The Florida Bar

Florida Bar Journal

  1. Home
  2. News & Events
  3. Florida Bar Journal
The Florida Bar Journal
April, 1997 Volume LXXI, No. 4
Constitution Revision Commission: A Retrospective and Prospective Sketch

by Billy Buzzett and Steven J. Uhlfelder

Page 22

Although the Florida Legislature will decide many important issues during the 1997 regular legislative session, some of the most significant issues facing Florida as it prepares for the 21st Century will be developed and debated after the legislature adjourns. It is at that time Florida’s second scheduled Constitution Revision Commission will begin its work.

Appointed every 20 years, the Constitution Revision Commission is an independent body composed of 37 commissioners1 who will carefully examine Florida’s Constitution to determine its relevance and applicability to the state’s current and future needs. Pursuant to the Florida Constitution, the members of the 1997-98 commission will be appointed within 30 days after the 1997 regular session ends.2 Ultimately, the commission will propose revisions to Florida’s Constitution that it deems necessary to promote Florida’s economic, political, and social growth. Florida voters will be given an opportunity to approve or reject the commission’s proposed amendments and revisions to the Florida Constitution during the November 1998 general election.

Currently, there are several vehicles for amending the Florida Constitution.3 The commission, however, is unique because it provides an opportunity for citizens to have a direct voice in the periodic review and revision of our state’s Constitution. No other state provides this type of mechanism.4 Commissioners will hold public hearings while drafting their proposals to guarantee that the commission’s revisions address the citizenry’s needs. As Chesterfield Smith, a long-time participant in Florida politics and former American Bar Association president, once said in an address before the 1977 commission: “The Constitution Revision Commission is an opportunity to give the people of Florida, through a better Constitution, a better way of life.”5

The 1977-78 Constitution Revision Commission
Prior to 1968, the year which Florida’s current Constitution was adopted, the Florida Constitution had not been adequately modernized since 1885.6 To ensure that Florida’s Constitution remains a dynamic document that meets the state’s needs, Art. XI, §2(a) (added as part of the 1968 revisions), mandates that 10 years after the adoption of the 1968 revisions, and every 20 years thereafter, a constitution revision commission would review the Constitution’s effectiveness as the foundation for Florida’s political, economic, and social structure.

Under the leadership of Chair Talbot “Sandy” D’Alemberte, the 1977-78 Constitution Revision Commission embarked on a ground-breaking endeavor that would serve as an example for future commissions. The 1977-78 Constitution Revision Commission was the first of its kind in the country. One of the commission’s main goals was to provide an effective and representative forum in which members of the public could discuss issues that they thought should be addressed by the commission. For approximately 15 months, the Constitution Revision Commission worked to achieve this goal. This work included holding public meetings throughout the state,7 debating more than 800 issues, and proposing the adoption of 87 changes (47 substantive changes and 40 procedural changes).

Ultimately, the commission presented these changes to voters in the form of eight proposed constitutional amendments.8 Some of the issues addressed in these amendments included dramatic executive branch reform, improved legislative apportionment, and merit selection and retention (as opposed to election) of trial judges. However, despite the commission’s comprehensive and detailed review of the Constitution, voters rejected all eight of the proposed amendments in 1978, some by a very small margin.9 Many observers and constitutional scholars believe that Gov. Askew’s dedicated and time-consuming fight to stop casino gambling, a constitutional issue placed on the 1978 ballot by the citizen initiative process,10 played a significant role in the defeat of the commission’s proposed amendments. Specifically, by placing emphasis on the defeat of the casino gambling amendment, the worthy commission amendment proposals were overshadowed and under-publicized.

Although the amendments proposed by the commission were not adopted, the fruits of the commission’s labor were not lost. Evidence of the Constitution Revision Commission’s beneficial effect on Florida government and public policy has become readily apparent in subsequent years. Today, more than 40 percent of the 1977-78 commission’s suggested substantive changes are now law, either by legislative enactment or by voter approval of ballot initiatives. For example, the commission proposed an amendment codifying Floridians’ individual right to privacy. This proposal was adopted as an amendment to the Florida Constitution in 1980.11 Other significant proposals by the commission that eventually became law include grand jury counsel for witnesses,12 an appointed Public Service Commission,13 broad public records14 and public meetings laws,15 and term limits for Cabinet members.16 Further, some of the issues addressed by the commission, but not yet enacted, continue to be debated in the legislature and on the editorial pages. Such issues include Cabinet reform and merit selection of trial judges. In essence, the 1977-78 Constitution Revision Commission developed a great deal of the political and legislative agenda during the past two decades.

The 1997-98 Constitution Revision Commission
As the 1997-98 commission prepares to take an inventory of Florida’s government, it will not only benefit from the experiences of the 1977-78 Constitution Revision Commission but will also debate similar issues.

In 1977, the speaker of the House of Representatives, Senate president, and Governor were all Democrats. The 1997 commission will likely be more politically diverse because the House speaker17 and Senate president18 are now Republicans and the Governor19 is a Democrat. The commissioners in this diverse group will have to work together in a bipartisan effort to accomplish their goals. At the onset, the commission will need to adopt internal rules of procedure. Key procedural issues will be whether a majority or greater will be required to place an item on the ballot. The 1977-78 commission only required a majority.20

With regard to substantive issues, one of the major issues of 1978 that will undoubtedly reappear is Cabinet reform and changes to the power structure of the executive branch. Florida’s Cabinet is unique because all of its members are elected and have a vote equal to that of the Governor’s at Cabinet meetings. Ironically, however, Cabinet reform may not be as significant to the 1997-98 revision commission due to the enactment of term limits, yet another reform proposed by the 1977-78 revision commission and adopted by voters in later years. Another major issue that will echo the 1977-78 revision commission will be legislative apportionment and whether an independent commission should handle this task. The effect of the 1977-78 commission’s work also will be evident as this year’s commission defines individual rights in the context of the Constitution’s privacy amendment. Efforts may be made to weaken this provision.

A new issue that may confront the commission involves changes to, or even the elimination of, the citizens’ initiative process for placing constitutional amendments on the ballot. The commission also may consider campaign reform, collective bargaining, tax reform, financial disclosure requirements for elected officials, and unfunded mandates from the state to local governments. The commission, with the public’s input, will determine its own agenda and the revisions that it will propose. Regardless of the commission’s ultimate proposals, the commissioners will play a significant role in the 1998 general election when Florida will not only consider constitutional amendments, but will elect a new Governor. Undoubtedly, the ballot issues from the commission will be at the forefront of the next election.

Conclusion
Learning from the experiences of the 1977-78 commission and relying on the work of the steering committee, a legislatively created group that has been preparing for the advent of the Constitution Revision Commission, this year’s commission should be focused, efficient, and prepared to tackle the tough issues facing Florida. Most importantly, the 1997-98 Constitution Revision Commission should understand that successfully revising the Florida Constitution requires an independent and bipartisan approach.

1 The Governor appoints 15 members, the speaker of the House of Representatives and the president of the Senate each appoint nine members, the chief justice of the Supreme Court appoints three members, and the Attorney General automatically serves. Collectively, the Constitution Revision Commission consists of 37 members. Fla. Const. art. XI, §2.
2 Fla. Const. art. XI, §2 provides that “within thirty days after the adjournment of the regular session of the legislature convened in the tenth year following that in which the constitution is adopted [1968] and each twentieth year thereafter, there shall be established a constitution revision commission . . . .”
3 Fla. Const. art. XI sets forth five distinct methods of proposing amendments to the constitution. The methods include amendment proposal by the state legislature, amendment proposal by the Constitution Revision Commission, amendment proposal by citizen initiative, amendment proposal by constitution convention, and amendment proposal by the Taxation and Budget Reform Commission.
4 Five other states, Alaska, Arkansas, California, New York, and Utah, are in the process of considering recommendations from commissions relating to revision of their constitutions. It is interesting to note, however, that of the other states considering changes to their constitutions, none have a constitutionally created revision commission. In addition, none of those states’ commissions have the authority to place recommendations directly on the ballot for consideration by the electorate. The Book of States (vol. 31, 1996-97).
5 Florida Constitution Revision Commission 1977-78 Debate (vols. 1-2).
6 Prior to 1968, Florida operated under a series of constitutions. The first constitution was adopted in 1838 and ratified at a constitution convention convened in St. Joseph (now known as Port St. Joe, located in Gulf County). The second constitution was adopted pursuant to a constitution convention on Jan. 3, 1861. This convention produced for adoption an Ordinance of Secession declaring Florida to be a “sovereign and independent nation.” The third constitution was adopted in 1865 in the aftermath of the war between the states. The constitution included, for the first time, a separately elected lieutenant governor, and it also provided for the election of a secretary of state, an attorney general, a comptroller, and a treasurer. The fourth constitution is referenced as the “reconstruction or carpetbag constitution” and was the result of a convention beginning on Nov. 14, 1867. The constitution allowed for all political power to reside in the governor because all county officers became appointed rather than elected. The constitution also established a system of public schools, and the legislative article was amended to provide for a seat for a Seminole Indian. Florida’s fifth and longest lasting constitution was adopted in 1885, and it reversed many of the provisions found in the fourth constitution. The constitution restored the election of public offices, reduced the salaries of the governor and other state officers, made the governor ineligible for reelection, abolished the office of lieutenant governor, and provided a legislature of fixed numbers. Alan Morris, The Florida Handbook (1995).
7 Ten public hearings were conducted from August 18, 1978, through September 26, 1978. The hearings were divided into two sessions. The first session was devoted to a particular subject with invited speakers. The second session was open to the public for discussion of either the designated subject or any other topic. The locations and subjects of the public hearings were as follows: Pensacola, Ethics and Elections; Jacksonville, Executive Branch; Gainesville, Finance and Tax and Declaration of Rights; Ft. Myers, General; Tampa, Health, Welfare, and Environment; Orlando, Legislative Branch; Ft. Pierce, Education and Education Funding; Ft. Lauderdale, Local Governments; Miami, Judiciary; and Tallahassee, Ethics and Elections.
8 Amendment 1 included 57 changes to the Constitution. Amendment 2 amended art. 1 to add the term “sex” to the list of characteristics that may not be used as basis for depriving person of any right. Amendment 3 proposed requiring single-member legislative districts, establishing reapportionment standards, and creating a commission to prepare a reapportionment plan for legislative and congressional districts. Amendment 4 proposed the elimination of the elected cabinet (composed of the Secretary of State, the Attorney General, the Comptroller, the Treasurer, the Commissioner of Agriculture, and the Commissioner of Education). Amendment 5 provided for a five-member Public Service Commission, each member to be appointed by the Governor from a list of not fewer than three persons submitted by a nominating commission. Amendment 6 provided for the extension of merit selection and retention from the justices of the Supreme Court and judges of the district court of appeal to county and circuit court judges. Amendment 7 was a series of amendments relating to the financial article, and Amendment 8 proposed, among other things, the elimination of the cabinet as the ex officio State Board of Education and in its place created a state board of education appointed by the Governor and confirmed by the Senate.
9 Revision Commission Amendment 1 was rejected 623,703 to 1,512,106; Revision Commission Amendment 2 was rejected 1,002,479 to 1,326,497; Revision Commission Amendment 3 was rejected 982,847 to 1,113,394; Revision Commission Amendment 4 was rejected 540,979 to 2,155,609; Revision Commission Amendment 5 was rejected 772,066 to 2,147,614; Revision Commission Amendment 6 was rejected 1,058,574 to 1,095,736; Revision Commission Amendment 7 was rejected 779,389 to 1,368,346; Revision Commission Amendment 8 was rejected 771,282 to 1,353,626.
10 The casino gambling initiative authorized casino gambling in Miami Beach and East Broward County. The measure was overwhelmingly rejected by a margin of 687,460 to 1,720,275.
11 The right to privacy proposal was placed on the ballot by the legislature (Committee Substitute for House Joint Resolution 387). The proposal was adopted by a margin of 1,722,987 to 1,120,302.
12 Fla. Stat. §905.17(2) provides that a witness before the grand jury may be represented by an attorney.
13 Prior to 1978, members of the Public Service Commission (PSC) were elected. At the time the revision commission proposed amending the constitution to provide for an appointed PSC, the legislature made the change by general law. Today, members of the PSC are appointed by the Governor from a list provided by the PSC nominating council as provided by Fla. Stat. ch. 350.
14 In 1992, the legislature placed on the ballot an amendment that granted public access to records and meetings of the executive, judicial, and legislative branches of state government and other governmental entities. (CS/CS/HJR 1727). The amendment was overwhelmingly adopted by a margin of 3,883,617 to 793,229.
15 Fla. Const. art. I, §24 was approved by the voters in the November 1992 general election and provides a right of access to meetings of collegial public bodies. As a result of the amendment, virtually all collegial public bodies are covered by the open meetings mandate of the open government constitutional amendment (with the exception of the state legislature, which has its own constitutional provision requiring access, and the judiciary).
16 In 1992, the electorate adopted a term- limit initiative. The initiative limited terms of public office by prohibiting incumbents (Florida representatives, Florida senators, Florida Lieutenant Governors, any office of the Cabinet, U.S. Representatives or U.S. Senators from Florida) who have held the same elective office for the preceding eight years from appearing on the ballot for reelection to that office. The initiative was adopted by a margin of 3,625,500 to 1,097,127.
17 In November 1996, Daniel Webster, Republican, was elected speaker of the Florida House of Representatives.
18 In November 1996, Toni Jennings, Republican, was elected president of the Florida Senate.
19 In November 1994, Lawton Chiles, Democrat, was reelected Governor of the State of Florida.
20 The commission met in late-September 1977 to adopt its permanent rules and to examine many issues presented by the public. The rules were patterned after the 1968 revision commission’s rules and the rules of the Florida Senate and Florida House of Representatives. The rules, however, contained a controversial proposal that required a two-thirds vote for a proposal to be placed on the ballot. Proponents of the two-thirds measure reasoned that because legislatively created constitutional proposals required a super-majority vote, proposals coming from the revision commission should also require a super-majority vote. Opponents countered that the super-majority rule would frustrate the will of the people and would remove control from the majority and give it to the minority. The super-majority rule was defeated and therefore proposals required a simple majority for passage.

Stephen J. Uhlfelder is the executive partner for the law firm of Holland & Knight, P.A., in Tallahassee, with a primary practice in administrative and governmental law. He is a member of the Board of Regents and served on the Taxation and Budget Reform Commission and as the executive director of the 1977-78 Constitution Revision Commission. Mr. Uhlfelder received his J.D. from the University of Florida, where he was a member of the Florida Blue Key and president of the student body.

William A. Buzzett is the executive director of the Constitution Revision Commission Steering Committee. He received his J.D. from Florida State University and is a member of The Florida Bar.

[Revised: 02-10-2012]