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Legislative Efforts to Amend the Florida Constitution: the Implications of Smathers V

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Legislative Efforts to Amend the Florida Constitution: the Implications of Smathers V Florida State University Law Review Volume 5 Issue 4 Article 5 Fall 1977 Legislative Efforts to Amend the Florida Constitution: The Implications of Smathers v. Smith James Bacchus Follow this and additional works at: https://ir.law.fsu.edu/lr Part of the Constitutional Law Commons, and the State and Local Government Law Commons Recommended Citation James Bacchus, Legislative Efforts to Amend the Florida Constitution: The Implications of Smathers v. Smith, 5 Fla. St. U. L. Rev. 747 (1977) . https://ir.law.fsu.edu/lr/vol5/iss4/5 This Note is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusion in Florida State University Law Review by an authorized editor of Scholarship Repository. For more information, please contact [email protected]. LEGISLATIVE EFFORTS TO AMEND THE FLORIDA CONSTITUTION: THE IMPLICATIONS OF SMATHERS v. SMITH* I. INTRODUCTION The deliberations of Florida's Constitution Revision Commission have received much attention. Debates have been publicized. Issues have been scrutinized. The careful preparation for proposing constitu- tional changes to the people has been chronicled in depth and detail. When the people of Florida finally vote in November, 1978,1 on the recommendations of the revision commission, they will have had every conceivable opportunity to become familiar with those recommenda- tions. And this is as it should be. The people should know precisely what choices they face when they vote on a revision of their state constitution. Florida's Constitution Revision Commission is "unprecedented and unparalleled."' It is unique in all the nation.3 Nevertheless, the Constitution Revision Commission may not play as crucial or as last- ing a role in the continuing process of constitutional change in Florida as will the Florida Legislature. True, the suggested revision in 1978, unlike the revision in 1968, will not require legislative approval before *Author James Bacchus served as an aide to Governor Reubin O'D. Askew during the events described in this note. 1. In re Advisory Opinion of the Governor Request of Nov. 19, 1976 (Constitution Revision Commission), 343 So. 2d 17 (Fla. 1977). At issue in the advisory opinion was when the revision commission should be appointed and whether the proposed revision should be submitted to the voters in 1978 or 1980. Article XI, § 2 of the Florida Constitution provides that the proposal shall be submitted to the people in "the tenth year following that in which this constitution is adopted .... ." The constitution was adopted in November, 1968. The court advised that the quoted language was "de- fective if read literally" in that all the terms of article XI could not be carried out within the time limitations established by the various sections of the article. 343 So. 2d at 21. The court concluded in the advisory opinion that the drafters of the 1968 constitu- tion had "simply failed to adjust the timetable set forth in Article XI, Section 2" when reapportionment inadvertently prevented them from submitting the document for adoption in 1967, as they had originally planned. Id. at 22. Looking beyond the docu- ment to the intent of the framers, the court advised that the commission should be appointed in 1977 and that the proposed revision should be completed in time for sub- mission at the 1978 general election. Id. at 23-24. Justices Karl and Adkins dissented. They argued that the commission should not be appointed until 1978 and that the proposed revision should not be submitted to a vote until November, 1980. Id. at 24-29. 2. Address by Reubin O'D. Askew, Governor of Florida, Opening Session, Constitu- tion Revision Commission (July 6, 1977). 3. See Sturm, The Procedure of State Constitutional Change with Special Emphasis on the South and Florida, 5 FLA. ST. U.L. REv. 569 (1977). 748 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol.5:747 submission to the electorate.4 The legislators will have no chance to revise the proposed revision in advance of the statewide vote.5 Yet, after 1978, the Florida Constitution will not be revised again by an appointed commission for twenty years. 6 And the members of the Florida Legislature will, in all likelihood, retain their considerable power to propose piecemeal changes in the form of constitutional amendments throughout those twenty years.7 The legislative authority to initiate constitutional change in Florida is broad. It has been used frequently. Florida legislators have intro- duced 695 amendments or revisions since the adoption of the 1968 constitution . Of this total, thirty-one have been placed on the referen- dum ballot.9 Twenty have been adopted by the electorate." It has been said that a state constitution "should be a generic document characterized by clarity, brevity, and stability that embodies timeless principles of government.""' If this is true, then either the Florida Legislature is exceedingly adept at discerning "timeless principles" or, more likely, some of the legislative proposals for constitutional change 2 fall somewhat short of timelessness.1 4. FLA. CONST. art. XI, § 2. A joint resolution was introduced in the 1977 legislative session by Representative Frank Williams of Starke which would have amended this section of the constitution to require that the work product of the Constitution Re- vision Commission be presented to the legislature rather than directly to the electorate. However, the proposal was not enacted. Fla. H.R.J. Res. 1998 (1977). 5. The constitution revision process established by article XI, section 2 "was patently designed to bypass input from the legislative branch." 343 So. 2d at 23. In contrast, the proposal by the Constitution Revision Commission in 1967 was altered considerably by the legislature before it was placed on the referendum ballot in 1968. The 1965 com- mission was created by the legislature and had no constitutional status. See Sturm, supra note 3, at 592. 6. FLA. CONsr. art. XI, § 2. 7. FLA. CONsT. art. XI, § 1. 8. Report and Recommendations of Attorney General Robert L. Shevin to the 1978 Constitution Revision Commission 234 (June, 1977). 9. Id. 10. Id. 11. Report and Recommendations of Attorney General Robert L. Shevin to the 1978 Constitution Revision Commission (June, 1977) (Letter of transmittal from Attorney General Robert L. Shevin to Commission Chairman Talbot D'Alemberte at 2). 12. For example, one amendment introduced by Senator Pat Thomas of Quincy and endorsed by the 1975 legislature would have added section 10 to article IV of the con- stitution, creating a "Capitol and Mansion Commission" to "establish and maintain a basic plan or scheme for the furnishing, decorating and alteration of the governor's mansion and the capitol building complex .... ." Fla. S.J. Res. 999 (1975). This pro- posal was defeated at the polls in 1976. Florida Secretary of State, Tabulation of Official Votes, Florida General Election, Nov. 2, 1976. Similarly, a proposal introduced in the 1977 legislative session by Representative Clark Maxwell of Melbourne would have added section 19 to article III of the constitu- tion, establishing legislative salaries constitutionally at the present level of $12,000 for the rank and file and $15,000 each for the Senate President and the Speaker of the 19771 LEGISLATIVE AMENDMENTS Presumably, these legislative proposals are subjected routinely to the same debate and the same scrutiny that are expected to characterize the work of the current revision commission. Presumably, the people of Florida will be told exactly what they are deciding when they vote on constitutional amendments drafted by the legislature. But often the debate and the scrutiny of legislative proposals for constitutional change are not all that they should be. And legislative efforts to amend the state constitution frequently do not inspire the public attention that accompanies a full-scale revision. There are no real guarantees, constitutional or otherwise, that Florida voters will be sufficiently informed about the potential impact of constitutional changes proposed by the legislature. This insufficiency is illustrated all too well by the recent decision of the Supreme Court of Florida in Smathers v. Smith. 13 The Smith decision offers compelling evidence that change is needed in the way constitutional change is pursued by the Florida Legislature. Additional restrictions should be placed on the legislative power to initiate alterations in Florida's fundamental charter. That power should be checked and limited constitutionally so that changes en- dorsed by the legislature will be more consistent with the timeless purposes of a constitution. And more stringent requirements should be added to the constitution to assure the people adequate notice of the contents and the foreseeable consequences of any constitutional change initiated by the legislature. Procedures for constitutional revision should allow an orderly accommodation to emerging popular needs. At the same time, such procedures should encourage constitutional stability and discourage the use of the fundamental law for essentially statutory purposes. Timelessness will often lie in the eye of the beholder. And it is difficult at best to maintain the necessary constitutional balance between change and constancy. In Florida, the actions of the legisla- ture are crucial to the preservation of this precarious balance. For this reason, Smathers v. Smith merits careful and considered attention by all those interested in constitutional change. II. THE RESOLUTION On June 4, 1976, the Florida Legislature passed and sent to House of Representatives. Fla. H.R.J. Res. 1252 (1977). This resolution was not adopted by the legislature. Such proposals would seem to be more appropriate for placement in the statutes than in the state constitution. 13. 338 So. 2d 825 (Fla, 1976), 750 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol.5:747 Governor Reubin Askew eighty-three pieces of legislation. Among the many measures approved on that final day of the annual legisla- tive session was the Committee Substitute for Senate Joint Resolutions 619 and 1398.14 Passage of this resolution received relatively little attention at the time.
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