Becker & Poliakoff

After 20 Years, Constitution Revision Group Faces New Hurdles, Politics

After 20 Years, Constitution Revision Group Faces New Hurdles, Politics

When 37 Floridians gather next year to develop proposed amendments to the state’s constitution, they will face obstacles their predecessors didn’t.

The Constitution Revision Commission, a body that comes together every 20 years to draft amendments that go straight to the ballot, will see its third iteration in 2017-18. For the first time, the commission’s proposed amendments will require 60 percent of the statewide vote to pass, rather than 50 percent.

And unlike the commission that met in 1997, this group will be nearly entirely made up of appointees chosen by Republican politicians.

The governor picks 15 members, the leaders of the state House and Senate each choose nine, and the chief justice of the Florida Supreme Court names three. The last seat is always taken by the state attorney general.

Because Gov. Rick Scott, Senate President Joe Negron, Speaker of the House Richard Corcoran and Attorney General Pam Bondi are all Republicans, the commission might have a more difficult time than the 1997 group reaching compromises that appeal to the whole state’s population.

The 1997 commission, made up of bipartisan appointees, sent nine proposed amendments to the ballot, and voters approved eight of them. But the commission that met in 1977, which was dominated by Democrat-appointed members, saw zero of its eight proposals pass.

“I believe that we had a very thoughtful commission and a commission that tried to be as nonpolitical as possible,” said Stephen Zack, a Miami partner at Boies Schiller & Flexner who served on the 1997-98 commission. “Now, I don’t believe that was always achieved … but when you have both chambers and the governor the same party, of course you’re going to have some issues there that we didn’t have to face.”

Zack said the 1997 commission also bolstered its ballot success by requiring that 60 percent of the commission vote to approve each recommendation before sending it to Floridians, who at that time only needed to pass amendments with a 50 percent vote.

Applicants to this year’s commission said they hope to draw lessons from the two previous groups so they can be as effective as possible in creating lasting, meaningful change for the 20 million residents of the state.
“If you go for changes that are too controversial, the likelihood of getting passage diminishes,” said Fort Lauderdale attorney Alan Becker, a founding shareholder of Becker & Poliakoff and an applicant for the 2017-18 commission. “Getting a change to the constitution is difficult, and it should be.

Constitutions need to have a degree of flexibility, but they’re supposed to endure. So one of the big lessons is that you have to approach it with humility.”

Becker said one goal of the commission members, who will be chosen early next year from more than 100 applicants, should be to draw as many people as possible to the public hearings the group will hold across the state before its May 2018 deadline for proposed amendments.

Florida Bar President Bill Schifino, who also applied for one of the 37 seats, has led an effort to educate citizens about the Constitution Revision Commission process. He agreed with Becker that listening and dialogue will be the keys to coming up with compromises that stand a chance of earning 60 percent of the statewide vote.

“I think our leaders are good thought leaders and I’m hoping whatever political persuasion their appointees are, my hope is that they will all be thoughtful, even-handed, and that they will take their time listening to all sides of every issue,” said Schifino, a managing partner at Burr & Forman in Tampa.

Schifino said the commission is likely to discuss education, gun control and an ever-popular topic among bar members: the independence of the judiciary.
“I would love to find a way where we were self-funded and where we didn’t have to go through the process year in and year out,” he said. “It’s very challenging. Our judges haven’t had raises in 11 years. Our state attorneys and our public defenders, are, in my opinion, significantly underpaid.”

West Palm Beach attorney Michael Napoleone, who helped educate citizens about the commission as a past chairman of the Florida Bar’s Constitutional Judiciary Committee, agrees some commission members will likely come in with ideas to “shake up the judicial branch.” Term limits for judges is one controversial issue.

But Napoleone, a shareholder at Richman Greer, worries about the chances of the commission working to protect the judicial branch when Florida Supreme Court Chief Justice Jorge Labarga is only allotted three appointees. (That doesn’t mean lawyers don’t have other paths in—Becker and Schifino both applied to the governor.)

“I believe all three branches should have an equal number of appointments to the commission,” Napoleone said. “I haven’t heard a good argument as to why the chief justice gets three and there’s nine, nine and 15 for the others.”

If anyone wants to change that system, they’ll have to propose an amendment to the constitution. But with a Constitution Revision Commission mostly appointed by the executive and legislative branches, Napoleone said it doesn’t seem likely the group would take it up.