal with those

          3        matters of local concern and not matters of statewide

          4        import.

          5             CHAIRMAN DOUGLASS:  All right.  Commissioner Nabors

          6        moves the adoption of committee substitute of Proposal 47

          7        and he has an amendment on the table which he introduces

          8        as well.  Would you read the amendment, please.

          9             READING CLERK:  By Commissioner Nabors.  Delete

         10        everything after the proposing clause and insert lengthy

         11        amendment.

         12             CHAIRMAN DOUGLASS:  Explain your amendment, please.

         13             COMMISSIONER NABORS:  This is the language -- the

         14        original proposal had the language in the amendment plus

         15        other language in there.  It was intended to be amended in

         16        committee, but the proposal that was in the jacket really

         17        is inartfully drafted and the substance gets to the heart

         18        of the matter.

         19             CHAIRMAN DOUGLASS:  So your amendment is just a

         20        redraft of the proposal, no substantive change in what it

         21        does.

         22             COMMISSIONER NABORS:  Not intended to be,

         23        Mr. Chairman.

         24             CHAIRMAN DOUGLASS:  All right.  I think we will --

         25        Commissioner Barkdull.

          1             COMMISSIONER BARKDULL:  Do you want a debate on this?

          2             CHAIRMAN DOUGLASS:  Yes, I was deciding whether we

          3        should just move the adoption of the amendment and proceed

          4        with the debate.  He's moved the adoption of the

          5        amendment.  All of those in favor of the amendment, say

          6        aye.  Opposed, like sign.

          7             All right.  We're now on the amended proposal -- do

          8        you rise to speak to the proposal?

          9             COMMISSIONER BARKDULL:  I rise to ask the gentlemen a

         10        question, I'm an opponent of the proposal.

         11             CHAIRMAN DOUGLASS:  All right.  Questions are

         12        appropriate.  Commissioner Barkdull.

         13             COMMISSIONER BARKDULL:  Commissioner Nabors, as I

         14        understand this, if there's an initiative referendum in

         15        the state that we will, say, raise cigarette taxes 5 cents

         16        and if this doesn't pass in a particular municipality or

         17        unincorporated area, then that tax would not be levied

         18        even though it might receive statewide support; am I

         19        correct/

         20             COMMISSIONER NABORS:  No, I don't believe so.

         21             COMMISSIONER BARKDULL:  Well, it says that, the last

         22        part of it, indicates if you attempt to raise revenue it

         23        must be approved by the electors of the municipality --

         24             COMMISSIONER NABORS:  Well, the substitute language

         25        doesn't have that in there.  Have you got on your table

          1        the committee substitute?  What we tried to do, in the

          2        substitute, the language appears on the first page, it

          3        should be on your desk.

          4             COMMISSIONER BARKDULL:  All right.  I've got it on my

          5        desk and I'm looking at it.  The first thing --

          6             COMMISSIONER NABORS:  Let me tell you why I don't

          7        think that your question would have the result that you

          8        suggest, because a statewide increase in cigarette tax

          9        would not be a matter of local concern, that would be a

         10        statewide issue just like net ban is a statewide issue.

         11        On the other hand, if there was an initiative to limit the

         12        ability of local governments to say that transportation

         13        impact fees would be abolished, that would be a matter of

         14        local concern, it wouldn't be a statewide issue.  And that

         15        would go to the local power of counties and cities.

         16             The concern is, and this is a legitimate concern, is

         17        you can have an issue that's a burning political issue in

         18        Broward and Dade County and other areas of the state and

         19        citizens can do an initiative process, it can pass in

         20        those areas and it takes away powers of local concern in

         21        other areas of the state when there are other vehicles

         22        available for them to accomplish the same purpose.

         23             We don't envision -- I don't envision and Mr. Anthony

         24        doesn't vision this would be a freestanding proposal.  But

         25        in the event that we prove out of this commission a

          1        concept of a legislative route of voter initiative, this

          2        would be something they would ask -- the style and

          3        drafting would take into consideration to attempt to

          4        recognize there are certain matters of local concern that

          5        should not be subject to the statewide vote and that power

          6        taken away from those cities and counties.

          7             COMMISSIONER BARKDULL:  Well, what I'm looking at is,

          8        we have a statewide amendment to the Constitution, by a

          9        constitutional initiative, citizens initiative, and what

         10        we can end up with is a hodgepodge of it being effective

         11        in some jurisdictions and not effective in others.

         12             COMMISSIONER NABORS:  I can respond to that, is that

         13        the genius of home-rule is that we do, in regulatory

         14        areas, have a hodgepodge of laws because it recognizes the

         15        unique situations of any state.  What we are saying is, we

         16        want to preserve that uniqueness in Florida and not have

         17        the initiative procedure override that by a vote in one

         18        area of the state.

         19             COMMISSIONER BARKDULL:  Excuse me, sir, but isn't one

         20        of the differences that in the home-rule charters that is

         21        something that's done under general law at the local

         22        option of the people, whereas an amendment of the

         23        constitution is a statewide statement?

         24             COMMISSIONER NABORS:  Well, I'll debate that and say

         25        that's true.  And what this is to get at is if those local

          1        people have a charter which gives them home-rule, then

          2        they would be the ones to vote to diminish that home-rule

          3        and not have imposed by them someone out of their area.

          4             CHAIRMAN DOUGLASS:  Commissioner Wetherington?

          5             COMMISSIONER WETHERINGTON:  Commissioner Nabors, I

          6        know a little bit about the local and general thing being

          7        from Dade County.  I'm having some difficulty

          8        understanding how something that would be called pure

          9        local concern, which has got to be very unique and of a

         10        limited nature to the specific locality could really be

         11        impacted by this.  I mean, what would be a matter of pure

         12        local concern, which usually means something that's unique

         13        to that area that could possibly be the subject matter of

         14        a statewide initiative.  I'm trying to think of any kinds

         15        of things that could fall into that that would meet the

         16        test that you are suggesting.

         17             COMMISSIONER NABORS:  We heard testimony in Broward

         18        County on special assessments.  Let's say there was a

         19        controversy in Broward County and Dade County on a special

         20        assessment program, which is purely a local home-rule

         21        non-tax initiative for utilities.  So, there was a

         22        movement in Dade County to have a statewide initiative

         23        require voter approval of all special assessments of

         24        utility operations.

         25             COMMISSIONER WETHERINGTON:  Wouldn't that affect

          1        every area that engages in special assessments throughout

          2        the state?

          3             COMMISSIONER NABORS:  That's right.  And that is that

          4        essential home-rule prerogative of special assessments.

          5        In fact, each jurisdiction, as a matter of local concern,

          6        and you have a vote in Dade and Broward County could take

          7        that away from powers of Orange County, Okaloosa County,

          8        and Calhoun County.  I would contrast that to something

          9        like the net ban which doesn't really recognize -- it's

         10        not really a local concern, it is a concern of statewide

         11        implication.

         12             Now, maybe the language can be tightened up in style

         13        and drafting, but the concept is that there are certain

         14        matters that are essentially home-rule issues and that

         15        those should be up to those people to vote on that as to

         16        whether or not it's going to be diminished or not.

         17             COMMISSIONER WETHERINGTON:  I can't think of any,

         18        that's the problem.

         19             COMMISSIONER NABORS:  Well, the one I gave you is a

         20        classic example of that.

         21             COMMISSIONER WETHERINGTON:  On the special

         22        assessments, it can be a statewide problem.  One area may

         23        be more interested in a special assessment or may have

         24        more problems, but everybody has got special assessments.

         25        So, why is that a matter of -- in other words, what I'm

          1        saying is, there's going to be an enormous definitional

          2        problem here if this thing passes to try to figure out

          3        what qualifies and what doesn't and is it worth it, that's

          4        the question I'm asking.

          5             COMMISSIONER NABORS:  Let me give you another

          6        example.  Let's say that there is a provision in Sarasota

          7        County, for example, within their charter that the people

          8        voted on that says that any bond issue in excess of

          9        $10 million has to be voted upon.  That's the restriction.

         10        It doesn't apply in any county in this state.  Is it an

         11        initiative within Sarasota County.  Let's say that there's

         12        an issue about financing in the city of Miami and it got

         13        to be a major issue to Dade County.  Dade County could do

         14        a charter amendment to the Miami charter to limit their

         15        ability to bond -- as long as it's not inconsistent with

         16        general law -- but it may not go that way, it maybe is a

         17        statewide initiative and I would argue that's a matter of

         18        local concern.  It's not a -- within each county, that

         19        should be a choice within that county.

         20             COMMISSIONER WETHERINGTON:  Well, the question would

         21        be, whether if you have a bond issue over $12 million you

         22        should have voter approval.  Isn't that issue something

         23        that would be an issue in every county in the state?  One

         24        county may like it and one may not but how is that a

         25        matter of pure local concern, that's what I'm trying --

          1             COMMISSIONER NABORS:  Well, the reason it is, because

          2        those counties -- 60 of the counties out of the 67 do not

          3        like it, you could steal that part, it could be taken away

          4        because of the vote in the other seven counties.

          5             COMMISSIONER WETHERINGTON:  But that can happen in

          6        any instance, can't it?  If the number of votes from south

          7        Florida come in, it can defeat -- although most of north

          8        Florida doesn't like it, it can be defeated by south

          9        Florida's votes whether it's a matter of local concern or

         10        however we categorize it.

         11             COMMISSIONER NABORS:  Absolutely.  What we're saying

         12        is if it's a matter of local concern dealing with

         13        home-rule power, then that shouldn't be possible.

         14             CHAIRMAN DOUGLASS:  Commissioner Sundberg?

         15             COMMISSIONER SUNDBERG:  Mr. Chairman, would the

         16        gentleman yield for questions?

         17             COMMISSIONER NABORS:  Yes.

         18             COMMISSIONER SUNDBERG:  To see how this operates,

         19        Commissioner Nabors, let me give you a hypothetical.

         20        Let's assume that there was a constitutional initiative

         21        petition that provided that ad valorem taxes in the state

         22        of Florida would be capped at 4 percent or 4 mills, I'm

         23        sorry, 4 mills.

         24             And do I understand that under this proposal, that if

         25        in fact a municipality had a larger cap for taxation, that

          1        that would not apply in that particular municipality; is

          2        that correct?

          3             COMMISSIONER NABORS:  That's correct.

          4             COMMISSIONER SUNDBERG:  All right.  Let me ask you

          5        another hypothetical.  What if the -- and let's assume

          6        that that constitutional initiative passed by a 90 percent

          7        vote across the state, let's take another hypothetical.

          8        The state legislature in regular session passes a cap, an

          9        identical kind of cap on municipal taxing power by a

         10        simple majority of one, do I understand under your

         11        proposal, that would be binding on each of those local

         12        governments?

         13             COMMISSIONER NABORS:  Absolutely.  Let me explain

         14        that response.  This does not -- in that instance, if this

         15        was to pass, where there was an initiative dealing with

         16        putting a cap on property taxes, what this would mean is

         17        that would not go to the ballot because it would be a

         18        matter of local concern.  Now if I was in -- because it

         19        basically says that the only way you can accomplish that

         20        would be through general law, as you said, or through

         21        charter member, the special act approval of voters.  There

         22        would be a limitation of those that go to the ballot.

         23             It's not a situation where you look and see it passed

         24        here and didn't pass here.  It could be crafted that way,

         25        but that's not the intent of this language.  It would be a

          1        limitation just like similar subject matters and

          2        limitation.  If it's a matter of local concern, it

          3        couldn't be subject to a statewide initiative to be -- let

          4        me make sure I'm responsive to your question.

          5             CHAIRMAN DOUGLASS:  Commissioner Mills?

          6             COMMISSIONER MILLS:  Does the gentleman yield for a

          7        question?

          8             CHAIRMAN DOUGLASS:  He yields.

          9             COMMISSIONER MILLS:  What sort of troubles me is

         10        trying to understand that this dealing with the powers of

         11        municipalities, that's all municipalities.

         12             COMMISSIONER NABORS:  No, it's county and municipal

         13        power.

         14             COMMISSIONER MILLS:  Do I have the wrong language?

         15        Is there any such initiative that limits the powers --

         16        that makes it even worse?  I'm sorry.  I mean, that limits

         17        the power of counties and municipalities; is that what it

         18        says now?

         19             COMMISSIONER NABORS:  With respect to matters of

         20        local concern.

         21             COMMISSIONER MILLS:  Well, I think I'm with Judge

         22        Wetherington, either it would be litigated each time and

         23        even after they were passed or this creates a special

         24        exception where the people of the state can by initiative

         25        limit the power of any part of this state, I mean of the

          1        state.  And it sort of suggests that counties and

          2        municipalities are not part of the state.  The initiative

          3        process, which is the people's -- one of the ways people

          4        can limit, by Constitution, the authority of any part of

          5        its state government.  This is -- you are cutting out an

          6        exclusion for local government, for local purpose and I

          7        find that at least confusing because there are -- it's

          8        hard for me to think of a circumstance that doesn't affect

          9        more than one municipality or couldn't.  I have -- and

         10        also, it's clear that this is only limiting the power

         11        that -- I suppose if you had an initiative that augmented

         12        the power it would be okay.

         13             COMMISSIONER NABORS:  It's hard to imagine one that

         14        would augment the power under our constitutional concept.

         15             COMMISSIONER MILLS:  I still don't understand.  I

         16        understand the examples that you have given, but have

         17        there been any initiatives, in any of the hundred

         18        initiatives or so that have been --

         19             COMMISSIONER NABORS:  Yes, I mean, there was an

         20        amendment that should be voter approval of all new taxes

         21        which was stricken on the single subject matter, that

         22        would require a voter approval of any new tax, including a

         23        change in a rate of a tax or removal of an exemption.  Had

         24        that passed statewide, and it could have passed because of

         25        Miami and Dade, that meant any time the property taxes

          1        were increased in any other county requiring voter

          2        approval, I would argue that that type of a restriction

          3        should be voted for by the people in that county and not

          4        statewide.

          5             COMMISSIONER MILLS:  But it did apply uniformly to

          6        every county.

          7             COMMISSIONER NABORS:  Well that's because -- that's

          8        right.  The point -- the fundamental point here is that

          9        there are ways to restrict those powers currently through

         10        local elections.  And our concern is that if we are not

         11        creating -- we are creating special groups in the cities

         12        and counties only in the area dealing with their power of

         13        local self-government on matters of local concern.  And

         14        the difficulty we're going to face is, without something

         15        like this, you have a voter initiative that is a big issue

         16        in a small area of the county, it's going to take away

         17        that power of local government in other areas unaffected.

         18        Whereas the solution to that is those powers can be

         19        restricted at the local level but not be restricted on a

         20        statewide basis.  But it's not intended to deal with

         21        issues that are beyond local concern.  Issues such as net

         22        bans, or issues that go beyond local issues, beyond the

         23        power of local self-government.

         24             CHAIRMAN DOUGLASS:  Anybody else?  Ready to vote?

         25        Vote on the machine.  Open the machine.

          1             (Vote taken and recorded electronically.)

          2             CHAIRMAN DOUGLASS:  Lock the machine.  Announce the

          3        vote.

          4             READING CLERK:  Five yeas and 21 nays, Mr. Chairman.

          5             CHAIRMAN DOUGLASS:  It fails.  Proposal No. 18 by

          6        Commissioner Riley, would you please read it.

          7             READING CLERK:  Proposal 18, a proposal to revise

          8        Article VI, Section V, Florida Constitution; providing for

          9        elections to be held on Saturday and Sunday and

         10        prohibiting second primaries.

         11             CHAIRMAN DOUGLASS:  Commissioner Riley, do you move

         12        this?

         13             COMMISSIONER RILEY:  I did.  And yesterday, I passed

         14        out an amendment to this, which was in effect, to take out

         15        the Saturday and Sunday and put back in the Tuesday.

         16        Since I understand both by committee and by talking to the

         17        commissioners that I don't think that would have gone

         18        anyway, so I propose --

         19             CHAIRMAN DOUGLASS:  That now provides -- the change

         20        would be it prohibits second primaries?

         21             COMMISSIONER RILEY:  Correct.

         22             CHAIRMAN DOUGLASS:  And that's the sole issue that

         23        you have entered it at this point?

         24             COMMISSIONER RILEY:  Correct.  That is the issue that

         25        I would like to speak to.

          1             CHAIRMAN DOUGLASS:  Is that amendment on the table?

          2             COMMISSIONER RILEY:  It was on the table yesterday.

          3             CHAIRMAN DOUGLASS:  And we adopted it?

          4             COMMISSIONER RILEY:  No.  It was passed out

          5        yesterday.

          6             CHAIRMAN DOUGLASS:  Read the amendment, please.

          7             READING CLERK:  By Commissioner Riley on Page 1,

          8        Lines 14 and 15, delete the words "Saturday and Sunday"

          9        and insert "Tuesday".

         10             CHAIRMAN DOUGLASS:  All right.  Commissioner Riley.

         11             COMMISSIONER RILEY:  Commissioners, I have looked in

         12        this process for ways and areas that, through our

         13        Constitution, we might be able to find ways to increase

         14        participation in voting and I had hoped that weekend

         15        voting might do that.  I have pulled that out because of

         16        religious problems and time constraints.  However, the

         17        remaining portion, which is the second primary issue, I

         18        think may well also do that.  And I have looked at the

         19        numbers as I'm sure many of us have.

         20             We have eligible voters in the county, not all of the

         21        eligible voters register.  Of those that are registered,

         22        probably 60 percent, 65 percent, more in a national

         23        election, but in a state election, that's about the number

         24        that actually votes in the first primary.  That number

         25        goes down substantially in the second primary and I would

          1        hope that if one primary is the only one that we have, we

          2        would have higher voter participation, we would end up

          3        with more people going to the polls.  And I would ask you

          4        to consider this proposal as a way to do that.

          5             CHAIRMAN DOUGLASS:  All right.  Commissioner

          6        Barkdull?

          7             COMMISSIONER BARKDULL:  Mr. Chairman, note me as an

          8        opponent.

          9             CHAIRMAN DOUGLASS:  You're an opponent, go ahead.

         10             COMMISSIONER BARKDULL:  I want to speak against this.

         11        This is putting into the Constitution the primary dates,

         12        the primary systems, which is now a system that's

         13        established by law.  I don't think it belongs in the

         14        Constitution.  It's something that the Legislature can do

         15        if they want to.  I don't want to lock it in.

         16             Number two, I don't think it, in this form, is really

         17        the best form to the present something to the people,

         18        where if you've got five people in a race it would be

         19        possible for somebody to read it with 21 percent of the

         20        vote.  If you were going to do anything --

         21             CHAIRMAN DOUGLASS:  I forgot to adopt the amendment.

         22        And you are speaking to the proposal.

         23             COMMISSIONER BARKDULL:  Yes, sir.

         24             CHAIRMAN DOUGLASS:  So, without objection, the

         25        amendment is adopted and proceed with your debate.

          1             COMMISSIONER BARKDULL:  We've had a two-primary

          2        system in this state since the early '30s.  Prior to that

          3        time, we had another system when we put in the primary

          4        system about the turn of the century.  And that was that

          5        you had a second choice.  And if there were more than

          6        three or four people in the race, you voted your first

          7        choice and your second choice and then the people that

          8        were all below the second level, they picked up the second

          9        choice votes on those that were eliminated.  That's not

         10        the best system in the world, but I think it's a better

         11        system than a completely opened primary.  So for both of

         12        those reasons, I would oppose this.  I don't think it,

         13        number one, belongs in the Constitution.  It can be

         14        straightened out by the Legislature, anytime they want to.

         15             And, number two, if we were going to go that way, we

         16        ought to have the second preference rather than to just

         17        give it to the person that secures the plurality.

         18             CHAIRMAN DOUGLASS:  All right.  Commissioner Morsani?

         19             COMMISSIONER MORSANI:  I rise as a proponent of this.

         20        It's obvious that it has come up many times in the

         21        Legislature and they do not and I do not see them changing

         22        this on behalf of the citizenry.  It, invariably --

         23        invariably it's an incumbency issue.  When these have been

         24        examined over time, it's been the incumbents that have

         25        benefited by it because of what Ms. Riley has said,

          1        primarily because the voter turnout is so low on the

          2        second primary.  I don't -- I recognize that it could be

          3        done by statute and the Legislature.  But invariably,

          4        that's not going to happen.  I strongly urge that we take

          5        this action.  I reluctantly say so.  I wish it wasn't

          6        necessary to do in the Constitution.  But I -- in dealing

          7        with the matter on the local level, many, many of the

          8        people in our community, I know, have said the same thing.

          9        I would urge you to vote for this proposal.  I think we do

         10        need this change in our state.

         11             CHAIRMAN DOUGLASS:  Commissioner Nabors?

         12             COMMISSIONER NABORS:  Commissioner Riley, as I read

         13        this proposal, it deals not only with the issue of the

         14        Saturday and Sunday, but also the fact that there can be

         15        only one primary.

         16             CHAIRMAN DOUGLASS:  Saturday and Sunday has been

         17        eliminated by the amendment.  It's only the issue of the

         18        second primary that's before the body.

         19             COMMISSIONER RILEY:  Question, Commissioner --

         20             COMMISSIONER NABORS:  I'll ask you a question.  Do

         21        you realize that had this been in effect, that Rubin Askew

         22        and Bob Graham would not be governor?

         23             COMMISSIONER RILEY:  Well, it's easy to look back at

         24        history and to say what might have been, and I suggest

         25        that's sort of an exercise in futility.  Who knows who may

          1        have been had we not had the second primary and what other

          2        outcomes may have been that didn't come.  So it's a moot

          3        point I would suggest and I don't think that's a reason to

          4        not vote for it.

          5             CHAIRMAN DOUGLASS:  Some people might agree that's a

          6        good reason, you know.  Commissioner Smith?

          7             COMMISSIONER SMITH:  And had there not been a

          8        monarchy, Solomon would have never been king, but we are

          9        not in favor of a monarchy.  I'm positive, notwithstanding

         10        the debate of yesterday, that unintentionally stated that

         11        dictatorship was an efficient form of government.

         12             (Laughter.)

         13             CHAIRMAN DOUGLASS:  As long as it was Solomon.

         14             COMMISSIONER SMITH:  As long as it was Solomon,

         15        that's correct.  And I think that some of those who say

         16        that the second primary is a good idea because their

         17        candidate won, the candidate they favored.  I mean, if

         18        their candidate had not won, they may have been joining us

         19        saying this is a bad system.  I am very sensitive to

         20        Commissioner Barkdull's concern as to whether or not this

         21        should be a matter that's placed in the Constitution, but

         22        I share Commissioner Morsani's view that this is something

         23        that will be difficult to have the political leaders of

         24        today, except maybe a few brave ones, one of whom may

         25        already be on the way to Chattahoochee to deal with an

          1        issue like this.

          2             But I think it's important to note that while we have

          3        this debate, that while Florida didn't officially adopt

          4        the second primary until the 1930s, the second primary

          5        idea came about at the time that slaves were freed as a

          6        specific, articulated strategy to prevent newly freed

          7        slaves from being able to seek office.  Anyone who has

          8        read and studied history knows that during reconstruction,

          9        second primaries poll taxes and literacy tests were the

         10        strategy that emanated from the south, starting in North

         11        Carolina as a strategy for that purpose.

         12             And because of that reason, whether or not the

         13        Constitution or statutes are the proper way to deal with

         14        it, I'm proud to rise with Commissioner Riley today to try

         15        to, 110 years later, set the record straight and to try to

         16        correct what I think is a strategy that not just now

         17        affects the population it was intended to, but I think it

         18        affects minor parties as well.  And I think that that is

         19        unfair.  I think that it is a basis for which we find

         20        voter apathy.

         21             We look at the dropoff and runoffs, runoff elections,

         22        and I think, one, I commend to those of you who have not

         23        focused in on that history, it is a very, very sad

         24        chapter.  I had an opportunity to share some of that with

         25        my friend Commissioner Connor as this matter came up in

                     DIVISION OF ADMINISTRATIVE HEARINGS (904) 488-9675

          1        discussions before.  And so I intend to proudly vote yes

          2        to eliminate second primaries which had a very, very bad

          3        basis for being formulated and implemented and have no

          4        legitimate basis, in my judgment, to continue today except

          5        to maintain the status quo.  And with the type of the

          6        apathy we have around this country, the worst thing we

          7        could possibly do is just maintain the status quo.  Thank

          8        you.

          9             CHAIRMAN DOUGLASS:  Commissioner Ford-Coates?

         10             COMMISSIONER FORD-COATES:  I would like to ask a

         11        question of the proposal -- proposer.

         12             CHAIRMAN DOUGLASS:  She rises to answer, Commissioner

         13        Riley.

         14             COMMISSIONER FORD-COATES:  Thank you.  Commissioner

         15        Riley, Commissioner Barkdull spoke about the provision

         16        whereby in a primary, a vote could be cast for first and

         17        second choice.

         18             COMMISSIONER RILEY:  Preferential balloting.

         19             COMMISSIONER FORD-COATES:  Is there, as I read your

         20        proposal, it allows the Legislature to provide for this

         21        primary system in any way -- I mean, there's no provision

         22        preventing them from doing that, is there -- they could --

         23        could the Legislature not institute a one primary system

         24        in any method that they deemed appropriate?

         25             COMMISSIONER RILEY:  If Commissioner Barkdull is

          1        right and this isn't the place for this, which I disagree

          2        with him on that, I suppose he would probably be the

          3        better person to ask that.  If your question concerns

          4        preferential balloting, I'm familiar with that and I had

          5        thought about that but I find the public to be fairly if

          6        not very confused and chose not to put a preferential

          7        balloting proposal before this body.

          8             COMMISSIONER FORD-COATES:  But that's not precluded

          9        by.  It only says there shall be a one primary, correct?

         10             COMMISSIONER RILEY:  Correct.

         11             COMMISSIONER FORD-COATES:  Okay.  So if the

         12        Legislature felt there was a problem with that, casting

         13        only one vote, they could come up with another method.

         14             COMMISSIONER RILEY:  Again, there are better minds

         15        and people who could answer that question than I.

         16             CHAIRMAN DOUGLASS:  Anybody else?  Commissioner

         17        Freidin?

         18             COMMISSIONER FREIDIN:  I rise with hesitation because

         19        there are a couple of things about this proposal that

         20        concern me.  I am certainly in favor of doing whatever we

         21        can to increase voter participation.  And I believe,

         22        Commissioner Riley, that is the reason that you advanced

         23        this proposal.  I'm not sure that I fully understand how

         24        cutting off one election really increases voter

         25        participation, that's number one.

          1             But more importantly, I have a concern -- and this is

          2        where my hesitation really comes in, because I understand

          3        and feel with deep passion what Commissioner Smith talked

          4        about and how -- and the history of the second primary and

          5        why it was instituted.  But on a parallel level, there is,

          6        I think, a counterveiling concern, and that is that if we

          7        went to a one primary system, that that would allow a very

          8        small extremist candidate -- a very -- a candidate with a

          9        very small extremist group of supporters to prevail.  And

         10        that is something that I think we need to be careful of in

         11        this day and age when there are groups of people that hate

         12        deeply other segments of our society.  And for that

         13        reason, I am confident that the second primary would help

         14        to weed out extremist candidates.  And for that reason, I

         15        will vote no on this proposal, although I do favor

         16        anything else that we can do to increase voter interest

         17        and voter turnout.

         18             CHAIRMAN DOUGLASS:  Commissioner Barton?

         19             COMMISSIONER BARTON:  I am in favor of the proposal.

         20        This issue has come before the Legislature frequently and

         21        it has not been taken up for whatever reason.  The second

         22        primary, and if Commissioner Barkdull indeed is concerned

         23        about low numbers, 21 percent electing on a field of five,

         24        the numbers are frequently, almost always, lower in terms

         25        of the voter turnout for the second primaries, thereby

          1        having the candidate, sometimes, elected by as few as

          2        single digit numbers.

          3             I also know that the supervisors of elections who

          4        represent both parties in the state of Florida are

          5        unanimously opposed to the second primary, would like to

          6        see it removed for a variety of reasons, the mechanics of

          7        running another election at the same price as the first

          8        primary as with such low turnout.  And I strongly urge us

          9        to do what the Legislature has not done.

         10             CHAIRMAN DOUGLASS:  Commissioner Connor, you haven't

         11        spoke.

         12             COMMISSIONER CONNOR:  Mr. Chairman, I rise in support

         13        of the proposal and will tell you that frankly, before we

         14        begin these proceedings, before we convened, I was of the

         15        mind that I would not support such a proposal.

         16        Commissioner Smith did furnish me with some very, very

         17        interesting material which I thought was profoundly

         18        helpful in understanding this issue from a historical

         19        perspective.  And I think if one examines the historical

         20        record, one can only fairly conclude that at least from a

         21        historical standpoint the second primary was used as a

         22        vehicle for disenfranchising minority groups.

         23             By the same token I will tell you that, as one who

         24        has voted in the minority most of the time I think during

         25        the concurrency of these proceedings, that I have liked

          1        the second primary, having supported candidates who may

          2        not have been able to make the cut in the first round, but

          3        who, because of an effective grassroots of basic

          4        organization, were able to win the runoff.

          5             So from a pragmatic political standpoint, I'm not

          6        certain that the second primary cannot inure to the

          7        benefit of groups that find themselves often in the

          8        minority.  So I will vote for this proposal with some

          9        reservations.  But I think when one examines the

         10        historical record, that speaks to the origin of the

         11        current system, that it is a vestige of the past that we

         12        would be better off without.

         13             CHAIRMAN DOUGLASS:  Commissioner Connor, you've read

         14        the historical perspective.  If my recollection is

         15        correct, this has never been in any Constitution, it's

         16        always been statutory regulation of the parties as opposed

         17        to being an election.

         18             COMMISSIONER CONNOR:  I have hesitation and

         19        reservation about the inclusion of this in the

         20        Constitution, because my view is that we typically are not

         21        to serve as a super Legislature.  But where the

         22        Legislature has consistently advocated its responsibility

         23        and where we do have a provision in our Constitution to

         24        allow the people that have representatives in this kind of

         25        process, I move forward with it.  I will also be

          1        supportive of other proposals that are designed to afford

          2        greater ballot access wherein I think the Legislature has

          3        unfairly and wrongly restricted the access of minor

          4        parties to the ballot and have perpetuated the monopoly

          5        that major parties have.

          6             CHAIRMAN DOUGLASS:  I want one more question just to

          7        make sure I understand from a historical perspective.  You

          8        would then be, in effect, in favor of a statutory

          9        initiative which this would in effect be?

         10             COMMISSIONER CONNOR:  I am going to support a

         11        statutory initiative, yes, sir.

         12             CHAIRMAN DOUGLASS:  And that is coming up for later

         13        consideration?

         14             COMMISSIONER CONNOR:  Yes, sir.

         15             CHAIRMAN DOUGLASS:  Commissioner Brochin?

         16             COMMISSIONER BROCHIN:  I have a question of

         17        Commissioner Smith.  Could you articulate for us, if you

         18        believe, say since 1968, the second primary has had any

         19        effect of disenfranchisement of African-Americans or other

         20        minorities or is your concern, basically, from the

         21        historical origins of it?

         22             COMMISSIONER SMITH:  Would you repeat the question,

         23        please?

         24             COMMISSIONER BROCHIN:  Yeah.  Do you have concern or

         25        thoughts as to whether a second primary in recent history,

          1        say since 1968, has had the affect of disenfranchisement

          2        of minorities or is it more a concern out of the

          3        historical origins of the second primary?

          4             COMMISSIONER SMITH:  Yes, this is more than theory.

          5        Not only has it had an adverse affect in terms of

          6        candidates who run, but worst of all, it has an intended

          7        affect of what it was started, and that is to prevent the

          8        chilling affect of having individuals run with an

          9        understanding that you run, you get in the primary, the

         10        other candidates get together against you and you can't

         11        finally prevail in the end and that is that was the

         12        purpose of it, that's why it came about.

         13             So, yes, that has happened.  And I think with regard

         14        to that, I think that if you would like -- I hadn't been

         15        prepared to cite some specific examples of cases where

         16        individuals ran, but I'm sure I will be able to -- as I

         17        sit here right now, I haven't thought about specific

         18        races, but I'll be able to tell you in just a moment.

         19             CHAIRMAN DOUGLASS:  Commissioner Kogan?

         20             COMMISSIONER KOGAN:  All right.  Let me tell you what

         21        my concern is about this.  My concern is very simply that

         22        a proposal such as this absolutely favors an incumbent.

         23        Remember now that an incumbent in any election has a

         24        certain base vote.  They are going to get that percentage

         25        regardless of who the opposition is going to be.  It's

          1        very, very easy for an incumbent to go ahead and have

          2        other persons join in that particular race, knowing they

          3        are no threat to the incumbent, but rather they can gather

          4        sufficient votes away from all of the other candidates

          5        that are in the race, to allow the incumbent -- say, we

          6        use Commissioner Barkdull's example, we have five

          7        candidates in the race -- any incumbent, no matter how bad

          8        they have been in office, is certainly going to be able to

          9        get 21 percent of the vote.  And if you can get a couple

         10        of folks out there that you can induce to get into that

         11        race, then certainly you are going to win every time.

         12             And without the second primary, which will allow

         13        basically the majority of people who didn't want the

         14        incumbent to gather together and back one of the

         15        candidates who finished second in that primary, this is

         16        basically an incumbence relief act.  You will never ever

         17        get an incumbent out of office if that incumbent is

         18        politically shrewd and knows how to manipulate the system.

         19        Because they will start with a base which will allow them

         20        to always come up with most of the votes in that first

         21        primary.

         22             So I agree with everything that Commissioner Smith

         23        has had to say and most of the other people that are

         24        supporting this, but this is what my fear is.  And

         25        therefore, I feel that I'm going to have to vote against

          1        this particular proposal.

          2             CHAIRMAN DOUGLASS:  Question from Commissioner Smith.

          3             COMMISSIONER SMITH:  Commissioner Kogan, I think that

          4        is a very legitimate concern that you have, and as always,

          5        well expressed.  Would you not agree, however, that most

          6        states in the north do not have a second primary?

          7             COMMISSIONER KOGAN:  I don't know.

          8             COMMISSIONER SMITH:  Well, let's take, for instance,

          9        New York as an example, which has, I know, bad mendicants

         10        (phonetic), won and lost so that incumbent was out and

         11        they don't have a second primary in New York.  So I'm

         12        saying, in other words, it's not like this is a

         13        revolutionary idea that has never been tried in the United

         14        States.  Most states do not have a second primary.

         15             COMMISSIONER KOGAN:  That may very well be so, but

         16        that doesn't mean that their system is operating properly

         17        or the way it should be.

         18             COMMISSIONER SMITH:  Oh, I'm sorry, I apologize.  My

         19        question was that most other states, isn't it true --

         20             COMMISSIONER KOGAN:  I don't know what most other

         21        states do, but I'll take your word for it.

         22             COMMISSIONER SMITH:  Wait a minute.  I've got to ask

         23        it like Commissioner Langley taught me yesterday.  Would

         24        you believe --

         25             (Laughter.)

          1             CHAIRMAN DOUGLASS:  That is a House of

          2        Representatives phrase I was informed.  I've been

          3        appropriated by them.

          4             COMMISSIONER SMITH:  Would you believe that most

          5        states do not have a second primary?  And in those states,

          6        all incumbents do not always win?

          7             COMMISSIONER KOGAN:  Oh, I can believe that's true

          8        because there are always exceptions to the rule, but I'm

          9        talking now what I think generally would happen if you

         10        eliminated the second primary.

         11             CHAIRMAN DOUGLASS:  Commissioner Barkdull?

         12             COMMISSIONER BARKDULL:  Does Commissioner Smith take

         13        the floor and yield for a question?

         14             COMMISSIONER SMITH:  Yes, sir.

         15             COMMISSIONER BARKDULL:  Would you believe me, sir, if

         16        I told you that in the most recent mayor's race in New

         17        York that one candidate, the one that won, was a nominee

         18        of the Republican Party and he ran against a lady that was

         19        a nominee of the Democratic Party and she escaped to the

         20        second primary with, I believe, a gentleman by the name of

         21        Sharkdon (phonetic), because she was able to get a

         22        sufficient vote in the first primary?

         23             COMMISSIONER SMITH:  That's absolutely correct, but

         24        it was not required to be a majority vote, 40 percent

         25        vote.

          1             COMMISSIONER BARKDULL:  But that's not what this

          2        does.

          3             CHAIRMAN DOUGLASS:  All right.  Ready to vote.  Do

          4        you want to try again, Commissioner Riley?

          5             COMMISSIONER RILEY:  I don't consider it trying it

          6        again, Mr. Chairman.  I would like closing arguments.

          7             CHAIRMAN DOUGLASS:  I meant speak again, pardon me.

          8             COMMISSIONER RILEY:  To speak to some of the issues

          9        that have been brought up.  What is the history?  And I

         10        would suggest that while Commissioner Barkdull has given

         11        us some history that we should instead look to the more

         12        compelling history that Commissioner Smith has given us.

         13        In addition to that, I ask us to look at the costs.  We

         14        spoke a little bit about the cost to the county, but we

         15        didn't talk about the cost to the candidate.  And all of

         16        us have candidates, I guarantee you, that we have

         17        supported, that had funds to go through the first primary

         18        but were very scarcely funded in the second primary.  And

         19        it's very difficult, especially with minority candidates

         20        and women candidates, to raise money.  This I think will

         21        solve a lot of that problem.

         22             As far as participation in that, you end up with a

         23        small number of people electing your representatives.  I

         24        present to you that that's exactly what we have now.  And

         25        that the idea of this is to help alleviate that.  You have

          1        now, if you look at the number of eligible registered

          2        voters, eligible but not registered, registered that vote,

          3        registered that vote in the second primary, you end up

          4        with a very, very small percentage of people that are

          5        electing your representatives.  And I guarantee you this

          6        would change that to a higher number.  So I would ask for

          7        your support.

          8             CHAIRMAN DOUGLASS:  All right.  Unlock the machine.

          9        Please enter your votes.  Lock the machine and announce

         10        the vote.

         11             (Vote taken and recorded electronically.)

         12             READING CLERK:  11 yeas and 16 nays, Mr. Chairman.

         13             HEARING OFFICER:  Fails.  We move to the next

         14        proposal.  Beg your pardon?  Committee substitute for

         15        Proposal 79 by the committee on ethics and elections by

         16        Commissioner Riley.  Commissioner Riley, you have the

         17        floor and you move the adoption of this?  It is moved.

         18             COMMISSIONER RILEY:  I do, Mr. Chairman.

         19             CHAIRMAN DOUGLASS:  Wait a minute.  Would you read

         20        it, please.

         21             READING CLERK:  Committee substitute for Proposal 79,

         22        a proposal to revise Article VI, Section 1, Florida

         23        Constitution, providing that requirements for placing the

         24        name of a candidate with no party affiliation or minor

         25        party candidate on an election ballot must not be greater

          1        than the requirements for major party candidates.

          2             CHAIRMAN DOUGLASS:  Now, Commissioner Riley, you have

          3        the floor.

          4             COMMISSIONER RILEY:  Commissioners, we heard about

          5        this all around the state.  And I would like to read you

          6        some information this morning and I would like to thank

          7        Speaker Webster who delivered this to my desk this

          8        morning.  This speaks to the requirements of a minor party

          9        candidate, an independent party candidate, who would like

         10        to get on the ballot but finds that the requirements to

         11        get on the ballot are double what a major party

         12        candidate's access to that ballot is.

         13             And when you look at the numbers, what it boils down

         14        to is, that it's easier to qualify for President of the

         15        United States in the New Hampshire primaries than it is to

         16        qualify for the Seminole County Commission and to get on

         17        that ballot.  I would suggest that that is a little

         18        backwards.  That's a little unfair, that is extremely

         19        unfair.  And again, if we are looking for participation, I

         20        think this will do it.  This will bring more people out to

         21        the polls, it will bring more people out to vote.  It is

         22        equitable; it is fair; it's not going to be done any other

         23        way except by this Constitution commission and I ask that

         24        we pass this.

         25             CHAIRMAN DOUGLASS:  Commissioner Hawkes?

          1             COMMISSIONER HAWKES:  Have a question, Mr. Chairman.

          2             CHAIRMAN DOUGLASS:  Commissioner Riley yields to your

          3        question.

          4             COMMISSIONER HAWKES:  When you say the major party

          5        candidates, for instance, if you have a county that's

          6        50/50 in their registration, the Republican candidate

          7        would have to receive as many signatures as the Democratic

          8        candidate.  But if you had a county that maybe had

          9        60 percent Democratic registration and 30 percent

         10        Republican registration, the Republican candidate is going

         11        to have to get half the signatures that the Democratic

         12        candidate gets.

         13             Obviously the Republican and the Democratic parties

         14        are considered major parties because it's done by a

         15        percentage of the number of registered voters in your

         16        party.  And I was wondering from your proposal if I'm one

         17        of these minor party candidates, do I have to get the same

         18        number of signatures as the largest party or that's

         19        considered a major party or the smaller of the two parties

         20        or does major party mean the party with the most

         21        registered voters?

         22             CHAIRMAN DOUGLASS:  I'm not sure I've got the right

         23        proposal.  I don't see anything in here about getting --

         24             COMMISSIONER RILEY:  What the proposal is, is that

         25        the requirements for a minor party cannot be any greater

          1        than those for a major party.  So, as I understand it and

          2        as I intended it, if you, whatever your major party is,

          3        whichever has the largest majority, Democrat or

          4        Republican, whatever the requirements are for that party,

          5        that the Independent candidates' requirements cannot be

          6        any greater than that as far as percentage of registered

          7        voters or dollars needed to file.

          8             CHAIRMAN DOUGLASS:  Commissioner Hawkes?

          9             COMMISSIONER HAWKES:  Would you accept an amendment

         10        that clarified that it was the majority party?  Whichever

         11        was the -- if you were qualifying for a statewide race and

         12        if the Democratic Party was the majority party, then you

         13        would have to meet the same requirements for qualification

         14        whether it be by signature or payment of fees as the

         15        Democratic party candidate would?

         16             COMMISSIONER RILEY:  Yes, I would.

         17             CHAIRMAN DOUGLASS:  I have a question before you do

         18        that.  Wouldn't that create litigation, majority party and

         19        then you could turn around and have something for a major

         20        party, couldn't you, or somebody could argue, couldn't

         21        they, Commissioner Hawkes?

         22             COMMISSIONER HAWKES:  Well, Mr. Chairman, my concern

         23        was in reading this, I mean, for instance, I qualified by

         24        signature one time in Citrus County as a Republican

         25        candidate, I had to get 736 signatures, I guess it was.

          1             If I was a Democratic candidate, I would have had to

          2        get 912 or something.  It was different because the

          3        Democratic party was bigger than the Republican party and

          4        I had to collect, I believe, 3 percent of the registered

          5        voters in my county.  It truly was unfair because if I was

          6        an Independent candidate, I'd have to collect 3 percent of

          7        the total registrations, which would be over twice as much

          8        as every candidate.  But from this, I don't know if I have

          9        to collect what the republicans have or what the democrats

         10        have.

         11             CHAIRMAN DOUGLASS:  All right.  We don't have an

         12        amendment on the table.  We can't discuss that until there

         13        is one.  We'll proceed.  If you have an amendment, put it

         14        on the table.  If not, we are on the proposal which does

         15        not have that in it.  Commissioner Corr, you rose.

         16             COMMISSIONER CORR:  Thank you, Mr. Chairman.

         17        Commissioner Hawkes, we discussed this issue in the

         18        committee on elections and our understanding in the

         19        committee, if I'm right, I don't know if some of the other

         20        folks are here, was that under your scenario, Commissioner

         21        Hawkes, the minority candidate would not have to collect

         22        more votes than you would have had as a Republican.

         23        Because the language says there would be no greater than

         24        the requirements of a major party candidate.  So, it would

         25        be the lower of the two, that's right.

          1             CHAIRMAN DOUGLASS:  Commissioner Zack?  Commissioner

          2        Barkdull?

          3             COMMISSIONER BARKDULL:  I'd like to make an

          4        observation that, obviously, this is another matter that

          5        is being and has been considered by the Legislature.  I

          6        understand we did hear comment about this at the public

          7        hearings.  But I'll tell you one thing, we are talking

          8        about a lot of litigation on what is major and what is

          9        majority.  And I think this is an item.  Certainly, I

         10        don't think this provision is going to clear up what you

         11        want.  You ought to spell it out or leave it to the

         12        Legislature.  I think you ought to leave it to the

         13        Legislature.

         14             CHAIRMAN DOUGLASS:  Anyone else?  Commissioner

         15        Connor?

         16             COMMISSIONER CONNOR:  I'd like to speak on behalf of

         17        the proposal.

         18             CHAIRMAN DOUGLASS:  As it is without the amendment.

         19             COMMISSIONER CONNOR:  As it is.  There is no

         20        amendment as I understand now.

         21             CHAIRMAN DOUGLASS:  That's correct.  Go ahead, you

         22        can talk about it.

         23             COMMISSIONER CONNOR:  I'll address it as it comes up.

         24        I've been heartened in the debates that have taken place

         25        in this body that we've been operating on the basis of

          1        first principles and not on the basis of political

          2        partisanship, that's been a very gratifying experience for

          3        me.  I come from a party who extols the virtues of

          4        competition.  And I believe strongly in providing a basis

          5        for competition in the political are arena.  I believe

          6        that the major parties have in large part contributed to

          7        the political malaise that exists among the voters today

          8        and that, in fact, they are not providing for the kind of

          9        competition that will stir the pulse of voters.

         10             And just to give you an example of some information

         11        that's been furnished to me.  In the 20 years between 1974

         12        and 1994, the two major parties failed to offer competing

         13        candidates for more than 49 percent of the 1320 state

         14        House seats that were to be filled.  During that same

         15        period, they failed to provide competing candidates for

         16        more than 30 percent of the U.S. House seats that were to

         17        be filled during that interval of time.  From '84 through

         18        '94, the two major parties failed to offer competing

         19        candidates for more than 42 percent for the state Senate

         20        seats that were to be filled during that period of time.

         21             This procedure that we have gone through has been a

         22        wonderful civics lesson, I would submit to you, for all of

         23        us.  I had no idea of the inequity and unjust treatment

         24        that minor parties were receiving in this state.  They

         25        have been subjected to hurdles that are unfair, unjust,

          1        inequitable and that have the affect of disenfranchising

          2        their participation in the process.  And frankly, it's

          3        with the intent to do so in order to preserve the hegemony

          4        that now exists for the two major parties.  I think that's

          5        wrong.  I think we have an opportunity to act on a

          6        principle basis.

          7             As I interpret the language of the proposal, the

          8        effect of this proposal would be that no minor party could

          9        be required to have a more burdensome requirement than the

         10        smallest of the major parties.  I think that's how it

         11        would work, plain and simple.  And if we have to have

         12        litigation to straighten some of this out, so be it.  A

         13        few of us lawyers would complain about that.

         14             Now, if there's a way and you think it's important to

         15        clarify that, I don't object to clarifying that.  But for

         16        goodness sakes, we have seen the rights of people

         17        preserved and adjusted through the litigation process.

         18        And one that I'm not down on is trial lawyers.  I am

         19        thankful for the role that trial lawyers have played in

         20        preserving the rights that we enjoy under our Constitution

         21        and under the laws of this state.

         22             But we have an opportunity to do something that the

         23        Legislature never will, which is to provide access to the

         24        ballot and provide a broader choice for electorate by

         25        modifying our state Constitution in this fashion.  Thank

          1        you, Mr. Chairman.

          2             CHAIRMAN DOUGLASS:  Commissioner Evans-Jones?

          3             COMMISSIONER EVANS-JONES:  Thank you, Mr. Chairman.

          4        I would like to speak in favor of this proposal too.  And

          5        I agree with Commissioner Connor, it will never get out of

          6        the Legislature.  And I would prefer this not have to be

          7        in the Constitution.  But I do think this is important and

          8        all over the state, as you said, we kept hearing about the

          9        minor parties have to get all this money plus all these

         10        signatures and it makes it an impossibility for them to

         11        get on the ballot.

         12             I do have some concerns about the language.  I'm not

         13        real comfortable with that.  I want to the vote for this,

         14        but I want to be sure -- I mean, they certainly need to

         15        have to get more than, say, three signatures, if they are

         16        three libertarians or whatever.  I know the intent, but

         17        maybe the rules and drafting or somebody can come up --

         18        maybe we do have an amendment but let's kind of get it

         19        clear.  Thank you.

         20             CHAIRMAN DOUGLASS:  Commissioner Nabors.

         21             COMMISSIONER NABORS:  Thank you.  I'd like to speak

         22        in favor of this proposal.  We have got to keep in mind

         23        that we are dealing with a constitutional amendment.  What

         24        may be a major party today, may be a minor party tomorrow.

         25        As I read this language, what it says is, is that

          1        regardless of what that point in time, whether you're a

          2        minor or Independent candidate, the requirements for

          3        ballot access are the same.  And I don't have problems

          4        with the language.  If there are minor problems, it can be

          5        dealt with in style and drafting.

          6             We've got to remember we're dealing with a

          7        constitutional provision; this is very appropriate.  Our

          8        democracy is based upon a competition of ideas.  And if we

          9        are going to have a true marketplace, we need to have

         10        everybody have access to the ballots so their ideas can go

         11        forward.  I see no reason in 1997 to continue some

         12        perception of a major party access.  This requires

         13        everybody to have equal access whether you're major today

         14        or minor tomorrow.  I speak in favor of it.

         15             CHAIRMAN DOUGLASS:  Commissioner -- are you offering

         16        that as an amendment to make the language simply what you

         17        said?

         18             COMMISSIONER NABORS:  Well, I think that's what the

         19        language says.

         20             CHAIRMAN DOUGLASS:  No, it says more than that.

         21             COMMISSIONER NABORS:  Well, maybe I don't have the

         22        amendment.

         23             CHAIRMAN DOUGLASS:  All right.  Well, let's go ahead

         24        with the amendment.  It's on the table, Commissioner

         25        Hawkes, and let's have his amendment -- he's presenting an

          1        amendment at this point and we'll come back.  You are on

          2        the main motion?

          3             COMMISSIONER KOGAN:  No, I'm on the amendment.

          4             CHAIRMAN DOUGLASS:  Okay.  I think he wants to speak

          5        to the amendment and then I'll recognize you.  It's his

          6        amendment.

          7             COMMISSIONER KOGAN:  I wanted to propose to change

          8        the wording which may make it somewhat I think less

          9        confusing than the way it reads now.

         10             CHAIRMAN DOUGLASS:  Why don't you get with him and

         11        see if you-all can work out some agreement?  Commissioner

         12        Barnett, I was glad to see you here after your eventful

         13        trip.

         14             COMMISSIONER BARNETT:  Thank you.  And I had an

         15        excused absence, Mr. Chairman.

         16             CHAIRMAN DOUGLASS:  Yes, you did.

         17             COMMISSIONER BARNETT:  Just so you-all know, I was in

         18        Miami last night.  Just as a filibuster of time here for a

         19        minute, Chief Justice asked me to do this, you know.  It's

         20        a filibuster while he gets the language done.  I am in

         21        favor of this.  And I just wanted to remind those of you

         22        who attended the public hearings, that if you did not know

         23        anything about government in this state or political

         24        parties in this state, you would have thought that the two

         25        major parties in the state of Florida were the Green Party

          1        and the Libertarian Party.

          2             We did not see the other major parties there.  And I

          3        was very persuaded by the testimony that we heard at the

          4        public hearings.  In fact, I was educated on something I

          5        knew little about and I was persuaded that we do need to

          6        open up the marketplace of ideas to people from all

          7        parties.

          8             CHAIRMAN DOUGLASS:  All right.  Commissioner Brochin.

          9             COMMISSIONER BROCHIN:  I also rise in favor of the

         10        proposal.  And the reason I do is not in respect to

         11        whether the Legislature shall or shall not put this in.

         12        They probably won't, I think that's somewhat irrelevant.

         13        What I think is pertinent is that this is a matter of

         14        equal protection and equal protection should find its way

         15        into our Constitution.  I think it's a simple proposal.  I

         16        think it should remain simple although the language, I do

         17        have some concerns, it probably needs to be tightened a

         18        little bit.

         19             But it's a simple proposal for equal protection for

         20        anybody that wants to run in our state.  And I think that

         21        should find its way in our Constitution, particularly in

         22        light of the diversity of this state and the various

         23        amounts of candidates who want to run, they are -- we all

         24        deserve to have that in our Constitution as a matter of

         25        protection.  So for those reasons, I am going to vote in

          1        favor of this.

          2             CHAIRMAN DOUGLASS:  All right.  They are still

          3        drafting an amendment over here.  Commissioner Alfonso?

          4             COMMISSIONER ALFONSO:  As long as they are drafting

          5        an amendment, I quickly rise in favor of this proposal.  I

          6        do believe it is one of the more important proposals that

          7        we will undertake.  We heard it very clearly.  I was not

          8        at all aware of the limitations on the access to the

          9        ballot and I'm just in agreement with all of the previous

         10        presentations made here.  And I think it is a very

         11        important proposal and I support it.

         12             CHAIRMAN DOUGLASS:  Commissioner Smith.

         13             COMMISSIONER SMITH:  Thank you, Mr. Chairman.  While

         14        Commissioner Riley and myself were very aware of the

         15        problems of today that a lot of our good friends here had

         16        with the prior proposal with regard to the second primary,

         17        I'm heartened to see such a broad base of support for this

         18        equal protection issue.  And I think this is one of the

         19        most important things that we are going to go.  And I

         20        think 20 years from now as we watch the next Constitution

         21        Revision Commission, we'll really be proud that we opened

         22        up the process fairly.  I don't have as much problem with

         23        the language, because of the people who I respect that do,

         24        whether in this form or in improved form from your

         25        perspective, I look forward to supporting this.

          1             CHAIRMAN DOUGLASS:  Commissioner Marshall?

          2             COMMISSIONER MARSHALL:  Mr. Chairman, if we are still

          3        filling time, I try to follow a practice of not rising to

          4        speak if somebody else has already made my points, but

          5        this is maybe kind of peripheral.  After the hearing in

          6        Palm Beach I think or Fort Lauderdale, the Libertarian,

          7        the statewide Libertarian Party, would exist in this

          8        meeting and they invited me to have dinner with them that

          9        evening, for some reason, I don't know.

         10             CHAIRMAN DOUGLASS:  You are a liberatarian.

         11             COMMISSIONER MARSHALL:  I did not pick up the check.

         12             (Laughter.)

         13             COMMISSIONER MARSHALL:  But I felt that those people,

         14        first of all, they feel disenfranchised.  They believed

         15        they have been kept out of the process and I think they

         16        can make that point pretty effectively.  As Commissioner

         17        Nabors said, a minor today may be a major one a couple of

         18        years from now.  I think switching roles of the parties

         19        ought to be considered, at least the possibility of that.

         20             They feel they are not treated fairly and I tried to

         21        take the other side in an informal debate over dinner.  I

         22        found it hard to refute them.  They do have a more

         23        difficult time getting on the ballot.  I have some

         24        concerns about the language too.  That is Commissioner

         25        Connor says there are always lawyers to litigate these

          1        matters.  And I hope some of that can be cleared up in

          2        drafting, but I think on balance, this measure deserves

          3        our support and I speak in its favor.

          4             CHAIRMAN DOUGLASS:  All right.  I think the amendment

          5        is now drafted.  Will you hand us a copy of it and we'll

          6        read it?  And it's introduced by Commissioner Hawkes; is

          7        that correct?  This is the amendment.  All right.  Would

          8        you read the amendment?

          9             READING CLERK:  By Commissioner Hawkes, on Page 1,

         10        Line 24, delete all said lines and insert, Greater than

         11        the requirements of a candidate of a party having the

         12        majority of registered voters at the time of qualifying.

         13             CHAIRMAN DOUGLASS:  Does that seem to meet the

         14        objections that we have been hearing?

         15             COMMISSIONER HAWKES:  I think so, Mr. Chairman, and

         16        the Chief Justice had a role in the drafting of this to

         17        make sure that the language was tight and clear to the

         18        judiciary --

         19             CHAIRMAN DOUGLASS:  No, no, that could be 61,

         20        couldn't it, Commissioner Kogan?

         21             COMMISSIONER KOGAN:  It wouldn't be the first time.

         22             (Laughter.)

         23             COMMISSIONER HAWKES:  But what this does,

         24        Mr. Chairman, just to clarify, Commissioner Corr stood up

         25        and said that it should be the party with the lower number

                     DIVISION OF ADMINISTRATIVE HEARINGS (904) 488-9675

          1        of registration.  This makes it clearly the party with the

          2        greater number of registration.  And I think the reason

          3        for that is, at least you are showing that there's some

          4        level of community support in order to get this name on

          5        the ballot so the people can't unfairly clog up the ballot

          6        without any community support at all.  So this is the

          7        party with the larger registration, the fees or the

          8        signatures, whatever you decide to do will be the larger

          9        party, whatever the party happens to be at the time.

         10             CHAIRMAN DOUGLASS:  Will they supply the qualifying

         11        fees?

         12             COMMISSIONER HAWKES:  Well, qualifying fees are set

         13        up in the office.  And I think that Independent candidates

         14        pay the same qualifying fees anyway because that was based

         15        upon salary.  I think where they had a difficult time was

         16        collecting signatures for the office if they wanted to do

         17        the alternative method of qualifying.

         18             CHAIRMAN DOUGLASS:  Okay.  Commissioner Riley, you

         19        were up.

         20             COMMISSIONER RILEY:  Yes, I would like to speak in

         21        favor of the amendment.

         22             CHAIRMAN DOUGLASS:  Do you have a question, first?

         23             COMMISSIONER MILLS:  Yes.

         24             CHAIRMAN DOUGLASS:  He has a question of the

         25        proponent of the amendment.

          1             COMMISSIONER MILLS:  This is just clarifying.  I

          2        intend to vote for this, and I think this is a good idea.

          3        We've heard a lot about it.  And one of the things that we

          4        want our revision commission to have are some

          5        understandable things and this is opening up the process

          6        and this is I think responsive to what we heard.  But

          7        would this -- right now, would this continue to allow a

          8        differentiation in the major party qualifications?

          9             COMMISSIONER HAWKES:  Yes, sir.

         10             CHAIRMAN DOUGLASS:  Commissioner Hawkes yields to

         11        Commissioner Connor.

         12             COMMISSIONER CONNOR:  Commissioner Hawkes, this is

         13        the great thing about being a lawyer.  Commissioner Hawkes

         14        said yes, I would say no.  What I would suggest is, it

         15        means everybody is going to have the same requirement.

         16        Let's say you are in a county election, you have a

         17        majority party, everybody else then is a minority party at

         18        that point.  But what that means is that there is -- there

         19        are equal requirements for everyone with regard to the

         20        financial qualifying fees and with regard to the

         21        petitions, number of signatures that must be gathered, the

         22        levels of playing field.  The inequity now is that a

         23        minority party has more stringent requirements than the

         24        majority party and I think that's grossly unfair.  This

         25        then puts everybody on the same playing field as I

          1        interpret the language.

          2             CHAIRMAN DOUGLASS:  Commissioner Brochin, you have a

          3        question?

          4             COMMISSIONER BROCHIN:  I do.

          5             CHAIRMAN DOUGLASS:  Are you through, Commissioner

          6        Mills, I didn't mean to cut you off on the question.

          7             COMMISSIONER MILLS:  No, sir, I would agree with

          8        Commissioner Connor.  I think that's what it does.  I'm

          9        just not sure that's what everybody --

         10             CHAIRMAN DOUGLASS:  Commissioner Brochin?

         11             COMMISSIONER BROCHIN:  Isn't it the intent of this

         12        proposal that everyone be treated equally no matter

         13        majority or minority and isn't there a simpler way to do

         14        that as compared to making it relative to who the majority

         15        party is, why is that relevant?  I mean, isn't it more

         16        appropriate from a constitutional point to just say that

         17        there shall be no law that in essence favors one party

         18        over the other in terms of qualification and eliminate

         19        words like "major" and "minor" and "greater"?

         20             CHAIRMAN DOUGLASS:  That's why I asked Commissioner

         21        Nabors, you know, he stated it pretty simply.

         22             COMMISSIONER BROCHIN:  I think what we are alluding

         23        to is trouble with the language, I think that's what's

         24        giving us a little bit of a problem although I think

         25        conceptually everyone believes, not everyone, many of us

          1        think equal protection should be preserved but the

          2        comparison or the relative comparison to a minority or

          3        majority party or even Independent candidate may make it a

          4        little bit confusing and more litigious in the future.

          5             CHAIRMAN DOUGLASS:  Commissioner Ford-Coates, oh, you

          6        want to answer that.  That was addressed to you as a

          7        question.  Commissioner Hawkes?

          8             COMMISSIONER HAWKES:  Thank you, Mr. Chairman.

          9             CHAIRMAN DOUGLASS:  Commissioner Ford-Coates, you are

         10        next.

         11             COMMISSIONER HAWKES:  Qualifying serves the purpose

         12        primarily to make sure that the people who are on the

         13        ballot are serious candidates and deserve the serious

         14        consideration of the people who are going to vote.  And

         15        the argument in favor of requiring Independent candidates

         16        to get 3 percent of the voting public was to ensure that

         17        in fact they had some level of support in the community

         18        and if you as a voter were going to take the time to

         19        evaluate their qualifications and make decisions, you were

         20        engaging in an activity that wasn't going to be a total

         21        waste of time because this individual had some requisite

         22        support.

         23             It was not my intention to change the qualifications

         24        for the two major parties.  I think the qualifications for

         25        this says no greater than the requirements.  That means

          1        they could be less.  Under statute, if your party received

          2        a certain number of votes in the last presidential

          3        election, I think is the way it is tied, I'm not exactly

          4        sure, then you would qualify under -- you could qualify, I

          5        believe, under a different and a lower number of

          6        signatures if you were qualifying by the alternative

          7        method.  And I would submit that that's appropriate

          8        because then your party has shown that it has some support

          9        and you have greater than 3 percent of the community.

         10             So you are showing that not only do you have your

         11        party's, a bare minimum level of your party's support, you

         12        have a minimum -- your party has a minimum level of

         13        support in the community or in the state.  And so you are

         14        fulfilling the purpose of qualifying to make sure that the

         15        people are looking at legitimate candidates.

         16             So I think, contrary to Commissioner Connor and

         17        Commissioner Mills, that you could have lower requirements

         18        for a party that received a certain percentage in the

         19        electorate and I think that that's appropriate.

         20             CHAIRMAN DOUGLASS:  I had agreed to -- will you yield

         21        to Commissioner Connor?  Commissioner Connor.

         22             COMMISSIONER CONNOR:  I simply wanted to augment that

         23        response to Commissioner Brochin's question.  I think

         24        Commissioner Hawkes is right in that the requirements may

         25        be less than but they cannot be more than the requirements

          1        of a candidate of the party having the majority of

          2        registered voters at the time of qualifying.  And that's

          3        what the language provides.  So what happens is that that

          4        maximum, in terms of requirements, winds up being set by

          5        the party that has the majority of voters at the time of

          6        qualifying.

          7             I would agree with you that by general law the

          8        requirements could be less, but they cannot be more and

          9        the inequity that we have now is that minor parties have

         10        greater other requirements than the majority parties with

         11        respect to the petition signature requirements.  And so I

         12        think that the proposed language levels the playing field

         13        and says that nobody is going to have to live with more

         14        burdensome requirements than are imposed on the party with

         15        the majority of voters in the area at the time of

         16        qualifying.

         17             CHAIRMAN DOUGLASS:  Commissioner Ford-Coates has been

         18        up and you have a question or do you want to address the

         19        issue?

         20             COMMISSIONER BARKDULL:  I have a question.

         21             CHAIRMAN DOUGLASS:  No, I mean Commissioner

         22        Ford-Coates.

         23             COMMISSIONER FORD-COATES:  Both.

         24             CHAIRMAN DOUGLASS:  Well, do your question then.

         25        You've been up.  I recognize you.  I'll come back to you,

          1        Commissioner Barkdull.

          2             COMMISSIONER FORD-COATES:  What Commissioner Connor

          3        has said, I think we need to separate the two concepts of

          4        the Independents who now have a serious battle because

          5        they do have to get 3 percent of all registered voters.

          6        Their filing fees are the same as everyone else.

          7             We then have the two majority parties wherein some

          8        county one party has a majority of the registration, the

          9        other has the minor party in that situation, whether they

         10        be democrat or Republican, has the same kind of

         11        requirements in that it is a 3 percent.

         12             If we are saying, and I don't think this says this,

         13        but what I heard you say is that there would be a level

         14        playing field and everyone would have to do the same

         15        thing.  If you are a member of a minority party in

         16        registration, to get 3 percent of all of the majority

         17        party's number of signatures is very difficult because

         18        your party might not even have that many people.

         19             So I don't think it says that, as Commissioner Hawkes

         20        said, that you were in a minority party when you got your

         21        signatures, so you had to get less signatures than the

         22        majority party.  That's fair because your pool of

         23        registered voters is smaller than the majority party.  I

         24        read this that no requirements for a minority party or an

         25        Independent or a majority party just by reason of the

          1        number of registered voters can be any greater than.  And

          2        my assumption is that the Legislature would keep that as

          3        it is now on an even playing field.

          4             So I guess that's my question, Commissioner Hawkes,

          5        and originally I heard Commissioner Connor say everybody

          6        would have to do the same thing which would not be fair in

          7        the sense of the 3 percent but that it would be no more

          8        than in the 3 percent than the top, that would be fair.

          9             CHAIRMAN DOUGLASS:  Just a moment.  Commissioner

         10        Connor.  Your question was addressed to Commissioner

         11        Connor or to somebody.  Commissioner Connor --

         12             COMMISSIONER FORD-COATES:  Commissioner Connor or

         13        Commissioner Hawkes, both.

         14             COMMISSIONER CONNOR:  You may recall,

         15        Ms. Ford-Coates, that I affirmed what Commissioner Hawkes

         16        said in that regard in that it cannot be greater than.

         17        There is nothing that would prevent the Legislature from

         18        imposing less stringent requirements, but under no

         19        circumstances could it be greater than the requirements of

         20        the party who had the majority of votes in the area under

         21        consideration.

         22             COMMISSIONER FORD-COATES:  Would you agree that in a

         23        situation if it were equal though, it would in effect do

         24        the opposite and make it more difficult to gain those

         25        signatures?  I trust the Legislature not to do that.

          1             COMMISSIONER CONNOR:  And I think those are the kinds

          2        of adjustments that are properly within the legislative

          3        prerogative.  What we have here though is a situation

          4        where currently the requirements for minor parties and

          5        Independents are greater than those.  What we are saying

          6        is, let's at least bring it down where everybody has the

          7        same base requirement at the maximum.  But if there are

          8        policy considerations that warrant imposing less stringent

          9        requirements, then that should happen.  And I will suggest

         10        to you that that is more likely to happen in the

         11        Legislature under this scenario than will ever occur in

         12        the future without it.

         13             CHAIRMAN DOUGLASS:  All right now, these are

         14        questions and Commissioner Barkdull was next.

         15             COMMISSIONER BARKDULL:  Commissioner Connor, would

         16        you explain to me how you would say at the time of

         17        qualifying, and I mean this in the form of a friendly

         18        question, because as I understand it, qualifying goes on

         19        as a registered voter almost when you cast the ballot.  So

         20        I can see the litigation coming over what was the total

         21        registered vote at the time.

         22             COMMISSIONER CONNOR:  Ms. Ford-Coates I think is

         23        probably better qualified to address that than I.  My

         24        recollection is that there is a formal qualifying period

         25        that is set up by state statute that --

          1             COMMISSIONER BARKDULL:  That's true.  But my concern

          2        is what was the registered voter's at the time of

          3        qualifying.

          4             COMMISSIONER CONNOR:  I'll yield to Ms. Ford-Coates,

          5        Mr. Chairman, if that's --

          6             CHAIRMAN DOUGLASS:  That's Commissioner Ford-Coates.

          7        We are gender neutral here.

          8             COMMISSIONER FORD-COATES:  The statutes provide the

          9        date on which the registration levels are set.  As of a

         10        certain date, these are the registered voters.  You know

         11        that what you get to the qualifying portion even though

         12        qualifying is over a two-week period, you know long before

         13        what the registration figures are, what percentage you

         14        need, what the amounts are, you know, it must be set

         15        probably a year in advance or at the last election or

         16        something.  It is provided in statute.

         17             COMMISSIONER BARKDULL:  That's my point.  It is now

         18        generally set at the last general election.

         19             COMMISSIONER FORD-COATES:  Fine.

         20             COMMISSIONER BARKDULL:  And I don't have any

         21        objection to this.  My only point is this is leaving it

         22        very open-ended and doesn't tie it down to the last

         23        general election which is what most statutes do.  And this

         24        is changing that.  And I think that that's going to cause

         25        some confusion.

          1             CHAIRMAN DOUGLASS:  Just a minute.  I think we need

          2        to direct this debate to another amendment that has been

          3        put on the desk.  If you would like to have it read it is

          4        being introduced, proposed by Commissioners Rundle and

          5        Brochin.

          6             Okay.  We have the Hawkes amendment pending so we

          7        have got to, before we can take up this amendment, we have

          8        to finish the debate on the Hawkes amendment.  I thought

          9        it might be helpful in this debate, maybe Commissioner

         10        Brochin can rise and say what his amendment is going to

         11        be, he and Commissioner Rundle's amendment, so that you

         12        might want to consider that in dealing with Commissioner

         13        Hawkes' amendment.

         14             Very briefly, could you just tell us what you propose

         15        to do to the Hawkes amendment, what this would do?

         16             COMMISSIONER BROCHIN:  Well, this actually makes

         17        another run at some different language --

         18             CHAIRMAN DOUGLASS:  All right.  Let's have a little

         19        order, please.  Okay.  Go ahead.

         20             COMMISSIONER BROCHIN:  I at least want to start by

         21        saying I want to make sure that procedurally by making all

         22        these amendments, we don't kill a very good idea.

         23             CHAIRMAN DOUGLASS:  You haven't made it yet.  All I

         24        want you to do is say what it is.

         25             COMMISSIONER BROCHIN:  I saw this movie yesterday,

          1        and I just wanted to make sure that --

          2             CHAIRMAN DOUGLASS:  The day before yesterday too.

          3             (Laughter.)

          4             COMMISSIONER BROCHIN:  So I just want to make sure, I

          5        think we are all trying to get to the same place, but we

          6        just scratched out and I say that is an amendment that

          7        speaks to the equal protection without referencing

          8        majority or minority parties and it is simply saying

          9        ballot access of Independent candidates or political

         10        parties shall be uniform and equal and not based upon

         11        political party status.

         12             CHAIRMAN DOUGLASS:  All right.  I'll tell you what

         13        I'm going to do with your permission.  I'm going to take

         14        about a three-minute stand down here and ask the people

         15        that are involved in these amendments to see if they can

         16        have a quick committee meeting and arrive at some proposal

         17        that will be one amendment.  So we will stand in informal

         18        recess until we call order.  Do not leave the chamber for

         19        too long, but there are snacks in the lounge.

         20        Commissioner Butterworth, there are snacks in the lounge,

         21        I know you wouldn't want to miss that.

         22             (Brief recess.)

         23             CHAIRMAN DOUGLASS:  Madam Secretary, call a quorum,

         24        please.

         25             SECRETARY BLANTON:  Quorum call.  Quorum call.  All

          1        commissioners indicate your presence.  Quorum call.

          2        Quorum call.  All commissioners indicate your presence.

          3             (Pause.)

          4             CHAIRMAN DOUGLASS:  One of our questioners came back.

          5        All right.  We don't have a quorum.

          6             (Pause.)

          7             Come to order, we have a quorum.  Take your seats,

          8        please.  Commissioner Hawkes, you are back, center stage.

          9             COMMISSIONER HAWKES:  Mr. Chairman, with the

         10        consensus of the group, I think that we have agreed upon a

         11        substitute amendment.  Basically, Mr. Chairman, what the

         12        substitute amendment does is, it is very similar to the

         13        original Hawkes amendment except it strikes "at the time

         14        of qualifying" and puts in language "at the time as

         15        provided by general law" because general law already

         16        provides the time when you measure the number of voters

         17        and we don't want to disrupt that.  And the language could

         18        be, perhaps, smoothed out and style and drafting will look

         19        at it to make sure that everyone's concerns are addressed.

         20             CHAIRMAN DOUGLASS:  The Secretary suggests to me that

         21        you withdraw your amendment.

         22             COMMISSIONER HAWKES:  I withdraw my original

         23        proposal -- amendment.

         24             CHAIRMAN DOUGLASS:  And you propose this as your

         25        amendment.  Is that this amendment the one that's being

          1        passed out?  All right.  Would you read it?  Everybody pay

          2        attention now.  This is the Hawkes new amendment.

          3             READING CLERK:  By Commissioner Hawkes on Page 1,

          4        Line 24, delete all said lines and insert, Greater than

          5        the requirements of a candidate of the party having the

          6        majority of registered voters at the time provided by

          7        general law.

          8             CHAIRMAN DOUGLASS:  All right.  That's being passed

          9        out.  Does everyone understand we are on the amendment?

         10        Any discussion directed to the amendment?  If not, all

         11        those in favor of the amendment signify by saying aye.

         12        Opposed?

         13             (Verbal vote taken.)

         14             CHAIRMAN DOUGLASS:  Motion carries.  All right.  We

         15        now revert to the motion as amended -- I mean, the

         16        proposal as amended which includes that language deleting

         17        all of Line 24 and replacing it with this amendment.

         18        Everybody got that clearly in mind?  Okay.  Are you ready

         19        to vote?  Open the machine.

         20             (Vote taken and recorded electronically.)

         21             CHAIRMAN DOUGLASS:  Has everybody voted?  Everybody

         22        voted -- not quite everybody has voted.  Now everybody has

         23        voted.  Close the machine and announce the vote.

         24             READING CLERK:  Twenty-eight yeas and zero nays,

         25        Mr. Chairman.

          1             CHAIRMAN DOUGLASS:  Tell you what, they told me one

          2        time that when you had a unanimous vote you should revisit

          3        it because there is always something wrong when everybody

          4        agrees.  But we will proceed to the next proposal.

          5             Anybody hasn't voted, come up and ask that your vote

          6        be recorded.  Proposal 80 by Commissioner Freidin.  Would

          7        you read it, please?

          8             READING CLERK:  Proposal 80, a proposal to advise

          9        Article III, Section 18, Florida Constitution, requiring

         10        that a code of ethics for persons or entities in the

         11        exercise of governmental duties which prohibits conflict

         12        between public duty and private interest be prescribed by

         13        law.

         14             CHAIRMAN DOUGLASS:  Commissioner Freidin, this

         15        proposal was reported out with approval by the committee

         16        on ethics and elections.  You have moved the proposal and

         17        we will go forward.

         18             COMMISSIONER FREIDIN:  Commissioners, this is a very

         19        simple, straightforward proposal that really is intended

         20        to bring us into the current state of society.  Twenty

         21        years ago when the Constitution was last revisited by the

         22        Constitution Revision Commission, the issue of

         23        governmental functions being performed by private

         24        industry, by private entities, really wasn't an issue.  It

         25        wasn't happening.  It is happening today.  We have

          1        corporations doing everything in our state from collecting

          2        garbage to running prisons and other things as well.

          3             This proposal simply requires persons or entities

          4        exercising governmental duties to be bound by a code of

          5        ethics as are people who are government employees,

          6        government officials, et cetera, and that's what it is.

          7             CHAIRMAN DOUGLASS:  Commissioner Barnett?

          8             COMMISSIONER BARNETT:  Question.

          9             CHAIRMAN DOUGLASS:  Question.  Do you -- she yields.

         10             COMMISSIONER BARNETT:  What are governmental duties?

         11        I mean that term is of concern to me because I don't know

         12        what it means in the breadth of what it could mean.  I saw

         13        in the analysis the reference to entities like Enterprise

         14        Florida.  I mean, we could probably define situations that

         15        clearly were governmental duties, but there are a lot of

         16        people who may perform, you know, what might be a duty as

         17        opposed to a function or something more specific.

         18             I am just concerned about what that phrase means and

         19        that it may extend the code of ethics to people in private

         20        situations that would always put them in a conflict, for

         21        example, or at risk of violating the code of ethics.

         22             COMMISSIONER FREIDIN:  Let me ask you a question in

         23        response to your question.  Do you think that the word

         24        "function" would be better than duties?

         25             COMMISSIONER BARNETT:  Function is better.  I think,

          1        though, that we need to give some thought to the concept.

          2        I like the idea.  I'm really looking to be in support of

          3        this idea, but that concept of governmental duty or

          4        function is substantially unclear to me so that I am

          5        worried about what, about unintended consequences of it.

          6             CHAIRMAN DOUGLASS:  Commissioner Evans?

          7             COMMISSIONER EVANS:  Questions also.  I would think

          8        along this line that we would assume that education is a

          9        governmental duty or a governmental function, government

         10        is certainly in the business of education.  This then

         11        would require that I, as a home-schooled mom, would have

         12        to comply with all the ethics requirements.  And I think

         13        that in itself would be an overbearing, I don't know how

         14        strongly I could say the word, requirement in order for me

         15        to -- and I think it would -- well it would just be an

         16        absolute chilling effect.

         17             And there are a lot of things that government does

         18        that is not governmental duty or governmental function.

         19        Government is in the business of private enterprise and so

         20        would we say that that too is governmental business?

         21             CHAIRMAN DOUGLASS:  Answer the question.  Anybody

         22        want to answer the question?

         23             COMMISSIONER FREIDIN:  Well, certainly that wasn't

         24        the intent and I'm just -- this is a public proposal and

         25        clearly the intent was a situation where a private entity

          1        is running a prison and the warden ought to be bound by a

          2        code of ethics just the way a prison warden would be bound

          3        if it was being done publicly.  So that is the intent of

          4        the proposal.

          5             I don't disagree that the language is a little bit

          6        loose here and I would welcome suggestions or amendments

          7        that would tighten it up.

          8             CHAIRMAN DOUGLASS:  Commissioner Sundberg, for what

          9        purpose?

         10             COMMISSIONER SUNDBERG:  To speak in favor of the

         11        proposal.

         12             (Commissioner Mills assumes the Chair.)

         13             COMMISSIONER MILLS:  You are recognized.

         14             COMMISSIONER SUNDBERG:  I have, as some of you may

         15        know, I have rejoined the public sector recently where I

         16        can now count on a paycheck every two weeks and it has

         17        been, particularly being at a university, it has really

         18        been astonishing to me how many of these public/private

         19        partnerships and undertakings exist out there today.  And

         20        that's the mantra.  If you want to sell something, if

         21        you've got a program, you package it as a public/private

         22        partnership.  Because of that, I see -- in a number of

         23        instances, I have seen where the private sector culture is

         24        brought into one of these partnerships where you have the

         25        public sector culture and they collide.  And you get --

          1        you know, for people in the public sector, they really

          2        need this sort of statement by the people of this state

          3        and that is when is, in fact, you are going to have a

          4        private enterprise undertaking -- and I like the term

          5        governmental function better than -- no matter what word

          6        you use, I suggest it's going to get some interpretation

          7        by the courts over time, but lots of words do.

          8             But you need the ability to say now, you know, you

          9        come from a different culture and you are going to have to

         10        adjust to the culture because the people of the state of

         11        Florida, although they welcome private enterprise in

         12        performing these kinds of functions in some instances and

         13        while they welcome these private/public partnerships,

         14        there is a -- there is a level or a standard of conduct

         15        which you must adhere to if, in fact, you are going to be

         16        involved in a public purpose here.

         17             So I speak heartily in favor of this proposal.

         18             COMMISSIONER MILLS:  Further debate?  Commissioner

         19        Wetherington, for what purpose?

         20             COMMISSIONER WETHERINGTON:  To oppose.

         21             COMMISSIONER MILLS:  Okay.  How many wish to debate

         22        this issue?  We will just line up debate.  Commissioner

         23        Wetherington in opposition, a proponent.  Commissioner

         24        Zack, Commissioner Morsani?

         25             COMMISSIONER MORSANI:  Questionable opponent.

          1             COMMISSIONER MILLS:  A questionable opponent.  I'm

          2        not acquainted with that term, but we'll put it down.

          3        Commissioner Nabors?  Opponent?

          4             COMMISSIONER NABORS:  Uh-huh.

          5             COMMISSIONER MILLS:  Any other commissioners wish to

          6        debate?  Recognize Commissioner Morsani first then

          7        Commissioner Zack.

          8             COMMISSIONER MORSANI:  Mr. Chairman and

          9        Commissioners, I certainly am a strong believer in ethics,

         10        in fact, I am a lecturer periodically on business ethics

         11        to some of the ethics classes and ethics organizations

         12        around the state and around the country because I believe

         13        very strongly in how we conduct business.

         14             My concern and especially the way it is written and

         15        I'm not sure I even like the word "functions," I like that

         16        better than the language as proposed.  But I'm very

         17        concerned about the camel, the nose under the tent

         18        syndrome here, what are we getting into as far as

         19        regulations and businesses that are just -- just doing

         20        business with government entities on an ongoing basis.

         21             If it is, you know, in my business, selling cars to

         22        the state of Florida or to some government entity, I mean

         23        using that as a -- not that I do that because they won't

         24        buy imported cars.  All the cars are imported, they just

         25        think they are not.  But anyway, but I am worried about

          1        that, not that we don't want to have ethical standards,

          2        because we do.  But I am concerned about the regulatory

          3        side of this equation that's not literally -- clearly

          4        defined.  I don't think it can be clearly defined.  And as

          5        government has grown to the extent that it has, both

          6        state, local and national government, it is almost

          7        impossible for a large sector of the private sector not to

          8        be doing business with government everyday.

          9             It is like having rules in a company.  If they are

         10        not enforceable, how are you going to have workable rules?

         11        I don't think, as much as I agree with Mr. -- colleague

         12        Sundberg and I have great respect for Ms. Freidin and

         13        everything.  I don't think that these are enforceable

         14        because they are so broad with all the people, they are

         15        enforceable in the courts if someone wanted to probably,

         16        but is that where we are going?  That is another intrusion

         17        in government in the private sector to such a degree that

         18        I don't think it is healthy, even though I want to do it,

         19        but I don't think this is the proper vehicle to do it in

         20        our state Constitution and I strongly oppose it, I think,

         21        and I reluctantly say that.

         22             COMMISSIONER MILLS:  Commissioner Douglass, for what

         23        purpose?

         24             CHAIRMAN DOUGLASS:  I'd like to make a remark before

         25        I return to the Chair on this particular subject.

          1             COMMISSIONER MILLS:  Proponent, opponent or remarks?

          2             CHAIRMAN DOUGLASS:  Remarks.

          3             COMMISSIONER MILLS:  Okay.  That would probably be

          4        timely now as any time.

          5             CHAIRMAN DOUGLASS:  Well, I want to just remind

          6        everybody that we are dealing with the Constitution number

          7        one.  And number two, the issue of ethics is the most

          8        perplexing issue for the Bar, for doctors, for

          9        businesspeople, and everybody has a different view of what

         10        ethics or what an ethical conduct is.  And there are no

         11        definitions of ethical conduct and it changes from year to

         12        year.  It changes from day to day.  Having been involved

         13        with interpreting the canons of ethics for lawyers on the

         14        ethics committee for a number of years and also having

         15        served on the Board of Governors where we voted on whether

         16        people violated ethical conduct, and I am certain the

         17        judicial people agree with me on this, what is ethical has

         18        totally changed every year.

         19             What is ethical now was unethical, and I can assure

         20        you what is now unethical was ethical.  And we are dealing

         21        with a document that transcends these changes and I think

         22        that we should be extremely careful when we restrict

         23        people from serving in government on broad-based problems.

         24        And all of them -- a lot of them have been raised here and

         25        we all are concerned with them.  But the fact that people

          1        might have some minor what now are ethical transgressions

          2        doesn't mean they are not the best qualified and the most

          3        thoughtful and have the best ideas for the will of the

          4        people.

          5             And what we are doing here is creating a vehicle

          6        which can be used to attack the most ethical of people.

          7        And I found, and I think you-all will agree, that when you

          8        are accused publicly by some media or some person in

          9        public life of unethical conduct, no matter how hard you

         10        try, you never overcome the accusation.  And many times,

         11        and this has become more important as we go along with

         12        television one line coverage of the news, ethical

         13        considerations quote, unquote, eliminate many very sound

         14        ideas from ever being in the media because they have to

         15        become totally involved because they are selling their

         16        product with reporting things that titillate the public or

         17        me or you or otherwise.

         18             And if we support the person's political views, we

         19        tend to say, That wasn't ethical and if it was, it was

         20        minor.  If we oppose them, we blow them up to the point

         21        where we just unbelievably follow them through and hound

         22        many good people out of office.  Many businessmen that I

         23        know that are not used to having to deal with this public

         24        shifting sands of right and wrong, once they get into

         25        government are appalled at what is happening to them.  And

          1        therefore they don't go.

          2             And I'm not saying that anybody has the right to be

          3        unethical, but what I'm saying is that before we adopt any

          4        provisions which are limited in general scope to, in

          5        effect, making it wrong for a public employee, and that

          6        goes right down to the tractor driver with the state road

          7        department of the DOT or a county person, to do something

          8        that is, quote, unethical and undefined.  I therefore

          9        caution the Commission that when we are amending or

         10        proposing to amend the Constitution, that we be extremely

         11        careful by creating any exclusion to public service or,

         12        while it may not directly preclude it, it deters people

         13        from serving.

         14             And I will remind you by closing of two things.

         15        Number one, some of the greatest people that we admire the

         16        most in American history were unethical.  In fact, some of

         17        them were crooks but the things that they accomplished for

         18        this great republic have transcended all of that.

         19             And in government, the issue should always be are

         20        they serving the best interest of the public whether it be

         21        ethics, laws or otherwise.  And I will tell you what my

         22        old law partner J. Louis Hall, Senior, who was president

         23        of the Florida Bar, who had had a long distinguished

         24        career, and he had a story that he told that I always

         25        liked to say to lawyers when we are talking about ethics.

          1             He said, You know, old John Mills is in town today

          2        and he is speaking to the Bar Association.  And what's he

          3        speaking on?  Well, he is speaking on ethics.  And Louis'

          4        comment was, Well, I didn't know he had gotten rich enough

          5        to be speaking on ethics.  And the answer to that is, most

          6        people consider ethics involving money and that's where

          7        they always -- you get into your gambles and your problems

          8        of definitions and interpretation.

          9             I therefore suggest that when we pass, if we do,

         10        proposals such as this that we recognize that we are

         11        treading in very dangerous ground.

         12             COMMISSIONER MILLS:  Commissioner Freidin, for what

         13        purpose do you rise?

         14             COMMISSIONER FREIDIN:  I rise to yield to

         15        Commissioner Sundberg.

         16             COMMISSIONER MILLS:  Commissioner Sundberg is going

         17        to explain the amendment on the desk?  Oh, Commissioner

         18        Sundberg, for what purpose?

         19             COMMISSIONER SUNDBERG:  To respond to Mr. Morsani and

         20        the Chairman's remarks.

         21             CHAIRMAN DOUGLASS:  Well, we have an amendment on the

         22        desk.  Would it be appropriate to, at this point, consider

         23        the amendment?  And if you wish to speak for or against,

         24        Commissioner Sundberg, you want to do that later?

         25             COMMISSIONER SUNDBERG:  Well, the point is, their

          1        remarks did not go to the amendment and it is a basic

          2        premise underpinning all of this and I think it is an

          3        error and I just want to correct it.  If people don't want

          4        it corrected, that's fine.

          5             COMMISSIONER MILLS:  A basic premise, we all would

          6        really like to hear that and I presume it would be in the

          7        nature of either supporting or opposing the entire bill;

          8        is that correct?

          9             COMMISSIONER SUNDBERG:  Yes.

         10             COMMISSIONER MILLS:  Commissioner Freidin, if you

         11        want to, this is your amendment on the desk.  By

         12        Commissioner Freidin, read the amendment.

         13             READING CLERK:  My Commissioner Freidin on Page 1,

         14        Line 17, delete all of said line and insert, Or entities

         15        that have contracted with government to perform

         16        governmental functions which prohibit.

         17             CHAIRMAN DOUGLASS:  Commissioner Freidin?

         18             COMMISSIONER FREIDIN:  I think this might get the

         19        camel's nose out from under the tent.  With great

         20        sensitivity to the comments that were made earlier about

         21        the language that was being used and the potential

         22        problems that would come up in terms of private schools,

         23        private school buses, and other such things that are --

         24        that perform functions that are similar to governmental

         25        functions, or parallel to governmental functions, I offer

          1        this amendment because it makes more specific the fact

          2        that we are talking about entities that were contracted

          3        with government to perform governmental functions.

          4             CHAIRMAN DOUGLASS:  Is there debate on the amendment,

          5        debate on the amendment?  Commissioner Nabors, for what

          6        purpose?

          7             COMMISSIONER NABORS:  I'd like to ask a question

          8        about the amendment if I could.

          9             COMMISSIONER MILLS:  She yields.

         10             COMMISSIONER NABORS:  As I indicated, I'm going to

         11        oppose this, not because I disagree philosophically,

         12        because I'm concerned about the language and what it

         13        means.  And my problem with the amendment is this

         14        heightens my concern when you use language contracted with

         15        the government to perform governmental functions, that

         16        says to me almost anybody who contracts with government,

         17        if I am a consulting engineer and I contract with

         18        government to design a road, that's a governmental

         19        function that the staff could do as well or any type of

         20        governmental service.  My problem with this is, is one of

         21        definition and I'm not sure that this language helps.

         22             In some ways duties is better because duties implies

         23        some kind of sovereign function, a sovereign obligation.

         24        When you say any entity that contracts with government to

         25        perform governmental functions, almost any consultant

          1        could perform a governmental function that could otherwise

          2        be performed by staff.  That's what bothers me about the

          3        amendment.

          4             COMMISSIONER MILLS:  Commissioner Freidin, do you

          5        wish to respond?  Is there debate on the amendment?  Is

          6        there debate on the amendment?  If not, Commissioner

          7        Freidin, would you like to close on the amendment?

          8             COMMISSIONER FREIDIN:  No, I just move it.

          9             COMMISSIONER MILLS:  All those in favor of the

         10        amendment?  Commissioner Zack, for what purpose?

         11             COMMISSIONER ZACK:  To ask a question of Commissioner

         12        Freidin.

         13             COMMISSIONER MILLS:  You are recognized.

         14             COMMISSIONER ZACK:  I have a couple concerns as we've

         15        got a number of former chairmen of the ethics commission

         16        and we have been discussing the question as to whether the

         17        intent of the amendment is to require these individuals to

         18        be under the ethics code of the state which would require

         19        financial disclosure and would frankly be virtually

         20        impossible as a practical matter if it applied to all the

         21        people that could possibly come under this definition, or

         22        are we referring to a -- because it doesn't say the code

         23        of ethics of the state, it says a code of ethics.

         24             And I can tell commissioners here that this is a very

         25        serious problem.  We found, as it relates to the conflict

          1        aspects of a code of ethics, for example, even a bus

          2        driver who is a private bus driver, if they use that bus

          3        to take their family to a picnic, has a conflict.  We have

          4        a number of -- a number of cases which the ethics

          5        commission could not deal with because of this loophole,

          6        if you will.  And it is a growing problem, not a shrinking

          7        problem, and I presume based on what has happened

          8        regarding privatization it will continue to grow.

          9             As far as ethical issues there, I served on the Board

         10        of Governors for ten years as our chairman head and dealt

         11        with these issues.  And stealing money from clients has

         12        always been wrong.  Okay.  Year in and year out.  There

         13        are certain ethical issues that are always wrong.  They

         14        don't change regardless of the whims of society.

         15             And if there is a code of ethics that deals with

         16        specific issues of conflict, then I'm very much in favor

         17        of this; however, if this is going to require financial

         18        disclosure from everybody who -- and anybody who has

         19        filled out those financial disclosure forms can know how

         20        confusing they are.  However, you know, we accept that.

         21        And it is appropriate.  But I'm not sure it is appropriate

         22        to apply to every schoolteacher, every college professor,

         23        et cetera.

         24             So my question is, are you referring to a code of

         25        ethics to be established by the Florida Legislature, or

          1        are you referring to putting them under the code of ethics

          2        as presently in the Florida statutes?

          3             COMMISSIONER MILLS:  Commissioner Freidin to respond

          4        to the question.

          5             COMMISSIONER FREIDIN:  The proposal simply amends the

          6        existing provision in the Constitution which says a code

          7        of ethics.  Now in terms of what I intend the Legislature

          8        to do on that, I really -- I don't think -- I would not

          9        begin to presume to say that.  It simply requires that

         10        there be one, is the way I read it.

         11             COMMISSIONER MILLS:  Commissioner Barnett, for what

         12        purpose?

         13             COMMISSIONER BARNETT:  To respond to Commissioner

         14        Zack.

         15             COMMISSIONER MILLS:  You are recognized.

         16             COMMISSIONER BARNETT:  It would be my interpretation

         17        of this provision that it would fall under Chapter 112,

         18        Part 3 of the Florida Statutes, which sets up a code of

         19        ethics for public officers and employees and it is in that

         20        section that among many other specifics, are set forth the

         21        financial disclosure requirements and that that would

         22        apply to whoever is covered by this provision if it is

         23        adopted.

         24             COMMISSIONER MILLS:  All those in favor of the

         25        amendment as offered by Commissioner Freidin, signify by

          1        saying aye.  Those opposed.

          2             (Verbal vote taken.)

          3             COMMISSIONER MILLS:  It fails.  We are back on the

          4        main proposition.  I have Commissioner Zack in favor,

          5        Wetherington opposing, Sundberg in favor, Nabors opposing,

          6        and Freidin to close.  Anyone else wish to speak?

          7        Commissioner Zack?

          8             COMMISSIONER ZACK:  I made my remarks and stand by

          9        them.

         10             COMMISSIONER MILLS:  Commissioner Wetherington?

         11             (Off-the-record comment.)

         12             COMMISSIONER MILLS:  Commissioner Sundberg?

         13             COMMISSIONER SUNDBERG:  This responds really or

         14        addresses the issue raised by the Chairman and by Mr. Zack

         15        and Mr. Morsani and responded to by Commissioner Barnett.

         16             And I agree with Commissioner Barnett that currently

         17        the Legislature has addressed this Constitutional

         18        imperative by Section 3 or really Part 3 of Section 112 of

         19        the Florida Statutes.  And indeed it does provide for

         20        financial disclosure.

         21             All this does, however, and the Chairman says, Golly,

         22        ethics is an ethereal sort of thing and you just, you

         23        know, it is hard to put your hand on it.  Well, this

         24        doesn't deal in ethereal terms, it says there will be a

         25        code of ethics applicable to the named people or entities.

          1        And it says that the Legislature shall enact that code and

          2        they have.  Section 112, Part 3, deals with a number of

          3        conflict situations and it is spelled out rather clearly.

          4        It says, for example, if you are a member of an agency,

          5        you will not, except under some accepted circumstances, do

          6        business with your own agency, you won't contract with

          7        them.  It's not some sort of ethereal conflict about go

          8        forth and do no evil, it is quite specific.

          9             And all this does is enable the Legislature to expand

         10        that ability it already exercises under the Constitution

         11        imperative it now enjoys to expand it to those situations

         12        where the private sector is becoming involved in the

         13        public's business.  Now that might be very good public

         14        policy.  But what is better public policy is to say that

         15        when the private sector and private individuals become

         16        involved in the public's business, that they ought to be

         17        held to the same standard of accountability of anyone else

         18        who is performing the public's business.

         19             So Commissioner Morsani, this isn't something vague

         20        or ethereal, what this does is says, Legislature, enact a

         21        code of conduct.  It has.  I am quite sure it will have to

         22        address and it can have certainly different standards with

         23        respect to financial disclosure, and I would suspect that,

         24        well, that simply is a decision that's not made here.  It

         25        will be made by the Legislature and under this imprimator

          1        it is clear that the Legislature could impose that as a

          2        part of the code of ethics imposed on these other private

          3        entities.  But it need not necessarily do that.  I mean,

          4        that remains to be seen.  So we are not talking about

          5        something ethereal and vague here.  It will, in fact, be

          6        quite precise.

          7             COMMISSIONER MILLS:  Commissioner Wetherington then

          8        Commissioner Nabors and Commissioner Freidin to close.

          9        Commissioner Wetherington?

         10             COMMISSIONER WETHERINGTON:  I think, for example,

         11        where prisons are concerned, if you are going to have

         12        private people running prisons, the same due process

         13        principles should apply if they are performing a function

         14        such as running a prison which is a pure governmental

         15        function and I think the rights of the people in those

         16        prisons should be exactly the same, I'm not wild about

         17        private prisons anyway, but if you are going to have them

         18        I think the standards, the constitutional standards,

         19        should be exactly the same in those areas.

         20             On the other hand, there are other instances

         21        involving governmental contractors in which it is

         22        beneficial for the government to have governmental

         23        contractors where the considerations aren't the same.  In

         24        other words, there are differential considerations.  And

         25        one of the problems that you have, for example, in getting

          1        people to serve on governmental advisory boards is the

          2        conflict of interests regulations, for example, like in

          3        Dade County.

          4             If you make conflict of interest restrictions too

          5        severe, there are a lot of good people that will not agree

          6        to serve government, they will stay away from government.

          7        Those standards may be perfectly appropriate for people

          8        that are regularly employed as government employees, but

          9        there may be different considerations and differential

         10        considerations depending upon the particular contract

         11        service that's being performed for the government.

         12             The Legislature should, I believe, regulate every

         13        governmental contractor, and I think there should be

         14        standards that should be imposed on every governmental

         15        contractor to make certain that the public interest is

         16        served.

         17             But I think that that's a complicated decision and I

         18        think there are different types of services, there are

         19        different types of considerations and that's why I don't

         20        think that putting this as part of the Constitution would

         21        be the way to do it.  And I think that there could be,

         22        depending on if it is exactly the same code that is being

         23        imposed with financial disclosure, a lot of people won't

         24        touch government work.  I know a lot of good people that

         25        will not go into government life at all because of all

          1        these things.

          2             So it seems to me that it is something that should be

          3        done by the Legislature and that we don't need to have it

          4        in the Constitution.

          5             COMMISSIONER MILLS:  Commissioner Nabors?

          6             COMMISSIONER NABORS:  Following through on that

          7        argument is, I have two objections to this.  The first is,

          8        is that the Legislature could do this now.  I mean, the

          9        Legislature could take Chapter 112 and it could expand it

         10        to people that perform governmental duties, and in that

         11        process, there would be precision in terms of definition.

         12        We would know what was being dealt with and there would be

         13        a deliberative process to do that.  So I don't think it is

         14        needed Constitutionally for that reason.

         15             So then you ask yourself, why do you need it in the

         16        Constitution?  The only reason you need it in the

         17        Constitution is to have a Constitution imperative to the

         18        Legislature that you shall do that.  And therein lies my

         19        second problem because do I not know what we are telling

         20        the Legislature to do?

         21             The language to me is not clear.  I don't like to put

         22        anything in the Constitution, I think we should be

         23        reluctant unless it is clear what we are putting in the

         24        Constitution.  So if the people were to tell the

         25        Legislature that, you are directed to do a code of ethics

          1        for entities exercising governmental duties, I'm not sure

          2        that -- that doesn't mean anything to me.  I wouldn't know

          3        what I'd be voting on today.  I wouldn't know what I would

          4        be voting on on the ballot because it does have the

          5        precision to me and doesn't include just prisons, people

          6        performing a contract to governmental services, it doesn't

          7        include consulting engineers, it includes all those who do

          8        governmental services for the state.

          9             So the problem with it is, as a value to the

         10        Constitution, as directing the Legislature, I don't think

         11        it directs it with sufficient precision to be in the

         12        Constitution.  And secondly, the Legislature could do it

         13        anyway.  So I would oppose it for both reasons.

         14             COMMISSIONER MILLS:  Commissioner Freidin to close.

         15             COMMISSIONER ZACK:  I have a question.

         16             COMMISSIONER MILLS:  Commissioner Zack for a question

         17        of whom?

         18             COMMISSIONER ZACK:  Commissioner Nabors.

         19             COMMISSIONER MILLS:  He yields.

         20             COMMISSIONER ZACK:  Commissioner, your opposition to

         21        this matter and for that matter if any of us decide to

         22        vote against it for the reasons stated by yourself and

         23        Commissioner Wetherington is not to be interpreted by the

         24        Legislature as a lack of concern or for that matter, there

         25        is no need to pursue this matter, it is that on the

          1        present basis and the way it is formulated here that it

          2        appears to be unworkable but there is a continuing need

          3        for the Legislature to review this matter and to adopt

          4        appropriate codes of ethics for people who come to work

          5        for government in a private capacity; is that correct?

          6             COMMISSIONER NABORS:  Absolutely.  I think it is an

          7        appropriate Legislative issue.  I think there are all

          8        sorts of things that are concerned with people that

          9        contract for government to the extent that, you know,

         10        their records are public records, all of those types of

         11        issues.  There is a myriad of issues when you start to

         12        privatize government.  So I would agree that my

         13        oppositions should not be an opposition to the concepts.

         14        As you know, our law firms just represent government and

         15        we take the position -- we don't represent a private

         16        entity precisely for the reason of a conflict between our

         17        representation and the main client.

         18             But the problem with it is, is to have something in

         19        the Constitution that's perceived to be an imperative that

         20        is vague in terms of this application, I think creates

         21        confusion and doesn't move the system along.  So I would

         22        say, yes, nothing that I would oppose this or any vote

         23        here should be interpreted as a signal that there isn't

         24        something that perhaps needs to be done in the legislative

         25        area.

          1             COMMISSIONER MILLS:  Commissioner Evans, what

          2        purpose?

          3             COMMISSIONER EVANS:  Question.

          4             COMMISSIONER MILLS:  Of Commissioner Nabors?

          5             COMMISSIONER EVANS:  Of Commissioner Freidin.

          6             COMMISSIONER MILLS:  Commissioner Freidin, would you

          7        take the floor and yield to a question?

          8             COMMISSIONER FREIDIN:  Yes.

          9             COMMISSIONER MILLS:  She yields.

         10             COMMISSIONER EVANS:  In light of the failure of the

         11        amendment, my question is, would you believe that under

         12        the current language I could be held to be subject to this

         13        code of ethics because I am a home-schooled mom.  I have

         14        no problem myself with refusing to conform to that

         15        Constitutional provision and instead standing on my

         16        Constitutional rights to freely exercise my religious

         17        convictions; however, my husband is an elected member of

         18        the judiciary and our home -- I don't home school, we home

         19        school.  So he would be forced to choose whether to abide

         20        by one Constitutional provision or the other and such

         21        choice could subject him to JQC control because he

         22        might -- it might be held to be an improper conduct.

         23             And then the other part of the question is, would you

         24        believe that government is in the business of collecting

         25        garbage and that if I were to rent a U-Haul, which I have

          1        done, to clean out the garage and take it to the garbage

          2        dump that I will have to do that, that compliance, because

          3        again, we are engaging in governmental functions.

          4             COMMISSIONER MILLS:  Commissioner Freidin to respond

          5        and then close.

          6             COMMISSIONER FREIDIN:  Well, I don't have any more

          7        response than I had earlier.  Obviously, the intent of

          8        this is not to include you when you take your garbage out.

          9        With regard to your conflict, or your husband's conflict

         10        between the conflicts, this provision of the Constitution

         11        specifically excludes judicial officers.  Well, it says

         12        nonjudicial officers.  So by its language it doesn't

         13        include judicial officers.

         14             COMMISSIONER EVANS:  A home schooling father, not a

         15        judge.

         16             COMMISSIONER FREIDIN:  Well, I don't think he would

         17        be -- I don't think, and it certainly isn't the intent,

         18        that he would be -- that he would be included at all in

         19        this.

         20             Now this is nothing more than an extension of an

         21        imperative that the Legislature already has.  The

         22        Legislature already has a directive to prescribe a code of

         23        ethics for all state employees and nonjudicial officers.

         24        This is simply expanding their directive to draft a code

         25        of ethics.  And if you look through Chapter 112, it is my

          1        understanding that every provision of that chapter says

          2        who it is directed to and they don't all apply to every

          3        person in the same and to every function in the same way.

          4        Similarly, the Legislature would be directed by this

          5        amendment to look at the -- revisit the code of ethics and

          6        to provide for codes of ethics for appropriate

          7        governmental functions that are being performed by

          8        private -- private entities or persons.

          9             This is not an insignificant issue in our state.  I

         10        understand that about 30 percent of our state budget now

         11        goes for contracted services.  The Legislature, under this

         12        amendment, is free to draft and to fashion a code of

         13        ethics that would be, in its opinion and judgment,

         14        appropriate and I would move the proposal.

         15             COMMISSIONER MILLS:  Final passage of proposition 80.

         16        The clerk will unlock the machine and members will proceed

         17        to vote.

         18             (Vote taken and recorded electronically.)

         19             COMMISSIONER MILLS:  All members voted.  The clerk

         20        will lock the machine and announce the vote.

         21             READING CLERK:  Six yeas and 18 nays, Mr. Chairman.

         22             COMMISSIONER MILLS:  So the proposition fails.  Read

         23        the next proposition, please.

         24             READING CLERK:  Proposition 84, a proposal to create

         25        Article VI, Section V, Florida Constitution, providing

          1        that campaign contributions may be made only by persons

          2        who are eligible to votes for the candidate to whom they

          3        are making the contribution.

          4             (Chairman Douglass returns to the Chair.)

          5             CHAIRMAN DOUGLASS:  Commissioner Corr is recognized

          6        and move Proposal 84.

          7             COMMISSIONER CORR:  Thank you, Chairman.  Thank you.

          8        I want to introduce this by first -- maybe this is a

          9        little bit of a qualification in the way of an

         10        introduction.  But also just to start by describing what

         11        the intent of this proposal and the one that follows is.

         12        This Proposal 84, and the one that is Proposal 114 that we

         13        will hear next, move in the direction of severe campaign

         14        finance reform.  Will they cure all the ills, I don't

         15        think so.  But will it move a step in the right direction,

         16        I would say, yes.

         17             While they are severe and probably we'll hear this

         18        morning or it will be characterized as radical, I would

         19        further again that this is exactly why we need to be

         20        considering these as a Constitution Revision Commission

         21        because the politicians won't and because the public is

         22        tired of excuses.

         23             So the following proposals are in response to the

         24        public outcry that we heard during the public hearing

         25        process to get a grip on the powerful lobbyists and

          1        special interests that control the election process, a

          2        system that has people more and more believing that their

          3        votes do not make a difference and that only money rules

          4        in Tallahassee.

          5             So let's go to Proposal No. 84 and this was -- in the

          6        form it is --

          7             CHAIRMAN DOUGLASS:  Commissioner Corr, I'd like to

          8        ask him to read this first.  And now that it's moved, do

          9        you have an amendment you are going to move right after

         10        that?

         11             COMMISSIONER CORR:  Yes.

         12             CHAIRMAN DOUGLASS:  All right.  Sir, read the

         13        proposal.

         14             READING CLERK:  Propose 84, a proposal to create

         15        Article VI, Section V, Florida Constitution, providing

         16        that campaign contributions may be made only by persons

         17        who are eligible to vote for the candidate to whom they

         18        are making the contribution.

         19             CHAIRMAN DOUGLASS:  Do you now move the amendment

         20        that you have on the table?

         21             COMMISSIONER CORR:  Yes, move the amendment.

         22             CHAIRMAN DOUGLASS:  All right.  Would you read the

         23        amendment offered by Commissioner Corr to Proposal No. 84

         24        which is on the table and should be on your desk?

         25             READING CLERK:  By Commissioner Corr on Page 1, Lines

          1        15 through 18, delete those lines and insert lengthy

          2        amendment.

          3             COMMISSIONER CORR:  Thank you, Mr. Chairman.  This

          4        amendment attempts to do what the original public proposal

          5        sought after, but it handles some of the serious

          6        constitutional questions that were brought up during the

          7        committee process and I think accurately pointed out

          8        during the staff analysis that we would probably never get

          9        away with restricting campaign contributions only to

         10        somebody that could vote for a candidate.  So in an

         11        attempt to keep the original intent and idea alive, this

         12        amendment makes the disclosure as obvious as it possibly

         13        can be.

         14             So that it says that anybody can continue to

         15        contribute, but they are going to do that at the, with the

         16        full knowledge of the electorate as to who the

         17        contributors are.  And so what it does is, it puts the

         18        contributors, their names, their occupations and the

         19        amount right on the ballot under the candidates' name.  So

         20        when you go to the ballot on election day, you will be

         21        able to see the candidate's name and everybody who

         22        contributed and what dollar amount it was for them right

         23        on the ballot.

         24             Now this amendment also establishes a -- or it

         25        directs the Legislature to establish a trust fund, the

          1        campaign finance disclosure trust fund, that takes a

          2        percentage of the contributions received by nonnatural

          3        persons and funds the obviously more costly requirements

          4        now of putting together a much larger ballot and also

          5        directs the Legislature that general law will say that no

          6        more than 30 days prior to election, no more contributions

          7        can be received to allow the supervisor of elections to

          8        prepare this lengthy ballot.

          9             What I will do, Mr. Chairman, is yield to questions

         10        and comments and then save some further remarks for

         11        closing.

         12             CHAIRMAN DOUGLASS:  All right.  First I'm going to

         13        follow the procedure that was followed at the end of the

         14        last debate.  Proponents, I'm going to list you, who are

         15        going to speak in favor of this.  All right.  Any

         16        opponents?  Okay.  Those will be the two opponents.  And

         17        you have a question.  All right.  And anybody that has a

         18        question, of course, can address it to whoever has the

         19        floor.  At the moment, Commissioner Corr has the floor and

         20        you have a question -- no, Commissioner Brochin has a

         21        question.

         22             COMMISSIONER BROCHIN:  Commissioner Corr, do I

         23        understand this that if, say, a gubinatorial election if

         24        there were 75,000 contributors at $100 each, all 75,000

         25        contributors would be listed on the ballot?

          1             COMMISSIONER CORR:  If you understand it correctly.

          2             COMMISSIONER BROCHIN:  Could you also articulate the

          3        thinking behind not allowing candidates to receive

          4        contributions in that 30-day window period?  I understand

          5        what it says, I'm just not sure I understand the reasoning

          6        for it.

          7             COMMISSIONER CORR:  The reason for the 30-day limit

          8        is that in order to get the full disclosure out, what we

          9        need to do is cut off, prior to the election day, the time

         10        in which you can receive contributions.  Because what

         11        happens today is, many times we don't really understand

         12        who the contributors were to a candidate until way after

         13        the election, in which might either sway or change the

         14        voter's opinions.  So in order to make that -- in order to

         15        give the voters all the information they need, and if it

         16        is important to them to understand who the contributors

         17        are to the candidate, then we have to stop that

         18        contribution process far enough out in front of election

         19        day to allow the information to get out.

         20             CHAIRMAN DOUGLASS:  All right.  An opponent is

         21        Commissioner Ford-Coates.

         22             COMMISSIONER FORD-COATES:  I will probably vote

         23        against this but I actually have a question for Commission

         24        Corr.

         25             CHAIRMAN DOUGLASS:  A question then.

          1             COMMISSIONER FORD-COATES:  In this process, have you

          2        discussed with any of the supervisors of election how

          3        physically these names can appear on the ballots?  My

          4        experience obviously is only in one county, but I cannot

          5        quite imagine how physically the ballot can be configured

          6        to include the lists of names.  To me, it feels like a

          7        massive change and at a cost which, although I applaud the

          8        intent, I think the cost is prohibitive in this situation.

          9             These records, as I understand it, are all public

         10        records.  Perhaps they could be advertised or there could

         11        be some requirement to publish that information beyond

         12        what the press already picks up.  But I have a real

         13        concern and wondered if you had considered the actual,

         14        what is the cost going to be to the state of Florida to do

         15        this?

         16             COMMISSIONER CORR:  Clearly, I couldn't estimate the

         17        cost.  That's why we put the provision in to provide a

         18        funding mechanism from the candidates themselves that have

         19        lengthy contributions.  But I would also say that I am not

         20        so načve as to think that this is probably impractical.

         21        My job here is to continue to keep a public proposal

         22        alive, something that was brought forth to us with serious

         23        commitment and is also something that we heard time and

         24        time again in our public hearing process about just the

         25        frustration that the electorate is having at getting

          1        campaign finance reform.  We heard it on the national

          2        level, we heard it on the state level.  We continue to

          3        hear about progress, but voters know there is no progress.

          4        The money continues to control the process.  I understand

          5        what we would end up with is a huge, giant ballot.  Again,

          6        my job as visionary is to not think about those practical

          7        limitations but to think about what would be the right way

          8        to do it.  And I would think that our supervisor of

          9        elections would be creative enough to figure out a way to

         10        provide that information on the election day.

         11             I don't know if new technology would allow that

         12        information to be easier to be provided so it doesn't have

         13        to be on paper, it can be electronic.  I predict that in

         14        the next 20 years we be considering or even voting over

         15        the Internet or in electronic process.

         16             So just because the paradigm that we have today would

         17        probably limit this doesn't mean that it's not the right

         18        idea.  What I would like us to consider is the merits of

         19        the idea of full disclosure on election day so that the

         20        electorate understands full well who is contributing to

         21        these candidates on election day and then in advance and

         22        not having to wait until after election to find that

         23        information out.

         24             COMMISSIONER FORD-COATES:  Commissioner Corr, would

         25        you believe perhaps that although the intent is provide

          1        more information to the public, that by adding this much

          2        information it may actually have the opposite result that

          3        the public has to thumb through page after page after page

          4        of names and addresses and occupations and amounts will

          5        find it harder to get to the point of voting as they had

          6        with Amendment 1 in 1978, and that instead of making it

          7        easier for people to vote, we actually will be putting a

          8        roadblock in their way?

          9             COMMISSIONER CORR:  I would disregard that.  I would

         10        say that the electorate is smart enough to be able to go

         11        through the information, to be able to make decisions on

         12        their own, and they should appreciate the information

         13        before them.  And again, I would think that there are

         14        possibilities with the technology we have today to make

         15        this information easy to go through.  It doesn't have to

         16        be on paper, it can be done a number of different ways.

         17             So again, I can search the Internet today and with

         18        one query come up with a million responses to a question.

         19        And somehow I manage to get to the answer that I want.

         20        And I think there are ways to do -- to provide the same

         21        information to people, not just being limited by the old

         22        paradigm and to have them understand and appreciate it and

         23        it will make a difference on election day.

         24             CHAIRMAN DOUGLASS:  All right.  I think we are ready

         25        to vote on this.  We are voting on the amendment first.

          1        All those in favor of the amendment going to the proposal

          2        say aye.  Opposed like sign.

          3             (Verbal vote taken.)

          4             CHAIRMAN DOUGLASS:  Carries.  We will now vote on the

          5        proposal which you are all familiar with.  Open the

          6        machine, please.

          7             (Vote taken and recorded electronically.)

          8             CHAIRMAN DOUGLASS:  Lock the machine and announce the

          9        vote.

         10             READING CLERK:  Three yeas and 19 nays, Mr. Chairman.

         11             CHAIRMAN DOUGLASS:  By your votes, you have defeated

         12        Proposal No. 84.  Now we'll move to Proposal No. 114 by

         13        Commissioner Corr which was approved by the committee on

         14        ethics and elections.  Would you read it, please?

         15             READING CLERK:  Proposal 114, a proposal to revise

         16        Article VI, Florida Constitution, providing that campaign

         17        contributions may be made only by a natural person.

         18             CHAIRMAN DOUGLASS:  All right.  Commission Corr.

         19             COMMISSIONER CORR:  Thank you, Mr. Chairman.  Now all

         20        those folks that are sympathetic about the last vote can

         21        vote for this one.  And by the way --

         22             CHAIRMAN DOUGLASS:  Incidentally, on the vote about

         23        the judges didn't have to carry out garbage, I have been

         24        told that Justice Kogan wants to revise his vote on that

         25        one, that he's against judges having to take out garbage.

          1             (Laughter.)

          2             CHAIRMAN DOUGLASS:  Go ahead, Commissioner Corr.

          3             COMMISSIONER CORR:  Proposal 114 actually received

          4        the approval from the committee of elections and ethics.

          5        And I have to admit, I was shocked for a moment because I

          6        think that it -- that it does raise constitutional

          7        questions.  But what it showed was the principles of the

          8        members of the elections committee in trying to get to

          9        some kind of campaign reform during this process realizing

         10        that we have a unique opportunity as a Constitution

         11        Revision Commission to do something that politicians never

         12        will.

         13             What this does is, again, it is a dramatic move.  It

         14        will limit all contributions by nonnatural persons so that

         15        if this Constitutional amendment passed, only individuals,

         16        people under their own name, could make contributions to a

         17        political candidate.  It would restrict political action

         18        committees, corporations, labor unions, any other

         19        association from making contributions under their name.

         20        Questions?

         21             CHAIRMAN DOUGLASS:  What we will do is, all opponents

         22        or proponents let me know who you are.

         23             COMMISSIONER SUNDBERG:  I rise for a question.

         24             CHAIRMAN DOUGLASS:  All right.  But I want to know if

         25        there are any proponents that want to speak.  Any

          1        opponents that want to speak?  Then we will have

          2        questions.  Commissioner Sundberg?

          3             COMMISSIONER SUNDBERG:  Commissioner Corr, I assume

          4        the Constitutional problem you elude to is there is

          5        certainly some question as to whether or not you could

          6        limit individuals who joined together in pacts from making

          7        contributions; is that correct?

          8             COMMISSIONER CORR:  That's correct.

          9             COMMISSIONER SUNDBERG:  That's a problematical

         10        Constitutional validity?

         11             COMMISSIONER CORR:  Correct.

         12             COMMISSIONER SUNDBERG:  Thank you.

         13             CHAIRMAN DOUGLASS:  Any other questions?

         14        Commissioner Marshall?

         15             COMMISSIONER MARSHALL:  Commissioner Corr, what kinds

         16        of independent expenditures might nonnatural persons be

         17        able to make in the second paragraph, the effect of

         18        proposed changes?

         19             COMMISSIONER CORR:  Well I don't understand the

         20        question, I'm sorry.

         21             COMMISSIONER MARSHALL:  Under proposed changes I

         22        read, Although the proposed prohibitions -- although the

         23        proposal prohibits contributions to a candidate from

         24        nonnatural persons, these persons could make independent

         25        expenditures in support of or opposition to the candidate.

          1        I'm wondering what kinds of independent activities.

          2             COMMISSIONER CORR:  Well, what that means is, that I

          3        could make a contribution under my own name, but I could

          4        not make a contribution under the name of any other

          5        organization or association.

          6             COMMISSIONER MARSHALL:  Let me try the question again

          7        because I'm not sure.  This is an exception to what a

          8        nonnatural person can do.  And we stipulate that they

          9        could make independent expenditures in support of.  And

         10        I'm wondering -- have I made the question clear?

         11             COMMISSIONER CORR:  Now I understand.  The analysis

         12        claims that a political action committee or a political

         13        party could still make a contribution that may benefit a

         14        political candidate.  For example, if I was running for

         15        office, the Republican party, if they so chose, could take

         16        out a full-page ad in the newspaper and say vote for Chris

         17        Corr.  It would be a contribution on behalf of the

         18        Republican party but not to me as a candidate.  Or they

         19        can make an expenditure for a number of candidates or for

         20        one proposal or an issue or an idea.  But they couldn't

         21        make that contribution direct to the candidate.

         22             I think what that says, now, that wasn't the intent

         23        of the language, but that's what the analysis says if I

         24        understand the question correctly.

         25             CHAIRMAN DOUGLASS:  All right.  Question from

          1        Commissioner Barnett.

          2             COMMISSIONER BARNETT:  I first want to know what that

          3        little sign you were giving to the press was.

          4             CHAIRMAN DOUGLASS:  I was telling them you were

          5        fixin' to ask a question.

          6             COMMISSIONER BARNETT:  Oh, you looked like you were

          7        holding your nose.

          8             (Laughter.)

          9             CHAIRMAN DOUGLASS:  Oh, no, I was telling him

         10        something much better than that.  It's your turn now

         11        and --

         12             COMMISSIONER BARNETT:  I'd like to ask --

         13             CHAIRMAN DOUGLASS:  -- I learned that from

         14        Commissioner Jennings.

         15             COMMISSIONER BARNETT:  I'd like to ask Commissioner

         16        Corr a question about this.  I mean, the intent of this is

         17        to -- as I understand it, the intent is to limit campaign

         18        contributions simply to an individual making a

         19        contribution to a candidate for office.  Under the

         20        language, it appears to me, and I guess this is in the

         21        form of a question to you, would this prohibit

         22        contributions by political parties to candidates for

         23        office and also would it prohibit contributions by

         24        individuals to political parties?

         25             COMMISSIONER CORR:  My attempt to answer the question

          1        is, yes, it would prohibit contributions from a political

          2        party to a candidate but would not prohibit contributions

          3        to a political party.

          4             CHAIRMAN DOUGLASS:  Any other questions?  Are you

          5        ready to vote?  Unlock the machine.

          6             (Vote taken and recorded electronically.)

          7             CHAIRMAN DOUGLASS:  Anybody in the back that wants to

          8        vote, you better get here.  We are fixin' to lock the

          9        machine.  Lock the machine and record the vote.

         10             READING CLERK:  Nine yeas and 15 nays, Mr. Chairman.

         11             CHAIRMAN DOUGLASS:  By your vote you have defeated

         12        Proposal No. 114.  We will now move to Proposal 128 by

         13        Commissioner Ford-Coates approved by the committee on

         14        ethics and elections.  Please read it.

         15             READING CLERK:  Proposal 128, a proposal to revise

         16        Article VI, Section V, Florida Constitution, providing for

         17        primary elections.

         18             CHAIRMAN DOUGLASS:  All right.  All -- well, you go

         19        ahead and make your presentation and move the proposal and

         20        then I'll ask for proponents and opponents to identify

         21        themselves.

         22             CHAIRMAN DOUGLASS:  I'll ask for opponent and

         23        proponent to identify themselves.

         24             COMMISSIONER FORD-COATES:  Mr. Chairman, I have a

         25        very minor amendment on the table.

          1             CHAIRMAN DOUGLASS:  Amendment on the table.  Has it

          2        been distributed?

          3             COMMISSIONER FORD-COATES:  I have no idea.

          4             CHAIRMAN DOUGLASS:  It has been distributed.

          5             COMMISSIONER FORD-COATES:  We did not distribute it

          6        because it changes one word only.

          7             CHAIRMAN DOUGLASS:  Okay.  Would you read the

          8        amendment?

          9             READING CLERK:  By Commissioner Ford-Coates on Page

         10        1, Line 13, delete, as and insert if.

         11             CHAIRMAN DOUGLASS:  Tell us what it does.

         12             COMMISSIONER FORD-COATES:  The purpose of the

         13        amendment, as originally crafted, it said a primary

         14        election shall be held in each county, as provided by

         15        general law.  I wanted to change that to if because this

         16        proposal has nothing to do with whether or not we have

         17        primaries.

         18             CHAIRMAN DOUGLASS:  All right.  You heard the

         19        amendment.  All of those in favor, say aye.  Opposed, no.

         20             (Verbal vote taken.)

         21             CHAIRMAN DOUGLASS:  Amendment is adopted.  You may

         22        proceed on the proposal as amended.  Commissioner

         23        Ford-Coates to make the presentation on it.

         24             COMMISSIONER FORD-COATES:  First of all, this is an

         25        amendment that Commissioner Mills also signed off on.  Let

          1        me clarify what this proposal is not.  It is not a

          2        proposal for an open primary.  This does not change the

          3        way in which we currently select our candidates for the

          4        political parties.  It is not a proposal which eliminates

          5        the second primary or does anything to the system as we

          6        have it now.

          7             But currently, this proposal will correct an

          8        injustice we have currently and ensure the basic right of

          9        our citizens to vote for their elected officials.  If

         10        you'll look at what is currently in the Constitution under

         11        what would be renumbered as Paragraph B under Section 5,

         12        it refers to the fact that we are to hold an election to

         13        choose a successor to each elective state and county

         14        officer.  As I read that, each one of us is responsible

         15        and has the right to elect those people who serve us at

         16        the local, state, and federal level.

         17             The Legislature, in implementing this process, has

         18        provided a primary system whereby each party can select

         19        their nominees.  I have no problem with that system,

         20        except the reality of what happens in many counties where

         21        one party greatly outnumbers the other results in, as

         22        Commissioner Connor stated earlier, are numerous

         23        situations where the minority party fields no candidates.

         24        Therefore, we have many situations in which the public at

         25        large does not get to vote for those officials because, in

          1        effect, the primary becomes the general election.

          2             Candidates, therefore, run only in their own party

          3        although that election is the same as the general

          4        election.  People literally have situations where their

          5        school board members, their county commissioners, their

          6        state representatives are people that are only elected by

          7        members of one party.  What this proposal will do is

          8        ensure that everyone, Independents, Republicans,

          9        Democrats, can vote in the situation in which the primary

         10        is in effect, whether it be first or second, the final

         11        election and the general election.  I'll have comments on

         12        closing if anyone else wants to.

         13             CHAIRMAN DOUGLASS:  All right.  Anybody have any

         14        questions?  First of all, any proponents?  Commissioner

         15        Connor, Commissioner Mills.  All right.  Commissioner

         16        Connor was first.

         17             COMMISSIONER CONNOR:  I'll speak in favor of the

         18        proposal.  Mr. Chairman, when I first registered to vote,

         19        I drove over to Jackson County and registered as a

         20        Republican.  The supervisor of elections had already

         21        filled out the form and it was marked "democrat."  And I

         22        told her, I said, Ma'am, I would like to register as a

         23        Republican.  She worked across the hall from my mother who

         24        served as a secretary for the county judge and she looked

         25        me straight in the eye and she said, Oh, Kenny, it would

          1        be the biggest mistake of your life to register as a

          2        Republican.

          3             I told her I was 21 and I wanted to register as a

          4        Republican.  She took me by the arm, across the hall,

          5        walked into my mother's office and said, Faye Connor, your

          6        son is about to make the biggest mistake of his life.  And

          7        she said, Well, Ilene, what on earth is he trying to do?

          8        And she said, He wants to register as a Republican.  And

          9        my mother just shrugged her shoulders and dropped her head

         10        and said, Well, Ilene, he is 21.

         11             CHAIRMAN DOUGLASS:  You do know that that lady is

         12        considered one of the most intelligent ladies in Jackson

         13        County.

         14             (Laughter.)

         15             COMMISSIONER CONNOR:  She is also one of the finest

         16        people in Jackson County.  Now from Jackson County, I

         17        moved to Polk County where I was told that if I wanted to

         18        have any kind of meaningful participation in the electoral

         19        process, I simply had to register as a democrat.  And then

         20        would you believe it, from Polk County, I wound up moving

         21        to Leon County where the registration is grossly

         22        disproportionate, Democratic to Republican.  I have been

         23        disenfranchised most of my life in primary votes.  I rise

         24        to strongly support this very good proposal which I would

         25        suggest will actually foster people registering in

          1        conformity with the party of their conscience knowing that

          2        they will no longer be disenfranchised from participating

          3        in the process.

          4             CHAIRMAN DOUGLASS:  All right.  Commissioner Mills

          5        has asked to speak as a proponent.

          6             COMMISSIONER MILLS:  Mr. Chairman, I might rethink

          7        that after Commissioner Connor said he was

          8        disenfranchised.  But I still want to speak as a

          9        proponent.  There were just a couple of things, going very

         10        quickly.  It clearly expands, by definition, you are going

         11        to increase turnout in those particular situations.  By

         12        definition, you will increase participation.  And you will

         13        also increase, as Commissioner Connor who is a person who

         14        stands by his principles, the opportunity to stand by your

         15        principles with those people who want to register in a

         16        party that participate will be able to do that.  And for

         17        those reasons, I think this is a good idea for this

         18        commission to do.

         19             CHAIRMAN DOUGLASS:  Commissioner Brochin is a

         20        proponent.

         21             COMMISSIONER BROCHIN:  I too rise as a proponent

         22        really on a fundamental concept that if more than one

         23        person wants to vie for an elected office, it just seems

         24        wrong that everyone doesn't have an opportunity to vote

         25        for those people that are running.  So if you have a

          1        contested election, it seems only fundamentally fair that

          2        everyone who is affected by that elected official have an

          3        opportunity to make that choice.  And I think what this

          4        amendment does is correct that.  And I think it's well

          5        founded and I intend to vote for it.

          6             CHAIRMAN DOUGLASS:  All right.  There was one person

          7        who said he wanted to be an opponent who didn't stand up

          8        but he came up here and told me he wanted to be an

          9        opponent, that was Judge Barkdull.  Nobody else registered

         10        to be an opponent.  He can ask a question.

         11             COMMISSIONER BARKDULL:  Mr. Chairman and members of

         12        the commission, I'm not opposed to everybody having a

         13        right to vote, but we are making a fundamental change with

         14        this proposition, what we have today.  We have political

         15        parties and they hold primaries.  And we are talking about

         16        letting people that are not a part of that political

         17        party, of a political party, participate.  In effect, you

         18        are -- in those instances where a ballot has opposition by

         19        people within the same party, you are going to let their

         20        nominees be controlled to some extent, or possibly to an

         21        ultimate extent, by people that are not members of that

         22        party.  And I think it's completely contrary to our

         23        so-called party system, and that's why I rise to oppose

         24        it.

         25             CHAIRMAN DOUGLASS:  Do you have a question,

          1        Commissioner Hawkes?  Commissioner Hawkes has a question

          2        for you, Commissioner Barkdull.

          3             COMMISSIONER HAWKES:  Thank you, Mr. Chairman.

          4        Commissioner Barkdull, would you believe that in Citrus

          5        County Florida, there's probably 7 percent of the

          6        population that's registered as Independent?  And because

          7        they are registered as Independent, they have no say over

          8        who is going to be on the ballot for them to have the

          9        ultimate choice in and I suppose that if we are going to

         10        continue this fairness, we ought to allow them to maybe

         11        pick which primary they want to belong in and not be

         12        accountable for their choice when they registered at all.

         13        Would you believe that?

         14             COMMISSIONER BARKDULL:  I certainly would.

         15             CHAIRMAN DOUGLASS:  He's very gullible, you know.

         16             (Laughter.)

         17             COMMISSIONER HAWKES:  That one of the reasons that

         18        people cite as why they do not vote is because there

         19        really is no difference between the candidates, eeny,

         20        meeny, miney, mo, it doesn't really matter because neither

         21        one of them are saying anything, that they just try to

         22        gravitate to the middle.  And would you believe that

         23        that's in part because we don't hold them accountable

         24        through the parties?

         25             COMMISSIONER BARKDULL:  I would believe so.  I've

          1        heard there's not a dime's worth of difference.

          2             COMMISSIONER HAWKES:  And doesn't this further

          3        deflate the party's or lessens the party's ability to make

          4        a difference, to stand up for something and have a

          5        significant platform that means something different

          6        perhaps than what the other political parties, so people

          7        are making real choices when they go to the ballot and

          8        cast their --

          9             COMMISSIONER BARKDULL:  In all seriousness, I think

         10        it is a tremendously damaging thing to the political

         11        parties, either party.

         12             CHAIRMAN DOUGLASS:  I don't want to inject into the

         13        debate, but I think you are not reading this because an

         14        independent voter would only be able to vote in an

         15        election where there was no candidate from any other

         16        political party as I read this.  Is that it Ford-Coates --

         17        is that what you were going to point out, Commissioner

         18        Smith?

         19             COMMISSIONER SMITH:  Through a question, yes, sir,

         20        which you have asked.

         21             COMMISSIONER FORD-COATES:  The point is, the party

         22        system, as I understand it, is to allow political parties

         23        to select their nominee to run in the general election.

         24        The reality of the situation is that many times there is

         25        no other candidate in the general election, therefore, the

          1        primary, is, in fact, the general election.  So what I'm

          2        saying is, in those situations where we are not selecting

          3        a party nominee to run against another party person or an

          4        Independent, or whatever.  But only in those situations,

          5        where, in effect, although called the primary, it is no

          6        longer a primary in reality, it is, in effect, the general

          7        election and we have disenfranchised the voters of that

          8        county because they never get a chance to select the

          9        candidates in that election.

         10             CHAIRMAN DOUGLASS:  You are still on the floor as an

         11        opponent, Commissioner Barkdull.  So far, you are it.

         12             COMMISSIONER BARKDULL:  Well, I still think that the

         13        impact of what you are doing is you are destroying the

         14        party principle.  If only two people or three people in

         15        the same party qualify in the primary to be a state

         16        Senator in either the Democratic or Republican party,

         17        whichever, the people that offer themselves to represent

         18        the principles of that party ought to be able to be

         19        considered on the basis only by the people that are

         20        members of that party and not let other people that don't

         21        belong to it come in and influence the outcome, because

         22        they want to, they should be in another political party or

         23        an Independent.

         24             CHAIRMAN DOUGLASS:  Commissioner Morsani has a

         25        question then Commissioner Barnett has a question.

          1             COMMISSIONER MORSANI:  I ask you, sir, why do those

          2        same candidates come to me for donations and contributions

          3        when they are in the other party and I can't vote for

          4        them?  Now, if I give you money, can't I go vote for you?

          5             COMMISSIONER BARKDULL:  You have the choice to give

          6        people in your political party money or people in other

          7        political parties money, but you don't have to.

          8             COMMISSIONER MORSANI:  Well, that's true, we don't

          9        have to.  But my point of it is, if we are solicited on an

         10        ongoing basis, which we are, regardless of the party, and

         11        if there's no other opposition that there's not a

         12        Republican or democrat, and you don't know which one I am

         13        because everyday I change.

         14             (Laughter.)

         15             But, no, I'm serious, I think that if we, that if

         16        people -- I think that also drives it.  If we really want

         17        the best person and there's no other candidates, if

         18        there's not an Independent or there's not a democrat or

         19        there's not a Republican and yet on a daily basis or

         20        during election cycles we are consistently asked for

         21        contributions, and then if there's no other party, I would

         22        think that we would have every -- I believe this is a

         23        great change to our Constitution and for our citizens and

         24        it's very meaningful.  I understand your concern, and I

         25        want to agree with you and I do in spirit, but not in

          1        actuality.

          2             CHAIRMAN DOUGLASS:  And the question is, did he

          3        change your mind?

          4             COMMISSIONER BARKDULL:  No, sir.

          5             CHAIRMAN DOUGLASS:  Another question from

          6        Commissioner Barnett.

          7             COMMISSIONER BARNETT:  I had a question and think I

          8        heard it raised and I didn't hear an answer to it.  And

          9        that is, is the phrase, "political party registration,"

         10        does that include Independent people who are registered as

         11        Independents?  Because if it doesn't, then you have by

         12        this disenfranchised a group of people who otherwise would

         13        have been able to vote in the general election --

         14             CHAIRMAN DOUGLASS:  Will you offer an amendment to

         15        clarify that?

         16             COMMISSIONER BARNETT:  I'd like the question answered

         17        first.

         18             COMMISSIONER FORD-COATES:  The proposal says that all

         19        qualified electors may vote regardless of their political

         20        party registration.  Everyone who registers to vote most

         21        register, if I recall, no party or in one of the parties.

         22        So all qualified electors.  The intent is that everyone

         23        can vote if the primary is, in effect, the general

         24        election.

         25             CHAIRMAN DOUGLASS:  Does that satisfactorily answer

          1        your question, Commissioner Barnett?

          2             COMMISSIONER BARNETT:  It helps.

          3             CHAIRMAN DOUGLASS:  Are you of the opinion that it

          4        does allow the independents to vote?  Commissioner Barnett

          5        nodded her head very slowly yes.

          6             COMMISSIONER BARNETT:  Yes.  Well I'm thinking.

          7             CHAIRMAN DOUGLASS:  All right.  Any further

          8        questions?  You-all ready to vote?

          9             COMMISSIONER FORD-COATES:  May I close?

         10             CHAIRMAN DOUGLASS:  Oh, yes, you may close.

         11             COMMISSIONER FORD-COATES:  Just -- I would just like

         12        to point out one other thing.  We are not only talking

         13        about who has the opportunity to vote, but as Commissioner

         14        Morsani was talking, these candidates are not running at

         15        this point in time to be the nominees of their party.

         16        They're running to be the elected officials.  As such,

         17        they should be appealing to all the voters in their

         18        district.

         19             And let me just close with something that I told the

         20        committee, whatever day this was this week, it's been a

         21        long week.  As Commissioner Connor, when I voted in my

         22        first election at age 21, I considered it a real honor and

         23        a real responsibility and an awesome task.  And I know

         24        that everyone in this room, every time you have an

         25        election, you vote no matter how difficult it is, no

          1        matter what your schedules are, you go and you vote and

          2        you feel the weight of that responsibility.

          3             And I want you to imagine what it's like for people

          4        to get up on election day, to go out and see the signs in

          5        your neighborhood, to see the candidates on the street, to

          6        drive by your polling place, see all of the people going

          7        in to vote and keep going because you cannot vote that day

          8        because there's no one from your party on that ballot.

          9        And you know that the next morning, you are going to get

         10        up and see who your county commissioners are, who your

         11        state representatives are, who your school board members

         12        are.

         13             We have basically disenfranchised a great proportion

         14        of our electorate.  This is a good proposal, it

         15        establishes a basic right of our Constitution, it belongs

         16        in the Constitution.  I urge your support.  Thank you.

         17             CHAIRMAN DOUGLASS:  All right.  We are ready to vote.

         18        Please unlock the machine.

         19             (Vote taken and recorded electronically.)

         20             CHAIRMAN DOUGLASS:  Has everybody voted?  Last

         21        chance.  Lock the machine and announce the vote.

         22             READING CLERK:  Nineteen yeas and seven nays,

         23        Mr. Chairman.

         24             CHAIRMAN DOUGLASS:  By your vote, you have approved

         25        proposal 128 as amended.  And we'll proceed to the next

          1        proposal.  Incidentally, I presume everybody can tell you

          2        where you were when you cast your first ballot when you

          3        were 21.  I had the privilege of casting my first ballot

          4        in a foxhole on the top of hill 851 in Korea.  It was a

          5        very intelligent ballot.  I think I voted in the

          6        presidential preferential primary for Estes Keefover

          7        (phonetic) and he never made it.

          8             And then in the second primary, I got the ballot

          9        three weeks after the election, after my mother wrote me

         10        who won the elections, and in the same mail, I got a

         11        notice from the draft board to report for my preinduction

         12        physical.  Which I was always impressed with the

         13        efficiency of the government.

         14             Commissioner Hawkes, you rise for what point?

         15             COMMISSIONER HAWKES:  A motion, Mr. Chairman.  I'd

         16        like to make a motion to waive the rules, withdraw the --

         17        reconsider the vote by which the amendment to committee

         18        substitute 79 was adopted.  And then I would like to

         19        withdraw that amendment.  What happened was, in the

         20        package that's labeled as the committee substitute really

         21        is not the committee substitute.  And just for the clerk's

         22        purposes, so her paperwork can be in line, we need to go

         23        through the exercise and just take a couple of minutes and

         24        reconsider the vote.

         25             CHAIRMAN DOUGLASS:  It's a technical thing.  You need

          1        to vote yes to reconsider the proposal first.  All those

          2        in favor of reconsidering the proposal, say yes.  All

          3        opposed, say no.

          4             (Verbal vote taken.)

          5             CHAIRMAN DOUGLASS:  Now, you've reconsidered the

          6        amendment to the proposal, correct?  All in favor of

          7        reconsidering the amendment to the proposal, signify by

          8        saying aye.  No?

          9             (Verbal vote taken.)

         10             CHAIRMAN DOUGLASS:  It is reconsidered -- you are on

         11        reconsideration.  Now you are offering --

         12             COMMISSIONER HAWKES:  I'm offering a substitute

         13        amendment.  Now, I need to withdraw the amendment.  It was

         14        drawn in error --

         15             CHAIRMAN DOUGLASS:  All right.  Without objection,

         16        he's withdrawing the amendment and you're offering the new

         17        amendment.

         18             COMMISSIONER HAWKES:  I'm offering the new amendment

         19        withdrawing to the correct lines and the correct committee

         20        substitute and it's on the desk and it is the same

         21        amendment just drawn to the correct --

         22             CHAIRMAN DOUGLASS:  All right.  What it was was a

         23        title mistake.  All those in favor of the amendment,

         24        signify by saying aye.  All in favor of the proposal as

         25        amended signify by saying aye.  All opposed.

          1             (Verbal vote taken.)

          2             CHAIRMAN DOUGLASS:  The motion carries.

          3             Now, I guess we could vote again on the proposal.

          4        I'll vote by voice vote.  Okay.  We are going to have to

          5        take a roll call.  Does everybody remember what the

          6        proposal was, it was 79, correct?  It was unanimous.

          7        Without objection.  Vote again.  Everybody open the

          8        machine and make it unanimous again.  I always thought

          9        Commissioner Sundberg had trouble with that red and green

         10        button there.

         11             (Laughter.)

         12             (Vote taken and recorded electronically.)

         13             CHAIRMAN DOUGLASS:  Lock the machine.

         14             READING CLERK:  Twenty-four yeas and zero nays,

         15        Mr. Chairman.

         16             CHAIRMAN DOUGLASS:  By your vote, you have adopted

         17        committee substitute proposal 79 as amended.  Now, we'll

         18        move on to Proposal No. 158 by Commissioner Marshall.

         19        Would you read the proposal, please.

         20             READING CLERK:  Proposal 158, a proposal to revise

         21        Article IX, Section 4, Florida Constitution providing for

         22        nonpartisan school board elections.

         23             CHAIRMAN DOUGLASS:  Commissioner Marshall, you are

         24        recognized to present your proposal.

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

          1        It's very simple.  School board members are determining

          2        policy for the schools in their districts and they ought

          3        to do that on a nonpartisan basis, and therefore, I

          4        believe they should be elected on a nonpartisan basis.

          5             We have nonpartisan -- we have people selected on a

          6        nonpartisan basis for many other boards having to do with

          7        education and other functions in our society.  And it

          8        seems to me that democracy would be served by having

          9        nonpartisan school board elections as well.

         10             I have forgotten, did we include in this the

         11        provision that they would be non-salaried?  Is that still

         12        in there?  I believe it is.  Let me make that case too,

         13        then, sir.  That it ought to be considered a privilege to

         14        serve your district in this way.  The Board of Regents are

         15        non-salaried boards, the community colleges are

         16        nonsalaried and many other boards are.  The question might

         17        be raised, would good people be willing to serve to invest

         18        the time required to be an active, thoughtful, school

         19        board member?  And I think the answer to that is yes.

         20             If it has ever been in question, it surely is not now

         21        because of the strong popular interest in the schools, the

         22        public schools, the willingness of people to participate,

         23        parents and others to participate in school operations and

         24        school policy in a variety of ways.  And I believe that

         25        good people will come forward and serve their school

          1        districts as school board members without compensation.

          2        So I recommend, fellow commissioners, of an affirmative

          3        vote on this resolution, this proposal on both counts,

          4        nonpartisan elections and non-salaried school board

          5        members.

          6             CHAIRMAN DOUGLASS:  Commissioner Henderson?

          7             COMMISSIONER HENDERSON:  Will Commissioner Marshall

          8        yield for a question?

          9             COMMISSIONER MARSHALL:  Yes.

         10             COMMISSIONER HENDERSON:  Do you believe, sir, that

         11        county commissioners should be paid for their work as a

         12        county commissioner?

         13             COMMISSIONER MARSHALL:  I think you could make a good

         14        case that this principle applies.  I think in terms of

         15        practical politics, it does not apply and I would not

         16        favor that action for county commissioners.

         17             COMMISSIONER HENDERSON:  Are you aware that there are

         18        provisions in certain county charters which tie the

         19        salaries for county commissioners to the salary for the

         20        school board?

         21             COMMISSIONER MARSHALL:  I am aware of that, sir.

         22             COMMISSIONER HENDERSON:  So the effect of this, if it

         23        were adopted, would be that county commissioners in say

         24        Volusia County, where I reside, would be paid nothing for

         25        their service?

          1             COMMISSIONER MARSHALL:  I don't follow that,

          2        Commissioner.

          3             COMMISSIONER HENDERSON:  In Volusia -- Volusia County

          4        is a charter county.  The salary of the commissioners

          5        there is tied by charter amendment to the salaries of

          6        school board members which are now established by state

          7        law.  So, if this proposal were to pass in its current

          8        form, then the county commissioners there would be paid

          9        nothing.

         10             COMMISSIONER MARSHALL:  I do understand the point.  I

         11        thought the school board member's salaries were tied to

         12        those of county commissioners and that -- and you are

         13        saying it's reciprocal?

         14             COMMISSIONER HENDERSON:  It's just the opposite.  The

         15        salaries of the county commissioners there is tied to the

         16        statutory rate for school board members.

         17             COMMISSIONER MARSHALL:  Thank you.  I did not know

         18        that.  But I believe that matter could be addressed

         19        through legislation.

         20             CHAIRMAN DOUGLASS:  Any more questions?  Commissioner

         21        Butterworth.

         22             COMMISSIONER BUTTERWORTH:  Thank you, Mr. Chairman.

         23        Commissioner Marshall, I personally agree that school

         24        board members should be nonpartisan.  I agree with you on

         25        that.  In some of our larger counties, school boards meet

          1        literally once a week for many hours, sometimes in the wee

          2        hours of the morning.  Many people who are able to serve,

          3        they are able to serve because they have another

          4        employment and this may be a supplement to the employment.

          5        In smaller counties, they may not have to meet as often.

          6        The Board of Regents, I don't believe, meets once a week.

          7        I could be wrong on that but I don't believe that they

          8        meet that much.

          9             I think that we could end up losing a number of

         10        well-qualified, well-meaning people who will not be able

         11        to run for financial reasons.  I believe the little bit of

         12        money that they get would be better off -- I believe have

         13        a better chance of the winning this proposal if in fact

         14        the nonpartisan is your number one priority with the

         15        non-salary being the number two priority.

         16             If they are both number one priorities, you can go on

         17        the board on that.  But I'd like to see personally, and I

         18        can draft the amendment, to take out the salary issue and

         19        just make it clearly a nonpartisan issue.

         20             COMMISSIONER MARSHALL:  You have ranked them

         21        correctly, Commissioner.  I do favor to the nonpartisan

         22        election of the school board members over the nonsalary

         23        issue.  And I recognize the political wisdom of your

         24        recommendation and would be willing to accept an amendment

         25        to that extent.

          1             CHAIRMAN DOUGLASS:  I understand there is an

          2        amendment on the way.

          3             COMMISSIONER HENDERSON:  Mr. Chairman, there's an

          4        amendment that I filed.

          5             CHAIRMAN DOUGLASS:  All right.  It's being copied so

          6        it's not ready just yet but if you want to tell us what it

          7        is, you may.  This is Commissioner Henderson.

          8             COMMISSIONER HENDERSON:  Yes, thank you.  The

          9        amendment which I just filed tracks comments made by

         10        Commissioner Butterworth that would strike the new

         11        language at the end of Lines 19, 20, 21 and 22, and

         12        therefore, take out the language with regard to the

         13        salary.  And I'll tell you, I strongly support the idea of

         14        making this -- making school boards nonpartisan.  But what

         15        I'm seeing in urban counties, more and more things that

         16        you're having to do to be a member of a school board,

         17        makes it very difficult to attract people for public

         18        service for that.  In addition, the unintended

         19        consequences for some other county commissioners and some

         20        charter counties makes this very difficult.

         21             CHAIRMAN DOUGLASS:  All right.  The amendment is

         22        being distributed.  Does the reading clerk have the

         23        amendment?  Read the amendment, please.

         24             READING CLERK:  By Commissioner Henderson, on Page 1,

         25        Lines 19 through 22, delete everything after the word law.

          1             CHAIRMAN DOUGLASS:  All right.  What that does is

          2        omit -- delete the language which reads, school board

          3        members shall not be paid a salary but may be reimbursed

          4        for expenditures related to their duties as provided by

          5        law.

          6             Commissioner Henderson, you've already spoken to that

          7        amendment.  Does anybody else want to speak to that

          8        amendment?  Commissioner Corr?

          9             COMMISSIONER CORR:  To oppose it?

         10             CHAIRMAN DOUGLASS:  Either.

         11             COMMISSIONER CORR:  My understanding that what this

         12        would do, Commissioner Henderson, is take out the language

         13        that restricts the salary, so that we would have a

         14        nonpartisan school board but they could still receive a

         15        salary for the position.

         16             COMMISSIONER MARSHALL:  That's correct.

         17             COMMISSIONER CORR:  Then I would oppose the

         18        amendment.  The position of school board, as Commissioner

         19        Marshall already spoke, should be a privilege, not thought

         20        of as a salaried opportunity.  I would say that if we

         21        think this is going to prohibit qualified candidates from

         22        coming forward, that that's not the truth.  School boards

         23        shouldn't be looked at as an opportunity to make more

         24        money, but to influence the direction of education for our

         25        children.

          1             So, salary, notwithstanding, I think that we'll still

          2        get qualified people to come forward and the result of the

          3        meetings might even be better because they might be

          4        shorter and they might get their work done faster if they

          5        are on their own time instead of the taxpayer's time.  I

          6        would speak and urge you not to adopt this amendment.

          7             CHAIRMAN DOUGLASS:  Commissioner Mills was up first.

          8        You will be next, Commissioner Riley and then Commissioner

          9        Smith.

         10             COMMISSIONER MILLS:  I would like to the speak

         11        briefly in favor of Commissioner Henderson's amendment.

         12             CHAIRMAN DOUGLASS:  This is on the amendment and I

         13        would like proponents to speak.  You are a proponent of

         14        the amendment?

         15             COMMISSIONER MILLS:  That's correct.

         16             CHAIRMAN DOUGLASS:  Proceed.

         17             COMMISSIONER MILLS:  I think he correctly mentioned

         18        that school board members should consider it a privilege.

         19        I think all elected officials and all public servants

         20        should consider their service a privilege and most of the

         21        salary scales reflect that.

         22             When I served in the Legislature, I recall coming

         23        home and watching the school boards work.  In some ways,

         24        the elected school board members are some of the hardest

         25        working public officials I know.  Whereas I may have voted

          1        on the FEFP funding formula for the county of Alachua, the

          2        four or five school board members had to vote on what

          3        school somebody's kid was going to go to.  And believe me,

          4        people take that a lot more personally.  I think it is a

          5        tough job.  I don't know many people in that realm of

          6        public service that are in it for the money.  I think they

          7        work long hours and I would simply endorse Commissioner

          8        Henderson's amendment, which all that does is allow the

          9        Legislature to make that decision.

         10             In other words, by doing this, we take away the

         11        discretion of the Legislature to make that decision.  If

         12        in some time in the future, they are persuaded that school

         13        board members shouldn't be paid, they can't make that

         14        decision because we have told them here they can't be paid

         15        constitutionally.

         16             CHAIRMAN DOUGLASS:  Commissioner Riley as a proponent

         17        of the amendment.

         18             COMMISSIONER RILEY:  Yes.  I speak in favor of the

         19        amendment.  I would ask Commissioner Corr and agree with

         20        him that it is, in fact, a privilege to be a school board

         21        member but it is not for the privileged to be a school

         22        board member.

         23             We have in our county a school board member who

         24        donates all of his salary back to the school board because

         25        he doesn't need it.  And we have people who serve on that

          1        school board who I guarantee you could not be there if

          2        they weren't compensated for their time.  And, therefore,

          3        I would speak for the amendment.

          4             CHAIRMAN DOUGLASS:  Commissioner Smith also wanted to

          5        speak for the amendment.  Commissioner Smith?

          6             COMMISSIONER SMITH:  I join to say ditto to

          7        Commissioner Riley.  It should be a privilege but we must

          8        be careful not to reserve it for the financially

          9        privileged class.

         10             CHAIRMAN DOUGLASS:  Commissioner Marshall on the

         11        amendment.

         12             COMMISSIONER MARSHALL:  Mr. Chairman, yes, I'm

         13        speaking in favor of the amendment and I think I ought to

         14        explain my position to those with whom -- the benefit of

         15        those with whom I've discussed this in the past.

         16             Commissioner Butterworth pointed out, let's see, he

         17        said that the Board of Regents don't meet every week as

         18        school boards do.  I don't think every school board meets

         19        every week, but the Board of Regents meets monthly with an

         20        enormous amount of paperwork in between, committee work in

         21        between meetings.

         22             So I think the volume of work required is not the

         23        issue.  I think good, devoted people who want to serve

         24        their schools, their school districts will do it and do it

         25        without compensation.  I acknowledge that we would lose

          1        some people.  I concede that we would lose some people who

          2        could not afford to serve.  I think we would gain some

          3        others who we would consider it a privilege to serve in

          4        this way.  And indeed, he may be turned off by the

          5        compensation that's involved.  I can tell you, I won't,

          6        but I could name some school board members I've known over

          7        the years who have served because of the salaries

          8        involved.  I regret to say that, but I suspect that you

          9        know some too.

         10             But if it's a matter of practical politics, I've

         11        ranked these two aspects of the proposal as Commissioner

         12        Butterworth suggested and therefore I will vote for the

         13        amendment and propose that you do so.

         14             CHAIRMAN DOUGLASS:  All right.  Are you ready to vote

         15        on the amendment?  All in favor of the amendment, say aye.

         16        Opposed like sign.

         17             (Verbal vote taken.)

         18             CHAIRMAN DOUGLASS:  The amendment is adopted.  We now

         19        are on the proposal as amended.  Commissioner Marshall, do

         20        you have further remarks or do you stand on your original

         21        presentation?

         22             COMMISSIONER MARSHALL:  I have nothing else to add,

         23        sir.

         24             CHAIRMAN DOUGLASS:  Hear from any other proponents

         25        that haven't spoken.  Now from opponents.  Commissioner

          1        Hawkes as an opponent.

          2             COMMISSIONER HAWKES:  Gosh, I'm afraid maybe I'm the

          3        only one here.  And I guess it's partly -- and I don't

          4        understand what's wrong with partisan.  If you put on the

          5        ballot that someone is a Republican or someone is a

          6        democrat, it is a piece of information.  Does that mean

          7        that that piece of information is always 100 percent

          8        accurate, no.

          9             But maybe if I recognized the name on the ballot as a

         10        name that's been in my community a long time, maybe that

         11        conveys to me that this is someone who has some stability

         12        and cares about the community and lives there and makes it

         13        his home.  And I include that in part of my voting

         14        decision.  Or maybe it's a person I recognize has a

         15        position of trust in the community and I think, Gosh, I

         16        know he's in a position of trust in the community.  That

         17        might mean that he's trustworthy, maybe not, but I use

         18        that piece of information.

         19             And maybe if's he a Republican and there's certain

         20        Republican philosophies, maybe I think that he's going to

         21        try to do what's best for our children utilizing those

         22        philosophies as his basis.  Whether he's a democrat, maybe

         23        he's going to use those philosophies to try to decide

         24        what's best for our children.  So I just think it's

         25        another piece of information.  And by making it

          1        nonpartisan, you're taking that away from the voter.

          2             And I'll point out that the second thing that you're

          3        doing, is if we look at the voter turnout in a primary,

          4        because nonpartisan elections are decided in September,

          5        they're not decided in November.  In November, we might

          6        get 80 percent turnout.  In September, we don't.  Not

          7        normally anyway.

          8             And so what we are doing now is, we are saying who's

          9        going to be on the school board in many instances on a

         10        much smaller population base than in the general election

         11        in November because if someone gets over 50 percent in

         12        September, that's it, they are the school board member.

         13             And I'm not aware, and maybe Commissioner Marshall

         14        can tell me where, that the partisanship has somehow

         15        destroyed a school board's ability to function because

         16        someone ran as a Republican or someone ran as a democrat

         17        or someone ran as some other party.  So I guess I just

         18        don't -- it just seems to me that's an automatic

         19        assumption that if it's partisan, it's bad.  And I just

         20        think partisan is information and I would ask you to

         21        defeat the proposal.  Thank you.

         22             CHAIRMAN DOUGLASS:  Opponent?  Commissioner Evans.

         23             COMMISSIONER EVANS:  I merely have a question.

         24             CHAIRMAN DOUGLASS:  Oh, a question of Commissioner

         25        Hawkes, he's got the floor.

          1             COMMISSIONER EVANS:  Commissioner Hawkes, okay, yes.

          2        I do not know the answer to this question.  In school

          3        board elections, do parties contribute to the campaigns?

          4             COMMISSIONER HAWKES:  Yes, they can, if it's a

          5        partisan election.  And I'm glad you brought that up

          6        because that's another point I wanted to make.  I think it

          7        ties in with Commissioner Smith's point.  We want people

          8        who want to serve and can do the job to be able to serve.

          9        And one way that you win elections, quite honestly, is you

         10        get your message out there.  If nobody knows who you are

         11        and you can't get your message out there, you're really

         12        limiting your chances to win.

         13             Well, the way you get your message out in reality is

         14        by having some campaign contributions.  And executive

         15        committees of local counties do, in fact, give money to

         16        their candidates in many cases.  People contribute based

         17        on the basis of party identification.  They care, there's

         18        more excitement, there's more interest.  And so I think

         19        that if you make it nonpartisan, now political parties are

         20        prohibited from contributing, and you are removing one of

         21        the sources of contributions that that candidate might

         22        have in order to get their message out.

         23             CHAIRMAN DOUGLASS:  All right.  Commissioner Connor,

         24        you want to speak as an opponent or ask a question?

         25             COMMISSIONER CONNOR:  As an opponent.

          1             CHAIRMAN DOUGLASS:  Okay.

          2             COMMISSIONER CONNOR:  I share Commissioner Hawkes'

          3        views that there may be very sharp party distinctions on

          4        issues that affect the education of our children and that

          5        we gain valuable information by understanding with which

          6        party a particular candidate identifies themselves not

          7        only on the curricula that are a part of our schools, but

          8        on the philosophy of spending money, on the philosophy of

          9        taxation, on issues that relate to the dispensing of

         10        contraceptives, on the presence of health clinics in

         11        schools.  There's just a whole, whole wide variety of very

         12        diverse issues that the parties typically will address in

         13        school board elections and that the identification of one

         14        candidate with one party or another may be of assistance

         15        to the voter in making those choices.

         16             And furthermore, I would submit to you, that given

         17        the primacy of the role of the education of our children

         18        that it plays in the life of our community and the life of

         19        our country, it is and ought to be very much a subject

         20        that political parties deal with.  And that the way in

         21        which those parties define those issues may have

         22        everything to do with whether or not voters are attracted

         23        to a particular party or not.

         24             So I don't think we ought to blur the lines here.  I

         25        think there's great benefit to maintaining that

          1        identification.  And the spectrum of issues that wind up

          2        being dealt with in the educational arena touch virtually

          3        every facet of the life within the community from an

          4        economic to an educational standpoint.

          5             CHAIRMAN DOUGLASS:  Commissioner Morsani, question?

          6             COMMISSIONER MORSANI:  Question, yes, sir.  Do, and I

          7        think, I'm not sure, that's the reason I'm asking the

          8        question, don't some counties now have nonpartisan school

          9        board elections?

         10             CHAIRMAN DOUGLASS:  Commissioner Marshall, can you

         11        answer that?

         12             COMMISSIONER MARSHALL:  Yes, they do.

         13             COMMISSIONER MORSANI:  Is that by statute or by

         14        charter?  What is the rule?

         15             CHAIRMAN DOUGLASS:  Charter as a general rule; isn't

         16        it, Commissioner Nabors?

         17             COMMISSIONER NABORS:  Generally, it's by county

         18        charter.

         19             COMMISSIONER MORSANI:  Do we need this -- I'm

         20        philosophically, I'm on both sides of this question.  But

         21        I guess all of us are.  But, Mr. Nabors, if you would, if

         22        it's by charter then, can't the individual counties change

         23        this without having it in the Constitution?

         24             COMMISSIONER NABORS:  Well, it's generally -- you

         25        have a lot of counties that are non-charter counties which

          1        you will not be able to change.  And for those counties

          2        that were charter, which are about, what, 15 or 12,

          3        charter counties, if their charter provides, and most do,

          4        you could have an initiative by the citizens under the

          5        charter to change the charter and provide for nonpartisan

          6        elections.  But if you're a non-charter county, you would

          7        not have that access.

          8             CHAIRMAN DOUGLASS:  Does anybody know how many

          9        charter counties there are?

         10             COMMISSIONER NABORS:  There's about 12, 12 to 15,

         11        something like that.

         12             CHAIRMAN DOUGLASS:  So out of 67?

         13             COMMISSIONER MORSANI:  Why don't they get their

         14        charter and then they can do what they want?

         15             CHAIRMAN DOUGLASS:  Not without a vote of the people.

         16             COMMISSIONER NABORS:  The charter would have to

         17        specifically say nonpartisan election.

         18             COMMISSIONER MORSANI:  I understand.  Should this be

         19        in the Constitution, as much as I -- basically I agree in

         20        many respects, but is it back to this Christmas tree that

         21        we are possibly creating here, which we don't want a

         22        Christmas tree, but if this is possible without this, it

         23        would seem that we -- if we have got the 12 charter

         24        counties which is probably the larger counties in our

         25        state, I don't know that.  Maybe there are some smaller

          1        population counties too.

          2             But does this need to be -- if we feel that strong

          3        about it in Hillsborough County and we do have a charter

          4        and I think Dade does, Broward.  And I don't know whether

          5        Levy County has one or Lake County, but they could change

          6        those through their charter rather than to put this in our

          7        Constitution.  That's one of my major concerns.

          8             CHAIRMAN DOUGLASS:  Any further questions?

          9             COMMISSIONER MARSHALL:  If I may respond to that,

         10        yes.  We already stipulated in the Constitution the

         11        conditions under which school board members are selected

         12        and serve.  This is not introducing a new topic, it's

         13        merely modifying this already in a small way, it's already

         14        in the Constitution, Commissioner.

         15             CHAIRMAN DOUGLASS:  I think what he's saying is that

         16        the Constitution requires that there be in each school

         17        district, a board composed of five or more members,

         18        whether it is a charter county or not.  And that's what

         19        your response is.  Commissioner Henderson?

         20             COMMISSIONER HENDERSON:  For Commissioner Marshall.

         21        I know in my county, Volusia, we have nonpartisan, it

         22        seems to be working well.  Do you know of any other

         23        counties that have that tradition or that system and how

         24        well is it working?

         25             COMMISSIONER MARSHALL:  Did you say, nonpartisan and

          1        it's working well?  I do not know.  The county that I live

          2        in has partisan elections.  It's a very strange situation

          3        in Leon County.  We have partisan elections of school

          4        board members but nonpartisan election of county and city

          5        commissioners.

          6             CHAIRMAN DOUGLASS:  Just city commissioners.

          7             COMMISSIONER MARSHALL:  I'm sorry, yes, just city

          8        commissioners.

          9             CHAIRMAN DOUGLASS:  And judges.  Any other questions?

         10        If not, are you ready to vote?

         11             COMMISSIONER MARSHALL:  Let me close.

         12             CHAIRMAN DOUGLASS:  Yes, sir.  Excuse me,

         13        Commissioner Marshall.

         14             COMMISSIONER MARSHALL:  Putting this in the

         15        Constitution does not seem to me to change the -- does not

         16        seem to me to Christmas tree up the Constitution very

         17        much.  As to the role of partisanship and the selection of

         18        school board members, I regard the schools as a kind of a

         19        sacred trust, quite different from many other civic public

         20        functions.  And I regard the role of a school board member

         21        as a sacred responsibility.

         22             Now, I acknowledge that county commissioners and city

         23        commissioners also are involved in decision-making on very

         24        important civic questions.  But when we talk about

         25        curriculum, for example, I would like to see that be less

          1        partisan, not more, Commissioner Connor.  And the same

          2        thing, I think, can be said for many other decisions that

          3        school board members make.  I don't think partisanship

          4        ought to be involved.  I've been approached by partisan

          5        candidates for the school board here who know that I'm a

          6        member of the same party and they appealed to me on that

          7        basis.

          8             And I first say to them, I must depart my party on

          9        this, because I have strong feelings about these school

         10        board issues and I have got to go with that allegiance

         11        first.  Is that similar to my stance on election of city

         12        and county -- of city commissioners, it is.  In my

         13        judgment, it is because I think the schools are

         14        enterprises of the people that separate themselves from

         15        other civic functions in important ways.  I really think

         16        they represent a kind of a sacred trust and I urge you to

         17        give this proposal your endorsement.  Thank you,

         18        Mr. Chairman.

         19             CHAIRMAN DOUGLASS:  Thank you, Commissioner Marshall.

         20        Now, having closed, we're prepared to vote.  Open up the

         21        machine.  Let's vote.  All right.  Has everybody voted?

         22        Lock the machine and announce the vote.

         23             (Vote taken and recorded electronically.)

         24             READING CLERK:  Nineteen yeas and seven nays,

         25        Mr. Chairman.

          1             CHAIRMAN DOUGLASS:  By your vote, you have adopted

          2        Proposal No. 158 as amended.  And we will move to Proposal

          3        No. 1 by Commissioner Sundberg which has been approved by

          4        the committee on declaration of rights.  Would you read

          5        the proposal, please, Mr. Clerk?

          6             READING CLERK:  Proposal 1, a proposal to revise

          7        Article I, Section 9, Florida Constitution, providing that

          8        private property may not be forfeited unless the owner is

          9        convicted of a felony and has exhausted all appeals.

         10             CHAIRMAN DOUGLASS:  All right.  This was Proposal

         11        No. 1.  Commissioner Sundberg?

         12             COMMISSIONER SUNDBERG:  Thank you, Mr. Chairman.

         13        This proposal is direct, straightforward, without

         14        complexity.  It is an intended amendment to Section 9 of

         15        Article I which is our declaration of rights.  Section 9

         16        deals with due process and it outlines several areas where

         17        the government may not tread upon the rights of

         18        individuals.  Says it will not take their life, liberty,

         19        or property without due process of law, or that they be

         20        twice put in jeopardy for the same offense or be compelled

         21        in any criminal matter to be a witness against himself.

         22             This adds, simply, that their private property, the

         23        private property of the citizens of this state may not be

         24        forfeited -- or may be forfeited only after felony

         25        conviction of and exhaustion of appeals by the property

          1        owner.

          2             For information purposes, the -- there is another

          3        provision in our Constitution which deals with the private

          4        property rights of the citizens of this state.  And that

          5        is Section 6 of Article X of our Constitution.  And it

          6        simply says, in a very straightforward way, that no

          7        private property shall be taken except for a public

          8        purpose and with full compensation therefore paid to each

          9        owner or secured by deposit and registered with the Court

         10        and available to the owner.

         11             I mentioned this to make the point that forfeiture is

         12        an exception to the rule that we, in this state, presume

         13        that the government will not take a person's private

         14        property unless you compensate that person for that

         15        property.  It is an exception, I suggest to you, based

         16        upon the fact that it is perceived to be, and therefore,

         17        constitutional, because it is a penalty extracted for the

         18        commission of a crime.

         19             The only problem is that, under our processes as they

         20        now exist, nobody has been convicted of a crime at the

         21        point in time when their private property can be

         22        forfeited.  Now, the property in question, I grant you,

         23        must have been involved -- and that's one of the elements

         24        of proof, involved in the commission of the crime.  I

         25        grant you -- and by the way, I'm sure you-all have

          1        received much of the information I have from -- I mean,

          2        there are police chiefs of communities that I didn't even

          3        know existed in the state of Florida until this

          4        proposition came up.

          5             But much of the information from the head of the FDLE

          6        was helpful and it made it clear that there have been some

          7        protections in vote since the terrible abuses that we are

          8        all, I think, familiar with that took place in, well,

          9        Mr. Henderson's county in particular, where stops were

         10        made by law enforcement, cash was taken off of people on

         11        the spot and they were forfeited, you know, without -- and

         12        it was somebody who was a transient.  I don't hold

         13        Mr. Henderson responsible for that.

         14             (Laughter.)

         15             CHAIRMAN DOUGLASS:  He wasn't one of them they

         16        stopped either.

         17             COMMISSIONER SUNDBERG:  But the point is -- the point

         18        is, you can only justify, in my mind, taking someone's

         19        property, without compensating them for that property, if,

         20        in fact, it is an appropriate penalty for the commission

         21        of crime.  That has been the exception.  But as I say,

         22        under the process that we now have, even though there's

         23        the protection, yes, in the proceedings that the State has

         24        to go through to effect the forfeiture, ultimately, they

         25        have to prove the elements beyond -- pardon me, by clear

          1        and convincing evidence.

          2             And for those of you who don't deal in these kinds of

          3        word games that lawyers do, there are essentially three

          4        standards of proof.  One is by preponderance of the

          5        evidence and that just means that the person has to be

          6        convinced that the weight is ever so slightly tilted in

          7        favor of the proposition.

          8             There's clear and convincing, which I know of no good

          9        definition for except that it falls somewhere in between

         10        preponderance and beyond and to the exclusion of all

         11        reasonable doubt.  All of you, even those of you who have

         12        been -- only been exposed to Perry Mason, know what that

         13        standard is.

         14             But that is the standard by which the state must

         15        offer its proof and convince the trier of the fact before

         16        one is -- can be convicted of a crime.  On the other hand,

         17        we now, under the circumstances as they now exist, by this

         18        lesser standard of clear and convincing evidence, they can

         19        take the person's property, the citizen's property, by a

         20        standard of only clear and convincing evidence, and the

         21        person has not been convicted of any crime.

         22             What this proposal does is simply say that you will

         23        not take a person's property by forfeiture unless and

         24        until that person has been convicted of the crime, which

         25        is the predicate for your taking that person's property in

          1        the first instance, and that you won't take it from that

          2        person unless and until he has, he or she has, by clear

          3        and convincing evidence, been convicted of the crime.

          4             CHAIRMAN DOUGLASS:  I'm sorry, first of all, there is

          5        an amendment on the desk by Commissioner Wetherington and

          6        would you read -- we will take up the amendment.  Would

          7        you read the amendment, please?

          8             READING CLERK:  By Commissioner Wetherington, on

          9        Page 1, Lines 14 through 19, delete those lines and

         10        insert, Section 9, due process.  No person shall be

         11        deprived of life, liberty, or property without due process

         12        of law or be twice put in jeopardy for the same offense or

         13        be compelled in any criminal matter to be a witness

         14        against himself.  Private property may be forfeited only

         15        upon proof beyond all reasonable doubt of the commission

         16        of a felony by the property owner.

         17             CHAIRMAN DOUGLASS:  Commissioner Wetherington on the

         18        amendment.

         19             COMMISSIONER WETHERINGTON:  I think that Commissioner

         20        Sundberg is correct, that a person's property should not

         21        be forfeited, which in effect, is a criminal penalty

         22        without the same burden of proof being achieved, which is

         23        proof beyond all reasonable doubt.  There are problems,

         24        however, with requiring conviction.  There are

         25        circumstances in which -- which may intervene with respect

          1        to the conviction process that create all kinds of

          2        practical problems that I don't think are necessary to

          3        achieve the principal purpose of the proposal, which is to

          4        simply ensure that the proof be there beyond all

          5        reasonable doubt before, in fact, there can be a

          6        forfeiture.  That's why I've suggested that we remove the

          7        language concerning conviction and substitute language

          8        dealing with proof beyond all reasonable doubt.

          9             CHAIRMAN DOUGLASS:  Commissioner Barkdull, I --

         10        before we go forward, all of this doesn't apply to a

         11        felony or a crime being committed at the time that the

         12        property is forfeited; is that correct?

         13             COMMISSIONER BARKDULL:  That's what I'm trying to get

         14        to.

         15             CHAIRMAN DOUGLASS:  Okay.  Commissioner Barkdull?

         16             COMMISSIONER BARKDULL:  Will Commissioner

         17        Wetherington take the floor for a question, please?  I am

         18        sympathetic to the idea that you can forfeit property

         19        that's used in the criminal enterprise but there's no

         20        limitation as to what private property may be forfeited as

         21        I read your provision.  And any private property owned by

         22        a person who committed a felony would appear might be

         23        subject to forfeiture.  And I don't think that's what you

         24        intend.

         25             COMMISSIONER WETHERINGTON:  I'm advised by

          1        Commissioner Hawkes that that's already provided for in

          2        the statute.

          3             COMMISSIONER BARKDULL:  This is going to override the

          4        statute.

          5             CHAIRMAN DOUGLASS:  Not only that, that hasn't been

          6        affirmed by the Supreme Court.  Commissioner Barkdull?

          7             COMMISSIONER BARKDULL:  Well, I need an answer to

          8        that question because I think this encompasses all the

          9        property that be owned by somebody that is charged with

         10        committing a felony.  And I think you are only trying to

         11        address property that is used in the commission of a

         12        felony; is that not correct?

         13             COMMISSIONER WETHERINGTON:  I'll yield --

         14             CHAIRMAN DOUGLASS:  Commissioner Wetherington yields

         15        to Commissioner Hawkes to answer the question.

         16             COMMISSIONER HAWKES:  I think what this does is it

         17        sets up a condition precedent.  It says we are never going

         18        to forfeit property unless we at least have this.  Now the

         19        Legislature has gone in and they said that it has to be

         20        used in connection with a felony and along those lines.

         21        So I don't think that Commissioner Wetherington's proposal

         22        suffers from that defect, maybe I'm wrong, but not that I

         23        like Commissioner Sundberg's better, but I don't think

         24        that that's a problem, that's all I was going to say.

         25             COMMISSIONER BARKDULL:  I'm still confused as to the

          1        intent.  I think all of us are.  If you say private

          2        property may be forfeited only upon, proof beyond a

          3        reasonable doubt a commission of a felony by the property

          4        owner, that doesn't just apply to criminal enterprise,

          5        doesn't it?  I mean, in other words, you can't do it.  You

          6        can't forfeit property unless the owner has been convicted

          7        of a felony.

          8             COMMISSIONER WETHERINGTON:  No, that's not true.

          9        That's not true at all.  Right now under the --

         10             CHAIRMAN DOUGLASS:  No, I'm talking about by this

         11        proposal.

         12             COMMISSIONER WETHERINGTON:  No, by this proposal,

         13        whatever forfeiture procedure is in place, such as the

         14        forfeiture procedures that are in place now, you would

         15        have to prove the case, instead of by clear and convincing

         16        evidence, you would have to prove the case beyond all

         17        reasonable doubt.

         18             CHAIRMAN DOUGLASS:  How about discouraging profits

         19        and that sort of thing, Commissioner Kogan?

         20             COMMISSIONER KOGAN:  I think the problem here is, and

         21        people may be troubled with, and by reading this, the

         22        question arises whether or not the property was used in

         23        the commission of a felony.  I think that's what is

         24        causing the confusion here and we may have to do a little

         25        fine-tuning on that, Commissioner Wetherington.  It think

          1        that is the problem they are raising.

          2             The property before you can forfeit it, even under

          3        the statute, the property must have been used in the

          4        commission of a felony.  And I believe a homestead is

          5        exempt, so don't think about homestead.

          6             CHAIRMAN DOUGLASS:  Only exempt in the state, it's

          7        not exempt in the Constitution under this provision, if

          8        they are both there.

          9             COMMISSIONER KOGAN:  I don't know, that all depends

         10        upon certain people.

         11             CHAIRMAN DOUGLASS:  I've never overruled the chief

         12        justice before, so -- I really don't want to take over the

         13        debate, but I want Commissioner Wetherington to conclude

         14        what he wants to on this since he's the one who proposed

         15        the amendment.  Commissioner Wetherington?

         16             COMMISSIONER WETHERINGTON:  I think that Commissioner

         17        Kogan is right, that's the source of the confusion about

         18        it, so.

         19             CHAIRMAN DOUGLASS:  Why don't you just withdraw your

         20        amendment and file another amendment and have the proper

         21        language in it?

         22             COMMISSIONER WETHERINGTON:  All right.

         23             CHAIRMAN DOUGLASS:  Without objection, he withdraws

         24        the amendment and he's drafting another amendment.  Now,

         25        we are on the proposal itself at this point, unless you

          1        want to take a second for him to propose -- to get his

          2        proposed amendment before you.  I think that's what we'll

          3        do.  Commissioner Brochin, is that what you were going to

          4        suggest?

          5             COMMISSIONER BROCHIN:  I just had a question.

          6             CHAIRMAN DOUGLASS:  If you want to go ahead and ask

          7        it, go ahead.

          8             COMMISSIONER BROCHIN:  Commissioner Sundberg, the

          9        analysis seems to suggest that the current standard is a

         10        preponderance of the evidence.

         11             COMMISSIONER SUNDBERG:  I think that's inaccurate.  I

         12        think there's been recent -- it's my understanding that

         13        the state of the law is that it's clear and convincing at

         14        this point in time.

         15             COMMISSIONER BROCHIN:  So the current law would

         16        require a clear and convincing burden of proof to show

         17        that the property owner was somehow -- knew or should have

         18        known that the property was being used in the commission

         19        of the crime?

         20             CHAIRMAN DOUGLASS:  Yes, that's correct.

         21        Commissioner Butterworth is up.

         22             COMMISSIONER BUTTERWORTH:  I have a question.

         23             CHAIRMAN DOUGLASS:  You are recognized.

         24             COMMISSIONER BUTTERWORTH:  Commissioner Sundberg, and

         25        not to be unexpected I guess.

          1             COMMISSIONER SUNDBERG:  I bet, it is a rhetorical

          2        question too.

          3             (Laughter.)

          4             CHAIRMAN DOUGLASS:  He watches Perry Mason.  As you

          5        suggested, some of us should have.  Commissioner

          6        Butterworth.

          7             COMMISSIONER BUTTERWORTH:  I saw it on the old movie

          8        channel last night.  What would happen if an arrest is

          9        made in another state or another country and the property

         10        happens to be in Florida, what would happen?  Let's say

         11        Georgia makes an arrest, the property happens to be in

         12        Florida, what happens?

         13             COMMISSIONER SUNDBERG:  But forfeiture is a civil

         14        suit, isn't it?

         15             COMMISSIONER BUTTERWORTH:  So that would be here in

         16        Florida?

         17             COMMISSIONER SUNDBERG:  Sure.

         18             COMMISSIONER BUTTERWORTH:  So that if Georgia has one

         19        law dealing with -- let's say that the airplane happens to

         20        be in Florida, the arrest is made in Georgia, that

         21        particular plane, let's say, was proven to have

         22        transported drugs illegally into the United States.  The

         23        plane drops the drugs off in Georgia and then comes over

         24        here to Signature Aviation in Tallahassee.  In order for

         25        the Georgia authorities to seize that plane, what must

          1        they do?

          2             COMMISSIONER SUNDBERG:  Well, I'm not sure I know the

          3        answer to that.  But we are talking about the actual

          4        forfeiture of it and that's --

          5             COMMISSIONER BUTTERWORTH:  When they start the

          6        forfeiture, do they start the forfeiture at the time of

          7        the arrest and the seizure of the plane or must they wait

          8        until all of the conviction in Georgia, the appeal in

          9        Georgia, and the ultimate case in Georgia?

         10             COMMISSIONER SUNDBERG:  I would yield to my spiritual

         11        leader, H.T. Smith, to respond to that.

         12             CHAIRMAN DOUGLASS:  You better pray over that,

         13        Commissioner Smith.  Okay.

         14             (Laughter.)

         15             COMMISSIONER SMITH:  With regard -- that was the

         16        question which is prompting the amendment so that you will

         17        be able to move into civil court immediately and just

         18        raise the standard of proof from clear and convincing to

         19        beyond a reasonable doubt.  And that was the issue that

         20        was raised appropriately by the law enforcement community,

         21        that you had to wait.

         22             If it was a car or something like that, it could rust

         23        out and be no good for the property owner or the

         24        government by the time you finished the conviction and the

         25        appeals.  And with regard to your question, that's where

          1        we're drafting the Wetherington amendment for the specific

          2        purpose of allowing the issue to be joined immediately to

          3        the benefit of the property owner as well as the

          4        government, because that gives the property owner an

          5        opportunity to get his property back immediately if he's

          6        right and it gives the government an opportunity to get it

          7        if they're right.

          8             COMMISSIONER BUTTERWORTH:  Commissioner Smith, if you

          9        will yield for a moment, I guess you would agree that the

         10        forfeiture laws were enacted by the Florida Legislature in

         11        order to take profits away from people who have committed

         12        crimes against people of this state.  And therefore, so,

         13        they cannot use their profits illegally, but the

         14        government can go after those profits.

         15             COMMISSIONER SMITH:  Yes, I totally agree with that.

         16        And they wanted to make sure that people who were not --

         17        who were innocent were allowed also to partake in that --

         18        to get their property back.

         19             COMMISSIONER BUTTERWORTH:  The government also allows

         20        that also?

         21             COMMISSIONER SMITH:  Yes, they do.  With a much more

         22        onerous burden of placing a 10 percent bond to even get

         23        involved in the process.

         24             COMMISSIONER BUTTERWORTH:  And will you agree with

         25        me, Commissioner Smith, that there have been some, as

          1        Commissioner Sundberg stated, there has been some abuses

          2        of that forfeiture law over the 20 or so years that it's

          3        been used in the state of Florida?

          4             COMMISSIONER SMITH:  Absolutely.  And we'll

          5        publicize.

          6             COMMISSIONER BUTTERWORTH:  Would you agree with me

          7        also, Commissioner Smith, in recent years the Florida

          8        Legislature has had many, many hearings on this particular

          9        issue?

         10             COMMISSIONER SMITH:  Absolutely and has taken action.

         11             COMMISSIONER BUTTERWORTH:  And they have taken action

         12        to go from the preponderance to clear and convincing

         13        evidence.

         14             COMMISSIONER SMITH:  That's absolutely correct.

         15             COMMISSIONER BUTTERWORTH:  And also the innocent

         16        property protections has been enhanced.

         17             COMMISSIONER SMITH:  That's correct as well.

         18             COMMISSIONER BUTTERWORTH:  And that the seizure of

         19        property is subject to advisory judicial review shortly

         20        after seizure which was not available before.

         21             COMMISSIONER SMITH:  With regard to the preliminary

         22        hearing process, correct.

         23             COMMISSIONER BUTTERWORTH:  And also a claimant is

         24        entitled to a jury trial in the forfeiture proceedings.

         25             COMMISSIONER SMITH:  That's correct.

          1             COMMISSIONER BUTTERWORTH:  And also, if, in fact, law

          2        enforcement seizes it improperly the claimants are

          3        entitled to attorneys' fees and costs.

          4             COMMISSIONER SMITH:  Limited to $1,000 and that

          5        wouldn't help too many of the big-time lawyers that you

          6        need in these kind of cases, but yes.

          7             COMMISSIONER BUTTERWORTH:  Would you believe that

          8        this problem is not as bad as it was in the past because

          9        of legislative action?

         10             COMMISSIONER SMITH:  I agree that it has improved.

         11             COMMISSIONER BUTTERWORTH:  Can you advise me as to

         12        one incident that has occurred since the Legislature has

         13        taken this action which law enforcement was opposed to?

         14             COMMISSIONER SMITH:  Well, your questions cannot tell

         15        you about any one action.  The action that this corrects

         16        is the general principle that we have as Americans and

         17        that we have as Floridians that the same standard should

         18        be involved taking freedom or taking property.  And so

         19        while the Legislature has, as you have so eloquently

         20        stated and accurately, raised the bar from a preponderance

         21        of evidence to clear and convincing evidence, it has

         22        always been, that's why with regard to matters -- in

         23        Florida, you can only get a 12-person jury trial if you

         24        take a person's life or take a person's property.  And so

         25        what we are saying is, if you are going to take a person's

          1        freedom or take their property, the standard of proof

          2        should still be beyond a reasonable doubt.

          3             COMMISSIONER BUTTERWORTH:  Would you believe,

          4        Mr. Smith, that the Attorney General of this state, in

          5        advocating for these changes over the past few years, has

          6        suffered a great deal of animosity from the law

          7        enforcement community and also the head of the Florida

          8        Department of Law Enforcement, also the same, in order to

          9        correct and also make the standard much more difficult to

         10        where now there are very, very few seizures?

         11             COMMISSIONER SMITH:  And that's why I feel very

         12        confident that the attorney general would not in any way

         13        be intimidated to help us get to the goal line with regard

         14        to this particular amendment which will allow the same

         15        standard for taking freedom as taking property.

         16             COMMISSIONER BUTTERWORTH:  Mr. Smith, would you

         17        believe that the attorney general believes that the

         18        Legislature has done what the Legislature should do in the

         19        authority of the Legislature and this particular issue

         20        should be handled by the Legislature and really there's no

         21        place for it in the Constitution?

         22             COMMISSIONER SMITH:  Well, to end our dialog, I

         23        absolutely agree with you that you believe that the

         24        Legislature has done what it should do and that now, we,

         25        as the Constitution Revision Commission with you as a

          1        member, must do what we must do.

          2             CHAIRMAN DOUGLASS:  I love that but it's eating me

          3        up.  Commissioner Butterworth, you are still on the floor.

          4             COMMISSIONER BUTTERWORTH:  Yes, I would like to know,

          5        maybe if Commissioner Sundberg could take the floor.

          6             CHAIRMAN DOUGLASS:  Commissioner Sundberg, you have

          7        to break up your huddle there.

          8             COMMISSIONER SUNDBERG:  I was the huddlee not the

          9        huddler, you noticed that.

         10             CHAIRMAN DOUGLASS:  Absolutely.

         11             COMMISSIONER SUNDBERG:  Yes, sir.

         12             CHAIRMAN DOUGLASS:  Commissioner Butterworth.

         13             COMMISSIONER BUTTERWORTH:  Thank you, Mr. Chairman.

         14        Commissioner, what would happen if the criminal flees from

         15        a jurisdiction, dies or it's basically unknown under your

         16        particular bill?

         17             COMMISSIONER SUNDBERG:  There will be no forfeiture

         18        of the propoerty.

         19             COMMISSIONER BUTTERWORTH:  Therefore, even though law

         20        enforcement might find a nice lear jet that the government

         21        would not mind having, full of cocaine, there's no way of

         22        determine who the owner is, that --

         23             COMMISSIONER SUNDBERG:  Yes, because the owner of

         24        that aircraft may have had nothing to do with that cocaine

         25        or the commission of any -- or the violation of any

          1        criminal law.

          2             COMMISSIONER BUTTERWORTH:  But you can't find out who

          3        the owner is.

          4             COMMISSIONER SUNDBERG:  Well, fine.  That's not very

          5        persuasive to me.  That's sort of finders keepers.

          6             COMMISSIONER BUTTERWORTH:  That's what I was

          7        advocating for.  I think what you do, you would not allow

          8        the State to do finders keepers.

          9             (Laughter.)

         10             COMMISSIONER SUNDBERG:  That's right.

         11             COMMISSIONER BUTTERWORTH:  I like finders keepers.

         12             COMMISSIONER SUNDBERG:  We have had too many weepers.

         13             CHAIRMAN DOUGLASS:  Okay.  Justice -- Commissioner

         14        Kogan rises to question somebody.

         15             COMMISSIONER KOGAN:  I rise on a point of

         16        clarification, so that --

         17             CHAIRMAN DOUGLASS:  All right.  But at the moment, I

         18        understand the amendment --

         19             COMMISSIONER KOGAN:  This is on the amendment.

         20             CHAIRMAN DOUGLASS:  The amendment is back.

         21             COMMISSIONER KOGAN:  Yes, this is on the amendment.

         22             CHAIRMAN DOUGLASS:  This is on the amendment.

         23             COMMISSIONER KOGAN:  This is absolutely on the

         24        amendment.

         25             CHAIRMAN DOUGLASS:  All right.  So let's get the

          1        amendment before the body.  It's moved by Commissioner

          2        Wetherington and it should be on your desk and I'll ask

          3        the clerk to read it.  You can't speak on it yet, we don't

          4        have it.

          5             COMMISSIONER KOGAN:  Actually what I would like to do

          6        is just a point of clarification and just for edification

          7        for those who have been wondering what this is all about.

          8             CHAIRMAN DOUGLASS:  All right, sir.  You have the

          9        floor.

         10             COMMISSIONER KOGAN:  Right now, the law of the state

         11        of Florida is that in the event property is used in the

         12        commission of a felony, it can be forfeited.  It is

         13        forfeited by a lawsuit being filed as a civil lawsuit.

         14        And you go into civil court and by clear and convincing

         15        evidence, you show the property was used for the purpose

         16        of committing a felony and then that particular property

         17        can be forfeited regardless of the outcome of the criminal

         18        case.  You don't have to wait for a conviction, and as a

         19        matter of fact, the defendant, theoretically, could be

         20        found not guilty and the property is gone also.

         21             Under the proposal, as first advocated by

         22        Commissioner Sundberg, it would have required that before

         23        you could go in on that civil suit to forfeit the

         24        property, there would have to be a conviction of that

         25        felony.  The amendment says that, No, we are going to

          1        stick with the law as it is now, you can go in before the

          2        conviction with a civil suit.  What it does is, it changes

          3        the burden of proof from the clear and convincing to

          4        beyond a reasonable doubt.  And that's really what the

          5        amendment is providing for.

          6             CHAIRMAN DOUGLASS:  Do we have the amendment?  It's

          7        on the table.  Would you read the amendment, please.  This

          8        is by Commissioner Wetherington.  First amendment to

          9        Proposal No. 1.

         10             READING CLERK:  By Commissioner Wetherington, on

         11        Page 1, Lines 14 through 19, delete those lines and insert

         12        Section 9, due process, no person shall be deprived of

         13        life, liberty, or property without due process of law or

         14        be twice put in jeopardy for the same offense or be

         15        compelled in any criminal manner to be a witness against

         16        himself.  Private property may be forfeited only upon

         17        proof beyond all reasonable doubt that the property was

         18        used in -- this part is edited -- or was the products of

         19        the commission of the felony by the property owner.

         20             CHAIRMAN DOUGLASS:  All right.  I think this is a

         21        substitute motion because it has the entire substance in

         22        it of the proposal.  It's not an amendment in the classic

         23        sense, and I'm going to rule that it is a substitute

         24        motion and we are going to debate this proposal as a

         25        substitute motion by Commissioner Wetherington and that

          1        will get us directly to the issue of the passage or

          2        non-passage of this issue.

          3             So, the debate now will be for proponents of the

          4        substitute motion which changed the original motion so

          5        that it reads, Private property may be forfeited only upon

          6        proof beyond all reasonable doubt that the property was

          7        used in or was the product of the commission of a felony

          8        by the property owner.  That is the motion that's before

          9        the body.  Those who wish to speak as proponents, please

         10        identify yourself.

         11             COMMISSIONER BARTON:  I have a question.

         12             CHAIRMAN DOUGLASS:  I want proponents.  Now, who is

         13        going to speak as a proponent?  I know that Commissioner

         14        Wetherington is and Commissioner Sundberg is and

         15        Commissioner Henderson is.  Commissioner Smith is and

         16        Commissioner Hawkes is.  I'm going to start with

         17        Commissioner Wetherington because he offered the

         18        substitute motion.  You may rise, Commissioner

         19        Wetherington.

         20             COMMISSIONER WETHERINGTON:  Well, the purpose of the

         21        proposal is essentially, is mainly the same as the purpose

         22        of Commissioner Sundberg's proposal and that is simply

         23        that forfeiture is the equivalent of a punishment for a

         24        commission of a crime in these contexts.  And the United

         25        States Supreme Court has held in re Windship that due

          1        process of law requires that a criminal case be proved

          2        beyond all reasonable doubt.  This is a matter of federal

          3        due process of law which also binds the states.

          4             This being, in essence, although we call it a civil

          5        proceeding, but in essence, this being a penalty or

          6        punishment for the commission of the crime, just like a

          7        fine, for example, or imprisonment, should have the same

          8        standard of proof.  This would not change any other

          9        aspects of the procedure.  You can still have the civil

         10        forfeiture procedure.  You don't have to wait for a

         11        conviction.  You don't have those limitations.  The only

         12        change it would make, basically, would be that before you

         13        can take somebody's property for committing a crime, you

         14        have to prove that under the same standard that you would

         15        have to prove to convict them and punish them otherwise

         16        for the commission of the crime.

         17             CHAIRMAN DOUGLASS:  Questions?  Commissioner Brochin

         18        I think has been trying to ask one for a long time.

         19             COMMISSIONER BROCHIN:  Commissioner Wetherington, as

         20        I understand now, the proposal that's before us by your

         21        amendment would simply changed the burden of proof in the

         22        civil action from a clear and convincing standard, which

         23        is today, to beyond a reasonable doubt, which is your

         24        proposal.  My question is, assuming that's correct,

         25        because I think Commissioner Kogan clarified it by stating

          1        so, do you know of any other statutory or constitutional

          2        schemes in Florida that require a beyond a reasonable

          3        doubt standard for the taking of anything but one's

          4        liberty?

          5             COMMISSIONER WETHERINGTON:  Well, the only time -- in

          6        terms of taking, you have taking property for public

          7        purposes for just compensation, which you have a 12-person

          8        jury trial.  The proof in that instance is not proof

          9        beyond all reasonable doubt but you do, in that particular

         10        context, you get compensated for the property taken, it

         11        isn't just taken from you, and you do get your attorneys'

         12        fees and you do get your costs.  But the burden of proof

         13        in that instance is not.

         14             There's long-standing principles in civil law

         15        concerning forfeitures.  Forfeitures generally are

         16        disallowed under civil law.  For example, the provision

         17        dealing with liquidated damages in contract cases.  The

         18        law will not allow a forfeiture.  It will allow liquidated

         19        damages which would be a reasonable estimate of the

         20        probable damages that you would sustain that might be

         21        otherwise difficult to calculate.  But the law will not

         22        permit a forfeiture at all under civil law.

         23             In terms of civil law, with respect to forfeiture

         24        generally, and so far, civil law is extremely restrictive,

         25        but even in those instances, if you could justify what

          1        would be called the equivalent of a forfeiture, it would

          2        probably be in the context of private person versus

          3        private person.  And it would not be in the context of the

          4        government, of a governmental forfeiture because when

          5        you're dealing with governmental forfeiture, of course,

          6        you are dealing with constitutional limitations of due

          7        process and other kinds of limitations.

          8             So the question is, should we have a different

          9        standard with respect to criminal forfeiture than the

         10        standard of having to prove that the crime occurred beyond

         11        all reasonable doubt and so the question would be, what

         12        would that justification be?  In other words, if I want

         13        take you down and I'm going to fine you $1,000, or I want

         14        to fine you $5,000 or I want to put you on probation for

         15        committing a crime, I have to go down, unless I get a plea

         16        agreement, and I have to prove the case beyond all

         17        reasonable doubt to get a conviction.  But if you have got

         18        a $150,000 house for example or $150,000 worth of

         19        property, and I'm going to take that from you because you

         20        have committed a crime, the question is, how can you draw

         21        a rational, principal distinction, between those two

         22        situations?  What is the difference between a fine and

         23        taking your property?

         24             Taking of property has always been something that

         25        we've have limited very carefully, not just as a part of

          1        our law, but as a part of our culture.  So the question

          2        is, can you really justify a different standard?  Now, we

          3        are stripping you of other procedural -- there is the

          4        right to jury trial, but many times the procedure is much

          5        more summary and there's a lot of -- we make it much more

          6        expeditious in the ordinary case to do the forfeiture

          7        cases.  And that may be okay.  But the question is, if you

          8        do that, should you still have the same standard of proof?

          9             COMMISSIONER BROCHIN:  If I could just follow-up, in

         10        taking cases that you referenced at the outset, is the

         11        burden there preponderance or clear and convincing?

         12             COMMISSIONER WETHERINGTON:  The burden there would be

         13        preponderance.

         14             COMMISSIONER BROCHIN:  Under this proposal or whether

         15        the current standard of clear and convincing, isn't the

         16        defendant entitled to a jury trial and doesn't that jury

         17        have to be unanimous before the decision would be allowed

         18        to take the property?

         19             COMMISSIONER WETHERINGTON:  If there's a jury trial,

         20        it would have to be.  If there's a demand for jury trial,

         21        it would have to be unanimous.

         22             COMMISSIONER BROCHIN:  Question.  If there is a

         23        demand for jury trial, under either proposal, the

         24        defendant would be entitled to a trial by jury, right?

         25             COMMISSIONER WETHERINGTON:  Correct.  And the

          1        difference would be simply the clear and convincing

          2        standard as opposed to proof beyond all reasonable doubt

          3        and those are different standards.

          4             COMMISSIONER BROCHIN:  Just a comment, the

          5        distinction between the fines, to me, there is a

          6        distinction.  A fine is not taking somebody's liberty, and

          7        therefore, maybe the standard is too high for a fine, even

          8        if it is a criminal fine.  I agree, there's no distinction

          9        between a criminal fine and a criminal taking of your

         10        property.  But there is a distinction as to the remedy

         11        imposed upon the defendant.  One takes his liberty, one

         12        takes his property.

         13             CHAIRMAN DOUGLASS:  All right.  I've got to clear the

         14        record before we go further.  All amendments to the

         15        original proposal were withdrawn.  Then Commissioner

         16        Wetherington offered the substitute motion which was read

         17        as an amendment.  It wasn't, it was a substitute motion,

         18        and that is what is before the House -- not the House, but

         19        the body.

         20             Now, that's where we are.  And if you are offering

         21        amendments, it will be to Commissioner Wetherington's

         22        substitute motion.  I didn't ask for opponents, but you

         23        rise for a question; is that correct?  Commissioner

         24        Butterworth.

         25             COMMISSIONER BUTTERWORTH:  Yes.  Thank you.  This is

          1        for a question of Commissioner Wetherington.  So far, we

          2        have been fairly successful in having the courts -- when

          3        we have these hearings on forfeiture of property and then

          4        later on have the criminal trial, courts have not held

          5        this to be double jeopardy or res judicata, we have been

          6        very successful in that.  It correct, in a way -- in your

          7        substitute proposal, that in essence, that would be in

          8        jeopardy because the wording is basically stating that we

          9        have to, in essence, prove that the felony was committed

         10        by the property owner?  Wouldn't we have a problem with

         11        that?

         12             COMMISSIONER WETHERINGTON:  A collateral estoppel

         13        problem?

         14             COMMISSIONER BUTTERWORTH:  A res judicata problem or

         15        a double jeopardy problem.  The wording -- I'm very

         16        concerned about the wording of it.

         17             COMMISSIONER WETHERINGTON:  I don't think you'd have

         18        any different collateral estoppel problem or res judicata

         19        problem than you have now simply because of a change in

         20        the burden of proof.  It's true that one of the

         21        justifications that have been offered, for example,

         22        between a civil case and a criminal case, one of the

         23        justifications, not the only one, has been that there is a

         24        different burden of proof in the civil versus the criminal

         25        case.

          1             But conversely, for example, if you are convicted, as

          2        you know in a criminal case, you cannot use that

          3        conviction later in a civil case even to prove that the

          4        case has been proved by the greater weight of the evidence

          5        because of the fact that they are considered to be

          6        different parties in the two proceedings.

          7             Now, there is a legitimate question that could be

          8        raised as to whether or not principles of res judicata or

          9        collateral estoppel should be applied anyway with respect

         10        to civil forfeiture procedures and criminal procedures,

         11        but I don't think the alteration in the burden of proof,

         12        either from preponderance and it has been moved up to

         13        clear and convincing or from clear and convincing to proof

         14        beyond all reasonable doubt should alter any of those

         15        well-stablished principles that we have adopted that we're

         16        not going to apply the principle  res judicata or

         17        collateral estoppel to those issues.

         18             COMMISSIONER BUTTERWORTH:  Mr. Chairman, if I could

         19        continue.

         20             CHAIRMAN DOUGLASS:  Go ahead.

         21             COMMISSIONER BUTTERWORTH:  To follow up, I may have

         22        the wrong thing I'm reading from here, Commissioner, but

         23        what it basically says is that the property may be

         24        forfeited only upon proof beyond all reasonable doubt that

         25        the property was used in the commission of a felony by the

          1        property owner.

          2             COMMISSIONER WETHERINGTON:  No, I have extended it.

          3        Was used in or was the product of the commission of a

          4        felony by the property owner.

          5             COMMISSIONER BUTTERWORTH:  But if you have to proof,

          6        Commissioner, that the property owner was involved in the

          7        felony beyond and to the exclusion of all reasonable

          8        doubt, you might as well just have one trial and have one

          9        trial and do them both together from what you're saying.

         10        I think you force -- would you believe that you are going

         11        to force the prosecution into one trial?

         12             COMMISSIONER WETHERINGTON:  I don't think it will

         13        change anything other than what you're doing now.  What

         14        you do now is this.  In a typical forfeiter case is they

         15        come down there and they bring in a case to forfeit the

         16        automobile.  When they come into the case -- they may even

         17        nol pros the criminal case for all I know -- when they

         18        come into court and they say, This guy is out there and

         19        he's sitting in the automobile and there is some marijuana

         20        or some narcotics are being sold in the area and we saw

         21        that he was using it in the car and then he comes in and

         22        he says, either that wasn't me, and somebody else was

         23        using the car and I didn't know anything about it, or puts

         24        up the innocent owner defense, and you sit and you listen

         25        to the case and you decide whether or not it was him, was

          1        he there, and were they in fact selling narcotics out of

          2        that car, and that's the way the cases come up.

          3             They are done quickly, expeditiously, most of the

          4        time there is not any defense offered to these cases, they

          5        go by way of default generally.  Every now and then we get

          6        one of them that are contested, at least in state court.

          7        If it is a lot of money and so on and so forth, you can

          8        expect a contest in there.  But the routine forfeitures go

          9        through without any objection.  Now there are significant

         10        instances if it is a lot of property or something where

         11        you are going to go down and have a forfeiture trial

         12        because there is enough in there to make it worthwhile to

         13        fight over and you will get that kind of situation and you

         14        will end up -- now, could you have one proceeding and have

         15        both consequence, I think absolutely.

         16             I think you could have the criminal trial and the

         17        forfeiture trial be one trial if you wanted to do it.  I

         18        can see no reason why anybody would object to that and

         19        that could be done if you wanted to.  But right now, the

         20        government is the one that's electing to take, because of

         21        reasons of efficiency, they are electing to take the

         22        two-step process because they frequently feel they can

         23        move quicker in the civil forfeiture procedure.  And many

         24        times, unless somebody demands a jury trial, they can move

         25        quicker.

          1             So as a practical matter, the only time you're going

          2        to get a problem on this, I think, is when there is

          3        something of substance here and then you are going to have

          4        two trials anyway.  But whether you have a clear and

          5        convincing standard, or whether you have a proof beyond

          6        all reasonable doubt standard, isn't going to change the

          7        question of whether or not you really get two trials.  The

          8        question is, do you want to make it easier for the

          9        government to take somebody's property than it would be to

         10        convict that person of the crime and that's a

         11        philosophical question about which -- now, the argument on

         12        the other side, if you want to make an argument on the

         13        other side, would be there may be a lot of people out

         14        there, there may be a lot of bad people out there that are

         15        doing some very bad things that maybe we have trouble in

         16        some instances convicting through a full criminal trial

         17        procedure.

         18             And we think there is a lot.  Maybe there is some

         19        organized crime out there or maybe there is some people

         20        doing some very bad things.  And we would like to be able

         21        to more effectively, under RICO and all, reach their

         22        property and punish them by getting their property and we

         23        want to make it easier, we want to make it easier to get

         24        their property than to convict them.  And if I accept the

         25        fact that it is a bad person, I probably would agree with

          1        that.

          2             If I know it is a bad person and it is limited only

          3        to the bad people, I probably would say, I'm for it.

          4             CHAIRMAN DOUGLASS:  All right.  I'm going to have to

          5        interrupt you in just exactly one minute and ten seconds

          6        we will be out of business because the notice was to end

          7        at 1:00 p.m.  Commissioner Barkdull?

          8             COMMISSIONER BARKDULL:  I'd like to make a motion

          9        that we extend the time of recess until we conclude the

         10        action on this proposal and announcements and withdrawals.

         11             CHAIRMAN DOUGLASS:  All right.  It has been moved by

         12        Commissioner Barkdull that we extend the time for this

         13        session until we conclude action on this amendment --

         14        proposal.  And all in favor say aye, opposed like sign.

         15             (Verbal vote taken.)

         16             CHAIRMAN DOUGLASS:  So now you are on your time,

         17        proceed.  Does that answer all your questions,

         18        Commissioner Butterworth?  Or do you have others or do you

         19        want to reserve time?

         20             COMMISSIONER BUTTERWORTH:  I'll reserve time later,

         21        Mr. Chairman.  Thank you.

         22             CHAIRMAN DOUGLASS:  Okay.  Other questions at this

         23        moment?  Commissioner Henderson, do you have a question?

         24             COMMISSIONER HENDERSON:  Yes, I do, to Commissioner

         25        Wetherington.  I'm sympathetic to the proposal and now

          1        questions from General Butterworth and now I'm confused.

          2        The innocent owner defense, which is what we have now, and

          3        which is often the case as you have proceeded.  Now let's

          4        suppose that we have the owner, the person at the wheel of

          5        the car, cocaine in the trunk of the car, the car is owned

          6        by his wife, his brother or a corporation.

          7             COMMISSIONER WETHERINGTON:  Yes.

          8             COMMISSIONER HENDERSON:  How do we -- can we forfeit

          9        the car under your proposal?

         10             COMMISSIONER WETHERINGTON:  You could forfeit the car

         11        under this proposal, if there was knowing use of that

         12        particular car by the owner.  You could not forfeit it if

         13        it was completely innocent use.  In other words, if

         14        somebody is using my property I have no knowledge that

         15        they are using it improperly, basically you would be an

         16        innocent owner.  If they are using the property with my

         17        knowledge and approval and authorization, I'm in

         18        complicity in the commission of the crime and the property

         19        could be forfeited.

         20             CHAIRMAN DOUGLASS:  All right.  Any further

         21        questions?

         22             COMMISSIONER HENDERSON:  I think my question is, is

         23        that not a statement of the current law but not quite the

         24        proposal that is before us, because at least I read this

         25        as not only must it be the commission of the felony but by

          1        the property owner.

          2             CHAIRMAN DOUGLASS:  What he is saying, I think, is

          3        that somebody that knows it and allows it to be used is

          4        involved in the crime.

          5             COMMISSIONER HENDERSON:  Then what about the case of

          6        the unknown property owner or the corporation set up by

          7        someone out of state, offshore?

          8             CHAIRMAN DOUGLASS:  If you couldn't prove they knew

          9        about it, you'd be out of luck under this.  Commissioner

         10        Nabors -- when you sit over here, I have a right eye, I

         11        don't catch you-all a lot of times.

         12             COMMISSIONER NABORS:  Judge, I'm also a pretty skinny

         13        guy too.  I need to stand this way.

         14             (Laughter.)

         15             CHAIRMAN DOUGLASS:  You are doing good.

         16             COMMISSIONER NABORS:  I want to make sure on this

         17        abandoned property issue on the lear jet.  The way I read

         18        your proposal, if there is abandoned property, whether it

         19        has cocaine in it or Girl Scout cookies or whatever it has

         20        in it, and we cannot determine who the owner is, and it is

         21        abandoned, as long as due process is there, there's

         22        legislative solutions to deal with abandoned property to

         23        dispose of it; isn't that correct?

         24             COMMISSIONER WETHERINGTON:  That's correct.

         25             CHAIRMAN DOUGLASS:  All right.  Any more questions?

                     DIVISION OF ADMINISTRATIVE HEARINGS (904) 488-9675

          1        All right.  We'll now hear from proponents of it.

          2        Commissioner Smith as a proponent.

          3             COMMISSIONER SMITH:  Just briefly.  In addition, I

          4        think the important things to realize here is basically

          5        this proposal raises the standards of proof.  The question

          6        is whether we, as Floridians, want our government to be

          7        able to take our property with a lower standard of proof.

          8        And that's what the question is.

          9             So you can't change collateral estoppel or you can't

         10        change the case law of proof.  I rented a car, I loaned my

         11        car to someone yesterday, if they did something in my car,

         12        they got to prove, they want to take -- let's just say it

         13        was my car.  They want to take my car.  If they are going

         14        to take Avis' car, they have to prove they knew something

         15        about it.  But this is just a higher standard of proof,

         16        that's number one.

         17             Number two, I think this is good because I really

         18        think it's going to cut down on some litigation because I

         19        find it positive, I think there will be a lot of cases

         20        where the government and the property owner, as the

         21        property owner is on trial, will agree that the result of

         22        the criminal trial will be dispositive of the civil trial.

         23             You couldn't do that before because there were

         24        different standards of proof, so I think that's a positive

         25        in it.  And let me just take this opportunity also to say

          1        having been intimately involved in this issue, and that I

          2        commend Commissioner Butterworth for his leadership along

          3        with our Legislature in getting us 90 percent of the way

          4        there.  But to score, you've got to get to the goal line

          5        and this gets us to the goal line.

          6             CHAIRMAN DOUGLASS:  All right.  Other proponents?

          7        Commissioner Sundberg.  You'll have an opportunity to

          8        close now on the main proposal when you're through if you

          9        want to reserve it.

         10             COMMISSIONER SUNDBERG:  I think when I am done here

         11        that will not be necessary.  I would simply like to say,

         12        and Commissioner Wetherington will know precisely what I

         13        mean when I say, Commissioner Wetherington, I like the way

         14        you are thinking.  And as a result of that, I think this

         15        does not -- this is, in fact, a compromise because this

         16        still requires a person whose property is sought to be

         17        forfeited, prior to being convicted of any crime, to come

         18        forward and defend that civil action.  That is a burden on

         19        a criminal defendant who does not -- you heard the

         20        attorney general talk about collateral estoppel.

         21             There's also the effects of having to make a record

         22        either by yourself or by your witnesses which are

         23        exculpatory that criminal defendants don't like to do

         24        before they are, in fact, tried.  That is a problem I

         25        still see with the proposal but I think it is, in fact, an

          1        appropriate compromise.  I think that it goes,

          2        essentially, to the heart of this problem.  And for that

          3        reason, I support the amendment and will support it on the

          4        main proposition.

          5             CHAIRMAN DOUGLASS:  You are a proponent, Commissioner

          6        Connor?  Question?

          7             COMMISSIONER CONNOR:  Yes, sir.  Mr. Smith, doesn't

          8        this amendment also do one other thing, that unless I am

          9        mistaken, has not been recognized under Florida law, which

         10        is that it would also result in the disgorgement of

         11        ill-gotten gains, even if they were not used in the

         12        commission of the felony, which would bring us more in

         13        line with a federal RICO action and --

         14             COMMISSIONER SMITH:  That's call the Connor

         15        participation and amendment process or the product of.

         16             COMMISSIONER CONNOR:  Well, I'm not trying to take

         17        credit for it, but I mean, in fact, what you indicated

         18        simply was that all this does is raise the standard of

         19        proof.  But in fact, you're correct, it does more than

         20        that and would this be something the attorney general

         21        supports in that regard?

         22             COMMISSIONER BUTTERWORTH:  (Nods affirmatively.)

         23             CHAIRMAN DOUGLASS:  Proponent?  You are for it?

         24             COMMISSIONER MORSANI:  Yes, sir.

         25             CHAIRMAN DOUGLASS:  Speak.  Commissioner Morsani.

          1             COMMISSIONER MORSANI:  Certainly not being an

          2        attorney, but having confronted a number of times this

          3        situation over the years, almost, especially when you have

          4        a lot of companies and you are decentralized, we have had

          5        these very things happen, having automobiles confiscated

          6        that were used in felonies, that were used in drug

          7        arrests, as well as aircraft.

          8             I, for years, had airplanes and had a Citation jet

          9        and we would take people to Mexico and other places in

         10        Central and South America and we were continually

         11        concerned that our aircraft might be confiscated when it

         12        came back into the country through no fault of my own, as

         13        just, you know, loaning it really or taking people,

         14        friends.

         15             So in my limited knowledge of the situation, as a

         16        businessperson and coming from a whole different

         17        standpoint especially when these, especially airplanes and

         18        automobiles in my case, would be tied up for months and

         19        years before we could get that property back, it seems

         20        like there is some unfairness in there when we had nothing

         21        to do at all and especially myself as the owner of all

         22        these automobiles, had nothing to do whatsoever with any

         23        crime.  We think that there has been some inequities.  And

         24        if this will help in that direction, I strongly support

         25        and I think that the business community in general would

          1        be very supportive of this proposal.

          2             CHAIRMAN DOUGLASS:  All right.  Any more proponents?

          3        Are you a proponent?

          4             COMMISSIONER HENDERSON:  Yes, sir.  You look

          5        surprised.

          6             CHAIRMAN DOUGLASS:  No, I'm not surprised, at

          7        1:08 p.m. I'm not surprised.

          8             COMMISSIONER HENDERSON:  Then I will be brief.  I no

          9        longer have a dog in this hunt but in a former life, I

         10        think I've been on all sides of this issue.  I have

         11        actually defended property, innocent property owners I

         12        might add, from forfeiture action by government to obtain

         13        property.

         14             As a city attorney, I actually, I couldn't tell you

         15        how many items I actually forfeited on behalf of our local

         16        police forces, most cars, boats, I think one time there

         17        was even an airplane.  And almost all those, as has been

         18        discussed earlier, were all noncontroversial.  The owner

         19        was gone, abandoned, probably never even an arrest made

         20        because of the flight of the defendant.

         21             I can tell you though that my trouble about this

         22        issue comes from my years of service as a county

         23        commissioner in a place called Volusia County where, from

         24        time to time, we were called upon to fund portions of our

         25        budget with what seemed to be a very rapidly growing area

          1        of revenue from the sheriff's office.

          2             And I might tell you -- well, I'm not going to get

          3        into all that.  But our sheriff there has quite a national

          4        reputation for his success in this area, has been

          5        investigated a number of times and nobody -- nothing has

          6        been proved wrong.  But I can tell you that it left a sour

          7        taste in my mouth and others to have persons appear before

          8        us at the county commission who told us of their

          9        experiences about, you know, being pulled over on the

         10        interstate, having committed no crime, having upon them

         11        large amounts of cash, which were confiscated.  And I

         12        can't remember her name, it's one of these things you

         13        never forget, and elderly African-American lady who had

         14        been pulled over, she had in her trunk a large amount of

         15        cash that she said was from the insurance proceeds after

         16        she lost her home in Hurricane Andrew.

         17             And she was put in the position of having to

         18        negotiate with the government to get back this money that

         19        had been confiscated on the basis that the dog sniffed a

         20        scent of marijuana upon a large amount of cash and we

         21        learned in that conversation, whether it was right or

         22        wrong, that a dog can probably come up with the scent of

         23        marijuana on any large amount of cash in Florida.

         24             CHAIRMAN DOUGLASS:  Good dog.

         25             COMMISSIONER HENDERSON:  That's a good dog, that's

          1        right.  And I'm not disparaging the sheriff and I'm not

          2        disparaging the dog.  She was a good sheriff and that was

          3        a good dog, let me tell you.  But in terms of the

          4        constitutional standards and constitutional values, I can

          5        tell you that it troubles you.  It troubles you because

          6        you are not sure.  It troubles you because of the civil

          7        forfeiture provision where it was preponderance of

          8        evidence.

          9             Now General Butterworth is absolutely right.  The

         10        standards, because of issues like this, whether you call

         11        them abuses or not, have been improved.  The crossbar has

         12        been raised.

         13             These -- a lot of this has gone there.  But this

         14        compromise provision, and I think this is a good

         15        compromise, takes us to that constitutional standard if

         16        you are going to take somebody's liberty or their

         17        property, that it will be the same standard.  And so it is

         18        unusual for me to get involved in an issue like this, but

         19        for those reasons, I support the proposal.

         20             CHAIRMAN DOUGLASS:  Commissioner Hawkes, you are

         21        recognized to file your substitute amendment which is on

         22        the desk.  Shall I have him read it?

         23             COMMISSIONER HAWKES:  Sure.

         24             CHAIRMAN DOUGLASS:  Mr. Clerk, read the substitute

         25        amendment.

          1             READING CLERK:  By Commissioner Hawkes, on Page 1,

          2        Lines 14 through 19, delete those lines and insert Section

          3        9, due process, No person shall be deprived or life,

          4        liberty, or property without due process of law or be

          5        twice put in jeopardy for the same offense or be compelled

          6        in any criminal matter to be a witness against himself.

          7        Private property may be forfeited only upon proof beyond

          8        all reasonable doubt that the property was use in or was

          9        the product of the commission of a felony by the property

         10        owner.  All proceeds from forfeiture shall be used for

         11        enhancement of education as provided by law.

         12             COMMISSIONER HAWKES:  Thank you, Mr. Chairman.

         13             CHAIRMAN DOUGLASS:  You're heard on your substitute.

         14             COMMISSIONER HAWKES:  You know, a lot of the abuses

         15        that we heard about work because these people litigated

         16        this matter in front of a judge.  Quite frankly, I

         17        wouldn't really care if it was a preponderance if every

         18        case went before a judge with a defendant who would defend

         19        himself, who understood his rights.  If you get accused of

         20        shoplifting or if you get accused of trespassing, you get

         21        an attorney appointed to represent you and you are not

         22        allowed to enter a plea to that until you appear before a

         23        judge and the judge determines whether or not you should

         24        be allowed to enter the plea.

         25             And I have seen people go into court and say, Judge,

          1        I'm guilty and the judge stay, I'm not going to accept

          2        your plea.  I want you to get an attorney.  Because the

          3        judge was looking from a neutral perspective to make sure

          4        that the integrity of the state of Florida was protected,

          5        that we are not convicting people or punishing people when

          6        we really shouldn't be doing that under the Constitution.

          7             Well a lot of these abuses didn't come about because

          8        the sheriff was evil or wanted to do bad, it came about

          9        because the incentives were in the wrong place.

         10        Realistically, I believe it is the function of government

         11        to provide the needs for criminal justice, whatever those

         12        needs are, provide them.  When we have extra money,

         13        education is an area that can benefit from extra money

         14        where we can enhance.  And so if you want to couple the

         15        good work that the Legislature did to make this a little

         16        bit better because right now the criminal defendant --

         17        what I liked about Commissioner Sundberg's proposal, was

         18        at least there was a conviction.  In every case there was

         19        a conviction.  If there wasn't a conviction, we weren't

         20        going to take to away property and what that meant is the

         21        individual was charged for a crime and it wasn't one of

         22        these situations where you pull over, you sign some

         23        paperwork, and you leave with your property -- and you

         24        leave and you are free and they take your property.  Or

         25        now I guess we go before a judge.  But you don't -- the

          1        defendant doesn't go above the judge, law enforcement goes

          2        before it and it is not a contested matter.

          3             So there is some protection but it is not absolute

          4        protection.  So the idea of this amendment is to merely

          5        take out the incentives for self-benefit.  We still punish

          6        crime, we still take away the proceeds of crime and we put

          7        it in an area where most people would agree that if you

          8        have extra money, that area can benefit from extra money.

          9        Criminal justice should be funded at the level that

         10        criminal justice needs to be funded at.  And that's our

         11        basic obligation, not with extra money that may be found.

         12        So I would ask for your favorable consideration.

         13             CHAIRMAN DOUGLASS:  All right.  This changes it

         14        because it adds another subject.  Commissioner Kogan on

         15        the substitute.

         16             COMMISSIONER KOGAN:  All well and good for education.

         17        The problem is, local law enforcement makes a nice little

         18        pile to go along with their allocation from the city

         19        commission or the county commission or whatever it is.

         20        And they rely heavily upon this.  I understand, and the

         21        attorney general can tell me if I'm wrong, if it is

         22        statewide, there is a different way to divide it up.  But

         23        local law enforcement agencies really depend very heavily

         24        upon the money they get from forfeitures and that's money

         25        they can use in law enforcement.

          1             Just an observation.

          2             CHAIRMAN DOUGLASS:  So you are in opposition to the

          3        substitute and we go back on the original motion?

          4             COMMISSIONER KOGAN:  I'd be in opposition to that.

          5             CHAIRMAN DOUGLASS:  Okay.  Everybody ready to vote on

          6        the substitute which adds how the money is going to be

          7        spent?  It doesn't change anything else, we will go back

          8        to that when we vote.  Okay.  On the substitute offered by

          9        Commissioner Hawkes.  We have to open the machine on that,

         10        don't we?  Or can we vote, voice vote?  Take a voice vote.

         11        All in favor of Commissioner Hawkes' substitute which

         12        would direct the proceeds to education enhancement,

         13        signify by saying aye.  All opposed?

         14             (Verbal vote taken.)

         15             CHAIRMAN DOUGLASS:  It fails.  Now, back on the

         16        underlying amendment which we've discussed quite

         17        extensively, and we will vote on the underlying amendment

         18        and on the underlying amendment, we will open the machine.

         19             (Off-the-record comment by Commissioner Barkdull.)

         20             CHAIRMAN DOUGLASS:  Well, I sure thought they did,

         21        but I'm ready for them to just opponent it all they want

         22        to.  And Commissioner Barton, you are first up.

         23             COMMISSIONER BARTON:  I'd just like to point out that

         24        this law, when it was enacted, and in subsequent years was

         25        served as the model law for this nation and most states

          1        have adopted legislation similar to this.  I would also

          2        like to point out that in 1995 the Legislature did

          3        strengthen this law, revised it to add protections for

          4        citizens and that if they had the ability to do this, and

          5        they have done that, it seems likely that they could do

          6        that again in the future, let the Legislature do it.  It

          7        belongs there.

          8             CHAIRMAN DOUGLASS:  All right.  Any other opponents?

          9        Commissioner Butterworth?

         10             COMMISSIONER BUTTERWORTH:  Mr. Chairman, I concur

         11        with the former speaker, that this should be for the

         12        Legislature to do.  The Legislature has made it much

         13        tougher.  And in the Volusia County situation, I don't

         14        think there has been a forfeiture in Volusia County in the

         15        last three years.  So I would urge a no vote on this.

         16             CHAIRMAN DOUGLASS:  Any other opponents?

         17        Commissioner Barkdull?

         18             COMMISSIONER BARKDULL:  I want to be listed as an

         19        opponent.  I'm not sure of the answer, but I've heard

         20        enough concerns about whether we are, by putting this in

         21        the Constitution and in this section, may be causing some

         22        confusion on collateral estoppel or double jeopardy and I

         23        would rather -- prefer to leave it to the Legislature

         24        rather than taking the chance of messing that up.

         25             CHAIRMAN DOUGLASS:  Any further opponents?  Do you

          1        want to close, Commissioner Wetherington, on your

          2        amendment or have you said all you need to say?

          3             COMMISSIONER WETHERINGTON:  I've said it all.

          4             CHAIRMAN DOUGLASS:  Okay.  Then we will vote on the

          5        amendment, which is the Wetherington amendment No. 1.  And

          6        all -- now, all in favor -- well, let's open the machine

          7        and vote on this.  Open the machine.

          8             (Vote taken and recorded electronically.)

          9             CHAIRMAN DOUGLASS:  This is the Wetherington

         10        amendment, it's the substitute amendment but it is the

         11        Wetherington amendment and then he withdrew No. 1.  So you

         12        can call it whatever you want.  You can get to it here in

         13        a minute.  This is the Wetherington amendment.  You are

         14        not voting to pass this now, you are voting for the

         15        Wetherington amendment versus the original language.

         16        Close the machine.  Announce the vote.

         17             READING CLERK:  19 yeas and six nays, Mr. Chairman.

         18             CHAIRMAN DOUGLASS:  By your vote, you have adopted

         19        the Wetherington amendment.  The issue now is on whether

         20        you want to do it at all which is the original proposal as

         21        amended.  So this is a different vote.  Open the machine

         22        and take the vote.

         23             (Vote taken and recorded electronically.)

         24             CHAIRMAN DOUGLASS:  All right.  Has everybody voted?

         25        Close the machine and announce the vote.

          1             READING CLERK:  17 yeas and 9 nays, Mr. Chairman.

          2             CHAIRMAN DOUGLASS:  All right.  That -- we have

          3        announcements.  First announcement I want to make is that

          4        the style and drafting committee announced yesterday that

          5        Commissioner Mills would be chairman of that committee.

          6        People that will be appointed to that committee, that I

          7        have discussed it with, Commissioner Barnett will be a

          8        member of the committee; Commissioner Alfonso will be a

          9        member of the committee; and Commission Lowndes will be a

         10        member of the committee.  And we will proceed there and

         11        put them to work on some of the things that we passed.

         12        Commissioner Barkdull, do you have other announcements?

         13             (Off-the-record comment by Commissioner Barkdull.)

         14             COMMISSIONER BARKDULL:  First I want to --

         15             CHAIRMAN DOUGLASS:  Commissioner Barnett.

         16             COMMISSIONER BARNETT:  I'd like to withdraw Proposal

         17        No. 15.

         18             CHAIRMAN DOUGLASS:  All right.  There's been a motion

         19        by Commissioner Barnett to withdraw Proposal 15 which is

         20        what?

         21             COMMISSIONER BARNETT:  It deals with applying the

         22        code of ethics to members of the Legislature.  We

         23        discussed it in the ethics committee yesterday with the

         24        advice of the people from the ethics commission and

         25        decided that this is something that really can be done and

          1        is being done appropriately legislatively and does not

          2        need to be in the Constitution.

          3             CHAIRMAN DOUGLASS:  All right.  Without objection,

          4        Proposal No. 15 is withdrawn.  Anybody else have anything

          5        they want to withdraw?  Commissioner Henderson?

          6             COMMISSIONER HENDERSON:  It is not a withdrawal, it's

          7        an announcement on the committee.

          8             CHAIRMAN DOUGLASS:  All right.  But we're on

          9        withdrawals at the moment.  Is that the only withdrawal?

         10        I thought you told me there were some more that were going

         11        to be withdrawn.

         12             COMMISSIONER BARKDULL:  I had some others that came

         13        up to me over the course of the day, but I don't see them

         14        in the chamber.

         15             CHAIRMAN DOUGLASS:  They withdraw.

         16             COMMISSIONER BARKDULL:  Yeah, they withdrew.

         17             CHAIRMAN DOUGLASS:  All right.

         18             COMMISSIONER BARKDULL:  I may take care of

         19        Commissioner Henderson's problem in a minute here.

         20             CHAIRMAN DOUGLASS:  All right.  Go ahead.

         21             COMMISSIONER BARKDULL:  I want to make a motion that

         22        all the bills, all the proposals that are in committees

         23        the time for consideration being -- will be extended

         24        through Tuesday, January 13th, 1998, that will be the

         25        second day that we are up here in January.  It gives the

          1        time for committees to complete their action.

          2             CHAIRMAN DOUGLASS:  All right.  Without objection,

          3        that will be done.  Commissioner Barnett?

          4             COMMISSIONER BARNETT:  I don't know if I want to

          5        object, but I don't know that I know what that means

          6        either.

          7             CHAIRMAN DOUGLASS:  What that means is that instead

          8        of having them set for the first day we are here, they

          9        will be set for the second day we are here in committee.

         10             COMMISSIONER BARKDULL:  Right now, if we don't extend

         11        the time for the committees to consider the matters that

         12        are before them, they will all come out and be on the

         13        calendar and we won't be in here in January.

         14             CHAIRMAN DOUGLASS:  But you could have a committee

         15        meeting before we even come up here if everybody comes

         16        into committee, but it will have to be noticed.

         17             COMMISSIONER BARNETT:  The question I have is whether

         18        that announcement says that the last substantive committee

         19        meetings we're going to have will be January 13th.

         20             CHAIRMAN DOUGLASS:  No.

         21             COMMISSIONER BARKDULL:  Unless -- it will be up to

         22        the chairs of the committees to come in and ask that the

         23        time be extended.  Under the rules, they can do that.  If

         24        they don't do it, it is automatically going to go to the

         25        calendar with no recommendation.

          1             CHAIRMAN DOUGLASS:  What he has done here is extend

          2        the time which we had to, it has to be by motion, which

          3        he's made the motion to extend the time for all the

          4        matters pending before committee through the meeting of

          5        January 13th.

          6             COMMISSIONER BARNETT:  So does that mean that the

          7        only day of that week that we are going to have committee

          8        meetings is January 13?

          9             CHAIRMAN DOUGLASS:  No, it does not.  Because you

         10        could ask that you be noticed for another day too.

         11             COMMISSIONER BARNETT:  There are several reasons --

         12             CHAIRMAN DOUGLASS:  It is up to the chairman now.

         13             COMMISSIONER BARNETT:  There are several reasons for

         14        my question and my concern.  One is I didn't fully

         15        understand what Commissioner Barkdull was saying.

         16        Secondly, there are a number of very substantive matters

         17        that are still in committee and one of the problems in

         18        addressing those matters has been the short time frame

         19        within which we had notice of committee meetings and

         20        notice of matters coming before the meetings and the fact

         21        that they were changed at the last minute.  Now that's

         22        understandable because of the deadlines and dates the

         23        staff was working under but it has presented just some

         24        scheduling issues.

         25             The last time I talked with the staff about getting

          1        dates certain for some of the committee meetings we were

          2        even talking about they may schedule meetings at the end

          3        of January.  So I'm a little confused as to --

          4             CHAIRMAN DOUGLASS:  Don't be confused.

          5             COMMISSIONER BARNETT:  Well, that's why I have asked

          6        the question.

          7             CHAIRMAN DOUGLASS:  The only thing now, and I want to

          8        explain this, and listen to me closely, and I watch Perry

          9        Mason too, listen to me very closely.  The committees are

         10        all extended under the rule.  They wouldn't be extended

         11        under the rule if you passed this motion through the

         12        meeting of Tuesday, the 13th of January.  All committees

         13        will be scheduled for that day or they are noticed for

         14        that day.  That is subject to the chairman coming in and

         15        asking to extend the committees or to set them at another

         16        time certain after January 13th.

         17             Now I want to tell you that your concern is well

         18        placed but we had adequate notice for this week for

         19        committees and we didn't have a quorum in three or four

         20        and it wasn't because of notice.  It is because people

         21        decided they didn't want to come or had made other plans

         22        and didn't come.

         23             So what he is telling you now is, rather than try to

         24        set them on Monday, we are going to have the commission

         25        meeting on Monday, they are extended through the 13th of

          1        January.  But that's not the end if you come back and ask

          2        for an extension.  That ought to be clear.

          3             COMMISSIONER BARNETT:  That is clear and my questions

          4        have nothing to do with the quorum issues.  I concur in

          5        your concern about that.  My questions have to do with

          6        trying to schedule people to appear before those

          7        committees and to have some idea of the dates that we are

          8        looking at and whether that Tuesday is the last day for a

          9        committee meeting and if it is not, it is very important

         10        that we know those dates from the committee chairman or

         11        the rules committee far enough in advance particularly

         12        because we have the Christmas holidays before us, one, so

         13        other members can come.  And secondly, so we know the

         14        agenda and can have time certains for some of those

         15        issues.

         16             CHAIRMAN DOUGLASS:  Commissioner Barkdull?

         17             COMMISSIONER BARKDULL:  In response to that, if this

         18        motion is not passed, everything that is in the committees

         19        will be on the calendar for Monday the 12th with no

         20        recommendation.  So that's where we stand today without

         21        this motion.  If you extend the time until the conclusion

         22        of the work on the 13th, the committees will have an

         23        opportunity, and all our chairs have to do is to request

         24        of the staff when they want to set, and they are going to

         25        have to set them on the 13th to get people here because we

          1        are running out of time.  And that is the purpose of the

          2        motion is to try to bring this thing to a conclusion.

          3             CHAIRMAN DOUGLASS:  All right.  Commissioner Nabors,

          4        question?

          5             COMMISSIONER NABORS:  Mr. Chair, I understand the

          6        motion and the reason for the motion.  But if a committee

          7        chairman wants to have committee meetings in February, is

          8        that contemplated?

          9             COMMISSIONER BARKDULL:  He's going to have to come

         10        and ask for it.  Right now I think it would not look with

         11        favor unless it was a select committee on some issue that

         12        came up that has not been before the body before and been

         13        referred to a committee.

         14             COMMISSIONER NABORS:  And we make the decision here

         15        in January or how is that decision made?

         16             COMMISSIONER BARKDULL:  If it was the prerogative of

         17        the commission to have a select committee on a matter that

         18        would be something that arose in January, then obviously

         19        the committee would have to meet sometime subsequent to

         20        when that incident occurred.  But I think the subject

         21        matters that have been referred to committee --

         22             CHAIRMAN DOUGLASS:  If we don't leave, we are not

         23        going to have a quorum.

         24             COMMISSIONER BARKDULL:  The subject matters that have

         25        been referred to the committees, they need to draw closure

          1        on them and not keep extending this time.  I'm going to

          2        get down to that in a little more --

          3             CHAIRMAN DOUGLASS:  Just to alleviate your pain, it

          4        is up to the committee chairman to move to set these

          5        meetings beyond the 13th if they have a cause and they

          6        have to make the motion when we get here.  The thing that

          7        is causing the problem is people don't come and don't want

          8        to have enough meetings.  Now between now and the 13th, if

          9        some --

         10             COMMISSIONER BARKDULL:  You can have all the meetings

         11        you want.

         12             CHAIRMAN DOUGLASS:  That's right.  Between now and

         13        the 13th of January, if you want to call your committee up

         14        here to have a meeting of your committee, you may do so.

         15        All you have to do is get the chairman to call the meeting

         16        and notice it and you can bring your people, Commissioner

         17        Barnett, on January the 5th, 6th, 7th, 8th, if your

         18        committee needs.

         19             COMMISSIONER BARKDULL:  Or the morning of the 12th.

         20             CHAIRMAN DOUGLASS:  But now after the 13th it is

         21        going to require, again, the chairman to move for an

         22        extension of time for the committee to meet and that's

         23        what Commissioner Barkdull is trying to say because we are

         24        trying to complete the bulk of our work by February and

         25        the way we are going, we are not going to do it.

                     DIVISION OF ADMINISTRATIVE HEARINGS (904) 488-9675

          1             COMMISSIONER BARNETT:  Mr. Chairman, I'm sorry to

          2        make this -- this is not meant to be an adversarial

          3        question in any way at all, it is really meant to try to

          4        clarify the committee's schedule.  And you and

          5        Commissioner Barkdull may fully understand where you are

          6        but some of us don't and it is really meant in the spirit

          7        of trying to clarify.  Is there a reason, Commissioner

          8        Barkdull, that you could not have that date, the 13th,

          9        through that -- the end of that week?

         10             COMMISSIONER BARKDULL:  Yes, ma'am, because we are

         11        trying to get to the conclusion on some of these matters.

         12        And if we wait until the end of that week, it will be what

         13        happened yesterday afternoon.  Some very crucial matters

         14        were temporarily passed and not acted upon that need to be

         15        addressed.  And we don't want to see that happen on

         16        Thursday in January.

         17             CHAIRMAN DOUGLASS:  Okay.  Let's vote on the motion.

         18        Commissioner Jennings.

         19             COMMMISSIONER JENNINGS:  Mr. Chairman, in support of

         20        Commissioner Barnett as a request to our rules chairman,

         21        perhaps if you give us the drop dead of through the end of

         22        that week and that in fact you will not allow it to go any

         23        further, that will allow us, as the chairman, to say, put

         24        up or shut up, you know, we need you there, your

         25        proposals, both the committee and those who are providing

          1        proposals in front of us.  And, in fact, probably some of

          2        the committees, I know we had -- I had several of our

          3        commissioners who had proposals in front of education

          4        yesterday but they were really tied up and needed to be in

          5        their committee or they would have broken the quorum

          6        there.  So maybe we can get into a little management.

          7             CHAIRMAN DOUGLASS:  You make a substitute motion?

          8             COMMMISSIONER JENNINGS:  Well, I'd like to offer the

          9        substitute motion.

         10             CHAIRMAN DOUGLASS:  That it be through the end of

         11        the --

         12             COMMISSIONER BARKDULL:  Through the end of the week

         13        of the 12th and that's it.

         14             CHAIRMAN DOUGLASS:  All right.  But recognize that

         15        during that time we are going to have committee -- I mean,

         16        commission session so they may have to be at night.

         17             COMMISSIONER BARKDULL:  Right.  Right.

         18             CHAIRMAN DOUGLASS:  Now the substitute motion, which

         19        has been accepted by the movant, would extend the time,

         20        Commissioner Barnett, through the end of that week and

         21        that's the drop dead date and you are going to have to

         22        un-drop dead if you go beyond that.  All those in favor of

         23        that motion please say aye.  Opposed?

         24             (Verbal vote taken.)

         25             CHAIRMAN DOUGLASS:  It does carry.  Now there are

          1        other announcements.  Go ahead.

          2             COMMISSIONER BARKDULL:  I want to call your attention

          3        that in the time we spent this morning, we took up nine

          4        items.  If you divide the time we used, we spent a half

          5        hour on each one of them.  Remaining on the calendar that

          6        we did not reach are 26 items.  If we use the same amount

          7        of time, that's 13 hours that's going to be needed that

          8        does not include any of the matters that are in your

          9        committees now.  I call your attention to that because I

         10        want you to get some idea of the volume of time or

         11        quantity of time, I don't know about quality, but quantity

         12        of time that's going to be needed to address these

         13        matters.

         14             Now the committee is going to take into consideration

         15        the suggestion by Commissioner Zack that we go to 7:00 on

         16        some evenings.  We are going to consider starting at 8:30

         17        on most mornings except the first morning of any period

         18        and try to address these different issues.  I want to

         19        thank all 27 of you that stayed here because I think the

         20        debate has been good.  I think we have moved everything

         21        through with everybody having their opportunity to speak.

         22             But I think you can see from the time constraints

         23        that we are going to have to have more time in this

         24        session.  And that's another reason why we have got to

         25        conclude the committee work.  And beyond that, Mr. Chair,

          1        and wishing everybody a happy holiday, that's --

          2             CHAIRMAN DOUGLASS:  Before you do that, thank you for

          3        the happy holiday, Santa Claus, you are such a happy Santa

          4        Claus, you know, we need to all give a big hand and thank

          5        the Senate staff, they have really worked hard for us.

          6             (Applause.)

          7             CHAIRMAN DOUGLASS:  And the secretary said I only had

          8        to correct her once and I was wrong then.  So we have done

          9        very well.  And I guess we can all join in wishing each

         10        other and all of us a happy holiday and see you in

         11        January, if not before.  Commissioner Barkdull?

         12             COMMISSIONER BARKDULL:  I move we recess until

         13        Monday, January 12th, and you will receive the notice.

         14             CHAIRMAN DOUGLASS:  All in favor say aye.  It

         15        carries.  We all go home.

         16             (Session adjourned at 1:35 p.m.)










          1                             CERTIFICATE


          3   STATE OF FLORIDA:

          4   COUNTY OF LEON:

                        WE, JULIE L. DOHERTY, KRISTEN L. BENTLEY,
          6   and MONA L. WHIDDON, Court Reporters, certify that
              we were authorized to and did stenographically report
          7   the foregoing proceedings and that the transcript is a
              true and complete record of our stenographic notes.

          9             DATED this ______ day of ____________, 1997.


         12                      JULIE L. DOHERTY, RPR


         14                      _________________________________
                                 KRISTEN L. BENTLEY

         17                      MONA L. WHIDDON
                                 COURT REPORTERS
         18                      DIVISION OF ADMINISTRATIVE HEARINGS
                                 1230 APALACHEE PARKWAY
         19                      TALLAHASSEE, FLORIDA  32399-3060
                                 (904) 488-9675






                     DIVISION OF ADMINISTRATIVE HEARINGS (904) 488-9675