Advisory Opinion of Governor Request of November 19, 1976 (Constitution Revision Commission), In re

• Decision Date: 19 November 1976
• Citation: 343 So.2d 17
• Parties: In re ADVISORY OPINION OF the GOVERNOR REQUEST OF
• Court: Florida Supreme Court

Page 17

343 So.2d 17

In re ADVISORY OPINION OF the GOVERNOR REQUEST OF NOVEMBER 19, 1976 (CONSTITUTION REVISION COMMISSION).

No. 50611.

Supreme Court of Florida.

Feb. 15, 1977.

John E. Mathews, Jr., and Jack W. Shaw, Jr., of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, and Donald M. Middlebrooks, Orlando, Gen. Counsel for the Governor, for Reubin O'D. Askew, Lew Brantley and Donald Tucker.

Thomas H. Barkdull, Jr., Miami, amicus curiae.

Richard T. Earle, Jr., of Earle, Earle & Forizs, St. Petersburg, amicus curiae.

Jon L. Mills and R. Lee Andersen, Gainesville, for Center for Governmental Responsibility, amicus curiae.

Edward J. Atkins, Miami, President, Louis de la Parte, Jr., Tampa, Chairman, Fla. Constitution Committee, and William B. Wiley, Asst. Staff Counsel, Tallahassee, for The Florida Bar, amicus curiae.

Robert L. Shevin, Atty. Gen., and James D. Whisenand, Asst. Atty. Gen., for amicus curiae.

Chesterfield Smith and Martha W. Barnett of Holland & Knight, Lakeland, for The League of Women Voters of Fla., amicus curiae.

The Honorable Reubin O'D. Askew

Governor, State of Florida

The Capitol

Tallahassee, Florida

Dear Governor Askew:

We have the honor to acknowledge your communication of November 19, 1976 requesting our advice, pursuant to Article IV, Section 1(c) of the Florida Constitution and Rule 2.1(h) of the Florida Appellee Rules, in regard to your executive powers and duties relative to the Constitution Revision Commission authorized by Article XI, Section 2 of the Constitution. Omitting its formal parts your letter reads:

'The Florida Constitution, 1968 Revision, was adopted at the general election held on November 5, 1968, and became effective on January 1, 1969. Article XI, Section 2, quoted in full below, established by constitutional mandate a Constitution Revision Commission:

(a) Within thirty days after the adjournment of the regular session of the legislature convened in the tenth year following that in which this Constitution is adopted, and each twentieth year thereafter, there shall be established a constitution revision commission composed of the following thirty-seven members:

(1) the attorney general of the state;

(2) fifteen members selected by the governor;

(3) nine members selected by the speaker of the house of representatives and nine members selected by the president of the senate; and

(4) three members selected by the chief justice of the supreme court of Florida with the advice of the justices.

(b) The governor shall designate one member of the commission as its chairman.

Vacancies in the membership of the commission shall be filled in the same manner as the original appointments.

(c) Each constitution revision commission shall convene at the call of its chairman, adopt its rules of procedure, examine the constitution of the state, hold public hearings, and, not later than one hundred eighty days prior to the next general election, file with the secretary of state its proposal, if any, of a revision of this constitution or any part of it.

Pursuant to this section, the Governor has the express duty to select fifteen members of the Constitution Revision Commission and to designate its chairman, who in turn will convene the Constitution Revision Commission.

Due to an apparent conflict between Section 2 of Article XI and Section 3(b) and (d) of Article III, Section 5 of Article VI and Section 5 of Article XI, I am uncertain as to when the Constitution Revision Commission should convene and undertake its assignment, and therefore, when I should select fifteen members and designate the chairman. Intimately connected therewith is the question of when the final report of the Constitution Revision Commission is to be filed with the Secretary of State and whether it is to be submitted to the electors at the general election in November of 1978 or 1980.

The apparent conflict can be illustrated by a review of the respective sections of the Constitution referred to above. Article III, Sections 3(b) and (d), require the Legislature to convene its regular session on:

. . . the first Tuesday after the first Monday in April of each odd-numbered year, and on the first Tuesday after the first Monday in April, or such other date as may be fixed by law, of each even-numbered year . . .

to continue for not more than sixty consecutive days. At present there is no law fixing another date for the regular session of the Legislature in even-numbered years. Likewise, Article VII, Section 5, mandates that:

(a) general election shall be held in each county on the first Tuesday after the first Monday in November of each even-numbered year . . .

Finally, Article XI, Section 5, requires

(a) proposed amendment to or revision of this constitution, or any part of it, shall be submitted to the electors at the next general election held more than ninety days after the . . . report of revision commission is filed with the secretary of state . . .

If the quoted sections are interpreted to require the Constitution Revision Commission first to convene after the adjournment of the 1978 regular session of the Legislature ('the tenth year following that in which this constitution is adopted'), then its proposed revisions, if any, apparently should be submitted to the electors at the general election in November of that same year. Such a time frame appears to be a practical impossibility. If the Legislature convenes, as now required, on April 4, 1978, then the regular session will probably adjourn about June 3, 1978. Thus, if the Constitution Revision Commission is not convened until the 1978 Legislature adjourns, then the earliest date it could convene would be after June 3, 1978, but before July 3, 1978. But Article XI, Section 2(c) requires the Constitution Revision Commission to file its proposals with the Secretary of State at least 180 days prior to the general election in November of 1978, or on or before May 11, 1978.

It is of course theoretically possible to accomplish the constitutional revision envisioned by Article XI, Section 2, completely within the calendar year of 1978. However, to do so would require affirmative legislation providing for an early, regular legislative session in 1978 pursuant to Article III, Section 3(b). Additionally, advance preparation would obviously have to be undertaken by a legislatively established revision commission, or committee, or some other entity designated by law for that purpose. No such steps have been taken by the Legislature; indeed, no legislative implementation of the constitutional provisions relating to the Constitution Revision Commission are mandated by the Constitution.

It has also been suggested to me by constitutional scholars that Article XI, Section 2, can possibly be construed to require the Constitution Revision Commission first to be convened at any time during 1978 so long as it is convened no later than thirty days after adjournment of the regular session of the 1978 Legislature. Under such circumstances, its proposals, if any, would then be presented to the electors for acceptance or rejection either at the general election in November of 1978, which would require the simultaneous meetings of the regular session of the 1978 Legislature and the Constitution Revision Commission, and thus as a practical matter prevent legislators from serving as members of the Constitution Revision Commission contrary to the obvious constitutional intent that at least some present members of the Legislature do so; or at the general election in November of 1980, which to me seems contrary to the manifest constitutional intent that the people have an opportunity to review the Constitution at the general election held exactly ten years after its adoption at the general election held in November of 1968.

What otherwise appears, when viewed in isolation, to be the plain language of Article XI, Section 2, thus presents a serious and perhaps irreconcilable conflict with other sections of the Constitution when the document is considered as a whole. Faced with such ambiguities or conflicts, and in order to properly discharge my constitutional duties, I ask this Court to interpret such language so that it harmonizes so far as possible the related sections and effectuates the intent of the framers and the people adopting the Constitution.

Each of the two alternative constructions above outlined when considered in light of the task to be accomplished seem to me to be wrong, impractical and improper. If time constraints are imposed on the mandated constitution revision, such restraints will be both counterproductive to the sound deliberation essential to proper constitutional revision and contrary to the manifest intent of the people as expressed in the Constitution. The Constitution itself specifically indicates that the Constitution Revision Commission must be given broad time parameters for its work so as to foster a thorough and cautious review; the Constitution Revision Commission must have the opportunity to seek the advice and counsel of laymen, academicians, legislators, public officials, lawyers, judges and interested citizens, to hold the required public hearings, and to timely file its report with the Secretary of State.

A feasible alternative interpretation suggested to me by other constitutional scholars is that the members of the Constitution Revision Commission be appointed promptly after the adjournment of the 1977 Legislature and that the Constitution Revision Commission be convened at the call of its chairman within thirty days following the adjournment of the 1977 regular session. It would then have the balance of that year and the early part of 1978 in which carefully to consider constitutional revision and to timely present its proposal, if any, for a revision. Under such an interpretation, the electors would have at least 180 days before the general election in November of 1978 to decide whether to accept or...