CRC 2017: The History and Process of Revising the Florida Constitution

Episode Notes

Transcript

The Florida Bar Podcast

CRC 2017: The History and Process of Revising the Florida Constitution

10/10/2017

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Intro: Welcome to The Florida Bar Podcast, where we highlight the latest trends in law office and law practice management to help you run your law firm, brought to you by The Florida Bar’s Practice Resource Institute. You are listening to Legal Talk Network.

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Christine Bilbrey: Hello and welcome to The Florida Bar Podcast on Legal Talk Network. We are so glad you are joining us today. I am Christine Bilbrey and I am the host for today’s show, which is being recorded from our offices in Tallahassee, Florida.

Joining me today is attorney Mary Adkins. Mary Adkins is the Director of Legal Writing and Appellate Advocacy and a Master Legal Skills Professor at the University of Florida Levin College of Law. She has researched the history of the 1968 Florida Constitution and its revisions. In 2016 she published the book Making Modern Florida: How the Spirit of Reform Shaped a New Constitution. She is a frequent presenter on Florida Constitution revision around the state and is the Secretary of the Florida Supreme Court Historical Society.

Prior to joining UF Law, Mary worked in private practice. She earned her B.S.J., M.A., and J.D. from the University of Florida

Welcome to the show Mary.

Mary Adkins: Nice to be here.

Christine Bilbrey: So Mary, tell our listeners a little bit about yourself and your work regarding the Florida Constitution Revision Process which we are in this year, 2017, this is happening right now, so we are trying to get the word out to everyone who is listening, but tell us what your involvement is.

Mary Adkins: Well, I started several years ago, probably in 2010. I was reading some books about Florida political history and realized that most of them mentioned sort of in passing that we had had a new Constitution in 1968, and that seemed important, so I started looking for more information about it and found almost nothing had been published.

So that of course got my curiosity up and I started researching and found many oral histories that had been done. I looked around and found that even though the Constitution Revision Commission that drafted this Constitution back in 1966, even though that was a long time ago, some of the people who drafted it were still alive and I started hunting them down and interviewing them and uncovered this fascinating story about how this moment in time in the mid-60s held all the change in Florida, political, social, cultural. We were getting ready to put a man on the moon, Disney was on the horizon, reapportionment transformed Florida’s politics and enabled Florida’s Constitution to be rewritten.

Christine Bilbrey: So can you explain the unique process that Florida uses, that was set up in 1968, that allows updates to our Constitution and how often it occurs. It’s my understanding that we are the only state in the nation that does it in this particular way.

Mary Adkins: Yes, we are. We were then and we have remained unique. There are a few other states that provide for Constitution Revision Commissions, but they are typically triggered by one thing or another. Ours is the only one that is both automatically recurring and has the power to put proposed amendments directly on the ballot without going through the legislature.

So what happened is before 1968, the Constitution could only be amended by the legislature, which did not have a great record for responding to citizens’ needs. So the group of citizens, lawyers, judges, legislators, and others who were appointed to work on this redraft decided to make this Constitution very responsive to the people. So they created several ways for the Constitution to be amended, and the one that’s in the spotlight this year is this automatically recurring Constitution Revision Commission or CRC.

The Constitution provided in 1968 that 10 years later and every 20 years after that there would be an automatically recurring CRC that would consist of 37 people, 36 of them appointed by heads of the government branches and one automatically in as the Attorney General.

Christine Bilbrey: And so can you tell us, those people that are now on the Committee, how were they selected? Are they just regular citizens of Florida? What’s the criteria for getting on the Commission?

Mary Adkins: The criteria is that you have to be able to fog a windshield. In other words, it’s open to any citizen. The citizens do however have to be appointed. The Governor gets 15, which is the largest number appointees. Each House of the legislature, the speaker, and the Senate President each get to appoint 9 apiece. so the legislature as a branch has the most appointees. And the Chief Justice appoints just three. And then as I said the Attorney General is automatically on.

(00:05:14)

So typically each appointing authority will have a way for people to apply. Sometimes it’s more formal than others. It’s really sort of up to that appointing authority, but most of them have application forms. I have heard that some people were picked after being asked to apply by that appointing authority and others just applied and that’s how their name got up there and they got appointed.

Christine Bilbrey: And I read that in one of the past revision Commissions, they were able to successfully balance it between the two political parties, which was popular. They were able to come to some resolution together and get those on the on the ballot for the voters. Is it more skewed to one party politically now because of the balance that is in power in Florida?

Mary Adkins: Yes, and it’s been interesting to see over these three CRCs; the first being in 1977-1978, the second in 1997-1998, and then now, they are necessarily a reflection of who has been elected, with the exception of the Justice of course who is appointed.

So in 1977 and 1978 everybody was a Democrat, all the appointing authorities were Democrats and so all, but I believe four, of the CRC members were also members of the Democrat Party.

In 1997 and 1998, which is what I think you are alluding to, it was again a moment in time, the first time since reconstruction that the Republican Party had control of both Houses of the legislature, but the Governor Lawton Chiles was still a Democrat and the Chief Justice was Democrat or we should say left leaning, since they are officially nonpartisan, and the Attorney General Bob Butterworth was a Democrat. So of 37 people, which is of course the prime number, we had 18 Republicans and 19 Democrats, so it was as evenly divided as it could possibly be.

Christine Bilbrey: And what was the success of the proposals that they put forth that year?

Mary Adkins: Well first, I would like to say why they were successful. With the divided government it’s not a given that they would be successful, but they had the wisdom to create an internal rule that required a 60% vote of the Commissioners before any of their proposals could go to the ballot. So with this evenly divided CRC, which could have just failed on party lines, they were forced to reach consensus with each other. Everyone that I have talked to who was on that CRC said it was the most positive governmental service experience they have ever had.

Christine Bilbrey: You don’t hear that very often.

Mary Adkins: No, you don’t. No, you don’t. And this year of course we are back to it being mostly members of one party, but it’s the other party, the Republican Party. So to the extent I have been able to, I have been trying to communicate to the current CRC members and give them the sort of cautionary tale of how 40 years ago, when everyone was a member of one party, that CRC put several things on the ballot and none of them succeeded with the populace.

In 1997-1998, you have a divided government, you have them working toward consensus, and of the proposals they put on the ballot, all but one succeeded. So this CRC is again almost all Republican, but they have had the wisdom to learn from the past and they do too have an internal rule that requires 60% vote to put anything on the ballot. So I think that they are in that manner doing their best.

Christine Bilbrey: That’s good. So tell people, because there’s such a gap in time in between the CRCs, that if you weren’t a voting age or you moved to the state during the interim, you have no idea that this process is happening and these things will affect your individual life. I think a lot of times people don’t realize that, so that’s why we are trying to get the word out.

So you said they have this internal rule that they are going to put forward for ones that have that same majority, but what happens, like is there a limit to how many proposals they can put on the ballot?

Mary Adkins: No, there isn’t a limit. And it’s interesting that you mention this big gap. I have actually written a follow-up article to my book and it may well be the title of my sequel, and I call it The Same River Twice, because Florida is such a fast growing state and such a fast moving state. In other words, people move in and out a lot. People are retired. They die here. The CRC is never really dipping into the same population twice. So it’s like the old saying that no man steps into the same river twice.

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So because of that there is a lot of education that has to happen every 20 years when these 37 people sort of rise up out of the state and do this work for a year and then go back to where they came from. Each CRC under this Constitution, each CRC is responsible for making up its own rules. So, the next one might decide that it’s going to limit its proposals to five. They can do whatever they want with the rules, isn’t that remarkable?

Christine Bilbrey: So it really does change.

Mary Adkins: Yes. The only requirements that they have are to hold public hearings throughout the state to make up their own rules, to review the entire Constitution and decide what, if any, amendments they want to propose, and then should they decide to propose any amendments they have a deadline for getting those proposals to the Secretary of State or custodian of records 180 days before the next general election. Beyond that, the sky is the limit.

So there is a winnowing process that informally has worked about the same in each CRC, where the public hearings generate lots of proposals coming from the public. The CRC then wades through those proposals, winnows them down. The Commissioners are free to propose their own amendments and so that adds to the number. And then through the Committee process and through meeting and hashing it out, they end up coming down to a hopefully manageable group of proposals that they think have a likelihood of succeeding, although they don’t have to believe they have a likelihood of succeeding, because the CRC gets to make its own rules. So that’s the main process and then they have until next May to finalize things.

Christine Bilbrey: And they can basically put anything on there. It doesn’t go through the same process.

Mary Adkins: It does not go through the legislature. It goes directly from these 37 appointed people to the ballot.

Christine Bilbrey: Wow. So this is one of the real important points that I want to make. What role can citizens play in this process before and after proposals are placed on the ballot?

Mary Adkins: Citizens can number one, as I said they can propose amendments and there is a deadline of October 6. It was actually extended after Hurricane Irma, but Friday, October 6, is the public deadline.

Also, this CRC like the others has been pretty transparent. It has a website,  HYPERLINK “http://www.flcrc.gov” flcrc.gov, very easy, and in that you can watch the live stream of all their meetings. You can propose whatever you want. You can read what everybody else has proposed.

I was going to propose a couple of things, but when I looked on there, I saw that everything that I was going to do had already been proposed. So it’s quite transparent.

What citizens can do is they can still weigh in. They can still send in what they think about proposals. They can also attend meetings, either in person because they are publicly noticed or they can tune in via the web, the  HYPERLINK “http://www.flcrc.gov” flcrc.gov stream or they can tune into the Florida Channel. So citizens can do all of these things. Of course back in the spring when they were holding the public hearings, obviously people could and did come to those.

Christine Bilbrey: And so that is an excellent website. I have been to that several times and I have watched the proposals grow. Right now when I checked it this morning there were 12 Commissioner proposals and 671 proposals that were put forth by the public and they were all over the place. There were some that I thought, that’s a great idea and there were some that I wondered what was going on in that person’s mind. And they are not even just Florida citizens, there’s people from all over the country, which surprised me, that are trying to weigh in on our Constitution, so some people get very excited about this.

But have you seen a popular theme as you have been looking at them, what are some commonalities that you are seeing this year?

Mary Adkins: Well, I will first preface this by saying I haven’t looked at them all and the number that I heard in a hearing this morning was 1,400, although the 671 might be what they call unique ideas. So if seven people have the same idea that counts as one.

Here are a few themes that I have heard. One is restoration of voting rights for felons. Quite interesting, that has never really come up in a big way before, but it certainly is there with a lot of support now.

People want to do different kinds of things with the explicit right to privacy that our Constitution has. Some don’t like the ways that it has been judicially interpreted.

(00:14:45)

Let’s see, what else? There have been a few, quite a few actually people who have said, the Florida Constitution might be too easy to amend. It’s got the Citizens’ Initiative, where if you get enough signatures, you can put anything you want on the ballot, and it was meant specifically in 1968. It was put there by people who knew very well that the legislature that they knew at that time was not interested in what the people wanted, bad as it sounds. And that by the way has come out of the mouths of more than one person that I have talked to from that era.

In fact, one gentleman, Bob Ervin, who is a Tallahassee lawyer said, the thing I am proudest of is Citizens’ Initiative. I said has that worked out the way you meant it to? And he said I don’t care. I knew that the people needed a voice in their own Constitution.

I bring that up because a lot of people would agree that that’s maybe gone farther than it was originally meant to and a lot of people are coming up with the idea of having a Citizens’ Initiative that would become a statute rather than a constitutional amendment. So that if you want to protect the rights of pregnant pigs, that’s very nice; maybe it doesn’t belong in the Constitution.

Christine Bilbrey: Yeah, and that’s the famous one that we all know about. And it was like crate dimensions for pregnant pigs that wound up in our Constitution.

Mary Adkins: Something like that, yes.

Christine Bilbrey: That gives Florida part of its reputation. And I also know that there’s been a lot of talk about changes to the judiciary. Can you talk about some of those that you have seen?

Mary Adkins: Yes, it’s been very interesting, because before the appointments were made, one in particular of the appointing authorities, the House Speaker, had said pretty explicitly and several times that it was going to be a litmus test for his appointees that he wanted them to basically pledge that they would be in favor of judicial term limits. Interestingly enough, now, I don’t know whether that has actually been proposed or not, but it has not been a big theme at all.

And in one of the public hearings that I — it was actually the one I attended in person, somebody mentioned — a member of the public mentioned that and one of the Commissioners actually piped up from the back of the stage and said I was appointed by the speaker and that I was not asked to give my opinion on that.

Christine Bilbrey: Oh, that’s interesting.

Mary Adkins: So judicial term limits, and just briefly I think many Floridians know, members of the executive and legislative branches who are elected have term limits, judges do not. Judges however have a mandatory retirement age, which the other two branches do not have. There have been amendments proposed extending that mandatory retirement age for judges from 70, which is younger than it used to be 50 years ago, to 75.

Christine Bilbrey: And I noticed that it was two of the Commissioners had put forth very similar ones, making that same change, so will there be more proposals from the Commissioners, the ones that we are seeing on the website, or is that just a start for them?

Mary Adkins: Yes, the Commissioners’ deadline is later than the public deadline. I believe it’s October 22, which would be two weeks later than the public.

Christine Bilbrey: And so what are — if someone came up to you and they are just newly hearing about the CRC and I am at the bar, so I know and I have legal members of my family so we talk about the CRC, but if you have never heard of it, if someone approaches you, what are the important things that a citizen of Florida should know about this?

Mary Adkins: The CRC has awesome power. It has power to a surprising degree. People who have no necessary qualification, who were not elected by anyone, who have presumably no political loyalties because they were appointed for a one-time position that they will not be campaigning to keep because it’s a one-time thing, these 37 people have the power to propose changes to our Constitution.

So we want to look hard at them. If we are not confident that they are going to do the work well, we might want to communicate with them and let them know that we expect that we have high expectations of them. That’s another way that citizens can really help is just by letting your Commissioners and they are all the Commissioners for all of us, they are all statewide, let them know we have our eyes on you. We are looking to you to do a good job.

For our part, our Constitution provides now, as it did not 20 years ago, that you need a 60% vote to amend the Constitution. So whatever they propose will not pass unless 60% of us plus one vote yes.

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Christine Bilbrey: And I want to read just a little snippet from your book because I thought this really summed it up well. CRCs are made of ordinary citizens and can place recommended changes to the Constitution directly on the ballot without having to go through any other political process first and Floridians need to know that the CRC is coming. We need to pay attention to the members, who they are, what issues are being considered, and we need to know where our Constitution came from and why it is formed as it is.

And Mary didn’t know this, but I do want to put a plug in for her book, because I noticed in my email that if you have interest in this, Mary is going to be reading from and taking questions discussing her book here in Tallahassee at Midtown Reader bookstore on Thomasville, October 11 from 5:30 to 7. I think that that is wonderful.

So if you haven’t come out to support the independent bookstore or you want to get more involved and find out more about the constitutional process, I love that you are making yourself available in this way.

Can you tell us just a little bit about what you did today before you came here to record.

Mary Adkins: Yes, I am here in person in Tallahassee because I was asked to present about the history of the Constitution and the CRC before the CRC’s Declaration of Rights Committee this morning.

Christine Bilbrey: Well, it looks like we have reached the end of our program and I want to thank Professor Mary Adkins for joining us today.

Mary Adkins: Thank you Christine. I have enjoyed it.

Christine Bilbrey: If our listeners have questions or want to follow up with you, how can they reach you?

Mary Adkins: They can reach me on social media, Mary Adkins on Facebook. On Twitter it’s @MaryEAdkins, and my email address at University of Florida is  HYPERLINK “mailto:[email protected]” [email protected].

Christine Bilbrey: And if you want to go to the website that Mary and I mentioned earlier, that is  HYPERLINK “http://www.flcrc.gov” flcrc.gov.

So if you liked what you heard today, please rate us in Apple Podcast and join us next time for another episode of The Florida Bar Podcast on Legal Talk Network. I am Christine Bilbrey. Until next time, thank you for listening.

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