The Florida Bar

Florida Bar News

  1. Home
  2. News & Events
  3. Florida Bar News
The Florida Bar News
click to print this page  click to e-mail the address for this page 
July 1, 2017
CRC agrees to operating rules

By Gary Blankenship
Senior Editor

Some sharp elbows were out as the Constitution Revision Commission made its first substantive decision, agreeing on a set of operating rules at its June 6 meeting in Orlando.

What might seem to be a routine matter didn’t come without some sniping and procedural maneuvering that could portend a contentious process for the citizens’ body that meets once every 20 years to propose amendments to the Florida Constitution.

The original set of proposed rules, prepared by the CRC staff, was criticized by many members for giving too much authority to CRC Chair Carlos Beruff, who was chosen by Gov. Rick Scott.

Seventy-five amendments, amendments to amendments, or substitute amendments for the rules were filed prior to the meeting, but only three got any actual discussion. No amendments from the floor were permitted.

Commissioner Roberto Martinez had the first that dealt with open government and Sunshine Law compliance, but withdrew it after he said it would be covered in a later amendment. Commissioner Sherry Plymale then submitted an amendment to the proposed rules that would end the chair’s ability to create new standing committees, but allow the chair to appoint special committees for specific purposes. Commissioner Brecht Heuchan then introduced a “strike-all” amendment to Plymale’s amendment that replaced the proposed rules with the rules used by the last CRC, which met in 1997-98, with some changes. One, which he called the “claw back provision” and also the “Schifino rule” — after commissioner and outgoing Bar President Bill Schifino — would allow a commission majority to bring a proposed amendment to the full CRC even if it had been rejected or was stalled in any of the CRC committees.

Bill Schifino Under the initially proposed rules, standing committees would have a minimum of five members and the chair could create additional committees, name the members, and refer proposals to them, even if they had cleared other committees. In that scheme, as few as three CRC members could kill a proposal, even if it were favored by a vast majority of commissioners.

Schifino, Heuchan said, took the time to study that provision and recommend different language.

“For any reason, if there is a proposal that is stuck in committee, it can be removed from the committee and go directly to the special order calendar [for consideration by the full commission],” Heuchan said. “I felt strongly once you get to that threshold of a majority, there should be no more barriers to the discussion of that proposal. It should not have to go and linger in the Rules Committee or be subject to the will of a small group of people. . . .

“Replete in this amendment is a respect for the will of the body. . . . It’s the will of the majority.”

The chair would not be able to create additional committees, he said, nor would he be able to call meetings on short notice.

The final alteration from the previous CRC rules is that representation on the Rules Committee would be proportional to the appointing authorities.

Kept from the 1997-98 rules is a requirement that every proposed amendment be referred to a committee and that the committee hear that proposal. Also, sending a constitutional amendment to voters will require the vote of 22 of the 37 commissioners.

Heuchan’s proposal drew an immediate challenge from commissioner and former Senate President Don Gaetz, who said, under the rules of procedure governing legislatures, the amendment was out of order because it exceeded the scope of the underlying amendment and hence was not germane.

But Beruff rejected that contention, saying, “There are no [procedural] rules [yet]. It is my understanding that without rules there is no germane standard. If you don’t like the amendment, you don’t have to vote for it.”

Commissioner Tom Lee, who also serves in the Senate, criticized both the initial proposed rules and the process at the June 6 meeting. He said under the initial rules, the only likely amendment to emerge from the CRC would be to give future governors all 37 appointments to future CRCs. But the way the committee was proceeding, Lee said, favored proposals like Heuchan’s that were offered as changes to amendments early on the commission’s agenda.

Because no floor amendments were allowed, commissioners had to file their amendments in writing before the meeting.

“We were all shooting blindly in the dark, jousting at windmills, because no one knew what anyone was going to file,” he said.

Others questioned whether the rules followed the spirit of the Sunshine Law and open government. The rules provide that, “All proceedings and records of the commission shall be open to the public.” But other commissioners said Heuchan did a good job of melding the 1997-98 rules with the concerns of the present members. They — and Heuchan — noted further rule modifications could be made through the Rules and Administration Committee and approved by two-thirds of the commissioners.

“They [the 1997-98 rules] were successful,” said Heuchan, who was a staffer in the House at the time and observed that CRC. “That commission went through a lot of the things that we’re going through at this moment. . . .

“One of the things we heard around the state [at the CRC’s initial public hearings] was to do no harm. We heard it over and over again. To me, do no harm means that it should be hard to change our constitution.”

After the meeting, Schifino called the rules a good compromise between the initial proposed rules and the 1997-98 rules.

“After having looked at both, I thought the most appropriate thing was a compromise and a compilation of the two, and I think the commission members worked very hard on that,” he said. “I think we as commissioners are ready to roll up our sleeves and do the hard work for the citizens of the state.”

The rules create 10 standing committees related to specific articles of the Constitution: Declaration of Rights (Article I), Executive (Article IV); Judicial (Article V), Legislative (Article III), Local Government (Article VIII), Finance and Taxation (Article VII), Ethics and Elections (Article VI and part of Article II), Bonding and Investments (Article VII), Education (Article IX), and General Provisions (Articles II, X, XI, and XII). The standing committees will have at least five members. Some members at the meeting expressed support for separating Ethics and Elections into two committees.

Aside from the standing committees, there are two procedural committees. The Rules and Administration Committee, in accordance with the proportional representation requirement, will have four members who were appointed to the CRC by the governor, two by the House speaker, two by the Senate president, and one by the chief justice.

The Style and Drafting Committee is charged with “the responsibility for clarifying, codifying, and arranging the proposals adopted by the commission into an orderly revision of or amendment(s) to an existing section or article of the present constitution. It shall also prepare the commission’s final report.”

The rules also require at least five days notice for any of its meetings. The complete rules can be found at www.flcrc.gov/Reference.

At the end of the meeting, Beruff asked the commissioners to submit a list of their committee preferences so he can make the appointments. He also said once the Rules and Administration Committee is appointed, it will take up the additional rule concerns of the members and “then we’ll have a meeting to review those and then get the necessary votes for them.”

[Revised: 12-07-2017]