Florida’s 2017-2018 Constitution Revision: It’s Your Turn to Decide
Thirty-seven Floridians, including 21 law school graduates, completed a task this past May that was awesome in the original meaning of the word. Thirty-seven people who were living their lives, perhaps being public servants for a living, perhaps serving the state in other ways, were chosen for a task that arises only once every 20 years: the nation’s only regularly recurring Constitution Revision Commission (CRC). They had only a few requirements: convene, adopt rules, examine the constitution, hold public hearings, and forward any proposed changes to the custodian of state records 180 days before the next general election.1 Their deliberations resulted in eight proposals to amend the Florida Constitution. The Florida electorate will vote on these proposals in the November 2018 general election.
When the Florida Constitution was drafted in 1966 by a statutorily created revision commission chaired by then-recent Florida Bar President Chesterfield Smith, Smith and fellow member Robert Ervin both stated they wanted citizens to have the power to amend their constitution.2 They saw to it that Florida’s new constitution would be malleable. Think for a moment what it might be like if the U.S. Constitution were subject to a limitless revision every 20 years. We citizens might feel the ground go soft beneath our feet; but in Florida, such a revision — or, at least, the potential for one — happens every 20 years.
The third CRC under Florida’s 1968 Constitution convened between March 2017 and May 2018. The composition of this CRC was markedly more diverse than the 1966 Commission, which was composed of 36 white men and one white woman.3 Each CRC has been more demographically diverse than the last, with the most recent having 15 women, six Hispanics, and six African-Americans.
This CRC was also more “Republican” than the last two, a reflection of the politics of the times in Florida. The 1977-78 CRC, chaired by Talbot “Sandy” D’Alemberte, was dominated by Democrats, as each of the appointing authorities elected in a partisan election remained Democrat;4 by the same measure, the 1997-98 CRC, chaired by Dexter Douglass, was nearly evenly balanced between the parties;5 and most members of this most recent CRC, chaired by Carlos Beruff, were appointed by Republican officials.6 This CRC was the first chaired by a Latino, and this CRC was the first, remarkably, in which the appointing governor was not a member of the 1966 CRC that created our current constitution.
Every CRC has attempted to change Article V, the judicial article, in some way. The 1977-78 body proposed ambitious reforms, such as merit retention for all levels of judges. Not one of the 1977-78 proposals, however, was adopted by the voters.
Twenty years on, politics in Florida had reached a turning point: The Republican Party had majorities in both the House and Senate for the first time since Reconstruction. But the 1997-98 CRC crossed party lines and found consensus. It placed on the ballot revisions that were, perhaps, designed to be achievable: instead of trial judge merit retention statewide, for example, it offered a revision that would allow counties to opt in to merit retention. (The amendment passed, but no county opted in.) All but one of the 1997-98 CRC’s proposals passed.7
The 2017-18 CRC’s Article V proposals depart from earlier efforts: They propose an expansion of victims’ rights; an end to judicial deference to administrative agencies; and an increase of judicial retirement age.
Now we are asked to vote on the work of the third CRC, which has placed eight proposed revisions on the ballot.8 They will appear as Amendments 6 through 13, as the first five proposed amendments were placed on the ballot by the legislature and a citizens’ initiative. Some of the proposed amendments have been the subject of lawsuits challenging various aspects of them. At the time of writing, it is impossible to know when or how these actions will be resolved.
Much has been made of the “bundling” choices of this CRC’s Style and Drafting Committee, which combined proposals, as its rules allowed, into larger ballot revisions. Yet, it is worth repeating that “bundling” is not new to this CRC. Each of the previous CRCs, all the way back to the 1966 group, combined individual proposals into larger revisions.
The goal of this feature in The Florida Bar Journal is to help our members better understand each proposal. It is our hope that this special section illuminates some of the CRC’s work.
1 Fla. Const. art. XI, 2(4)(c) (1968).
2 Author conversation with Robert Ervin (Nov. 10, 2010); Chesterfield Smith, CRC transcript Dec. 1966, Fla. State Archives, Record Group 1006, series 722, box 6, folder 1.
3 1966 Constitution Revision Commission group portrait, Florida Memory, available at https://floridamemory.com/items/show/18745.
4 Members of the Senate, Regular Session, 1977, Senate J.; Members of the House of Representatives, 1977, House J ., available at http://dos.myflorida.com/florida-facts/florida-history/florida-governors/ .
5 Members of the Senate, Regular Session, 1997, Senate J.; Members of the House of Representatives, 1997, House J . , available at http://dos.myflorida.com/florida-facts/florida-history/florida-governors/ .
6 Florida House of Representatives, http://myfloridahouse.gov ; Florida Department of State, Florida Governors, http://dos.myflorida.com/florida-facts/florida-history/florida-governors/ ; Florida Senate, http://www.flsenate.gov.
7 Florida Division of Elections, Initiatives/Amendments/Revisions Database, http://dos.elections.myflorida.com/initiatives/ .
8 CRC 2017-2018, Final Report (May 9, 2018), available at http://flcrc.gov/PublishedContent/ADMINISTRATIVEPUBLICATIONS/CRCFinalReport.pdf .
MARY E. ADKINS teaches legal writing and appellate advocacy, and advises the moot court team at the University of Florida Levin College of Law. She has researched the making of the Florida Constitution and its subsequent Constitution Revision Commissions and in 2016 published Making Modern Florida: How the Spirit of Reform Shaped a New State Constitution (Gainesville: University Press of Florida 2016). She is a proud triple-Gator and lives in Melrose.