Transcripts of meetings, 1977-1981, v. 1. Article I

STATE OF GEORGIA SELECT COMMITTEE ON CONSTITUTIONAL REVISION
Transcripts of Meetings 1977-1981



:OMMITTEE MEMBERS:
;EORGE BUSBEE GOVERNOR CHAIRMAN
:ELL MILLER LIEUTENANT GOVERNOR
'HOMAS B. MURPHY SPEAKER. HOUSE OF REPRESENTATIVES
lOBERT H. JORDAN CHIEF JUSTICE. SUPREME COURT
. KELLEY QUILLIAN CHIEF JUDGE. CQURT OF APPEALS
~ICHAEL J. BOWERS ATTORNEY GENERAL
~ARCUS B. CALHOUN SENIOR JUDGE. SUPERIOR COURTS

SELECT COMMITTEE ON
CONSTITUTIONAL REVISION
ROOM 23H 47 TRINITY AVENUE ATLANTA. GEORGIA 30334
404/656, 7158

COMMITTEES MEMBERS:
AL HOLLOWAY SENATE PRESIDENT PRO TEMPORE
JACK CONNELL SPEAKER PRO TEMPORE
ROY E. BARNES CHAIRMAN. SENATE JUDICIARY COMMITTEE
WAYNE SNOW. JR. CHAIRMAN. HOUSE JUDICIARY COMMITTEE
FRANK H. EDWARDS SPECIAL COUNSEL
J. ROBIN HARRIS EXECUTIVE DIRECTOR
MELVIN B. HILL JR. ASSISTANT EXECUTIVE DIRECTOR

MEETINGS HELD ON CONSTITUTIONAL REVISION

COMMITTEE TO REVISE ARTICLE I

COMMITTEE
Full Committee Subcommittee Subcommittee Subcommittee Subcommittee Subcommittee Full Committee Full Committee

DATE
September 20, 1979 Octo.ber 4, 1979 October 5, 1979 October 25, 1979 October 26, 1979 November 9, 1979 November 9, 1979 November 30, 1979

# OF PAGES
44 144 141 132 142
32 148
65

STATE OF GEORGIA
COMMITTEE TO REVISE ARTICLE I of the
CONSTITUTION OF GEORGIA
Room 40l-A State Capitol Atlanta, Georgia Thursday, September 20, 1979 10:00 a.m.
BRANDENBURG & HASTY
SCIENTIFIC REPORTING 3715 COLONIAL TRAIL, DOUGLASVILLE, GEORGIA 30135
942-0482 DEPOSITIONS - ARBITRATIONS - CONVENTIONS - CONFERENCES

PRESENT WERE:

REP. ALBERT THOMPSON, Chairman

MR. CHEATHAM E. HODGES, JR.

REP. BETTY J. CLARK

MS. LUCY MCGOUGH

MR. ALBERT PEARSON

REP. SIDNEY J. MARCUS

MR. HOYT H. WELCHEL, JR.

MR. JESSE G. BOWLES

MR. F. H. BONEY

JUDGE ROMAE T. POWELL

REP. JOHN SAVAGE

MR. HILLIAN D. BARKER

MS. MILDRED B. BELL

MS. MYRTLE DAVIS

('
"

MRS. VITA R. OSTRANDER

MR. ROBIN HARRIS

II .:

MR. MELVIN HILL

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MR. MICHAEL HENRY

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PRO C E E DIN G S

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CHAIRMAN THOMPSON: Ladies and gentlemen, I am going

to convene the meeting. I'm sort of peculiar, I like to start

.; as near on time as possible and take as little of people's time

5 as necessary, confine it to business and get on with it and

() then we can get out of here as quickly as we can.

I think the first thing we ought to do, since many

, of us don't know each other, is to ask that everyone here stand
() Ii and say who you are, give some sort of idea of what it is that

1u we do.

}

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My name is Albert Thompson, I'm a lawyer, I live in

I.' ~_ Columbus, Georgia. I am also a member of the General Assembly

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. ~lF~~))rC~~~, n '\ and have been for some fourteen years. If there are any

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_/ 11 questions you would like to ask of me, you may do so, but that

I ';,,., basically is all that there is to me. Ignore this gentleman
~~
ill ~ right behind me and we'll start over on the wall with Sidney ,)
~1;
]"7 e,i Marcus.

Sidney, could you start?

19

REPRESENTATIVE MARCUS: My name is Sidney Marcus and

-"10 I I have been in the General Assembly with Albert for eleven of

21 ,i his fourteen years and if I do anything else I don It know what

11 :it is because this overwhelms me. I feel like I devote all my

time to the General Assembly I'm in the construction business

.'.1 i and I'll be glad to respond to any questions.

MR. WHELCHEL: I'm Hoyt Whelchel, I practice law in I

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----

1

4

Mountrie.

JUSTICE BOWLES: rim Jesse Bowles, I'm a member of
Ii the Supreme Court of the State of Georgia and before that I

practiced law for 32 years in Cuthbert, in southwest Georgia.

CHAIRI~N THOMPSON: That's my neighbor, he lives

next door to me almost.

7

MR. HENRY: I'm Mike Henry, I'm with the Committee

,-; staff and Mel and I will be happy to help y'all in any research
()
you need.

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MR. BARKER: I'm Hillian Barker with the Retired

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II ~ Workers Department of United Automobile Workers Union. For

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four years I have been in that capacity, prior to that for

ClA"'f'!:f) _,I
~ 29 years in Local 10 out at Doraville.

MR. HODGES: I'm Cheatham Hodges, Executive Director

15 ;~ of the Georgia Catholic Conference and a businessman in Augusta.1

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REPRESENTATIVE CLr~RK: I'm Betty Clark, I serve in

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]78 the Georgia House of Representatives, I just finished my

18 seventh year and also Chairman of the Dekalb County House

19 I
!, delegation.
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20

MS. MCGOUGH:

I'm Lucy McGough and I teach law at

Emory University and a member of the State Bar and I also

practice. My areas are criminal procedure, family law and

juvenile law.

MR. PEARSON: I'm Al Pearson, I teach constitutional
"'",
law and criminal procedure at the law school in Athens. I have

been there for five years. I am a member of the Georgia Bar

and Alabama Bar.

MR. CARLISLE: I'm Doug Carlisle, a lawyer with the

Legislative Counsel.

REPRESENTATIVE SAVAGE: I'm John Savage, a dentist

here in Atlanta and also am privileged to serve in the House.

MS. BELL: I'm Mildred Bell, I am a professor of law

j ,)

at Mercer. My area is federal taxation.

MS. DAVIS: My name is Myrtle Davis, I am immediate

III past President of the League of Women Voters for Atlanta-Fulton
,-'
II County and I am now co-director of leadership.

l .~

MRS. OSTRANDER: I'm vita Ostrander, I'm Chairman of i

I

; the State Legislative Committee for the National Retired Teacher~

prOfeSSiona~ I);; and the American Association of Retired Persons. My

j ~ ,:, background is social administration, having been with the

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/I) ;\National Staff of the American Red Cross.

I7

MR. HILL: And I am Melvin Hill with the staff of the

Select Committee on Constitutional Revision.

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CHAIRMAN THOMPSON: I'm going to apologize -- we misse~

.'1,1 this gentleman.

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MR. BONEY: F. H. Boney from Summerville, Georgia,
,)
general practice of law.

CHAIRMAN THOMPSON: Okay, Mr. Boney, thank you.

I'm going to apologize in advance. I don't always

remember names and faces as well as I shoUld._~ ~~_ is__goin~ ~~_~

1---
I take us awhile to get to know one another.
I
going to calIon, or introduce to you, Mr.

l'ACE

6
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I

So with that, I'm

Robin Harris, who

is the Chairman of the Select Commission on the Revision of

4 the Constitution. He's in charge of the whole thing. We just

5 have Article I, but he!s responsible for all the Articles and

I'm glad he"s with us this morning and I want him to give us

an overview of what i i: is we're doi.ng.

Mr. Robin Harris.

')

MR. HARRIS: Mr. Chairman, the Select Committee on

to Constitutional Revision is a statutory cOlnmittee, it's an

II

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arm

of

the

legislature.

It expires by the term of the Act on

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12 ~ June 30, 1982. It is composed of the Governor, the Lieu.tenant

2~~ u Governor, the Chief Justice, Chief Judge of the Supreme Court, V> Speaker, Speaker Pro Tern, President Pro Tern of the Senate and

15 ~ a couple of others.

~

16 ~
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Georgia has, in the minds of many people, for a

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17 ~ long time needed a new Constitution. We have operated under

18 one that was devised or ratified in 1945, which has been

1~ i: amended in excess of a thousand times. There is no place
i
anywhere that you can pick up the document that constitutes

the Constitution in the State of Georgia.
,)
The first effort to revise it came in a ~ecial session

in '64, started in early May, Governor Sanders called it, said 24 it would last three weeks, we adjourned sometime after July 4th

and that document was kept off the ballot by the Federal Courts

PACE 7

because at the time the House had been not reapportioned

although the Senate had.

The next effort came in '69, which resulted in the

creation of the Constitutional Revision Commission of 1969,

chaired by Governor Maddox. This Committee made its report to

the 1970 session of the General Assembly and the House, after

a week's debate passed a new Constitution which died in the

Senate for lack of time to consider it.

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It became readily apparent then that there was no

iii way feasible to revise Georgia's Constitution as a single

l, ~ document and therefore the concept evolved of rewriting it in o Cl...
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:..SVI'J ,- ::' the form that was done in 1976, that is an editorial revision
, '1\\
(LJ))r'-'''.C'!'''o ~.~ of the Constitution, to put into Articles those things that
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; belonged in the same Article and to permit the Constitution to

~ be revised on an Article by Article basis. Two new Articles

1(, {; were proposed in '78, Articles II and X. They had no
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opposition that I am aware of and under the auspices of the

Select Committee. They were put on the ballot, nobody was
1t)
I opposed to them but nobody promoted them and so they went down 20 the drain in the '78 general election because of the 36

general amendments and the 81 special amendments -- local

amendments that were on various ballots. And I think this

caused the Select Committee to sit up and take notice that

time was running out and if the Constitution was to be revised

_',

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in

the

manner_~~atwas ._p~~n_r:.~~~

they

h_~_~_.~~ _mo~e ahead_.

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The Select Committee chose you, I did not, I had

''1 i nothing to do with it. In fact, I was elected to the position

.3 of Executive Director at the same meeting that you were

4 elected by the Select Committee to be part of the Article I

~ Revision Co~nittee.

ii

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The nmnes submitted to that Select Committee came

from the Nominating COrrL.'11ittee composed of the Governor, the

~ I Lieutenant Governor, the Speaker. They are all interested.

They set a time table.

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They would like to have -- Articles II and X will be

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11 ~ resubmitted to the General Assembly in the form that they passed!

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12 :a:.' :l.on '78 The Select Committee would like to have Articles I,

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IV,

and V submitted at the 1980 session of the General

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14 ~Assembly. Yours is Article I. To accomplish this, they would
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15 .0 like to have the reconunendations from the Article Committees
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Il) ~" by December 7. They go to the Select Committee for the Select ~, z ~
17 0,-; Committee to approve and authorize their introduction and this

IS ! I would hope to have done by the Select committee by December

the 17th in anticipation of having the legislation drafted and

20 submieted in advance to the members of the General Assembly so

that nothing can come as a surprise.

It is not an easy task because you are a Committee

operating under a deadline. Now to assist in doing this, the

Select Committee authorized a full time paid staff. Melvin Hill!

is the Assistant Executive Director, he works full time. He has

PACI~

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a beautiful office in the basement of the Health Building,

where on a clear day when he looks out the window he can see

the ankles of people walking by. Mickey Henry is an assistant

as is Ms. Vickie Greenberg. I feel like Melvin probably has

information to pass around or maybe it has already been

distributed with respect to these names and telephone numbers,

7 . the location of the office.

The Office of Legislative Counsel is assisting greatly

and the Governor's Executive -- whatever they call Charlie

l!i Tidwell, Executive Counsel, has been in all the meetings.

I ~There is a subcommittee of one of the other Article committees

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~meeting next door and Charlie is with them this morning.

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This is a serious effort. The Select Committee whose

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:;; posi tions I outlined are most interested in having something

. come of these efforts. I would hope that when it is all done

Ii :, that we will have a document that an average person can pick up,

a citizen, can pick up and read and generally understand what

,,. his rights are as against the State.

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I made mention to another Article Committee Monday that

20 I felt that our present Constitution had a lot of trash in it I

::'.i land Roy Lambert said well one man's trash is another man's

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, treasure and that may well be true. There are areas where I feet

there is legislative matter in the overall document, no so much I i
in the Bill of Rights, but hopefully that which is legislative !
, l
in nature can be eliminated from th=_:~~_al ~~c~:_~t an~__~:~-=he~i

('ACE 10 rr-
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) Constitution simply contain the basic, general, broad

protections to the people and powers granted to the General

3 Assembly and the Governor.

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The Judicial Art.icle, the Local Government Article,

,- .Ii, the Taxation Article and the Education Article are all targeted
(, for 1982. So we're trying to get six in '80 and four in '82.

And if that can be a.ccomplished to a reasonable degree, then I

think the efforts that all of us put into it will be worthwhile.

Thank you.

1"

CHAIRMAN THOMPSON: Thank you, Robin.

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MR. HARRIS: Of course, in 1970, I tried to get out

1)
-

~~of

the

Bill of

Rights,

the prohibition against

slavery,

but

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SAlbert wouldn't let me.
on

14 ...

CHAIRMAN THOMPSON: I'd like to say I consider Robin

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15 ~perhaps our most distinguished Constitutional legislator. He's

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16 n~~ not in the legislature now. Modestly, he says he didn't write
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~ :": that provision but the Judiciary Committee did, but I worked

with them a bit. I don't know when he practiced law and made
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a living back in that period because I think he rewrote that
20 I almost single handed, you see. He has done a tremendous jab
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2.1 for the State of Georgia and I feel very privileged to be working

under him in this particular effort.
, ,,
Thank you again, Robin.

Let me get this out of the way. I understand that we

are authorized the same per diem and the same mileage that

PAGE 11

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members

of

the

General

Assembly

receive

for

work

for

the

State

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of Georgia. Now members of the judiciary of course have their

own set up for this ~ype thing and I understand they will be

authorized to draw on that.

In order to accomplish this, Mr. Hill needs the

mileage that each of you has in coming to the Capitol, so that

7 you can be reimbursed for that particular purpose.

I'm going to pass this around starting here and if

you would fill in your mileage, that's for the round trip, and

'I) your social security number, that will help Mr. Hill.

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The first thing I want to discuss, and this is where

I' : I really need your participation, the Bill of Rights is not a

" lengthy Bill. I had at one time thought that all of us sitting
u
as a group could go over this, the whole thing and do it, but

it has been suggested that we perhaps divide this into three

lu . sections. It is already in four sections; Section 1, Rights of

jJ : Persons; Section II, Origin and Structure of Government;

i~ Section III, General Provisions. Now we can make a decision

I') on this Recall, that is Section IV. Recall was on the last

'() ballot and seemingly was of great interest throughout the

'I state. I read I believe in yesterday's Constitution that there
, , are some eleven or twelve municipalities and county governments
"
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::.) that sort of have a movement statewide to remove a couple of

: members of the Public Service Commission under this recall

::,

i provision

that

the

people

of

the

State of Georgia have
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PAGE 12

approved. Under those circumstances I would think that they

2 are indicating that they like the recall section, they

,) approved it on a very recent ballot and t.hey are using it in the

-I- State of Georgia, so I don't know whether we ought to mess with

) I that or not. Of course, that is a decision for the Committee

6 to make. But I think the overall group ought to make that

I particular decision.

S

If we are going to have subcommittees working on

9 various sections, I think this document lends itself to three

iO different subcommittees. That would be one to work on Rights

1! f of Persons, another on Origin and Structure of Government and o "-
12 ~"' another on General Provisions. Or if you wanted to do it in
1-
5!~!.'!~ ~l two, you could do one with Rights of Persons, second Origin

!
14 ~and Structure of Government and General Provisions as a combined:
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15 'type thing. How do you feel about dividing ourselves into C?
16 ~ subcommittees? Can I get some comment on that?

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MRS. OSTRANDER: That's where the work is going to be. i

IX

CHAIRMAN THOMPSON: I would think that is where the

19 work is going to be. I would think that by dividing it into
I
20 smaller sections, the Committee would be more able to handle it.

That also would permit us to put seven or eight. people on each .., ) one of the subcommittees, which is a more manageable body, and

I think they would be able to discuss this and get more

accomplished than the entire group sitting.

Is there any objection to dividing it into -- rIll

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start with three subcommittees on those various divisions that

I spoke about. If I hear no objection on that, I am going to

: proceed to -- not at this moment, but I'm going to proceed to

I divide us into subcommittees and I will look over the group

~, and appoint chairmen of the various subcommittees. I think at

h 'this point it would be well if I asked if any of you preferred

working on one of these specific subcommittees and we can list

you with that subcommittee at this time.

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REPRESENTATIVE CLARK: Mr. Chairman, would you please

11) repeat the three subcommittees?

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CHAIRMAN THOMPSON:

c.

",
", before you?

Do you have your Constitution

REPRESENTATIVE CLARK: Yes.

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CHAIRMAN THOMPSON: If you will look in it

REPRESENTATIVE MARCUS: Mr. Chairman, if I could, I

i " know this is the document we're probably going to be working

from. I find the type very small. I don't know, maybe it's

!h just my age. If it is possible to get a copy of the Bill of

l~ Rights, of the Article we are going to use, with a larger print

'i I personally would appreciate it. 'i I

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CHAIRMAN THOMPSON: I'll ask Mr. Hill to see if he

," can't do that.

MRS. OSTRANDER: Thank you, Sidney.

CHAIRMAN THOMPSON: Some

Committee are getting old and need

1:

MRS. OSTRANDER; I'm willing to admit it.

2

CHAIRMAN THOMPSON: Betty--

3

REPRESENTATIVE CLARK: I'm looking at it now.

CHAIRMAN THOMPSON: On page 4, Article I, Rights of

5 ';1 Persons. That has Life, Liberty and Property, almost the same

6 guarantees that the Bill of Rights of the united States

7 I Constitution has in it. I think it is very similar to that.
II K I' I think most of these things are locked in pretty much because

C) I cannot see deleting these rights that are granted in this

10 particular Article from this. But I do certainly think that
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11 ~ it needs revision and perhaps needs rewriting and it needs
o
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lY ~ simplification of the language, but I certainly don't think that'
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~~ gwe ought to detract from these rights that are guaranteed to
,~
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14 ;: the people of Georgia by this particular document.
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The second would be Origin and Structure of Government~
16 ~and it has to do with Contempts, States Rights, Origin and

17 :;; Foundation of Government. Lotteries is in there, I don't know

18 I whether it ought to be.

19 "

MR. HARRIS: It's interesting that lottery is the

20 ! only Constitutional crime, murder is not. Maybe lobbying is
I

21 1

CHAIRMAN THOMPSON: I was just looking at this

lobbying.

MR. HARRIS: I find it interesting that the Constitu-

=.+ i tion mandates that the General Assembly shall c1eclary lobbying

to be a crime, but it says nothing about armed robbery or anything

else.

CHAIRMAN THOMPSON: I was looking at that lottery and
",
I also looked at lobbying in the back and whoever is on this

particular subcommittee needs to take a good look at the

lobbying. I find it difficult to deal with the fact that we've

got a Constitutional prohibition against lobbying and yet we

have statutes regulating lobbying and any of you who have been

here during a meeting of the General Assembly knows that this '. place is just jammed packed full of lobbyists.

Cheatham Hodges sitting right here is a registered

'! 'lobbyist. () MRS. OSTRANDER:

So am I.

CHAIRMAN THOMPSON: I think we need to take a 11 : realistic look at this prohibition against lobbying. Rather

\:i ,: than play games with it, I'd rather take it out of the
.,
il' i Constitution as a prohibition and have reasonable regulations
.L,-
1-' '" of lobbyists.

Now there are members of Common Cause, I believe it

l q i is, who say that we ought not to have any lobbyists at all.

.:U This I

I'm throwing out some personal theories and I don't ! I

intend to do this, I mean to sit here and chair this group rathe1

)
: than inject my thinking, but I'm just throwing out one or two

" areas. If we banish lobbyists, we are running them underground.

There is no way in the world that we can eliminate people who
-,~

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': when we go in session and prior to the time that we come up

~ here, and I don't even know if that's good. There are some I!
3 other benefits that come from lobbyists. They have certain

'! expertise in certain areas that they cormuunicate to us that

) I we would have no other way of obtaining if we did not have

(, lobbyists. So you might want to take a good look at that

7 particular provision and it might be well to get it out and
i
1\ ii recommend that it be done by statute rather than a ConstitutionarL

9 I. prohibi tion.

10

And then the General Provisions, you can see what

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Do I get any expression from any member of the

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~~~~ ~ Cormuittee who wishes to work with a particular subcormuittee? ~

MS. BELL: I would prefer to work on the second, but

15 ,:; it really doesn't matter.

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CHAIRMAN THOMPSON;

All right, your name?

17 ~"-

MS. BELL: Mildred Bell.

Ib

CHAIRMAN THOMPSON: Mildred Bell. Until we become

19 ,more familiar with each other, as we speak, will you identify

20 i yoursel ves?

Cheatham?

MR. HODGES: My name is Cheatham Hodges, I'd like to

~3 work on Section 1.

CHAIRMAN THOMPSON; Cheatham Hodges on Section I.

-, ~

REP. CLARK: Betty Clark would like to work on Section,II.

['
CHAIRMAN THOMPSON: Betty Clark, Section II.

MR. BARKER: Hillian Barker, Section I.

CHAIRMAN THOMPSON: Mr. Barker, Section I.

MR. PEARSON: Al Pearson, Section I.

CHAIRMAN THOMPSON: Al Pearson, Section I.

MS. DAVIS: Myrtle Davis, Section I.

CHAIRMAN THOMPSON: Myrtle Davis, Section I.

MRS. OSTRANDER: That's not going to leave you many

4 for the other one.

CHAIRMAN THOMPSON: That's okay. I may have to pull

: j some of you off of the various committees.
()
u if I have to, I would pull you off.
u.

I'll try not to, but
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MRS. OSTRANDER: I is my first choice.

CHAIRMAN THOMPSON: Ostrander, Section I.

MR. HILL: Section I.

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REPRESENTATIVE SAVAGE:

l 1
1? -3 to work on Section I I.

John Savage, I'd be delighted

CHAIRMAN THOMPSON: Section II.

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c)

Judge, Mr. Justice?

20
\!!

JUSTICE BOWLES: I would prefer Section I, but I

).. I will be amenable to whatever

)~
CHAIRMAN THOMPSON: Mr. Boney?

.). i

MR. BONEY: I'll take Section III since nobody seems

to be interested in that.

CHAIRMAN THOMPSON: You know

1',\G1': 18 '1----1
II suggest since no one appears to be interested in it, we might

throw it in with one of the other sections rather than have a

I separate section since there doesn't seem to be any great

interest in it.

MR. HODGES: They are general provisions, you might

(, as you go through you can incorporate them in either of the
I'
7 other two.

CHAIRMAN THOMPSON: Might be incorporated and the

9 ,entire group might want to look at Section III. Suppose we

to divide ourselves really into two basic ones, one to deal with

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7-
Jt ~ Section I and one to deal with Section II and we'll worry about
n

12 ~Section III as we go along, the General Provisions.

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MR. BONEY: I' 11 work in Section I then.
CHAIRMAN THOMPSON: Section I, Mr. Boney.

15 ,~,

REPRESENTATIVE CLARK: Mr. Chairman, it seems to me

16 3with the content of Section III, it looks as if it could a 7
17 ~easily be incorporated in with Section II, Origin and Structure

J8 of Government, even though it is General Provisions, it seems

19 to go kind of hand in hand with -- I don't know, that may not

20

CHAIRMAN THOMPSON: Could we do that, combine

:' I 1 Sections II and III as one subcommittee. Is that favorable?

Does the group go along with that?

We have a number of absentees. We can spread them

2-+ out among the group. The Chairman is going to reserve the

right to select chairmen of the subcommittees. I'm going to do
i.;. _

11
that because before we appoint a chairman of a subcommittee

I'm going to want to call him, talk to him, find out what his

! time limitations, if any, are, whether he's going to be able to

t meet the demands of calling the meetings and having them. Is

that agreeable?
i
MR. WHELCHEL: Mr. Chairman, may I express a preferencr'

for Section I but I'll be glad to serve on whatever you like.
I
CHAIRMAN THOMPSON: Will you call off the names and !

the preference and let's see if we have them all?

10

MR. HILL: Okay. Mr. Barker, Section Ii Ms. Bell,

.J
Ii ~ Section II; Mr. Boney, Section I; Mr. Bowles, Section I;
')

" ~Representative Clark, Section II; Ms. Davis, Section I; Mr. ".

.~
',.t

Hodges I

Section I;

Mrs.

Ostrander,

Section I;

Mr.

Pearson,

I
i+ ,- Section Ii Representative Savage, Section II; Mr. Whelchel,

1" Section I .

.J

ii, "/

CHAIRMAN THOMPSON: This is Judge Romae Powell of

I <l
:; the Juvenile Court of Fulton County. She is a graduate of

I; Howard University, she has been a Juvenile Court Judge for

j ') :, some ten or twelve years. She is the past President of the
i
.2(; ;I Council of Juvenile Court Judges. We were classmates at Howard
'III'
,~! ': Law School, that's the reason I know as much about her as I do.

Judge Powell, we have just been dividing ourselves I

i

I -~\
1.. 1

'
I

into

subcommittees.

Have you familiarized yourself with Article

'I in any way? We've decided we will have two subcommittees

I

i

~') working, one will work with Section I~f__~r_1:i=~~~!__ a~d _~~e~'th~~

tL._____

. - --.- ..---------

rr-------
Ii will work with Section II and III of Article I. I

PAGE 20 DO you have

a preference as to which of those you would like to work with?

I
3 :1 I hope we'll be able to give you your preference.

4

MS. MCGOUGH: While she's looking, Lucy McGough, I

5 have no preference, you can put me --

CHAIRMAN THOMPSON: Could we put you in Section II?

7

MS. MCGOUGH: That's fine.

CHAIRMAN THOMPSON: Let's see now, are we pretty

l) ,"
evenly

I'm impressed with the fact that we have to many

10 competent people from law schools who are working with this
i-.',)
11 ~group. Are they pretty well divided between Section I and
"~,
12 ~ Section II?
;--
MR. HILL: We have eight in Section I -- you mean the

1< ~ attorneys?
<'
r

;"j

CHAIRMAN THOMPSON: No, I was thinking about the law

:J
1() 0:,

;c,';school professors, are they pretty well divided?

z.

17

j
::.:l

MS. BELL: There are three of us, so we can't be

I~ divided equally.

19

CHAIRMAN THOMPSON: One and a half on each.

"-''\,

Do we now have two on one and one on one?

MS. MCGOUGH: Two on one and one on one.

JUDGE POWELL: I'd like to work with II.

~,1 I
Judge.

CHAIRMAN THOMPSON: You will work with II. Thank you,

I think we're pretty well divided up on those. The

PACE 21

--"1
I

most important thing we're going to decide today is meeting

I

I

I

I dates. I had thought -- we have a pretty pushy time schedule !

I

before us because we're going to have to complete our work by

December 7th. That would leave time, if we thought we could do

) it for a couple of meetings in October, couple of meetings in

() ,November and perhaps a last meeting somewhere around December

7 the--

REPRESENTATIVE MARCUS: Are you talking about the

q full committee now or subcommittees?

!n

CHAIRMAN THOMPSON: Well we're going to see what we

:J 7.
II ~ have to do in that area. When is the meeting at the University

12 ~of Georgia, December the 4th and 5th?

~;~'"'''' ::

REPRESENTATIVE SAVAGE; I think that's the 10th and

~

1+- the 11th.

I')"

CHAIRMAN THOMPSON: Ninth, tenth and eleventh, so

<."

:;;

Ii, en that's after. That means we could meet, December 3rd is on

.l

l' ~ Monday, so we have that Monday, Tuesday, Wednesday, Thursday

IS and our report is supposed to be in on Friday. We could meet

J) for a final meeting --

JUDGE POWELL: State Bar is that week.

CHAIRMAN THOMPSON: Huh?

JUDGE POWELL: State Bar is that week.

CHAIRMAN THOMPSON: State Bar is that week?

MR. HARRIS: Fifth, sixth and seventh.

CHAIRMAN THOMPSON: That doesn't leave us very much,
Ii

PAGE 22

it? I'm thinking now Dnly about the final meeting, I'm

2 not "thinking about the meetings before that. We're going to

I] have to have a last meeting for the approval of whatever draft
,I
4 Ii we are going to give to the Committee on the 7th of December.

5

MR. HODGES: What is the first of December?

CHAIRMAN THOMPSON: The first of December is on a

7 ! Saturday.

8

MRS. OSTRANDER: What about Monday?

l) I

CHAIRMAN THOMPSON: Monday the 3rd of December.

lU Would something like the 3rd of December or the 4th of December

"z 11 ~let's do this, days of the week, I think we ought to get that
o "w-
12 ~out of the way. I personally prefer a Thursday or a Friday

;-

~~A.~~_.

Z
~

m

e

e

t

i

n

g

.

That might not meet with everyone's approval.

'"

JUDGE POWELL: It's better for me in my court because

i 5 .~ we meet Monday through Wednesday and sometimes Thursdays
""=">
It> 3'" except that we have notice at least one and one-half month ahead oz.,
1'7 ~ of time.

18 ,iI !I

CHAIRMAN THOMPSON: Usually I have to meet some kind

19 'of court calendar on Monday morning and I think that is true

:.?o with most attorneys. Most court calendars are called on
!
2! Monday morning and we work them out as we go on through the

week. That's the reason I personally prefer the latter part of , ; the week for meetings. Is there any expression on that?

MR. HODGES: I have three national meetings for octobe~,

.2') November and December and all of them have been moved up to Mondajy

1'AGE 23

and Tuesday and traveling on Wednesday to try to avoid conflict.
CHAIRMAN THOMPSON: So Thursday or Friday would be better for you.
MR. HODGES: Thursday or Friday would be good, yes. MS. BELL: I would like to prefer Friday. Thursday

is really most inconvenient for me. CHAIRMAN THOMPSON: Friday will be the better day?

That's fine with me.

!)

MS. MCGOUGH: That's fine with me.

MR. PEARSON: Friday is good with me.

MRS. OSTRANDER: I have a couple of problems but I

l:~l.-b~\W)!J\(n)d-)";,,,,,"

"
: would

suggest

if

you

come

up

with

a

date

then

let

me

see

what

~::=::::::::-/J

II I can do with it. I'll have to be gone one week in October

I',

CHAIRMAN THOMPSON: We'll never find a day really that

ii' ',is going to satisfy everyone. I would like to satisfy the

j' :;majority if there is any way we can do that, we will try and

have our meetings on Friday. I don't think we need to have

1'.1 any two day meetings because we're going to sit down and work. 'lJ If we have to say in here four hours on a particular occasion ~' I we'll do that and we will concentrate and we'll try to keep

" "right on the path. Basically we'll have our meetings on Friday.

23 We've got October and November --

':.>-l

MR. HILL: Mr. Chairman, would you like to set then i

" 'the last meeting then for Friday the 30th of November?

_____--1

- -- -------P-A--G--E- ----2-4- ------1
CHAIRMAN THOMPSON: Friday the 30th of November, how I

" Ii does that strike you?
I
1
MR. HARRIS:

Unless you finish sooner, of course.

CHAIRMAN THOMPSON: We can set that meeting for

') Friday, December the 7th, they didn't say we had to get it in

6 at eight o'clock in the morning.

'7 I

JUDGE POWELL: That's the state bar.

.'\ i

CHAIRMAN THOMPSON:

c
;I

'Ii Friday,

November

30th.

State bar is that day.

Okay,

10

MRS. OSTRANDER: I will have difficulty with that. I

II ~ have a Regional Social Security thing.

o

.~ ....

12 .~

MR. HODGES: From Saturday until Wednesday of the

,11.,
..

.3~'!I'_ 0 next week I' 11 be in Washington.

~

14

CHAIRMAN THOMPSON: But you could meet on Friday the

150 30th of November.

l1

"~'

16 g

MR. HODGES: Yes ..

Cl
z

<
17 ~

CHAIRMAN THOMPSON:

Could we make our meeting, the

lK : final meeting, Friday, November the 30th? We're going to have

19 I to pull everything together by that time.

20

MR. HILL: Is ten a.m. a good time?

CHAIRMAN THOMPSON: I think ten a.m. is a good time.

For those of us who have to travel, we have to get up pretty

l' 1

early to get here by ten.

MR. HARRIS: Not with that new road.

25

CHAIRMAN THOMPSON: That new road only cuts off a

I couple of minuts and makes it more pleasant.

P-A--G-E------2-5- - I
Is ten o'clock

a.m. a good time?

(No response.)

Okay, ten o'clock a.m. final meeting.

If the subcommittees meet, do you think it is

i, necessary for the full committee to meet? What I'm thinking is

this. If we leave it to the subcommittees to meet, then the

<' full committee will only need to meet for a couple of times q to consider the final, complete work of the subcommittees.

j()

JUSTICE BOWLES: Let me ask this question. Will we

~l t get any reports, interim reports or details from each o c.. u,

~?V!)4 I) ; committee crossing over to the other committee?

(,'J)r""'" ,

CHAIRMAN THOMPSON: We can I think Mr. Hill will be

__ .......... .-.,.,/

II ;= able to o ",
I~

JUSTICE BOWLES: Because we're going to need to be

:",~ apprised at least of what they are doing.

/-

Ii

CHAIRMAN THOMPSON: Right. All right, Mr. Hill, I

certainly think that's completely fair and that's the way it 19 I should be done.
"'Ii,
Should we leave it to the subcommittees? I mean to

get them appointed within a week. Should we leave it to the ~--:' i subcommittees to decide their meeting schedules?

MR. PEARSON: Yes.

CHAIRMAN THOMPSON: All right. Then I will work with

,Mr. Hill, even if I have to come back up here one day next week

I-~~~--~

-- ~

-~

---~--- --~~----~-

PAGE

; and we'll sit down and get the subcommittees out with the

2 chairmen. Now I prefer talking to the chairmen before they are

3 appointed, to be sure we are appointing someone who will be able

4 to function. Everyone does not have the same time limitations.

s

REPRESENTATIVE MARCUS: Mr. Chairman, will the full

6 , committee though, in addition to the interim reports it gets

7 from the sUbcommittee, will it have an opportunity to get

,lI' together to discuss what it is that the full committee is about

l) : to do prior to November 30th?

i ()

CHAIRMAN THOMPSON: I think we ought to have a

ezJ
II ~meeting of the full committee to really make a rough draft of o 0w
12 ~this and when we come together on November 30th merely for the

t-
--- l~f.IIlll"I!D 3s; purpose of approving a completed and polished draft.

14 >,
~

MR. HARRIS: As I envision it, the two subcommittees

:<r

15 ~will make proposals. They will be disseminated to everybody.

r!\ I~l:l At that point the full committee will meet and by whatever Q
<
17 7process you elect, determine on a final draft or changes that

IX Ii you might want made as a full committee, which would then be
I,
Ii
19 'put' in that final form by the staff, sent to you prior to your
20 last meeting and you will have it, you could have already made
i
iwhatever decisions you would have to make as to liking or not

liking whatever was in there, so that at the last meeting, you

would really be operating on the final draft of a proposal

that you had all gotten together and worked on following the

subcommittee reports. Now that's the way I envision it.

The staff stands ready to help you in any way possible.

CHAIRMAN THOMPSON: We ought to have a meeting of

the full committee, perhaps two weeks before -- and I'm saying

two weeks before because the Thanksgiving weekend comes in

~ the week ahead of that, so if we avoided the Thanksgiving

weekend, that would mean we would have to be up here on Friday,

November the 16th.

MS. MCGOUGH: I have a conflict.

MR. PEARSON: Well if we're going to have an interim

il meeting, I don't see why we're going to have it that close to

\ I the final meeting because if there is some significant dis-

agreement, it seems like to me if that's a possibility we
cbl ~;'-'.v-f'j ~\ JJ('''''''' :: ought to meet a little bit earlier in November so the sub-

"'---..

___//

/

1 '

,

: t committee would have a chance to get back together if a meeting

r,

"

[5 ,:; is necessary to come up with a redraft and then get it back to

Ih people, because your interim meeting on November 16, if it

17 c' requires any changes, is just going to mean the subcommittee is

going to be pressed for time. You're going to have Thanksgiving!
I
'<) when people can't do any work at all. So I would suggest an

interim meeting closer to the first of November.

CHAIRMAN THOMPSON: November 9th?

MR. PEARSON: Yeah, or the second. You know, whatever!

!

..,-) III
-~ I you think on that.

I

i

I

MR. HARRIS: That may be dictated by the speed with I

which the subcommittees get

I
- - ---_. __._- -----~

PAGE 28

MR. PEARSON: Maybe we ought to keep it open, but I

2 think we ought to do it earlier than later in November.

-'

CHAIRMAN THOMPSON: Well, tentatively let's set

4 November the 9th. That would give the subcommittees just a

little bit more time and yet and still after that meeting we'll

6 have more time to do any corrective work. Full committee,

7 November the 9th.

8

MR. HARRIS: Of course, you could always meet on

<) Thanksgiving because court is not in session.

10

CHAIRMAN THOMPSON: Thank you, Robin. I knew you'd

c?
,-
]1 ~make a real contribution to this meeting before it was over. o
w
We'll leave that then, and the subcommittees will

,__~rUI_I_I~'f ~make a decision as to when -- that's going to have to be a
I
j 'I ,:.~,~ call meeting. Whoever is chairman of the subcommittee is just
~
:x;
15 .~ going to have to notify you you will have to be here on a "~'
::,
l() ~ particular day. I hope it will be a day that will be acceptable I ,f.) z
17 Z,to you.

18 ,

The last thing that I want to talk about and then

I'

[9 :1 I'm going to let you talk about whatever it is you would like

2\1 to speak on, is procedure.

We ought and we need to have some public input. A , ) meeting of this type, if there was someone here who was not a

member of this group, I would not permit them to speak. I think;

we've got enough to talk about among ourselves so that meetings

of this kind should be confined to members of the committee.

29

I would not say just let anybody walk in here and start

talking about anything they wanted to talk about, but there

should be some way that they could have access.

If there is any way that we can get some pUblicity

wherein we could encourage those people who wish to have input

:l to send a written request to the committee, they could be

disseminated and we would have a chance to look at it before the

\ : subcommittees met, that might be the best way and then the

9 subcommittees should have the 'authority to handle this in the

lU way that they wish to handle it. If they wanted to have someone!
!

II ;~come in and address them pertaining to this, they should have o

c,

~~l"'''''' ~SY10

L' '".c,the authority to do so. Public meeting, pUblic hearing, I don't know.

That

I again is for this group to decide. I am prejudiced and I know

~. some of you perhaps won't like this. I don't like public

() ~ hearings. I have had a number of them, I have been through a
1
1~ 'tremendous amount of controversy in public meetings and when I

summed them up it looked like the only thing we did really, as

19 far as helping the committee make a decision, was to provide

20 the public with a forum where they could come in and air their

2l views. I don't think it has ever changed the committees'
,,
thinking hardly at all in any way whatsoever. Usually the

opponents come in and make a big stir and people who are

24 interested in something and satisfied with the waY it's going I

~o~_' ~mak_e ,! s it at home on their hands_and_

,,-n appearance" So it I

PAGE 30

really is not an indication of how the general public feels

, when we throw this open for a public hearing, but there is a

place for public hearings because the public is entitled to
I'I, "I Ii air its views. Whether or not we have time here and whether or
~ II not it is desirable to have a public hearing is left for the

(> group to decide. It has got its advantages but yet and still I

7 I don't really like them, but I am willing to go that route if

8 [we feel that we have the time to do it and that it is going to
,
I
9 lbe meaningful to us.

\0

One reason -- and this is the main reason why I am

,z-'
11 ~even discussing public hearings, Article II and -- what was it?
o

MR. HARRIS: X.

-
l.
~~~!' u..l
i,) V>

CHAIRMAN THOMPSON: II and X did not pass. There was

14 ~nothing wrong with Articles II and X, there was nothing

:I:
15 ~controversial in them but they did not have public hearings and ' ''.",'
J(J ~the people didn't know what they were doing and for that reason
"z-r
17 ~when i t went on the ballot it went down.

Us

MS. DAVIS: Article II did have public hearings.

]l)

CHAIRMAN THOMPSON: Did it?

"0

MS. DAVIS: Yes.

~1

CHAIRMAN THOMPSON: I don't recall.

i" l

-, ,

MS. DAVIS: I was a member of that committee.

CHAIRMAN THOMPSON: You were a member of that committe~.

, 1 And it didn't help anything, by the way, did it?

MS. DAVIS: Well we had some people who came and

31

I

I"
"

expressed strong views but they were held on Saturday morning

and there were very few people that showed up, not a whole lot

of people that expressed a great deal of interest in it.

CHAIRMAl~ THOMPSON: Mr. Boney?

.~

MR. BONEY: Mr. Chairman, it appears to me that time

is important to us and maybe we ought to get the public input

to each of the individuals, let each individual on the
,
"
~ committee get some public input if he wants to. We've got a

9 pretty good cross section here of our society, and I don't

JO think we really have the time to invite somebody in and have

""-
Ii ~ a public hearing. That's just my personal feeling. o w.

u:

MR. HARRIS: Of course, as these Articles wend their

~:;v (t.1

~

r'L)))/'~""" ~ way through the legislature, they will be going to committees

.. "

ji_1 in the legislature and opportunities will exist, if you are

1:; :; unable from time constraints standpoint -- but in all events,

j( 6 every meeting needs to be open to the pUblic and ()

CHAIRMAN THOMPSON: Robin, it is open, they can come

I;..: in here.

19

MR. HARRIS: I know that.

II

2U 1,1

CHAIRMAN THOMPSON: But I am going to limit the right

21 of the public to speak.
,)
MR. HARRIS: They ought to be open to the press, to
II
23 ,I
I the public the whole way through.

CHAIRMAN THOMPSON: I agree with that a hundred

percent. Sidney?
!~

r---------------"-

Ii

REPRESENTATIVE MARCUS: Let me address a question to

2 I Robin. What does the full committee propose to do once they
I

3 I have the document?

I

4i

MR. HARRIS: The Select Committee will take the four

new Articles and approve them or not approve them depending on

the results and at that point they will be put into the form 7 of resolutions to be introduced in the House or Senate

8 separately. There will be six separate resolutions, one for

9 each of six Articles.

10

REPRESENTATIVE MARCUS: Do you propose to do anything

"z
1\ ~with the general public, the Select Committee, once you have

a.
] 2 ~'" accepted or rej ected?

.-..,.
3.!!!.!!~~ LoJ

MR. HARRIS: I really hadn't thought specifically in

I
14 ~those terms other than I guess I'm just thinking back to
':t

15 ~legislative days, when they are assigned to committees that's
"c"o
16 '~" when generally the committee chairman will hold a hearing and
z
4:
17 """ 'invite everybody interested to make comments.

i8

CHAIRMAN THOMPSON: If he wishes.

19

MR. HARRIS: Doesn't have to.

20

CHAIRMAN THOMPSON: Doesn't have to.

2\

MR. HARRIS: But I would imagine that that will occur.

22

MR. HODGES: Mr. Chairman?

CHAIRMAN THOMPSON: Mr. Hodges.

MR. HODGES: Is there any limi.tation on a member of

': the committee, you know, making himself or herself available in
L _ " __

any area, you know, like on these -- you know, there is a

tremendous number of talk shows that have just all of a sudden

sprung up in Georgia in the last, I don't know if you have

read about those things, like two or three hundred of them now,

and just spending ten minutes on one of those, you can
,
I' 'disseminate enough information to let people know that this is

going on and create an interest and ask them if they have any

input to feed it to the committee here at this address and

the subcommittee can receive it and review it. If you're

10 willing to take the time, if you don't want to take the time,

you know, you don't have to.

CHAIRMAN THOMPSON: I see no objection to that type

of publicity. However, I think it ought to come to the

committees before someone gets up speaking for the committee.

i.~ .~

MR. HILL: Mr. Chairman, I'd like to mention here that

all of the meetings of all of these committees henceforth at
Q
Z. -1
17 ,L least will be in the Capitol and that every week there is a

1~ notification about the meetings which are to be held at the

19 Capitol the following week. It goes out from the Office of

20 Legislative Counsel and it has an extensive mailing list and

21 the Journal-Constitution gets a copy and a number of the press

" Iii do get copies of what these meetings will be and the pUblic are

23 welcome to attend, as the Chairman said, it is up to the

24 i committee about what kind of input they could have at the

~5 : meeting, but the point is there is some publicity already sort

- - - - - - - - - - - " - - - - ~---~-----

------

---~--_.,._-----

-----------.-.-..--. --. -.--.----.-- . r----.~----------~----

PACI'; 34

II of being taken care of for all of these committees and all of

2 I these meetings. It's up to the committee if that's adequate

3 I but I wanted you to know that that is now being done and that

4 II will continue to be done as long as you are meeting.

5

JUDGE POWELL: Would there be any objection to

attaching to that notice some statement to the effect, this

7 committee is now considering the revision of Article I and if

any person on the mailing list would have suggestions, to

forward that to a central place.

10

MR. HILL: Unfortunately this notice doesn't go out

l? Z

11 ~ of our office but the Office of Legislative Counsel.

0

Q......

12


u

MR. HARRIS; We can ask Frank.

~

MR. HILL: We can ask about that.

MR. CARLISLE: I haven't seen that done, although I

15 ~suppose it could be done. Usually it just lists what the :'>"
16 '~" committee is, you know, Article I subcommittee, or something '7"
.!
J7 ~like that and what room and what time they are meeting and then
Ii:: it is disseminated.

19

MR. HODGES: Mine arrives every Tuesday, so you see,

20 it's not timely at all.

21

REPRESENTATIVE MARCUS: Let me try one more time. I

!
'I
11 :: would suspect that when, whatever the end product of our work

~.\ iI gets to the General Assembly and goes to a specific committee,

24 :that because of all the other business that committee has, that

25 'committee, wherever it goes, won't have the time to really allow

35
II
I, the publ ic to hve an opportunity to do what it might do at

I the beginning point, which I consider to be now, and whether
il
the public does or does not in fact contribut to this end

,['product, I think it has to be absolutely clear to the general

\ public that they have the full ability to do it, and I don't
'i
G think we can convince the pUblic that they have the full abilitYf

to do it by merely putting in our notice that there is a

x II meeting at the Capitol of the Select Committee on Article I.
q 'i: I think we have to do something more meaningful and I'm not

1(1 sure I know what that is, that gives them the opportunity to

II ~come whether they select to do it or not.

o

rc

'.~

12 :

CHAIRMAN THOMPSON: Sidney, when we are in session

: 7 ' ~~SbYJ1)i.~.r--1CO-"''''!D ~ we have some machinery which I think can accomplish this. The

'--./ / I
"-

I
l4 Public Relations Office downstairs has worked with me in the

,....

,t

c

15 '~past in publicizing the public hearings that I have had. If

co

1(' ~ it comes to my committee, and there is a high possibility that ;:J

7 ; this would come to the committee that I am chairman of, I know

how the pressure can build up, and even though I am resistant

; I) i to a lot of public hearings, I have been pressured to the point

20 :that I have had to have them and I have had them on a number of '
!
71 ',bills that have come in. And if it builds up in this particular!
I
n 'I instance to that extent, I can guarantee you that there will be '

2~ ;a pUblic hearing and it will be publicized and everyone will

have a chance to come in and air their views.
,i
REPRESENTATIVE MARCUS: ~ A~lbert, they'd be happy, I'm JI

--- - - - - - - - - I-------------------~-------------

PAGE 36

i sure, to distribute to all the newspapers in Georgia an

2 article about you as chairman holding these meetings and when 3 I they are going to be held. I'm sure they would be glad to do

4 it now.

5

CHAIRMAN THOMPSON: I can talk to the House Public

6 Relations Committee -- group downstairs and we can get this

particular type of input.

JUDGE POWELL: I would suggest, as the gentleman

9 II mentioned abou the talk shows, I think several of the radio

10 stations have public service spots that might be willing to

"z

11

s a y 1-
,~
o,-

that

this

committee

is

considering the

revision of Article

_u

12

:~ ....

I

and

if

you

have

any

suggestions

where

to

forward

them

CHAIRMAN THOMPSON: Well the House Public Relations

,4 ~ Committee could do that.

<l

J:

15 .:>
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Are you using them for anything?

:")

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7

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MR. HARRIS: No

7

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J 7 ''""

CHAIRMAN_THOMPSON: This is a good source because

18 we have a good setup down stairs.

19 \1
II

MRS. OSTRANDER: Public television too.

20 Ii
II

CHAIRMAN THOMPSON: They could take care of all of

I'

21

ii
I!

that,

they have contacts with all the media and they are a

Ii'I
')'1
good source for doing this particular thing and I will talk

with them before I leave if that is the will of the body.
24
JUDGE POWELL: I would suggest that you put a de~ine,: 25 however, say subcommittees have to work and give a deadline for

rr
I whatever input.

PACE 37

CHAIRMAN THOMPSON: Until the subcommittees are
II
.' .i organized, I couldn't. include that specific thing in there,

~ but I will talk with them. This is the key to it, we're going

to have to get the subcommittees organized this week and get

the notices out, and I will ask them to talk or keep in

7 touch with me because I'll know what's going on and I can talk

~ to the people downstairs.

9

Does anyone have any further ideas about publicity

10 or public hearings? And please don't let the chairman's

'7".
11 ~ prejudices against pUblic hearings affect you. You do exactly

o
c.
w
~what you want to, but I have had a lot of experience with them

,u.

(.
i~and

I'm

really

not

happy

with

them,

but

this

is

the

democratic

lr

I
14 ~:way for folks to have a chance to express themselves. I buy

15 that, this is good, it's just not as effective as it should be.

1(I 7
"o.

MS. MCGOUGH: Mr. Chairman?

z



17 ~

CHAIRMAN THOMPSON: Yes.

MS. MCGOUGH: I don't -- I have no strong preference

It) I for public hearings, but I really think whatever notices are

:;0 . given publicly they should -- the pUblic should be invited,
I
21 ~I urged to make their views known, perhaps in writing to the

I
) I ! committee.

'::3 ii

CHAIRMAN THOMPSON: Yes.

24

MS. MCGOUGH: Most people, I think, view the

PACE 38
--_._,._._---_._ .. _---~,_._-
1 lr:;e~~-~-~:uld ~:-~--;r:at many people who are more troubled

2, II about this Article than all the others put together and I would
II

3 ii like to see them have an opportunity to express whatever their

4 IIIi views are.

i

5 I" i

CHAIRMAN THOMPSON: I think it ought to be in writing

II
6 i'i so that we'll have a chance to look at it before we get to a

7

i II

meeting.

ltd hate for someone to walk in here and be able to

II
8 ii throw a bombshell and cause dissension among the group. We
[I

o I"i ourselves may have some varying views about certain Constitu-

10 tional matters. I think we ought to be able to do this in

'':1

II

,Z

.. a:

an

atmosphere of

calm,

an

atmosphere

of deliberation,

so

I

0

"-

12 .u''."". think that we could reasonably require anyone who wishes their

t-
~ ~ CIO""'D. views known to do it in writing prior to the time that we have '

14

~
t-

the

meeting.

Unless I hear something different, that is the

v<r>

15 ,~ procedure we will follow.

C"

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16 ~ '<":I

I had nothing else in particular that I wanted to

Z

<
17 ~ discuss this morning. Is there anything anyone else would like

18 to bring up for the good of the body?

19

MR. HARRIS: I think it is perfectly obvious that the

20 time you and Judge Powell were in school together, you were a

21 good bit older.

22

CHAIRMAN THOMPSON: Robin, I'm not going to invite yo~

to any more meetings.

JUSTICE BOWLES: Let me say one thing for benefit if

l' it would be of benefit to anybody. When I was appointed on the
li._ ... ._. _

39

committee, I did some work in pulling the Bill of Rights from -~

I started to pull it from all fifty states but that got to be

3 Ii too much of a task -- so I pulled them from the states of I' I I
~ i' Massachusetts, New York, Virginia, Florida, Illinois, Texas,

5 Iowa, Colorado, Washington and California as a cross section of

G America. We have copied those and if anybody would like copies

just for their own information, I'll be glad to have copies

made for anyone, or if you want it from any other state I will

I,'/ have someone to get you copies. I know that the professors

ii) have access to all this but by and large most of you do not.

~}

7

I', ;::
l.l

MS. MCGOUGH: It's nice to have it pulled together.

"

I.~V!t'i

i2

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rr

.,

JUSTICE BOWLES: If you would like to compare them,

,.- '-<\

f-

~J'"~~ ~ I will certainly make you a copy or get the staff to make you

14 ;', a copy.
r
j 5 .~ <,...,'
16 r~

MR. HILL: We'll send copies to all the members. CHAIRMAN THOMPSON: Mr. Hill says he will send

7 1

i~ copies to all members.

l~

I also want to compliment him for the material he

lY I has already sent to us because that's extremely valuable, what

20

we II
II

have

done

in

the

last

three

or

four

attempts

to

redo

the

il

21 :' Constitution and that has been beneficial to me already, so as ;!

II
22 Ii much material as we can get I think we need to gather it in.

2J II So you will be receiving that, each of us will. I

24 Ii IilI

JUSTICE BOWLES: Would you like to take it and copy

for it.

PAGE 40
-----1
I
I

2

MR. HARRIS:, They could never find his office.

CHAIRMAN THOMPSON: 'Did everyone sign the mileage

list and put their social security number on this list? I

don't believe so.

MR. HILL: There are two lists and I sent them down

different sides.

CHAIRMAN THOMPSON: Someone filled in their social

security number by my name. I know that's an error.

10

MR. HILL: Mr. Alexander, is he here?

11 ~

CHAIRMAN THOMPSON:

o

0-

w

12 ~... come this morning

Mr. Alexander said he could not

MR. HILL: Oh, that's right.

CHAIRMAN THOMPSON: Someone made a mistake. 097-16--

15 .:>
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17 '" you.
18

MS. OSTRANDER: That's mine CHAIRMAN THOMPSON: I'm going to give this back to
MRS. OSTRANDER: I just didn't take a look at the

19 name.

20

CHAIRMAN THOMPSON: Ladies and gentlemen, -- Yes,

21 Dr. Savage.

REPRESENTATIVE SAVAGE: Mr. Chairman, I had one

23 I thought that might have some merit in relationship to pUblic

24 i:input and pUblic feeding into this committee. All of the

I~

25 Ii people who are on this committee represent probably a good segmeht

L____________ - -- ---

- -------

PAGE 41

of the people in the State of Georgia. In gaining publicity,

for example, it would be extremely important through the

League of Women Voters to say that Myrtle Davis had been

appointed to this committee, she was on Article I, that she i. 5 ,! welcomed input and suggestions from any members of the League.

I

6

!
I

The

same

thing

would

be

true

with

Vita

there

in

relationship

I[

7 il to retired citizens in Georgia, same thing would be true in

i[
I,
g 1'1 relationship to those of you who teach in universities or

9 I: Sidney certainly as Chairman of the Fulton Delegation, that

10 he has been appointed on this committee, that he welcomes any

,"
II SL ~ nput from any citizen in Fulton County.
o
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I 2 (~

The other interesting thing is that communication

~~ ~)_..... ~~vehicles, such as the League communication, would be far more

-;:!) , .
14 trecept~ve with an article in there about Myrtle and her being

15

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'0 on

the

committee

than

they

would

simply

print

the

blurb

that

"":>"

16 ~ you had been appointed chairman of the committee.

a

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I'm simply saying we don't need to miss that

Ix :iopportunity to get input from all of the organizations and
!i
19 I'II groups',of people in Georgia who are represented on this

I'
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21 !,

CHAIRMAN THOMPSON:

That's good.

I think each of us

individually, to some extent, can do more --

REPRESENTATIVE SAVAGE: We talked about the State Bar,

24 which would be so important, that would have their meeting I

i
2~ guess during the time that we would be completing -- when is

" __ ~_ ~,

, '_ ,_,

"~_'

~

'_'~ __ '

'_ .. ,.J

_ _._-- __ _ - - - - ~ ..

. - ..... -~---_.

~--------

1 II State Bar --

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42

2

REPRESENTATIVE MARCUS: Just after.

3

REPRESENTATIVE SAVAGE: Just after, so that we could

I
I
,I even publicize to State Bar that these members of the State Bar,I

including Robin Harris, are working on Article I and we welcome

I

6

I' ,1

any

input and please

contact these

individuals while

that

!I

7 II meeting is taking place if you want to have input.

II

Ii

8 il

MR. HARRIS: At the request of the Governor, the

II
9 !t State Bar is creating a special approximate 50 person committee I

10 to work as an advisory group with the Select Committee so that

Cl
'y

11

f=
a:;

as

various

drafts

are

produced

I haven't worked out the

0

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12 u'.".. details with Curt McAlpin yet, but the likelihood is they will

IZ
~ ~ be submitted to this State Bar committee for comments, suggestiqns

I

I

14

>-
l-

and

it's

not

just

true

of

yours,

it's

true of

the whole

effort.

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15 .~ So that the State Bar will be involved as soon as Curt gets

Cl

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16 c'J:. his committee appointed. He's got them selected and he's

Z

f

17 ~ ready to move, so the State Bar is going to have an involvement

[,Ij all the way through on the whole thing.

19

MRS. OSTRANDER: I have a series of legislative

20 workshops for our people during -- a good many of them during

21 October, some I will be at. For instance, I just finished one

22

I
:I wJ .th the Sixth Congressional District at Mercer Law School and

I

23 that's the kind of forum that we might get enough out to the

.'.~ leadership of large groups.

25

CHAIRMAN THOMPSON: Well remember now, the main thing

.I '..'\ ( .I", 43
,,
we want is for the general public to be aware of what we are

, doing and the fact that they have a right to have input in it.

So if you will follow through, I would appreciate it if when

1 your group is meeting you would indicate to them what you are

, I doing and ask them for their input. I think that will be

, beneficial to us. That goes for everyone really because there's

no way -- we can't possibly as a group get as much publicity as

we can individually going out talking to the groups that we

:I are related to.

IU

If there's nothing further, ladies and gentlemen, I

'.1 Z
1) ,~want to thank each of you for coming this morning. We're going

PYB~,'1'

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',!. to

try

to

do

this

as

quickly

as

we

can

and with

as

few meetings

.

.'~L.'"\.;' r)\ "".m.... :~" as possible to keep it from being overburdening but we've got

-.

II

Gthe job to do, we have said we're going to do it and I think

" J'
i' ~ that we will do it. Again, thank you very much for coming this

~')

), 12



~ morn~ng.

(Whereupon, the meeting was adjourned at 11:03 a.m.)
I>,

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! " \/. I"i 44
r,----
'r
C E R T I F I CAT E

3

If Peggy J. Warren, CVR-CM, CCR No. A-171, do

hereby certify that the foregoing 43 pages of transcript

i represent a true and accurate record of the events which

transpired at the time and place set out above.

, ,I
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.21

INDEX Committee to Revise Article I Full Committee Meeting Held on September 20, 1979
Procedural meeting only

STATE OF GEORGIA
COMMITTEE TO REVISE ARTICLE I of the
CONSTITUTION OF GEORGIA
SUBCOMMITTEE TO REVISE SECTION I
Room 402 State Capitol Atlanta, Georgia Thursday, October 4, 1979 10:00 a.m.
BRANDENBURG & HASTY
SCIENTIFIC REPORTING 3715 COLONIAL TRAIL, DOUGLASVILLE, GEORGIA 30135
942-0482 DEPOSITIONS - ARBITRATIONS - CONVENTIONS - CONFERENCES

PRESENT WERE:

I I
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7I
I
8I
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COMMITTEE MEMBERS:
JESSE G. BOWLES, CHAIRMAN REPRESENTATIVE SIDNEY J. ~ffiRCUS MRS. VITA R. OSTRANDER CHEATHAM E. HODGES, JR. F. H. BONEY MS. HYRTLE DAVIS
OTHERS
MR. MELVIN HILL REPRESENTATIVE ALBERT THOMPSON MR. DOUGLAS CARLYLE MR. LOUIS LITCHFIELD

II ,
'o.0".-. .u'"..

PAGE 2

[8 II
19 20 21 ,)
.'3 24 25

PAGE

3

~

CHAIRMAN BOWLES: We'll come to order then and

J begin our deliberations. I'll ask each one of you to give

4 your full name for the court reporter so we have a record of

5 who's present. Mr. Marcus, would you start?

REPRESENTATIVE MARCUS: I'll be happy to. I'm

Sidney Marcus.

MRS. OSTRANDER: I'm Vita Ostrander.

REPRESENTATIVE THOMPSON: I'm Albert Thompson.

10
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12 '~"
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150 \:J u: :;;)
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17 ~

MS. DAVIS: Myrtle Davis. MR. BONEY: F. H. Boney. MR. HILL: Melvin Hill . CHAI~~ BOWLES: And Jesse Bowles. Representative Albert Thompson asked me to take this committee chairmanship for the Subcommittee Number I on the Rights of Bersons and I am gl ad to work with you and the other committee members that have been assigned to the task and I guess there's no way of

18 doing it except digging in and getting started in that

19 direction. I have studied all the material that I have to

20 the present time and I conclude from this that there have been ' 21 i many, many hours in the past spent in trying to develop proper

articles and especially in the area of rights of persons. I
I
.'3 notice that these chang~ slightly through the years -from our f.i:ts
I
Constituion, 1798, down to our last one in 1976, but basically
25 these r.ights have pretty much stayed the same. I guess maybe
_ _ _ _ _ _ _ _ _ _ _ _ _ _ .1

PAGE

4

~--:ur ~oref a therS-~:-de~:~-o-p~ngo-U-r--f-i-r:~-c~n:~~:~t~-o-n- ~~~~:-:~~~

it somewhat after the Federal Constitution and they probably
II
,I
Ii recognized the real problems that existed and tried to protect
I'II
them or curtail them, whichever was appropriate. So how and
II
Ii what method we should use to proceed I am open to suggestions
Ii
) I'II from any of you. My first and preliminary thought was that

11
I',I

we take the Constitution as it now exists in this area,

the

'I

3 II 1976 Constitution adopted by the people, and go over it

9 I paragraph by paragraph. It's not too long. I think we can

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do this in a relatively short time and see when we get to a paragraph if any of you have any thoughts about it let's stop and consider them and what do you think about such a procedure?
MR. BONEY: I'm inclined to agree. There's been a tremendous amount of effort put forth in this and it would appear to me that we ought to at least start with what we have and if we can't think of anything better or any reason

1
, I'i 19
II
Ii
:::0

to change it I don't see any particular reason to change it.
Now of course I don't mean to say that I think it's absolutely I
perfect, but at the same time that will give us a starting

21

place.

,, CHAIRMAN BOWLES: To those of you who are nonlawyers

,,

_.)

I would suggest one thing to you, that although the words in

:.'4

this portion of the Constitution are brief there has been a

_~ 5

great mass of Cdses entered on the books in Georgia

rr - ~- -- -.-- .- --- ---- _.- ---- --- --_. ----

PAGE

5.

- - - - - ------------- ----,

IiII
I

interpreting these particular words, these particular rights

2 so if you attempt to change a particular part you could

3 disrupt a great body of the law, at least it would have to

4 be reconsidered so that is one reason that we should be a

5 little hesitant just to change the wording in a particular

6 section of the Constitution. Any other thoug~ts about

7 procedure, how we should proceed or do you agree? .. Is it the

8 concensus that we proceed paragraph by paragraph and see

9 where we are? Any objection to this?

10

(No response.)

z 11 f0-
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17 g;

CHAIRMAN BOWLES: All right, then this is what we'll do.
REPRESENTATIVE THOMPSON: Before you get into it let me ask you one thing. The Preamble is really not a part
of Section I or Section I.t Qr Inand I've been reading through
this material and I see that there's some material that~ suggests'itw the same as in the 1945 Constitution, but it goes

18 II back to 1877, that language in the Preamble. I would like to 19 II suggest that we keep that language in the Preamble just as it

20 1\
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21 Ii
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is. It is certainly of long standing and I see nothing in it that I find particularly objectionable and there's one part of it that I see no reason to change. I'm going to suggest that

n Ii now. It's not part of Section 1 and I'll suggest it also when

:1

':4 !I we get to -- into the group as a whole.

II
.'5 ll____ _

~_H_A_IRMA_N_B_O_W_L_E_S__:__A_l_l_ r ight .

Let me ask you this, dOl
- -_._------_._----~

PAGE

6

REPRESENTATIVE THOMPSON: No.

CHAIRMAN BOWLES: So we would just be recommending

I! that -the Preamble as far as our article is concerned be
II
Ii maintained as it is?
,I

I\1I

REPRESENTATIVE THOMPSON: No one has the responsi-

g II bility for it since there was no specific assignment and I'm

I'i

9

II
II

just suggesting and I will suggest it again tomorrow, the

0 Section XI and rrIgroup is meeting, I will suggest again

"z

~ <Y
o

tomorrow that they consider this as a possibility and we take

0..

:2

~'" ....

no official action on it until the entire Committee meets

CHAIRMAN BOWLES: What is the pleasure of the group

t4 >>-; on t hl'S? Then do I hear a motion that we make a recommen-

<.(

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15

~
"<t:

dation to the Committee when it

finally meets

that as

far

as

:>

16 ~ w Z"

this subcommittee is concerned we

leave the Preamble?

17 <g;l

REPRESENTATIVE THOMPSON: I'd like to move that.

18 11
I:
19 IIII I,

MR. BONEY: I'll second that. CHAIRMAN BOWLES: Is there any discussion on this?

20 No discussion. All those in favor say aye.

21

(Ayes. )

CHAIRMN~ BOWLES: And opposed no. It's unanimously--

The resolution is unanimously adopted.
24
We'll go then to Paragraph 1. Do you propose that

I read them or that our staff read them?

L..

~

.

.

..

...

11----- -

PAGE

7

"Life, Liberty, and Property. No person shall

Ii

be deprived of life, liberty, or property, except

2I

\i

by due process of law."

I

4I

Let me mention one thing to you, in your material ~- It's

'i a packet of about 17 pages. The first sheet says "Proposing

(>

. .. a new Constitution for the State of Georgia

,II and i t was

7 passed by the House of Representatives on January 22nd, 1970.

8 Now this work was done by -- I guess by John Blackman,

9 Executive Secretary of the Constitutional Revision Commission

10 of 1969, was reviewed by Ben Shapiro, Counsel to the Senate

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11 l-

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Judiciary Committee at that time. This is an excellant paper that has been prepared comparing the '45 Constitution to the subsequent revisions and to.the Constitution Proposal as

14 ,>.--

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ct: en

adopted by the Legislature in 1970. It did not -- We do not have any material bringing it up through the '76 Constitution . There are one Or two slight changes in the '76 Constitution~ We'll get to them as we move along. I did not know why these

Ix changes were made. I don't have any reason. I think we would

1') like to know the reason they were made and it is entirely

20 possible that the one section I have particularly in mind was

21 transposed to another article and included, say, in the

22 Judicial Article rather than in the Rights of Persons Article.

,,

_.>
I

This is going to require a little research and I'll get to

24

I" I
:i

that, but I wanted to call your attention to it because this

2~

is a good paper and it gives you a lot of information.

PAGE 8
--------------------- --- ---l
REPRESENTATIVE THOMPSON: Mr. Chairman, I'd like to I

ask one question. We're going to go through the 1945 or '76

actually. It's supposed to be the same as the '45, just
:

IIIIIi

rearranged. There have taken out the

are some changes, they were supposed to conflicts and that was the only thing that

'I

was supposed to have been done when they passed that 1976

Constitutional Article, but as we go through this, is it

i

possible for us to keep in mind the rearrangement of these

I i

I

9 things. This was done harem-scarem to a certain extent. There!

o are certain parts of it that still should be brought together.

~ z

1

;: oex:

There

are

certain

parts

of

it

that

will

have

some

conflict

in

Q.

w

2 ~ them. How would we handle that?

u.

to-

~;

CHAIRMAN BOWLES: I think I would suggest that if

~

4

>
t-

there

are

Articles

that

were

omitted

from

the

'76,

that

we

v>

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5 .':.>, make note of them and that we let our staff do a little

'"::> 6 ."z.'. research and see if they are relocated in the Constitution

0z
7 "'"' first. If they are, that would be the end of it. If they werel

:8 deleted, then we might want to consider why they were deleted 1\

19 1:\ and if that was good or bad.

II

i

20

i
I

REPRESENTATIVE MARCUS: I'm not sure I understand.

i

21

I I

We're

going

to

be

dealing

with

the

1945

Constitution,

is

that

22 correct?

",;.J :1
:!

CHAIRMAN BOWLES: Seventy-six.

24

MR. BONEY: Seventy-six.

25

CHAIRMAN BOWLES: This is the '76, it's the present

--- ----------

1'1\(;1';

9

Constitution.

2

REPRESENTATIVE MARCUS: Seventy-six Constitution,

3 excuse me. Then as we see a suggested change on the part of

4 who, will we review it

CHAIRMAN BOWLES: Sir?

REPRESENTATIVE MARCUS: What suggested changes will

7 we have other than what other states may have done as it

8 relates to each one?

9

CHAIRMAN BOWLES: Let me show you that by an

10 example which just occurred to me in reading. Good or bad,

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right or wrong, I do not know, but we have an article that prohibits involuntary servitude for anything but punishment for crime. No problem with this except that in the '45 Constitution there was a provision that said provided for contempt of court. This would be civil contempt as well as criminal contempt and it provided that the Legislature could limit the punishment imposed. That is not in the Bill of

18 Rights in the '76 Constitution. It very well could have been

19 transposed to the Judicial Article. I have not had time to

20 I,I' research that.

21 II

MR. BONEY: I haven't either.

22 I'.II I.

CHAIRMAN BOWLES: That's just an example and that's

i

23 Ii one thing I have in mind. It is necessary for courts to

24 function and the naked involuntary servitude provision without

25 a contempt provision for that special circumstance would

PAGE 10
~I-~os-:~~~;~:lete the power of the courts tO~::i~~ for crime.

REPRESENTATIVE ~ffiRCUS: The problem I'm having is

if we go through the Constitution, not having been a student

of the Constitution as some have been, only the obvious will

come to mind and I wondered if in the course of maybe some of

the staff have had an opportunity to look at the research

that you have done and as a particular section is discussed

they could tell us what other states may have done on those.

CHAIRMAN BOWLES: I think we could very well do

some work in that area, yes. That's a good suggestion. We do

have three professors from the three major universities in

the state. They're not here, but I think I wouldn't mind at

least calling on them to do some research in that area. I

4 .>..- think that would be part of their expertise and they could '<
J:
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[6 .'z.". and bring back a report to us. Is that sort of what you have
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l8 II

REPRESENTATIVE MARCUS: Yes sir.

19

CHAIRMAN BOWLES: All right, sir.

20

REPRESENTATIVE THOMPSON: I'm going to ask this and

21 then I'm going to be quiet. I was not only thinking about the I
..,.,
type thing you're talking about, I was thinking about the 23 possible rearrangement of these things, whether it be Article 24 I or whether in this document it was Article X, we might

want to pull Section X up to where Section I is?

LL.-

_

I,I'

I'II

CHAIRMAN BOWLES: Right. Are you referring to the

,I

I

') ! Rights of Persons' Article only or the overall --
~

,

REPRESENTATIVE THOMPSON: Well, for instance,

'1 Freedom of Conscience is found as Paragraph II. I guess this

5 is the '76 that I have here. The proposed 1970 Constitution

() Freedom of Conscience was Paragraph XI. It was a relocation

7 of these things within the Article and I think we might want

8 to look at some of that because of the way the thing reads,

"
9 Ii an even flow of it and a combining of like material in

10 contiguous paragraphs.

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we go at it Could

CHAIRMAN BOWLES: That's a good idea. Suppose when through and maybe flag some for priority and then look overall when we finish as to placement and so forth? we do that? Would that meet your --
REPRESENTATIVE THOMPSON: That would be fine. CHAIRMAN BOWLES: Anything else on that? MR. HILL: Mr. Chairman, I would just point out that

18 there is a cross-reference chart that's available that you

19 don't have that we didn't bother to send Olt between the '76 and
i!
20 the '45 Constitution. I think that particular problem that

, I , you're mentioning is something we can deal with very easily.

CHAIRMAN BOWLES: I do have it because it's in the 23 back of the Constitutional Code Preface by Harrison, but the 24 members do not have it who are not lawyers.

MR. HILL: They don't have it, that's true. We'll

91:;- II--:~

to send it to them.

PAGE 12

CHAImffiN BOWLES: Let's do that so they have a

ready reference back and forth.

Now getting back to Paragraph I on Life, Liberty,

and Property, are there any suggestions or words or comments

about that?

MR. HILL: Mr. Chairman, as you pointed out in the

1970 proposal, there was a change in this particular section

which is on page 2 of this material which you might want to

consider as the change this time.

REPRESENTATIVE ~lliRCUS: Why don't you read that

change?

MR. HILL: Do you have this?

REPRESENTATIv~ MARCUS: No, I don't, not with me.

CHAIRMAN BOWLES: Suppose you read --What is that,

the significant change?

MR. BONEY: It adds to it.

MR. HILL: It would be -- It says:

"No person shall be deprived of life, liberty

or property without due process of law, nor be

denied the equal protection of the laws, nor be

denied the enjoyment of his civil rights or be

discriminated against in the exercise thereof

because of race, sex, national origin, religion

or ancestry."

r-------- . _--

PACJ< 13

II

MR. BONEY: Do we want to comment as we go along,

2 I Mr. Chairman?

\I

CHAI&~N BOWLES: I suppose we should. I think

I
II
4 II that's the only way we can very well consider this.

rl

5 'III

HR. BONEY: Let me just throw this in. I like it

,I

6 as it is in the '76. No person, that's pretty well all

7 inclusive. Now as I see it when we're adding to it, "nor be

8 denied the enjoyment", we're still talking about person,

9 "of his civil rights or be discriminated against in the

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exercise religion anything

thereof because of race, sex, national origin, or ancestry", I don't really think we're adding to it.
CHAIRMAN BOWLES: You might be limiting it.

14 >-
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MR. BONEY: That's my thought. I think the broad,

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language

in

the Constitution

is better than trying

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be

too specific.

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I think as it is now everything we tried to

17 ''"" add in this additional section is included. That's just my

IR thought.

19

CHAIRMAN BOWLES: Other thoughts about it?

20

REPRESENTATIVE MARCUS: Well, it sure would be nice

21 if we could have the people who had suggested this language

22 change to tell us what their rationale was. On its face I

23 don't really know that it tells that much as to why.

24
MR. BONEY: Don't misunderstand me. I'm not opposed

2::

- _.__ r--~-------~------

.--~--

II that's the point I'm making.

I MS. DAVIS: I don't quite concur.

PAGE 14 I believe that

it's necessary. I don't see where this limits it at all. In

fact, I think it makes it much more explicit in terms of

granting equal rights to all.

MR. HILL: Mr. Chairman, it's not true that there

is -- at the present time there is no equal protection

provision in our Constitution

in the Georgia Constitution

as such. This adds nor be denied the equal protection of the
o laws, then it goes on to talk about deny the enjoyment of

civil rights or be discriminated against. But to my knowledge

there is no equal protection provision in the -- at the

~ current time.

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right to prosecute or defend his own cause

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18

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think that adds to it and then I

think you've got one in

I? [I here about everybody shall have access to the court.

20 II

REPRESENTATIVE MARCUS: Mr. Chairman, I noticed that

21 II some of these other Constitutions include both of these but I

not in the same place. For exa.mple, I looked at Florida and

-)-,'

saw that Florida had a line that under basic rights no person

24 shall be deprived of any right because of race or religion, but,

I
!

had
lL____

t

he_

due __

process

as a very separate and distinct due

PAGE 15

process right and it seemed in Florida and some of the others
2 that they went about setting out more rights. So~e of them

3 did or didn't have the equal protection clause. My feeling is

that both of these thoughts are necessary, but I wonder if the

5 problem that Albert raised earlier, that in the '76

6 Constitution they thought ~his was the only place to include

7 this particular right. I'm wondering if it's the appropriate

8 place, the additional language. Does it read better in this

9 particular place? If you disagree that it's superfluous and

10 if you agree that it's bringing in a new right should it be

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joined to that particular place? CHAIRMAN BOWLES: That's a good question. I think
that most of the interpretation that's been placed on constitutional provisions in granting rights to people have given the broadest interpretation possible rather than restricting and limiting. I think you'd find that fairly universal both in the State level and in the -- on the

18 II National level. I

19

REPRESENTATIVE THOMPSON:

In what sense does this

20 language in the proposed '70 Constitution make it more limited

21 than the original language?

22

CHAIRMAN BOWLES: In the '76?

23

REPRESENTATIVE THOMPSON: Seventy-six.

24

CHAI&~ BOWLES: I would think the '76 would be

25 total, whereas in the previous one you talk about in certain

_ - - - - - - - - --_._~----~~-_ ..

- - _ . _ - - - - - - - - - - - - - ~ -- - - ~ - - - - - - -

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------------
areas.

---

PAGE 16
---- ------------;

Ii

REPRESENTATIVE THOMPSON: It says nor be denied

II the equal protection. That would seem to be explicit or in IIIi'' addition to. You see the first sentence, "No person shall

be depri~~d of life, liberty or property without due process
II II of law, ", that's parallel to the '76, and then it goes

Ili ion to say, nor be denied. Would that be limiting you think
11

g I'l to the first sentence?
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9 II

CHAIRMAN BOWLES: Not necessarily.

II

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REPRESENTATIVE THOMPSON: Or would it be expanding

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things are not the basis for denying equal protection of the laws
MR. BONEY: I think the point he's made there is probably a good point. If we stop with "nor be denied ...

18

equal protection of the laws", I think that would aid it. I

19

think that would add to the '76, but the next nor is what I

20

thought probably was maybe confusing. If we said here no

21

person shall be deprived of life, liberty or property except

11

by due process of law, nor be denied equal protection of the

-1-''

law then we've covered the whole area as I see it.

2+

CHAIRMAN BOWLES: Good morning, sir, come in.

25

MR. HODGES: I've been on the ro~d f;r an hour;

- - - rr~

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1 \1 there was a wreck out there.

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CHAIRMAN BOWLES: Too bad.

3 have a seat.

PAGE 17

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Come right on in and

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4

REPRESENTATIVE MARCUS: What is the relationship

5 6

II III'II,

between due process and equal MR. BONEY: Well, I

protection? would say simply due

process

is

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7 a procedural matter and equal protection is an overall general

8 protection. You might have equal protection and not be a

9 procedural matter, and that's simplifying it.

10

REPRESENTATIVE MARCUS:; And they're related enough

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be

joined in the same paragraph?

~ 12 ~

MR. BONEY: I think so.

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REPRESENTATIVE MARCUS: What do most states do, do

l 14 I- they have equal protection? You said the Georgia Constitution

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MR. HILL: Did not have specific, although it has

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18 I'm not saying people are denied equal protection right now. I

19 think there's a broad reading of due process by the court.

20

REPRESENTATIVE MARCUS: You're saying that it's

21 been part of due process?

MR. HILL: The courts in Georgia have said that.

23
CHAIRMAN BOWLES: I think this would be generally

24

I
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correct.

You can't have due process and at the same time not

!i
25 !, have equal protection. Of course, due process does deal with,

PACE 18

procedure, equal protection applies that all people be treated

Maybe one includes the other. I'm

not sure. Due process must have a thousand interpretations.

All of them have been somewhat liberal in favor of the rights

of people. Well, while we're at this point suppose we

determine if anybody wants to submit to the Committee some

substituted language for any paragraph of the Article, that

before the next meeting that we have suppose they develop

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the language that they might have in mind and submit it to our staff office who in turn will distribute it to all of us ahead of the next meeting day and then when this is done we can consider a proposed substitution of language. How would this do?
MR. HODGES: May I ask a question? Where are we if you don't mind so that I can understand?
CHAIRMAN BOWLES: We had decided to start with the --

11'1 ;i our article with the first paragraph and go through and

!;

19

ii
I!

discuss it and to see whether or not we thought they were

Ii

20 correct, incorrect, could stand improvement or best by

". 1 comparison with other years or properly aligned as to one, two,1

1" three in importance and placed in the Constitution and we had

"_.,i

not gotten beyond the first paragraph. We waited a considerabl~

2.+ time so we hadn't

We're still in the first paragraph. You

25 haven't missed much.

MR. HODGES:

PAGE 19

_ - - - - _ _._- .. ---~--_._-_

....

1
I

I point out to the overall chairman

2 that the notice that came out yesterday said the meeting was

3 at 11:00 so that could be the reason others are not here. I

4 brought it with me to show it to you. I know there was a

5 conflict.

6

REPRESENTATIVE THOMPSON: I think only people on the

7 list to be notified of meetings at the Capitol would get that.

I think the letter that came from the staff indicated that the

9 meeting was 10:00.

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MR. HODGES: I was trying to be here at 10, but they had a bad wreck out there. Two people were killed I think.
REPRESENTATIVE THOMPSON: I absolutely agree that the Constitution ought to be as general as possible and

14 >t;;

attempt to cover in the least amount of language as possible,

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but there are certain basics

that obviously have to be

in the

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Constitution everybody has agreed are essential.

It's a little

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17 ~ surprising to me that equal protection is not a specific right

18 unless, as you have indicated, the due process includes equal

19
protection. I never realized that any constitution didn't

20 have equal protection so I'm wondering have we -- I know you
21
have to have court cases obviously on what the Constitution

meant, that's a natural thing, but do we have lots of what I

would consider basic rights that have had to be interpreted
24
by the Constitution as being included in a particular right

just as you indicated that equal protection is a basic right

".--------------- ---------------

----, PACE 20

- - ---- -~---~ - - - - - - - - - - - ----- - ----

-----

that is included with due process but it did require a court

!
I

case I take it to say that that included it, whereas I'm sure

many constitutions include equal protection. I'm not hammering!

on that example other than are there others that might come

up that you're aware of that you would have thought would have

been in the Constitution, but in fact weren't?

I
I

I

. MR. HILL: Well, the due process E a flexible concepti I !
Itts been extended in the Federal courts to encompass rights
I

of privacy which you wontt have anywhere in our U.S. Consti-

tution or the -- and I'm not sure to what extent the Georgia

courts have followed that. The Supreme Court of Georgia would

certainly be free, if they chose, to read due process to includ~

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privacy.

Thatts not a right that you'll find here, but it has

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That's one thought and I can't really --

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18 process to encompass them. So I'm not sure that we want to try:

19

i
to identify everyone. I dontt know that we can. Times changet

20 It would be very difficult. I think the Constitution hits the

21 high points in terms of rights, except in this one equal

')1
protection and that has been an omission.

23

REPRESENTATIVE MARCUS: Let me make one more point,

24 Mr. Chairman, and then I too will try to be quiet. I find it

}' ACE 21

other states and what the courts have done to the extent that

we can relative to the rights of persons and I recognize we'd

need that computer you were talking about earlier if we want

to talk about all the rights, but I really would appreciate

knowing what's happened in these areas that might be --

CHAIRMAN BOWLES: Do we have available to us any

record of proceedings when this change was made?

8

MR. HILL: I found this just by accident, what you

q

have before you. There is no -- You're thinking of a journal,

10

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the House journal where they may have considered this? This did pass the House.
REPRESENTATIVE MARCUS: Both these people are practicing in the Atlanta area.
CHAIRMAN BOWLES: They wouldn't know from the change -- well they might.
MR. HILL: I'll be glad to -- You know, if you'd like them to come meet with us and try to explain why they

18 , made the change -- I'm not sure that -- It's ten years, I'm

19

not sure they would know what happened.

20

REPRESENTATIVE THOMPSON: Mr. Chairman, maybe we

21

can resolve it with a motion. I hate to put a motion

22

prematurely because I believe you ought to have a full

~3
I
24 :

discussion but just as a matter of resolving so we can move on. I would like to move that the language shown on paragraph

25 II
I,

3 of Article 1 of the 1970 revision be adopted as the due

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!'AGE 22 process and equal protection, life, liberty and property provision. Maybe that's confusing. The one in the '70 proposal is headed Due Process and Equal Protection. The one in the present Constitution is headed Life, Liberty and Property.
CHAIRMAN BOWLES: And your motion is what? REPRESENTATIVE THOMPSON: That we adopt the one denominated Due Process and Equal Protection as shown in the 1970 -MR. BONEY: I would like to add a point of information. Maybe I was mistaken, I thought this morning we were going to read them paragraph by paragraph and if we found one we thought needed change or modification we would flag it and apparently this is one that we found that needs some modification or study. REPRESENTATIVE THOMPSON: I'll be happy to accept that. I merely made the motion so we could move on. MR. BONEY: I thought that really we weren't going to make anything final and firm today. CHAIRMAN BOWLES: I did not think that we were. I was suggesting if there are suggested changes in language that they be submitted so that everybody can consider them ahead of the meeting. REPRESENTATIVE THOMPSON: I'll withdraw the motion. : I did not make it trying to force a decision, merely for the

rr-

II purpose of--

II

2I

MR. HODGES:

PAGE 23 Mr. Chairman, there's a point I've been

~ deliberating on and I didn't know -- the motion brought it

~ out and I -- It's become a more current and a broader

definition of human rights in regard to civil rights. That

() II probably if we were going to tie it in would probably tie in il I'
7 Ilil more closely with the due process and equal protection clause
I I
8 Ii than in anywhere else in what I have read. I've tried to

9 II read through all of this and I was really going to lean toward I

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the wisdom of the body to try to see wherein we might place that so I would also like to ask that we deliberate more fully on it rather than to act at the moment.
CHAIRMAN BOWLES: All right. MR. BONEY: Mr. Chairman, let me just comment once more before we leave this. In Article -- Section II, something about our protection, 2.03: "Protection to person and property is the

Ii:)

paramount duty of government, and shall be impartial

19

and complete."

"

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Now I think that's the equal protection there that appears in

Iil'

21

another section of our Constitution.

CHAIRMAN BOWLES: That's probably where it is.

23

MR. BONEY: That's the thing I was saying a moment

24
ago. You know, I still -- And I don't want to overemphasize

this, I'm not wanting to deny any of these things that are in

-.----.-----

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PALE 24

but sometimes if you say too much it's confusing and to

me if we say no person then we come over here and say no

person shall be denied equal protection I think we've

accomplished it in maybe simpler language.

CHAIRMAN BOWLES: What do you thing about Paragraph

III of Section II? Have you looked at it?

MR. HILL: I'm sorry, I didn't --

CHAIRMAN BOWLES: Is that not an equal protection

article?

o

Ms. Reporter, since we have three additional people

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MR. HODGES: I'm Cheatham E. Hodges, Jr. MR. CARLYLE: I'm Doug Carlyle. MR. LITCHFIELD: Lou Litchfield . CHAIRMAN BOWLES: Thank you. As with respect to

18 Paragraph I, unless someone has a suggested change before the

19 next meeting then we will not attempt to make any change in

20 here as of now. Is that the consensus of the Committee? Any

21 objection to that? We'll have a Constitution by negative. ,...,
All right, we'll go to Paragraph II.

" , _.)

"All men have the natural and inalienable right

25
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to worship God, each according to the dictates of his
own conscience, and no human authority should, in any
_

,
,
PAGE 25
- - - - - -------- - - - ------------
case, control or interfere with such right of

conscience."

Any suggestions in regard to this paragraph?

REPRESENTATIVE THOMPSON: Again, looking at the 1970
i:
) IIII redraft it says the same thing. It just removes the lang~age

il
man. It says, "Every person has the natural and inalienable

... right

" , but then it goes on further and it takes in the

language which is in Paragraph IlIon Liberty of Conscience.

"

no one shall be molested in person or property, or

10 prohibited from holding any public office or trust on account

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CHAIRMAl~ BOWLES: And that was in what?
,
REPRESENTATIVE THOMPSON: That's in the '70 proposedT
MR. HILL: Paragraph 11.

[

18

MR. BONEY: I'd like to ask a question of our

lY Representatives in the Legislature particularly. We all know

20 we're trying to come up with something here that is

21 fundamennally right, at the same time something that we can

get enacted. Does the Legislature have any particular strong 23 feelings about the '70 Constitution that was not approved 24 over the '78 that was approved or ratified?

REPRESENTATIVE THOMPSON: Let me say this about the
----------------_._-----~---------~-- --- - - - - - - - - - - - - - - - - - - - - - - -

PAGE 26
r-~70- con:~itut;~~, -:~-~~:--~p~~:~:~-~y-~~e--;~~:~---;~e se~-at:

I refused to take it up on the basis that they did not have

I time to study it so it really did not receive disapproval at

II
Ii

that moment.

I'm not trying to sell the '70 Constitution

I!,I except that a tremendous amount of work went in on it and it

!I

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II

did pass the House of Representatives.

That's the only thing

II

7 II I know about it.

IIII

8 II

REPRESENTATIVE MARCUS: It was never acted on by the

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9 Senate.

0

REPRESENTATIVE THOMPSON: We have some problems

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REPRESENTATIVE MARCUS:

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15 ..:.>, were made in the Constitution?

What substantive changes

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REPRESENTATIVE THOMPSON: been no substantive changes.

There was supposed to have

18

REPRESENTATIVE MARCUS: I think the question really

19 is quite different. The first Constitution as I recall did

20 deal exhaustively with the Constitution. The second one said

2l we're just trying to get things in the right places.

,, CHAIRMAN BOWLES: All right. What about the gender

,_o'J

question? It has been suggested where we use the word men

24 in place of persons --

25

REPRESENTATIVE THOMPSON: Actually I understand that I

PAGE 27

~
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men when used

- - - - - - ---- ---
in that context means either man or woman.

I

2

CHAIRMAN BOWLES: I know the courts have said this,

3 but I want to be sensitive to the wishes.

4

MS. DAVIS: I think the current trend is to use

5 "person"

6

MR. HODGES: I was just going to say the opposite.

7 We've just been notified that in parliamentary procedure in

8 national meetings, we are no longer to say chairperson, but go

9 back to chairman, meaning homo sapiens.

10

REPRESENTATIVE MARCUS: If I may be a bit political,

11 fa-: if this Constitution is going to require the action of people

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Constitutional standpoint, but in my judgment if it says men ori

14

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it would

immediately get

a

large

number

of

people

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18 away -- and use the word "person".

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MR. BONEY: I think the question I was trying to get

,

20 il before all of us a moment ago, if the members of the

21 I, legislature really feel that there was a sincere effort in

I

22 'I the '70 approval in the House, it was given serious and I

23

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sincere study and approval

and improvement over the old

'45

24 III Constitution that later became the '76 in essence, then maybe

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I we ought to give more consideration to the language infue '70

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---------

1

PAGE 28
[[--~-~:sti~~tion That was the question I was asking. If they've
I already pretty well worked it over and gone along with it --

I think I got that from your statement a moment ago.

REPRESENTATIVE THOMPSON: Mr. Boney, Robin Harris
Ii
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II 5 II done and they put a tremendous amount of work -- I'm not on
I'
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consider substituting the '70 paragraph for the '76 paragraph

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if it's an improvement in the language and not pass on it today?
CHAIRMAN BOWLES: I'm talking off the top of my head. When the Senate Committees and the House Committees consider

18 our recommendations that they're going to sit down at a table

19 just like this, they're going to pick up the '76 Constitution

20 and they're going to see wherein we have changed something

21 and they're going to decide whether or not that change is

acceptable to them. I doubt that they're going to have any

23

more detailed study and probably not as much as this particula~

24 committee would have so I'm afraid if we start transposing

25 whole paragraphs that this will look -- They're going to

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----, PAGE 29
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my suggestion. I think that it has been certainly in the

I

domestic relations field to neuterize all laws with respect

4 to rights between men and women that are the same. I would

5 suggest that we neuterize this particular article and eliminate

6 men and make it persons, instead of his make it their.

7

MR. HILL: Mr. Chairman, as a point of information

8 I would say that the other article committees that are working

9 along side you on the other articles have already adopted this

10 philosophy for themselves, that there's going to be an attempt

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CHAIRMAN BOWLES: Yes sir, Mr. Hodges.

14 :

MR. HODGES: I thnk the matter consists -- If you

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18 are. I think neuterizing would be the proper thing and at that

19 time I think we should adopt that.

I

20 II

CHAIRMAN BOWLES: All right, then would somebody

21 II make a motion that we authorize our staff to develop the

n II language. AS I see it right off , it would only change two
Ii 23 Ii'.lI words, but I won't bind you to that.

24 I I'I,
25 II
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MS. DAVIS: I so move.
CHAIRMAN BOWLES: That we neuterize it.
_

Ir----------------- .-.----- -

1':\1 ;l.<~ 30

Ii

MS. DAVIS: I move that we consistently do that,

,i II
!I Judge Bowles.

I

MRS. OSTRANDER: I second the motion.

I

REPRESENTATIVE MARCUS: The record ought to show --

5 Mr. Chairman, I think the record ought to show that the men

6 deferred to the ladies in that motion and second.

7

CHAIRMAN BOWLES: Note that for the record. Yes sir,

8 Mr. Hodges.

9

MR. HODGES: Well, we're still on the paragraph. I

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would like someone to see, particularly gentlemen of the law, to explain to me in Paragraph 11 of the 1970 Constitution that last sentence. It says, "However, this right shall not be construed to excuse acts of licentiousness or justify

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practices inconsistent with public peace and safety".

I'm

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I'm just wondering.

I know it's in

18
there. I'm wondering.

[9 CHAIRMAN BOWLES: I can't answer your question

20 except to say that when you start adding exceptions that you

21

11

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1

I;
23

can hardly cover them all. The human mind can't conceive of all them. I don't think that the Freedom of Conscience, and when we get to the next one Freedom of Religion, is going to

2'+
permit polygamy or any other act that might be considered a

25
i crime just because it's based on religion or Freedom of

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PAGE 31

this not to be so broad and then if you try to say this

3 exception, licentiousness and so forth, if you start trying to

4 list all exceptions you just can't list them all.

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REPRESENTATIVE THOMPSON: Cheatham, that is in the

g Constitution.

9

MR. HODGES: I know, I'm reading it down here. I

10 see it's in here. I'm wondering if it should remain there or

if it should be recommended to be removed. This is what I'm

after and I'm deferring to the legal and legislative minds.

REPRESENTATIVE MARCUS: Does this say you can't

breach the peace and safety of the State and enter into acts

1~ ~ of licentiousness under the guise of religious opinion?

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CHAIRMAN BOWLES: leading to.

I would think that's what it was

18 ,

REPRESENTATIVE THOMPSON: That same language, isn't

19 it in the Constitution of most other states?

20

MR. HODGES: The ones presented.

21

REPRESENTATIVE THOMPSON: Most other states do have

that. l~mitation. I think it's an attempt to -- show that

religious freedom, just as Justice Bowles said, does not .'4 permit certain types of conduct in the guise of religious

freedom.
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rr---- . --- -- ---. ------------- ---- .... -.----- ---

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MR. BONEY: That comes up in our next one.

III next paragraph they specifically say that in the '76
I II Constitution.

In the

II

MR. HODGES: It's Paragraph III.

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CHAIRMAN BOWLES: It's been transposed into that

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section rather than in this section.

Somebody transposed it .

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i: That's one of our problems, we didn't have the benefit of what

they did.

REPRESENTATIVE THOMPSON: It says the same thing,

only it says it in one paragraph where it says it in two in

the other. I think that like things where they could be

combined into one paragraph we ought to do it for the purpose

of shortening the thing and putting all like subject matter.

CHAIRMAN BOWLES: Is it not more related to the

Religious Article than the Freedom of Conscience Article?

MR. BONEY: I think it is.

CHAIRMAN BOWLES: And somebody has concluded this

and put it in the Freedom of Religion Article.

MR. BONEY: I think that's correct.

CHAIRMAN BOWLES: You see --

MR. HODGES: I saw it, that's what led. me to ask the

question.

CHAIRMAN BOWLES: Any other discussion? I do have

a motion before the floor. I had a motion and a second. Is

25 i there any other discussion on this motion? If not, we'll call
L.. _

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the question.

PACE 33
All those in favor of neuterizing Paragraph II

2 as to gender --

REPRESENTATIVE THOMPSON: I thought it covered the

4 entire article rather than just Paragraph II.

MS. DAVIS: It did.

6

CHAIRMAN BOWLES: Well, I certainly don't oppose

7 that, but we were dealing with Paragraph II and I don't know

how we can go down to something we haven't gotten to. I don't

9 think you'll meet any opposition.

10

MS. DAVIS: The intent of the article though is to

neuterize wherever we needed to in terms of our entire

CHAIRMAN BOWLES: She's got me in a position where

we're considering Par~graph II and you're making a motion with

respect to-the whole Constitution.

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18 if you want to make a new motion considering the rest of the

19 document

20
II

MS. DAVIS: I have no objection to that, I was just

21 thinking if we had that in mind in terms of our entire

22 deliberations it would not necessitate going back into that

23 argument again.
24
CHAIRMAN BOWLES: I don't think it's been an
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- - - - - _ . _ ._ _ .~._..._--_._-_.~-
opposition from anybody.

PACE 34

MS. DAVIS: All right, I will defer and we'll deal

only with

REPRESENTATIVE THOMPSON: There's one advantage in

making a broad motion. It expresses our intent and if we

should fail to make a specific motion when it comes to some

section the broad motion would carry and the staff would be

able on the basis of the broad motion to do it without our

having to be specific.

CHAIRMAN BOWLES: We're taking steps at this point.

Ultimately we will have an overall motion to approve a

recommendation of a document which we are going to present and

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18

MS. DAVIS: That waf:! not. my motion. My motion was

19 a broad one. He restated it incorrectly.

20

CHAIRMAN BOWLES: I would have to say you'll be

out of order at this point. As far as policy is concerned

certainly we are willing to accept it, but as far as dealing

23 with Paragraph II I think we should make a motion in regard to

24 Paragraph II. If you want to make another motion

I

MS. DAVIS: I'll go back and make a motion as

II _

PAGE 35
rr---
Ii relates to Paragraph II to neuterize that particular
- Ii,Ili paragraph.

II

MRS. OSTRANDER: And I'll second it.

4
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CHAIRMAN BOWLES: Any discussion on this revised All those in favor say aye.
(Ayes. ) CHAIRMAN BOWLES: Opposed, no. It's unanimous. MRS. OSTRANDER: Now can I ask a question at this

9 point because Myrtle's original motion was what I really would

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have preferred? Can we at the end of the Article go through the motion again of making that motion so that staff has the freedo~ as Mr. Thompson said, to go back and make the changes without having to come back to the Full Committee if we've missed one of them?
CHAIRMAN BOWLES: Your motion is that if we have overlooked a gender area in the Constitution that staff has a right to meet the question and furnish us with a recommen-

IS II dation deleting the problem?

19 Ii

MRS. OSTRANDER: That's right.

II

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CHAIRMAN BOWLES: Is that your motion?

21

MRS. OSTRANDER: That's right.

22

CHAIRMAN BOWLES: I'll entertain the motion.

23

MS. DAVIS: I'll second the motion.

24
CHAIRMAN BOWLES: That does meet your question, does

2:' it not? Any discussion on this? All those in favor say aye.

_ _ ~-_._----~

- ..

. . . _.....

(Ayes. )

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CHAIRMAN BOWLES:

II unananimously.

PAGE 36
Opposed, no, and it's adopted

~

Let's move on to III then. Maybe I better ask you

Ii

5 ! about how much time y'all can give today? I want to sort of

6 judge by it or what are your personal commitments and so forth?

MR. BONEY: I can only speak for myself. Being a

8 good long ways out of town, I would prefer to devote more

9 I time today and less days, more hours in this day.

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REPRESENTATIVE THOMPSON: I don't think I made a

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specific time, but I agree with Mr. Boney. Some of us come a pretty long distance, I'd rather stay here and work.
MRS. OSTRANDER: I would too. CHAIRMAN BOWLES: Let's just move on then. We'll

18 take a break. We've been in here now about an hour. Suppose

19 we take a break at 12 and then -- for about a few minutes and

20 then work on to 1 and have lunch at 1 and see how far we've

21 gotten when 1:00 comes, is that okay? I'm not trying to

dictate the terms, I'm asking you.

REPRESENTATIVE MARCUS: If you wanted to have a

24 working lunch we could certainly make arrangements. If you

25

I'm not suggesting it, but we could make

~-:r~:~g~:::-;~~---- - - ----------- - ---------------

PAGE 37

II

REPRESENTATIVE THOMPSON: I think it would be easier

1 II

I'
3 II to walk across to the state cafeteria and relax from our

4 IiiI deliberations and eat and come on back.

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CHAIRMAN BOWLES: If any of you want to break at any

5 II

G II time just mention it to me and we'll take a short recess. I

Ii7 used to practice before a judge that I thought his bladder was I

x III big as a bucket, he never would stop.

II

9 II

Let's go to III then, Religious Opinions; Liberty of

10 Conscience.

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"No inhabitant of this State shall be molested in person or property, or prohibited from holding any public office, or trust, on account of his religious opinions; but the right of liberty of conscience shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the State."

IB

REPRESENTATIVE MARCUS: Well, it's interesting to

19 me that our forefathers chose to have l1hreedom of: Conscience

20 and Liberty of Conscience in separate paragraphs and, as

21 Albert was indicating, in the '70 document they've tried to

22 consolidate both those paragraphs, Liberty of Conscience and

2_' Freedom of Conscience, and I'm really having difficulty

24 understanding why they were separated.

2"

REPRESENTATIVE THOMPSON: Mr. Justice, in looking at

---------~-- ---- - - - - - - - - - - - - - - - - - ----- ~------- --------~----- - - - - - - - - - - -

rr------------------------------------.-. - ----~---.--.-.-.-- ------ - ------P-A-G-E.------38
this document I think these things were added from time to
!
time because someone had a specific interest in a particular

area. If it had been done all at one time I don't think much

of this would have been separated because some of these

articles or sections speak to the same thing with slightly

different language.

CHAIRMAN BOWLES: Very much.

REPRESENTATIVE THOMPSON: That just looks like a

time gap between the time of adoption rather than intent to

separate, at least that was the impression I got from reading

the document.

CHAIRMAN BOWLES: But as far as -- Unless we wanted

to combine two of these, Freedom of Conscience and Freedom of

Religion are opposites to some extent.

MR. HODGES: This is secular trend today. Secular

interpretation is that you're dealing with conscience only and

the religious interpretation is that you are dealing with the

concept of religion, principally monotheism. I can see where

they did but where each serves its purpose in separate

paragraphs, but I think the combination of Paragraphs II and

III would serve the same purpose and would tend to shorten the

Constitution and would give us a more concise document.

CHAIRMAN BOWLES: Other thoughts about this? But as

far as what is said in III there really is no objection other

than maybe shortening it?

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PAGE 39

MR. HODGES: No.

2

CHAIRMAN BOWLES: Well, let me suggest this then

I
I

3 if there's no opposition to what is contained in the substance

4 of it, if you wanted to suggest a merger of the two you could

) maybe submit a suggested wording to us, other suggested

I" I
6 Ii language by the next meeting.

7 IIII

MR. HODGES' Rather than move for a merger at this

8 !I time?
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CHAIRMAN BOWLES: I think it would be difficult

10 for us to sit here and try to merge the two documents with

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appropriate language right now.

That's just my thought.

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CHAIRMAN BOWLES: Is there a second?

18

MR. HODGES: I second.

19

CHAIRMAN BOWLES: Any further discussion? All those

20

in favor say aye.

21 i i

(Ayes. )

CHAIRMAN BOWLES: Opposed, no. It's unanimously

23 i adopted.

24

Paragraph IV, Liberty of Speech or of the Press

25 Ii Guaranteed. lL_______ __

..._ _ ._.._ _.

PAGE 40

"No law shall ever be passed to curtail, or

restrain the liberty of speech, or of the press;

any person may speak, write and publish his

sentiments, on all subjects, being responsible

for the abuse of that liberty."

This is right broad and comprehensive language

I gather that the first -- the last few words being responsible]

for the abuse of that liberty would mean that your speech is

free only until it strikes your neighbor's nose and when it

o strikes his nose you must curtail it. Does that say anything? i

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17 ""<Xl It's right broad, but as far as the language in this is

18 concerned, is this sauisfactory to everybody?

II

19 ,

REPRESENTATIVE MARCUS: Judge, I notice that in some

20 of the other Constitutions they enumerated in the

21 Constitution, and I'm not suggesting that we do this, I'm just

"" wondering, the fact that truth is a good defense for libel.

, ., --' Florida did it, in the Illinois

I just wondered why that

M 'I specifically was included.
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25 ilL

CHAIRMAN BOWLES:

~

_

I don't know.

I think it's so

PAGE 41

!: ingrained in all of our court decisions. I believe that is a
!i
2 universal and unanimous rule of law in every court in the

3 land. If it were not, you would never have any defense to

4 i any statements you made.

5 iIl,

MR. HODGES: Wasn't there a recent Illinois case

6 [I that in some way limited the liberty of the press to speak out
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7

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in a

general

application?

I can't remember the situation, but

Ii

8 I it's been within the last month, that the Supreme Court of

9 Illinois upheld that the press had infringed upon the rights

10 of individuals by making a general statement claiming that

they had reported news as they interpreted it.

CHAIRMAN BOWLES: I'm not familiar with that.

MR. HODGES: Wasn't this the same thing -- virtually

the same thing the Supreme Court recently did when they ruled

that you had to go back into the right of the conscience of

the writer, the editorial writer?

CHAIRMAN BOWLES: I believe I had heard about that,

U\ II but I'm not familiar enough with it to discuss it.

!

19

MR. HODGES: I'm just wondering are we nit-picking

20 in even asking a question about this, because we know we've got

21 another Constitution that umbrellas this one. Whether or not

22 it would be pertinent, I just don't know.

23 I

CHAIRMAN BOWLES: There is one saving or redeeming

24 feature. If we make a mistake that's too restrictive, it goes

25 :i down if it violates the Federal --
~

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REPRESENTATIVE THOMPSON:

PAGE 42
There's only one thing

that strikes me in this. We speak of freedom of the press

and I think that goes back to the day of newsprint and now

today we have media which is a broad term which covers

radio, television and I don't know whether it covers the press

or not. Is this so ingrained that we don't need to change it

to make it clear that we're talking about all media?

CHAIRMAN BOWLES: That would come under the first

part of it, Liberty of Speech.

REPRESENTATIVE THOMPSON: But they've picked out of

the press also which I take to mean newsprint.

MR. BONEY: You come back to the old libel and

slander, if he says it it's slander and if he writes it it's

libel.

REPRESENTATIVE THOMPSON: That's right.

MR. BONEY: I think what we're really saying if he

says it over the radio I think speech covers it and if it's

flashed on the film up there, makes his film and shows it on

the t.v. then I think it's press.

REPRESENTATIVE THOMPSON: I'm not dissatisfied with

it. I think it's all right just as it is.

MR. BONEY: I'm trying to be practical. I would

think that's what the courts would say. I think they have

said that.

25
1I'

CHAIRMAN BOWLES: They have said Freedom of the Press

_

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II includes any media.
I

2 I'

REPRESENTATIVE MARCUS:

PAGE 43
- _ . _ - - - - - - - _... -----~
I
Mr. Chairman, do we have a

3 libel section in the Constitution?

4

MS. DAVIS: Paragraph VIII.

5

REPRESENTATIVE MARCUS: I'm beginning to be more

6 curious.

7

MR. BONEY: It's in Paragraph VIII there.

REPRESENTATIVE MARCUS: That's the reason it wasn't

9 tied in. I noticed in almost everyone of these Constitutions

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they had a libel section. CHAIRMAN BOWL~S: Any discussion further about
Paragraph IV, any suggestions about it? Is there a motion then that we approve as it is written?

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18 point, but not now, the possibility again of wondering should

19 the 1 il:>e1 section be part of Paragraph IV, but I'm certainly

20 in agreement with the text of both and I did note that the

21 research that you gave us, :,:,i t was consolidated in a number of

22 those State Constitutions.

23

CHAIRMAN BOWLES: You know, Paragraph IX is really

24 a consolidation of several different areas.

25

MR. BONEY: It sure is. It's really a catch-all

~ - - - - - - - - --

- ~ - - - - ~ - -

-

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there.

CHAIRMAN BOWLES:

.. - - _ . -- - - - - ~ - - - __~

1'AGE
- - - - - - - - - - _ . --~---~-- .~.-

44

We might want to consider moving

Ii and consolidating as Representative Thompson said to begin

Ii with. Suppose we go through and then come back over all on
I placement as a general consideration?

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MRS. OSTRANDER: I think that was what we said in

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II

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MR. BONEY: And I think we still -- If anybody has

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any idea what to change they still have a right to do it.

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(Ayes. )

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<!

17 ''""

CHAIRMAN BOWLES: Opposed, no. Unanimously approved.i

18

Now V, Arms, Right to Keep and Bear.

19

liThe right of the people to keep and bear arms,

20

shall not be infringed, but the General Assembly shall

21

have power to prescribe the manner in which arms may

j1

23

\1
I

24

be borne." Well? REPRESENTATIVE THOMPSON: I'm supposed to be a House

expert on gun laws.

1

PAGE 45

IT--

I II

-CHAIRMAN BOWLES:

Ii

, i anything?

Have y'all been able to pass

3 II

REPRESENTATIVE THOMPSON: I would suggest we don't

of II touch that.

S II

CHAIRMAN BOWLES: We don't have any doubt that you

6 II have the authority to control it.

7 i,

REPRESENTATIVE THOMPSON:

Ii

Ii!I
8 control, but not prohibit.

We have the authority,to

9 .i
,!

MR. HODGES: Why don't you ask me to give my speech?

10

CHAIRMAN BOWLES: I'm inclined to agree. I don't

know the, answer.

REPRESENTATIVE THOMPSON: I wish we could prohibit

handguns personally, but there is no way to practically do it

and every time we say handguns or let's restrict weapons the

j 5 0..':) National Rifle Association and the hunters throughout the

l~

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16

'z"'
"a'

State

of

Georgia

come

up

in

arms.

They'll be up here at the

Z

17 ''"" Capitol.

18

CHAIRMAN BOWLES: And bring the guns with them,

19 don't they?

20

REPRESENTATIVE THOMPSON: Yes sir.

21

CHAIRMAN BOWLES: Mr. Hodges?

')') "--

i

MR. HODGES: I couldn't find it, judge, in the

23 Florida Constitution, but either it has been done by statute

24 or by a new constitutional ~mendment that i t is empowering the i

"" local governments to place restrictions upon the purchase - - ! >

l l_ _.

.

.__ . _ _ _ _ _

.

_

lr--"'- .....-....- . ------ ..._ -"-~'------ .. - .. ------.... -.

PAGE 46
--------.... ..-..----......._._.~ ..-

! II the method of purchase of handguns and now all of the hardware

stores and other persons that sell guns do have, you know,

big signs saying if you intend to purchase a gun a handgun

or even a B-B gu~ they list them all, you must come in and

apply 72 hours in advance of purchase.

CHAIRMAN BOWLES: It puts a little cooling off

7 period in there at least, doesn't it?

MR. HODGES: This is one of the things that waS

proposed before in Chairman Thompson's committee.

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MS. DAVIS: It does seem to give it some degree of priority in where it's placed. It seems to be placed a little high in terms of some of the other paragraphs. Maybe we might consider moving it down further.
CHAIRMAN BOWLES: It was almost number one when they adopted the Federal Constitution. They had a right to bear arms was the issue.
MS. DAVIS: I notice in the 1970 Constitution it's

18 ! Paragraph 20 so it's certainly down under a number of others.

19

CHAIRMAN BOWLES: Suppose we make a note for our

20 staff to make a note of this that this has a high priority

='1 and we may want to consider it in our realignment if you

" would.

MR. HILL: A high priority.

24

CHAIRMAN BOWLES: Well, it's up at number five. We

25 may want to consider -- Just flag it, that's what she's saying I
.J

-,

rr -- ----- ---

PAGE 47

I when we come back to our overall alignment. All right, any

.2

j
I

discussion about this?

You think we can improve on the

1

J I: language? All right, is there a motion then that we approve

4 !I this?
I',

:i I' I:

MR. BONEY: I thought Mr. Alexander had more or less-~

I,

0

II II:I

I mean -- I

don't mean -- excuse me, Mr. Thompson had more or

7 I;! less made a motion to leave i t as is.

II

8 II

REPRESENTATIVE THOMPSON: I'd like to move that

I' 9 1\ I did not make a motion.

10

CHAIRMAN BOWLES: Will you?

REPRESENTATIVE THOMPSON: I will make a motion to

leave it as it is.

CHAIRMAN BOWLES: Is there a second to that?

MR. BONEY: I'll second it.

J:

15 .~
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CHAIRMAN BOWLES:

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,~

those

in

favor

say

aye.

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17 ~

(Ayes. )

Any further discussion?

All

18

CHAIRMAN BOWLES: Opposed, no, and it's unanimously

19 approved.

20

VI, Right to Assemble and Petition.

21

liThe people have the right to assemble peaceably

for their common good and to apply to those vested

23 ,I

,

with the powers of government for redress of

I

L __ 24 :ii,
25 g_r~ie_v_:_:_:e_:_u_::~:~~:_o_:_o::~;_::_s::_:_:_c_:~ "_th-,,~e? ~

PAGE 48

11--

- - - - - - - - - --~

-------~

- ---------------

-------- -- -----

I:

REPRESENTATIVE MARCUS: Did the '70 Constitution

adopt it?

REPRESENTATIVE THOMPSON: That's Paragraph 22.

REPRESENTATIVE MARCUS: All that staff down there

at the other end of the table maybe could keep up with where

J we are on some of this.

--;

MR. HILL: It's exactly the same language.

8

REPRESENTATIVE THOMPSON: Same language, identical.

9 [I

CHAIRMAN BOWLES: It's practically the same in all

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the other Constitutions. MR. BONEY: In '64 it was the same. REPRESENTATIVE MARCUS: I'll move CHAIRMAN BOWLES: Let's see where we stand on VI
on this Article, Paragraph VI. Is there a motion then? Did you move, Mr. Marcus?
REPRESENTATIVE MARCUS: Yes. CHAIRMAN BOWLES: That we adopt it as written?

18 II I! ii
19 Ii

MS. DAVIS: Second. CHAIRMAN BOWLES: Any discussion? All those in

20 1I,\
!I
I,
21

favor say aye.

(Ayes. )

22

CHAIRMAN BOWLES: Opposed, no. It seems to be

23 unanimous.

2.+

VII, Attainder; Ex Post Facto and Retroactive Laws,

25 and so forth it says.

PAGE 49

---------- ---"l

~

"No bill of attainder, ex post facto law,

i

I

2 II"I

retroactive law, or law impairing the obligation

i

II

3 'II,

of contracts, or making irrevocable grant of special

;1

4I

privileges or immunities, shall be passed."

II

!
5

That's sort of bedrock.

6

REPRESENTATIVE THOMPSON: It is, but I think we've

7 been violating it in the General Assembly. We passed a law

8 pertaining to petroleum contracts which says that they don't

9 mean what they say they mean. We did that last year and the

10 United States Constitution -- I mean the United States Supreme
Czl
11 ~ Court upheld a Maryland Act which did that. I like this oQ....
12 : language and I think we ought to keep it and make it mean
~ ~".~ " ~ what it says, but we're violating it, I believe we are.

14 ,~...

MR. BONEY: Somebody will have that up before the

'<"l
1:

15 ~ Justice to adjUdicate before long.

L1 <X ::>

16 o~ z 17 <~

CHAIRMAN BOWLES: Maybe I better not comment on that. MR. HODGES: I think they have, haven't they?

18 I'I,

MR. BONEY: I think that language is just --

I () I,II
il

CHAIRMAN BOWLES: We've just done something similar.

I

20

il Of
,IIi

course,

Orr

eliminat.ed

the

divorce

laws

in

Alabama

and

we'rel

21 Ii following Orr and eliminating them in Georgia in the Constitu- I,

i:

tion. -I) 1,1 The contract of marriage is incurred prior to these laws,

Ii

i

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L..)

I We say that the legislature adopted new divorce and alimony lawJ

I,

24 i to give vested rights pertaining somewhat to that contract so

!

25 I it's somewhat of a violation.
I

Yes, sir?

I
I

- - - - - - - - - - - - - - - .-------'

PACE 50

MR. HODGES: The two things speaking to the day in

court law that was upheld in Maryland there was a quirk in

the law and I can't remember that is not in the Georgia

11
"

law that caused it to be upheld and I understand there~s_a

I suit being entered against the day in court law in Georgia

now. The other thing is there was a debate yesterday on the

7 palimony as opposed to alimony by virtue of contracts,

8 marriage contract being the case where Illinois ruled that,
Ii
9 i"! you know, a relationship -- a nonmarital relationship was not

o a contract.

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CHAIRMAN BOWLES:

o.n...

2 ~... the State of Illinois

Against the public policy of

MR. HODGES: And simply was a matter of sharing of

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properties where California said there might have been some contractual relationship.
REPRESENTATIVE THOMPSON: But they didn't find it in that case I don't think.

Ii)

MR. HODGES: They didn't find it in California when

19 it came to the common property law. They found it in the fact r

20 that one person had been deprived of the right of livelihood

to a certain extent. In Illinois it said that didn't enter
,1
the question.

CHAIRMAN BOWLES: Wouldn't recognize the contract.

We have also said in Georgia that we would not recognize such

25 a contract. We have passed similarly on the question. -I don't.

lL__

_

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f:,

~1 mean the exact question, but similar.

PAGE 51

2I

MR. HODGES: I like the language that we have here

il:1
3 and I'd like to second the motion.

4 II

CHAIRMAN BOWLES: Yes, sir, Mr. Marcus.

'II

'I

5

REPRESENTATIVE MARCUS: I hate to keep showing my

6 ignorance by asking questions. Do you have a privilege and

7 immunities paragraph? I noted in the beginning of your

8 research many of the Constitutions included these two together,!

'} iIi ex post facto, almost identical language, but with the

!

10 privilege and immunities section.

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11 ~
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CHAIRMAN BOWLES: I think it's Paragraph VII of

0-

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v

12 ~ Section II, is it not, "Laws of a general nature shall have

~ ~ .._., uniform operation throughout the State, and no special law

14 ~ shall be enacted in any case for which provision has been made. II

"<r"

15 .:>

REPRESENTATIVE MARCUS: I was just making the point

"'::">

16 ~roz:c that in the Rights section of many of these Constitutions with

<::

17 ~ almost the identical language we have in our Constitution

18

MR. HILL: Paragraph IX would do that.

19

CHAIRMAN BOWLES: Yes, IX.

20

REPRESENTATIVE MARCUS: It's over there rather than

21

MR. HODGES: Uh-huh.

Yl

REPRESENTATIVE THOMPSON: This is one thing we're

23 going to have to do as an overall committee, and,that's

24 transfer some of these things from section to section so that

25

o.I'r all like matters will be in Section I and all like
~--------------------------

matters I ---------~--

PACE 52
ri-ll be ~~ ~ectio~:-~I and III.- o~:rse we' re go~n~~~~~Ugh

II this now, but before we finish we ought to look at the

l I overall document and see what we consider like matter.

I
CHAIRMAN BOWLES:
II
[i overall committee meeting.

We'll do that and with a prefinal

5 Ii

REPRESENTATIVE THOMPSON: That might be too late. I

7 II think that if this subcommittee as a group feels that there's
I!I'
8 ii something in Section II that ought to be in Section I we ought
II
9 II to look at it. If there's something in Section I you think

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ought to be in Section II and III you ought to make that recommendation.
CHAIRMAN BOWLES: In the interest of time then if we come across such a situation I suggest you allow me as

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Chairman to take this up with the Chairman of the other and see if we can resolve the difference and report back to you before we meet.
REPRESENTATIVE THOMPSON: Let me ask this, I haven't

18 been able to get it clear in my mind. Have you been able to

19 delineate what should be in Section I and what -- philosoph-

20 ically what should be in the two sections?

21

CHAIRMAN BOWLES: I haven't other than what

"

somebody else has done. I just assumed they thought it had

23

good purpose in putting it in one or the other. I'm not sure

,1
_-t
that there's a very satisfactory answer.

25

REPRESENTATIVE THOMPSON: I haven't been able to

"0._ _- '

PAGF 53

come to any conclusion in my mind.

CHAIRMAN BOWLES: Was there a motion then that we

approve Paragraph VII as written?

MR. BONEY: Yes, I'll make it.

5

MR. HODGES: Second.

CHAIRMAN BOWLES: Any further discussion? Those in

-; favor say aye.

8

(Ayes.)

9

CHAIRMAN BOWLES:

II

'0 unanimous.

Opposed, no.

All right, it was

VIII, Libel; Jury in Criminal Cases; New Trials.

IIIn all prosecutions or indictments for libel

the truth may be given in evidence; and the jury in

all criminal cases, shall be the judges of the law

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and the facts. The power of the judges to grant new trials in case of conviction is preserved. 1I
This is the one we mentioned that has several areas

18 in one paragraph.

IY

MR. BONEY: It sure does. It covers a broad area

20 there in one paragraph.

21

n

II

REPRESENTATIVE MARCUS: Judge, after the semicolon and the jury in all criminal cases, shall be the judges

::'3

of the law and the facts. lI , does that apply only to

24

CHAIRMAN BOWLES: It's really a misnomer.

L_

REPRESENTATIVE THOMPSON: It is.

PAGE 54

CHAIRMAN BOWLES: They are really charged with the

application of the law to the facts, but I think that's the

way it's been construed.

MR. BONEY: Right.

REPRESENTATIVE MARCUS: I really think the average

person ought to have almost the ability to understand what

the Constitution says and I really think this one just doesn't

give any indication. This one you really have to have
9 IIIi benefit of court cases to know what this one says. I t.hink

o we can improve on this one. What did the '70 Constitution

tel Z
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say?

MR. BONEY: The same thing .

MR. HILL: It was not in Article 1 and to my

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knowledge it was not in another part of the

'70 Constitution.

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MR. BONEY: I'm sorry, it was in '64.

17 ~

MR. HILL: It's not in Article 1 of the 1970

18 proposal. It may have been moved, to some other part of the

19 '70 -- I'll try to find it because they may have come up with

20 better language for us.

21

REPRESENTATIVE MARCUS: I really think it's the

right of persons, libel ought to be included somewhere in the
,,
--' document whether it~ 's:; included in the Freedom of the Press
24 or some other -- as some other Constitutions have done. I
Ii
25 really don't care, but the rest of it ought to be clarified.

PAGE 55

CHAIRMAN BOWLES: The prosecution, and I'm asking,

does that consider the civil side or is that the criminal
I
3! side when no indictment is necessary? Really those words are

4 somewhat redundant, aren't they?

5

REPRESENTATIVE THOMPSON: The_ power of the judges

6 to grant new trials, shouldn't that be in the Judicial

7 Article rather than in the Bill of Rights?

8

CHAIRMAN BOWLES: Possibly.

9

MR. BONEY: It would appear on the surface that it

10 should be.

MRS. OSTRANDER: I am wondering if we can find out

what they did with this?

REPRESENTATIVE MARCUS: I'm ready to make a motion.

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I'd like to move that the first sentence on prosecutions or indictments for libel the truth may be given in evidence, I really think that language needs to be cleaned up, but the fact that truth is a good defense ~think ought to be in it

l~ somewhere and the rest of it just doesn't seem to be appro-

I') priate to the Bill of Rights or at least to this section.

20

CHAIRMAN BOWLES: It would seem to me if you simply

21 said that truth shall be a defense to libel in both civil and

22 criminal, it's just a defense. Truth is redeeming in any

23 instance. The truth will set you free, won't it, Mr. Hodges?

I'

24

MR. HODGES: This is what I'm thinking about and I'm

25 i thinking particularly about it with regard to indictment and

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PAGE 56
- - - - - - - - - - - - - - - - - ---------~
I
this was a question before Representative Marcus brought it- U P .\
My concern is that here it looks like we've just got a bunch I

of words together and they really don't mean anything, but if I i i
we could somehow parcel those words or partition those words, i~
I
the Committee felt like it had to stay together in that same I

5 paragraph, broaden it for clarity or do whatever is necessary,

7 but I do feel like we ought to spell out just what truth in

8 the approach of an indictment ought to be because this seems

9 to be generally, you know, in my concern the big problem that

o faces our courts. So many times we get indictments, many timesl

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on

hearsay

evidence

and

whatever

you

cant

to

call

it

and

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the

person

has

already

been

adjudicated

by

the

media

as

a

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criminal

or

as

having

been

convicted of

a

criminal

act

simply

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because

he

was

indicted,

and

I'd

like

to

clarify

it

because

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think

the

rights

--

the

right

of

an

individual

to

be

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l7 :<ii properly indicted should be spelled out.

18

MR. BONEY: That really would address itself to

19 another section though.

20

MR. HODGES: It may be.

21

REPRESENTATIVE THOMPSON: I think that's covered by

22 statute.

MR. BONEY: This reference right here is to the

i

24

11' I

crime

itself

of

libel.

Libel can be a crime or it can be a

25 civil violation, a criminal violation with a civil right. In
~-~---------- - - - - - _ . _ - - _ .. _------ - - - -

- - - ---~-~---------

PACF 57
- - --- -- ------,

other words you can have a tort by libel, you can be convicted

2 of a crime by libel and this is. referring here as I read it

to the criminal offense of libel.

CHAIRMAN BOWLES: Well, Mr. Boney, when it says

5 prosecutions or indictments I would say prosecutions would

b include indictments, would it not?

'7

MR. BONEY: Yes sir, I think that's right.

8

CHAIRMAN BOWLES: So to say them both --

9

MR. BONEY: I agree.

10

CHAIRMAN BOWLES: Mr. Thompson?

'z?.

II loe:<

REPRESENTATIVE THOMPSON: I would say this wouldn't

C>.

'"

12 : be in there if you didn't have a Freedom of Speech Article .

~~sv ~ .~J _d -cm-"".~ This clarifying that particular thing or that Freedom of

'----

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14

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l-

Speech --

If

you

exceed' what

you

should

do

as

far

as

Freedom

V'

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15 ~ of Speech is concerned then you're subject to libel but truth

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16 ~ shall be. That's all one thing. When we get away from that

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17 ~ and we start talking about lying to a Grand Jury or lying to

18 apetit jury and causing a person to be imprisoned then we have

19 statutes such as false imprisonment, false arrest and

20 imprisonment which makes that a separate crime and makes it

21 punishable. It also makes the person subject to civil suit 22 if they do that and I think that ought to be in the statutes

-1.'' as opposed to being in the Constitution. I think the limi-

24 tation on Freedom of Speech ought to be there, but certainly

25

I'
ii

I

think the other affirmative acts ought to be handled by

CHAIRMAN BOWLES: It would have to be very comprehensive and broad to have all of the elements included

MR. BONEY: I think the point the Chairman was

suggesting a moment ago that we consider just touching first

of all the question of libel here in the Constitution, maybe

getting away from some of these other things that are in this

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section, maybe just saying that truth may be given in evidence in all cases involving libel. If we just made that one simple statement then you would have a constitutional right to come up with the truth whether it be criminal or civil.
CHAIRMAN BOWLES: That could be said much clearer. That's the way to say it.
REPRESENTATIVE MARCUS: Let me just call attention to one of the other Constitutions on the Freedom of Speech.

18 Ii No right shall be --

19

CHAIRMAN BOWLES: The court reporter is having

20 trouble picking you up.

REPRESENTATIVE MARCUS: At the end of the Freedom

of Speech and Press section it says, II and in all suits

and prosecutions for libel the truth thereof may be given in

evidence and the jury at the direction of the court shall

determine the law and the fact ll It seems to me that's pretty

rr---- --------.------- ------------

- --- -----l PAGE 59 ---------.~.-------

1 II much the language that you used awhile ago that really covers .

2 II it. I would think we ought to adopt the language relative to
1
I J the libel portion and at the proper time I would move -- I

4 Ii understand at a later meeting that it ought to be in a II
5 ii different section, but again, so that we can go forward, I would

6 :1 like to move that we adopt in principle the libel section and

R I'[: different section of the Constitution that this committee
9 1.1 and/pr the other subcommittee deems appropriate.

10

REPRESENTATIVE THOMPSON: I just had this one thing

to suggest, just saying the " the truth shall be admitted

into evidence ", we understand what we're saying, but

wouldn't it clear it up a little bit if we simply said " . the

truth shall be an affirmative defense."?

CHAIRMAN BOWLES: Not an affirmative, but a complete

defense.

REPRESENTATIVE THOMPSON: "The truth shall be a

Ii) Ii complete defense." I think this says a little bit more than

19 I, just saying liThe truth shall be admitted into evidence." I

,

I

I

20 think it may clarify it.

I I

I

21

!
CHAIRMAN BOWLES: All right. Where are we? Speaking!

for myself and not as Chairman, I agree that this Article 23 is succotash or whatever you do when you mix things to-

gether. It has three different elements and I don't think 25 they're related even, necessarily related.

PAGE 60

do by way of suggestions of revision? I realize that you have a motion.

REPRESENTATIVE MARCUS: I'll withdraw it. You're

suggesting that we study and revise?

CHAIRMAN BOWLES: Study and revise Article VIII

7 ! especially with the thought of revising not only the words

but the alignment and the possible transfer of one part of it

9 even to another article with the thought in mind that before

we eliminate these basic rights we would be sure it had been

l'
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~ adopted in another article of the Constitution because they

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The second one about the judge

jury being the judge of the law and the facts is in there

[4

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for the purpose of saying that you always have a

jury trial

I:" '<"? if the facts after completion the judge can't direct a verdict

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16 L
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of guilty against anyone and that's what this says.

It's in

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very poorly said language.

Yes sir?

18 ,

MR. LITCHFIELD: I just wanted to raise and ask one

19 i question. Why this particular defense is a constitutional

:20 defense as opposed to any defense? I think the definition of

21 libel in the criminal code contemplates only false statements.

Now the '70 Constitutional proposal I think deleted that, '3 whether that was inadvertent or purposeful or whatever I

question why one particular defense to a criminal action is

in the Constitution and no other.

CHAIRMAN BOWLES: I think because of the Freedom of

Speech Article that you had the preservation of Freedom of

Speech and in another article in this same section you had

this particular area that freedom was not protected in a

libeL. situation. I'm not saying that's a complete answer to

(; i what you say except this is one of the exceptions to Freedom

7 of Speech. Yes sir?

MR. CARLYLE: I just had a suggested language

something like in any civil or criminal action for libel

10
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truth shall be a defense or a complete defense. CHAIRMAN BOWLES: Yeah. MR. CARLYLE: Is that the kind of thing you're aiming

at?

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CHAIRMAN BOWLES: That's certainly a good approach

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2.
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REPRESENTATIVE MARCUS: There were several in the Constitution that we might stud~ in the research material that you gave us that covers this point.

CHAIRMAN BOWLES: Before you came in, I'm quite sure

you were not here, we said that if anybody had suggested change

in language or structure or what have you to develop the
\ --~
language and submit it to staff and they in turn will

distribute it to the rest of us before our next meeting. We

want everybody to have the freedom of suggested change if you

have one or if you want to work with staff on the language

let's do that, but on this particular one suppose you try to

develop for us

3

MR. HILL: r llwork with the Office of Legislative

4 Counsel.

5

REPRESENTATIVE MARCUS: Could I make one comment?

(, Albert, you used the term complete defense and I agree with

what you're saying is there ain't no more, this is it, but

~ can't be played with. It's an absolute, but I'm not so sure

that that would even tell us in more laymen terms what it

lU means and I nct.icethat in many of these Constitutions they
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11 really say it very well and they make it clear that it is an
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absolute, but they say it in language that would not require

a high school education.

REPRESENTATIVE THOMPSON: A jury is going to have

15 .:;
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to determine whether or not that is the truth. I don't even think we can put language in there which would make it. It still is up in the air, putting it in the Constitution that

IK this is a complete defense does not really make it so because

19 there has to be a determination of what the truth is.

20

CHAIRMAN BOWLES: That's a determination of fact

21 though, not of law. If they determined it was not the truth

),
this would be one thing, but if they determined it was the

23

truth it would be another thing. This is application of the

24

facts.

25

REPRESENTATIVE THOMPSON: Application of the facts.

PAGL 63

CHAIRMAN BOWLES: That's what I would say. The jury

does pass on it, but when they pass on it they pass on the

facts and law is given a charge. Well, do we all agree that

f we're going to do some study on this particular one? Is there
5 Ii any objection for studying and then coming up with ideas and

suggestions about the change on Paragraph VIII? Y'all have 7 any input on it? Contact the staff and let's see what we have.!

I think it would. be good to ~efer to the other state

C) , '
'I consitutions that have similar language and see if their

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language is not better than ours, as Mr. Marcus said. It's certainly clearer in some of them. There's a motion then we follow this general procedure with respect to Paragraph VIII? I don't know that that's a very clear motion? You do so move?
MR. BONEY: Yes.

15 ~
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17 0"-:

CHAIRMAN BOWLES: Is there a second? MR. HODGES: Yes. CHAIRMAN BOWLES: Any discussion? All those in

I S I,
I
I 19

favor say aye.

(Ayes. )

20

CHAIRMAN BOWLES: Opposed no. We'll move on. Let's

take about a five or ten minute break here.

(A short recess was taken.)

CHAIRMAN BOWLES: Let's move along. How long can

you stay with us?

MR. HODGES: I'm just going to play it by ear,

I'A(~E 64

that's all.

2

CHAIRMAN BOWLES: If you feel like you must leave

3 suppose you do it and we'll keep you apprised of where we ~ stand. We're not going to do much finally today anyway.

-"

All right, we had just finished with VIII, had we

6 not, and we're at IX, Rights to the Courts.

7

"No person shall be deprived of the right to

8

prosecute or defend his own cause in any of the courts

9

of this State, in person, by attorney, or both."

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Now I probably know more about this than anybody. MR. BONEY: I'm sure you do. CHAIRMAN BOWLES: This has split our court. If you could split them down the middle it would. We happen to have

14

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seven.

There's got to be one on one side or the other.

In

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criminal

cases Georgia,

even

long before Furetta versus

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California, had a constitutional provision that any man could

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17 ""<Xl be his own lawyer. That's what this says. Somewhere in other

Ii' years they added the language "or both", and this brings on

19 a real, real problem from the practical side of it. Speaking

.'U for the court, our Supreme Court as a whole, and I think I

".i can readily speak for all them, none would deny even if they
,--
could the right for any individual to represent himself if

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that's what he elects to do. That's just as fundamental as

:1 the night is from the day, but to have both is torturous. It

~5
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does not help the individual and it certainly doesn't help the

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'; the lawyer that may be appointed.

..- - - - - - ~~----~_

.. - P--A--G--E---6--5-- --l

He is employed by the man. I

He can -- we leave them to work at their own salvation, but

when he is appointed and then there is co-counsel, you have

"I bedlam instead of order i1 the courts. I want to suggest to

5 you that we leave out "or both", that we have both, but not

h at the same time.

7

MR. HODGES: I want to ask a question if I may. I

was going to ask about deleting the "or both" and somehow

<:) , getting in matters of incompetence, getting in a competency

10 situation where an attorney must be appointed.

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CHAIRMAN BOWLES: An attorney will be appointed in

another Judicial Article in every instance. You canf:t deny

him the right of counsel. He is entitled to counsel. This

is only where he tries to represent himself on a co-equal

basis. Two cooks can't fix supper, two lawyers can't try one

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16

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lawsuit.

This is a hiatus in our law that should have never

z



17 ~ been there. Yes, sir?

18

REPRESENTATIVE MARCUS: Judge, I know it wouldn't

19 be in our jurisdiction because it provides for -- provides for i

20 both, but in the Federal Courts has due process -- has it

ever been held that due process would require that he can be 22 his own lawyer and still have another lawyer?

CHAIRMAN BOWLES: Well, let's see. No, I don't

24 !\ think he can have, as a matter of right, both. Furetta held

25 Furetta versus California, Supreme Court of the United States

lL____

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PAGE 66

I decision, in fact, if I could say it in a few words which they idid

) III not, they said it is a constitutional right of a citizen to

II act as his own counsel, when he makes this demand timely and
I,ii 4 Ii the court refuses to adhere to it and appoints him counsel
II 5 II then they have denied him his constitutional right. There are

6 III many facets to this thing. When is counsel determined?

7 II At arraignment? At the beginning of trial? In the middle of II
8 II trial or just where? You've got a trial judge sitting there
11
i9 trying to carryon an orderly process trial and the defendant

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says yeah, appoint me counsel, I'm indigent, ~ need a lawyer.
He appoints counsel, he takes over the trial of the case Rnd gets in the middle of it and the defendant says I'm tired of him, I'm going to take over my case myself and disrupts

14

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whatever the

lawyer has

tried to do

for

him.

Does the judge



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then have to accede to his request?

Who makes the decision

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about who will examine the witnesses,

the lawyer appointed by

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the court or the defendant himself if he's cocounsel and what

18 if they get in an argument at the table about who's going to

19 examine the State's witness? Is the court powerless to say

20 which one is lead counsel? Who's going to make the closing

21 I! argument which is the most effective tool that a lawyer has,

the counsel appointed by the court or the defendant himself

23

or can the defendant override~what appointed counsel says?

The process iA disrupted if he has coequal rights.

:1

25

:REPRESENTATIVE MARCUS: What happens if you only have

PAGE 67

r~

Ii the right to be represented

to represent himself, can he

I'

I

2 then raise an appeal that he was inadequately represented?

CHAI~AN BOWLES: ~o. Furetta says that it's the

I duty of the trial ju4ge to explain to him all of the pitfalls

': that he may encounter in trying to represent hinlself, that

[) he is not skilled in the law, he's not skilled in advocacy,

7 he's not skilled in whatever, appeals. I donlt know that it

8 said appeals, but you have to advise him of the pitfalls that

9 he encounters 'in making the 'e]ec-:ttoti1 and once he is advised

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and he still makes the election this is his constitutional right and you can't take it away from him. I'm not trying to take it away from him, you just can't have both. Somewhere sometime, and we're the only state in the Union that says "or both", --
REPRESENTATIVE THOMPSON: I'd like to make a motion. I'd like to move that we do as Justice Bowles suggests and remove "or both". I think your experience in this area

18 certainly ought to be taken into consideration.

19

MS. DAVIS: I second the motion.

20

CHAIRMAN""BOWLEST.' Ahydiscussi6n on this.?

21 All right, all those --

"L ..,:

REPRESENTATIVE }1ARCUS: Before you do, do you think

".:.'."_,

this is a section that ought to be in rights of persons?

24

CHAIRl\1AN BOWLES: Yes. Right of counsel is a basic

)~

0-,1 i: constitutional -_.

L

~~~__._.....__.....

._._. ..

'1

[r-~"~~--~

PAGE 68 MR. BONEY: Get me clear. We're just striking the

II
:1 of this State, in person, or attorney?
!I
II
CHAIRMAN BOWLES: He can have either.
II

r'lR. BONEY: Person or attorney. We have to strike
II
I

) :i by attorney and say or attorney, period.

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1"'~R. HODGES: He's just removing the last "or both".

7

REPRESENTATIVE THOMPSON: Remove the comma and put an

!I
8 Ii or in front of by.
I!

CHA.IRJ."'1AN BOWLES: You'll make a note of that?

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HR. HILL: Yes. CHAlill,WJ1 BOWLES: favor say aye.
(Aye::;.)

Any discussion?

All those in

14 .'.-..

CHAI~Uili BOWLES: Opposed, no .

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MR. HILL: Mr. Chairman, I would ask if this is another one of those issues that -- whether it's a placement

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question.

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CHAIFlllAN BOWLES: Flag it for placement and we'll

lY consider it when we corne back to that issue, does that suit

20 everybody?

21 i!

REPRESENTJl,TIVE MARCUS: Yeah.

"

CHAIR}L;N BOWLES: All right, X, Searches, Seizures

~J

and Warrants.

24 , "The right of the people to be secure in their

persons, houses, papers, and effects, against
' - '----~ - - - - - - - - - - - - - - - - - -

PAGE 69

unreasonable searches and seizures, shall not be

-,

violated; and no warrant shall issue except upon

probable cause, supported by oath, or affirmation,

II

.+ I

particularly describing the place, or places, to

:--
I:

be search, and the persons or things to be seized."

f,

II II

There is a tremendous body of law developed on these

7 particular words and I think the courts have been very

8 jealous to guard the rights granted here. Unless there is

9

i,
Ii

some compelling reason to change I don't believe we should

10 tamper with it. That's just my thought.
"z HR. BONEY: It's been construed so many times and

there's so much law on that if we change much of that we're

going to open up a complete new field.

REPRESENTATIVE MARCUS: Is there anything in the

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'70 Constitution on this at all? HR. HILL: Paragraph 14. It's misnumberp.d,
be Paragraph 14. It1s exactly the same.

i !
i.t sho'..lld

P5

CHAI~mN BOWLES: I thought it was changed.

J9

REPRESENTATIVE MARCUS: It says the same, doesn't

20

it?

21 Ii
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CHAIRHAN BOWLES: It says the same, but not the

22

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23 ::

same as in the '45 Constitution. significant changes?

You see the note at the end

24

REPRESENTATIVE MARCUS: I must be reading the wrong

25

thing. Is that not the vlaY yours reads?

lL.. __ ~

._ ... _..__..__ ..

. .....__. . __

REPRESENTATIVE THm1PSON:

PAGE 70
----------------1
This was a change made

-') when it was considered in the House. It was taken back to 3 the 1945.

4

CHAIID~lli BOWLES: I see. They changed i t and then

5 changed it back. You're correct. I just noticed that

6 it had a long paragraph on changes. You're right. I beg

7 your pardon.

8

l~PRESENTATIVE THOMPSON: They got into wire taping.

9

CHAIRMAN BOWLES: Yeah, you get into a can of worms

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when you get into th.at. HR. BONEY: I move-REPRESENTATIVE MARCUS: Before we do let me just
ask one more question before you move. No warrant shall

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issue

Does the Constitution set out who may issue warrants?

CHAIPJ'~N BOWLES: Yes. Well, the courts have said.

MR. CARLYLE: There's statutory direction as to who

can issue warrants.

CHAIRl\1AL"if BOHLES: Statutory, but the courts have
II
19 ii construed this to mean that it has to be a detached

20 magistrate unaligned with any law enforcement official.

2J

REPRESENTATIVE l'vll\.RCOS: That was my only real

22 il concern and I wondered if that had been dealt with

constitutionally anywhere else, but I have _.- In light of the

24 ! court decisions I'm happy. I would not be happy with the

25 fac-t
I'

that the General Assembly has acted in this particular

1:
I,I area.
II
II
:-' II

CHAIRHAN BOWLES: Well, the courts have said that

3 II it has to be totally detached. They've also said he can not

ii

4 be on a fee basis.

Ii

5

MR. BONEY:

Of course there's all kind of litigation

II
6 involving that and the issue of warrants, but insofar as the

I
7 constitutional provisions are concerned it's been'adjudicated
I I
8 by our courts and the Federal courts all up and down and we

9 pretty well have a body of law interpreting this particular

10 section.

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CIIAIRNAN BmiLES: And it has been very liberally

"-

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12

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interpreted to protect the individual.

Yes sir?

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MR. HODGES: Is that also concerned with wire tapping!

'----"

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14

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and such since it was brought up in the last legislature?

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interception?

I'm wondering if we should broaden it.

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CHAIRMAN BOWLES: I don't know what was brought up

1~ at the last session of the legislature.

IY

REPRESENTATIVE THOMPSON: Isn't there a federal

20 prohibition in that area?

21

CHAIRMAN BOWLES: Yes.

22

REPRESENTATIVE THOMPSON: I think there is a federal

23

prohibition.

24

CHAlill4AN BOWLES: State too.

25

REPRESENTATIVE THOMPSON: Both of them, but it's by

__ J

~2 statute.

- _._----_..._, ..

PAGE 72

__ _ - - - - - - __ ._--_. ,-----,_. ~-------_.

..

"--- ---._....

......

I

I know we have pretty comprehensive

CHAIRMAN BOWLES: The State law was construed that

3 the right of privacy could not accrue to an individual with

4 whom the other individual was in conversation. I could not

5 overhear you and Mr. Boney, that would be a violation, but if

6 you ,,,,ere talking to me I can transcribe it.

7

REPrtESENTATlVE THONPSON: Dh-huh..

8

CHAIRMAN BOWLES:

II

9 II
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Case in Carrollton.

It has been interpreted in Burge

10
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REPRESENTATIVE THOMPSON: There was a big case in Atlanta not so long" ago with one of the councilmen which involved taping a conversation between two individuals.
MR. BONEY: Mr. Chairman, I move we approve this

14 >I'<:x":
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language in X. REPRESENTATIVE THOMPSON: Second. CHAI~~ BOWLES: Any discussion on this?
favor say aye.

All in

18

(Ayes. )

19

CHAIRMAN BOHLES: It's unanimously approved.

i

20

XI, Benefit of Counsel; Accusation; List of witnesse~;

I

21 Compulsory Process; Trial by Jury.

22

"Every person charged with an offense against

23

the laws of this State shall have the privilege and

24

benefit of counsel; shall be furnished, on demand,

25

with a copy of the accusation, and a list of the

PAGE 73

witnesses on whose testimony the charge against him

is founded; shall have compulsory process to obtain

the testimonJ( of his own witnesses; shall be

confronted with the witnesses testifying against

him; and shall have a public aLd speedy trial by

(,

an impartial jury."

7

And the Legislature has also enlarged upon that to

is give the defendant out of state process.

y

REPRESENTAT~VE THOMPSON: I just wish we could get

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a little CHAIm1AN BOWLES: Criminal and civil courts. MS. DAVIS: I saw some reference to speedy trial.
There's no reference to this in this particular -MR. BONEY: Last sentence. MS. DAVIS: Speedy trial, okay. REPRESENTATIVE THOMPSON: Wish we could get a little
criminal discovery in this, I just 'love that.

IS II II

CHAIffiiif"\N BOWLES: You want some? Well, you could

il

1lJ get it if the Legislature would adopt it under the present

20 Constitution. The Supreme Court of the United States,

Barton versus Wingo, what is that, have set the parameters

for a speedy trial and the law is fairly well fixed in that

area. The Congress has an act making theirs a little speeder

than the Sta-te' s. Any discussion about this article -- thi.s

paragraph?
, , - - - - - - - - ---- -----~------ - ---

PAGE 74

HR. HODGES: This is one of the neute:tizing~_tfuings

2 that will have to be taken care of, the use of him and person

J and so on. There is what appears to me to be some grammatical

4 difficulty because it says every person charged with an offense

5 against the laws of the State shall have the privilege and

6 benefit of counsel, then it picks up shall be furnished with

7 on demand with a copy. It seems to me something should be

]eft out there in order to give continuity to the flow of the c; sentence for sense because you're not saying when you pick up

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shall be furnished on demand with a copy you have nothing that I
the shall be is furnished referring back to. CHAIRMAN" BOWLES: Isn't it every person? MR. HODGES: No sir, not the way it's written. CHAIRlvlAN BOWLES: You mean the grammatical
construction is poor? MR. HODGES: Yes sir, and we need someone to look
at that for us.

18 ,

CHAIRMAiJ Bm'U,ES: Suppose we do that and let I s get_

19 it in the proper grammatical construction.

20

REPRESEN'l'ATIVE 'rHOI-1PSON: Let me ask one other thing.

)I cJ

This is a -- involves the laws of the State, hasn't the court

interpreted this to also mean that he I senti-tied to counsel

where he's being tried for violation of a city ordinance?

24

C!IAIR~Ll\N BOWLES: The Federal has, Federal courts.

25

REPRESENTATIVE THOMPSON: I notice in our recorder

PAGE 75

court the first thing the judge asks everybody, whether it's a
I
-, Ii city ordinance or violation of the State, do you want counsel?

II

3 II Do you think we're at the point ....here we ought. to include

:1

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III. 'i

violations of State law or city ordinance or '\vhatever?

5

II
II

CHAIF.NAN BOWLES: If it's punishable by imprisonment

I

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you're entitled to counsel under the Federal Cons~itution.

7 Didn't a case go ~rom Albany of a Georgia decision, Champion

(~

versus

:)

REPRESENTATIVE ~~RCUS: Misdemeanor Division?

III
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CHAIRMAN BOWLES: If it1s punishable by imprisonment. REPRESENTATIVE THOMPSON: Misdemeanor is a violation

of a State law. A city ordinance is something entirely

different.

MR. BONEY: But if it carries imprisonment or

"

i .) '0 confinement it still has to be furnished with counsel.

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REPRESENTATIVE THOMPSON: But this doesn't say so.

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MR. BONEY: But that's under the ruling of the

18 Federal Court. Of course that creates a lot of problems that
!!
111 11 we're not here to solve, but at what stage is he entitled to

20 counsel and I'm sure all of you are familiar with that. If

21 you go around the courts sometimes it's a real burden on the

2:' judge to determine whether he's indigent or whether he just

willfully won't pay for counsel and we don't have any criteria

24 i for that very much.

25

REPlmSENTATIVE tvlARCUS: Insofar as the State

PACL 76

Constitution is concerned we're not suggesting, are we, that

shall be furnished counsel, we're saying he shall have the

benefit of counsel?

MR. BONEY: He's furnished that, that's the way it's

interpreted.

REPRESENTATIVE lJiARCUS: Under the State Consi tution?

7 II

Iv1P.. BONEY: Is that not practically correct, Mr.

8 Cha ir:ilan?

CHAIRMAN BOvILES ~ I think being enti tIed to it, I

10 guess he could waive it certainly.

11 >-
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REPRESENTATIVE 11ARCUS: But: entitled CHAIHMAN BOWLES: When you say shall be furnished

it means he would have -- it would be mandatory under any

14 ~
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circumstances, would it not? But if he's entitled he gets it at~~;matter of constitutional right. He is apprised of his right and exercises a choice.
REPRESENTATIVE MARCUS: I find a great deal of

18 difference between shall have the privilege and benefit of

19 counsel and being furnished counsel. One is that I have the

W right to be represented by counsel. The other is that I don't

21 have to pay for it. I can go get it. You've got to give it

22 to me. Laying aside the Federal Constitution, I just never

23 have -- I could read this for tlours and never read that this

requires the furnishing of ~ounsel. If you drop that

25 semicolon why then that's a different story, but the reference

PAGE 77
~~re~hall :'-;~rn~:h~~ on demand- wi~h--: copy of - : : - -..- --,

2 ' accusation, that's the furnishing.

3

REPRESENTATIVE THOMPSON: And a list of witnesses.

4 I,

REPRESENTATIVE MARCUS: That's what you've got to

:)

i
i

furnish him.

I recognize that the Federal Constitution goes

!

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6 Ii a whole lot further and I don't know that I necessarily agree

:1

7 IIIi with it.

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8

REPRESENTATIVE THOMPSON: They've got some standards

9 for furnishing counsel, too. That's not an automatic

10 furnishing of counsel in Federal court. They go into

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indigency perhaps to a

greater degree than the State does.

Q.

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REPRESENTATIVE MARCUS: Yeah. I wouldn't want us
to rewrite this in any way that would indicate that we're
I

14 .>..-. suggesting that we have to furnish counsel, blanket furnish

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counsel.

I think we have to always give them their right to

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by

counsel.

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CHAIRMAN BOWLES: Well, we would have to change it

18 to do that.

19

REPRESENTATIVE MARCUS: I don't think so. Really, I

20 think grammatically we could argue about what it really says.

21 I

MR. BONEY: Sidney, I believe the way it's being

22 interpreted now and applied, they're construing it to be

furnished. Now I don't say that it's just furnished wholesale :l " i without any exceptions, but basically I think if a person is

charged with a crime, a felony we'll say, most places in our

P,ACE 78

~ ~ - - - ~ - -- ~ - - ~ - ~ - - - - - - , ~ - ~ , - - -

~

I, state and he appears at the arr-aignment and the judge asks
Ii

Ii him do you have counsel and he says no, are you gojng to
2

3 Ii provide counsel', no . I think the judge will as~ign him
!'!I 4 " counsel. Whether it be a public defender or whether it be a
il
i
5 member of the bar, he'll say you're going to represent Mr.

() So and So. I don't think there I s any criteria that I know of

7

anywhere set up whereby the judge determines his ability to

pay.

9

REPRESENTATIVE MARCUS: So long as it's the law of this

10 state without regard to what it is.

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HR. BmlEY: If the crime can impose imprisonment,

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yes.

I think the Federal Constitution requires us to do that

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whether it be city ordinance or whether it be a misdemeanor

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or a State offense. EEPHESENTJl.TIVE THOMPSON: There's some advantage in
following that course apart from the cost to the State. If it goes up on appeal and this man has not been provided with

18 II counsel at a lower level this is something else they can

19 contest on appeal, I should have been provided with counsel.

20 Then you've got to get into whether or not he's indigent and

~i

there's another chanr::e for somebody that has been convi cted of I

a crime to escape whatever the punishment for that crime would
,,
_.) be. I'm sort of halfway in favor of the courts, particul,arly
24 at the beginning levels of the case, being sure that a man has

counsel. Then they have tiITe later to investigate whether or

'1
i
I)ACE 79

not he's entitled to have appointed counsel, but certainly at

the preliminary hearing or committal hearing, that kind of

thing, they ought to be real, real liberal in the construction

4 of who's entitled to counsel.

CHAIRlJL"I\l'J BOWLES: Mr. Hodges?

MR. HODGES: Judge, there appears to be a reference

7 back t.o Paragraph IX where we struck out "or both", wherein

8 the reworking of this Paragraph XI we can satisfy the argument
9 and the discussion that's going on. I'm going to give you
10 some such~.ses to show how we can clarify what Mr. Thompson
l? Z
is saying here. For instance, after every person we put in

a semicolon and then we would say who is charged with an

offense against the laws of this state; then it goes into the

"

shall have the privilege and benefit of. counseL; shall be

15 ~

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furnished, on demand, with a copy of the accusation, and a list of the witnesses on whose testimony the charge against hi~ is founded; shall have compulsory process to obtain the

]8 testimony of his own witnesses; shall be confronted with the

19 witnesses testifying against him; and shall have a public and

. .. . 2U speedy trial

" Now \\That I was trying to get into is here

21

on the third line down where I put in the semicolon after

"State" I would recommend then 'shall have the privilege or

,I

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'i

~," benefit of counsel~ "and" makes it compulSGry, "or ties it in

24

to Paragraph IX above where he has the right to choose or not

to choose counsel.

PACE 80

I

MRS. OSTRAl\jDER: Would that keep it still as liberal?
II
I'

2 I'Ii

MR. HODGES: I think it makes it very liberal in

3 II that case and removes the dilemma from the court.

il

I

4 II'Ii

MRS. OSTRANDER: I think we're asking the court to

5

1II\
I'

set criterias, otherwise who's going to interpret --

i

6 il

MR. HODGES: There isn't any interpretation needed

I! 7 II with'bt'there. I'm drawing from the argument of lawyers here
II

8 and this is what I see. As it reads now it looks to me like

9 'I i.he court has got to do it.

10
..,

MR. HILL: Isn't that referring to two different

z

11 ~ types of counsel though? This is referring to his right to

o
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17 ~'" be represented either by himself or by someone else, but it's

~ really just referring to his right to counsel. Now I'm not

14 .>..-

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sure, do you think that the or wou1n -- I'm not sun~ that this is referring back to that article, Paragraph IX.
CIIAIID-'lAN BOliVLES: Let me say this, on IX this right applies to both clvi1 and criminal cases as to be able to

18 represent himself in each instance. Eleven is talking about

19 a person charged with a crime and his right to be represented

20 if he's indigent and notable to.

21

MR. HODGES: I'm giving that as an example, M:r.

)""1
Chairn~n, which I'll put in writing.

CHAIm~N BOWLES: Suppose you do that and let's
., , study it a little bit. I would like to think about it as to
h,
what that would lllean, if that would change the meaning. .Maybe

1'---- - - - - - - - - - - - . - - -------- -----
Ii we can see similar case law on the point.

PAGE 81

""' ."

REPRESENTATIVE MARCUS: The balance of the

i

i! Constitution doesn't discuss venue as a question, does it?

CHAIRMAN BOWLES: Not in his rights, but it's in

s

MR. CARLYLE: The Judicial Article.

Ii

II

j

REPRESENTATIVE MARCUS: In many of the other

7 Constitutions, in addition to the words "impartial jury", in

8 some of the others, they say -- I'm trying to say in that
I
9 I particular venue.

10

CHAIRMAN BOWLES: I think the gist is that you're

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1I :- suggesting he be tried by a jury of his peers in his own venue.

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REPRESENTATIVE MARCUS: Here it says IIspeedy trial

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by

impartial

jury

in

the

county

in

which

the

offense

is

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14 >- alleged to have been committed. 1I

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CHAIRMAN BOWLES: That is covered in another Article,:

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16

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is

it

not?

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MR. CARLYLE: It's in the Judicial Article, the

18 venue section that says, " and all criminal cases shall

19 be tried in the county where the crime was committed, except

20 cases in the Superior Courts, where the judge is satisfied that,

21 an impartial jury cannot be obtained in such county."

'1

REPRESENTATIVE MARCUS: If that's in the appropriate

23 place, fine.

24

CHAIRMAN BOWLES: That's where it's been for a long

time.

Well, on this particular one, are you going to suggest
- - - - - - - - ------------~--- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - _ . - - - - ----

PACE 82

some languaeJe to us in ,vritten form and let us study that and

2 come back to that? Is there any other discussion on the

3 pa:ragraph?

cl

REPRESEWfATIVE 'l'H01'-'lPSON: Let me -- Can I do this,

'i make a motion that we adopt this as it is or at_least that the

() same type thing we've been doing with the others, that does

7 i not preclude him from

:1

11

CHAIR1'1AN BOWI,ES: Suggesting an amendment?

I:

9

REPRESENTATIVE THOMPSON: Yes.

10

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CHAIPJ-1A.N BOWLES: All right, is there a second then that ,"Ie adopt it as it is subj ect to later amendment?
MS. DAVIS: I second it. CHAIRMAN BOWLES: Any discussion on the point? All those in favor say aye.
(Ayes. ) CHAIRMAN BOWLES: Opposed, no. It's approved. Paragraph XII, Habeas Corpus.

IS !1

"The write of Habeas Corpus shall not be

19 I: ,I
20

suspended." This always said except in time of war and I don't

21 know who struck that out or why. Does anybody know? I was

)~
surprised that it didn't say except in time of war. How

-,-~

about doing a little research for us on that one and see why

24 that was omitted, if you could, and sec what other states have

dvne? You can not protect the State if Habeas Corpus will
lL __

release all prisoners of war.

2i

REPRESENTATIVE MARCUS:

PAGE 83

_----- - - ~ ..

-------------~

i
I
I

Most of them say "in case of \

3 rebellion or invasion, the public safety may require" suspensidn.

4 I,

CHAIRMAN BOWLES: We used to say it in our

5 Constitution, did we not?

h!1

MR. HILL: Yes, at one point.

7 ':

CHAIRMAN BOWLES: Where is that comparable section?

:,

REPRESENTATIVE THOMPSON: Seventeen ninety-eight says:,

liThe writ of Habeas Corpus shall not be suspended unless in

10 case of rebellion or invasion the public safety may require it)'
Cl
Z
II :;; Eighteen sixty-one says, "The writ of Habeas Corpus shall not oau.
12 ~ be suspended unless in the case of rebellion or invasion the
~ ~ ".."". public safety may require it."

14 ~~

CHAIRMAN BOWLES: What page are you reading from?

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15 ..:>

REPRESENTATIVE THOMPSON: This is from the old

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16

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Constitution.

This is the Constitution of 1798 and this is

a

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IS

REPRESENTATIVE MARCUS: Almost every state you have

]'t us has it.

20

MS. DAVIS: The last one, 1887, has the war removed;

21 1877 has removed --

MR. HODGES: I'd like to move we adopt this paragraph:

23 with the consideration of adding those words.

24

REPRESENTATIVE THOMPSON: It was removed in 1877

Constitution.
\l____ _ ~ ------

------_.- ---_.-._"- - .-----------_._._--------_.- .-- -------------

I' ;\(.a~ 84

REPRESENTATIV1i: lylA.RCUS: Did the 1970 revision

att.empt t.o --

REPRESENTATIVE THOMPSON: They didn't put it back

,j in. It doesn't have it either. Those words are out.
11
5 Eighteen seventy-seven it says, "The writ of Habeas Corpus

6 shall not be suspended".

CHAIRMAN BOWLES: All right, and your motion, Mr.

8 Hodges, is what, sir?

9

MR. HODGES: I move we adopt Paragraph XI with

IU consideration of adding the words except in time of war.

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CHAJPyffiN BOWLES: Is it XII, sir? MR. HODGES: I'm sorry, XII, except in time of war or rebellion. I'm asking for consideration of it. It doesn't

14 >- mean ---
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4

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15 ,~

CHAIPJ..1AN BOWLES: Consideration of it.

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REPRESENTATIVE THOHPSON: It's all right. with me to

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17 c"o" ccnsider it, but if we were invaded and we had that type of

18 chaos there wouldn't be any organized government to suspend 1') the writ of Habeas Corpus, at least I have problems seeing :::0 where \ve would have enough organized government to worry about

21 I; suspending the writ of Habeas Corpus . ..,..,
MR. BONEY: Would you have enough peace and quiet to

have it -- to have it suspended? I'm not being facetious, but 24 it strikes me if we don't have enough solemnity to suspend it

would we have enough solemnity to invoke it?

85
-i
REPRESENTATIVE THOMPSON: We possibly wouldn't in

the case of rebellion. I don't know whether this Constitution I

says it or not. It says the people have the right to rebel

if they disagree. I don't know if it goes quite that far,

but to change the form ofnhe Constitution and do some other

things vihere they are in disagreement, looks like those two

7 things are in conflict.

8

CHAIRIJIAN BOWLES: I'll give you an example of when

9 it was necessary_ When the Japanese attacked us December 7th

10 of 1941, there were many Japanese nationals. The writ of

I 1 f-
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Habeas Corpus applies to citizens and noncitizens,

applies to

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'" any person and we found jt necessary in the interest of

protecting this government that those Japanese nationals be

impounded. If the writ of Habeas Corpus had not been

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17

suspended because of the war they could not have been kept. REPRESENTATIVE THOMPSON: I'm not quite sure we had
any right to do that to them.

18

CHAIRHAN BOWLES: I don't have any problems with it.

19 I'm glad we were successful in that venture anyway.

,'0

REPRESENTATIVE THOMPSON: But did we abuse a whole

21 lot of really good American ci.tizens? We may have picked up

22 a couple of folks that were potential spys, but there's a real

23 question on my !l1ind and I Sa'iiV something on it not long ago

24

talking about the matter of good American citizens, the fact

that they were of qap~nese ancestyy did not keep them from
It

being 9'ood l\merican citizens.

2

CHAIr~N BOWLES: I can't judge the facts. I'm only

~ speaking of the right to suspend it in Jcime of war seems to me

4 to be essential or it did. Yes sir?

"

MR. HODGES: What.'s behind my reasoning, and I wasn't

b going to discuss it here, I thought we'd do it at another time,

7 but following the line of reasoning here is that what is now

~ happening in the post hoc trial situations after governments

9 come back in to formative states it is then that they are

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going back, for instance, the Nuremberg trial si'cuations, and they are saying that because of the suspension of law and order this right did not prevail. The law -- You know, the right of war and the lack of law did not prevail. It was

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always the right of law and order to prevail. Therefore, you know, we must go back to the Constitution under which you were governed and that's what I'm saying here. If we're leaving anything out of the Constitution, let's say perhaps

i~ II some day we might be invaded and this situation may occur, !I

1<) IIII we might.

we perhaps would prevail and therefore we'll have

20 I to go back to la\1'/ as our reference point and I just want to

I

21

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I,

make sure we're covered in everything.

I don't want to

i

22 offend anybody. I want to be very careful that we do not in

"...:,.)

any way injure someone by suspicion alone.

24

REPRESE'T't'ATIVE THOMPSON: He had an administ.ration

one or two administrations ago where I Delieve the President

I'A<:)" 87
If
II was capable of suspending the writ of Habeas Corpus for 1
nefarious purposes. I'm talking about Mr. Nixon. I think he

could have done it and under those cjrcurnstances I'd rather

~ see just a blanket prohibition against the suspension of the

~ writ of Habeas Corpus rather than putting some language in

(, there that a man that I feel has that tendency would be able
'1
7 :1 to hang his hat on and say I'm doing this because of something

t.:.ha.t he's building up there. I just don't see where the

absolute prohibition of the suspension of the writ of Habeas

IU Corpus is going to hurt us if we get into

...,

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MR. BONEY: P.re we really though right now more or

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less approving it with the right to study the question of maybe putting additional lanyuage in there, as I understood

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it?

MR. HODGES: That was a motion. CHAIRHAt"\f BOWLES: I do have a motion.

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discussing that motion now.

vJe ' re

Ii<

REPRESENTATIVE THOMPSON: I was just throwing that

i9 i out. I think this is the time for us to express how we feel

about these various things. We aren't making a definite 21 !' decision.

CHAlillimN BOWLES: Mr. Marcus?

REPRESENTATIVE MARCUS: I am mystified that is
.'.) r;
everywhere I see -- Does everybody understand what a writ of

H;xbeas Corpus l. S.? It's in the Constitution. It says i.t ::;11.all

I not be suspended except in tilce of war or rebellion. You mean

2 I there was a time when everybody knew what Habeas Corpus was, I

I I

that it was that clear?

There's a lot of things that are not

4 defined here, but I can't believe that everybody knows what

5 the writ of Habeas Corpus is that it shoul~ or should not be

6 suspended by individuals or actions of government. What does

-,
I

it mean?

:-)

REPRESENTATIVE THOMPSON: Doesn't it mean they can't

!!

l) hold you withouJc due process Lasically?

10
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MR. BONEY: Produce the body. REPRESENTATIVE !4ARCUS;, Produce the'.body . REPRESENTATIVE THOi\1PSON: I've go'!: to test whether or not you can hold this body without just cause. It only

1f ;t,.;
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16 "7-' '-', :::7\ <<l L

resuires a hearing. CHAIRlJI..AN BOWLES: Of course 1n time of wa.r really
the military can do it anyway. P~PRESENTATIVE THOMPSO~: When they declare -- They

l~ did it over Phenix City, Alabama, what is it?

I',

CHAIRHAN BOWLES: Marshal law.

~O

REPRESENTATIVE THOHPSON: They su~o;pended the writ

21 then, is that right?

)'>
CIIAIRNAN BOWLES = I'm not sure.

23

REPRESENTATIVE MARCUS: Hho?

.,

.~

REPRESENTATIVE THOlvlPSON: When they declare marshal

'"'Ie
law, the only time I've ever known they put it under a general

PACE 89

_. - ._._----- .- "-~--_. ~-_._~

-

-~--,-_._-

_.-'.' - - - - - - ,

I

over there in Phenix City, Alabama and h.e was picking' up folks

and doing what he ivimted to with them.

3

REPRESENTATIVE MP~CUS: Can the Governor of the

4 State suspend the writ of Habeas Corpus by unilateral action?

5

REPRESENTATIVE THOMPSON: Not with this prohibition

() against it.

7

REPRESENTATIVE MARCUS: No, no. Can he ever do it?

K

REPRESENTATIVE THOMPSON: I don't see how he could

<) ao it. I don't think the Governor of the State of Georgia has

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the right. Har or rebellion is a national matter, it's not a StRte matter anyway. fNe can't declare war against Germany or anyone else. We can't declare war against Alabama. Rebellion, rebellion against what, the laws of the State of Georgia? This is a ridiculous concept, I. think.
REPRESENTATIVE !-1ARCUS: You may be giving the argument that took the language out.
MR. HODGES: It may be.

IK

REPRESENTA.TIVE THOMPSON: I'm in favor of the

19 i
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language staying out, that's what I've been saying. REPRESENTATIVE ~~RCUS: I was wondering earlier why

21 i it had been removed. You may be giving the argument why?

l1R. BONEY: These states here, all of them have some provision except two.
24
MR. HODGES: I'm simply saying let.' s do what we're

doing now. I didn't understand we were going to carry this

PAGE

90 ---i

discussion any further, but for instance in the last month

2 South Carolina passed two statutes related to this in

3 anticipation of the national environmental guard entering the

4 state in a manner in which it could be -- their entering the
5 state could be rebellious and, as you know, 16 a pc:ople were

6 arrested under those statutes over th(~ vreekend. Tha.t test

7 is being brought about now. There is a case of rebellion

8 ~..,i thin the bord(~rs of the state. They saw i t as such. They

could have gotten into the nuclear facilities and could have

10 endangered the populous by exposing the -- those deposits that
u,.
II ::;; are.: buried over in the Barnwell area and of course now they're
e..
12 ~ talking about marching this weekend on the Savannah River "-

~ plant which is even more dangerous. I want to protect those

14

;-
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people as well as I

want to protect anybody else, but the

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15 "'"'::":> question goes back to research. As a matter of fact, this was

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one

of

the

fundamental

things

that

was

put

into

the

articles

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at Runnymede.

In fact, it may have been the first one,

18 the right of Habeas Corpus if I'm not mistaken. There's got

19 to be a reason why these things are all there. To discuss

20 it I think is vlhat we ought to be doing, but the Chairman did

21 call fer the research as to why it had been taken out and I'd

)')
really like to know why it was taken out.

23

CHAI~~AN BOWLES: I would like to know. It's

24 apparently been out since before '45 .
.,<;
REPRESENTATIVE THOMPSON: 188"1.

!r---
CHAIID1AN BOWLES: Was there a Republican Governor

of Georgia in 187??

,i

I,

3I

REPr~SENTATIVE THOMPSON:

i!

Possibly we did.

4

HR. HODGES: I think that was called the populous

II
'i II constitution of Georgia.

(,

REPRESENTATIVE THOMPSON: Can I say this about the

situation Cheatha.In just. proposed and then I'm going to quit?

In the event that people are trying to get into a nuclear

() !
Ii

facility and they can surround them with guards, take those

10 people and arrest them the writ of Habeas Corpus in that
lz'.
II ~. inst.ance would only say they can I t hold them but-. so long

without giving them a hearing. If they do then they've got

a right to file a writof'Habeas Corpus to ~ake them show why

are you holding me? That's the only effect it would have. It

." x

15

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wouldn't have

any effect in helping

to

stop,

you know,

the

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removal of the prohibition would have no effect in stopping

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disorder of that type.

They've got the right and the power,

1

and they've got the obligation and the duty to stop that

19 I disorder. The only thing it says is you can't just hold them

20 in j ail without trying" them for any great period of time and

the writ of Habeas Corpus it would be their method of
,)
testing your right to hold me in prison, am I wrong, Judge?
,1
CHAIRMAN BOWLES: I think you're right, but what does

the Federal Habeas Corpus --- what does the Federal Constitution

sayan Habeas Corpus?

PACE 92

ir "
I,I'
II
Ii
2I

MR. BONEY: I think I've got it. REPRESENTATIVE THOHPSON: They can talk about.

!

3 rebellion and they can talk about insurrection and war in terms

4 that the State of Georgia can't talk about those things.

r;

CHAIRMAN BOWLES: Perhaps not. I can't imagine in

6 every instance, but surely if -there is uprising thee-state can

7 i put down the uprising. They don't have to wait for the

Federal Government to do it. We can do whatever is necessary

to prevent an uprising within the state.

10

REPRESENTATIVE THOMPSON: The prisoners at Reidsville,

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11 Io-e would be in rebellion against the State of Georgia if they

o

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12 .~.. tried to take over the prison and we wouldn't hesitate about

IZ
=~ ~ going in there and quelling -v>

14 >-
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MR. BONEY: The Federal Constitution says, "The

15 ~ writ of Habeas Corpus shall not be suspended unless when in

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16

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case

of

rebellion or

invasion

the

publl. c

saf ety may

requ.lre

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17 ""OJ it", almost the same language of these other states.

I"0

CHAIRHAN BOWLES: Should ours be any less than that?

19

REPRESENTATIVE MARCUS: I'm curious why New York,

20 Illinois, Massachusetts and some of those states must have had

21 revisions since 1877, and I'm curious as to why they kept it

22 in there. At some point -- I don't know how I would ultimately

'_).J'

feel, but I at least would like to know why it was taken out

24 and why they have kept it. There must be something that we're

25 not thinking.

PAGE 93

,I

I,

I

CtI1URHAN BOWLES: Do we still have the minutes of

the '77 Convention;

MR, HILL: 1877? I'm sure the library does.

IIj'
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CEA.IFl-1P..N BOWLES: I'm sure it does too. Suppose we

5 get it. It's probably going to be spelled out. if it was

() I removed from our Constitution in that particular year and if

7 so, .it's probably going to be a matter --

X

MR. BONEY: ~1r. Chairman, I think thi ~3 mis;ht be

9 helpful for us too if the staff could do research on when and

II,I' how it gets suspended, if the writ has been suspended and how,

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the procednre for suspending it.

It might be helpful.

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MR. HILL: You mean in this state?

CHAlill-'IAN BOWLES: You're talking about the practicaJ

application of it in our history?

MR. BONEY: Right. Oh , yes sir. I think that ,,,'auld

be very helpful.

CHAIRJ.\I',l\N BmI1LES: You might get a l101d of l\lexis

and punch it rnlt.

MR. HILL: That's right.

CHAIRJ'-1AJ.~ BOWLES: Well, we've thrown i t all on the

table and ,,,e certainly know the issue I vlhether we want it just

without an exception or whether or not the exception that's

included in the Federal Constitlition and the Const.itution of

24 j most of the states should be in ours.

I would think, and I'm

i not a history student enough to knew what went on in '77 or

when this was developed, but I would think that those were

very turbulent years as far as State Government was concerned.

3 I know as far as groceries ~lere concerned grandmot.her said it

-+ \.ras pretty bad. Suppose let's get some more information and
5 Ii bring this back up again becaus~with suggested language I

G would say if it were just exactly what the Fed. Constitution

7 says that it would probably be sufficient if we're going to

8 add it in. If net, it doesn!t matter anyway, right? At least

9 we can all consider it. We know what r~he problem is.r'iaybe

jO
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1 j f-.
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cu.,
12 u
,~
,-
Z
~I.l.l

you can enlighten us some on it. If you get up something in the meantime suppose you distribute it to all of us so we can see what we're talking about.
MR. HILL: Okay.

CHAIIDflAN BOWLES: Is that all right? Then we'll

Ij
,

:'J

1(

(Q
1-

'w

(. ~

,

J 7 "c"-

leave it. Everybody agree that we will leave -- It's 12 at this point. Now do y1all want to get a bite?
REPRESENTATIVE ~1ARCUS: Before you do I think you

I'; I ought to make Cheatham tell us where he I s going and why?

19

MR. BONEY: He might be compelled to incriminate

20 himself.

21

MR. HODGES: I have an invitation to attend the

1'

Papal Ceremonies tomorrow in Chicago.

REPRESENTATATIVE MARCUS: Cheatham is one of the

very few throughout the country.

CHAIRl.rlAH BmVLES: You've been invited, that's great.

MR. BONEY:

PAGE 95 --- ----_._--- -.- -_._----- -_. - - - -----Congratulations.

MR. HODGES: Thank you. That's the only

trepidation I have about getting away.

CHAIRMAN BOWLES: I wouldn't want you to miss it.

5

MR. HODGES: I'm all right on time.

CHAIRMAN BOWLES: How much time do y'all want to

7 take for lunch. We're at XII. Some of these are not even

8 going to take anything but just a motion: Slavery,

9 Imprisonment for Debt, Costs prior to trial, Status of the

10
"z
11 l-
...oce<..
12 ~
:~~t~i~ 14 ~ l<V'> J: 15 ~ "u:: :;) 16 ~... az < 17 :i5

Citizen. All those are going to just -- They're so bedrock. MR. HODGES: Is it necessary that we break right
this moment? Is it necessary to break right this moment? Could we perhaps go to 1:30 and see how far we can get? We may want to suspend for the day.
REPRESENTATIVE THOMPSON: What time does the State cafeteria close?
CHAIRMAN BOWLES: I think it's 2.

18

MRS. OSTRANDER: I think it's 2.

19

REPRESENTATIVE THOMPSON: I like to eat over there

20 when I'm in Atlanta rather than the hotel dining room. It

21 do make a difference.

22

CHAIRMAN BOWLES: Unless someone objects to this

we'll move along as speedily as we can, but on Chapter XII

:: !
I I mean on Paragraph XII we \ViII leave it with the study/

25 il

~~osal _and_~=~~g__itb-_a_c_k_u_P_, r~_~~~?

_

1------------------------- -.----.--.---.-.- -----.-----

[II

REPRESENTATIVE THOMPSON: Right.

I
2I
I
3 that?

CHAIffi1AN BOWLES: All right. Is there a motion on

4

REPP~SENTATIVE THOMPSON: I so move.

REPRESENTATIVE MARCUS: I second it.

CHAIRMAN BOWLES: All in favor say aye.

(Ayes. )

CHAIHMAN BOWLES: Opposed, no and it's unanimously Q approved.

10
-l?,
Jl '

XIII, Crimination of Self Not Compelled. "No person shall be compelled to give testimony

11.1
12 ~
zf--
, ~!!.!!!!.. ~~~ .. .i-I

tending in any manner to criminate himself." REPRESENTATIVE THOMPSON: I move we move that

, J4 )0..-
,~
r 1 <:; ,'j
A _'
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16 'z" "(")
~
17 ,:r:

language -- leave that language as it is. MR. BONEY: I second it. CHAIRMAN BOWLES: All those ln favor say aye. (Ayes .)

18

CHAIRI-1.AN BOWLES: Opposed, no. It's unanimously

19 approved.

20

XIV, Bail; Fines; Punishment; Arrest, Abuse of

._")1

Prisoners.

"Excessive bail shall not be required, nor

-, -'' I

excessive fines imposed, nor cruel and unusual

,.,, punishments inflicted; nor shall any person be

abused in being arrested, while under arrest, or

PACE 97

in prison."

REPRESENTATIVE MARCUS: That was the same in '70

CHAIRMAN BOWLES: This has been pretty uniform. There really isn't much that we can get away from that. It's

pretty fundamental.

r.

MR. BONEY: I move we approve it.

CHAIRMAN Bm'lLES: Is there a second to that?

l'

HRS. OSTRANDER: I second it.

~) Ii I

CHAIillUlli BOWLES:

!

!O
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1I
rc c'
1,

favor say aye. CHAIRMAN Bm~"LES:

Discussion on it? All those in Opposed, no. Unanimous ly approved.

XV, Jeopardy of Life or Liberty More Than Once

;: E'orbidden.
,.n

,

I ()

1:'-,
;:

Cl "7
, -I c

"No person shall be put in jeopardy of life or liberty more than once for the same offense, save on his, or her own motion for a new trial after

; .\
, J\) i, I

conviction, or in case of mistrial." MR. BONEY: I move we approve that one.

-2U

CHAIRMAN BOWLES: This has a wealth of case law

,I

that I don't think we better monkey with.

, MR. BONEY: We'd just open up a keg of worms if we

.'3

di6_ that.

24

CHAIffi1AN BOWLES: I might mention here that the

... .:;:
federal rule on this does not mention the word mistrial so

PAGE 98

some of the judges have said if there's a mistrial you can't

I try them twice, but I do not agree with it. If you could do

that he could get in the middle of the trial and disrupt it

so you couldn't proceed and be discharged.

MR. BONEY: Deliberately bring about a mistrial.

CHAIRMAN BOWLES: But double jeopardy, we all agree

on this. There's a motion, is there a second?

MS. DAVIS: I second.

CHAIR}~ BOWLES: Any ~iscussion? All those in

favor say aye.

c:.'

j1 :

(Ayes. )

CHAI~~N BCWLES: Opposed, no. Unanimously approved.!

REPRESENTATIVE THOMPSON: Has anyone ever been tried

~ ,.~ r for treason in the State of Georgia? n

"

1S .~

CHAIRMAN BOWLES: I beg your pardon?

REPRESENTATIVE THOMPSON: Has anyone ever been tried

for treason in the State of Georgia? The next item is

"1.('1

treason.

J ,)
CHAIRHAN BOWLES: Not in modern ti.mes.

REPRESENTATIVE J-tARCUS: There hasn't been anybody
);
tried for treason.

CHAIRMAN BOv-7LES: I t:h in:<. maybe there was some

treason before we were a state. That would be against the

king though, wouldn't it?

IvlR. BONEY: I don't know if there's any reported

cases in our annotated code.

PAGE 99
-------------- --- --- - - - - - - - - - - - - - - - - - . . ,

CHAIRMAN BOWLES: I've seen some treason, but I neve~

~

I'
I

have

seen any convictions.

I

I,

1

i
II

,

,I

:)

I, Ii

!i

() it out.

MR. BONEY: We don't have any cases cited in the Codei. REPRESENTATIVE THOMPSON: I'm not in favor of taking

7

;1 \1

MS. DAVIS: The '70 Constitution has it out.

:1

8

MR. HODGES: It was excluded in one of them.

CHAIRMAN BOWLES: It's really a useless --

10

REPRESENTATIVE THOMPSON: I don't even know what is

;.:1

Z

J1

,":')-

means,

actually.

We're talking about war against the State of

;l..

I' 1-

u:Yo

Georgia.

That means you jump up and start shooting at folks

_ ~_~\1_ ,\Ill.:!

>-

~/--u e.."""o Z and killing people.

You can try them for murder, you can try

-

14

>-
>-

them

for

aggravated

assault.

~

<r

IS ~

CHAIRMAN BOWLES: You could try them for trying to

'.:1

:':">

1(,

~ wo

overthrow

the

State

government.

You could get a group of

z

<

17 :; men together and say we're going to overthrow the State

IS government, that would be treason.

I L} "

REPRESENTATIVE MARCUS: We have them in the balcony o~ten

20

MS. DAVIS: We have them on the floor.

21

MR. HODGES: I move we leave it in.

-, ,
CHAIRMAN BOWLES: There's not any real problem with

23

'i
I:

it,

except

it

just doesn't occur often.

24

REPRESENTATIVE THOMPSON: Often looks like never.

25

CHAIRMAN BOWLES: There's a motion that we leave it,

---------------

r -------------------------------------
is there a second to that?

PAGE 100

2

MR. BONEY: I second.

3

CHAI~ffiN BOWLES: Any discussion? All those in

4 I favor say aye. Opposed, no. I

5

(Ayes. )

Were there any ayes?

CHAIID1AN BOWLES: Opposed, no.

7

(No. )

8

CHAIRMAN BOWLES: All I heard from approved it.

9

MS. DAVIS: I said no.

10
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CHAIRMAN BOWLES: Oh, you did? One no. MR. HILL: One question for the staff. Treason against the State of Georgia shall consist in levying war against her? We have to --

MRS. OSTRANDER: I was wondering if you picked it

15 ~ up.
::>
1() ~ w n Z
17 ;;;

MR. HODGES: You'd have to change it to it. REPRESENTATIVE MARCUS: I tell you whoever drafted

18 the original Constitution --

19

REPRESENTATIVE THOMPSON: Knew what they were doing.

20 i

MRS. OSTRANDER:

:1 1 picked it up.

I didn't want to say that I had

CHAIRMAN BOWLES: Let her be a lady. You wouldn't

oppose it, would you?

24

MR. HODGES: You don't mind Georgia being a lady?

25 I mean Miss Justice is the sign of Georgia.

_ _ --_.._-,_.

I
.-~- ------ .- ----------_._-'

REPRESENTATIVE MARCUS:

PAGE 101
. - .._---_ .. - - - - - - - - - - - - - - - - . ,
It didn't say anything

I about being a lady, it just said her.

MR. HODGES: A woman, okay .

.~ ,

CHAIRMAN BOWLES: I think she's a great old girl,

I'm going to try to stick with her. I don't know what you

would say if you had to substitute the neuter for it.

-I

MRS. OSTRANDER: I was wondering what he was going

8 to come back with.

f)

CHAI~ffiN BOWLES: Against it?

,i
C'
;,

MR. CARLYLE: You could just repeat the state. CHAIRMfu~ BOWLES: Y'all want to change it? MS. DAVIS: Yes, the state.

CHAIRMAN BOWLES: It.

MS. DAVIS: Against the state.

MR. CARLYLE.: Adhering to the state's enemies.

I

CHAIRMAN BOWLES: We've already said state. It wouldli

either be it --

I

iLl ::~

REPRESENTATIVE THOMPSON: Shall we clean this

i

I
~;, , document up? We just took all that mess on treason out of

MS. DAVIS: I think so too.

I

i

MRS. OSTRANDER: It's really out of date.

I

i

REPRESENTATIVE THOMPSON: It is.

I

MR. HODGES: We're not making a final

CHAIIDtJAN BOWLES: It is a crime.

I

l: _

REPRESENTATIVE THOMPSON: I t is a crime._ _ _ _ -_ ....--_..... .._----_.

_ - - - - - - - - _ ....... ---..~--_._..

.. - -- - - - - - - - - - _..

._----

I
--1

n~-~----------------~ ~---~------~----~-~------

---------

PAGE 102
------ ------------- --- ~- ---~------,

Ii

CHAIRMAN BOWLES: The Legislature reenacted it with I

II

2 '1 a new criminal code. Were you a member?

3

REPRESENTATIVE THOMPSON: Yes, I was a member and I

4 worked on the new criminal code.

CHAIRMAN BOWLES: Flag it and let's see. Let's talk

6 about it. It's something we'll talk about. Okay, that's a

7 good thought. If it's meaningless it shouldn't be in there.

P At least you've alerted us all to the problem. I agree.

XVII, Conviction, Effect of.

10
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"No conviction shall work corruption of blood, or forfeiture of estate."
REPRESENTATIVE THOMPSON: I move that the Chairman

'''''!!''''O ~ explain that one to us, the first portion of it. I have an

14 ~ idea what forfeiture of estate means, but I don't know what

-<:
1:
15 ~ corruption of blood means.

:<

;:)

16 ~ ;.e,;

CHAIRMAN BOWLES: It means you would be denied the

t)

L

-<:

17 ~ right to inherit from your ancestor like anybody else. That's

J8 one thing it could mean by bloodlines~ You would not inherit,

19 i you would be denied the right to inherit.

MR. LITCHFIELD: I think it also means -- I may be

mistaken, but I think this is correct that you can~?ot be
,,
forced to say bad things about blood relations. There's some

case law to that effect, a mother can't be forced to testify

to incriminate her son or to make testimony which would --

MS. DAVIS: If that's the case then I think it ought i ------ -~._. . - ._---'

PAGE 103

to be stated because nobody reading this would know what it

means.

CHAIRMAN BOWLES: Well, it's been defined in some

case law.

REPRESENTATIVE MARCUS: Where? Did the '70

" Constitution do anything with it?

MR. HILL: It left it out.

CHAIRMAN BOWLES: Entirely?

MR;;'HILL : Yes.

JC
;)

REPRESENTATIVE MARCUS: It deleted -CHAIRMAN BOWLES: If you were punished for a crime

(+'3'-V~""',1',

/. '\\\

l , f " t , ) J,' ~";'H'i 110

,,

1."

'"

I:'

you could not be required to forfeit your present property, nor could you be required to forfeit your right to inherit property. That's what I've always thought it means,' that

'~ '. you don't presently own.-

REPRESENTATIVE THOMPSON: You've got a prohibition

I' under -- in another section of this thing here on imminent I'"' domain. No person can be deprived of his property without I') being remunerated for it without due process or whatever have

you.

CHAIRMAN BOw"LES: That's a presently held estate
))
though.
,, ) MR. CARLYLE: This also applies to criminal

convictions I assume.

MR. BONEY: In other words, even though you're

,

.- - -- ------ -.-.- --.---~- _ _.....J

PA(~E 104

-_.. ~---- -~-'--._-~

_~-~ -~-~-~.

- - - - - _.. ~-~-_._-----------,

I convicted of a crime it wouldn't prohibit you from leaving a

2 valid will disposing of your property. We've had several

3 cases under this in the annotated code. I suggest we leave

'1 I that.

5

MR. HILL: Look at language more descriptive.

6

MS. DAVIS: I think the language needs to be defined.

CHAIRMAN BOWLES: It has a definite meaning in the

,>,J U

case law.

q

MS. DAVIS: But it has no meaning as far as Georgia

10

'7"-
I 1 ,e>' 0

'I.

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'-'

citizens are concerned-.: Shouldn't this be written people can read it?
CHAIRMAN BOWLES: You'll have to go down your lawyer. I'm kidding.

so that and ask

14 ,,~
"<l
IS
J
:'":) 16 .-.ze.
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T
17 '"""
-,
U:.)

REPRESENTATIVE THOMPSON: I'll tell you the truth, I've practiced law for a long time and I just haven't run across a case involving this particular language.
MR. CARLYLE: I seem to remember reading something about this as an old common law punishment that carne over from

1<,
England that was along the lines that you had suggested,

20 corruption of blood.

CHAIRMAN BOWLES: You'd be made a nonentity for

conviction of a felony. You couldn't do anything. You know,

you'd just be a warm body and have no rights.

MR. HODGES: I recall also in history that what

Doug just said about this the word corruption at that time had !~

PAGE 105
a specific meaning an~--~--d-~n't -~:ow-:~~~-- w~-'~~~--~~:~ Changed--l

I that with regard to law and I would suggest that we maintain I
that in light of the case law that does exist unless we can
\
find more apropos word that would satisfy the general populous,1
I
but I'd say let's go ahead and approve it as we have done with

(1 the idea that if we find some better wording we could submit

it.

CHAIRMAN BOWLES: I think it might help a little

() if we pull the cases that we have had.

In

REPRESENTATIVE MARCUS: We don't have a Blacks do

,i

we?

MR. HILL: We don't have a Blac~s in our office.

REPRESENTATIVE MARCUS: I wonder if we have one It downstairs. There's got to be a better way to say corruption.

filS. DAVIS: I think so too.

CHAIRMAN BOWLES: You can call my number and get one.

MR. CARLYLE: I'll go get a Black's.

j)

MR. BONEY: The United States Consitution uses the

same language. "Congress shall have th e power to declare 2') punishment for treason, but no attainder of treason shall

work corruption of blood or forfeiture except during the life

of the person attained -- attain:led." So it has some

historical significance.

MR. HODGES: Can I make that ~otion, judge, that

we do as I suggested, adopt it with the reference back to

!1- .--------- .. -_._----_._--.

I,
II

better wording?

i!

2

CHAIRY~N BOWLES:

Is that your motion?

I:'A. CE 106

MR. HODGES: Yes sir.

4

CHAlffi1AN BOWLES: Is there a second to that?

MR. BONEY: I'll second that, that we get a little

6 information on the term, the meaning of the term. I I, CHAIRMAN BOWLES: If anybody has anything that. would

8 help us to improve our situation put it to us and let's do it.

~! Let's consider it and do it. I'm not opposed to that. I just

1\.1 think it's got some interpretation that we shouldn I t try to
~J
7-
11 " modify by changing the language.

12 "

MR. HODGES: I taught History for a lot of years and

,~"'" '" disremember the implication of corruption of blood and that's

14 > what I'm trying -- I can't recall. I think perhaps --

~

J:

1'; '-~

MS. DAVIS: Is the process of this -- Tbis will go

~,

y.

10 ~ before the Legislature and eventually go before the people of
i.71
2. "-
17 the State of Georgia. They would never know what in the world

I~ you're talking about and it would be voted down for no reason

19 at all. I think the language ought to be such that people can

20 read it and know what it is.

CHAIRMAN BOWLES: Do you think they'd know what due

process of law means?

~lS. DAVIS: Well, due process has been used enough

~4 that I think people know what due process is.

CHAIRMAN BOWLES: It's just the rarity of corruption

PAt:!": 107
of blood. If it were as commonplace as due process--t~ey wo:~

know I would think.

I

HR. CART.JYLE : The definition is basically what you I
I

defined it as, in English law the consequence of attainder

I

being that the attained person could neither inherit lands or

(, other hereditances from his ancestors nor~retain those he

already had, nor transmit them by descent to any heir.

REPRESENTATIVE THOMPSON: In Article VII which

Paragraph VII which we have just agreed to put back in here

'(1 no bill of attainder is the first portion of that language.

Ii ,I

CHAIffi~J BOWLES: That's an act of the Legislature.

'! I- " This has to do with punishment. Bill of attainder would be an

act passed by the Legislative body to forfeit property and so

forth or to limit your right to inherit.

REPRESENTATIVE THOMPSON: We would have to include

as punishment for crime the right to take property before it

vlOuld be

MR. CARLYLE: One further thing that Blac~s has

this was abolished by some English statutes and is unknown

in America. Then it gives the Constitution cite, u.S.

Article III, Section III.

CHAIR}ffiN BOWLES: Anything else? Presently we are

going to adopt it as it's written subject to any suggestions

somebody might have by way of improvement. Is that your

motion, Mr. Hodges?

fI------------------------------

PAGE 108

:[

II

..-,

iIIir
i

3 Iili

"
ii
"

4

second.

MR. HODGES: Yes. CHAIRMAN BOWLES: The second, I believe I had a
MR. BONEY: I second.

CHAIRMAN BOWLES: Any further discussion? Those in

6 favor say aye.

(Ayes. )

I' '

CHAIRMAN BOWLES: Opposed, no. That's approved.

9 , Let's see.

10

XVIII, Banishment and Whipping as Punishment for

.'

11 ;::
"a0.
w
12 r.( t.:' ,

o '. !!!!.~I!?

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b:

Crime. "Neither banishment beyond the limits of the
State, nor whipping, as a punishment for crime, shall

IJ. ..

be allowed. II

.~

":t

15 " ..,

REPRESENTATIVE t'lARCUS: There sure is a lot of

L.~

fot;
,,,

16

7.
~,

confusion.

There sure are a lot of newspaper articles that

c

"Z

.q

17 co~, lead you to believe that the punishment that's being handed

18 down by Superior Court Judges are banishment.

19

MR. BONEY: Civil or criminal?

20

REPRESENTATIVE MARCUS: Criminal.

'1 I

MR. CARLYLE: Seems like those have been overturned,

')'1 those Superior Court Judges have on the basis of this

constitutional provision

...., .
...:,

CHAIRMAN BOWLES: Most of them that I have seen have

banished them ~rom certain areas of the state rather than the

- ---- ---------l PAGE 109
state.

REPRESENTATIVE THOMPSON: I had a client banished

from a county in South Georgia not so long ago or anywhere in

that judicial circuit really.

{. state.

CHAIm~~N BOWLES: But that was an area within the

REPRESENTATIVE THOMPSON: Within the state as a part

of -- I think he gave them some probation. As a part of his

probation you are not to come back within this judicial !.u circuit.

CHAIRMN~ BOWLES: That has been approved in the court

.J

;,;:.'3-\lli:<;

J~ ~v

~))r-"!'-'~:'?. ;~

MR. BONEY: I think that's right. REPRESENTATIVE MARCUS: That I s really a condition of

~--:> '.~
- probation .

.
'. I" ,~.

CHAIRMAN BOWLES: It is.

REPRESENTATIVE MARCUS: And that's not under the --
2 <l
CHAIRMAN BOWLES: Sentence imposed.

MR. HODGES: I think you've got a couple of bills J ,} on whipping before your committee.

REPRESENTATIVE THOMPSON: Really?

MR. HODGES: A couple of years ago.

CHAIRMAN BOWLES: There's nothing in here that

anybody would oppose though, is there? The protection is
) .'
there whatever it means. We wouldn't approve sending state

prisoners to another state, would we?

MR. HILL: Is this

PAGE 110
-------------------
I mean I can't help but ask

~ if whipping is really something that needs to be mentioned in

1 the Constitution? To me it just really jumps out of the page

as a really archaic provision. You know, when have we seen
~ :::: whipping in Georgia last and I just feel it's one of those b things that dates the Constitution back to 1877.

'7

CHAIRMAN BOWLES: I don't think so. I think it was

a very real part of punishment for convicts in recent years.

MR. BONEY: I've heard people say we ought to have

10 a public whipping --

11

REPRESENTATIVE MARCUS: We get it all the time.

,.

z
W

beating.

~

MR. HODGES: Delaware has now put it in for wifeHe had bills before his committee and before the

14 ,>.-. Judiciary Committee there was a bill that was just last year

;'j
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T

15 ~, I believe that was introduced for whipping in the event of

'0-:-'

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wife-beating.

,-)

-

<1
1'7 '"

MR. HILL: Fine, thank you, that answers my question.'

18

CHAIRMAN BOWLES: Whipping has been a part of the

ill punishment process as a matter of fact in our convict system

20 in recent years.

:'1

REPRESENTATIVE THOMPSON: We've got a prohibition

)~ "'

against cruel and unusual punishment. I think you could get

,
an argument whether whipping is cruel and unusual punishment,

24 but if you don't like it you better put it in there.

"'\~

MR. BONEY: I think you're right.

PAGE III
CHAIR\1AN BOWLES: Then is there a motion that w~--I

I approve this as written?
I
MR. BONEY: I move.

REPRESENTATIVE THOMPSON: I second.

CHAI~\ffiN BOWLES: Any discussion? All those in favor

/,

say aye.

(Ayes. )

CHAI~~ BOWLES: Opposed, no. It's approved. All

right.
i)

XIX, Slavery and Involuntary Servitude.

"There shall be within the State of Georgia

neither slavery nor involuntary servitude, save as

punishment for crime after legal conviction thereof."

REPRESENTATIVE MARCUS: Judge, don't you think we

can improve the language on that?

REPRESENTATIVE THOMPSm~: We better not mess with it

too much.

I'; , means.

MR. BONEY: I think everybody understands what that

REPRESENTATIVE MARCUS: Well, it certainly -- Maybe

I'm the only one that has problems with it, but it certainly

doesn't indicate punishment for crime after legal conviction

would in fact allow slavery.

REPRESENTATIVE THOMPSON: Involuntary servitude.

REPRESENTATIVE MARCUS: I understand. It says
~._~--_.-._~-----------.------ ~ ..-.- -- - - - __ ._....---J

neither slavery nor involuntary servitude.

PACE 112
...-.--.. -.--- _ ---- .- '1
I have no problem !

: with it, but it just seems to me --

REPRESENTATIVE THOMPSON: As a matter of terms I

1 think if I was locked up in a penitentiary and I couldn't go

~ anywhere and I had to work when they said work I would think

I was a slave.

7

MR. BONEY: I wouldn't want to fight over the

S distinction.

(1-

REPRESENTATIVE r4ARCUS: Well, that's usually not

10 what I think of when you say slavery, but I can certainly see

] I .T..

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~~_T.!.!.!.~_I:J

.-_..
'

how someone who is incarcerated under those conditions would feel it that much more.
REPRESENTATIVE THOMPSON: I wouldn't see much

[4 difference. The end result is the same.

1)
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MR. HODGES: I move this adoption. MR. BONEY: I second. CHAIRMAN BOWLES: Discussion further? All those in

I '; favor say aye.

1 '-}

(Ayes. )

211

CHAIRMAN BOWLES: Opposed, no. It's carried.

Paragraph XX, Imprisonment for Debt.

"There shall be no imprisonment for debt."

Can't change that, can we?

..,,

MR. HODGES: I'd like to ask a question. I did want I

to make a couple of proposals in lieu of things that have been

,
PAGE 113 developing in other constitutions around the country and I'd like to ask for some consideration for future meeting that we find some way of incorporating it in the Bill of rights the limitati.on of garnishment and a limitation upon the taking of an estate in insolvency in the Bill of Rights.
CHAIRHAN BOWLES: The taking of the estate-MR. HODGES: Of the entire estate. CHAlro~AN BOWLES: Of the insolvent. MR. HODGES: The new bankruptcy laws went into effect Monday and I think it is only right that we in updating IJ e- this do those two things because garnishment has worked an awful -- It's almost worked involuntary servitude upon many a family and I believe that we could find some way within the Bill of Rights of this Constitution working in a limitation on amounts that may be taken in garnishment and also the (, amount of an estate that can be taken in the event of insolvency and I would like for those to be thought about. CHAIRMAN BOWLES: I'll be glad to entertain anything that you have on that or we will. Just a minute and I'll come to you. Are you familiar with the garnishment exemptions that the Congress has adopted? MR. HODGES: No, I'm not. That's the reason I'm talking now to the persons of the legal profession. CHAIRMAN BOWLES: Congress has adopted some right substantial exemptions for garnishment against wages almost to
---_._---_._~~-----------------_._---.-j

P/\GE 114

extent of wage and hour. It's not quite that; but it's close.

That can not be reached of wages. It's wages that you have

3 in mind. That's what hurts the family.

4

REPRESENTATIVE THOMPSON: You're talking about

~ disposable wages.

MR. BONEY: It's really technical and detailed and

I ,I
7 I: long and drawn out.
!
MR. HODGES:

I realize all that, that's why I'm

9 bringin~ it up. I'm ignorant of that fact, but these are some

10 protections that I think are needed and I wanted to pose

I.)
z

11 ~ thosetwo areas for consideration.

o

w"

1'? ,~

CHAIRMAN BOWLES: All right, we'll be glad to

~ entertain whatever you have.
~

1. i ,,"

MR. CARLYLE: I was just going to comment that the

,

T
1c; ., Federal law in detail covers that and the State law tracks the

:;}

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Federal

law.

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CHAIRMAN BOWLES:

It's adopted verbatim.

Well, we

18 didn't have any choice, did we?

19

MR. CARLYLE: Recently, the Federal law just last

.'() year added an exemption when the garnishment is for child 21 support or alimony and there had been no exemption prior to

that time so there are extensive protections.

CHAIRMAN BOWLES: Well, you wouldn't oppose that?

That's really your fuss to protect the unprotectable.

MR. HODGES: The family.

CHAIRMAN BOWLES:

PAGE 115

~~~---_._~--- --------~----I

Was there somebody else? So

I

imprisonment for debt, we are all in favor of it, aren't we?

No imprisonment for debt.

REPRESENTATIVE THOMPSON: We are putting people in

jail for debt.

CHAlfu~N BOWLES: How?

REPRESENTATIVE THOMPSON: Through the contempt

g I! provisions.

CHAIRMAN BOWLES: That is not an indebtedness as

in such.

iI

REPRESENTATIVE THOMPSON: It's failure to obey an

order of the court.

CHAIRMAN BOWLES: Well, it's failure to pay a duty

[i imposed on you by law to support your dependents which has

1~ 0 been reduced to judgment and then it's punishment -- punishable

j~) by imprisonment.

MRS. OSTRANDER: I'm looking at this and listening

I' all the way around. I'm concerned too that we spell this out

a little bit because of the greater number of single families . ) and the possible entrapment in garnishment.

REPRESENTATIVE THOMPSON: The only question that

comes to my mind, Mr. Chairman, is this an item that belongs

23 in the Bill of Rights? That's the problem I have with it.

24 When you start putting in specific legislation in areas of

that kind I think we're doing something with the Bill of Rights

rr--------------.--------------.

PACE 116
- . - - - - ._-_._ .... - - - - _ . _ - - -..._ - - - - - _._~

II
II

that should not be done with this document.

This ought to

I
I
I

2

Ii
,i

be broad and general and not going into specifics.

We've got

3

II
:1

laws.

We're already got statutes covering this and they can

Ii

4 be amended by the General Assembly. If we get rid of this

5 I, prohibition against lobbyists all those people who feel
\, I'
b I strongly about it can come up here and talk to us and tell us

7 what they want us to do and we're going to be responsive.

MR. HODGES: Mr. Chairman, my concern with regard

9 to garnishment is that the Legislature is always suseptible

lz? 11 :;::
o
Q
] 2 ~"'

to pressure. I know it as well as anybody else and I just feel --
REPRESENTATIVE MARCUS: He brings it to bear.

t~.,
.: ~.Jl.!~!.!!.O. .T...-.,
~':~

MR. HODGES: I just feel that it is usually the

l,t >- person who does not have the representation before the

1:::; ..:: Legislature who suffers as the result of garnishment. Gar-

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nishment

isn't usually an industrial type of

sought after

z

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legislation.

Since we're concerned in the Bill of Rights with'

18 I: the individual right and individual protections that's what
i,
19 makes me bring it here, bring the question to our body, hoping

::0 i'

that in some way we can, you know,

protect those who are

:'1 least likely to be protected and that, Mr. Chairman, is why

,1
I posed the question.

MR. BONEY: I do believe though if he would have the 24 opportunity to read the statutory exemptions from garnishment

I think that would help you very much and of course you have to

PAGE 117

sue and get a judgment before

except in aid of a pending lawsuit. The law has pretty well

eliminated, the United States Courts have, on a garnishment

before you file a suit. MR. HODGES: I'll do that, Mr. Boney.

I
It's just thatl

(- I li.ke to protect the little people. That's one of my

I

greatest movements here in my work and I see this as one of I

the reasons of my being here in this community and that's why

I bring it up.

!()

CHAIRMAi\I BOWLES: Whatever suggestions you have on

,,..

: [ it bring them back to us. Yes sir?

MR. CARLYLE: I just wanted to comment again

because of the Federal law we can't provide that there would

j ~ ~'-- be garnishment -- any more garnishment than the Federal law
<
:' :: already provides even if we were to amend the Consitution and
,.l:: .\
if we were to provide for constitutional protection in

','7
I - garnishment it would have to be rather detailed in order to

i \ avoid violating the Federal law.

I ()

I Ii

REPRESENTATIVE THOMPSON: If you get it locked into

2() the Constitution then we would have to have the constitutional

2J amendments should they amend the Federal law to make it

comply with the Federal law. CHAI~~N BOWLES: It's very protective at this point.'

MR. HODGES: That's what I'm asking.

MR. CARLYLE: There's 25% of the weekly earnings.
l_

PACE 118
n- ---------- ---------------------------.-- -.-------.--.---.--- ----.------- ----- --------------i

[i

REPRESENTATIVE THOMPSON: Disposable wages.

\

2

MR. CARLYLE: Or thirty times --

3

CHAIRMAN BOWLES: It's take horne, it's not earnings,

,~ i after deductions. L i
MR. CARLYLE:

It's defined, but it's 25% or thirty

6 times the minimum hourly wage so it's an extensive thing and

I I don't know about putting something like that --

MR. HODGES: Very good.

CHAIRMAN BOWLES: Well, getting back to the issue

10 then -- Yes sir, Mr. Marcus?

,1,:'
1] 1"-! o u..

REPRESENTATIVE MARCUS: I just wanted to point out

]) ~J that many of the constitutions qualify the nonimprisonment

_J for debt and historically it may well be that because of our

14 ;.:,: origins as a colony, we keep this absent of prohibition .

<r

~

] 5 .)

CHAIRMAN BOWLES: All right. Is the motion then

Cl

<L

16 ~ that we approve this as written subject to suggested changes?
Dz
17 ~" Is there such a motion and a second? I have it. Is there

18

i'
!i

discussion?

I:

19 11

(Ayes. )

CHAIRMAN BOWLES: It's unanimously approved.

'[

XXI, Costs.

"No person shall be compelled to pay costs except

-"-'

after conviction on final trial."

There's really no problem with this, is there?

REPRESENTATIVE THOMPSON: Is it needed? That's the

---------P-A--G-E---1-19- --l

only question that comes in my mind.

CHAIRMAN BOWLES: Well, it's been in there a long

I

time. It just keeps you from assessing him any money until

he's been finally convicted. Whether it would lapse to that

I do not know. I can't answer.

"

MR. HILL: What type of costs are they speaking of?

REPRESENTATIVE THOMPSON: Court costs.

MR. BONEY: Court costs I think.

CHAIRMAN BOWLES: Court costs or jail costs for

Ii) keeping you as a prisoner in advance of conviction.

MR. BONEY:
.... ,;
~ or state pays it.

I don't think people pay it, the county

MR. CARLYLE: I think you could cover it by statute.

CHAIRMAN BOWLES: I doubt it because of the advance

:\ ) cost of the civil cases. We've got a right good body of law. ~ ~'

\':1 All the civil cases that I hear pay advance costs.

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REPRESENTATIVE MARCUS: This is clearly criminal,

isn't it?

MR. BONEY: Oh, sure.

REPRESENTATIVE MARCUS: The Constitution is going to

get in costs on civil matters and make the court self
,,
sustaining.

CHAIRMAN BOWLES: It talks about convictions so I

think that would be criminal. Is there a motion we approve

this one as written?

REPRESENTATIVE THOMPSON:

PAGE 120

.. .. .... ~_.

~'--"-l

I so move.

2

CHAIRMAN BOWLES: Is there a second?

.<

MR. BONEY: I second .

'\

CHAIRMAN BOWLES: Any discussion? All those in

S favor say aye.

6

(Ayes. )

,

CHAIRMAN BOWLES: Opposed, no. All right.

g

Status of the Citizen.

9

"The social status of the citizen shall never

10

be the subject of legislation."

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12

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"

MS. DAVIS: What does that mean? CHAIRMAN BOWLES: They can't name you a king or a

f

''''::l!..l~~ i~1 queen to the exclusion of your neighbor or a prince or a lord. ".} n

14

MS. DAVIS: Do we need that?

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CHAIRMAN BOWLES: Or a first class citizen against

16

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a second class citizen.

There's no classification as far as

0

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the Legislature is concerned.

You can't prefer one citizen

J,I<; over the other. That's what it means. In any title

1'1

MR. HODGES: Conveyance and such as that. I think

20 y'all ruled on that in the public conveyance. The Supreme

Court did.
))
CHAIRMAN BOWLES: On what, sir?

MR. HODGES: The use of public conveyances, sitting

in the front and back. I think that's one of the citations.

I move it's adoption.

I:

---'

'--' '---'---------l ~~,--,-,,--

PAGE 121

CHAIRMAN BOWLES: Is there a second?

MR. BONEY: I second.

I

MS. DAVIS: I have a problem with that. I just

I

have a problem with the language of the law, not the concept. 1

I would much rather see it stated in another way.

CHAIRMAN BOWLES: You think about it and give us 7 II some suggestions. We'll certainly entertain them. We'll keep

open minds about it if there's a way to improve it. Any other

'j
I! discussion about it, suggestions? All those in favor say aye.

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(Ayes. ) CHAIRMAN BOWLES: Opposed, no. It's carried. Paragraph XXIII, Exemptions from Levy and Sale. "'l'here is hereby exempt from levy and sale, by virtue of any process whatever under the laws of

(;,
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this State, the property of every head of a family, or guardian, or trustee of a family of minor children, or every aged or infirm person, or person

having the care and support of dependent females of

19

any age, who is not the head of a family, realty

or personalty, or both, to the value in the aggregate

"~1

of sixteen hundred dollars; and the General Assembly

shall have authority to provide the manner of

exempting said property, the sale, alienation and

encumbrance thereof, and to provide for the waiver

of said exemption py the debtor. The laws now of

rr-------- . ----.---.------------- ---.----.-

--_._----, PAGE: 122
- --_.----_.__ ... -

i

force with respect to the exemptions provided herein

I

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IIII

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2"

shall remain in full force until changed by law."

il

3 I:1'

REPRESENTATIVE THOMPSON: That's just simply a

4 homestead exemption.

5

CHAIRMAN BOWLES: Homestead exemption. It does say

6 dependent females. You could say dependence --

MS. DAVIS: Should that be in the Bill of Rights?

8I

MR. HILL: I don't think this is -- This isn't the

9 homestead exemption provision.

]0

MR. HODGES: This is the constitutional homestead,

':J

Z

11

I0:

not homestead exemption from taxes.

o

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There's two different

L' ~. types of homestead. u. I-
CHAIRMAN BOWLES:

,
There is also a statutory homestead:.

MR. HODGES: This is the home-- constitutional

15 :~ homestead with regard to your right to keep certain property

'":;)

16

~
,e;

not

taxing.

z.

MR. CARLYLE: There is an Article VII exemption.

MRS. OSTRANDER: This is evidentally the one that 19 is used when we have had problems, for instance, with

Medicaid patients in institutions. In discussing this I have

been informed that they can maintain this much property. In

other words, they must -- We've questioned that figure.

MR. HODGES: This is one of the things I was going 2f to ask that we have our staff research to see if this should

not be raised because if you listen each year with regard to

PAGE 123

the bills that come up to pay for Medicare and Medicaid to

impose upon people in state institutions of certain

obligation for payment. This comes up constantly and I just

+ think it should be raised. Now what figure we should raise

5 i. it to I think needs some research and I'd like to ask for that

h research.

71

MRS. OSTRANDER: This has been a real serious

8, , concern.

9
i(l ':,
II 0.;. ")
1., __,

CHAIRMAN BOWLES: The amount? MRS. OSTRANDER: Yes. CHAIRMAN BOWLES: The amount involved. Yes? ~1R. CARLYLE: As long as you put any amount in the

Constitution though you're not going to really be able to take

14

;. ./,

account

of

inflation

and people

in our office

have

talked

as

<

:t:

j ') to whether ~aragraphs like this one should even be in the

I t) ~1 Constitution, period. Of course if the members feel that that

is an essential right then -- and they would rather not leave

l~ I it to the discretion of the General Assembly to guarantee that

10 right that's the members --

20

MR. BONEY: I have a thought on that. I think we

ought to have a constitutional provision, but I think maybe 22 we ought to have the amount determined by the Legislature.

REPRESENTATIVE THOMPSON: Can I call your attention

to page 10 of this document which is worded a little

differently? "The General Assembly shall protect by law from

PAGE 124
r levy and sale a portion of t~~~~::e-s-te:-d--~~-~~ecit-i-z-e-n-s-i'n:
2 an amount of not less than sixteen hundred dollars and shall I

3 have authority to define a homestead and those to whom such

4 exemptions shall be allowed; to specify the amount of such

5 exemptions; to provide the manner of exempting such property;

6 the sale, alienat.ion,and:encumbrance thereof; and to provide

7 for waiver of said exemption by the debtor." It says the same

8 thing except it puts a bottom on it and does not make a

,
9 limitation. You're not limited to the sixteen hundred dollars,1

i

10

I
but you can't go below that and the Legislature can then set -,

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CHAIRMAN BOWLES: Can raise the amount.

I
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REPRESENTATIVE THOMPSON: Can raise the amount.

CHAIRMAN BOWLES: Does this meet your --

14 >I-

MR. HODGES: That reads good except it still has a

':<c

15

.:>
Cl

dollar

amount.

I'd rather go to percents.

"";:>

16 z!Xl w Q

CHAIRMAN BOWLES: It said your legislature can set

Z

17 "co" a larger amount.

18

MR. HODGES: I'd rather set the bottom at a given

19 percentage and let the Legislature go to a larger amount.

20

REPRESENTATIVE THOMPSON: Percentage of what?

21

MR. HODGES: Assessed value. We always go back to

22 assessed value.

23 I

REPRESENTATIVE THOMPSON: A man that owns a two

24 :1
I hundred thousand dollar house and you make it 10% on that,

worth.

----, PAGE 125
..._---_._-_._----- - - - _ . _ - _...
r1R. HODGES: But that's his homestead.

MRS. OSTRANDER: I suggest we do more research.

MR. BONEY: It might not be land, it might be

something else.

(,

CHAIRMAN BOWLES: There's a case against Billy Sol'

Estes in Texas, of course the Georgia farmers have sold him
;1,
,
x some cotton allotments but they finally got a judgment. He
9 I' was imprisoned and he had a homestead exemption in Texas. In

10 Texas a homestead exemption is one section of land if your
C,l
11 .. home or house is located on it. He had a home/house worth
, ..,
I,:.. about a hundred and fifty thousand dollars in a section of

~
, land worth a million and it's exempt. That's the other side
~,

I~ of the coin .

.,-.

,1.\

MR. HODGES:

Isn't Florida's homestead two hundred

thousand?

<l
J7 ;;

CHAIRMAN BOWLES:

It could well be.

12

MR. HODGES: We appear to be so inequitable with

19 regard to others.

MR. HILL: The thing about this section though I

think it's really trying to protect the citizen from a certain--

you know, to a certain level for both personal property and 2\ real property. If they didn't have any real property it would .'4 still apply and I think that it's misnamed. We have another

provision in the Constitution over in the Taxation Article

I1,1.

_

---------_._--

n-------------------.------------

.--------.-_ ..-

PAG-E--_12._6---\

Ii about homestead exemptions for real property and that's what i
Ii
I

2 I' comes to mind when I see homestead exemption here and I think

3 I what we're really talking about is the protection of -- It's

4 not necessarily homestead, it's

c:
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REPRESENTATIVE MARCUS: It's an exemption from levy

6 and sale.

7

HR. HILL: Exemptionfrotn levy and sale of personal

~ or real property?

9

MRS. OSTRANDER: It can be any.

to

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REPRESENTATIVE MARCUS: It says the property. It doesn't say real property.
MRS. OSTRANDER: I have had that hassle over and over and over again.
REPRESENTATIVE MARCUS: The thing that I'd be interested in is why is it waiverable?
REPRESENTATIVE THOMPSON: It's waiverable because sometimes if you need to borrow some money you can't borrow

18 it unless you waive it. You'd be prohibiting some people

19 from doing some things that are essential to their well being.

20 You know, we have a standard form for a waiver note. It

21 waives homestead exemption and I don't think I'd owe some

~~
people some money, if --

,~
_.~

MRS. OSTRANDER: There would be a lot of reasons in I

I

2l there. I can see some reasons, for instance, allowing a

I
i

I
25 reassurance to an older person who needs to be institutionalized,

PAGE 127

_._._---_

_ - - - _ _ ..

.. _.~_._- ~ - -

they have burial that is left that they would not have otherwise.

l

MR. BONEY: I think without knowing for sure that

I

!
under the new bankruptcy act there is public policy Federal

statute to waive certain homestead rights.

CHAIRMAN BOWLES: It's against public policy to

I

waive them?

I

MR. BONEY: I think that's in the new bankruptcy

act. I've been told. I haven't read that specifically.

CHAIRMAN BOWLES: Could be. Well, where do we stand?

We've got three areas, haven't we? One of them is whether or

1::: _' not the amount ~- minimum amount is large enough, the other
..,,~
~ is whether it should be constitutional, subject to Legislature
]J ~ enlarging it or whether it should be a percentage of assets.

Is this the other thought that you had?

1!")

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MR. HODGES: Yes sir. I like what Mr. Thompson read

from the other Constitution. The only thing is I just kind

I", of feel like with the inflationary spiral that we need more ] ,} protection. How we could do that I don't know. That's why

I asked -- I brought up the question.

';

MRS. OSTRANDER: Can we get some evaluation from

other states on this area particularly?

CHAIRMAN BOWLES: I think we could. Suppose you

see what you can find for us?

MR. HILL:

I'll see what we can find out .

_. --_._ ..

.. -------~~~-

---------- ------- r~-- ----~-- ---~--

PAGE 128
-----------------------~-~--------I

CHAIRMAN BOWLES: It's probably not going to be in ! I

2 the Bill of Rights section in the other states.

I

3

MRS. OSTRANDER: But if we can get what other states II

4

I
have said, whether they've made it more flexible, whether they !

I

5 upgrade it periodically, give us an idea.

I I
!

i

6

CHAIRMAN BOWLES: The reason it's constitutional

I

i'

I

7 I think is that it must of necessity be because I don't think I

the Legislature would have the right to exempt property from

9 the payment of debt if it were not constitutional. Couldn't

llJ impair the obligations ~f a contract.

zu

I'
.i I I--'

REPRESENTATIVE THOMPSON: Just to get started, I'd

o

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w

.1 I.

Yo
'./

like

to move

that we adopt the

language

from the

'70

u.

zf-
,,' Constitution which permits the General Assembly to set the

v,

14 ~ amount above sixteen hundred dollars, sixteen hundred dollars

:r:

is ,~, or above.

u

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]( ~

REPRESENTATIVE MARCUS:

I agree with the concept,

Mr. Chairman, but the title homestead exception and the use

in the section of the words homestead exception would be

J9 confusing.

20

REPRESENTATIVE THOMPSON: Leave the title

2J Exemption from levy and sale exactly as in the same
,, Constitution.

MRS. OSTRANDER: The homestead exemption is too

misleading.

REPRESENTATIVE MARCUS: I second the motion.

PAGE 129

.------. .~- -~----~-----_.-

-~---'--------.-

--~------l

CHAIRMAN BOWLES: You've made a motion that we
\
adopt the language contained in the Paragraph 25 of the

other

REPRESENTATIVE THOMPSON: Of the other with the

change from Homestead Exemption as a heading to Exemptions

6 from Levy and Sale which is in the present Constitution.

CHAIRMAN BOWLES: Did you follow that?

MR. HILL: I understand what you're saying, but I

wonder if we could just do away with the reference to

homestead. I know what your real meaning is and all, but I

11 ,; c'"'

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,._--_.- \..

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r
15 '

like the fact it says exempt from levy and sale the property of any and not really refer to homestead at all either in the title of it or in the text.
MR. CARLYLE: Couldn't it just be substituted for homestead in the text property?

1h "
,
7
I -, ;"-r

MR. HILL: That would be fine. CHAIRMAN BOWLES: We've got some statutory law on

I '~ this too. You have to do a certain overt act to get this thing

j 9 allocated and identify it as such. Otherwise, you would have

2U a levy, you know, when you say the bottom sixteen hundred is

i not subject to levy and he's got three thousand dollars worth -"
of property and you levy on all of it so you would have a

hiatus of what you could levy on and the Legislature has said

., ...~ how you go about implementing this homestead already so we

i

I

better leave it homestead.

i
I

-------------" --------,-,-----------

.J

PAGE 130

- - - - - - - - - . - - . _--.-- - - rT---------------------------------------~----- ._--

,-----.-.------~-.----

:1

REPRESENTATIVE THOMPSON: I agree.

------1
I
i

MR. BONEY: We're getting off the historical concept

3 too because it was to have a home. You couldn't take his home

4

I
I

.1"i:vay from him.

You might take everything else but not his home

I

i,

5

CHAIRMAN BOWLES: I don't think what it's called

6 really matters except to keep in step with the present
,
Ii'
7 'i Legislative acts.

MR. BONEY: It was not the idea to protect that

9 other property.

lO

REPRESENTATIVE THOMPSON: If I understand the law

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currently you can got to the probate court now and list certain furniture, things of that kind as being homestead and it will be protected under present law.
REPRESENTATIVE MARCUS: It doesn't have to be real property.
MR. BONEY: That's right. The statutory does not have to be, but this really has the historical background

Ix ;1 protecting the home.

19

REPRESENTATIVE MARCUS: Could I suggest that in

20 light of the conversation, in light of all the suggestions 21 that the staff be authorized to draft language and bring back
,,
to the next meeting having heard all the comments for further 23 I consideration?
~1R. HODGES: You'd have to withdraw your motion

unless you wanted --

------ --_!

If ------------ . --- ------~

------------.-------~---.-.

PAGE 131
._----~

!!

REPRESENTATIVE THOMPSON: The only reason I'd like

Ii

2 II for the motion to say in there, we would have accomplished
3 IIIi something which would be sUbject to the changes.

MR. HILL: That would be fine. I understand why we

have to leave the term "homestead" in there.

CHAIRMAN BOWLES: Then would you amend your motion

to the extent of saying we recognize there may be other

8 suggested changes?

q. II,

REPRESENTATIVE THOMPSON: I'll be glad to.

10

CHAIRMAN BOWLES: It's putting it sort of loosely. I

~ z

11 ~0: o

MRS. OSTRANDER: I'm still bothered by the word

I

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"homestead" .

CHAIRMAN BOWLES:

I You can't repeal all the statutes I

14 .;... in one fell brush of the pen I think we better stay with the~.

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15 .:>
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Q.

MRS. OSTRANDER: This impacts severely on the group I

16

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work with.

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17

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REPRESENTATIVE MARCUS: How?

18

MRS. OSTRANDER: Well, you see, as long as I can be

19 i-reassured that it is not limited to homestead because --

I
I

20

CHAIRMAN BOWLES: Well, I assure you it's not.

21

MRS. OSTRANDER: That's what bothers me.

CHAIRMAN BOWLES: You can take it in cash.

23

REPRESENTATIVE THOMPSON: You mean limited to

i

24 real property?

I

I

MRS. OSTRANDER: Okay.

I
-.J

PAGE 132

11-------

------- - - - - - - - - - -. -------.--~------ - . ------------------__------1

I" '
!'

I
MR. HODGES: This is a problem that Mrs. Ostrander '

11
!'

2 ii has and I have often worked with her on it in various

3 committees trying to do things with regard to payment. She

4 does have a problem with older people on this.

s

REPRESENTATIVE ~ffiRCUS: We didn't cure that problem.

II

i!

G You're talking about institutions now, aren't you?

7

MRS. OSTRANDER: Well, yeah. My primary concern is

the group that goes under Medicaid to institutions which is

9 about 95% of the institutions.

10

REPRESENTATIVE ~~RCUS: Did our last bill on cost of

care do anything in that regard?

~-.
7 ~l!!!!!!:.~ ,.. '
l~

MRS. OSTRANDER: Not a great deal. REPRESENTATIVE I-1ARCUS: Why don' t_ you and I look at

14 >_ that in light of the particular problem you're having to see -~"'.

:1'
15 :~ if there's anything we can do by statute?

'="'
16 ~ .~ /)

CHAI~mN BOWLES: All right. Yes sir?

MR. CARLYLE: One thing, Lou just pointed out that

18

i!
i'

the

current Constitution doesn't

say

anything

about homestead

19 in the paragraph we're reading.

20

CHAIRMAN BOWLES: It doesn't, that's true .

.?l

REPRESENTATIVE THOMPSON: It says the property.

MR. HILL: How would we be jeopardizing statutory law

on that if we would omit it from the draft?

CHAIRMAN BOWLES: I don't know whether 1 1 m able to

fathom all the problems with it, but my primary thinking was

PAGE 133

that if the statute said this

aside homestead exemption and if homestead exemption was not

permitted under the Constitution the Legislature has no

'. authority to prevent enforcement of contracts between parties,
debtor and creditor. If it's not constitutional you couldn't

(, prevent it in any fashion.

MR. CARLYLE: But even though there may be a

cZ constitutional homestead it is not designated as a constitu-

tional homestead.

CHAIRMAN BOWLES: It's not now designated, that's

i, - right. What else do we have? We've got the motion subject i -, '~, to recognizing that this is something that might be changed.

Is there a second to that we adopt it as it is?

MR. HODGES: Yes.

REPRESENTATIVE THOMPSON: That was the 1970 -- My

't ; motion was the 1970 language.

CHAI~~ BOWLES: I understand that. I understand

] 8 what your motion was. I thought we -- you had it down.

19 '

MR. HILL: Yes.

20

CHAIID1AN BOWLES: And of course the reporter has it.

21 Is there discussion further on that? All those in favor say

aye.
,,

(Ayes. )

. CHAIRMAN BOWLES: Opposed, no. All right, now we're

so near the end suppose we just run on through?

1;------ ----------------- - - - - - - - - - - - -..------ ..
!:
On XXIV, Wife's Separate Estate.

__ PAGE 134

__.. ._.

._._--_.. _ - - - - - ,

~_._----_

i

"All property of the wife at the time of her

3

marriage, and all property given to, inherited or

4I I

acquired by her, shall remain her separate property,

I

5

and not be liable for the debts of her husband."

6

REPRESENTATIVE THOMPSON: I go along with this if we

7 neuter it.
I,I'
MS. DAVIS:

I think we need to take it out completely

9 I don't think there's a place for it in the Constitution.

10

CHAIR~ BOWLES: Well, you're going to get back to

11 ~ some common law concepts that you're not conscious of. You t o.
11 '''-""' have common law concepts in a marriage, the property of the

u wife belongs to the husband.

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MS. DAVIS: Well, then I think it ought to be equal. CHAI~~ BO~iLES: We've surrendered. I'm kidding It should be neuterized, right? MS. DAVIS: That's right.

1S

MR. HODGES: It needs to be neuterized, but this

It)
would go into dower problems.

CHAIRMAN BOWLES: Dower is out. We don't have any

dower.

MR. HODGES: I know we don't, but wouldn't it imply
, ,'
it if you did remove this?

.' -I

CHAIRMAN BOWLES: It probably would, but we don't

have dower any more. We have no vested rights to the wife of

PAGE 135 ----~-----_.- - - - - - - - - - - - - - - . . , the property of the husband anyway.

MR. CARLYLE: Is the husband no longer responsible

for the debts of his wife, for support and maintenance of his

wife? Seems like --

CHAIm~N BOWLES: I don't know whether that domestic

relations law took that out or not. It attempted to.

REPRESENTATIVE THOMPSON: I think we got into a

h fight about who's head of the household and we had to leave

that alone. I don't think we changed that.

MR. CARLYLE: Because the last phrase, lI and not be

( i liable for the debts of her husband ll , if we neuterize this then

I don't know what's going to happen to that.

MR. HODGES: This was carried over in the last

session because ';"~The_head of the household bill was carried

over because of the implications on statutory law and of the

section here.

REPRESENTATIVE }~RCUS: Are there any surety

questions here?

MR. BONEY: Liable for the debts of her husband.

MS. DAVIS: Why could this not be handled by

statutory law rather than constitutionally?

CHAIRMAN BOWLES: I just said that to you that on

the common law concept a man and women merged, they were one.
-'c]
The property belonged to the other.

MR. CARLYLE: But couldn't the General Assembly by

_____________________ ~

~~_______

_

~

-----------1

T------------- -.- --------------------------------

I, !:1i

general

law

--

PAGE 136
_ . _ - - - - - ~ - - - - - -- - - - ~

) II

CHAIRHAN BOWLES: I suppose they could, probably

i
3 i could, but the reason it was adopted in the Constitution was
I
4 I to prevent the separate property of the wife accruing to her

5 I husband as a matter of law. They thought well enough of it i
6 ! to put it in the Constitution.

7

MR. BONEY: Protective to the wife really.

g

MR. HODGES: I move it remain as is.

I

9

CHAIRMAN BOWLES: But you would neuterize it?

10

MR. HODGES: Neuterize it .

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REPRESENTATIVE THOMPSON: How can you neuterize that? MR. HODGES: I don't know how you can do it.

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CHAIRMAN BOWLES: Well, I'll tell you I think it's

1,1 ~i onatitutional as far as the Federal Constitution is concerned,



T

J5 ~ the way it's written --

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16 .~..

MR. HODGES: Hay I just read something to see if

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17 ~ this neuterizes it and if it doesn't then we leave it alone?

18 We can just call it spouse's separate estate. It would be

19 "All property of the spouses at the time of their marriage or

20 at the time of marriage and all propertY,9iven to, inherited

21 or acquired by either shall remain their separate estate

and shall not be liable for the debts of either".

CHAIRMAN BOWLES: Let's leave off debts and just

let debts ride ..

MR. HODGES: All right, and shall not be liable.

PAGE 137

1 IiiI

REPRESENTATIVE THOMPSON: To the debts of the other.

i

2 IIIi It was left out of the '70 Constitution I believe altogether.

Ii

3 il

REPRESENTATIVE MARCUS: Left out?

!I

4

MS. DAVIS: I think it needs to be left out here too

5

REPRESENTATIVE MARCUS: Judge?

I
I,

6i I

CHAIRMAN BOWLES: Yes, sir.

7 ,I I,

REPRESENTATIVE MARCUS: If you -- If one gave

8

,i:I IiI

something

to

their

wife

to

avoid

liability

and

it

was

given

9

Ii
Ii

to

the wife

to

keep and

to

protect herself,

if you neutered

10 this, can't a man take from his wife to avoid the payment of

"z

11

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some possible liability?

o

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@ . . .12 : ~

CHAIRMAN BOWLES: Of her debts? REPRESENTATIVE MARCUS: I've got a lot of trouble

14 >..-. with neutering this thing for a lot of reasons, plus the basic

<r

15

~
"'"::;,

reason

is

the

one

that

Albert

raised,

the

head

of

household

16

~
wo

problem

that

we

had

in

the

last

session,

and

I

don't

think

Z

-0:

17 :ii we're really going to accomplish what we want to accomplish

18 by merely neutering it.

19

REPRESENTATIVE THOMPSON: I'm sort of inclined the

20 best thing to do is take it out.

21

MS. DAVIS: I think so too.

22

REPRESENTATIVE THOMPSON: Judge, I know the

23 common law rights that you're attempting to protect, but we've

24 I, got some problems I think that supersede the protection of

common law rights.

i

---------------------------------_.---!

._ - __.__ _..__ - . __ .- P_A._ GE1_38----i
CHAIRMAN BOWLES: Then if you marry you're going to I

right some property of your wife.

MR. BONEY: If you're insolvent and marry a solvent

4 lady--

REPRESENTATIVE THOMPSON: You think it would make a

(, community law state if we take this out?

CHAIfu~N BOWLES: They're considered one under the

law, that's the reason the body of law developed about the 9 rights of a wife.

REPRESENTATIVE THONPSON: I don't like community law Ii states so maybe we better leave it in there if this would

create a community

MR. HODGES: Does my motion have a second, judge?

11

CHAIRMAN BOWLES:

r
L, your motion, sir?

Your motion -- If you would repeat

HR. HODGES: I moved that we adopt it as is and
1 ; then I was asked to neuterize it which I agreed to if possible,
I
but I would move now just to leave it as is.

REPRESENTATIVE THOMPSON: I second.

"

CHAIRMAN BOWLES: Totally as is and that's your

motion?

MR. HODGES: Yes sir.

CHAIRMAN BOWLES: Is there a second on that?

REPRESENTATIVE THOMPSON: Second.

REPRESENTATIVE MARCUS: Judge, I hate tc be a

;"\~'"

.,.:
.,
ll_,-_)

P;"CE 139

-- ---------_._- -----
-- dissenter, but I just would like for us This is one that

l

I really would like to encourage all the great minds of the

I

!
State to think about and come up with possible changes in the

language. I think that it's going to be viewed by many as a

protective status for the wife and maybe it ought to be, but

I think we ought to have the benefit of debating that so that

we can be advocates instead of just merely leaving it having

heard the discussion of Legislative counsel and the staff,

that we can be advocates of why we left it in rather than

just saying well, we left it in cause we were afraid it was

going to mess up something.

MR. HODGES: Isn't that what we said though,

everything we did today would be subject to that review?

CHAIl~HAN BOWLES: Yes sir.

REPRESENTJI.TIVE MARCUS: I would like to ask

specifically that the staff study this paragraph and come back

with a recommendation.

MRS. OSTRANDER: Lucy McGoughon the other committee

was the person who put together the homemaker's legal status

for Georgia and it may be --

CHAIID11m BOWLES: Put together what?

MRS. OSTRANDER: Homemaker's legal status in

Georgia and it may that she may be able to give us some help

on this.

CHAIRMAN BOWLES: Other discussion about it? I have

i'V;E 140
. -------l
a question then before the court -- I mean before the

committee. All those in favor of the motion say aye.

3

(Ayes.)

CHAIIDffiN BOWLES: Opposed?

MS. DAVIS: No.

CHAIP~ BOWLES: I asked for a count. I wasn1t

able to determine all those in favor.

REPRESENTATIVE THOHPSON: I I d like to m.ake a

substitute motion. I hate to see us get split up between the

ladies and the men with a motion of this particular type. Can I. '!. I make a motion that we suspend further consideration of this

until we've had a chance to think about it and that keeps us

from having that.

MR. BONEY: We're going to do that automatically.

We're going to all do research on it and come back. Right 1c now I'm at a loss in my own mind as to what effect it would

have on preexisting debts of the husband when the wife

,.

t/,

marries him.

lY

CHAIRMAN BOWLES: Maybe we better put a double star

by this one.

'1

REPRESENTATIVE THOMPSON: I don't want to see us

split up along sex lines here.

CHAIRMAN BOWLES: All right.

MR. HODGES: The second is withdrawn.

CHAIRMAN BOWLES: The mot..:.ion dies for want of a

PAGE 141 - - ---"1 ~~-~- -------.~~----~ second and we're going to leave this particular one in the air!

until we can study and come up with recommendations, is that

the concensus?
Let's go then to the last one which is xxv,

Enumeration of Rights Not Denial of Others.

liThe enumeration of rights herein contained as

a part of this Constitution shall not be construed

to deny to the people any inherent rights which they

..

may have hitherto enjoyed."

I!\

And I guess everybody would agree with that one,

would they not?

REPRESENirATIVE MARCUS: The only thing I was

questioning is should it be here at the first of the whole

Constitution?

CHAIRMAN BOWLES: We're just saying it's not

," c limiting. Maybe it should be at the end of two of the whole

1i-lell, subject to our overall revision of aligning them let's

have a motion that we leave that as it is subject to

realignment.

REPRESENTATIVE MARCUS: So move.

MR. BONEY: I second.

CHAIP~AN BOWLES: Discussion? All those in favor

say aye.
" .[

(Ayes. )

CHAIRMAN BOWLES: Yes sir?

MR. HODGES: Mr. Chairman, when you're setting the

next meeting would you also set the next two meetings, will

, you do that? It would certainly be a help. I was going to

4 suggest the 26th cause I've got to be here anyway if possible,

Friday the 26th.

CHAIRMAN BOWLES: Friday is a bad day for me. I'm

not going to let my personal -- All the rest of the things

~ on Friday for the main committee. I pretty soon will not have

any Fridays left, but --

REPRESENTATIVE THOMPSON: IIII tell you one thing,

..:",

_:I,

t!

,
u.

when the main committee is meeting we could leave room for a

I' subcommi ttee t.o meet in the morning and the main conlffii ttee

could meet in the afternoon, say at 2:00

.14 :r'

CHAI~UUJ BOWLES: We could do that. That might save

i' , a little. -, REPRESENTATIVE THOHPSON:

It might save a day.

,-,

J. i

CHAIRMAJ.'J BOWLES: We're going to need one though

between -- We're going to need to give them a report on the

9th of November so we're going to need one more cooonittee

meeting before then. I tell you what, Il m not unmindful

of all y'all said about dates, I'll go back and look and see

how we stand and get out a letter to you just calling a date

and I'll try to consider as much as I can everybody.
".1
MR. HILL: The week of the 22nd.

CHAIIDmN BOWLES: I'm sorry that our professors

I'ACE 143 didn't get to come on this committee. I'd hoped they would give us a lot of input on research.
~v[RS. OSTRANDER: I'm looking at it. I've got corrunitments, but I can shuffle some of those.
CHAlRi/[]'.N BOWLES: Y' all are all very considerate G and interested and I do appreciate your participation. Let's
stand adjourned. (Whereupon, the meeting was adjourned at 2:10 p.m.)
II I....::
I'
I.""

PAGE 144

r1'

I,

C E R T I F I CAT E

2

3

I, Peggy J. Warren, CVR-CM, CCR No. A-171, do

hereby certify that the foregoing 143 pages of transcript

5 , represent a true and accurate record of the events which

transpired at the time and place set out above.
7

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'4

INDEX Committee to Revise Article I Subcommittee Meeting Held on Oct. 4, 1979

SUBCOMMITTEE MEETING ON SECTION I, 10-4-79
SECTION I: RIGHTS OF PERSONS Paragraph I: Life, liberty, and property. p p. 6- 10, 12- 2 4, 2 9 Paragraph II: Protection to person and property; equal protection.
(See Section II) Paragraph III: Freedom of conscience. pp. 10, 24-25, 30-33 Paragraph IV: Religious opinions; freedom of religion. pp. 32, 37-39 Paragraph V: Freedom of speech and of the press guaranteed. pp. 39-4: Paragraph VI: Libel. pp. 42-44, 53-63. (See also Paragraph XI(a) an<
Article VI, Section I, Paragraph IV) Paragraph VII: Citizens, protection of. (See Section II) Paragraph VIII: Arms, right to keep and bear. pp. 44-47 Paragraph IX: Right to assemble and petition. pp. 47-48 Paragraph X: Bill of attainder; ex post facto laws; and retroactive
laws. pp. 48-53 Paragraph XI: Right to trial by jury; number of jurors; selection and
compensation of jurors. pp. 53-63 Paragraph XII: Right to the courts. pp. 64-68 Paragraph XIII: Searches, seizures, and warrants. pp. 68-72 Paragraph XIV: Benefit of counsel; accusation; list of witnesses;
compulsory process. pp. 72-82 Paragraph XV: Habeas corpus. pp. 82-96 Paragraph XVI: Self-incrimination. p. 96 Paragraph XVII: Bail; fines; punishment; arrest, abuse of prisoners.
pp. 96-97 Paragraph XVIII: Jeopardy of life or liberty more than once forbidden
pp. 97-98 Paragraph XIX: Treason. pp. 98-102 Paragraph XX: Conviction, effect of. pp. 102-108 Paragraph XXI: Banishment and whipping as punishment for crime.
pp. 108-111 Paragraph XXII: Involuntary servitude. pp. 111-112 Par a g r a ph XXI I I : Imp r is 0 n men t for deb t . p p. 1 1 2 - 11 8

SECTION~, Continued
Paragraph ~: Costs. pp. 118-120 Paragraph XXY: Status of the citizen. pp. 120-121 Paragraph XXYL: Exemptions from levy and sale. pp. 121-133 Paragraph XXVII: Spouse's separate property. pp. 134-141 Paragraph XXVIII: Enumeration of rights not denial of others. pg. 141

STATE OF GEORGIA
COMMITTEE TO PVISE ARTICLE I of the
CONSTITUTION OF GEORGIA
Subcommittee to Revise Sections II and II!
Room 402 State Capitol Atlanta, Georgia Friday, October 5, 1979 10:00 a.m.
BRANDENBURG & HASTY
SCIEl'JTIFlC REPORTING 3715 COLONIAL TRAIL, DOUGLASVILLE, GEORGIA 30135
942-0482 DEPOSITIONS - ARBITRATIONS - CONVENTIONS - CONFERENCES

rr---

- - - - - - - ----~--

il

1 Ii PRESENT WERE:

2

COMMITTEE MEMBERS:

3

MS. MILDRED BELL, CHAIRMAN

HR. JOHN GRIFFIN

REPRESENTATIVE JOHN SAVAGE

REPRESENTATIVE ALBERT THOMPSON

MR. GENE GUERRERO

SELECT COMMITTEE STAFF:
~,----
MR. HELVIN HILL ~1R. MI CHAEL HENRY

10
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~~ r~ ~ 14 ;... ~ :r 15 ..t.,l a: :::> 16 ~ 'o" "Z 17 :i:i

OFFICE OF LEGISLA, TIVE COm~SEL:
MR. DOUGLAS CARLYLE MR. LOU LITCHFIELD

18

lY

20

2t

PAGE 2
I
I
I
I
\

25

- - - - _ . - -- _.- - .. -_._-~_

-- -

----_.---

---- -- .----_.----_._-

PRO C E E DIN G S

PAGE 3
~~-- ---~-_--~-l

:2

CHAI~J BELL: I'm Mildred Bell.

MR. HENRY: I'm Hike Henry with the staff .

.+

MR. GUERRERO: I'm Gene Guerrero.

:)

REPRESENTATIVE THOMPSON: I'm Albert ~hompson.

()

REPRESENTATIVE SAVAGE: John Savage.

I'

~m. LITCHFIELD: Lou Litchfield.

is

MR. CAP~YLE: Doug Carlyle.

() II

MR. HILL: Melvin Hill.

lU

CHAIRMAN BELL: The first thing I expect we should

z~

do is formulate the goal. I think we've talked in terms of

that and we've probably all thought of it, in terms of what it

is we want to accomplish in this proposed revision.

I think when we do that we need to consider that

15

.:>
~

what

we're

working

on

is

a

proposal

really

for

Georgia's

tenth

:'">

16

'"
'I-"="

Constitution.

If Georgia is considering its tenth

Z

17

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CD

Constitution,

that might

tell

us

something

about

what

we

need

li:\ to do, especially in light of all the amendments that have

19
been made to the 1945 Constitution. There were something like I 20 -- if my information is correct -- something in excess of 645

21 amendments; of course, about 80% of those were special
22
amendments, but still that leaves a large number of general
23
amenc1ments

Do the committee members have any ideas that you

would like to discuss?

_ _ - - - .

. _ - - -I

REPRESENTATIVE SAVAGE: Of course, Hildred, I'm

deeply interested in a new Constitution. I certainly hope

that we come out of our deliberations with a shorter version

of the Constitution where the legislative process in Georgia

can deal with issues of substance without amending the

Constitution.

We have such a restrictive Constitution almost in

8 every area that it's impossible to deal intelligently with

9 almost any issue without going back and having a Constitutional

0 amendment drawn. Unfortunately, our commi.ttee is not going

z\!l

~
.'0"".".

to

have

an

opportunity

to

work

on

some

of

these

areas

of

2

a:
~...

substance

and

reduce

them

to

what

ought

to

be

said

in

the

;::

~~

u
""

Constitution.

But I think we ought to set an example in the

.4 >-

~
'"

Section

we

work

on

by

not

trying

to

put

verbage

in

there

that

:r:

15

...~,
a:

deals

with

every

technicality

in

the

State

::>

16 ~

'o"

I think we ought to write broad y general language

Z

4.

17 ~

guaranteeing basic, fundamental issues to the people of

18
Georgia. We have a legislative process and we have local

19
governments - give them the opportunity to deal effectively

20
with issues as they arise from year to year and month to

21
month in the other governing bodies that are closest to the

people in the State.

It's interesting that all Constitutions say the
24 1
:1 people have the right to change and alter the Constitution, but
l 25 II the~_~=- ~1<e the proces~__ ~_~_.~~e.<:>~gi~s<?_ c5)m.:p_l~ca~~~ and. c.omp~~_x,_

PAGE 5
::
that it is almost impossible for the people to implement

change in this state.

;

CHAIRMAN BELL: I certainly agree with what you

I
,1 I said. I think it points up \oThat the major problem has been.

s

il
"I

Perhaps

we

need

to

think

in

terms

of

deleting

excess

verhage

I

I; and 1 1 m not sure that working on Article I we have as much

:: especially Sections II and III -- lI m not sure we have as

8 much opportunity to do that as some of the other committees

l) I have. ~1r. Guerrero?

JU

MR. GOERRERO: I missed the first meeting of the

Czl

11

f-
a:.

committee.

Could you or someone fill me in as to the

o

a.

w

(Ld)} ~ ~

12

~
~

process,

whatls

going

to

happen

after

the

committee

finishes

em.",o its work? lIm not that familiar with how this committee came

,,>-::./J) I

14

>. >-

into

being

and

what

will

be

the

next

step.

v>

<l
r

15 .:>

CHAIRMAN BELL: Mr. Thompson, could you --

'.:J

'"::>

16 ~ ,,u o

REPRESENTATIVE THOMPSON: I I11 try.

Z

<l

17 :ii

The last Constitution that we adopted was in 1976.

18 That was not a change of the Constitution, because there was

19 supposed to have been no substantive changes in the 1976

20 Constitution.

21

In 1970, we made an attempt to redo the Constitution

22

Ii
1:

and

a

few'

years

before

that

they

also

made

an

attempt

to

do

it.

23 Each of those failed. So we still have the 1945 Constitution

24

change hardly at all.

Since we were unable as a General Assembly to change !
_ - - ' ._..

----- -

-----~---------

PAGE
- - - - - - - - - - - - - - - 6- - - - - - - - ,

the Constitution and no one wanted to call a Constitutional

2 Convent,ion for that purpose, it was decided that in '76 they
I
3 would rearrange the Constitution. By amending it in the
.A. II manner that we have done, sections of it have gotten into the

5 Ii wrong Articles, etc., and there is no sense or semblance in

"

6
7

I,iI
II,III
Ii

the manner in which it has Constitution was really an

been arrived at. So the 1976 effort to get into the proper

8 II Article all the things that belonged in that Article. II

9 II

Since then, the Assembly has attempted to amend

0 Article by Article, rather than putting a whole Constitution

~?

7-

;:
'0"

to

the

people

at

the

same

time.

'rwo Articles were on the ballot

a.

w

_2

0::
U... in

the

last

general

election.

Unfortunately, neither of

~

!!!!.!.3 u

those

Articles

passed.

One was the Revenue Article and I

V>

[4

<>'"-,
:r

forget

what

the

other one

was,

but

they

had

been

very well

15 ~ done, I think, by members of the General Assembly, committees

"0::

::>

16

~
aw

that

had

gone

out and done

a

lot

of work on

them,

but

they

z

<

17 ::;; did not sell them to the people, so we really have gotten

18 ~l nO\'ihere with it.

19 \1

There was an effort to redo the Judicial Article.

20 I worked with Wayne Snow on that one and that's going to be

21 a humdinger trying to redo the Judicial Article. I think

that's going to perhaps be the most difficult of all of the

23 Articles to redo.

24

A Select Com.rnission has been appointed by the

25 Governor to handle all of this. None of us are on the Select

PAGE

- - - - - - -~ ----~ ~--~-------~-

7

Commission -- Cornnlittee. The Select Committee the

2 Governor and the Select Committee came up with an idea that

they would appoint committees which would handle each one

i of these Articles.
,I II
We have been selected to handle Article I, which is

6 the Bill of Rights. As a practical matter, after we have

7 II completed this -- and we I re supposed to finish our work and !: make our report to the Select Committee on the seventh of
9 II
December, which really puts a deadline against us.

~\

10

I might as well give this to you, since you were not

<z:J

II .~... at the last meeting, we have scheduled the last meeting that

a.
12 ~'~" this committee will hold and it will be in November. The

~J".".' ~ final meeting of this committee, and this is the committee as

]4 ~
<.:.r a whole, would be on November the 30th, at ten o'clock. And
15 <:>
~ we may have another meeting of the full committee on November

,.::l

J6 ~

Q
z

the

9th,

,...hich

is

also

a

Friday

at

ten

o'clock.

So we have

<

\1 u:

'" two meetings of the full committee scheduled, for November the

9th and for November the 30th.
19
We broke ourselves down into smaller committees to
20
consider the sections. This committee is considering Sections
2:
II and III of the Constitution. There is another committee
22
which met yesterday which is considering Section I of the
23
! Bill of Rights f and they went through it completely. So we're
24
going to have to have our final draft ready for adoption by
25

~___ PA__ _G_E__JL -----, to look at it and have a final draft before December the 7th.

The Bar Association is meeting the first week in December,

Thanksgiving is the week immediately before we meet and it is

difficult to get the meetings scheduled.

Does this answer basically what you --

MR. GUERRERO: Yes, sir,

7

CHAIRMAN BELL: I'm sorry, I don't know who that was

8 who just came in. Would you

9

MR. GRIFFIN: John Griffin. I apologize for being

o late, I had a long way to come this morning.

C)

z

1 f-
'o"

CHAIRMAN BELL: Glad to have you here.

"'-

""W
t''L'\. U
....

MR. GRIFFIN: I was not here at the first meeting

;:

~~~ because somehow I didn't get a notice of it, so I was not

l4

>-
f-

present.

'-"

15 .:.
C)

REPRESENTATIVE THOMPSON: Mr. Griffin, I'm Albert

.'::".>.

16 17

z
'0.z-"..

Thompson, Article I

I'm and

the Chairman of the overall committee for I was just trying to bring Mr. Guerrero up

on

18 II what we did at the first meeting. Did you hear most of what

19

I,
II

I

had

to

say?

II

20 II

MR. GRIFFIN: I heard just the latter part of it,

i

'I

21 \1 the scheduling part of it.

11

Y) 'i
REPRESENTATIVE THOMPSON: I spoke just a little bit

23 about the history of this particular thing, the fact that the

24 1976 Constitution adopted by the General Assembly made no

lLs-u-bstantive changes.

The

only ~~ _

thi
~~

n

g.

i t.

di._d____ was

to

try and
__._"~_._____

pull
I

~--------------------
out the various matter in the Constitution and put it in

logical sequence, put everything that pertained to the Bill of

Rights in Article I, everything that involved education in the

'I II Education Article, everything that belonged to the courts in
!I
the Judicial Article. That was the only thing that was done

then, and now we're trying to revise it Article by Article

7 I rather than redo the Constitution all at one time.

8'

We have a deadline, as I indicated, which is

') ! December the 7th, to complete our work. This subcommittee

10 here is considering Section II and III of the Bill of Rights

in the 1976 Constitution.

MR. GUERRERO: Essentially what is hoped for then is

this whole process will be like the revision process of '69 and

170, that's what is hoped for, a complete revision of the

Constitution, is that right?

REPRESENTATIVE THOMPSON: We hope eventually it

will be completely revised, but there are some other problems.

jl There are four Articles which we hope to get on the ballot
19
in the general election next year. There are some other 20 Articles which we anticipate will be much more complicated,
21
which will go on the general election ballot in 1982. We will
)""l
not complete it this year. This is a long-range type thing

and hopefully at the end of the next six years we will have a

complete new Constitution. It will possibly be the Constitutio~

25

\
I

.

L

.o.-

f_

_1

9
~

7

6

,

as

amended, ~~

but

the

effect

of

it will

be

a

new

i

~ _ _ _ _ _

~

I)

~\

'
\

'1
rl

'
'

_

1

0

_

_

Constitution. We need to clean it up very badly, everyone

2 agrees on that.

3

REPRESENTATIVE SAVAGE: I want to express the

~ I, thought that it was my opinion in the election the reason the

5

'I
I

Articles

lost

is

that

there

were

so many

Constitutional

6

IIII IIii

articles on the

ballot

that the people were

simply voting

7

I ,I

against things that they didn't understand.

I

8 Iiii

Now it is also my opinion, and I just want to share

9

II
ii

this

with you and

I

can't change

it,

I

tried

to,

I

had

a

0 resolution in the last session of the legislature asking

Cz1

1

;:
'0"

Governor

Busbee

to

do

exactly

what

we

are

doing

except

to

Q.
w

2

u'"
....

put

on

the

ballot

the

one

question,

do

you

approve

of

the

;:

Z !!.!!.!. w

u
Vl

new

Constitution.

Now the process by which we are continuing

.4 >-

~
Vl

the

Constitutional

approval

continues

to

complicate

the

J:

[5 ~

C1 process because we will be changing some Articles in this

:'>"

16 ~

wo z

next

election.

Those people who want to make Constitutional



17 ~

changes will be trying to get Constitutional amendments put

18 II on the ballot at the same time. We might even have

19
Constitutional amendments on the ballot at the same time

20

we're going to try, what, to get four Articles or five

21

II
!i

, approved in the next election?

) _~ i
REPRESENTATIVE THOMPSON: I think it's four.

_) .,'
REPRESENTATIV.';; SAVAGE: We'll have other

24
I Constitutional amendments to other Articles that will still be

25 I
II legal. So then we' 11 have a __:v~~o~Jj._c:at~~ __a!1ci- c~mfus~C! _

iT .-------,-.

.__. .

PA. GE .--1J....--,

i ballot again. What I had greatly preferred was -- and it's

I

not going to be done but I just want to share this thinking

with you -- we should have bitten the bullet, we should have

written a new Constitution and we should have put this

simple language, do you approve of the new Constitution of

r. jl Georgia. That would have been the only question on the ballot 7 in the next election and we would not have moved into what I

8 think is going to complicate this process even further, and

that is a gubernatorial election two years hence.

10

REPRESENTATIVE THOMPSON: May I say this? Dr.

'"

II

frY
o

Savage and

I

~-,.,.,~...., both in the General Assembly.

The 1970

0-

w
12 ~ revision of the Constitution, it took a year for the House to
,~@2J/"". ,~ rewrite that and it was dropped in the hopper the second year

14

,..
:;;

of

a

session.

It passed the House and

it was

sent

to

the



I

15 ~ Senate and the Senate said that it did not have time to

r.

.:;J

16

~
Cz\

consider

that

because

I mean we gave it to them during the



17 ';; second year of a session and after we had had a solid year in

18 I which to study it. So they said they didn't have time, so as 19 a practical matter, I agree with you, that would be the

!I preferable way of doing it -- but as a practical matter, with
I
21 the Senate taking the position that they need a year to study 22 it and with the House taking a year to study it and we only

having two-year sessions because everything that is in the

24
hopper at the end of that second year is dead and you've got to

25

LL start

all
~

o

v.

e

r

a.__ .g.

a

i

n
~

because

we

would

h-a-v-e-...a-- n

entirely

new

-------!

PACE
II Assembly the next year.---:':-a~o:t~mp~aCtiCal~s:_12!

: I mechanical thing to get the Constitution amended in this

II fashion, so this may be the only way \\1e can do it.

~ !I

REPRESENTATIVE SAVAGE: Now the other thing that

5

II
I'I,

each of you should ba aware of

is

that we will

labor and

6 II

ii labor and think and discuss and debate and debate and then

II

'7
come up with really what we think is a very fine proposal,

8 and you need to be aware that any member of the House or the

9
i Senate can change your proposal at will. And some of the

o

things that you will consider the best work that you have

z<!J

1 ;:

'.,o,".,,- done, I can assure you will be changed.

:2 ~

....

REPRESENTATIVE THOMPSON: I hope it's not quite

I-
~~
~ that easy -- you said they can do it at will. They've got

14 >-
~ to -- the amendment has to be prepared and it has to be
:r
IS.!)
~ argued and debated on the floor and there will be some of us
:;)
16 ~
~ who have worked on this, I hope who will be committed to
<:
17 ~
trying to retain what we have.

18 I

REPRESENTATIVE SAVAGE: What we have, we will be

19 I
committed.

20 II

REPRESENTATIVE THOHPSON: We'll be committed to do

III 21

that, and I think that we'll put up a good fight to retain

what we think is a good Article I.
23 I
CHAImiAN BELL: iiell, what John just said really
24
surprised me. Perhaps I hadn't been listening before when I

-------- -------- ------PA-G-E--1-3---l
I in the form of a new Constitution. I did not realize --
Iii'
REPRESENTATIVE SAVAGE: That would be highly
i;
3 I preferable --

4

CHAI~~ BELL: -- that what we were doing was

amendments to the existing --

REPRESENTATIVE SAVAGE:

and the reason for that,

..,
I Busbee was intrigued with this idea, he said I think you're

i
8 making all kind of sense and I'd like to have a new Constitutio~

as a record of my stewardship of the State, but where we ran 10 up against the log jam was not any other Article except the

Judicial Article. They're still arguing about how we're

going to have courts in Georgia and I think they're going to

be arguing about that after we propose a new Article and

there are going to be pros and cons on both sides of that,

15 .~tl regardless 0 f what we d0 with Article III, 1. S 1. t?

'"::>

J.6 ~ Ul o

MR. CARLYLE: VI.

"'

REPRESENTATIVE SAVAGE: Article VI. What I am

IX i suggesting is there is never going to be a unanimous decision

made by the attorneys of this State on that Article, and I'm
20 sorry that we didn't press that issue and make them at least
_J1'
say well -- they aren't going to be happy after this year,
11
they aren't going to be happy after next year, they're not
23
going to be happy five years from now with what has been done,

but that is still going to complicate, I suggest and I am

1"- apprehensive, the entire pro_ cess, it's going to complicate it

I~---------__----__-~-----__--

--

Ii greatly because if the Speaker

allows

any

PAGE --------------lA--:
,
Constitutional

IIIi amendments to be passed, to be considered -- and some need to
) i!IIi be seriously considered -- all of those Constitutional

Ii amendments plus these, what four -- how many separate Articles
S !I, are we going to put on the ballot this next year?

Ii

MR. CARLYLE: Six.

7i

REPRESENTATIVE THOMPSON: Are there six?

8

MR. CARLYLE: There'll be the four that's new --

9

REPRESENTATIVE SAVAGE: And the two that didn't

o pass. So we'll have six separate Articles plus new Consti-

"z

1 ...

ct:
o

tutional

amendments

and we're

going

to

have

a

confused

ballot

0-

w

2 ..~.... again And there ought to be one question on there, do you

~

~ approve of the new Constitution.

I

,4 ~

:;;

REPRESENTATIVE THOMPSON: I will say this about

<

J:

15 ~
~ these Articles as they go on the ballot. Robin Harris -- and

::J
16 ~
~z I failed to mention this -- is the Executive Director of this
17 :<ii
whole movement of all of the Articles, and in a meeting that

we had with the Governor, he has indicated that he is asking

the Governor as a practical matter to put these resolutions

1, 2, 3, 4, 5, 6 on whatever ballot we have in 1980, which

means we hope folks will vote on these before they get tired
22
of trying to read the bottom lines of all the other language.

The first amendments that appear on the ballot, as a practical
24
!'i matter, have a better chance of passing. So that's one of the
i
25 ! L~ mechanical things we are_ atte~pti_~CL!~do.

PAGE 15

I

CHAIRMAN BELL: Well somebody who is aware -- who

I

!
knows the background of this, Mr. Hill maybe, can you tell me

3 what is the distinction between the way it is being approached

this time and the way it was approached in 1945?

MR. HILL: Well, I think the way it has been

approached in all of the previous Constitutional efforts in

7 :; this State and probably in every other state is that you have

a group of people working on the entire document at one time

and they present it to one house and then the other house and

it goes to the people as a whole. And it is because of what
"z
II ~ has happened in Georgia, and it wasn't just '69 and '70 we
.0..
It~--,,) ~ I ~ ~"~' had trouble, in 1964 a new Constitution was proposed and
~~r--- ~ cu...... approved by the General Assembly, both houses of the General

\4 ,.
t- Assembly and it was prevented from being put on the ballot by
<:
1:
15 s~ the court because the court held that it was a malapportioned

:;

16

.~..
Cl

legislature

that

wrote

the

doc~~ent,

therefore

it

could

not

be

Z

<

j7 ~; approved by the people. Well, they changed their mind

the

If,
court decided later that it was not rnalapportioned but it was

L.I I,
:1 too late for the people to vote. So the '64 proposal died.

!

20

Then in '69 there was this other effort made to try

21
to get another Constitution and it went -- it passed the House,

went to the Senate and died there. These efforts to try to do

it as a whole have failed and this was just an idea that

24
Governor Busbee had when he was still in the legislature,

2) !'

wasn't it?

L..____

_

.

._~

.

.

---

,
--------------~

PAGE 16
~-.~-.-- REP~S~NT~~~VE-~AVAGE:Th:r~ ha: n:ver' ~:~ the-'

;1 c1t1zen input I think before in the history of this State Ii
3 II that you're seeing in the rewriting of this document. It

I ~ simply in the past has been a creation of the legislature, is



!!i

5 II that not correct?

6 IIIi

REPRESENTATIVE THOMPSON: As far as I know. There's

7 il one other thing, there's another way this could be done and I

Ii!' 8 :i think this is what was done in '64. You can call a special session
!i

9 of the General Assembly and we can sit up here for two or three

0 months battling it out, revising the Constitution. That is

'z"

1

1-'
0"

an

extremely

expensive

way

of

doing

it

and

also

I

don't

think

"-

uJ

2 'u" it would make anyone happy to see the General Assembly come

".

Z

!!!E.. ~ u

up

here

and

argue

in

June

and

July

trying

to

pass

a

Constitu-

V>

l4

>-
l-

tion

to

put

on

the

ballot

in

November.

V>

<

J:

15 ,~
''::"":>

MR. HILL: I think this is a pretty novel approach,

16

'U
you Z
aI.' ~

know,

an

Article-by-Article

revision

process

and many

Z

<

17 'w" people felt it would never have a chance because the sections

18 ! and Articles are so inter-related that if you try to do one,

19 it's going to affect all of the others, but --

20

REPRESENTATIVE SAVAGE: That is precisely the

21 reason for doing them all at one timf3.

22

MR. HILL: Right, but --

23

REPRESENTATIVE SAVAGE: What if we don't pass this

Judicial Article because of an argument between the attorneys

25 i in the State. Then we're going to have that old Article left

ll---

- - - - - - - - -.----- ----------.--- . ------. . - - - -

PAGE

17 -,

I

to try to fit in with the other Articles we have.

I
I

,

!

MR. HILL: Well there's two sides to that story.

\

You may pass all of the other Articles except the Judicial

1 Article, so that you do have a pretty good new Constitution

5 and it wasn't killed because of objection to one Article.

I mean there are two sides to this story, and I -- you know,

7 'I so far, we are finding that the input from all the different !
~:, sources is really helpful and certainly no one is going to ! claim that this was a closed door policy. You know, there

10 are a lot of citizens involved and we're getting some
"z:
notices to the public and what not and, you know, they may

reject, as they did last November -- they may reject all

six of these new ones and if they do, then I suppose we're

:;; going to have to, you know, rethink this and go the way you're
<
1:
15 ~ suggesting --

.:J

'i

1(\ l
,~

REPRESENTATIVE SAVAGE: I think the Speaker is going

Q

Z <l

I

17

~:
ao

to

exercise

a

great

deal

of

restraint

on

letting

other

Articles!

['
,

,I pass 'this year and that will be one of the wisest things we'll

j(l ever do.

20

REPRESENTATIVE THOMPSON: The Speaker is on the

21 Select Committee and I think he is committed, to some extent,

II to --
I
"'
-,)

REPRESENTATIVE SAVAGE: You see, if we come up with

.'.\ I twenty Constitutional amendments inclUding six Articles this

year, the people and quite frankly, the average citizen of

~-~----

PAGE 18

~ - - - - - - - _ .. _ - - - - - - _ . _ - - - - - , - -

~ . . . _._._..... _~._. ~-'-'---i

l fthiS State, there's no possible way for them to vote intelli-

gently on all of that material. There's just no practical way.

So they are suspicious now of politicians and the political

process.

MR. HILL: That's one of Robin Harris' major

functions as well. Once the General Assembly has approved

the document, then it is Robin's job to try to marshall the

resources of the State to get behind it, to put on a better

publicity campaign. There is no reason really that those two

Articles should have failed last time because there is nothing
i
controversial about them. One was the Elections l~ticle, which:

is just giving everyone the right to vote, basically, and the
t-
!!!!.~~ Scholarships and Retirement was not controversial, so it was

l4

>-
t-
'r<"

just

the

general,

you

know,

anger

and

hostility

of

the

15

.:>
CJ

citizenry,

I

think,

is what killed that.

Ill::

::l

16 zt..o.
0z

REPRESENTATIVE SAVAGE: You are exactly right

<

17 't"o

MR. HILL: And as Mr. Thompson said, there is going

18 II to be some effort made to keep the general amendments down and
I! 19 if they could just have six general amendments on the ballot

1\

20

:1
II

next

time,

that would

be

the

ideal

situation.

21 II
REPRESENTATIVE SAVAGE: That would be ideal .

-...,
...

CliAIRMAN BELL: Well I take it we agreed in principle

23
that what we would like to do is make the Constitution broader

and simpler instead of attaching so many specific things in

the Constitution.

--,-------- ---- --- - ---------

PAGE 19 ---------

Ii

What is the wish of the committee on this? How

would you like to proceed? I understand that yesterday's

I subcommittee proceeded paragraph-by-paragraph and worked on

it that way. Is that the way you want to proceed here or do

'i jl you want to have two or three committee members -- well that's

() I, a 11 ''Ie have h ere
ii

7

P~PRESENTATIVE SAVAGE:

I think just go ahead and

proceed paragraph by paragraph.

III
"z II ; morning.
-,-
'0":

CHAIRMAN BELL: Paragraph by paragraph? REPRESENTATIVE SAVAGE: As much as we can do this
CHAIRNAN BELL: Is that okay with everyone?

REPRESENTATIVE THOMPSON: Let me say this because I

said the same thing to the committee yesterday.

Some of these things need relocating in tho document
::.;)
16 a~ and I think that we're going to have to have another meeting ,-

of the full committee for the purpose of deciding where these

l~
things go in Article I. So I would suggest that we not worry

] C)
too much about location this morning, except that when we

20
! look at something and say maybe this needs to be changed as

.21
far as location is concerned, and just look at the substance

22 ,II of what we are going through.

23
REPRESENTATIVE SAVAGE: We do need, Mildred, each

24
of us, and I want to ask, is this H.R. 514-1028, is this the

25

present language of the Constitution? __ __ _---_._----,--' --_.- ._--.----- .-

_.~. . . _ . - ,,_._----_._---~.__

. . - _ . ~ ~ _ . _ . _ - - ~ - - _ . _ - _

~

MR. HILL: No. That is what was approved by the

IilI
!I

House

in

1970.

i
REPRESENTATIVE SAVAGE: Do we have, in the informatiop

you sent to us, the present language?

!

MR. HILL: You should have gotten a copy of that in

one of the packets of material.

REPRESENTATIVE THOMPSON: And also the pamphlet.

CHAIRMAN BELL: I don't believe I have the one that

John is talking about.

0

'z-'

1~ IX ...0 0..

.2

IX
u

....

j:

!!~ ~

~

this

MR. HILL: The 1970 one? It's a long one like (indicating)
CHAIRMAN BELL: Oh, yes, I have it. MR. HILL: The reason why that 1970 proposal is

l4

good >-
l-
V'

to

look

at,

Wwee-used J..t yesterday and we have been using

I

15

i t .:>
\:J

in other

Articles,

is

that

in this

allalysis

that we sent

'::">

16

fr,

z
0z

you,

done

in

1970 by Mr.

Blackmon,

John

Blackmon,

it does

<

17

IX
III have a

paragraph-by-paragraph analysis of

the

changes,

if any,

Iii that were made in 1970 to that proposal, which is basically

19 the proposal we're looking at since it is the 1945 Constitution,

20 I revised, so as we go through this I'll try to highlight any I
21 ii I! changes that were made in 1970.
22 I
REPRESENTATIVE SAVAGE: Then we want to start with

Section II, Paragraph I, do we not?

24 '
MR. HILL: How about the Preamble though?

25 I

REPRESENTATIVE THOMPSON: Yes, let me say this about - - - - - _....~_._._--_.-------

__..

._---~_ ..

~._------~

- ----- --~

PAGE 21

the Prea~ble. This Preamble is not in Section I, II or III.

It's on the first page. It is the same language that was in
.' the 1877 Constitution, it has been carried forward since then.

4 ii The same thing is true about Paragraph I of Section II, the

same language there is in the 1877 Constitution. And what I

6 i would suggest, for historical continuity, is that we leave

7 that language that's in the Preamble in this one, and also the

8 same language that's in Paragraph I of Section II because

')
those are just general statements of what the Constitution is.

10

I see nothing to be gained by changing that specific language

"z

I 1 i=

o'" and I would reco~nend that to the entire committee.

-Q,.

12 ~

_(~) ~ ~!-"-"",,"~ 0

CHAI~mN BELL: Retaining Paragraph I just as it is? REPRESENTATIVE THONPSON: Just as it is, and also

14 >-

;,;

the

Preamble.

:I:

15 ,;,

--9
,-"

CHAIRMAN BELL: And the Preamble.

::>

1(1 ~

\JJ
Cl

REPRESENTATIVE THOMPSON: That same language goes

1.

i' :ii

all the way back through most of our Constitutions.

IR
CHAI~mN BELL: Is that agreeable with the committee

members?
20

21

22 23

24

25 I
Il-'---

..
~_~

MR. GUERRERO: Yes.

CHAIRMAN BELL: Mr. Griffin?

MR. GRIFFIN: Yes.

REPRESENTATIVE SAVAGE: Certainly.

CHAIRMAN BELL: Do I have a motion?

REPRESENTATIVE SAVAGE: I so move.

_ _. .

.__

..

.

.

_

~

,~~

~._

rf----~-
II
!I
2t
3 II III
4 IIII hand.

- - - - _.._----~-----_._--~--
CHAIRMAN BELL: Second?
MR. GUERRERO: I second.
I
I
CHAIRMAN BELL: All in favor, signify by raising your

5 Ii

MR. GRIFFIN: Are we talking about the paragraph on

6 i page 16 of the doctunent?

11

II

7 II

REPRESENTATIVE SAVAGE: NO, you really need to get

II

8 I: your Constitution.

9 I'I,

REPRESENTATIVE THOMPSON: This is on page 5, do you

a have this? This has larger print, that's the only difference.

z~

;::

0'"

CHAIRMAN BELL: Mr. Thompson has recommended that

"-

2 .u''"".. the Preamble and Paragraph I of Section II be retained in their~

f-
~
~ present form. Dr. Savage has moved and Mr. Guerrero has

[4

>-
<f-
:r

seconded

that motion.

15 ..:.>,

All in favor signify by raising your right hand?

"":::l

16 ~...
cz

(Votes were cast with raised hands.)

<:

17 :::i

CHAIRMAN BELL: The motion carries so we will

18
recommend retention of those.

19
Paragraph II dealing with State's Rights. Do I

20
hear a recommendation with respect to the language?

21
REPRESENTATIVE SAVAGE: I've been trying to shorten

22
this and I raise this: liThe people of this State have the

23
Ii inherent, sole and exclusive right of regulating their internal
ii
24 Ii
government " Does that mean -- how do you relate the

25

Ijl Judicial,

the

Legislative Branch, --- ---

the

Executive Branch - - ---

in

the

concept of the people?

PAGE
----~
For example, we regulate every year I

2 in the legislative process, the courts r~late many things

3 with their judicial decrees. I'm just simply trying to shorten,

4 the Constitution and I think that is, in sorae respects, vague.

I had written this, "The people of this State have the inherent:
I!
right of regulating their internal government . " I just

,i simply struck out "sole and exclusive" because we do have the
II
8 legislative process, we do have the Executive Branch of
9 government here, all of these are involved in the process of
lU
regulating our internal government in Georgia. If you put the

word "sole", it seems to me just a conflict in language.

CHAIRMAN BEIIL: I suppose perhaps the idea behind

the use of the word, whether it's necessary or not I'm not

.".~ suggesting, but I think probably what's behind that is that

I:

15 .-tJ

<.9 the legislature is representative of the people and is acting

0::

::>

16 '<"-

~,
,:,

for

the

people.

:?:

17

<,,:
'"

REPRESENTATIVE SAVAGE: Well if you think in that

IS
concept there's no problem with the language that we have. I

19
I simply was trying to make it a little bit more precise.

20
CHAIRMAN BELL: Well I'm not opposing your idea to

21
take it out. How do the other committees ...-

22
REPRESENTATIVE SAVAGE: For example, Busbee sent

l'

i

.c.' 1,1 the State Police into Atlanta here, as an Executive action,

24
and we said that the peqie have the sole, inherent and

25 :

i exclusive right of regulating the police, etc.

...L - .

..... _ .

. _.. __._._._. .

._ _~ .,..

But that's._.._ just ",-_,

~correct.

PAGE 24

---,--"

.. _-_._-_._-~-----_._-_.-

- - _ .. _._------------_.~-~------'--..,

i

2 II

REPRESENTATIVE THOMPSON: They do express themselves

3 !I through the Governor, who is their representative.

4

II
,1

REPRESENTATIVE SAVAGE: If you think of it in that

II
5 Ii context, it's perfectly all right to leave it like it is.

6 II

CHAIRMAN BELL: The people can act only through

II

7 1,1 their elected representatives.
II

8 II

REPRESENTATIVE SAVAGE: Now the interesting thing, if,

Ii

I'

9

I: ,;11

you

think

of

the

same

thing,

the

legislative

process

first

o has to approve a new Constitution. The people of this State,
lz:l
11 ~~ interestingly enough, don't have the inherent right, except

"'
l2 .:.. through the legislature, to even abolish the Constitution

j:

!tI!!. u

There

is

no

Constitutional

means

for

the

people

of

this

State

""

14 Eto abolish the Constitution. So that language is misleading

<
1:

15 ~ if you read it and interpret it in a -- you could strike

a: =>
16 ~Q "and the police thereof" and change their Constitution --

z

17

<
a:
00

I'll

just

read

this

through.

"The people of this State have the inherent

right of regulating their internal government, and

the police thereof, and of changing their Consti-

tution whenever it may be necessary for their

22

safety and happiness."

The only thing I have done is try to say the same

24 thing without building in the conflicts that I see in my mind

25 I: the people abolishing -- they have the sole and exclusive right

I:

----. ~______________________.

GO TO PAGE 26

f----

. . - - - - . - - ~ - - - ~ ~ - - - ~ - - - _ . _ - _ . _ - - - - - - - ~ - - - - - - - - -

PAGE 26 -- - - - - - - - - -------- -- --1

!i
II

of

abolishing

the Constitution,

and

that's

just not correct.

II

2 "I,I

CHAIRMAN BELL: May I ask you to read that again?

3

II
,

REPRESENTATIVE SAVAGE: Yes.

:'

ci-

"The people of this State have the inherent

5

right (I just strike the words 'sole and exclusive')

6
7 II,III II

of regulating their internal governments (and I add the word IISft to governments because I include citi.es,

'1'1

I

g 'i

counties and state governments in a government, so

II

q

'internal government', we have more than one internal

10

government in Georgia, correct, Doug?

11 ~

MR. CARLYLE: Are you talking about government,

()

0-

w

J2 ~ political subdivisions?

.....
Vcm,,,,. ~

REPRESEN'L'ATIVE SAVAGE: Yes. We don't have just

!

14

<>- one
:r

internal

government

in

Georgia.

1S ~
v

MR. GRIFFIN: But this doesn't necessarily refer to

]6

3:'>"
:l those

subdivisions,

it seems to me,

"regulate their government",

'7.

!

'O,

17 :::i that is -- government is a noun, government of the people.

Ix

REPRESENTATIVE THOMPSON: And also, all your

19 municipal governments and your counties and so on are

20 II established by the General Assembly, we control what they are

21

',1
11 able

to

do

and we

delegate

to

them whatever powers

they have.

REPRESENTATIVE SAVAGE: That's precisely the conflict
,,
--' I that it creates in my mind because people then don't have the

24 right, except through the legislative process and through

25

REPRESENTATIVE THOMPSON: We're the people. If we're

If
I
not the peqie, we're in trouble.
will of the people.

PAGE 27 --., ._..... - - - - - -

- - - - - - .

. . . . _ . _ - - ~

I

We are here to express the I,

3

MR. CARLYLE: It seems to me in what they call the

4 republican form of government that's the difference between a

pure democracy and a republic. In a democracy the people do

have the direct say, whereas in the typical government in the

7

i
United States, whioh we have, the people voice their concerns -~

I

8

REPRESENTATIVE SAVAGE: First through an elected

9

II
I,

official.

10

MR. CARLYLE: That's right.

"z

11 ~.
'o"

REPRESENTATIVE SAVAGE: And they don't have the

Q.

w

(~~,/~I .~ ~ basic right to abolish the Constitution or even altering their local city governments except through their representatives

14

~
:;;

elected

in

the

State

Legislature

because

the

City of Atlanta

<l
~.

IS

,~ ~,

could

be

abolished

by

the State

Legislature.

':":>

Ih

!Xl
Z

,~

0

MR. GUERRERO: It seems to me maybe what you're

Z

17

,<"l
,'l driving

at or

at

least

what

I

think

is

a

concern,

is

that

18 I' particularly in these sections, what is involved is sort of a
19
statement of principle rather than a specific sort of writing, 20 something that's going to have legal -- well, writing a
.~ I
, particular law -- and that what ought to be in there perhaps is

a statement of the inherent political power of the people, the

.'3

I Ii

power

vested

in the people

.'4 "
REPRESENTATIVE SAVAGE: It ought to express itself
:'1
25 !
intelligently and it ought to express what really is the

I'
I

situation

in

Georgia.

PACE 28 - - - - - - - - - - - - - - - - - - _ . _.._---_.._---

I

2

MR. GUERRERO: Well several states, I noticed in the

II

3

Ii
II

summar~ have

such statements here.

Now Iowa, for example,

4 II,I says, "All political power is inherent in the people. Govern-

5

'[ I

ment

is

instituted

for

the

protection,

security

and

benefit

II
6 !I of the people and they have the right at all times to alter

7 II or reform the same whenever the public good may require it." II

Ii 8 tl

It's simply a statement saying that fundamentally

i

9 ,"iIl political power is in the hands of the people. And there are

10 other sections in Colorado and other places --

[1 loe<
0..
'"
12 :...
I-
~~ 3
u.."

REPRESENTATIVE SAVAGE: I like that language. CHAIRMAN BELL: I like that too REPRESENTATIVE SAVAGE: Now you see, the interesting

14

.>.-.
'"

thing,

we

put

in

this

phrase

here,

which

kind

of

caught

me,

r

15

~ ~

" the

inherent,

sole

and exclusive

right

of

regulating

0.

:::>

16

'z" 0

their

internal

government......

Now that's not correct, the

z

17

c< co

people

don't

have

that

inherent

right

of

regulating

it,

it

18
has to be done through other means. and II the police II

19
interestingly enough. I wondered why we put the phrase "and

20
the police thereof".

21 I

REPRESENTATIVE THOMPSON: John, let me ask you a

question. Can you think of any way that we can word this and 23 ,, effectuate a manner where the people themselves actually do it?
24 Ii
REPRESENTATIVE SAVAGE: I woulr1 like to have that

intent, which we are all in agreement with, expressed in a way

that doesn't conflict with my logical thinking about what
I
-, il exists in government in Georgia.

MR. GUERRERO: Does that kind of general language

from some of these other states --

REPRESENTATIVE SAVAGE: That language sounds better

than this language to me.

Cfu~Iro1AN BELL: I think really they intended to

express the same thing, I think in ours --

REPRESENTATIVE SAVAGE: I'm saying that I am not

disagreeing at all with the intent -- content of that
C}
1] ,.
(, paragraph, but I think it is expressed in a way that is not

Constitutionally correct in the State of Georgia.

CHAIRMAN BEI.JL: Well, I don t t think I agree wi th you

II

,,..
</>

because

I

think

it has

as

its

import that what

the

legislature

1:

1J:: .:>

,,!) does the people are doing.

::J

;'1

I) 2.

:.

REPRESENTATIVE SAVAGE: If you think of it in that

i.

<:

1"7

<Y "~l

broad

a

term,

then

you can

justify all

of

this

language.

I :-,
CHAIRlJJAN BELL: But like you, I think the language

1')
Mr. Guerrero has read was better.

2U I
REPRESENTATIVE SAVAGE: If you come back and say

the legislature is the people and the courts are the people
2.~
and the Governor is the people, etc., these are all the
, ,,
people, but what it is really saying is that the legislative

process and the judicial process and the police and the
... _J

JT---------------------- -- -- --- ---

- --- --------

PAGE 30

1 II as a whole, is what the intent of that language is.

REPRESENTATIVE THOHPSON: You know, we didn't read

3

:1
Ii

Paragraph

I

because

I

had

suggested

that

we

accept

that,

since

it was in the 1877 Constitution, but this might be the type of
,!
"
statement that you really want in there.

REPRESENTATIVE SAVAGE: I just like that first

paragraph.

REPRESENT~~TIVE THOHPSON: You like nAIl government,

of right, originates . "

REPRESENTATIVE Sl'NAGE: l\.bsolutely. " . is founded

!i

"
"-

upon

their

will

only,

and is instituted solely for the good of

'Q"

:..

12

c":'
.u.....

the

whole.

Public officers are the trustees and 3ervants of

r~~ ~ the people I and at all times, amenable to them."

on

1 4 ,,.-

REPRESENTATIVE THOHPSON: Doesn't that sentence

~

1:

IS '0 express \'1hat you are --

<.:l

0:

::>

liJ :~

REPRESENTATIVE SAVAGE: Exactly right.

-::>

z

<

17 ~

REPRESENTATIVE THOMPSON: -- you're saying that- you

18 feel?

19

REPRESENTATIVE SAVAGE: And we could strike Paragraph'

20 II.

CHAIRMAN BELL: }'1hen you think of it, they are

duplicative. Mr. Griffin, do you have --

23

MR. GRIFFIN: I think Mr. Guerrero has pointed to the

fact that Iowa's statement covers the objection that you have.

REPRESENTATIVE SAVAGE: Dh-huh. I have no probler.l
- - - - - - - - - --- - -~------- - - -

with that.

PAGE 31
~ ----~---------------I

MR. GRIFFIN: It says, "All political power is

,~ inherent in the people. 1I It doesn't say the regulation is

handled by the people, which would answer your problem.

REPRESENTATIVE SAVAGE: That's correct.

and 1I sole and exclusive regulation of the

police . ", which is not the case.

MR. GRIFFIN: You want to move the substitution of q Ii: that language for this?

iO

MR. GUERRERO: Well I'm not sure, I would like some

~" 7:

iI

;::
,>'

advice

on whether

to

substitute or

add,

because

it --

the

()

14~

u;
u

only

problem

I

have

is

the

political

problem and

I

thought

..~~

z

w
@},=,. -- ::;:

when

I

first

I'm not an attorney and I don't know the

:4 ,-.~ history of all this stuff, but I presume that the State's

~

"

1.

J5 ~ Right -- in fact, the history of the Georgia Constitution showsl

'"::J .~ () ~c:l that there has been some back and forth on the question of

I I

z
<.
1 7 ~ State's Rights versus Federal Constitution, it reflects the

I
I

U~ ii history of Georgia, and whether or not -- on the other hand, I

J9 many states have a provision like this, including Massachusetts,I''

20 Would there be any sort of backlash in the sense of doing

away with a provision that was headed State's Rights and

y,
substituting something else?

_, .,'

REPRESENTATIVE SAVAGE: The fascinating thing, the

24 language in this Paragraph II is not even really talking

about State's Rights.

. _ - - - - __ ~~-~~

_-- ... ..

-------~---------

PAGE 32

r

CHAIRMAN BELL: The title itself is misleading.

Ii

2 II II

MR. GUERRERO: Misleading, that's right.

3 III,

MR. GRIFFIN: It's really an extension of Paragraph

,I

4 I;!i I sort of.

II

5 ,'II
II

MR. GUERRERO: Well I would move then that we add

6 II the Iowa language, which is "Political Power, Object of
II

7 II Government."

i" i

8

REPRESENTATIVE THOMPSON: Why don't we just add this

9 to Paragraph I then?

10

REPRESENTATIVE SAVAGE: No. You have, Albert, an

l?

Z

'It-
oo<

excellent

suggestion,

that

because

of

the

historical

continuity

<>.

'"

12 :... of Paragraph I, we should not -- it's beautiful expressed

t-

Z

tE.!!!!!.. ~~ language, clear and precise -- we should not tamper with it.

14 >-
!;;

MR. GUERRERO: Paragraph II would then read, under

x

15 .~., my proposal:

.'":J

16 'z" w 0z

"Political Pmrer, Object of Government. All

17

0<
'"

political power is inherent in the peopJ.e.

18

Government is instituted for the protection,

19

security and benefit of the people, and they

20

have the right at all tL~es to alter or reform

21

the same whenever the public good may require

22

it. "

23

REPRESENTATIVE THOMPSON: That's good.

24
REPRESENTATIVE SAVAGE: I like that.

25
['

MR. HILL: And the only problem with that I think is
~~---------~---- --~~~~~-------~--~

PAGE 33

that it tends to repeat what we have said in Paragraph I. I

think that, you know, it's a better statement as well, in Iowa,i

3 but it just sounds like we're being redundant.

4

HR. GUERRERO: Uh-huh.

"

REPRESENTATIVE SAVAGE: And we are.

6

MR. HILL: And maybe that's all right but it's like

7 the provisions are saying the same thing in two different states !
8 and now we're making them two separate paragraphs.

<)

I'I
I'

REPRESENTATIVE SAVAGE: The fascinating thing, once

10 we corne out and try to strike the phrase "State's Rights",

11

fa;
o

we'll

run

into

problems

in

the

legislative

process,

even

c..

~

~r~12 : ~>

though

that

language

has

nothing

to

do

with

state's

rights,

Paragraph II, you see, simply trying to strike "State's Rights"

14 >-

f- will run into problems in the legislature.



1:

15 ~

,-'

MR. HILL: Maybe if we said "People's Rights".

'"::>

Ih ~

,~
Cz.l

REPRESENTATIVE SAVAGE: No. I'm simply suggesting



17 ~

to you, in the legislature, if we strike the phrase "State's

Iii
:: Rights", you're going to run into opposition even though the

1

19

II II

II language following that says nothing about state's rights.

20 I" i
I:

CHAIRMAN BELL: It doesn't really say "State's Rights I

21

,I
I

it

says

"State

Rights",

there might

be

a

distinction

there.

With such a small group, I would suggest that we

dispense with the formality of asking recognition of the Chair
24
every time you want to say something, if that's all right

PACE 34

[I

I

HR. LITCHFIELD: I was just going to comment that I

I

2 I don't know when it became a part of the Constitution, but saying

3 I it has nothing to do with state's rights, it does say the
I
4 i people of this state and it may have come in at a time when

5 there was some great discussion about who could control the

6 internal governments of this state and that may still be a

7 factor to oonsider.

8

REPRESENTATIVE SAVAGE: And if that is referring to

9 state's rights.

10

MR. LITCHFIELD: I don't know whether you would

11 ~ want to -- it came into the Constitution and the few cases ."o.-.
12 ~ that were cited dealt with whether the Federal government could:

I-

t~ u

control

to

what

extent

the

internal

workings

of

the

State

of

'"

14

,.
t;

Georgia.



J:

15 .:>
<:l

REPRESENTATIVE SAVAGE: I think this was brought in

c:<

::>

16

.'z"..
0z

in

the

days

when

they were

saying really,

in effect,

that you

17

cL
'"

can't

come

down

here

and

federalize

the

National

Guard

on

us.

18

MR. LITCHFIELD: And that's still an issue.

19

REPRESENTATIVE SAVAGE: And it's still an issue.

20

MR. CARLYLE: Well I see it at least in 1877.

21 Ii

MR. GUERRERO: Yeah it reflected Reconstruction

22 legislation am back and forth

23 1

MR. LITCHFIELD: It repeats, to some extent, what

'i

24 i
was said in Paragraph I but it focuses down a little bit too.
i~

25 II
lL

REPR_ESENTATIVE SAVAGE: Then if we're going to run

-P-A-G--E---3--5-----i
into problems, we could simply just clean up the language,

like I had done, liThe people of this State have the inherent

right of regulating their internal governments (and add the

IS' to governments) and the police thereof, and of changing

-" Ij their Constitution whenever it may be necessary for their

safety and happiness." And "changing" includes, in the broad 7 context, abolishing, altering.

MR. GRIFFIN: The phrase under Iowa, "Object of

q
Government", would not be inconsistent with the title in

10 Paragraph I which says "Origin and Foundation of Government"

l'J

Z

I I ;:

5 and then the second paragraph saying "Object of Government",
:~.

I

@f~~,~ 12 ~ there would be some sense to it.

I,
i
I

I

I
MR. LITCHFIELD: I think the words "sole and exclusive~'

14 >-

>-
v-

were

meant

to

say

the

people

of

Georgia

as

opposed

to

the

<:

I

1') ,~

CJ people in Washington have the sole and exclusive right.

0:

:J

I () ~

w ::'

REPRESENTATIVE SAVAGE: I think you're correot.

I

<,

17 ~

MR. LITCHFIELD: As opposed to arguing who inside

18
Georgia. I mean, I don't think that's the question.

19 '
REPRESENTATIVE SAVAGE: What they're saying is as

20
long as you leave us alone in Georgia, whether it's legislative
21
I judicial, oounty government, whatever, that's our business and
,,
don't be messing with us in Washington.

MR. LITCHFIELD: I'm guessing, but I think --

REPRESENTATIVE SAVAGE: Maybe you're right, that's

25
what they were saying.

I
----~--~ ----------------- -- - - - - - - - - -

r

MR. HILL:

PAGE 36 - .._------------,
Well it sounds like a state's right

2 I, provision after all then if you interpret it that way.

3 II

REPRESENTATIVE SAVAG~:

il

4 II that's no longer true.

That's what it is, but

s II

MR. HILL' It may no longer be true, but boy --

6

!4R. GUERRERO: The other possibility might be to

7 say -- to use half of the present Paragraph II and half of

8 IIII Iowa, that is to say:

i

9 Ii

"The people of the State have the right "

10 down through "regulating and the police thereof." And

Czl
11 ~ then saying, from the Iowa language, "Government is instituted o.Q...
12 ~ for the protection, security and benefit of the people and
...

!!'.!!!!!. ; v

they

have

the

right

at

all

times

to

alter

and

refor.m

the

same

on

i
14 .>..- whenever the public good may require it." t1hich would get at ~ r

15

.:>
(!)

the

point

I

think

that

Representative

Savage

is

tryinq

to make.!

IX ::>

i

a 16

IXl
Z

REPRESENTATIVE SAVAGE: That's better language.

z

<

17

IX IXl

Would

you

add

the

word

"s"

to

government?

18

MR. GRIFFIN: I wouldn't, I think it changes the

19 sense of it, I don't think that's what it means. It doesn't

20 mean they have the right to regulate the Buckhead government

21 or the Macon government but to regulate their internal

22 governments of themselves.

23 I 'i

REPRESENTATIVE SAVAGE: Well that includes the

24
Buckhead government and the Macon government.

REPRESENTATIVE THOMPSON: They're included anyway

PliGE
37

because the General Assembly controls those, sets up and

delegates to them what authority they have, so really the

" control of it is right here in this government.
II
':

1

REPRESENTATIVE SAVAGE: The control lies in the

legislature is what Albert is saying and that's true.

1.\

()

MR. HILL: I think Mr. Griffin means "government"

7 encompasses all kinds of government, it's like a plural, it's

like a plural word the way it's used here, "regulating their

<)

I:
,i

internal

government",

you

know,

whatever or

wherever

it might

10 be found.

"z

II '

REPRESENTATIVE THOMPSON:

I
Or however it's aCCOmPliSher.

@r"~12 .:,

CHAI~~N BELL: It means that to me, too, being

governed, the manner in which we are governed we have the

. 14 >- right to regulate

1":

15 ~
"'".:J

Well, is there a motion on the floor?

i(,

m L

,~

Q

REPRESENTATIVE SAVAGE: I have no objection or

Z,

<\

17

<Y (11

strong

feeling

about

that

"s",

I

t'las

just trying to make

it

is
really representative of what it should be.

II)
MR. GUERRERO: May I withdraw my earlier motion then

20 ~ I
, and move that we leave the present first sentence of the

:1

II
i

present beginning language in Paragraph II down through

n and

'LY_) i'l the police thereof " and insert a period there and then i
23
add the latter part of the Iowa statement, which is "Government

24
is instituted for the protection, security and benefit of the
2'; ,
[1 people and they have the right at all times to ~~.t.~E_c>~.~,:fo_~

rr----------"-"-~----"-~----"
- the same whenever the public good may require it."

I' AC I'~ 38
"-1
That would:

2 be striking the --

REPRESENTATIVE SAVAGE: Why don't you add the words

"government and Constitutions of state governments" if you

5

i;
i

want to get

the word

"Constitution"

in there which might

simply)

i

I

I

6

I
!

I

be a problem

!
I'm just thinking of that as a problem in the

I

7 legislature, that you give the people the right -- read your

8 language again.

9

MR. GUERRERO: All right, it would say:

10

Cl

[1

~ e"

c<

0

0-

w

12

c<
u

u.
;:: z
~w

~

"Government is instituted for the protection, security and benefit of the people, and they have the right at all times to alter or reform the same whenever the public good may require it."

14 .>..-
'<"l

I don't really have an objection to that but I'm

1:

15

.:>
I':J

not

sure

it's

needed.

As I say, I think it's a general

'::">

16

o:l
Z

w 0

statement of principle

and

it

would

give

that

basic

authority

Z

<l

17 """' to the people.

18
REPRESENTATIVE SAVAGE: I like that.

19
MR. GRIFFIN: What title would you put on that

20
motion?

21
MR. GUERRERO: I think I would leave it the same

22
probably, but I -- I think Object of Government is a better way

23
to put it, frankly.

24
REPRESENTATIVE THOHPSOH: Hay I suggest this, I think-

25
we ought to write a Constitution like we think it ought to be --

PAGE 39

MR. GUERRERO: Oh, I agree.

2

REPRESENTA':'IVE THOMPSON: And not like we think

i maybe the General Assembly -- I mean I want it to be palatable

,I to those in the General Assembly

!

REPRESENTATIVE SAVAGE: That's the only thing I'm

I
I

b I trying to do.

II

REPRESENTATIVE THOMPSON: But we're going to have to I

do what we think is the right thing and if the General ASSemblyl

9

Ii disagrees with it --

I

lU
MR. GRIFFIN: I'll accept that as an amendment and

11 ~.

c<
o

move

that

we

change

it

to

the

phrase

"Object

of

Government".

Q.
12 ~

I

@/""". ~

CHAIRMAN BELL: Delete the IlState Rights"? MR. GRIFFIN: Yes, I'm suggesting that as an

j 4 >-

amendment to the motion that Mr. Guerrero made.
<-

I

I <; ,~,

':J

MR. GUERRERO: I would accept that amendment.

:'"J

1() ~

o
z

CHAIR11AN BELL: Mr. Guerrero, did you leave in the

17 ~

"sole and exclusive right "?

19 I
be:

MR. GUERRERO: The way I have it reading now would

"~I

))

, ,

_., \

ii

24

2:;
;...1.. ____

"Paragraph II. Object of Government. The people of this State have the inherent, sole and exclusive right of regulating their internal government, and the police thereof. Government is instituted for the protection, security and benefit of the people, and they have the right
.~~~~~~-

----'------~-~--,~--------"---,

PAGE 4.0, --- --1

\I

at all times to alter or reform the same whenever
II

2 I,

the public good may require it."

3

REPRESENTATIVE SAVAGE: When you say something is

4

I,I
!I

exclusive

and you

have

the

sole

right,

aren't

you saying the

5

III!
!

same

thing?

I

6

MR. GUERRERO: Yeah, that's true.

7

REPRESENTATIVE SAVAGE: We ought to strike at least

8 the word "sole" and try to shorten some things.

9

MR. GUERRERO: Well, you could simply strike "sole

10 and exclusive", you could say " . have the inherent right of

C)

z

11

;:
"0.'".".

regulating

their

internal

government .. "

12 .'u"..

REPRESENTATIVE SAVAGE: I would prefer that.

f:
~~
~

MR. GUERRERO: Yeah, let's do that then.

14 .>..-
'<"l

REPRESENTATIVE THOH,PSON: I think that you need

:t

15

.:>
C)

"sole

or

exclusive"

in

there

because

inherent

right

--

it

IX

=>

16

'z."..
0

possibly

means

the

same

thing

but

when

you

say

tlexclusive",

Z

<l

17 "'"" you're also saying it is inherently exclusive. You might have

18
an inherent right that somebody else might share with you or

19
some other source might share with you.

20
CHAIRMAN BELL: That may be, but does picking up

21
the second sentence in Iowa address that, " and they have

~')
the right at all times "

"'~--,'

REPRESENTATIVE SAVAGE: Read the rest of that

24
statenent please.

2S
MR. GUERRERO: "Government is instituted for the

PAGE 41

I I

I

protection, security and benefit of the people, and they have

the right at all times to alter or reform the same whenever

.\ the pUblic good may require it."

I

4. i

MR. CAltLYLE: But that again doesn't address the

S problem of the exclusivity of it.

MR. GUERRERO: Well the problem there is the
II:
expression there of the relationship between the state and
~ Ii federal.goverrunent. The way a lot of these states do, is to
I
il
9 I' say the people of California or wherever have the sole and II
10 exclusive right except when it's not in conflict with the
..., z
Federal Constitution, is the way a lot of states deal with

that.

MR. CARLYLE: There are other Constitutional

I'l

>r-

provisions

that

say

this

Constitution only

--

~

"

T

1S .:'
,"".

MR. LITCHFIELD: I just want to reaffirm that I

J

]()

'z"
u,

think

this

at

least

somehow

addresses

that

relationship

and

Cl

Z

<:(

U

IX
'"

if

you

alter

the

language

you

may

run

into

some

problems.

j e.';

CHAIID1AN BELL: And that brings us back to what Mr.

I" '
19 I, Thompson said about doing it the way we think we should

.J) instead of we have to decide whether we're going to do it

)'
.1 the way we think it should be done or whether we're going to .I '
))
do it the way we think the legislature will like it.

REPRESENTATIVE THOMPSON: The legislature is sort

of kooky sometimes. You can't really predict what we're going to do, not 100%.

!'.-\(;I', 42

MR. CARLYLE: Whatever you want to say about states

rights, in Article XI of the Constitution it says "The laws

of general operation in this State are, first: As the Supreme

law: The Constitution of the United States, the laws of the

United States in pursuance thereof and all treaties made 6 under " "Second in Authority This Constitution."

MR. GUERRERO: Why is it a problem? Why don't we

8 just strike "sole and exclusive". It sort of begs the

9

:'Ii
Ii

question,

I

mean,

all

it

says

is

the

people of

the

state

have

10 the inherent right of regulating their internal government and

Czl

II

;:

0: 0

that's

quite

clear that

it says

that

and

it makes

that point.

.a..,.

12

0:
.u.. There's nothing wrong with that point and I

don't think it

;:

~~~ ~
~ attacks the notion of state rights, whatever that means.

14 >t;;

MR. GRIFFIN: What is the opinion about the next

<l
r

15 ~.., phrase, and It the police thereof ", do you think that's

0:

::>

16 ~

::: necessary? I don't understand the necessity of that.

z

-<

17 ~
REPRESENTATIVE SAVAGE: I didn't either, John. If

18 I! you're talking about government, then governments are the only

II

19

Ii II ones

who

can

create

police

and

if

the

people

have

the

inherent

20 Ii
I right of government, then they certainly in that same content

I 21
! have the right to control the police. You can't have police

1
2~
! until you have government, police are only hired by governments.

23
MR. HENRY: I believe that's speaking of the police

, power in general, power to license, power to make ordinances,

PAGE

43

!i -

~-_.-

--.~~~-- ------------~-------_._...---,

II

!

so I think that's probably a necessary -- you may want to

I
i

I

clarify it by saying " .. and the police power " or sometl1nq I

to that effect, hut I don't think you could delete that

I
!

4 completely.

CI~Iro'~N BELL: If you're regulating internal

b government though, aren't you also regulating the police power?

"'
I

REPRESENTATIVE SAVAGE: Yes.

MR. HILL: I worry a little about this, if we would

l) omit this from the standpoint of the right to bear arms and

!O just the whole notion that we have. But again, maybe this is

11

.--
0:

more

a

political

factor

than,

you know,

what should he here,

,o.

~,

(@}~=:l~ : but I think it's another one of those red flags where, you

~

know, if you take this out, " and the police thereof ",
i

H

)-
!;;

like

in

law school

they

used to

say that

behind every

judge



r

15

.~
i s <>'
"::>

a

bayonet

and you

know

that's

kind

of one of

those

funda-

10 ~f11 mental, you know -- I just raise it, I mean, it may raise a

red flag.

IX

CHAIRMAN BELL: Well, there is a motion on the floor.'

The motion, as I understand it, is --

2U ,

I
MR. GUERRERO: It would be to have Paragraph II read: I

"

21

"Object of Government. (And it would read) The

22

people of this state have the inherent right of

23

regulating their internal government, and the

:-:+

police -thereof. Government is instituted for the

25
I
'L

protection, security and benefit of the people,

-I
I
and they have the right at all times to alter or

reform the sarne whenever the public good may require

it."

CfLAIRMAN BELL: Would it help at all, would it solve I

the dilemma about state right thing, if we said "Object of

Government: State Rights tl ? And keep them both.

REPRESENTATIVE SAVAGE: Well Article XI does point out

8 II the clear delineation of authority and it says the Constitution!
II
9 I of the United States is superior to this Cons,titution and I

[0 don't know why you need that "State Rights" in there because

11 .~... we say i f we're in conflict with the United States Constitution:

."....
12 ~~ that it's superior to it and the courts interpret the united

....

lI,.n"-'D

~ ~

States

Constitution.

That's

fact,

reality and

as

it

should

be,

!
I

14 ~I so I don't --

r<

15 ~
':'":">'

CHAIRMAN BELL: I agree with you, I don't think we

16 r~.:. really need it, but my comment, my suggestion was addressed to

z

<

17 "~" what I thought was your feeling, that we did need it.

18

Well, there is a motion on the floor, is there a

19 second?

20

MR. GRIFFIN: I second it.

21

MR. HILL: And this would include " and the police

22 I thereof . "?

MR. GUERRERO: Yeah, I don't think there's a problem
~1
-"' !with that.

MR. HENRY: Does this make no reference to the

altering or abolishing the Constitution?

MR. GUFRP~RO; Well only in the Iowa language, do
II
-' !'I:I you think it needs to have that? It says i~ the Iowa language
" have the right at all times to alter or reform the same,

whenever the puhlic good may require it."

MR. CARLYLE: But it omits the specific reference

to the power to --

MR. HENRY: Again, whatever good Harrison's annota-

tions are, they do mention here that this does give the people
10
the -- well, it says that they're not limited to the 'z"'
convention method in abolishing or changing their Constitution,

so someone has relied on that sentence in litigation.

REPRESENTATION SAVAGE: They are not limited to the

Constitutional method?

C)
'=">

HR. HENRY: "In view of the provision of this Section

~ () ~

~,
c z

it

cannot

be

said

by

implication

that

the

sovereign

people

are

<:

17 c::;

limited to the convention method in abolishing or changing

their Constitution."
19
REPRESENTATIVE SAVAGE: That's correct, they've got
20
several methods.

CHAIill1AN BELL: Well I think -- don't you think that

),

, the language that is included in the motion is broad enough to I

I

-- 23 I

i

not pinpoint methods, I don't see that it addresses itself

I
Ij

24 I
don't think it limits the people.

PACE 46
II the Constitution which t:~~eoPl~-~~~:~ssta:e-:eallY~~~:~-I

2 have except through input of the legislative process in changin~
i
the Constitution in any way, shape or form.

4

REPRESENTATIVE THOHPSON: They vote on it. It goes

5 on the ballot.

,

6

REPRESENTATIVE SAVAGE: Good point, but they can't get

7 it to the ballot unless it is first approved by the legislative

8 process.

9
REPRESENTATIVE THOMPSON: Well, -technically, John,

10
if I have somebody in my district who wanted to change the
zl.? 11 ...
~ Constitution, he would come to me as his representative and
"w-
12 .~..... say look, I want this changedin the Constitution If he could !
!.~3
~ convince me to do it, I'd come on up here and try and make that I

14 >-

I

~ change for him, if the people in my district really seriously

:r

15 .:l

~ wanted it. I don't think I'd do it just on the basis of one

:;)

16 ~

~ person with some wiard idea of what the Constitution should be ,

<t
17 :ii

i
i

but if the people in my district did that, I think I would comej

18
up here and reflect their thoughts. So they can have input at

19
that level if that's what they wanted to do.

20
REPRESENTATIVE SAVAGE: The point is whether we're

21 I
, going to take out that reference to altering or abolishing the
22 .!
i Constitution and it seens we have some court cases based on
23
that phrase. \ihat do you think, Doug?

MR. CARLYLE: Well, Article XII relating to amendments
25

PAGE 47
-------- -------"1
Constitution is for the General Assembly to first act, either I

to call a Convention or propose amendments. That annotation

I seems to indicate this may not be the exclusive method for
i'
proposing a new Constitution, so I think you're -- I'm not

familiar with the case that that cites --

MR. HENRY: I'm not either, I'm just --

"/

MR. CARLYLE: It seems like if you did take this

i)
"

out, then you would be confined to this, although I don't know

<) that there has ever been any attempt made to --

10

REPRESENTATIVE SAVAGE: You see, this is one of the

I:' Z

I

JI

1-
':";,

reasons

that at

first

I

thought,

I

wish we

could eliminate thiSI

<l.

~

~@F12 'u" whole paragraph because what we say is, this language which ~ ~ z c, is vague and nebulous, "The people of this State have the

I

II

>-
1-

inherent,

sole

and

exclusive

right .

of

altering and

abolishin~

-<

T

15 ,~ their Constitution . " and then we come over here in Article

".:J

In

zOJ
'n-

XII

with

all

kind

of

specific

methods

by

which

this

L

<l

17 '"<Xl Constitution grants the right to amend or change or abolish the

Ii;
Ii Constitution. In other words, you deal with that in a whole

J9 Article over here and simply using this language under

.2U

I
!I

Paragraph

II

and

then

coming

over with

another

Article

dealing

2J with how you're going tochange the Constitution --

I

)'

I

MR. GRIFFIN: Wouldn't that take precedence over what+

,' --'

,
I
ever it said in this general terms? I mean by that, in general i

.',f
contract interpretation, the specific takes precedence over

i
the general. If ~h~:t:_~c>~lo~~_~~Con~~-~~~ti~~al~tnerpre!:a~.!':l,~_j-

PACE 48
r!i I don't know whether it does or not -- the specific '.~'01J.ld
'I
2 11 govern anyway.

3

MR. CARLYLE: Well, if the annotation he read means

4 what it says though, this general statement is being, even 5 though it is general and more broad, creates an additional

6 method of amending or proposing a new Constitution. But as I

7 say, I'm not familiar with that annotation.

s

MR. GUERRERO: ~~at if we did it the other way, what I

9 if we did the general statement of political power resting

to with the people at the beginning rather than at the end and

Czl

l1

f-.
oe:

then leave

the present language in there

and have a

section

Q.

"'

12

: ....

that

said:

....

~~~ ;:,

~

"Object of Government." And said something about

14 .>..-. how "All political power is inherent in the people
'<":

Governmenti:

1;

15 ~~ is to benefit the people. The people of this State have the

:">"

16

~ z~

inherent

right of

regulating

their

internal

government,

and

17


~

the

police

thereof,

and

of

abolishing

the

Constitution

I
whenever!

necessary."

REPRESENTATIVE SAVAGE: Well you see, the interesting 20 thing, if you took the broad content of Paragraph II of saying ':1 the people really does mean the legislative process second, then

you could almost abolish Article XII and read it the legislative
..:.3
process has the right to set up the mechanism by which you

amend the Constitution or change it, and that would let the

legislative process do essentially what it is doing today

PAGE 49
r :-~-~-h;~t h~~-~~~ Article XII in the--~:~~~i~U:~~:-.- - -------1

MR. CARLYLE: Well, just because you give the

:1 people the right to alter or abolish the Constitution doesn't

.~ necessarily mean that you remove the legislature from it.

REPRESENTATIVE SAVAGE: Oh , I agree with you. I'm

just saying we give them that right, but we don't have a

7 I Constitution that spells out all the specific ways in which

8 we're going to change the Constitution, that we get that back

established in law, which is exactly where it ought to be.

10

You see the built in problems with this Constitution,

I

Mildred?

12 ~
(t~~ ~ ~r--- etom"o~

CHAIRMAN BELL: I do.

I

REPRESENTATIVE SAVAGE: Almost in every issue.

I

I

I

14 >-
t;

CHAIRMAN BELL: I do, but -- well, let me -- go aheadl

<l:

1S

:r ,~
"<X

and

read

the

annotation

again

for

Mr.

Griffin

and

I'll

make my

i

:::J

I ()

u~.
a

comment.

z.

17 ;7,

MR. HENRY: "In view of the provisions of this Section~

I I
I~ I, it cannot be said by implication that the sovereign people are

19 limited to the convention method in abolishing or changing

20 their Constitution."

7~l'

REPRESEN'l'ATIVE SAVAGF:: Well that's exactly what the

language says, that they aren't limited to that, that it can be; '"--): done by proposals in the legislature, etc., that the legis1atur~

can call a Constitutional Convention, there's no conflict with
,i
that, I'm just simply pointing _o_ u_t to_.. _you tha. t we'll m.ake t.-he__se....!.J

so

broad statements in the Constitution of Georgia and then
jl
2 later on in other sections of the Constitution we'll have all

3 this what should be statutory law dealing ,.,rith exactly

4 defining that broad general definition, it will define it in

II

5

Ii
I"i

the Constitution rather than

in

statutory law where

it ought

II

6

II
II

to be.

7 :I

CHAIRMAN BELL: ~'1e 11 I take it we don't have

8 anything to do with any Article -- what Article is it?

9

REPRESE1I.lTATIVE SAVJl4GE: r",rticle XII. It's a

10 particular section dealing with amendments to the Constitution,

I.?

11

~,...
.'0Q"...

fascinatingly

enough,

got a whole

section on amendments

to the

12

Q'
.\.J.

Constitution.

>-
Z
11lt~_"'1
u
,~

CHAI~~~ BELL: But I guess we have anoth~r comnlittee

14

>t;;

that

will

be

working

on

that.



:I:

15 .:>
I.?

I would like to su~gest that --

'=">

16 .~.. o

REPRESENTATIVE SAVAGE: But you see the problem is

Z

<J.

17 ~ that's not going to be even voted on in the next election. We

18 ! ought to clean up tHS language in Paragraph II, make that give

19 the broad rights to be regulated by the legislature, and take

20 out all of this language in Article XII, just abolish that.

21 But we can't do that under our present system of challJing the

2.'" I
! Constitution.

CHJ\IR.r'1AN BELL: It seems to r.le that when we say
24
"Govern.rnent is instituted for the prot.action, security and

I, benefit of the people __~_~~t::X h(l~~ the,r~<Jht_ ~_1:_Cl~l_ time,s ,!-o__ ,
~---~--_ .. -

'r-------- ---------- - -----.- -----
alter or reform the same."

- -PA--G-E--5-1----l
It seems to me we say it, we say I

that they can change it.

1

.'

REPRESENTATIVE SAVAGB: That's right and then you

.~ don I t have another complete Article in the Constitution

5 regulating specifically all of these mechanisms by which they

h can change the Constitution.

MR. HILL: Now wait though, every Constitution has

8 to have a procedure in it about amending the Constitution, that s

9 ',' just -- you know, that's got to be in there. Now maybe it's

10 too specific, maybe the requirements are too detailed in ours,

11 ~ but that's just the nature of the beast, you have to have a
"

~,

l.~ :~ provision how you're going to change it. I mean --

.~~ss0.)y)~(,"'"'" ~~~

REPRESENTATIVE THOMPSON; We can't do anything about

-~

[..-~ that language.

~

r-<

I) .t1

MR. HILL: And there is nothing we can do about that

C:I

'"::>

Il) ~ at this point.

e
z

REPRESENTATIVE SAVAGE: So we might as well --

IS

REPRESENTATIVE THOMPSON: I think we might as well

It) move on.

20

REPRESENTATIVE SAVAGE: I concur with that.

2!

CHAIRMAN BELL: But the one thing we can do is to

delete that specific provision now in Paragraph II, as your

23 i: motion does.

I

24 Ii

Has that motion been seconded?

MR. GUERRERO:

Yeah.

__ __ ----_.-_.. ~~~-_.

. ._-_..._--- ----------

----_. . ----

__ .... ~._-

-

----

-_.-

--------_.. _--,

I
_._~

I'AGE 52

I'TI

-_._-----~~

- _._------

II II

MR. HILL: And I would point out that all of these

::: II motions, you know, let's say you approve it. We put this
3 I,Ii into a form so you've got it as another draft, you review it,

II

4

I'I,
'I

you

look

it over

and

there'll

be

a

final

decision

later,

so

I

5

I

I
i

nothing

is

irreversible

either.

It's just kind of to help us

I

6

,II
I;

get

rolling.

I:

7

i:
I

I'

REPRESENTATIVE SAVAGE: The other thing that we can

I"I

8 II answer on the floor of the legislature is that we have a
9 IIIi
II specific Article on how you amend or change the Constitution

10 in the Constitution itself. So there's no reason for Paragraph

'z"
11 ;::
'0a". II to deal with that altering and abolishing the Constitution

12 0'":

,)
~

because

we've

got

a

whole

Article

on

that.

;:.

Z !~ w

~

MR. GUERRERO: ~lother thing that this does is it

14

i:
<

allows

us

to

strike

Paragraph

DI,

because

we

have

said

in

1:

15 .:>

'"co:: Paragraph II about protection of the people, if we want to,

.:>

16 "z'

awz when we get to that.


17

0:
"'

CHAIRMAN BELL: Are you ready for the question?

18
All in favor, aye.

19
(Ayes. )

20
2:
I!I
)1
23
24
III.
25

CHAIRMAN BELL: Oppo sed? (No response.)
CHAIRMAN BELL: The motion carries. MR. GUERRERO: I would move that we strike Paragraph
MR. CARLYLE: You want the impartiality --

~r-----
II
) I point. I"

MR. GUERRERO:

.- PAGE 53 -----------------~-I
To be left in there, that's a good ! I I !

REPRESENTATIVE SAVAGE: That's a very important

concept.

MR. HILL: Not only that, it's the only provision

we have in the Constitution where there is an equal protection

,: provision at the moment.

K

MR. GUERRERO: I want to get to that later on.

q I;

ii

REPRESENTATIVE SAVAGE: Well we can't strike

10 Paragraph III.

II
'o"

MR. GUERRERO: I'll withdraw my motion then.

,'-

(~)=.,. ~ ~SY1ld

, -I)

,:

~.

REPRESENTATIVE SAVAGE:

to leave Paragraph III as it is.

I think we essentially have

1+ ,~ ~. ,.n r.

CHAIRMAN BELL: There is another provision, isn't

1S

.0 '.:J

there,

where

it grants

equal

protection?

"-

:::J

(6 .~.,
o

MR. HILL: We talked about this yesterday

7.

I 7 ~""

REPRESENTATIVE THOMPSON: Due process.

lS

CHAIRMAN BELL: Paragraph IX, seems to me.

19

MR. HILL: Impartiality, oh.

2U

CHAIRMAN BELL: Well, no, that doesn't

21

REPRESENTATIVE SAVAGE: Mildred, under Paragraph IX

you could protect then1 impartially.

CHAIRMAN BELL: Yeah, I see. I thought I had read

something about that.

REPRESENTATIVE SAVAGE: Or you could protect them

.

... __ ._... _ ..__ .. _ .

...

._.~

.

_.

,.

"_'."_ .. .

. --l

PA<;E

partially as we do with women in this State.

2

MR. HILL: Well the other committee is considering

3 a change to the due process provision to they're just

4 considering this, they haven't agreed to it yet, but to add

5 an equal protection statement. Now if they would do that, then'

6 maybe Paragraph III would be superfluous, although --

7

REPRESENTATIVE SAVAGE: At the present time I think

8 ' you have to leave it.

9

CHAIRMAN BELL: Well, would we like to recommend that:

to any equal protection concept be included in Section I instead

'z"

tl

I-
o0:

of

Section

II?

O.

12 ~"'

MR. GUERRERO:

~

I also suggest when we get to

I-
1~..!.'-E- ~~ Paragraph IX that we add in some more explicit equal protection

14 '>:;- language l.n our porti on.



I

15 ,~
'"..:

CHAIRMAN BELL: I was thinking about Paragraph III

::>

16

~ "C"l

at

this

point.

z



17 ~

MR. GUERRERO: Yeah.

18 I:

MR. GRIFFIN: Paragraph IX almost covp.rs it the way

it is.

20

MR. GUERRERO: The kind of language I was thinking

21 about is here in the 1970 draft, let's see --

MR. HILL: Paragraph III?

MR. GUERRERO: Paragraph III, right, on page 2 of the'

1970 draft. That's the kind of language it seems to me ought

to be in there.

PAGE 55

HR. HILL: 'l'hat' s what they are considering changing

back in Section I, Paragraph I, they're considering amending

that to state that, but as I say they haven't agreed on that.

If this committee feels that is something that you would like

to recommend, you could do that, recommend as a formal

recommendation to the other committee that that be done.

7

CHAIRMAN BELL: Hhere are we now? You made a

motion.

<)

MR. GUERRERO: I withdrew my motion, I was convinced

that we ought to leave it in.

CHAIillVlli BELL: There is no motion.

l.~ u
(~T~(c?3~N~!J\Jd,,,,, ~

MR. GUERRERO: No. REPRESENTATIVE THOMPSON: One thing you could do if

14. ,,,

you

like

this

language

that

is

over

in

Paragraph

3

of

the

15 ,-" other draft, you can adopt that in lieu of this Paragraph

"-,-

ttl

'L"
a~'

Protection

the

Duty of

Government,

and

then

when we

start

z

I ,, "'"' blending the whole document together, because we're going to

is I have to do some inter-changing in the Article. We're not

I') locked in as far as order is concerned and we should not be.

20 I If you like that other language, I suggest you go ahead and
,.
adopt it.

22

CtmIRMAN BELL: Which language are you referring to?

REPRESENTATIVE THOMPSON: I'm talking about in the
.'f
1970, the Due Process and Equal Protection clause.

MR. HILL: Paragraph 3.

1'.\(;1'; 56
r' ---

i:

REPRESENTATIVE SAVAGE: I like that Due Process and

Equal Protection phrase myself.

3 :\

REPRESENTATIVE THOMPSON: All we want to do is be

il
4 1,1 sure that something is in the Constitution which gives that

II

5 1,1 protection. Maybe this might not be the place for it, but

G , we're really just expressing a general thought rather than

7 anything specific. If you wanted to, you could adopt that

8 language.

qi

REPRESENTATIVE SAVAGE: I would like to move that we

substitute Paragraph 3 in the --

i..:'
7.

1~

10--

0:
o
a..

12 '~"

u.

REPRESENTATIVE THOHPSON: 1970. REPRESENTATIVE SAVAGE: -- 1970 proposal for

I-
Z
~ Paragraph III in the present Constitution and it reads

14 ~ and put it "Due Process and Equal Protection". We would

<. :I:
1:' .,~l substitute "Protection the Duty of Goverrunent" for "Due Process

'".~

1(1 mo and Equal Protection".

z

<

17 ~

"No person shall be deprived of life, liberty

or property without due process of law, nor shall

19

be denied the equal protection of the laws, nor be

20

denied the enjoyment of his civil rights or be

21

discriminated against in the exercise thereof

because of race, sex, national origin, religion
23
or ancestry."

Very well written.

CHAIRMAN BELL: You don't think that's more appropriate

PAGE
_-=5:...L7 _

in Section I?

,

~

REPRESENTATIVB SAVAGE: It I;light be and if we can

; get it in Section I, that's all right.

-,

REPRESENTATIVE THOMPSON: Well if it got in Section

:' I'II I, could you delete Paragraph III here?

Ii

()
I

REPRESENTATIVE SAVAGE: I think we could.

7

MR. CARLYLE: I'm not sure. The reason is it seems

S like the due process thing guarantees certain rights to

(j
, people. Paragraph III -- and really the only thing it seems

10 this whole Section II does that Section I doesn't do is it "z
refers to the rights -- I mean obligations of government and

a number of things say "as may be provided by la\o;r" and so on.

This creates an affirmative -- the paramount duty of the

government, to protect people and property although that may be,

~

i

T.

1~ .~

~ just a logical distinction. But this provides the manner in

:.<

.:>

1() ~

~ which people will be protected but this creates a duty on the

z.

<::

1- '7I ',n" government.

MR. GUERRERO: Could you argue -- could you add that
19
on? I mean leave the first sentence in, " be impartial and
20
complete." and then go through the rest of the language. That
21
. would specify the impartiality and completeness of the
)
obligation of government.
,,,-,''
MR. CARLYLE: Oh, I think you could do that.

REPPSENTATlVE SAVAGE: That's an excellent suggestio~.

MR. GUERRERO:

"I,

I

!I
I'I'

and then add in the rest of the 1970 Paragraph 3.

PACE 58

2

CHAIRMAN BELL: You would take it out of Section I

.\ and put it there?

4

MR. GUERRERO: Well, we would leave the present

5 Paragraph III about the "Protection to person and property

is the paramount duty of government, " and then add in

7 "No person shall be deprived of life, liberty or property

8 without due process . "

9 II

REPRESENTATIVE SAVAGE: How would you title that

10 paragraph?

Czl

11 ~ oY-

MR. GUERRERO: I'd leave it the same I think.

a.

12

~"'
...

REPRESENTATIVE SAVAGE: You need a paragraph some-

~
-!!~ ~~ where in this document entitled "Due Process and Equal

14 :>;-; Protection".

<l

:t:

15 ,,~
~?

MR. HILL: That'll be in Paragraph -- that'll be in

"".:>

16

~ 'oz"

Section

I.



17 ~

CHAIRMAN BELL: Section I. That is focusing on the

18
I: rights of the individual rather than on the organization and

structure of government.

~m. CARLYLE: Couldn't the committee just recommend

that Paragraph 3 have " ... and shall be impartial and complete." ,,
deleted and recommend that this due process replace the due
,,
--' process clause in Section I?

MR. HILL: Yes.

MR. GUERRERO: I think that makes more sense. Okay.

I)AC I" _J J

59

- - - - - - - - - - - - - - - - - ----~-- --~~--

i I would not delete the impartial and complete here though.

REPRESENTATIVE SAVAGE: I wouldn't either.

MR. GUERRERO: Until it's in stone.

REPlmSENTATIVE SAVAGE: It's all right being

". '1 repeated.

REPRESENTATIVE THOMPSON: Let me say this about

7 the group that met yesterday. When they got to the due

8 process clause they liked some of that language and some of

lt' it they didn't want to put in there and I guess I'm being a

!

10 little sneaky, I like the language. I'd like to get it in there

""Z.

I

II

;..:I:

just

like

it

is.

0

0-
u,

@ r12 .u'.".

CHAIRMAN BELL: ~'Vell,

;::

z

"'
~

respect

to

Paragraph

III?

is there a motion with

14 ;.-
~

REPRESENTATIVE SAVAGE: I move that we continue

<t

J:

15 .:> Paragraph III as it is until maybe a future time and move on
'-'
I~.

'-'

](,

ttl
Z
~
c

to

Paragraph

IV.

Z

-<

'" 17 c!l

MR. HILL: vJould you like that recommendation to the i

18, other committee though, you know, with respect to this issue

Il) for their consideration?

2U

REPRESENTATIVE SAVAGE: Correct.

2i

MR. GUERRERO: Well I'm guided by what Representative

))
Thompson said, political judgement, I would prefer to go ahead
,' ,
..:_.. Ii and put it in, tack it onto Paragraph III and see what the

other committee does.

Ll _ _

MR. GRIFFIN: It seems to me it would be easier to
.__ ------_.. _----~--------------_._--- _. _. _ - - - - - - - - _.._--_.- -_.__.. __..-!

11------------ --. -. --.._.-'"

J

II :1

get

it before

the

total

committee that way than

to

say we'll

'I

2 ii make the recommendation. 1

MR. GUERRERO: That's correct.

MR. GRIFFIN: This way they've got to act on it to

5 take it out.

REPRESENTATIVE SAVAGE: I have no qualms in adding

ii that entire language there starting with the period.
,

8

MR. GUERRERO: I second that motion.

9

REPRESENTATIVE SAVAGE: And if \'1e leave in the

10 phrase "shall be impartial and complete", really what we are

lz?

11

I-
'o"

doing

is

defining

what

impartial

and

complete

is.

.,.)...

12 ~

MR. CARLYLE: How about having an alternative recomm-

~

I-
!~ ~~ endation that it either be put at the end of Paragraph III or

-- 14 :>-- that it be put

~

-:x<:

15 .:>
e?

REPRESENTATIVE THOr-IPSON: In Section I.

'";;)

16 z!<l w CJ

-- MR. CARLYLE:

in Section I.

1..

17 '0"0

CHAIRM.'l\N BELL: Well a motion has been made and

is seconded. I'm opposed to it because I think we're doing what
il
It) , has been done so often in the past. I think we're getting

20 the Constitution all mixed up again. I think we are adding

2! , personal rights in to the section on origin and structure of

"1 government.

,,

--'

REPRESENTATIVE THOMPSON: May I say something? We're

24 ,
going to have to go through this document and straighten these

~~ " things in a logical sequence. vlhat we are doing now is not LL._ . _ _._ _ ..~ _ _. ...._ .._..-

61
r~ ------------ -- -
really placing them in logical sequence and the committe as

a whole, all of us, are going to get together and put them

where they ought to go.

CHAIRMAN BELL: Well is there any point in our

I; taking it and putting in here?

!
II

UU. GUERRERO: Well, as I said, I don't think the

-, I connection is illogical because what the statement of

S principle is saying is that the fundamental duty of government
II,'
<) i is to protect individuals, persons and property and that in

10 that protection each citizen is entitled to equal protection.

1~

....
:.:

So

it's

not

really

--

I

don't

think

it's

that

tacked

--

itm

o

CL

(M\,,, ~:II "~' tacked on on the one hand but on the other hand it's not a

~--I)

connection that doesn't make sense in my mind.

---~

I~;,-

,~

CHAIRMAN BELL: On the one hand we're talking about



l:

15 .:> the paramount duty of government and then we switch over to

<:J

'"::)

16 ~ personal rights, every person is entitled to due proce-ss and

D

2

<:

1-i' u'":. equal protection, and Section I is entitled Rights of Persons

i (; i

MR. CARLYLE: Why not have an alternative recommenda-

"

III

,
I:

tion

that

Paragraph

III

stay as it

is with

the

addition of

20 i this due process clause either at the end of Paragraph III or

-- 21 at the end -- in Section I

REPRESENTATIVE SAVAGE: That accomplishes what we

all want to see done and we hope we can get it in Section I.

-,

24 :i

MR. HILL: You see, what you have to remember is

25 !i the whole committee has to make the decision and that all of

L

.

. _.

..

.

.

_

fr------------ -- - -- ~----------~-----

PACE

~~62

_

I

II these are just recommendations to the full committee. It's

,I

2 !i:I, all somewhat tentative just now. You know, this alternative

3 recommendation would probably be a very good idea. I t l'.nd'l.cat aIs

4 your will about this and it gives it back to the other

i, committee to see what they come up with.

I

!

6

REPRESENTATIVE SAVAGE: That says exactly what we

7 have said, Mildred, we think it ought to be in Section I.

8!

CHAI~~ BELL: Do you want to amend your motion to

9 include that?

lO

REPRESENTATIVE SAVAGE: No, Doug has expressed it

lZ'

t1

,-
<Y-
.o0..-

and

I

think

it's

an

excellent

suggestion,

that we

put

it

at

the'

12

<YU

end

of

Paragraph

III

with

the

understanding

we'd

like

to

see

,~

~

!~3
u

it

in

Section

I.

v>

14 ;,-_ :;;

CHAIRMAN BELL: With the understanding or are we



15 ~ making a formal recommendation?

..-.:

::>

16 ~

REPRESENTATIVE SAVAGE: We can make a formal

z

<:

17

f):
'"

recommendation

that

it

be

in

Section

I.

18

MR. GUERRERO: Yes.

19

CHAIR.?o1AN BELL: Are you ready to vote? All in favor?

20

(Ayes. )

21

CHAIRMAN BELL: Opposed?

:jl

22

(No response.)

--, ,,

CHAIm~N BELL: The motion carries.

2-1

MR. HILL: Now to make sure I understand what has

~5 just happened, we have added to Paragraph III, this language

PAGE 63

~~ --~~--~~ - ~ - ~ - - - - - ~ - - - - - - - ~ - ~ - - ,

with a formal recommendation that that language that we

I

added to Paragraph III be taken out and put into Section I.

REPRESENTATIVE SAVAGE: That's true.

HR. HILL: Okay.

REPRESENTATIVE SAVAGE: It's an indirect way of our

messing with their business.

7

CHAIRMAN BELL: Paragraph IV dealing with Legislative

x Judicial, and Executive Powers. Do I hear a motion with

() I respect to this paragraph?

10

MR. GUERRERO: I would moVe to just leave it as it is!.

II ;;:.
'o,,",-

CHAIRMAN BELL: Is there a second?

0/~~" ~12 ~

REPRESENTATIVE SAVAGE: It's just a separation of

powers clause, we're probably going to have to have it.

14 ;-~
v,,~
x4:
15 ..:.>,
'"

MR. CARLYLE: You don~ have to but you might want to.

17 :i,

provided that

19 i

MR. HILL: Oh, sure, the Lieutenant Governor as a,

20 you know, person who is on the well, he doesn't have a vote

21 but he's somewhat a member of the Senate body.

11
REPRESENTATIVE THOMPSON: Okay.

REPRESENTATIVE SAVAGE: These are the very type of

.,4 :1 things I wish we could have taken out of a completed

Constitution.

- - - - - - ~ ~ ~ ~ - - ~ ~ - - - ~ - ~ ~ - ~ - - - - - - - ~ - - - - - - - - -

- ~-------------------

---- --_._--- -

PA(;E 64

MR. HILL: Well the line is never well, very
:1

2

Ii
:1
II

seldom,

absolute between these groups,

there's a

lot of gray

"

3 II areas between the Executive, Judicial and Legislative because

il

4

II
Ii

they're all one government,

but this

statement is

in

almost

I'
,"I
5 I, all of the other Constitutions. You might want to retain it

6 even if you had a chance to work on the whole thing at once.

7

CHAIR~ BELL: The motion has not been seconded.

8

REPRESENTATIVE THONPSON: I second it.

9

CHAIRMAN BELL: Discussion?

10

(No response.)

11
'o"

CHAIRMAN BELL:

"'-

12 .'~".. All in favor?

Are you ready for the question?

;-
z
~.~ '",
~

(Ayes. )

, 14 >-
I-
;;(

CHAIIU1.AN BELL: Opposed?

J:

15 .:>
l.'J
:':">
16 <Xl Z "0z"
'" 17 It,

(No response.) CHAIRMAN BELL: The motion carries. Paragraph V dealing with Civil Authority Superior to

18 Military. Do I hear a motion with respect to this paragraph?

19

REPRESENTATIVE SAVAGE: I wonder-- it's interesting

20

I'
!

I

simply thought we ought to

say

"The civil authority shall

be

21 superior to the military authority." I think that says it all.

REPRESENTA?IVE THOMPSON: I wonder if that's one of 23 those things we could take out.

REPRESENTATIVE SAVAGE: I think we could, I'd like 25 to see it taken out.

65

MR. HILL: I might note that in 1~70, the reference
1 l' to the quartering of soldiers was dropped by the House
I
3 ' Judiciary Committee but was then reinserted by the House.

REPRESENTATIVE SAVAGE: I saw that, fascinating.
11
5 That's going to be one of our problems. Somebody is going to

get up and raise the issue, you know, they're going to put 7 somebody in your house that you don't want.

Can we take that out, Albert, and argue on the House
I
I'
9 I' floor for passage?

10

REPRESENTATIVE THOMPSON: You know, it might get by

CzJ

IJ

;::
'C"l

that

way

and

it

might

not.

"w-

(@t~":'1 REPRESENTATIVE SAVAGE: Certainly we can argue the concept that all government is created and is responsive and

J4 ~

t; is controlled by the people and that is clearly understood

~

1:

15 .~

<.:>
ce:

that

the

military

is

subservient

to

the

government

of

the

:>

16 ~o people.

z

<:;

17 :;

MR. CARLYLE: It seems like once you make that

1~:
:1 broad statement, "The civil authority shall be superior to I
19 :!
the military." since the General Assembly has all the powers

20
not expressly denied in the Constitution, the General Assembly

21
I' has the power then to, you know, do the rest of this.

22
REPRESENTATIVE SAVAGE: I think so.

23
MR. GRIFFIN: That's the way it is in one of these

other states' where they simply say the military shall be in

~~_=~_~!_s\l~()_rdinatio~ __to_~h~i \T~l pow~E_~

J

_______ _ PAGE __ J56 REPRESENTATIVE THOMPSON: The '70 provision says

"The civil authority shall be superior to the military and no

soldier shall, in tilue of peace, be quartered in any house,

4 , without the consent of the owner, nor in time of war, except

5 by the civil magistrate, in such manner as may be provided by

6 ! law. "

7

MR. CARLYLE: That's the same as this.

8

CHAIillV\N BELL: The language is kind of awkward.

9

REPRESENTATIVE THOMPSON: Is that exactly the same?

to

CHAIRMAN BELL: The provision is innocuous thou~

z~

[1

~x

isn't

it.

This is not one of those provisions that messes up

.0.0.

w

12 .~.. things as far as the Constitution is concerned. I don't think

~
~~~ it gives rise to an amendment or anything of that sort and if

14

>!;;

there

is

a

segment

of

the

population

that would

be

upset

if



I:

15

.:>
"'::">

that

were

taken

out

--

16 'z" w

REPRESENTATIVE SAVAGE: Can we simply shorten it to

Cl

Z

-0:

17 ''"" say, "The civil authority shall be superior to the military."?

18 And then aren't you implying the right to express these other

19 things by statute.

20

MR. CARLYLE: I think the General Assembly has that

power.

REPRESENTATIVE SAVAGE: They certainly would have 2.1 that right. If the civil authority is superior to the military, 24 , then the military cannot do anything that the General Assembly

did not want it to do.
I
I-..----------_._--~._-------~-----~-_._""---._---

MR. GRIFFIN: You want to move that?

REPRESENTATIVE SAVAGE: I so move.

MR. GRIFFIN: I second it.

4

CHAIRMAN BELL: It has been moved and seconded that

i we delete everything in Paragraph V after the first comma, is

, that right?

REPRESENTATIVE SAVAGE: Correct.

CHAIRMAN BELL: Is there any discussion?

MR. HILL: You may have a recommendation back from

10 .., the other committee on this one to put this back in

z 11 I-
0:
o "u'-.

CHAIRMAN BELL: No further discussion? Are you

(~3)\"", ;12 : ready for the question? Those in favor, aye.

'\S---?)/

(no response.)

--'

14 .,..,

MR. GUERRERO: I'm opposed.



T

I <; .~

CHAIRMAN BELL: Were there any in favor? I didn't

hear the responses. Those in favor of the motion, respond by
<
]7 ';;
saying aye.

IH

(Ayes. )

19 I

CHAIRMAN BELL: Opposed?

,

20 ;'
MR. GUERRERO: I'm opposed.

21

.

CHAIRMAN BELL: The motion carries

)

REPRESENTATIVE SAVAGE: Gene, as a matter of interest

what did you want to say?

MR. GUERRERO: Well it's just one of those historical

things, it's almost like putting in the fundamental right of

~---------- -------------.-------------
II the people to change forms of govermnent. It's not one of Ii
2 those things that -- it goes all the way back, as I understand

3 it, to the English experience with the King's soldiers and so

4 forth and it's sort of saying that that's a fundamental

5 principle of government and I think it will be a fight over

b it or a logical contention that it's not worth the hassle over

7 it essentially, although I don't know if there will be or not.

8

MR. GRIFFIN: But it is an anachronism.

9 ,:

MR. GUERRERO: Yeah, no question about that, but

!o it's sort of an important one, is the only thing.

<.J

Z

! 1 eo
.o'0."...

REPRESENTATIVE SAVAGE:

[2

~ ....

my

anachronisms

I'm trying to shed most of

ClmIRMAN BELL: Well, as Mr. Hill has pointed out,

i

14

>-
t:

this

may

get

back

in

when

the

committee

as

a

whole

acts

on

it.

-<

J:

15 ~
":'":.

Paragraph VI dealing with Contempts, "The power of

!(l

~
~,
a

the

Courts

to

punish

for

contempt

shall

be

limited

by

z

-<

17 ~ legislative acts." Any comments on it?

18

REPRESEl~TATIVE THOMPSON: I think we need that. I

19 think the legislature needs to be able to pass some laws

20 !: limiting what they can do in the way of contempt. I would

21 move that that remain in there just as it is.

MR. GUERRERO: Second.

CHAIRMAN BELL: Further discussion?

MR. HILL: Is this a provision that belongs here, do

you think, or in the Legislative Article?

REPRESENTATIVE

__ -- ~---_.

._--------------

THOMPSON: This

PAGE 69
--_._-_ -... _ . _ - - - - - - - - - - - - - - - - - ,
I
t
I
doesn't set up any

rules.

MR. HILL: It gives a power to the General Assembly.

REPRESENTATIVE THOMPSON: It's just a general

) : principle. It's got to be somewhere and I want it in there, so:

\1

!

(, I! -- one of the dangers of taking something out thinking it

7 'I" ought to be in another Article is they might not include it in
I,
:i
X i: that other Article. So as a safeguard, I would rather put it
I! 9 It in here than to have it eliminated by our thinking it ought
!O to be in another Article.

Cfu~IRMAN BELL: Well it's true, I see the point

you're making, but that certainly ties our hands on

MR. GUERRERO: Streamlining?

CHAIRMAN BELL: Streamlining the Constitution.

15 .~
<.J

REPRESENTATIVE THOMPSON: Unless we do it all as

~:

-:J

lh ~

~.. one document, then we're going to have to be extremely careful

in this area.
li)
MR. CARLYLE: There is a possibility you could have

19 I
a separate Constitutional amendment to amend those other

20 I
Articles, even though that's not part of the charge for that

21
connnittee

for the committee, but otherwise, I don't see how

22
I you can, for instance, move things that you think belong in

another Article.
24
REPRESENTATIVE SAVAGE: Which were the two Articles

on the ballot last time?

MR. CARLYLE: Election and Retirement.

2

MR. HILL: II and X.

3

REPRESENTATIVE SAVAGE: I'm sorry, II and X?

4,

MR. HILL: Uh-huh.

5

REPRESENTATIVE SAVAGE: II and X were on the ballot

6 and then

now the Legislative will be on the ballot hopefully: I

7 this time?

MR. HILL: Right, and that's one that -- And I was
'I
9 !i going to say, the Select Coromittee will be getting the

[0 .., recommendations of all of the committees and I think we may

z

11

....
"0"

go

through

some

review to

see,

you

know,

it wouldn't be

Q.
u,

[2

"v"
....

removed,

but

if

it

looked

like

it

belonged

in

the

Legislative

....

~~.!!!!!!.

3
v

Article

v>

I

14 ; ....

MR. GUERRERO: Could we make a conditional

':<r

15

..:>
c,

recommendation

like we

did

before?

:">"

16 ~ "o"

MR. HILL: To the Select Committee that this go over

z



17 ~ to the Legislative Article? I suppose so.

18

MR. CARLYLE: There's as good an argument for

19 putting it in the Judicial Articie, seems like --

20

REPRESENTATIVE SAVAGE: That's correct. Now the

21 , fascinating thing would be if you left it in -- watch this,
Ii
~- i: the fascinating thing and this is our problem but I point out i'
23 1
:' to you the fascinating thing would be if we delete it here,

the Legislative -- the Select Committee includes it in the

, Legislative Article, Article III, and then the State passes

L

~________

---------- -

PAla~
.- .--- --_--ll-_--l
Article I and defeats Article III, which is exactly the point I

Albert is pointing up.

I
I

I

-"I I

MR. GRIF:r-'IN: WeIl if you follow that argument,

I
4 :i you I re going to have to put a lot of things in every section !,
5 I':I against the possibility of that section being defeated.

Cr~I~~ BELL: It would seem to me that our job is

7 to n~ke Article I what we think Article I ought to be. It is

our specific job to make Section II -- Sections II and III

what we think they should be, and if we think things are in

!O here that should not be there, we put them we recommend

,~-.,

II

;::
.oe.'.x.

that they be deleted,

but I

think it would be

incumbent upon

us, we should notify the other sections that we have deleted
(~~V4;, i12
~r~~ them because we donlt feel that they are appropriate in

.

I

14 .>..-. Article I. I don't see how weill ever get a tidy Constitution

'<

:I:

15

.~
\9

unless

we

limit Article

I

to

what

we

think

should

be

in

:':">

16

.~.. "z

Article

1.

<

17 ~

MR. HILL: Mr. Savage, would you approve of the

lrl ballot being -- or the question being put on the ballot, to

19 combine all of the Articles that are being revised at once?

20

REPRESENTATIVE SAVAGE: That would be an excellent

21 , suggestion.

I
22 Ii
II

MR. HILL:

The Select Committee, that's their

23
decision, at the moment they are planning to do it six

'_4 :'i
1, different

REPRESENTATIVE SAVAGE: It would be a mistake to do

r--'-- -.--.-----.- .

72

I Ii it by six different ,

!

L

MR. HILL: I don't think their hands are tied and

3 I was just curious how you felt, if you felt that would be a

4 better way to do it.

5

REPRESENTATIVE SAVAGE: There's no doubt about it.

6

MR. HILL: Do you approve of new Articles I, II,

7 III, IV, V --

8

REPRESENTATIVE SAVAGE: Of the Constitution of

9 Georgia. Have that me question. You see, the people weren't

10 .., voting against II and X last time, what they were voting agains~ z
11 t~-- was all of the amendments being put on the ballot, they were jU$t au.
12 IX
~ mad and they were expressing that, and rightfully so. When
I-
~~ 3
~ you go in, as we did in Fulton County, we had 38 Constitutional
! 14 ~ local amendments to be voted on and you can't go in a polling J: 15 .~:> place and not get mad about having to -- and you don't under-
:>
16 OJ
~ stand them. What they were saying is that the legislative
z < 17 IX
OJ process ought to do better about our election process than they'

18
, have done by sending me in to vote on 38 different measures

19
II as well as to express an opinion on candidates at the same

20 . time. We would be greatly advised to have one question

21
MR. HILL: I'll take that recommendation to Robin

22
Harris, I'll talk to him about it.

,,

....' :i

REPRESENTATIVE SAVAGE: And I'm going to give that

to him ~yself.

CHAIRMAN BELL: Do we have a motion _wi.th_resp~c:1;-1:0_-~

rr
Paragraph VI?

PAGE 73
----- --- ------ - - - - - - - - - - - - I
I

REPRESENTATIVE SAVAGE: I'd like to see that in the

i Legislative Article. J

!i
4- "

REPRESENTATIVE THOMPSON: I move that it remain in

I,
just as it is with a recorronendation to the Select Committee
I I
(\ that it might be better placed in some other Article.

REPRESENTATIVE SAVAGE: That's fine.
i
I
REPRESENTATIVE THOMPSON: I'm afraid to leave it out.!

9 II

CHAIRMAN BELL: Is that satisfactory?

10

MR. GUERRERO: Fine.

~,

L

] I ~-

REPRESENTATIVE SAVAGE: And that would especially

"o"

12 "~""' be the case, Mel, if they corne up with putting all the Articles

(~~~ \ ,...... ~ under one question. Then we can at least build in some

I

14 ~ continuity between every Article that we put on the ballot next:


r
15 .:> time. ":'>"
I (l ~

MR. HILL: And these are your basic structure of

,j
I' :i, government, Legislative, Executive, Bill of Rights.

REPRESENrrATlVE THOMPSON: One thing just struck me
i I') ii and that is this, this Article is going to be on first, then
I
20 subsequent Articles coming on on the '82 ballot would have an

21 opportunity to move certain of these things from Article I and

22 place them in there, and if it failed, it would still be 'in
"I, .~
,,
--' Article I. Is that correct? We can put it in here and they

.'.~ :1 can remove it. I J
HR. HILL:
<1,_
"

That's right, except this one we were

PAGE

~
II

just talking about would be in the Legislative,

so it would

I'II

2

I'I, il

all be

done

at once.

'II,

3

II
il

REPRESENTATIVE THOMPSON: Not necessarily.

II

II
4 II

REPRESENTATIVE SAVAGE: You could still build in the I

I

5

Iil~
I,

continuity between the different Articles

depending upon what

I~

II
b I passes this time, you can build in continuity between everything

7 1Ii we put on the ballot this time. We could take that as a 'I ,I

8 II concept the next time, assuming we put all the Articles on the

II

9

II
I:

same question again.

'I

10

MR. HILL: You feel that maybe this belongs in the

Czl

11

~-
'0"

Judicial Article and

so

if they wanted to put it in the

>.

~

12 ..u'."... Judicial Article in '82, then they could do that.

~~ w

REPRESENTATIVE THOMPSON: They could do it in '82

'"

14 1r;; and there could be an amendment at that same time to take it

1:
15 ~ out of Article I. There are all kinds of chances of getting :'"J
16 ~Q;J mixed up, but I'd rather put it in here right now because I Q Z
17 ~ think it is that important and not take a chance on what might

18 happen in '82.

19

REPRESENTATIVE SAVAGE: But when we go in the next

20 election, we can put this even in Article III if the Select

21 Committee is so inclined to do so and if we put the same

" question on the ballot, we would have this at least in Article '

"....~"'1 I i III under the Legislative powers where it is more appropriate

than where it is now.

25

REPRESENTATIVE THOMPSON: That's right, they could --'

PAGE 7S
_._---- ~ --_._-~------,
the Select Committee could put a recommendation in there that

it go in Article III as part of the package, particularly if

they put it on the ballot in the form that you're speaking of.

REPRESENTATIVE SAVAGE: 'I'hat' s exactly right and we

) would have this cleaned up to that extent.

CHAIRMAN BELL: So the motion is to retain it with

~1 Ii;: the recommendation that --

I,
II

S Ii

REPRBSENTATIVE SAVAGE: It be put in Article III.

!!

l)

CHAlm~N BELL: That it be put in Article III. Are

!U you ready for the question? All in favor?

co

J1 -

if.

0

:l.

~

12

0:
v

@- r----- ~.
~ ,:: .Z.. """0 ~

(Ayes. ) ClmIRMAN BELL: Opposed?
(No response.)

14 >I,n

CHAIR..'1AN BELL: The motion carries.

J:

J 5 ,:,

MR. HILL: Now Ms. Bell, I'd like to point out in

"IX

::>

uJ

((\

Z
I~

Paragraph

VII,

that one of

the

other Article

committees working

0

1

17 "",D on the Legislative Article and Powers of the Legislature

is Broad Powers of the Legislature, is tentatively -- has

I
I

I

19 tentatively taken this provision and put it into their section, :i

I

20 and you know, they're working on that now because they felt tha~

21 i it was very related to what they were doing, there were a lot I I

22 of prohibitions against special legislation over in the

,"
L.' Legislative Article and so they're working on this Paragraph VI~.

2.+ I: Now once again, in order to assure that it doesn't get lost,

i

25 if you'd like to leave it in here with a recommendation it be

PACE: 76
- - - - - - - - - - - - --------~-----------
I':T moved somewhere else -- but they're already considering it

2 and it is already going to be in that one, so that --

3

REPRESENTATIVE SAVAGE: I move the same motion as we

4 I did -- for Article VII as we did for Article VI.

5

MR. HILL: And that's true of Paragraph VIII as well. l

REPRESENTATIVE SAVAGE: Correct.

7

MR. GUERRERO: I second the motion for both

8 paragraphs.

9 :i

CHAlmmN BELL: Paragraphs VII and VIII, a motion

I

10 has been made to retain with a recommendation --

"z
11 ~
o
>.
12 ~'"
~
~
Z
t.~~. ~~
~

section.

MR. GUERRERO: That they be placed in the Legislative I
CHAIRMAN BELL: John, the last clause of Paragraph

14 .>.-. VII, is that something that would be more appropriately

'"
:r:

15 .tl handled by statute than by the Constitution?

":':">

16 ~ "Cz'l

REPRESENTATIVE SAVAGE: I sure think so. Maybe as

17 ~ Mel has suggested they will clean that language up a little

IS Ii bit if they include it in the Legislative --
:1

19

CHAIRMAN BELL: But if we're going to retain it with

20 a recommendation that it be put in another one, should we

" ! clean it up ourselves in case it's not put in the other one?

MR. GUERRERO: So you would, say strike that last

clause?

CHAIRMAN BELL: Well it appeared to me that possibly

that shouldn't be in the Constitution, that it ought to be
~- -------------------------------- - - - - - - - - -

PAGE 77

~-~ - - - - -

-------~-----,

controlled by statute. I wonder if that's not really a bad i

\

2 provision to have in the Constitution. What do you think?

i

I

MR. HENRY: There's a lot of statutory language in

4 tho Constitution. In the Legislative Article, I know he's

) trying to take out that language which is, in most instances,

6 already provided for by statute and just have the broad power

7 in.

REPRESENTATIVE SAVAGE: I would certainly agree with

9 a motion if you have one, Mildred, to remove that.
,I

10

CHAIRMAN BELL: Well, would you like to just amend

11 c your motion?

o

l:'.

~,

12 :

REPRESENTATIVE SAVAGE:

(~~-_-~_--!~J\J.<~"." ~., period.

Yes, to remove that language,

---

14 >-

CHAIRMAN BELL: To remove the last -- is that a colon

I-

~

.0:
r

15 .~, or a semicolon, looks like a semicolon -- remove all language

.:J

:':">

16 ~ after the semicolon. So under the motion we'll recommend

c

,7

17 ~ removal of that language, inclusion of both Paragraphs VII and

IX VIII with a recommendation that they be placed in the
I
Ii
19 Legislative Section.

20

Any further discussion?

I

I

21 I:

MR. GRIFFIN: I wonder if one of the lawyers would

22 tell us what that language means in the first place. I don't

23 understand what it means.

24

CHAIRMAN BELL: I'm not a Constitutional lawyer, but

2:' thL' \ oJ-Y I read it -- maybe some of these other lawyers are

78

i,
I,
2 I you couldn't have any special statute that would affect a

3 person who is under a legal disability to contract, you just

4 plain out couldn't have it period. Am I misreading that? I

5 mean you couldn't even have it if the guardian of the legal

6 incompetent consented. For all other things, I do believe

7 that people under legal disability have persons who act for

R I them, is that not right?

I

9I

MR. HILL: That's my recollection.

:0

CHAI~~l BELL: Do you read this to say that you

II loX
Q
11 0":'
.. l~ v '
>-
Z
~~l'..!!!.~~ w
~

simply couldn't do it? MR. HILL: As I read it, it's
or herself. You think it may extend as

just well

the person himself! i
to his guardian

14

>-
lV>

ad

litem

that's

appointed

for

him?

<:

1:

15 '" \!l

CHAIRMAN BELL: It would seem to me that the way it

'::">

16

~..
o

is written,

the

law could

not affect

this

person,

this

1:

<::

17 :ii incompetent who is unable to contract. Isn't that what it

1b I
I says?

19
MR. HILL: I'm not sure.

20

REPRESENTATIVE THOMPSON: What is the general law

21
affecting private rights?

CHAIRMAN BELL: Can somebody give us an example of

it? I can't --
,',I
MR. CARLYLE: I don't know what that means.

REPRESENTATIVE SAVAGE: That's fascinating languageL ,

isn't it?

CHAIRMAN BELL: It is.
I
MR. LITCHFIELD: I think any general law which affects
'I
property rights or rights to contract or -- most general laws
-' Ii affect -I
CHAIRMAN BELL: Oh, you're right, but an example of
7 a variance against

REPRESENTATIVE SAVAGE: But the fascinating thing is

9
ii that it says that "No general law affecting private rights,

10 shall be varied in any particular case, by special legislation,

C)

Ii

,z-: 0'" except with the

free

consent,

in writing,

of all persons to be

Q

w

@ ....12

.u'" -

affected ......

That means that we're going to have a general

-=-
--

J)----

"z'
w
:;:

law

affecting

private

rights

and

then

the

person

who

is

14

lV>

going

to

be

affected

by

it

has

to

consent

in

writing

<

r

1'\ '~
<.:>
,~
:,

CHAIRMAN BELL: To the variance with respect to

~1

1(1 L.

0w,.

REPRESENTATIVE SAVAGE: To the general law that's

I-

<
"CD being passed.

p;
CHAIRMAN BELL: No, to special laws, the variance

19
! oh, excuse me

20
MR. LITCHFIELD: I don't think it would ever come up,

21
but assuming you had a general law affecting insurance carriers
",
and then you wanted to vary that by special laws formsurance
23 I
carriers in Atlanta. Theoretically, under this, you could go

to all insurance carriers in Atlanta and if they all agreed in
". >
writing, you ceuld vary the law as to them. I don't know that

[ 1 - - - - . - - - - - - - - - - - - - - - --- -------~----

_JlQ_

Ii it has ever been done that way.

:'

i'

2

I
,I

CHAIRMAN BELL: Well I'm not sure that this is not

!I

3 !II a grant, it doesn't say you can do that, it just says you

,II,

4 can't do it unless all people consent, maybe there's a negative:

i

5 implication there that you can do it if they do consent.

My suggestion that we amend the motion was addressed to the

7 fact that assuming that there is some reason for that, and I

8 honestly don't know what the reason is, if there is some reason

9 for it, then how can you have the provision and It no person

10 under legal disability to contract, is capable of such oonsent."

Czl

[1 c
.o0.,...:

REPRESENTATIVE SAVAGE: The fascinating thing i~ if

12 ~ anyone who was under a legal disability was affected, you

u.

IZ
,~ ~ couldn't have that variance to that general law.

CHAIRMAN BELL: That's right, it would prohibit it.

!

15 ~ If you had one member of that group who was legally incompetent!--

Cl

,

'":::>

16 ~ ,~

REPRESENTATIVE SAVAGE: You're exactly right.

o

Z

-(

17 :ii

REPRESENTATIVE THOMPSON: I notice that this was

18 taken out of Article I in 1970 and placed in Article II,

19 Section V, Paragraph III, and I just wondered what treatment

20 they did.

21

MR. HILL: I probably have it back at the office, I

" don't have it with me.

,,

_~..

I

REPRESENTATIVE SAVAGE:

Mel, will you get some

research on why that language is in this?

HR. HILL: This second sentence here?

PAGE 81

REPRESENTATIVE SAVAGE: Yeah, the second sentence.

Now I know exactly why the sentence one, I went to the Georgia

Supreme Court on the first sentence there in Paragraph VII.

MR. HILL: Well actually, we'll try to find out why ') ! it's there, but at the moment the draft of the Legislative

I Article is completely reworking it and kind of just getting

7 away from this language entirely. Now we need to know for

X

,:
i!

their

sake

as

well,

you know,

why this

is

here

and what we

l) I,I' would be doing if we omitted it.

10
..,

MR. HENRY: I think what the Chairman of the

L

1I

"
u

Legislative

Committee

that

is

doing

the

Legislative

Article

on

.(@)j'~,'" ~''"" Broad Powers is doing is in effect making a basic general

prohibition against this type of special legislation that

. ~

I

14 ~

f-
~

affects

only

certain

people.

I think there is a provision in

r

15:>~ the Legislative Article about special local legislation where

.J
1() o~ you have to give them notice, such as that, which is provided z <:
17 ~ for in the Constitution, but he is I believe attempting to take

lS
these two paragraphs and take out, in effect, the statutory

19
language and just in effect say that all laws shall have

20
I uniform operation and there'll be no special laws affecting

private people, something to that effect. I don't have the

proposal with me.
23
REPRESENTATIVE SAVAGE: I'd like to see this language
24
tried to be implemented, it'd be fascinating to see someone
25
try to implement it.
------------------------------------- - ----------------- --- - ------- ---_._---_.------- -----------

r---- ----------------------- --- --- ---------

I'ACE 82

J !!:'

MR. HILL: I think it goes back to the days when

Ii

2 11,' we had individuals, we actually had individuals that were

3 mentioned in the bill, isn't that right? And there might be

a general law on a particular matter, I'm not sure what an

5 example

6

REPRESENTATIVE SAVAGE: I'll spell out one to you

7 then, where someone is trying to get a special pension benefit

8 for themselves and special dispensation from meeting the

pension laws or the general laws so they will be entitled

[0 to their special pension. That's probably the reason it's in

'.:l

II

.~.. '0"

here .

"-

12

c"c'
u

....

;::

z

u ~-~~ "'

V>

MR. HILL: Probably. REPRESENTATIVE SAVAGE: To give some special benefit

14 .>.-. to somebody who had political clout and influence.

'<

15

.:r
.:,
...,

CHAI RM.AN BELL: .Hr. Thompson?

cc

::>

16

IXl Z

~

0z

REPRESENTATIVE THOMPSON: Why don't we delay further

<

17 "'"" consideration on this particular article until Mel has had a

18 chance to do some research on it.

19

REPRESENTATIVE SAVAGE: And then you're only talking

.~() about getting the consent of that one individual, because --

"

MR. HILL: But the full General Assembly would have

)""':
to approve it still.
2 _~
REPRESENTATIVE SAVAGE: t'lell if they had enough clout

2-+ they could get it through the General Assembly.

REPRESENTATIVE THOI1PSON: We pass the sweetheart bills

--P--A- -G-E----8-3------l

REPRESENTATIVE SAVAGE: We have passed a many a

I

sweetheart bill in this legislative body.

I

ClmI~~ BELL: But if the person were legally

incompetent, then you couldn't pass it.

REPRESENTATIVE SAVAGE: That's correct, but you would:

, assume that he would be legally competent if he has just been

7

i
I

retired as Adjutant General of the Georgia National Guard and

~

'I I

lacks two years from meeting that special pension that he wants.

'! i
I

CHAIRMAN BELL: But is that something that you can

10 assume when you're writing the Constitution?

'z"
11 ;::: oa:
"-

MR. GUERRERO: Well I'm not sure --

REPRESENTATIVE SAVAGE: I'll tell you exactly why

it's in there.

MR. CARLYLE: I'm not sure that this would affect the

<

I

I

CJ sweetheart bills because those are always
,.-1,:

! () Il' Z

(.)

REPRESENTATIVE THOMPSON: This would keep us from

1_

I7

a<:'
ll.-'

changing

a

sweetheart

bill once

it

gets

in

there

without

the

1:-\
consent of the person affected.

19

"
"

MR. CARLYLE: But the sweetheart bills that I have

.:\)
seen have been general, unless you happen to know that just one

21
person really meets that requirement, I don't think that this

really does anything to sweetheart bills. does.

i
I don't know what iti I

REPRESENTATIVE THOMPSON: It will be a general bill

that wi _______ ll only__ __affect a few folks, _ that's the way most of them...J

I'AI;): 84

Ir-~~:, YO~~e~-:i-;~t. ~-It--~~~ns up a~e~~~ement bill to affect
II
2 II two or three people, but it's a general bill. They draw it

3

II
!

in

such a

way

il

4

MR. HILL:

Write the specs so only one --

5

REPRESENTATIVE THOMPSON: Sometimes you don't even

recognize a sweetheart bill when it goes through, most of

7 them -- I still think we ought to delay further consideration

8 of it until after Mel has had a chance to do some background

9 study on it.

10

MR. HILL: Your recommendation is to go in another

"z

11

;:

0: 0c..

place,

but

for

purposes of what you want

to

say

in case

it

~,

12

Q:
..V
'

doesn't,

then

you'd

like

us

to

do

some

research.

;:

r.
'!...-.~ ..'I

':.J
V)

REPRESENTATIVE THOMPSON: Yeah, I think the original '

14

.;....
V)

motion

was

that

it

remain

in

here

on

the

chance

that

it

might

:I:

15 .:>

<;) be eliminated completely, with a recon~~endation to the Select

:':">

16 zco

:::
z

Committee

that

it

be

placed

in

another

section,

but

our

17 'c"o Chairlady says that she would like to straighten the language

18
out if we're going to retain it in Article I.

19
CHAIRMAN BELL: You're moving to table it?

20
REPRESENTATIVE THOMPSON: I move to table it until

21
the next meeting. We're going to have to have a next meeting.

CHAI~~ BELL: I think we will. Has the motion to

table been seconded?

MR. GUERRERO: I'll second it.

REPRESENTATIVE THOMPSON: As a matter of fact, let's

PAGE 85

not make it a motion to table, let's make it a motion to delay

consideration. I think there's a whole lot of difference, you

, ,I have to take a fonnal motion to get it off the table if we're
"
c+ going by parliamentary procedure

.5

CHAIRMAN BELL: Well, shall we just agree to defer

() ii this to the next meeting?

~
I

REPRESENTATIVE THOMPSON: Yes.

CHAIRMAN BELL: Paragraph IX.

I) !i

MR. GRIFFIN: Is that necessary?

10

REPRESENTATIVE SAVAGE: OCesn' t that really come

l')

z

II

....
.'x

under

I,

Rights of Persons?

o

:,).

(~) ,,~.:. ~'0":

REPRESENTATIVE THOMPSON:

~)--R of the State.

That's setting out the duty

If ,~

CHAIRMAN BELL: It really looks like it belongs in

1":

15

.:J
"':":>

the

first

--

the

first

clause

belongs

in

Section

I

and

the

1()

~
:"-1
a

second

belongs

in

Article

III

doesn't

it?

7

17 ~

REPRESENTATIVE SAVAGE: We left that phrase " shall:

1:'\ be impartial and complete " in Paragraph III.

19

CHAIRMAN BELL: No, I meant in Article III. " it

'" I

II

i

20

IIII
II

shall

be

the

duty

of

the

General

Assembly

to

enact

such

laws

I
asl

,I

2i

I:i'
!'

will

protect

them

in

the

full enjoyment of the rights,

privileg$s

22 I and immunities due to such citizenship." Doesn't that belong I,

in the Legislative Article?

24

MR. CARLYLE: Well a number of these paragraphs in

2) ~ Section II deal with the duties of the government to enact laws i

_ - - - - - - - - - -_._----_._-~---_._------_. ------------ --~-_._- . _ - - - - - - - _...._-_._--- .. _...

-------------------------,

T-----------------------------------------

86

~I
\ to protect certain rights of the peqie.

2

CHAIRMAN BELL: Where do we have another one like

3 that?

4

MR. CARLYLE: Well in Paragraph V, we had the thing

5 about the protection of people from having soldiers quartered

6 in their houses and that would be enforced as provided by law.

7

CHAIRMAN BELL: But we deleted that.

8

MR. CARLYLE: Well, I know that.

q
REPRESENTATIVE THOMPSON: Looking at the 1970 rev-

10 ision, you know what they did, they put everything in Section
z..:J
11 3~ I except two things in Section II and that was the State Rights
"-
12 :... and the Powers of Government, but everything else went into
l-
~~ 3
~ Section I. I would suggest that we just go ahead, if we

14 .,.... think this is good and I do think it's good, pass it and

"<"

1:

15 ~ .., we'll worry about where we're going to put it later

'"::>

16 III Z ''":\

MR. HILL: Let me ask this question. Are aliens

1:.

<

17 "'"" let's see, this limits citizenship in the State to citizens

18 of the u.S. What are the rights of an alien in this State?

19

REPRESENTATIVE THOMPSON: That's set by Federal

20 statute, isn't it?

21

MR. HENRY: Could I suggest maybe that you might want

,,

to think about it being consistent, it's "All citizens of the

.,...,' United States (and then it's) resident of this State "

Could it be 'I citizen of this State . " also?

REPRESENTATIVE SAVAGE: Now wait, the classification

- - - - - _...

---,~-----------~---_._._-

PA--G--E--87--- -l
starts out first you have to be a citizen of the United States -

and if you meet that test and you're in this State, then you
!
-' i, are automatically a citizen of this State and it gives you lawsl

that will protect you, etc. We're simply saying that all

citizens first of the United States are automatically citizens 6 II of Georgia. Now the question is do we need that in Section I 7 or II. It ought to be in Section I because it is a right of

someone, delineating that right, so we ought to move that that

9 I be kept and put in Section I.

10
L?
11 .~...
..e<
0
-,
c: U
.... z--_-'"
~

REPRESENTATIVE THOMPSON: I second the motion. CI~I~~ BELL: Is there further discussion?
(no response.) CHAIRMAN BELL: Are you ready for the question? All

>~

in

favor

say

aye.

,-

-r

15 ,~
<.:> c< :J
16 'Z"
'0"
z

(Ayes. ) CHAIRMAN BELL: Opposed?

~-
17 ''""

(No response.)

CHAIRHAN BELL: The motion carries.

Paragraph X dealing with Appropriations to Churches,

Sects, Etc., Forbidden.

21
MR. GUERRERO: I wonder if we could add a piece of

))
language from Texas on that. They have at the end of theirs

:23 ,I

!,
,

they

have

similar

lanljuage

and

then

they

say

"Nor

shall

24
property belonging to the State be appropriated for any such

25
purposes." I wonder if we could put that

!'ACE 88
11----------- _ .._-_... ...._._-_._..~--,-_ REPRESENTATIVE SAVAGE: Is a sectarian institution

:

II
II

simply

li~:::~r:::::ou:

:::::t::::~::

religious

sects,

4

I I

they're not

really churches.

,I

5i i

REPRESENTATIVE SAVAGE: For example, if you joined

I

6 !I
i: together with a group of other people in our State to promote

7 art and culture, would that be

8

MR. CARLYLE: I don't think that would be --

9 Ii

CHAIID1AN BELL: I didn't know the term was used to

10 apply to anything except religious sects, but I really don't

"z

II

...
ox,

know,

John.

~

12 ~

......

MR. CARLYLE: I don't know, but I wouldn't think it

Z
_III~\.I.J
~ would apply.

14 :>;-;
<
:I:

MR. HILL: This is a term I haven't heard too often,

15 ~
~"re ligionist" , is that a proper term, "religionist"?

=>

16 ~

w Cl
z

CHAIRHAN BELL: I never heard that either.

<:

17 :ii

MR. GRIFFIN: Certainly the phrase "and so forth"

ought not to be in there.

19
CHAIRMAN BELL: Does this really belong in --

20
REPRESENTATIVE SAVAGE:
i" '
n our penal institutions?

What about the churches in

,,

MR. GUERRERO: Well some other states exempt that. I

23
mean they have an exemption for -- the only exception is to a

24
chaplain and they spell it out in some of the other states.

::;

REPRESENTATIVE SAVAGE: Interestingly enough _ - - - - - - - - - - - - - - - - - - - - - - - _ . ----- .._- -_. - -- .._-----

--'--_ ..._.- ' - - -

--.-

._._._...

,
-

~

~

_

~

~

PAGE 89
I
were paying money to a chaplain anywhere in the State of Georgi. i
in prisons this would be prohibited by this Paragraph X.

REPRESENTATIVE THOMPSON: Most of the State institu-

tions, don't the prisoners build their own chapels? I know

at the mental institutions that I have visited, they've gotten

private donations for the construction of chapels. I donet

7 think State funds have been used.

CHAIRMAN BELL: Well even if they used them, what

9 you have in institutions like that are non-sectarian, aren't

10 they?
'z-.' I] ~.
'o"
0..
12 :
@t""~~

REPRESENTATIVE THOMPSON: They are non-sectarian. CHAIRMAN BELL: And this wouldn't apply. REPRESENTATIVE THOHPSON: I think it would be a

14 )...-. denomination --

~

-0:

r

I

!.\ .~
,L,?: ::1

REPRESENTATIVE SAVAGE: in II aid of any church " :I,

1() ~ ~, a

ClIAIRMAN BELL: It's not a church, it's non-sectarian~

?:

<

17 :;;

REPRESENTATIVE SAVAGE: " sect or denomination of

lK
religionists "

19
REPRESENTATIVE THOMPSON: But I know I have been in

20 :, a number of institutions in various places and the inmates

21
I themselves have built it and gotten private donations for the

construction of chapels. I don't think that the original plan

,,
--' for any of these things would carry with it state funds for

i
i i

24 that purpose. I'm not quite sure, there might be some instance;I

,

25

I

__ l~ wh,=-=-=-~~=~_h~':':~_, __ ~\l_:_J: ~now even at hom~_~:_~a':':=-_~~~~~nt~a~J

PACE 90

If

1 IIII Georgia State Hospital and --

I

2 I':1i
Ii

REPRESENTATIVE SAVAGE: Do you have a chaplain there?

I

i

3 'i

REPRESENTATIVE THOMPSON: I don't know if they have

4 a chaplain or not, but I know that some people have been giving

5 , donations for the construction of an all faiths chapel, I
'I:
() I! believe is what they call it, and maybe they do have a paid

7 chaplain, I don't know. I'm not sure they have to have a paid

8 chaplain, those people are real ha~py to get in there and have

<) a captive audience.

to

CHAIPJ~N BELL: I'd like to raise a question on

zl.:l
iJ ~ whether this is appropriate in Article I anyway. Is this not

0w

12 ~" something that --

MR. GUERRERO: Well it seems to me to make sense, I

i

14 ~ thought about that but the first part in terms of the rights

<

1:

15 ~ of individuals says you've got freedom of conscience and

":;>

16 ~ru freedom of religious belief and here in terms of the Section II

z

17

<
,>:

~ on Government, it says the Government can't use its funds --

18 and I would suggest also property -- to benefit any particular

J9 denomination. That's an appropriate division.

CHAIRMAN BELL: Well, "No money shall ever be taken
),
from the public Treasury " How is the money taken from the
,,
public Treasury except by statute or legislative act?

MH. GUERRERO: Yeah, but it sep~s like it needs to be

a Constitutional principle.

25

l.!

.

CHAIRMAN BELL:

..

._ .----~--- ---~---.-

Well

it

would

still

be

a

C

o

n

s

t

i

tu -_..

t

i

o

na. -_.

l

PAGE 91
------------------------------ ------- - --------------,
I
principle if you put it in the Legislative Section, wouldn't it?

REPRESENTATIVE THOMPSON: I think it needs to be in

the Bill of Rights, I think that's the appropriate place for

CI~I~~ BELL: Well I thought we had something --

REPRESENTATIVE SAVAGE: Mildred, you raised a point

that is very appropriate. What the paragraph says and deals

with specifically is appropriations. Appropriations -- all

money and the right to appropriate money is vested in the

<) I
legislative process.

IU

MR. HILL: But this is our establishment clause, thiSi

,--'

is the state's establishment of religion clause and I

REPRESENTATIVE THOMPSON: I think it should go in the

Bill of Rights, it's a prohibition against anybody doing

certain things.

'J

REPRESENTATIVE SAVAGE:

:'":J'

16 ~

,~
Cl

be

in

Section

II?

Z

<

17 :;

So you're saying it ought to No, it ought to be in

I concur.

Again, I urge you not to

worry too much about what section it ought to be in, let's

worry about if it's good substance and we can worry about the

:: section it goes in at a later meeting. We can recommend that

it go in Section I.

REPRESENTATIVE SAVAGE: Well then you continue it as '

"--~-

._~._--.

_ . - - - - - - - - - - - - - - - - -_ _._-- ------ ----- __ ---_. ~---_.-

...

..

. . - - - _ . ~ - - - _ . _ - - - - - _

---

I' :\-,(\"'1" 92

2 ~ asne~ ouns-e;as-~eac-gt-ri- rea~~~--~oesn' II catpJ.'POrnoPlribaetcJ.a

aoPnh-; it

t need to be in

I is talking about the Rights of

3 I Persons, and appropriations of money has nothing to do with

4 II rights of persons.
II
REPRESENTATIVE THOMPSON: Well we're not only
S II
h il talking about -- if we do what Mr. Guerrero says, we're not
II 7 Ii only talking about appropriations of money, we're talking

8 about the granting of property and other things, and I sort of '

9 agree with him about property because I've seen some ~lings in

10 the Assembly that I disagree with very strongly.

"7-

! 1 f-
0'"

MR. GUERRERO: In some states you have a section

"-

~,

12 u'" called Religious Liberty, I believe is what they call it, and

'.-"z-

!~T...!!..!!E.

LIJ
u

they

deal

both

with

free

exercise

and

establishment

in

the

'"

14 ;: same paragraph -- Religious Freedom is what one state calls it.'
<:

1'i .,.~,

REPRESENTATIVE SAVAGE: Well that's under Rights of

"::>"

16

co

z
w
a

Persons,

religious

freedom is a

right that you have,

justifiably

z

<l

17 "c"o so, but the appropriation of money

18 II

REPRESENTATIVE THOMPSON: Well this is the document

19 that sets up the right of religious freedom, this is a

:?O limitation that is being placed on that and I think to be able

21 to find it right in the same article is appropriate.
,, CHAIRMAN BELL: Well it was in the Bill of Rights of
,,
--' ,I the Federal eonstitution I take it because it was not included
"
24 in the document itself. Had it not come in the fo~ of an

amendment, then it wouldn't have been in one of the Articles

.L-__ _ _ _~__________

-.~-- - - - - . -

- -~- - - ---

PAGI;; 93
_~--------l
MR. GUERRERO: That's a good point.
I,
Cf~I~AN BELL: I don't think we necessarily need to
.\ I; follow __

'/

REPRESENTATIVE THOMPSON: If you use that argument,

we don't need a Bill of Rights at all, we can put it all in --
II'
I
REPRESENTATIVE SAVAGE: The separation and religious

freedom is definitely a right but appropriations of money

,,\ should be in the section that deals with appropriating money

l) i and that should be in the legislative

!()

CHAI~~ BELL: All this is doing is restraining the

'z"
II ~ leglsiature from doing that. o "-

@/"""'~1], ~

REPRESENTATIVE SAVAGE: From appropriating money,

"No money shall ever be taken from the pUblic Treasury "

J4 >- and the only way you can take it is through the legislature ~ <: J:
15 ~ passing the budget of Georgia.

~,
a

REPRESENTATIVE THOMPSON:

7

'-
17 ~ come up this time? Is that one --

1~

HR. HILL: Yes.

19

REPRESENTATIVE THO~WSON:

Does the Legislative Articl~
I
i
I !
I
I still think I want it in !

I 20 , there so bad that I'd like to see it stay in this one and if

21

I
it can be transferred, it be by coordination, which we can't dOt

22

REPRESENTATIVE SAVAGE: ~ve can make the coordination

between Article III, we recommend that the language be kept

N I but included in Article III, under the appropriations --

25

MR. GUERRERO: I'm not sure I agree with that. I

----_--!

rI, r--

- - - - ~--- ----- - ---_._-_.._-~

94

! don't think it's an appropriations matter, I think it's a sort

Ii

2 II,i of fundamental --

:1
3 II

REPRESENTATIVE SAVAGE:

Let's be more specific, tell

II

4 II me precisely what you and Albert are talking about.

II

5 Iiii

REPRESENTATIVE THOMPSON: Let me tell you one that

6 came up. We passed an act in the General Assembly a couple

7 of years ago which says that any school book which has been

8 , declared surplus by a school district can be given to a private

Ii

9

I;
!I

institution.

That just scares the pants off of me.

I didn't

10 raise a whole lot of stink about it, but you know we've got a

11

",7.-
0:

lot of

segregation academies

in the State of Georgia and that

0

Q.

~,

12 'u" means that one of these counties where all the white kids go to

.~ ..

~..~ ~~ a private school, the school system can buy brand new books,

14

>-
l-

declare

them

immediately

surplus

and

give

them

to

a

segregation

V>

-<: r

15

.:> c>

academy.

That frightens me.

0:

::J

16 .~.. o

MR. GRIFFIN: Not only can be done but has been done

Z

17 :<ii allover the State.

18

REPRESENTATIVE THOMPSON: I mean it just scares the

19 ! pants off me, I'd like to see his prohibition against giving

20 property.

21

REPRESENTATIVE SAVAGE: Now I concur.

CHAIRMAN BELL: Oh, I concur too.

_, .''

REPRESENTATIVE SAVAGE: But that has nothing to do

with the appropriation of money.

MR. GUERRERO: It's an object of government,responsibilit'

- - - _ "-_.~._._----~----.~

_--.

of government.

PAGE 95

REPRESENTATIVE SAVAGE: Now wait a minute, I said I

J: agree with you. If you want to talk about property, let's ,i
,) put some language in--

5I

MR. HILL: ~~ybe appropriation isn't the right word

h see, maybe that's not the right term for this.

rmPRESENTATlVE SAVAGE: But that's exactly what the

language says, that's what Mildred and I have trouble with.

REPRESENTATIVE THOMPSON: Could we say Support of

10 Religious or Private Sects by the granting or giving of propert~1

REPRESENTATIVE SAVAGE: That would sound much

better, yes. Now you're talking about maybe some fundamental

philosophy but the way it's written here you're not, you're

talking about money taken from the public Treasury, directly
<:
t:
I~ ~ or indirectly. And I don't even have any problems with this
".:1
,.'
Ii, ~ specific language being put elsewhere and interestingly enough
7
I 7 ~, I think that the case that you just raised, this language

would prevent that.

i'I:

1l) iI
:1

MR. CARLYLE:

I'

Well, but that that he just raised is

20 I in Article III, Section VIII, Paragraph XII of the Constitution~

21

REPRESENTATIVE THOMPSON: So we have been violating

n !I the Constitution any way.

, ,'
.~-

MR. CARLYLE: Page 19, "Any provision of this

,, ....~T Paragraph to the contrary notwithstanding, the General AssemblYI
i
.> is authorized to provide by law for the donation or gratuitous J

96
p----- -------------------------------

1 I transfer of books and other materials
I

printed materials

2I

" So you would have to do something with this provision

3 as well as stating this.

4

REPRESENTATIVE THOMPSON: That's the one I was

5 thinking about.

6

MR. GUERRERO: Well it seems to me like there ought

7 to be a general establishment clause in the responsibilities

8 and obligations of government and the question that probably

9 carne up early in the Republic when there was a proposal to

10 donate some surplus Federal land to a church group and

',? 7_

11

t-
',:,"-'

President

Madison

vetoed

it

on

the

establishment

grounds,

and

~,

12 u'" it really needs to be in there. u.

1-
Z
l~ W
~

REPRESENTATIVE SAVAGE: I agree, that's a principle

14

>"
t;

and

not

an

appropriation

of

money.

<r:

15 ..:.>,

MR. GRIFFIN: How about putting the word "property"

<>:

::>

16

zco
w

in

there.

z0

-<

17 cr; c...,

~m.

GUERRERO:

That was the Iowa language or Texas

18 I language. They simply have it as the last clause, " . nor shall

19

'
I

property

belonging

to

the

State

be

appropriated

for

any

such

20 purposes."

21

MR. GRIFFIN: That's in Texas?

MR. GUERRERO: Yes.

23

REPRESENTATIVE SAVAGE: Now the interesting thing,

24 even in Albert's example here, this thing would not even

protect that example of the donation of books because that would

not be -- if you give it to a non -- page 19 that we have now, I

if you give it to a bona fide civic, educational or charitable

activity, that is not a sectarian institution.

HR. GUERRERO: Right, exactly. That's correct.

REPRESENTATIVE THOHPSON: If it's a church or a

parish school it would be prohibited.

7 Ii

REPRESENTATIVE SAVAGE: That's correct, but if it's

simply just a non-profit

C) I
REPRESENTATIVE THOMPSON: The dilemma I have with I

10

!
this type thing is that there are some really fine institutionsl

that could use this type of assistance, but it's not limited

to that, it's used for other purposes and things.

REPRESENTATIVE SAVAGE: I concur, but then the

\1 ,>... fascinating thing in the Constitution that we have today, the



1:

1';

.~\
~

type of

bill that you're

talking about

is Constitutionally

'.:">

1 C' '~

,:, granted.

z

17 :;

REPRESENTATIVE THOMPSON: That's true. I'd just

1~
like to see it eliminated, I'd like language to go into what
,I
1<) i!
we're doing which would prohibit it even if it does create

20
:1 a conflict with that. I don't mind creating a conflict.

2i
MR. CARLYLE: You do have the sort of complication,

presumably this sUbparagraph 8 was a subsequent amendment to

the '45 Constitution, so would be a later expression of the

intent of the people where if these were all to be enacted at

the same time they would be of equal dignity and the court might

rl~\'~l~~

fi-

----~ . - . - . _ - - _.. - - - - - - -

98

il

1 I!: be called upon then to decide whether this conflicts with

:1
2 I this, the' one that you're considering.

REPP~SENTATIVE SAVAGE: The fascinating thing is 4 you could have a bona fide non-profit educational institution, 5 which was segregationist, and receive the hooks under the

present Constitution, but if it were a sectarian segregationist'

academy it couldn't receive the books.

8

CHAIRMA..~ BELL: How do you figure that, John?

REPRESENTATIVE SAVAGE: Well just read the language

IU

in the Constitution.

z-_.'

I I r-

~
0

HR. GUERRERO:

You're quite right.

"

J)

0;
u

~ ...
Z
~.!!!!.!!. ~
~

same?

CHAI~mN BELL: Except that how is charitable the

14 >-

~

REPRESENTATIVE SAVAGE: The interesting thing, on

r
15 .~
~ page 7 of the Constitution we say that you can't give anything
::>
16 ~
~ to non-sectarian and then on page 19 you say that if it is

17 ~'" declared to be surplus to bona fide non-profit civic, educa-

18
tional organizations -- in other words, you can be a non-profit I

19
educational organization and still be a segregationist

20
institution, but if you're a church segregationist institution

21
you'd be prohibited from getting books under Paragraph X of

Article I, Section II.
-l-''
MR. GUERHERO: It seems like there are two separate
1, ..... 'r
quest.ions. One is the question of discrimination, of equal

protection; the other is a questi0I1.0j: separation of church and

.....t.-=--_ ~_.

- - - - - - _.- -,' .. --.-,..--------- -- -

.---- ._ .. -

--

PAGE

state. You're quite right about that, but if we were to try

to stop the books going to segregation academies then the

que~tion would be in our equal protection section, we need to

spell that out in a way that state resources cannot be used

to anything that discriminates. It's possible for us to do

that. On this one though it seems that the books cannot go to

the church school and I think church people would not be

opposed to that because there's a controversy right now in

l)i North Carolina over whether or not the State Department of

10 Education in North Carolina can regulate the curricula of

11

~
:'>"

church

operated

schools

and

the

churches

are

saying no because

o.

\~))/'"'., ~ f.~SVf('1

12

:
~.

they're

church,

and

I

think

that's

probably

right.

i I

I

I

REPRESENTATIVE SAVAGE: Under the present Constitutiof

"-._/

i

II ~ you could not give the books to the Catholic school which is

"1: I." .(:>) integrated but you could give them to the segregationist

~
1(, "'" o academy which is not integrated.

J

<>:

17 ~

MR. GUERRERO: That's correct.

18

REPRESENTATIVE SAVAGE: As long as it wasn't church

11 affiliated.

20 f
CHAIRMAN BELL: I'm not sure -- you didn't answer

21 my question. How do you read -- I think you're reading it in

Article XI, Paragraph 8 on page 19, you're saying it couldn't

.,..

,
:~

be given, if it were a church school?

2-+
REPRESENTATIVE SAVAGE: That's correct.

CHAIRMAN BELL: And how do you

Ir--__~--__--~~

"

REPRESENTATIVE SAVAGE:

1\

2 back to page --

1'.\(;1'; 100
1 I
All you've got to do is come

3

REPRESENTATIVE THOMPSON: She's saying she thinks

4 charitable --

5

CHAIRMAN BELL: I'm saying that charitable may very

6 well encompass it, it does in several ta::-~ laws, you see, and I I

7 don't know.

~

REPRESENTATIVE SAVAGE: I think you may have a point.

9

MR. GUERRERO: Well you might argue though right now

10 under the present language that "No money shall be taken

Czl

11

~
'0"

directly

or

indirectly Il,

you could argue that that would

"w-

12

'u"
u.

say

that

you

can't

use

surplus

books

to

go

to

church

operated

;:

3 !fI!!!!!E..
u -- I mean, you might not be successful in doing it, making the
V\

14 ,.... argument, but the purpose of putting in property is to make it V\

<.

1:

15

,~,
<.:J

explicit

that

that

cannot

be

used.

'":::J

16

<Xl
z.

'0"

REPRESENTATIVE SAVAGE: You've got that specific

Z

-0:

'" 17 <Xl

19 :, could draw that distinction.
20 I
MR. CARLYLE: I tend to agree with you that this is
21 not inconsistent with the paragraph we're considering, but
,)
both of the limitations would apply.
'3
REPRESENTATIVE SAVAGE: You see, you could have a

charitable organization that was either religious or not.

25
1. _ _....

CHAIRMAN BELL: Yes.

_ _ . _ _ ~ .

~~.

REPRESENTATIVE THOHPSON:

l' .\GE 101 _ __ ----, ..... .... ._-- - .... - .._--- ._-.. --

I

Let me ask you

!

CHAIRMAN BELL: If we -- go ahead.

3

REPRESENTATIVE SAVAGE: But if it were a charitable

.: organization and it were religious, it could not receive the

books.

(,

REPRESENTATIVE THOMPSON: There's something else

we're doing in this State. We're giving grants to private

~ institutions at the college level, I think it's $400 per

Y : year per student.

10

MR. GRIFFIN: We don't give them to the institution,

~J

z

11 ~ we give it to the student because it would violate the

o

o.

"'

~:;Wr'''' ~12

'"
u

Constitution

to

give

it

to

the

institution.

REPRESENTATIVE SAVAGE: Theoretically we're giving

--

].1:: it to the student.

1 .:'1

MR. GRIFFIN: I think the money follows the student,

\.'1

...

~

i /,

..a)
7.,

it

doesn't

go

to

the

college.

W

7-

<:

71
J

'c"o

REPRESENTATIVE THOMPSON: The only thing I'm going

Ix by is what technicality is it, is what we're doing here going

lY to affect that?

20

MR. GRIFFIN: He can spend that money anywhere he

) I wants to, at Georgia Tech or at Wesleyan College.

))
REPRESENTATIVE SAVAGE: 'l'hat' s the way we're getting

) ~:-

-.,,

around --

...."l,-'

HR. HILL: What if we change Paragraph X and say

Aid to Churches, Sects Forbidden, as opposed to appropriation

[1------
,I ,I and then just have -- add the property language.

PACE 102
You see if

you said appropriations, that implies money as opposed to

property, right? If you were going to add the property

language, you would have to change the title on the paragraph.

MR. GUERRERO: Yeah, I see what you mean.

CHAIRMAN BELL: If we include -- if we leave

II Paragraph X in Section II, that will be the only restriction

,~ "I on one of the three branches of government that we have

ji

9

II
I

specifically

put

into

Section

II.

The rest of our sections

,0
deal with government in general and here -- I'm getting back

',", Z

f-
a:
.a0...

to

the

point

that

was

made

earlier

--

here

we

are

imposing

a

12 .u'.". specific restriction on the legislature

I-
Z
tll~. W
~

MR. CARLYLE: Well it does relate to a personal

~ 4 >~. right whereas the other legislative provisions are not so



:I:

i5

.0
':'-">"

closely

related

to

a

fundamental

right.

It seems like there is

6

<Xl
Zu,
c,

that distinction,

now whether or

not

--

Z

t7

<a:
lXl

MR. HILL: It's the right of the person not to have

18
his money used for purposes he doesn't agree with.
19
MR. GUERRERO: That's correct.
20
MR. HILL: And so it does kind of relate to the
2:
rights of the people in terms of how the protection is used.
J)
CHAIRMAN DELL: ~'Jell now that's a good point, in
2.1
which case maybe it should be in Section I.
2\
REPRESENTATIVE SAVAGE: But we should clean up the

~5
language, there shall be separation in church and state distinct

PAGE 103

.... -._._~---_._--------~.,

,

and forever in Georgia and that no money or property of the

State shall ever be used for -- directly or indirectly in the

aid of any church, sect, or denomination of religionists or

of any sectarian institution. It should be in that kind of

I context.
I:
MR. HILL: Maybe we could call it separation of

7 :1 church and state in this section. I don't know that we have
s 1 another provision --
q
REPRESENTATIVE SAVAGE: If you're going to with

IU
structure of government, it would be appropriate to name it
J
z.
1 I ~.
':"' separation of church and state.

12 ~

~@/j-- ' ,,~'\ ~ 'V d
. O;J

~
~ c . ., , , , , .

I

-

14'

CHAIRMAN BELL: I agree. REPRESENTATIVE SAVAGE: And that's what we really

~ want to do, if we're going to continue the reference to that,
<l T
I S .~
.. we'll clean it up and make it appropriate for where it is

'" ; (" r~

az written but as it is written it is entirely inappropriate in
~

Paragraph x.

IS
MR. GUERRERO: What's wrong with leaving it -- I

!y
I mean appropriations to me has a wider connotation than just

20
,: money. I mean in Texas, in fact, they call it Appropriations

21
, for Sectarian Purposes, that's the head of their section in

22
Texas.

24
there?

REPRESENTATIVE SAVAGE: What section is it under

MR. GUERRERO: One called Appropriation for Sectarian

-. !
Purposes and they say "No money . nor shall property ... "

REPRESENTATIVE SAVAGE: Absolutely. I'm in complete I

agreement, it's an appropriation for sectarian purposes. If we

were going to follow Texas, we would put it over in the

Legislative Article under appropriation of money. You're

I) exactly right.

MR. CARLYLE: But all of the money that the State has!

is not just appropriated, there are funds from other sources

that aren't subject to the appropriation. For instance, the

o motor fuel tax.

1 ;"z:.
'o"

MR. GUERRERO: Oh, okay.

"w-

'2 :

MR. CARLYLE: Well, that's automatically appropriated,

~

I-

,~,,_~

Zw

~ but there are some other things, fees and so on, that are

i4

,.. ~

generated

and

used

that

are

State

money

but

are

not

appropriate~,

r

15

s o ,~
l?

it

seems

a

broader

--

"::J

: 6 ~.

w
c.

MR. HILL: And land, if land which is State owned

were to be given to some, you know, other party, that wouldn't I

8,
be through an appropriation I don't believe, it would just be

19

ii
I

through

a

bilL

20

MR. CARLYLE: No, but his language as to property

would cover that. ,,
MR. HILL: If you put in broad language prohibiting

separation of church and state, you may be opening an awful

lot of lawsuits though, as opposed to -- you know, it's kind

of tied down to what it is that you are prohibiting. But it

PAGE 105
- - - - .. ~--_._------------~
would just be the title, Separation of Church and State, but

then the same language basically.

-'

MR. GUERRERO: Okay, I'll go with that.

1

Cl~IRMAN BELL: Could you change the language maybe

!i
I to say " . public monies or properties "

(,:

"

REPRESENTATIVE SAVAGE: What's wrong with having it--!

I

7 if we .../ant to continue that -- with having a Paragraph X and

just title it Separation of Church and State.

') "
MR. GUEHRERO: Yeah.

10

MR. GRIFFIN: Haven't we got that somewhere else?

o,.
"' 12 :
(@)r""" ~

-- MR. GUERRERO: It's under exercise
CHAIRMAN BELL: And leave it the way it is? MR. GUERRERO: And add the " nor shall property

'----.~
I-l ,_
belonging to the State be appropriated for such purposes."
.'
1:
i ~ ~I
~, Can I put that in the form of a motion then?

I (, '~

~

MR. CARLYLE: I have a suggestion, something like

7

1,; Xl
IINo public money or public property shall ever be used, directly

iii
or indirectly, in aid of "

19
HR. GUERRERO: Okay.

2<J
MR. GRIFFIN: That's all right.
~.
REPRESENTATIVE THOMPSON: You like the word "aid"

or "in support"?

MR. CARLYLE: Well I was ~st using the language here,

it doesn't matter to me.

MR. HILL: "Support" maybe.

1 - ; - - - - - - - - - - - ~~ --~-~--

--~

106

IIii
:i

MR. GRIFFIN: Sometimes you wouldn't be spending it,

Ii

'" ii you' d be using it.
II
I; REPRESENTATIVE SAVAGE: Support is better than aid.

I

CHAIRMAN BELL: How did that come out now? "No

i

~i i!lI public "

MR. HILL: "No public money or property shall ever
, ii!
, be used, directly or indirectly, in support of any church,

sect, or denomination of religionists, or of any sectarian
9 i! institution. "

l)

REPRESENTATIVE SAVAGE: And title it "Separation of

11

,"z.
"0'

Church

and

State. n

~

12

"-
.u..

MR. GRIFFIN: There is a suit in tvashington, D. C.

....

.,,!!!.

2
IoU

~ on whether or not the Pope could speak on public property.

4 >l--

MR. CARLYLE: Pardon?

'<

1:

i5 <!
~c..:':

MR. GRIFFIN: There's a suit pending in Washington,

:>

16

(Xl
,z..
C\

D.

C.

as

to whether or not

the

Pope

can

speak

in

a

public

7.

(7

<
:>' ,.0

place.

18
REPRESENTATIVE THOMPSON: I thought that was decided.

19
~m. GUERRERO: It was, he can speak.

20

MR. GRIFFIN: He can speak?

21

MR. GUERRERO: Yes.

",
HR. HILL: "No pUblic money or public property shall

'". ,
ever be used, directly or indirectly, in support of any......

24
CHAIRMAN BELL: Did you keep the rest of that, " ...

,: sect, or denomination of religionists, or of any sectarian

--'-- . ~ . _ - - - ~ - ~ _ . _ - - - - - - - - _ . _ .

-_._ --

.. - -- .-.~

institution. II

MR. HILL: Yes. REPRESENTATIVE SAVAGE:

PAGE 107
l
1
Now the interesting thing, I I

think, is you could even, under the present language, if

I

I
someone wanted to, could challenge that $400 we give the student

I
:) at Emory University because that is indirectly, frankly, aiding!

il :: Emory University. And lim not saying the language we're writincg

, 1 the language we're writing is really no different from what

S we have. I'm surprised that somebody hasn't challenged that

(, as an indirect aid to a sectarian institution.

10

MR. CARLYLE: But there is a subsequent Constitutional

: I amendment that authorizes loans, scholarships and grants to

o

,.c

1'",
I ~

'".J." citizens

of

the

State

for

educational

purposes,

which would

cover that.

REPRESENTATIVE SAVAGE: To sectarian institutions?

MR. CARLYLE: It says " to citizens for educational

I" '~", purposes. II

II ~

REPRESENTATIVE SAVAGE:

Isn't that money really

,') , given directly to Emory?

1':) "

MR. CARLYLE: I think that was the discussion awhile

ago --

REPRESENTATIVE THOMPSON: An application is made
i -,
through Emory, they've got the application forms and they

process the papers and so on but it goes to the individuals I ,, ~.' j , think.

REPRESENTATIVE SAVAGE: The point I'm making is I
I' I.

I):,{' . 108
IT
III don't think the individual ever puts their hands on the $400
, II grant.

\I

CHAIRMAN BELL: John, they do, it's sent directly to

f III' the student. I I

REPRESENTATIVE SAVAGE: Are you sure about that?

.) What do they do with the $400 then, take it and apply it to

their tuition?

CHAIRMAN BELL: If they want to.

9

REPRESENTATIVE SAVAGE: What if they don't want to

o use the $00, what if they want to drop out at that time?

zL?

'1 af-:

CHAIRMAN BELL: Well I'm not sure about that.

o

c..

w

12 ~ ....

MR. GRIFFIN: In South Carolina they can get some that

1-'
Z
n~ ~ they don't give to the college, I believe there is a per capita

'"

'4

>-
f-

allowance

in

South

Carolina of

twelve

or

thirteen

hundred

'<

J:

'5 .!) dollars and this is frequently more than the tuition requires,

L?

'::">

16

~
wa

so

it

means

the

student

has

a

little

money

to

spend

on

his

z



17 ~ food.

18

CHAIRMAN BELL: Georgia's is called a tuition grant

19 Ii but it's not really a tuition grant because they are free to 20 use it -- they can use it for room and board, they can use it

21 for books, they can use it for whatever they want to. It is a

22 grant to the student.

,'

~.)

REPRESENTATIVE THOMPSON: You know, this is justified

in the State because it costs the State a heck of a lot more

in State institutions to send a student, and I remember when

['
we were doing some of that legislation.

I' '\(,'I", 109
~-i
I don't think anyone

disagreed with the concept.

REPRESENTATIVE SAVAGE: I'm very much in favor of it,

I just wondered --

MR. CARLYLE: Well given that Constitutional

f> provision, I don't see that there is a Constitutional conflict

in that.

CHAIRPillN BELL: That raises a question in my mind.

l) If we are redoing Article I, shouldn't we include in Article

l\l I anything that's presently there in the form of amendments?

! J Is what we're going to end up with going tom a Constitution

j. u where we have just redone the Articles and we're still going
(/~~lSVL!j~),)r'.", ~ to have 95 amendrnents?

~'--_///
~-~

1.~
V')
<J:

REPRESEN'l'ATIVE THOMPSON: I don't think Article I

j,

., .
;:

is

the

one

where

all

the

amendments

come

in

anyway.

~~

I.Ll

l' ;.,

CHAIRl-1AN BELL: I'm sorry, I missed that.

.'

,, - .;

REPRESENTATIVE THOMPSON: I don't think Article I is

the Article that gets amended, it's the other Articles that get

J" . amended. I don't know how many amendments there are to Article

il I, but there aren't that many and I don't think when we do this

it will induce amendments.

REPRf.;SENTATIVE SAVAGE: Mildred has raised a good
,,
.;;..'1 I question. Will you please do research for us, Doug, before our
,,
~t ] next meeting to see if there are any pending Constitutional
''; amendments to Article I in the legislative process, would you

110

pick them up for us?

MR. CARLYLE: Well there's no way I can tell except

the amendments that are already in it, you know, have been put

in.

REPRESENTATIVE SAVAGE: Those are the ones I'm

I) talking about. Are there any pending?

MR. CARLYLE: I don't know.

REPI~SENTATlVE SAVAGE: I think we need to know that.

9

MR. HILL: You see, all of these -- aren't these

) exceptions to the Gratuities provision?

,-
Ct;
u

MR CARLYLE: Right. Why did you raise that question?

"w-

2~

REPRESENTATIVE SAVAGE: Wasn't that the issue you

~

IZ _'.I:!!.~ w
~ were addressing?

4 >I-

CHAIRMAN BELL: You had just said, you had just

,~

<l

:I-

S

.:>
,?

brought

out

that

there

is

an

amendment

that

<.<

;;,

16 'z..".. CI

MR. CARLYLE: Well in the Article that deals with

Z

.~

l7

c:
'"

retirement

and

deals

with

scholarships,

which

is

Article

X,

Iii Section II, Paragraph I on page 86, provides for educational
19 i
scholarships and grants. All I'm saying is that authorizes
20
the $400 or whatever the educational grant is that \-Jas being

21 discussed.

2.'.
CHAIRMAN BELL: I '1'1 sorry, I thought you \vere

talking about an amendment, this is not an amendment, is it?

~ffi. CARLYLE: Well it's not any more, but it occurred

subsequent to this general -- it was an amendment and occurred
'.L __

,'I
sUbsequent to this paragraph we're considering.

t',\GE 111

CHAIRMAN BELL: Oh, I see the point. I was

concerned by the fact that there were some amendments out there

and we were going to work around those amendments and I

thought if they had to do with our Article, we ought to

incorporate them in the Article.

REPRESENTATIVE SAVAGE: Mildred, my suggestion still

might have some validity. We at least ought to check and see

if there are any pending amendments to Article I in the

II) legislative process already. The fascinating thing, if I were "z
1: ; a Constitutional lawyer, I would take the phrase on page 86 o d.
,,\.'2yY1i.+ I.~ cr " not withstanding any other provision under this Constitution
~~~)) ... :... . " and then I would come back to Paragraph X, Appropriations

.- to Sectarian Institutions and then I would get some data where

I' ~ the $400 we have given the student who is at Emory had been

('IC:

,)

il)

,
Q

taken

and

paid

as

tuition,

which

is

a

direct

--

indirect

grant

"
17 ~ to that institution and I think I'd be on some Constitutional

IK 'i ground regarding that case. And I am just simply pointing out

19 that I think that potential legal problem is built into this

document or is already present in this document and I think we .,1 have been fortunate that no one has challenged it.

CHAIRMAN BELL: Are you sure nobody has?

REPRESENTATIVE SAVAGB: Nobody has to my knowledge.

Now I do know, for example, and this wouldm part of my

presentation to the court, I would get the letter that was being

PAC;E 112
! r~~n~--~utbY a~;~~e s::ta~~-an i~-~~~tut~:~~- to legislators .... _----,

II encouraging them to appropriate state money for this $400

, I grant and the dinners that they had paid for to encourage

''II legislators to appropriate $400 that was not going to be

II
", II directly given to them, but indirectly given to them and I'd

il

I)

I:
Ii

build a

pretty strong

case.

7 II

CHAIRMAN BELL: Well, there are certainly some

!!

,~

,I Ii

Federal,

some persuasive

Federal cases

to

the

effect that

if

<} IIiI'l it is given directly to the student it's not -- there may be

10 no State cases.

<.'l

Z

1 ,::
'o"

REPRESENTATIVE SAVAGE: The private sectarian

."..-.

) 2 .~.. institutions, as I state, have been very active in lobbying

~
Z
"".'!.!'. ~ for continuing this $400.
'"

14 >-
t;

MR. HILL: Well are you suggesting any change in the

<

J:

15 .0 language here?

<.'l

0::

::>

16 ~
wo

REPRESENTATIVE SAVAGE: I'm just suggesting a

z



17
1,

1::(. .xl

Constitutional

problem

if

someone

ever

decides

to

pursue

it.

18

MR. CARLYLE: I would still tend to think that since I

19

II
11
il

this

provision

we

just

read

is

later

than

the

one

that

we're

20

"
I

considering

now

--

21

REPRESENTATIVE SAVAGE: The fascinating thing, the

')')

1 I

later

provision

that you're

talking about

starts

off

in

the

first sentence, "Notwithstanding any other provision of this 2-1 Constitution . "

CHAIRMAN BELL: Well, John, how would you get around

PAGE 113

MR. CARLYLE: That's right, that's why that would

CHAIRMAN BELL: , ,! other provision .... "?

-- that language "Notwithstanding anYI
I
I

REPRESENTATIVE SAVAGE: Well since you can't, then I

would say there are some other provisions of this Constitution

that are withstanding, is what my argument would be.

7i

CHAIRMAN BELL: Of course, that's in Article X and

Article X is not --
MR. CARLYLE: It will be submitted, it was one of the i
J()
things -- one of the Articles rejected, not ratified, the
"z

CHAIRMAN BELL: It will be submitted at the same

time this one is?

14 >-
f-
~
~
1:

MR. CARLYLE: Yes.

15 '" 'Cl

CHAIRMAN BELL: In other words, if they're approved,

""::>

1() ~

Q they'll be approved simultaneously?

z.

<l

17 %

REPRESENTATIVE SAVAGE: ~ihich Articles will be

IS
submitted this next time?

MR. HILL: I, II, III, IV, V and X.
20 !
REPRESENTATIVE SAVAGE: I, II, III, IV, V and X.
21
CHAIRNAN BELL: If X is going to be submitted at the
))
same time, I would say that that would take precedence, the
23
notwithstanding would eliminate the problem, don't you think so?

MR. CARLYLE: I would think so.

rr----

114 -,

i,iI hJ' .story sort 0 f argument, to leave the language as it J'.S and

1 :IIi just tack on property, rather than changing the whole thing?

I
CHAIRMAN BELL: I don't think that directs itself to
I

4 this problem, does it?

REPRESENTATIVE SAVAGE: It doesn't really.

<1

CHAIRMAN BELL: It's the "directly or indirectly"

that's bothering John.

REPRESENTATIVE SAVAGE: My point is that when you

appropriate $400 that goes directly for tuition to a sectarian I
;0
institution, you have directly or indirectly appropriated money!
z~?
in this State to that sectarian instit\ltion.

MR. CARLYLE: Well one of the reasons why there is
~
Z
'll'II.D U.J
~ that "Notwithstanding any other provisions .... ", there may be

~4

<>-
~.

several

r

sections

that

that

amendment

is

intended

to

get

around

15

.:J
":'"0

the

prohibitions

of

and

that's

probably

intended

to

get

around,

16 ~o the prohibition against gratuities and they probably didn't

Z

<0:

'/ g

think of it as applying to this as well, although I think it

,8
might well apply to it. And so that in effect, you may be able

19
to -- but still, this talks about grants to the student,

20
educational grants to students, I believe.

21
CHAIRMAN BELL: Well the $400 we're talking about is

a grant to students.
23
MR. CARLYLE: " to citizens of this State for
24
educational purposes "

REPRESENTATIVE SAVAGE: I just think we've been very

PAGE 115
_. --_._--"----_..-----,

fortunate we haven't ever tested that.

_. ,

MR. CARLYLE: I don't think it's -- it's not a --

REPRESENTATIVE SAVAGE: If we've got some actual law,

hopefully that would be persuasive on this.

CHAIRMAN BELL: I would agree with you if we left

this in Article I and Article I is going to be changed,

subsequent to the enactment of this.

REPRESENTATIVE SAVAGE: Well the fascinating thing
9!
is with this appropriation being put here in the Origin and

Structure of Government is kind of one of the fundamental

11 ~

,>:
o

rights,

it

gives

it more

persuasive

--

I

think

it would

help

o.

my case in the courts quite frankly, rather than being in

appropriations where it should be.

CHAIRMAN BELL: Well I don't want to belabor the

j 5 ,~

,'",, point, but if you enact these two provisions simultaneously,

j(,

",~
Lu,
0

"No

public

money

or

public

property

shall

ever

be

used,

directly

L



U

C(.
'" or indirectly . " and at the same time you enact the

I i

JS
provision saying "Notwithstanding any other provision "

I

I') ii

I

'i the Constitution permits this. It seems to me the notwithstandt

20 I
ing, clearly would cover this.

2i :i
MR. CARLYLE: Is this why you had raised --

2::
CHAIRMAN BELL: If this were later in time, then I

think there would be a very strong argument that IINotwithstandi~g
24 I
any other provisions . II couldn't apply because this ,,,,as

enacted subsequent to that.

1,----------- -------------- -------

II
I'i
2 i point.

REPRESENTATIVE SAVAGE:

I'AI,E 116 I don't understand that

CHAIRMAN BELL: If Article X were not going to be

3 i",
4 ji adopted at the same time

5 I!

REPRESENTATIVE SAVAGE:

It's going to be adopted at

I!

6 II the same time.

II

II

., II
I Ii

CHAI~~ BELL:

If it had preceded what we are doing

8 J here, then to come in with this flat prohibition subsequent to

9 the enactment of the provision that says "Notwithstanding any

10 other provision . ", I think you'd have a very strong argument

l:l

Z

1]

;::
'0"

if

you

went

into court and said yes,

but that means notwith-

.0.,

12

'x"
J

standing

any

other

existing

provision.

You could argue that,

~
;::

Z

..~

w <)

I'd

be

willing

to

argue

that.

But if you enact them at the

V)

14

>t;;

same

time

<r-

15 ~

REPRESENTATIVE SAVAGE: But you see, I'd almost take

l:l cr:

::>

16

!Xl

:l w

the

180

degrees

argument

there

saying

that

once

you

come

to

C

Z

<

17 c'o' the Article I setting up the Rights of Persons and the Origin

18 and Structure of Government and you include anything under

19 Section I and II as the basic, overall concept of how you are

going to have government structured and its origins and rights 21 in this state, and in the Origin and Structure of Government,

you have made that prohibition to sectarian institutions very
23 clearly, very forcefully, in very precise language, then you
I,
24 II
can't come over and violate that prohibition that you have given

in the basic origin and structure of government, and I would say

L

_ ~.

- - l f'J\GF: 117 ----~-----
it being included before would be more persuasive on my behalf

than your behalf.

CHAIRMAN BELL: John, I think you would make a very
I~
4 ' good lawyer.

MR. CARLYLE: He is.

CHAIRMAN BELL: Are you a lawyer?

7

REPRESENTATIVE SAVAGE: I went back to Emory Law

School but I have not passed the bar nor practiced law.

9

MR. CARLYLE: Let me say, I don't know what the preci$e

10 language is of Article X that was submitted and is to be
(J
z
submitted and I think there are some changes since its last

I
submission, so there may not be that "Notwithstanding any other
provl..sl..on "

REPRESENTATIVE THOMPSON: I just don't think we ought

1~ ,~
~ to try to do the whole thing, I think we ought to just look at

J() c~ Article I and if we think that prohibition needs to be in there, z. j 7 :;
we ought to put it in and let the Select Committee worry about

18
the conflict that that creates in Article X.

J9
CHAIRMAN BELL: Do we have a motion?

20
MR. GUERRERO: I move that it be the suggestion that

2'
I was made by the staff.
22 II
MR. GRIFFIN:

What title would there be?

23
MR. GUERRERO: Separation of Church and State.

24
REPRESENTATIVE SAVAGE: And interestingly enough, that

: even makes my case stronger.

L~

.. _...

._.

-.------------.-

--.-.------~------

PACE 118

MR. GUERRERO: Well it depends on how the courts

2 interpret that. Madiyn O'Hare

3

MR. HILL: It's just up to the court.

4

REPRESENTATIVE SAVAGE: When you broaden t.he class

5 to separation of church and state and then the only thing you

6 ! deal with is appropriation of money directly and indirectly to

'] sectarian institutions, I would point out that was precisely

K what you were talking about in that broad and distinct --

9

MR. HILL: And it would be up to the judge to decide

JO whether he agrees with you. We can't answer that question.

Lz?
It ;:

REPRESENTATIVE SAVAGE: But you are strengthening my 1

o
a.
w
12 ~ case when you change it to my suggestion of Separation of

u.

I-

. .'..!!!~'!'!-

Z
:W;:

Church

and

State

and

then

only

deal

with

the

appropriation

J4 ~ directly or indirectly.
'-"<
J:
MR. GUERRERO: I would move that we entitle the
'"L"
:;;J
'6 ~ Section, "Separation of Church and State." and that the languag~ Q z <
17 :; read --

18

MR. CARLYLE: "No public money or public property

19 shall ever be used, directly or indirectly, in support of any

20 churct, sect, or denomination of religionists, or of any
.'J 'I sectarian institution."

~ ~-

REPRESENTATIVE THO~WSON: The only problem I have

_~ .,' with denominating it like that, that also would cover legisla-

24 tion regulating churches, you know, separation of church and

25 ! state. There ought to be a prohibition that we cannot regulate

churches.
,I
HR. GUERRERO:

---P-A-GE--1-1-9--,
I
Yeah, that's a good point.

REPRESENTATIVE THOMPSON: Or sectarian institutions,

if that's going to be the general heading.

I

"

MR. GRIFFIN: What about the earlier one on religious

freedom?

7

REPRESENTATIVE THOMPSON: That's in Article I.

8

MR. CARLYLE: and tI no human authority should, in

9 any case, control or interfere with such right of conscience. 1I

MR. GRIFFIN: Paragraph III of Section I deals

CJ
z.

II : with religious opinions.

u.

w

i~: ~

/..:;'>'- Vd~\

~

MR. HILL: But now wait a second, oh, my -- could thi

(~~9)!~~""D ~ provision as reworded now prohibit the use of an auditori~~

"'--_/

I

14

>~~

for

a

Christmas

assembly

in

a

school?

r

J'

15 ~
<9

MR. GUERRERO: Well Madelyn O'Hare argued that the

,).

::.J

1(\

'Z"
,oW CI

use

of

the

Hall

in

Hashington

was

the

use

of

property

for

Z

'C:

17 ''"" religious purposes and a number of people

I would argue thati

IS
I! that's not that because it's simply a question of an exercise

19 of First 1\mendment Rights and it is used for that purpose i' ;":
20 I commonly. The same thing would happen in an auditorium.

21

MR. HILL: In the public school?

.,

MR. GUERRERO: Yeah.

-,-.''

MR. CARLYLE: What if you were to change the

language to say tI shall ever be granted, indirectly or directly,

to any . tI?

PAGE 120

MR. GUERRERO: Well the Texas language says

2 "appropriated".

3

CHAIRMAN BELL: That gets more back to the general

1 sense of what it was before we started tightening -- neatening

)
up the language, doesn't it?

6 'f
'i

~1R. GUERRERO: The Texas language just says " . nor

7(
; shall property belonging to the State be appropriated for any

such purposes.", which sort of narrows it a little bit.

<) i

\

MR. CARLYLE: I think II granted II would be somewhat

10 .., broader than "appropriated l1 , especially since --

:L:

11 ....
'o"

REPRESENTATIVE SAVAGE: "Granted" would be broader,

Q.

w

12

~
-.

you

do

have

grants

without

appropriations.

v,'~.'

MR. CARLYLE: " . s hall ever be granted, directly or

14

.>..-.
'<

indirectly,

to .. "

:I:

15 .:J

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MR. GUE~~RO: Okay, that sounds fine.

'":=J

16 ~

w
o z.

MR. CARLYLE: I'm not a member of the committee, I'm



17 ~

just suggesting language.

18 ,

"

CHAIR~N BELL: You also have appropriations without

19
granting something.

20
REPRESENTATIVr: THOMPSON: What about "given"?

:?1
ClmIRMAN BELL: But I'm thinking about appropriation,
,,
and I don't know which sense we're using the term, you

appropriate something to your own use, you appropriate somethini
24
to the use of the church, it's not the same thing as appropriat~ng

money or appropriating property. So we've got the problem of

~ __

PAGE ~_--Ul_---,

which sense we're using it. I mean, we're not concerned here

with just granting it because then, can we lease it for a

dollar a year, can we --

-:+ I

MR. CARLYLE: But on the other hand, it sounded like

you wanted to allow public property to be used, but not

donated.

REPRESENTATIVE SAVAGE: In a legitimate use such as

8 I the Catholic Church having its commencement ceremonies in a

9 public auditorium, municipal auditorium.

]0

REPRESENTATIVE THOMPSON: But when they get the

~,

7-
1J ~ municipal auditorium for that purpose, don't they pay money

:.L,

for the use of the institution?

REPRESENTATIVE SAVAGE: They might or might not.

HR. GUERRERO: vlell they would as long as other
T
1'; .:>
~ people are paying money, they would pay money, that's the
=,
1:; r.o
c principle -- if it's a free use of a school auditorium then
:z:
1 7 ;<
churches can use them as long as it is the same terms as

anybody else. I think that's the way the decision went .
.' I CHAIIDIJAN BELL: I'd rather see the word "appropriated
20
MR. HILL: How about " appropriated to the use
21
of .. II?

REPRESENTATIVE THOMPSON: I'm not afraid of the

word "appropriated", I don't think it is limited to appropriatiIlg
I
money.

CHAIRHAlJ BELL:

f!-- -------------

122 -1

IIII seems to me you've got to give it away before you violate the

) il Constitution, which is a bit too narrow, I think. You can
II
i
J Ii appropriate it to the use of an organization without giving it

4 IIii to them, can't you?

5 I'II II

MR. GUERRERO: How would it read if we said

"
6 i "appropriated" instead of "granted"?

II

"7 !: II

MR. CARLYLE: That would probably be all right.

x Ii ~i ,"

MR. LITCHFIELD: EeL:; any thought been given to

broadening the language to more correspond to that found in

10 the Federal Constitution?

z"
11 Io0:
Q.
~,
12 ~

MR. GUERRERO: What would that be? MR. LITCHFIELD: Something like, you know, "The St.':ite'

I-
Z
~!E..w
~ shall take no action expecting the establishment of religion

14

<..
I-

or

:r

prohibiting

the

exercise

thereof."

There's a tremendous

15

.:>
"0:
=>

amount

of

case

law

covering

that

at

the

Federal

level,

we're

16

.~..
Czl

getting

down

to

precise,

whether

we

want

to

grant

or

,
appropriate

..:

)7 :ii property, money, auditoriums.

REPRESENTATIVE SAVAGE: That would clear up the

19 '
problem I have raised on all the money going to these sectarian!

20
institutions.

Ji

MR. LITCHFIELD: I mean, I think that's pretty clear

or it is now --

REPRESENTATIVE SAVAGE: And that is -- should be
2-1. '
under Article I, that type of language.
25
MR. LITCHFIELD: Well it could either follow the

sentence in Paragraph II of Section I or be over here if you

want it over here.

REPRESENTATIVE SAVAGE: And if we talked about

appropriations and \V'e put that in the Legislative Act, as it

is written under Paragraph X, I would, like you, Mildred, I

h

I. I

wouldn't

have

any

problems

with

it

at

all.

CHAIRMAN BELL: ~vell, do we have a motion?

REPRESENTATIVE SAVAGE: If we're going to deal in

this Section with language, we should pick up some of the

language in the national Constitution and delineate principles

;
o

in

relationship

to

origin

and

structure

of

government

and

then

'"-

1,,9Y~\

I .-~

~"~'
~

if

we're

going

to

deal

specifically

I felt and I think I

\(~~))rE!~'~"~ agree with our chairwoman here that if we're going to talk

"~/

I

]1 ;..

vc', about appropriations as Albert would like for us to prohibit

appropriations, and rm in agreement with this, we ought to

make that recommendation that it be included, the present

language kind of altered, that it ought to be included in

MR. LITCHFIELD: I don't think you need anything on

appropriations with that language.

MR. GUERRERO: Yeah.

REPRESENTA'l'IVE SAVAGE: But we ought to put it then

in Article III.

MR. LITCHFIELD: I don't 'think it needs to be in
2,1 !,
, Article III, I think that language prohibits any action taken

by the State to establish a religion, and let it go at that.

-_.__ .- ~-------------------_.

p:\(; '" 124

ii

CHAIRMAN BELL:

!I

1 II Section I or Section II?

II

) Ii

MR. LITCHFIELD:

Are you suggesting that for I think it could be appropriate after

"
II
1 i1 the sentence that now exists in Paragraph II of Section I and
I:

~ Ii then delete this paragraph entirely or put that paragraph over

Ii

1

!
i

here.

I don't think that's a significant problem, you know.

7I
i

MR. GUERRERO: Why don't we suggest that then as

I

~ , a conditional again. Let's put that in as the language there

!: ') :: and then say that we think it more properly belongs in the

10 second part of IIFreedom of Conscience. II

"";:

;} ~

MR. LITCHFIELD: Just general language that tracks

o
0-
,~

2 ~ what the Federal Constitution has.

"-

i-'

"'(I'IID 7.

MR. HILL: I really like your suggestion and your

i4 ~ suggestion, it's just because of the body -- that's not binding,
<i. T-
i5 '~on the State court in terms of interpretation but if would i.:J '"::>
16 '~" help us, if we had the exact same language all of a sudden we a Z 7 i would be able to tap into the body of case law that has been

18 developed.

19

MR. LITCHFIELD: Once again mine is just a suggestion,

20 'but we are by no means locked in to antiquated language. I

mean this could have been in here since God knows when. If

1> cleaner, more concise language of a general nature is better,

maybe you want precise language -- I don't make a motion or

anything, I just throw that out.

CHAI~UU~ BELL: You made one awhile ago that was never

seconded. MR. CARLYLE:

~ ~ ~ P.A~ GE J,Z 5 _._,
I I
I I
The State is going to be bound by that I

anyway, that's the basis on which State laws granting tuition, I

tax credits and all those kinds of things have been thro\~

out, as I understand it.

MR. LITCHFIELD: That's right. This language is

going to be taken and read in tune with this anyway. What we

say is always going to be governed by that.

MR. CARLYLE: Well, all I'm saying is, we're going I') to be bound by that, if you want to restate that in our

11 3 Constitution we can, the courts won't be bound by the Federal

'-

~~Y4d'

]=

"n':
~

construction of

that,

does

this

do

anything

additional

that

~Lj')\,. needs to be done or has it been doing anything additional?

MR. LITCHFIELD: No, I was saying it's a suggestion

to make the language more general than trying to figure out
: (I .~
" whether to use the word "appropriated", "granted", "given",
1
<
)! ~ "property~ "money", so on and so forth. I think the language

i is a little more general than that and does the same thing.
I')
Cl~IRMAN BELL: But the point you're making is that

we don't really need any of it, if I understand you correctly,

because it's in the Federal Constitution and it's binding on " the State.

MR. CARLYLE: Well that particular Section is, now

whether this does anything additional, that seems to be the

question the committee should decide on.

CHAIRMAN BELL: I don't see how it does anything,

does it do anything in addition to that?

II

REPRESENTATIVE SAVAGE: At least there has certainly

'I

l ! been no case law that anyone is avlare of that this has done

anything in the State of Georgia, either accomplishing what

Albert would like to see accomplished or either in the

reservation I have that I think a potential lawsuit could exist

with the language as it is presently written. I think we

would have a better Constitution to track that type of languagel

CHAIRMAN BELL: But you want to put it in the State

l':'

Z

'1 ~ Constitution?

o

0-

w

2~

MR. GUERRERO:

u.

Well there are a number of areas in

~.
L
~ '''''.!!E. l.lJ which the State Constitution really is a definition of the

'4 : rights between vis-a-vis the State and the Federal government,

<l 1:

:.'

-::>
l."

you

know,

that's

another

area.

We don't have to have it but

,.~:

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~
w

I

think

an establishment clause

ought

to

be

in

here,

I

think

C'

,.
I ,:0 it should be.

'I '0 o

REPRESENTATIVE SAVAGE: Interestingly enough, Mildred~

19

:i 'I your

point

is

very valid,

it's

clear

in our national

Constitution and we've got all kinds of case law on it and

: 11 that's pre-emptory over our State Constitution, I don't know

1 "\
why 'I,'1e need it.

_".'

MR. GRIFFIN: But on that basis we could throw out

-1~' all these things.

REPRESEN1'ATIVE SAVAGE: v1ell I concur, John. Read

that language again.

.--- ---_._- ---l --~--

PACE
127
---~-----

HH. LITCHFIELD: Well I had altered it a little
I
because -- I just said "The State shall take no action respect-
I
ingthe establishment of religion or prohibit the free exercisel
i
thereof." The First Amendment also speaks to free speech. I

think that's a little bit smoother.
HR. HILL: I know the object1.0n to that. The publ1' C, I
I
8 the person, the average Georgia citizen, are they going to knowi

language. Once again, the selling job, are the people going

..:)

z

1I

~-
'o"

to

be

happy

if

they

see

establishment of

religion,

unless

you

<>.

w

,')

{)~

(~~}~..... ~I.- u have some understanding of government, you're not real sure what you're talking about

.... ........'

MR. LITCHFIELD: We've discussed it for 45 minutes

<;

1

J:~

~ C!J

and

we've

just scratched the

surface of the problems

you can

:'"J

)h

ro
z 0

get

into

when

you

make

the

Constitution

very

specific.

z



17 '"r;,

REPRESENTATIVE SAVAGE: May I make a suggestion that

,r_\',
I honestly and deeply believe to be the truth, that that

j9 I particular issue would never be discussed by any two citizens

.~o

'
! anywhere in this State at any time now or in the future

..'1

MR. GRIFFIN: It would be if they're running a seg

l'
academy somewhere.
_-, .',
REPRESENTATIVE SAVAGE: The point that I am making is
.'1
when you're looking at a Constitutional provision in the State

of Georgia, the average citizen never gets to that technical

120 ~ I
a point. Now we have the opportunity to do that on this

committee and that's what we are doing now and I think that a

,I general statement --

Ii

'i

l

ii
I

MR. GRIFFIN:

i

, II
) ,i you on that.

I,

I

Well I'll go along, I'll agree with

REPRESENTATIVE SAVAGE:

is far preferable than

i this specific language.

MR. GUERRERO: The problem with that is it may be that

9 'I Georgia's tradition in its Constitution is better in some ways

,J on the whole question. There are a number of areas where the

~ z

11

r'
'o"

states

really vary

in

terms of

their

tradition

and

the

way

a.

~.

2 .~.. the state Constitution is written and it seems like we might,

lI
lft"~ UI
~ in my interest of strengthening the separation, we might be

4 ~ well to track the earlier language and keep it in there for

<l :r

15 ~ those kinds of purposes.

'".::J

: 6 'i'
aw,

MR. GRIFFIN: Modify it how?

MR. GUERRERO: Well I would just do it with the

\8
I appropriations, just add in the clause for property as with

19

i
Texas, " nor shall property be appropriated for such purpose. "

20

MR. CARLYLE: Your original suggestion?

21

MR. GUERRERO: Yes.

CHAIRMAN BELL: I like the suggestion that you make

"_\.''
but I was going to suggest

we've really got two things we

2-+
more or less have to think of -- well, three, the suggestion

that we track the Federal Constitution, that we track the
- - - - --_.~--_._----

PAGE 129
language as it was and as you have said, "No PUblic--:ne~-=r---1

public property shall ever be " I would suggest nappropriatrd

directly or indirectly, to the support of "

i

I

1

MR. HILL: How about i f we just leave "in aid of"? I

i!

" ... appropriated in aid of ... "

CHAIRMAH BELL: Then we get to where it sounds like

we're dealing with a legislative matter. When I was trying

to use appropriated in a different sense, " appropriated to

the support of "

MR. GRIFFIN: Is that a proper use of that verb, I'm

not sure.

REPRESENTATIVE SAVAGE: If you leave the word "aid",

it broadens my case. Aid can be where you come to temporary

help of an institution and aid can be not only -- it would

IS

,') ~l

certainly

include

appropriation

--

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co
z

. . 1

0

CHAIRMAN BELL: But you see, I didn't want to use

l.

.,
I

<;
e0n'

appropriation

and

I

am

not

using

the

word

in

the

sense

of

a

11)
legislature appropriating, I'm using it in the sense of taking

19 it, appropriating it to my use.

20

MR. GUERRERO: This is the way Texas uses it.

21

CHAIRM~~ BELL: I'm not granting or giving it to me.

" Well, there are a number of suggestions. It would be good I
, -,
I expect if we could get a motion.

HR. GUERRERO: I would move that we leave the present
.~ ~
I language of Georgia in and entitle it Separation of Church and
lL

;r-- - _..

1'\. ( ,',I',' 136
-,

State and add one more clause saying " nor shall property

I belonging to the State be appropriated for any such purposes. II
il !i
~1R. CARLYLE: One of the reasons I said public

property is because I'm not sure about property of political

subdivisions of the State, whether that's State property. As

a matter of fact, it probably isn't because the State grants
,i I some of its state property to

~,
'I

MR. GUERRERO: Okay.

MR. CARLYLE: -- political subdivisions and they

'0 grant it back.

L?

Z

I 1 >-
oe

MR. GUERRERO: " .. nor shall public property belongin~

.oQ.."

i 2 ~ to the State ", is that all right?

u

MR. CARLYLE: Something like that.

V'l

'4 >~"

MR. GUERRERO: Okay. " nor shall public property

V'l

<

r

15 ..:. be appropriated for any such purposes."

'.:'

~:

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i6 .~..

CHAIRMAN BELL: Is that a motion?

CI

Z

,7 :<ii

MR. GUERRERO: Yes ma'am.

CHAIRMAN BELL: Is there a second?

MR. GRIFFIN: I'll second it.

CHAIRMAN BELL: Is there further discussion?

(No response.) ,,
ClmIRMAN BELL: All in favor of the motion respond by
,'
':'.' saying aye.

(Ayes. )

CHAIID-1fu~ BELL: Those opposed?

I'

-1 PAGE
___l..ll

(No response.)

I

I

I

CHAIRMAN BELL: The motion carries.

I

Paragraph XI, Lotteries, XII and XIII, apparently

some other -- which section was it?

MR. HILL: Oh, yes, the Article III, one of the

6 committees in Article III, the Legislative Article, would like

"7
I to include the lotteries and the lobbying provisions within

8 the scope of t,he General Assembly's powers and limitations.
')
REPRESENTATIVE THOHPSON: In other words, you want

1O to eliminate these from this Article?

l,')
z

11 c
()

}1R. HILL: I think that committee would appreciate

0-

,j

>:

a sense of the group on, you know, the substance of them but

they would like to take them over there.

REPRESENTATIVE SAVAGE: I so move.

1.') l~

MR. CARLYLE: I just have one comment. This is --

."::

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lh z

U'
a

the

General

Assembly

can

probably

prohibit

this

without

any

Z

.<,

17

,y
'"

Constitutional

provision

and

this

is

something

you

might

L~;
consider, whether you want it in the Constitution at all.

jq

I'

REPPSENTATIVE SAVAGE:

!

20
, Constitution.

I don't want it in the

),

-I

Cl~IRMAN BELL: I don't either, I would hate to just

,)

tell them they can have it, I think we ought to go on record

as recommendinq that it be out of the Constitution.
',f I
REPRESEN'rATIVE THOMPSON: We can certainly do that.

rr------------~~------~. - - -

MR. CARLYLE: Yeah.

2

REPRESENTATIVE THOHPSON: ~;re make an affirmative

3 i recommendation.
I

+I

CHAIID1AN BELL: .Hake it clear that we are not just

!

!

5 turning it over to Article III or whoever wanted it, that our

6 recommendation is that it be deleted.

7

MR. GUERRERO: I agree.

8

CHAIRMAN BELL: We have a motio~ is there a second?

9
10
'Z.'
i I ;::
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12 ~
~

HEPRESENTATIVE THOMPSON: I second it. CHAIRMAN BELL: Any discussion?
(No response.) CHAI~~ BELL: All those in favor.

(Ayes. )

14 >-
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15 ~
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7 coor:

CHAIRMAN BELL: Opposed. (No response.)
CHAIRMAN BELL: The motion carries . MR. HILL: This is both of them, lotteries and

[8
lobbying?

19
MR. CARLYLE: I would think all three of these,

20
XI, XII and XIII, the same reasoning would apply to all of

:?l
those.

1')
MR. HILL: Okay.

CI~IRMAN BLLL: Did the motion encompass all three?

REPRESENTATIVE SAVAGE: It did.

cI~IromN BELL: All three, so we have disposed of

I , all of them.

PAGE
J 33 "",
i i

HR. HILL: And recommend that all three of them just

; be omitted completely.

-I

HR. GRIFFIN: That ~lould be the first language we

have saved, most of the time we have added.

REPRESENTATIVE SAVAGE: It sure would be.

-7

ClillIRMAN BELL: That language down in Section III,

two paragraphs in that, one quite long and then a brief one

on Tidewater Titles. Do we want to continue with this? It's

!() one o'clock, do you want to continue with this today?

.z..l 11 ;::
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REPRESENTATIVE SAVAGE: What are the feelings about

~V~ 1~ ~ Section III?

rt.,-- ; i~}-d"\ """

MR. HILL:

Are you asking --

_.-

14 ~

REPRESENTATIVE SAVAGE: Yes.

<
T

'o-r"

r-1R. HILL: What are their feelings about this over

.:>

J(, ~1::"1 in the Legislative Article?

l

'""','i.;

REPRESENTATIVE SAVAGE: Yes.

1:-,

MR. HILL: I don't believe they have looked at this.

I!
jJ Now if you think it belongs over there, we can recommend that

they take it up, but I don't remember him mentioning this one.

_' ;I
Hichael, do you remember him mentioning this one?

))
MR. HENRY: No. Well we had talked about it before,
,,
... 1 I about the right of imminent doman in the first paragraph, that

..'4 I just compensation be first paid. I think this language here,

I

>' I'
:: these are recent amendments except for the Tidewater Titles

LL.

.

---~. --~'---"--"

- - - - - - - - - - - - - _._-------

REPRESENTATIVE SAVAGE: My question was indirectly

'i weren't these provisions put in there for a specific purpose?

MR. HENRY: Yes, I'm sure they were put in there 60

they could enact specific legislation pursuant to them.

REPRESENTATIVE SAVAGE: Probably some type of Federal'

loan.

MR. HENRY: Some type of Federal aid.

9

REPRESENTATIVE SAVAGE: My recommendation is then that

::) this be researched in relationship to that reason for its

I1

;::
a:

enactment,

whether

the

practical

application

has

worked

success

.00..-

i2

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u

fully,

whether

it

needs

to

be

cleaned

up

at

all

and

if

it

~

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Z

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"VI

still

needs

to

be

continued,

and

bring

a

report

back

to

us

at

'4

>-
u"

our

next

meeting.

I'm just simply saying I'm not knowledgeable

~

<::

r

5

.:>
<.:l

enough

about

this

to

make

an

intelligent

observation.

"::>

16 .'z".. a

MR. HENRY: In fact I think it would be wise not to

Z.

7

e v e n , l:r:
:J:l

you

know,

talk

about

it until

you

find

out

the

implica-

8 tions of removing it or changing any of the words.

19

REPRESENTATIVE SAVAGE: That's correct and the histor~I

20 of it, present application in the State.

21

CHAIRMAN BELL: Then we'll defer consideration of

))
that until our next meeting. What about the Tidewater Titles?

)~
MR. HILL: Well, the same would be true with that.
2-, It is an issue we're not really prepared to talk about, I

l~
don't think anybody here knows why it's there. Do you?

MR. CARLYLE:

Well I have an idea.

PACE 135- - - - , -,-,,---,-- " -"~--'-" I There's a case, I

, Ii the AshItlore case that vias I think t\-1O years ago in the Georgia

.' Supreme Court as to the ownership of certain coastal lands and

4 apparently this Act passed in 1902 and there may not have been

Constitutional authority for that Act and it was confirmed by

()i a subsequent Constitutional amendInent that now appears here.

7 I don't know what would happen if this were taken out.

,

K

I
REPRESENTATIVE SAVAGE: It might be very important

q :i 'i

CHAIlli~ BELL: It might not be a good idea to take

III it out. Could we change the language a little bit, "The Act of

(:J

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II -0: the General Assemilily approved December :>

"

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Qt~""12

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~1R. CARLYLE: I can probably get the citation for the

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Ashmore

case,

but

I

think

you'd

sort

of

have

to

see

what

they

~

14

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said

and

what

rights

they

thought

were

protected

by

this.

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l"

CHAI~~ BELL: So the point you're making, I take it,

,;:

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a

is

that

we

would

probably

do

well

just

to

leave

it

as

it

is

2-

;7

<:
r<

0

~m. CARLYLE: I don't know, but I think --

18

REPRESENTATIVE SAVAGE: Was that Ashmore case some-

what based on that reference in the Constitution?

2(1

MR. CARLYLE: It was based on --

MR. GUERRERO: It's a question of who owns the

1)

I

beaches, right?

23

MR. CARLYLE: Right.

REPRESENTATIVE SAVAGE: And at what level. If that

__ has been decided and it was decided against Ashmore? - - - - _.. _ - - - - - - ..__. ..- . - - - - - - - -

136 MR. CARLYLE: It was generally against him, but not

totally against him.

REPRESENTATIVE THOHPSON: We've done a lot of

regulating, we've got a Tidelands Protection Act I believe

'i :1 which has a lot to do with the use that these tidelands can be i put to and it's a highly complicated type thing. There's

,i some Federal legislation which requires certain protective

~

,

I' things be done with tidelands and the State of Georgia has

this Tidelands Act and really it's so complicated I still

wouldn't want to upset the balance by how we handle this. We
'z" '1 ;~.-. would certainly need someone who -- maybe Mel could find some-
i2 ,.,;
~ one who is really up on that particular thing to talk to us.

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I-iR. CARLYLE: This dealt specifically with the

:4 ~ ownership of the land. I'm familiar with the use --

<:
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'5 .0
"IX

REPRESENTATIVE THOMPSON: Well with that ownership,

::>

:6 rf

Q can a man because he owns it down to low tide do certain things

'1.

-e

17 <>:
," vlith that land, like fencing it and

i8 i

MR. CARLYLE: Oh, I think he is bound by the Acts of

19
the General Assembly as to that land but this only dealt with

20
who owned it but their use of it I think is governed by your --

2i
MR. HENRY: Can I ask a question? It appears to me

11
I that -- was there an Act prior to this amendment that was
23
ruled unconstitutional and then this was a Constitutional

amendment which was added so as to ratify that ~ct?

MR. CARLYLE: I don't think the Act was ever declared

_ _ _P_A_GE_- - - . l T I - ,
unconstitutional, but somebody got nervous about it and got I

Ii the Constitutional amendment passed. But I can't remember

precisely.

I

i

1

MR. HENRY: Because this is not a legislative grantin~

type of provision. It seems kind of odd in fact.

MR. Cl~LYLE: Well if you read the Ashmore case it 7 Ii cites all of that. As a matter of fact, it's probably

annotated.

C)
REPRESENTATIVE SAVAGE: Well we need some help on that

10 before we can discuss it.

"z

II ;:.
<Y-
o

CHAIRMAN BELL: We have Paragraphs VII and VIII of

"-

@t~~i"' Section II which they are bringing us more information on and Paragraphs I and II of Section III, all of which we will have

14

~
~

to

defer

until

next

time

when

we

get more

information.

As a

~

r.

IS

.~
'.J

matter

of

fact,

if you can get more infornation before we have

':":J'

16 ~

Cl our next meeting, if we had something in writing that we could

Z

circulate to the committee members it would be helpful.

, 19 ,i
Ii
20
Ii'l meeting?
,I
, )"l 'i

MR. HILL: Depends how soon you make the next meeting. CliAIRMAN BELL: When would you like to have the next
MR. HILL: You're making such good progress -CHAIRMAN BELL: We have the committee as a whole on

I November the 6th.
24
MR. HILL: Ninth.

CHAIRMAN BELL: Is it the 9th?

MR. HILL: Right.

PACE 13 8 -

-- - -

- ~-- -~

_-- - ---_.. ...

-- .

CHAIRMAN BELL: So we've got about three or four

weeks. Is Friday a good day for the committee members?

REPRESENTATIVE SAVAGE: It sure is.

MR. HILL: Friday the 19th?

CHAIRMAN BELL: Is that agreeable?

MR. HILL: Well that gives you two more weeks or

three weeks really before the full committee meeting so you

would have time --

u
REPRESENTATIVE SAVAGE: tfuen is the committee on

1 ;::
~ Section I meeting?

G.

~

12 ~
...

MR. HILL:

They haven't set up their meeting.

REPRESENTATIVE THOMPSON: I think he said he could

,A "-t

>~.,.. not

meet

on

the

19th though

,5 ~

'.I

REPRESENTATIVE SAVAGE: \ihy don't we do a week later, ,

.:::

::>

'6

~...
Q

you

might

have

had

a

meeting

with

them

and

some

of

these

Z
<

7 '.""' questions might be redundant.

MR. HILL: 9:) not until the 26th?

19
REPRESENTATIVE SAVAGE: I think one more meeting

20
will essentially accomplish most of our work until we get into

"

)1

"

~I

the committee as a whole. Don't you think so, Mildred?

CrffiIR}~N BELL: The 26th, I would think so. Will

minutes of this meeting be available?

MR. HILL: Well this is being recorded verbatim and

we'll have that and we'll get a s~~ary of it.
-- -- - - --_ _ .. - - -

CHAIRMAl.~ BELL:

PAGE 139
---
The summary of it I think would be _-I

2

HR. HILL: The summary we do get. I intend to send

out to all of the committee meniliers a copy of what has

~I tentatively been agreed to by each committee, so that you will

1

..,

II

II be able to see what they have done and if there is further

II

\1

()

'I
!:

study necessary

then weill

indicate

that

so you can

see which

I:

71: ones are so far

8

REPRESENTATIVE SAVAGE: Is the Committee on Article

III working now?

IU

HR. HILL: Yes.

REPRESENTATIVE SAVAGE: So that will also give us ,an

opportunity to see what they are recommending.

MR. HILL: They have their full committee meeting on

the 29th, so by the 24th all their proposals will be in. The

i

<.:J 26th is a good time because youll know what they have recommended,

'=">

I

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l'

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as

of

the

26th.

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REPRESENTATIVE SAVAGE: Thatls an excellent time,

weill have all the recommendations of the other committees.

MR. HILL: Illl set up the meeting, probably in this

room if I can get it or if not I'll let you know what room.

21
REPRESENTATIVE SAVAGE: October 26th.

"

MR. HILL: Yes.

3 ~?

I'

REPRESENTATIVE THOMPSON: Ten o'clock is a good time?

ClmIR}~N BELL: Ten o'clock is fine.

REPRESENTATIVE THOMPSON: I would suggest that.

l ' "' (,''I,' 140

fT-- ",.---------------------- -

j\

CHAIRMAN BELL: Is that agreeable with everyone?

Ten o'clock.

Well, do I hear a motion that we adjourn?

REPRESENTATIVE SAVAGE: I move.

CHAIRMAN BELL: Thank you for coming, I appreciate it;.

(Whereupon, the meeting was adjourned at 1:10 p.m.)

C E R T I FIe ATE

PAGE 141

Ii

"

I, Peggy J. Warren, CVR-CM, CCR No. A-171, do

I' hereby certify that the foregoing 140 pages of transcript

represent a true and accurate record of the events which

transpired at the time and place set out above.

. 41e<r:l Q. 2IL~xs.../
Peggy J. Warren, CVR-CM, CCR A-171
10
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"":'.' .:4

INDEX Committee to Revise Article I Subcommittee Meeting Held on Oct. 5, 1979

SUBCOMMITTEg MEETING ON SECTIONS II & III, 10-5-79

Preamble. pp. 20-22
SECTION I: RIGHTS OF PERSONS
Paragraph II: Protection to person and property; equal protection. pp. 52-63
Paragraph VII: Citizens, protection of. pp. 85-87

SECTION II: ORIGIN AND STRUCTURE OF GOVERNMENT

Preamble. pp. 20-22

Paragraph I: Origin and foundation of government. pp. 21-22

Paragraph II: Object of government. pp. 22-52

Paragraph III: Separation of legislative, judicial, and executive powers. pp. 63-64

Paragraph IV: Contempts. pp. 68-75

Paragraph V: What acts void. pp. 75-85

Paragraph VI: Superiority of civil authority. pp. 64-68

Paragraph VII: Separation of church and state. pp. 87-131

Paragraph VIII:

Lotteries. pp. 131-133 (considered along with Paragraphs XII and XIII, Lobbying and Fraud, respectively, 1976 Constitution). Also see Subcommittee Meeting on Art i c 1 e I IT, Sec t ion VI , Pp .35- 4 1 0 flO - 1 9- 7 9 .

Article III, Section VI, Paragraph IV (a & c): Limitations Dn special
leg is 1a t ion (general laws, uni form opera t ion). pp. 75-85 (appropriately transferred)

SECTION III: GENERAL PROVISIONS Paragraph I: Eminent domain, and
II: Private ways. pp. 133-137

----~--- -" .-----. -"-PAGE ---l

I

I

I
i

3

I

i

f

I

STATE OF GEORGIA

.,

COMMITTEE TO REVISE ARTICLE I

of the

10

CONSTITUTION OF GEORGIA

1 1 -,,
L
J .~,'
',j
U.

Subcommitte on Rights of Persons

j .(
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<.

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25

Room 402 State Capitol Atlanta, Georgia
Thursday, October 25, 1979 10:00 a.m ..

PRESENT WERE:

SUBCOMMITTEE MEMBERS

JUSTICE JESSE BOWLES, Chairman

MR. ALBERT PEARSON

MS. LUCY MCGOUGH

MS. VITA OSTRANDER

MR. HOYT WHELCHEL

MR. F. H. BONEY

(,

MS. MYRTLE DAVIS

REP. SIDNEY J. MARCUS

SELECT COMMITTEE STAFF:
,\

MR. MELVIN HILL

,

II

MR. MICHAEL HENRY

MS. VICKIE GREENBERG

OFFICE OF LEGISLATIVE COUNSEL:

i"'

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.:1

(~~.)~~ . ~sv14, ..

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MR. DOUGLAS CARLYLE MR. LOU LITCHFIELD

:.1
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PAGE 2
---I

,1

Pr\CE 3

PRO C E E DIN G S

JUSTICE BOWLES: It is now our appointed time and

we'll come to order. I want to express my appreciation to

each of you for being here and your interest in working with

this committee.

I'd like the reporter, if she has not already done

so, to record the names of all committee members who are

present. Have you done that, ma'am?

'I

THE REPORTER: Yes, sir.

ii!

JUSTICE BOWLES: You have that. All right. Well,

is there any suggestion about procedure before we start?

MR. HILL: Some people are here this time that weren~t

" here last time. If we could just go around the room and let

" everyone introduce themselves, it might be helpful.

!' ,0

JUSTICE BOWLES: Yes. All right, if you would,

" start on my right with Hoyt, if you would introduce yourself.

MR. WHELCHEL: I'm Hoyt Whelchel from Moultrie.

MR. LITCHFIELD: Lou Litchfield, Office of Legis-

lative Counsel.

MR. BONEY: I'm F. H. Boney from Summerville,

Georgia.

MS. DAVIS: Myrtle Davis from Atlanta.
,; ,
JUSTICE BOWLES: ytall know Melvin Hill, our staff
,,
,1 assistant.

MR. HENRY: I'm Mike Henry, also~th the staff.

MR. PEARSON:

~--

-~

- - --~-----

-~- -~---l

Al Pearson from the law school in

I

Athens.

MS. MCGOUGH: Lucy McGough from Emory Law School.

JUSTICE BOWLES: All right. Thank you very much.

Any particular area you would like to start with

or do you think we should again run through the various

paragraphs of our existing Bill of Rights in the 1976

Constitution, from which we worked last time?

MR. BONEY: I personally think it would be a good

u idea just to run back over it again.

-
Cr'

JUSTICE BOWLES: That's my idea too, but I'm

~
L "_ subject to suggestion.

Well, with that, suppose we start. Do all of you

have a copy of the 1976 Constitution insofar as the Article I

and the Bill of Rights is concerned? Does everyone have a i' U copy?

"

MS. MCGOUGH: I'm sorry, I left my master file at

home. Mel, do you have an extra one? If not, I can look on 19 with him.

(A document was handed to Ms. McGough.)

JUSTICE BOWLES: Now as we said last time, if the

Preamble was our responsibility, we would leave the Preamble

23 as written, and I suppose that would still apply unless

24 somebody has a different thought.

25
I
L

Then we go to Article I, Bill of Rights, Section I, ~

PAGE 5

Rights of Persons.

Paragraph I. Life, Liberty, and Property. We had

a note that we were going to -- might have some further

,I study on this. The former Article the present Article rath~r

.' reads "No person shall be deprived of life, liberty, or

() property except by due process of law." We have had no
!! I
7 suggestions from anyone about a change to this.

7',

MR. PEARSON: I read through this and noticed in

,!

.) Section II that there had been, in Paragraph III, the

10 inclusion of a counterpart due process clause and also an

I J equal protection clause, and I'd like to raise for purposes

o

)

,J.

of discussion the idea that we ought to include an equal

(~"(Y(I"L'Y_~.4.\J\I\r" "..

protection clause to accompany the due process clause. I

,",,'

'

think it would be more appropriate in Paragraph I than in

-- of Section I, than in the Structure of Government.

JUSTICE BOWLES: All right. We have somewhat of a , ' problem on this committee as to whose responsibility is

assigned to which; you know, we're a subcommntee and they're

a subcommittee.

MR. PEARSON: Oh, yes.

'\

JUSTICE BOWLES: We've talked about this. Now I

understand that they are coming up with a proposal, Melvin,

in this regard

Come in. Young lady, would you like to sit over here

Ms. Reporter, would you pick up the names of the additional

1,1-

PACE
-

.--6------1

!! people who have come in and I'll let them also introduce

I

,!

III'

I themselves You can do it in that manner, beginning on my

:1

il

i! right with Mr. Marcus.
!I
!'

REPRESENTATIVE MARCUS: My name is Sidney Marcus,

and Judge, if I may jump out of line, I came in with one of

) my former colleagues who now serves on the bench, Judge Bill

Alexander who is the Presiding Judge I think today. He did

::

,I

want to come over.

JUDGE ALEXANDER: I won't be able to stay throughout:

the entire meeting, Judge, because I am presiding, but I did

want to stop by.
9

12 .....
t-
~!.:'~ ~Z v.

welcome.

JUSTICE BOWLES: We appreciate your presence, you're, Feel free to come and go as you need to.

;4 >-
I-
'<"1.
1.:
::' -'1

Now on my right here. MR. CARLYLE: Doug Clarlyle, Legislative Counsel.

-"

:6 ~ w

JUSTICE BOWLES: All right. And young lady?

'-'

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MS. GREENBERG: Vickie Greenberg with the staff.

JUSTICE BOWLES: Fine.

To go back to where we were, we were going to go 20 through again in the same order that we did on the first

meeting and discuss the various paragraphs, and we had read
-, ,
through Paragraph I again and had a suggestion that perhaps
i
in Section II there is some -- there is a provision in regard i
24 to due process and to what other area did you say?

MR. PEARSON: Equal protection.

,
-~-

--- ---P-A--G--E----7------l
JUSTICE BOWLES: Equal protection of the law. And

a suggestion that maybe these two should be combined in a
I
,
common paragraph in the Bill of Rights, in the Rights of

Persons.

I understand -- Melvin, maybe you can enlighten us

(, on this, but I understand that they are developing a revised

'i Article.

MR. HILL: The other committee decided that this

.I I language was here, that was in the 1970 proposed Constitution,

to was language that they would like to see in the Bill of

II :: Rights, and they would like to see it in Section I, Paragraph r.

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recommending to this committee that this addition be included

in your Section I, Paragraph I. There's another thing some-

what relating to this, I have distributed to all of you a
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I~~ copy of a letter we received from the League of Women Voters

1.1: of Georgia urging the committee to include language to this

effect as well, in the Article I. So that there are these two

developments since we met the last time. It's up to this

committee to decide whether they agree with that other

committee and there is a jurisdictional problem in a sense.

Eventually you have to agree as a full committee how to _'.1 proceed.

JUSTICE BOWLES: Do you think the committee on the
----,-------

--- - - - - - - - - IT---------------------~--------------~----

P_A_GE- - - -8- - - - - - , ... ----_.--~~----_

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11 second section will develop an article covering these two
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MR. HILL: I don't believe that the other sub-

:! conunittee intends to do any more than just include this in

their proposal.

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JUSTICE BOWLES: In their proposal.

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7

MR. WHELCHEL: In the 1970 draft, Section I, Paragra~h

i; III contains such a provision.

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MS. MCGOUGH: Uh-huh.

MR. WHELCHEL: Combining the two

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MR. PEARSON: My thinking is that since we don't

really have any clear idea what the other conunittee is going
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our views are as a matter of principle and then deal with the

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JUSTICE BOWLES: question.

Placement and duplication

8

MR. PEARSON: Yeah.

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JUSTICE BOWLES: In a joint conunittee meeting.

20

MR. PEARSON: I think maybe the placement question,

if we agree on a matter of principle, wouldn't be anything

that would be terribly time consuming.

JUSTICE BOWLES: All right. Suppose we discuss that:

24 a moment.

25

Now as far as due process is concerned, do you think

PAGE 9

Ii

. -------_._---- ---_.~

the language in this sentence is adequate?

\

MR. PEARSON: Well what you have in Section II is

identical to the federal Constitutional language. Now what

we have in Section I is just I think "except byll rather than

~ the word "without". I don't think there is any particular
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'7 current language is fine -- that's my feeling, you know, as

one person.
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JUSTICE BOWLES: Yeah. Well then, your thought was
11\ that if we have equal protection also, that this be added as
,
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II " a part of the same -" MR. PEARSON: Yeah, I think maybe that'd be the

thing to do.

,-

JUSTICE BOWLES: And if so, what language? Would

i c, '" we go and pick up the language

there is a duplication in

t,
I (. 1. Paragraph III of Section II to some extent. I think the words

2-

17

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are almost identical.

You see Paragraph III of Section II?

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MR. PEARSON: Yeah.

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MR. MCGOUGH: Uh-huh

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MR. PEARSON: Well the last two

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JUSTICE BOWLES: Except it says "without"

-,
MR. PEARSON: Yeah, that's the only language in the

first clause that's any different. Really what I was thinking 24 about was just the last two clauses, "nor be denied the equal

protection of the law, nor be denied the enjoyment of civil

- --. ---- _ ---- -P-A--G-E----10--l

rights", etc., etc. The question of the inclusion of that

I

language in Paragraph I, Section I, just changing the period

to a semi-colon and then adding the last two sentences of the

underlined material in Paragraph

JUSTICE BOWLES: There would really be no refinement

because that's in the present '76 Constitution, it's just a

matter of alignment, is it not?

MR. PEARSON: Is this equal protection language

it's not a part of the '76 Constitution as I recall.

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MS. MCGOUGH: That's underlined.

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MR. PEARSON: That's a substantive change, and so

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JUSTICE BOWLES: new material?

The meaning of the underlining is

MR. HILL: Yes.

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MR. BONEY: But in the existing Constitution in

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Paragraph III,

it's getting close to equal

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it says

"shall be impartial".

You're getting

i S extremely close to equal when you say "shall be complete and

lY impartial", I don't know what it would mean if it didn't mean

that.

21

MR. PEARSON: I see what you're saying. I guess my

l'
feeling is that I think that there is some value in trying

23 to refine the idea of impartiality in terms of the equal ,~ .....~ t protection content. That's become very familiar in contemporary

law and I think it would be worthwhile to make that -- update

PAGE 11

the terminology.

JUSTICE BOWLES: Yes ma'am.

MS. DAVIS: Could we consider Paragraph III from

the 1970 proposed Constitution? "No person shall be dprived

of life, liberty or property without due process of law, nor

be denied the equal protection of the law, nor be denied the

enjoyment of their civil rights, nor be discriminated against ,- in the exercise thereof because of race, sex, national origin,

religion or ancestry."

JUSTICE BOWLES: And your question?

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MS. DAVIS: Could that not be included?

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MR. PEARSON: In toto.

JUSTICE BOWLES: Let's be sure I understand you.

You're talking about SUbstituting that language for the
T" present?

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MS. DAVIS: Using that due process and equal

protection --
IV
MR. PEARSON: Yeah.

MR. BONEY: I personally feel like that's somewhat

redundant to me. If we were going to change it, I would just

suggest that we go along with something like this, "No person
') i
shall be deprived of life, liberty or property without due

process of law, nor be denied the equal protection of the law.~

You get to saying too much when you go into defining everythin9

specifically. If you limit it to that, then you would embrace

- - - - - - - - - - - - _ . _ - . '-'-"._..- ----_. -

_ . _ _- ... .... --.._' - - - - . _ - - - - - -

PAGE 12

ii and include the rest of the sentence there, "nor be denied

the enjoyment of his civil rights". If you give him equal

protection and you're protecting his life and his liberty and

his property by due process of law, you have included

necessarily the civil rights and the race, sex, national
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origin, religion and ancestry.
it
JUSTICE BOWLES: Pardon me a moment. We've had

another committee member come in and I would like for all

9 committee members to be seated at the table if possible and

I'll ask some of you staff members if you can move up this

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way a little bit or by me.

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as that's concerned

Two can sit at this end as far

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MR. BONEY: You disagree with that?

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MR. PEARSON: I see your point. My reaction is that:

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impact of law, that's why I think race, sex, national

,8 origin, religion and so forth ought to be given specific

recognition. I think you're correct in saying that as a

logical matter all of that is embraced. I think as a historic41

matter that has not been included and the addition of that

last clause would give recognition, as a matter of State 23 , Constitutional law, to the fact that our state is particularly:

concerned about considerations -- discrimination with respect

to these particular matters. And I think as a matter of

emphasis there is value to that.

P-AG-E--13--1

MS. MCGOUGH: I think it's also responsive to the

League of Women Voters' letter asking the committee -- urging

the committee to make a strong, clear statement. Impartiality

') is such a -- and equal protection for that matter is such

6 a broad term subject to judicial construction that I

I certainly would like to see the specific categorization of

t. race, sex, national origin, religion or ancestry included.

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JUSTICE BOWLES: Other thoughts on that?

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MR. PEARSON: Just one thing. I know that there has been a line of debate about some aspects of this kind of equal protection clause. I think that one trend in constitutional law which I am sure Mr. Justice Bowles is familiar with is that state supreme courts themselves are taking action

1) '.' on the basis of state constitutions more aggressively now than
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in the past, and this clause is a state equal protection claus~

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i ,< of the standards and values to the state, and it's really

1:J going to operate differently than the federal equal protection
:n clause, in some respects, would operate
., j JUSTICE BOWLES: Would you illustrate some of those

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respects? Il m not familiar with them.

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MR. PEARSON: Well, I think in terms of sex, there's

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in favor of some rights where the federal government has not

PAGE 14

:i protection issues have been.
II

And I think that my impression

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of the trends in some areas of case law is that some states

want to be more protective than the federal government is

saying that you have to be as a matter of federalism. The
!
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, I inclusion of this clause I think makes that option -- it

gives emphasis to that in terms of the options that are
~I available to the Supreme Court of Georgia in its exercise of i' powers of judicial review. I think it communicates that these
! ) kinds of values are particularly important and the peqie of
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~' think that's what you're expressing through a Constitution ~: T\"'t~_~ ,,,0 and th~'s why I would personally like to see this language

adopted.

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JUSTICE BOWLES: Well in this regard, you have

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said sex especially,

do you consider that the adoption of this

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17 on an equal protection basis would be equivalent to the

'8 ratification of the Equal Rights Amendment?

MR. PEARSON: Well I don't think it would be, I ,'0 think the key difference on the ERA issue is -- well, first

of all the federal ERA proposal makes -- it gives specific

authority to the federal government to pass legislation binding

.J the states with respect to discrimination on the basis of sex.

They already have some power in that area but the federal ERA

25 sought perhaps to give even more power, and so that's one

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PAGE 15
objection. The sec~~~~~jection is-~~~~-t~~-~ederal~ud~:~:ryl

1 controls these standards in terms of jUdicial review

exclusively. This ERA, it seems to me, makes the ultimate

standards under -- on the sex discrimination issue, as far

as state constitutional law, it gives the state Supreme Court

l) it authority independent of what the federal government has done.

We're not putting ourselves in a position where we're going

to be bound by federal constitutional standards or affected

{J in all cases by federal interpretations. ~~-.. The st'ate is going

ill to have some latitude to make judgments about what is reason-

11 able in terms of sex based classifications. Now there are
.,.l
y some issues where we're going to be bound by the Supreme

Court simply because they recognize a particular classificatiom

as being invalid, but to the extent that an area is not

covered by federal jurisprudence then it's a matter of state

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constitutional law,

there's a realm within which I

think the

state courts have some authority to define reasonable sex

IS based classifications, and so I think the impact on state

i ' ~ law and state constitutional law is going to be different

)C than the federal ERA, it's going to be less invasive. I

21 think there are 15 or 20 states now that have state ERAs and

are interpreting the sex discrimination standards on a basis _,.,' independent in some areas of the federal constitutional law.

So the federal-state relations issue I think is avoided by

having your state constitutional ERA rather than having the

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PAGE 16

!I federal one, it leaves: some of the judgments to the state.

II

MS. MCGOUGH: At least some other states seem to

:1
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'i come prepared to do this, but 35 states have ratified the

equal protection the Equal Rights Amendment, 17 states have

6
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simply included sex in equal protection clauses of their state:

,II

il constitutions. Those states that have already done what is

proposed here are Alaska, Connecticut, Hawaii, Illinois,

Colorado, Louisiana, Maryland, Massachusetts, Montana, New

) Hampshire, New Mexico, Pennsylvania, Texas, Utah, Virginia,

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JUSTICE BOWLES: Mr. Marcus.

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REPRESENTATIVE MARCUS: I'm confused. I thought

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the Equal Rights Amendment that's proposed --

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MR. PEARSON: I thought it was, was it going to

'8 have the same effect as the federal ERA, and it will not have

;9 i the same effect as the ERA.

REPRESENTATIVE MARCUS: Let me ask it, if I may in '1 a different way, what is -- for example, in the states that
", ;
you just listed that have included this language or similar

'3 language, in the 17 you included I believe Illinois and it 4 is my understanding you did?

MS. MCGOUGH: I did.

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IillPRESENTATIVE MARCUS: It was my understanding

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that the ERA Amendment had been offered to the Illinois

.\ 1egis1a ture and in fact had not passed. Am I correct?

MS. MCGOUGH: That's right.

MR. PEARSON: Yes.

REPRESENTATIVE MARCUS: Can you tell me what that

means in terms of -- what are the variances between the two?

How do you on one hand deny or fail to adopt the Equal Rights

Amendment and then adopt language that seems to do the very

III same thing, or does it?

MR. PEARSON: It's who makes the choices under the
":"10
standard, a state general assembly decides what kind of

legislation they want to pass to implement the ERA, a state

ERA, whereas under the federal Constitution legislative

authority resides with the federal government, arid it would

11.1 i: prevail over any conflicting state law. So some states as

a matter of protecting their own independence, say we want

ERA, but we want to be able to legislate freely with respect

i" to sex discrimination issues. If a federal ERA is passed,

\; Congress can supersede in our laws and so they say we agree

:'1 with the principle, but we want to have latitude to make

policy choices at the state level rather than have them be

superseded.

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REPRESENTATIVE MARCUS: Are you saying that the

Equal Rights Amendment that is being offered in the various
____-.1I

- - - - -------- -
states is federal jurisdiction?

PAGE 18

MR. PEARSON: No. It gives Congress authority to

\ : pass --

REPRESENTATIVE MARCUS: Doesn't it also include the

states?

MR. PEARSON: The problem is that Congress has

authority to pass legislation implementing sex discrimination

's laws, then they can override state law under the supremacy

} clause theory. And there are some areas where the issue of

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sex discrimination legislation is very controversial. For example, private sector sex discrimination. It is not clear that the federal government can pass legislation dealing with private sector sex discrimination. The enactment of this

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ERA may give the federal government authority to deal with that, and so some states are balking because they don't want the authority to legislate with respect to sex discrimination within that realm to reside at the federal level. They're

i willing to consider legislation in that area, but they think ]'J a state ERA is better because it leaves the decision-making 2P authority clearly at the state level rather than at the

federal level subject to be superseded.

MR. BONEY: Again, I'd like to make this observation.

Of course we all recognize the closely related area between

equal protection and the ERA Amendment to the federal .i."...; Constitution that they are asking the legislature to pass,

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19 approve, and I don't think that really this is a forum for passing that.
Now my thought is that in the Constitution that we're trying very hard to come up with simple, short language that will be subject to some judicial construction. I can't, i for the life of me, see how we can knock anybody out when we say no person. Certainly we can't say that color is not a person or sex is not a person or religion is not a person or ancestry is not a person. Now it seems to me that generally speaking the more language you put in there trying to specify and identify specifically, the more trouble you get into. And my only thought was that we retain the language that seems like everybody agrees on as the one sentence there in Paragraph I, and if we want to insert the equal protection, do that, and let it go at that and don't try to identify all these other rights and all these other particular persons that we're going to try to protect because we're going to do it under the word "person".
JUSTICE BOWLES: There is this thought. I agree with you that the Article should be simple in the sense that it is not complicated and that it should be brought so as to leave no doubt about it, but to try to put in an equal protection clause various provisions of what equal protectbn means may sound good in the reading but I'm not so sure that it accomplishes a great purpose.

-',
We are a subcommittee of a committee that will make

a report to an overall committee who in turn will go back to

the legislature. What we do here -- I donit mean to minimize

it -- but it should at least be approached with the thought

in mind that the legislature is going to revise it and present

it in its final form. So we are really making suggestions when it comes down to it. If we adopt a provision unanimously~

it means nothing except that it's a recommendation.

If I understand Mr. Marcus has been in the

legislature for some time and can probably tell you more about

the ERA battles than I can in a minute but I understand that

2 it has never been able to get out of committee even in

~ ~ Georgia, has it?

REPRESENTATIVE MARCUS:
t'
-' " one time.

It was voted on in the House

JUSTICE BOWLES: So we can put it in, but unless

there's something that's palatable to the legislature it's

going to be taken out.

MR. PEARSON: Well, I guess I think they're quite

different ramifications between having -- ratifying the

federal ERA and having it in your own state constitution, so -*

and I view most of those ramifications in terms of --

JUSTICE BOWLES: You missed the first meeting and

we did adopt this tentatively. We don't have any great rules

and we're pretty open to discussion but we did say tentatively

j'M;!.': 21
---~----I
if anybody had a suggestion about a change, that they would

submit it in writing to all members ahead of committee meetingf'

I

and I think we'd better stick by that rule because we have

[

I already used thirty minutes in talking about something that

hadn't even been proposed except by way of discussion. If

you have a proposal about it, submit it and we'll -- at our

next meeting we'll certainly consider it and put it to a vote.

But I'm afraid we're getting nowhere just by talking about it.!

.j

MR. HILL: Mr. Chairman, I think that unless you

intend to meet again before the full committee meets, you'll

"

have to have a tentative agreement in this committee about

I' what you propose to them, don't you think? This is the

last one we're going to have.

JUSTICE BOWLES: But we can't be bringing up new

matters that haven't been submitted heretofore. There's just

not going to be enough meetings available if we're going to

get de novo matter at the next and subsequent meetings.

MR. PEARSON: Well at least on this particular "~j point, this language is before us and maybe we can discuss

that. I reserve the right to submit written proposals.

JUSTICE BOWLES: No, I'm not trying to limit you.

I'm just talking about in the interest of time, this is a

debatable area obviously and if you have a suggestion about it _ --1 and I know you didn't know about this rule, this is not a

written rule but we did say this because we must have some

P,\(,E 22

- - -------1

I

prior warning because if we don't we're going to get into

I

such endless debate we're not going to be able to finish.

MS. MCGOUGH: What did you do about their letter?

What's the status of their written request?

JUSTICE BOWLES: If some committee member wants to

'l pick it up, fine, but that's just a comment from citizens or

a group, organization, as I see it. I don't propose it.

MS. DAVIS: I think we were asked to get informa-

tion from organizations and I think at some particular point

that kind of recommendation needs to be given consideration.

JUSTICE BOWLES: As what? Certainly it should

if you want to propose a specific proposal, I think a

committee member should present it.

,-.

REPRESENTATIVE MARCUS: Would the simplest thing

be, if someone were in great sympathy with the language

6

proposed by the League, that they move it, is that what

you're suggesting?

JUSTICE BOWLES: That's all right.

REPRESENTATIVE MARCUS: That they move adoption of

that language

.'1

MS. DAVIS: Well I would move for the inclusion of

that particular statement from Paragraph III of Section II

be included in Paragraph I.

JUSTICE BOWLES: You say what particular language

are you talking about?

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MS. DAVIS:

PAGE 23
---',,
The language that includes race, sex,

national origin, religion and ancestry, under due process.

JUSTICE BOWLES: And you're making a motion?

MS. DAVIS: I move that that be included in

Paragraph 1.

MS. MCGOUGH: Mr. Hill, did I not understand you

correctly to say that that's the recommendation of the other

subcommittee as well?

MR. HILL:' To this committee the other subcommittee

is recommending that that language be put into Article I,

Section I, Paragraph I.

MS. OSTRANDER: I'd like to second that motion.

JUSTICE BOWLES: There's a second to the motion.

Is there discussion?
1.
MR. HILL: Point of information.

Is your motion

" z to use this entire language

MR. PEARSON: The entire underlined language.

MS. DAVIS: The entire underlined language.

MR. HILL: In place of the other language?

MS. DAVIS: Yes.

MR. BONEY: What underlined language now?

MR. PEARSON: Paragraph III, Section II, beginning

line 179.

JUSTICE BOWLES: I'd like to point out to you that

in doing that, then do you delete the opening sentence?

--~,
MR. HILL: I think that the intent of this motion

is to replace Paragraph I, the present language, with this

second sentence of Paragraph III.

JUSTICE BOWLES: All right. If so, do you propose

to delete and omit the opening paragraph?

MS. DAVIS: Yes.

MR. PEARSON: Would it be in order to vote on the

deletion separately.

JUSTICE BOWLES: We have a motion before the floor

that we substitute the underlined language for the wording

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second.

Is there any discussion on it? MR. HILL: Would it have the same title, "Life,

>- Liberty and Property"?
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MS. DAVIS: Or it could be "Due Process and Equal
.' "
I (~ Protection", I'm not sure which would be better. The Col

lawyers in the group might comment on what would be more

appropriate.

MR. HILL: It's up to you, either one would be

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satisfactory.

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MS. DAVIS: I would think "Due Process and Equal

1"

Protection" would be more specific.

MR. HILL: That's part of your motion.

JUSTICE BOWLES: Restate your motion then.

MS. DAVIS: All right. I move that Paragraph III in

P\GE 25

Section II, Due Process and Equal Protection, be used as Paragraph I of Section I, using the words underlined.
JUSTICE Bm'lLES: The motion has been restated, is

there a second? MS. MCGOUGH: I'll second. JUSTICE BOWLES: Is there discussion on this? (No response.) JUSTICE BOWLES: Are you ready for the question? MR. BONEY: I'm not quite ready, Mr. Chairman. I'm
not a hundred percent sure that I understand the substitute. Are we going to delete everything that appears in Paragraph I

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of the '76 Constitution and go back over on page 5 and say

"protection, the duty of government", that's underlined, and

then just start off "No person shall be deprived .... " and so

forth? Is that the motion?
(,
JUSTICE BOWLES: If I understand the motion correctly

and you correct me if I'm wrong, the proposal is that we have

Paragraph I that will read, "Due Process~ Equal Protection."

And then the language would be the underlined language of

Paragraph III, Section II.

MR. PEARSON: Beginning on line 179.

MS. MCGOUGH: I have a question.

JUSTICE BOWLES: Yes ma'am.

MS. MCGOUGH: Mr. Hill, can you tell us, is the

first sentence in Paragraph III of Section II, is it the other

26 subcommittee's recommendation that that stay where it is and only the underlined go into Article I?
MR. HILL: Yes. MS. MCGOUGH: So they would both be in. JUSTICE BOWLES: No. This motion deletes that. I pointed that out. If we were going to ignore and leave off the first sentence and she said yes. MR. HILL: For purposes of our Paragraph I, Section I, but I think that it will stay here for the consideration of the other subcommittee as the first sentence in Paragraph III.
,'
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l The only thing that the other committee had recommended is that the second sentence be moved, but they had not recommended
,: that that first sentence be deleted or moved, and so I would assume it would just stay there for the consideration of that other committee. MR. BONEY: Here again it puzzles me. I'm certainly wanting to help and cooperate and carry out with the other committee, but after all, Paragraph I in Section I is the
;0
obligation of this committee. Now I certainly don't mind hearing how they would like for us to put something in there over in ours, but I don't know that I want to just say well we're just going to adopt their writing our Paragraph T.
MS. DAVIS: The deletion of the first sentence in Paragraph I really is included in my proposal of including "No person shall be deprived of life, liberty or property

without due process." It just enlarges on that.

PAGE 27
, - - _ . _ - - _ . _ . _ ~

JUSTICE BOWLES: You miss the point. What you're

deleting is the first sentence in Paragraph III.

MS. DAVIS: No, I'm not deleting that. I'm deleting

-- my motion was to delete the sentence in Paragraph I. I

can't deal with Paragraph III.

MR. PEARSON: Her restated motion did not include

u" your deletion from Paragraph III, which she wants to be

',j

dealt with separately.

i'l

JUSTICE BOWLES: When you transpose the language

II ,

,.l
.
."

l'

:::J'

j.

in the underlined portion of one, you omit the first sentence of Paragraph III.

MR. WHELCHEL: It just leaves it the way it is. It

leaves it in the paragraph. May I call the question?

JUSTICE BOWLES: Yes.

MR. t~ELCHEL: lim ready to vote.

J'

JUSTICE BOWLES: Those in favor of the motion,

signify by saying aye.
"1
(Ayes. )

JUSTICE BOWLES: And those opposed.

(Nays. )

JUSTICE BOWLES: I would say that the motion was

carried and if counsel will, in its next draft send us a

revision with the effect of the motion.

Shall we move on?

rAGE 28

Paragraph II. Paragraph II is the Freedom of

I

Conscience paragraph and it has only been changed to neuterize!

the sex. Are there any suggestions about further changes to

this paragraph?

(No response.) JUSTICE BOWLES: If not -- yes, sir?

MR. CARLYLE: I had discussed with Mr. Hill about

the use of his or her as a method of neuterizing and I wondere~

9 I' if that method was suitable throughout the Constitution, he

)
'"__..
~:
n,
:!
.J.
~: "Iflfn

and I had discussed using -- not using personal pronouns but using the nouns at all times as a method of neuterizing.
JUSTICE BOWLES: Applying that to this, what noun would you use?

MR. CARLYLE: "All people" or "All persons have the

~ natural and inalienable right to worship God, each according "'
to the dictates of such person's own conscience .... " or

"... their own conscience .... "

IS

MR. WHELCHEL: "Their" is incorrect granunatically.

MR. CARLYLE: That's what I thought, that's why

I --
1:

MR. PEARSON: One approach I have seen in drafting

is to try to use the word "individual" in substitution for
).
. ,) his or her wherever possible. It may not work throughout

but it might -MR. CARLYLE: Any use of a noun rather than a

pronoun can get around the gender problem.

PACE 29

MR. PEARSON: Oh, I was just suggesting that as a

technique some people are using in drafting now, "on account

of individual religious opinions". It may be clumsy in some

context, but it might work -- the use of the word "such"

( sometimes seems a little legalistic and so forth.

MR. CARLYLE: How would you word that particular

MR. PEARSON: Let's see -- "All persons have the

') natural and inalienable right to worship God, each according

!i) to the dictates of individual conscience .. "

MR. HILL: " . of the individual's own conscience "

thought.

MR. PEARSON: Something like that. It's just a

i

I

I'm not trying to make a motion. I t may b e sty1 1 St1CI

I

but that might work.

..
l{l ;1
.:'\

JUSTICE BOWLES: than "his or her" .

I believe that's a little smoother

MR. PEARSON: That's what I was thinking, stylisticall}

I kind of like it a little better.

Il/

JUSTICE BOWLES: As far as meaning is concerned, I

2C doubt that it would change any meaning. If we're going to

adopt such a policy it should be uniform throughout. I

think in reading other constitutions, you'll find that

there is different language in many different provisions, it

varies, getting at the same point. But that's neither here

nor there. We can be -- try to be uniform.

._--, PACE 30

-~-----

--

Mr. Marcus?

I

REPRESENTATIVE MARCUS: I thought that at one of

I

I

the previous meetings, I guess the last one, recognizing that I

I

Mr. Hill had so little to do that we would offer him the

!

opportunity to go through the entire Constitution with a view

toward neuterizing it. For us to do with our particular area

of responsibility and another group to do it with theirs

would be meaningless. We should have a central theme if you

9 would go ahead and do it.

o

MR. HILL: Actually this is helpful though because

I was having trouble. I don't like "such person" all the

,
., time, occasionally it will work but "the individual" may I."

t.

" ~-I)

help us out.

I'll go through this again and try to do a bette~

.

job. " ,i,'.,,

I don't think we have to deal with it each time.

, CC

~

JUSTICE BOWLES: Has the question been raised with

i (. other committees?

MR. HILL: All of them have agreed, to the extent

possible, to use --

JUSTICE BOWLES: His or her?

MR. HILL: Not his or her, neuterize it.

JUSTICE BOWLES: However the choice of language to

neuterize it is somewhat open? It's a matter of language flow.

Personally I like "the individual".

MR. PEARSON: That would probably work in most of

the areas.

JUSTICE BOWLES: In this day of advanced science

and human body, it might get to where you can't tell.

REPRESENTATIVE MARCUS: Judge, you're fixing to go

into a different area.

JUSTICE BOWLES: No, sometimes you can't tell

whether it's a his or her. I'm serious about it. liThe

individual II says a lot more, does it not?

REPRESENTATIVE MARCUS: Yes it does, it really

does.

JUSTICE BOWLES: What do you say we adopt,if you

, I think well of it, that we adopt language similar. I'm not

~~", :,' ,

\ ,
, 1'_

I\

'

" )J

trying to bind him in his draftsmanship, but lithe individual ll approach to neuteri.zing the gender provisions where it can

be used. I can't envision all of the possibilities at this

point, but what is the consensus of the group about his

n proposal, "individual ll as opposed to IIhis or her ll

MS. DAVIS: That's a good idea.

JUSTICE BOWLES: Is there a motion that we try to

adopt this?

MR. PEARSON: I will so move.

JUSTICE BOWLES: Is there a second?

MS. DAVIS: I'll second.

-,.">

JUSTICE BOWLES: Discussion?

(No response.)

JUSTICE BOWLES: All in favor say aye.

',__' ,__ ,

, ,'

~

'_ ,~ ,

,-.J

J'AGL 32

(Ayes. )

JUSTICE BOWLES: Opposed, no.

(No response.)

JUSTICE BOWLES: Suppose you try, to use that when

you can. And we will be open to suggestions from other

)

1

committees too.

It should read like it wasn't put together

by a committee.

All right, area we ready then -- other than that,

on Paragraph II, is it acceptable -- the substance of the ) paragraph? We have already I believe in the previous

committee meeting adopted some of these unless there was some "
change and maybe we should adopt this formally since we have

,I!l

/.

adopted I.

Is there a motion then that we adopt Paragraph II

with the change of from "his or her" to "dictates of the

6 7 individual's own conscience"?

"

7 ,Xl

MR. WHELCHEL: I so move.

'Ii

JUSTICE BOWLES: Do we have a second?

,',
MS. DAVIS: Second.

20

JUSTICE BOWLES: Discussion in this area?

".:.1

(No response.)

"

JUSTICE BOWLES: Those in favor, aye.

23

(Ayes. )

JUSTICE BOWLES: Those opposed, no.

(No response.)

PAGE 33

JUSTICE BOWLES: It's carried. We'll go to III,

Religious Opinions; Liberty of Conscience. This language

really had no objection at our last meeting. It has a his

or her provision in it.

MR. PEARSON: May I ask you a question, point of

information, Mr. Justice Bowles?

JUSTICE BOWLES: Yes, sir.

MR. PEARSON: I know in the recent times there

have been some Supreme Court decisions federally dealing with

state funding and subsidies to sectarian schools and there has

II

been a liberalizing trend with respect to that as far as

federal issues go. What would the State Supreme Court's

position be on that kind of question? Would the State

::)

Constitution be more restrictive than the federal interpreta-

1~

tions on that?

j l'

JUSTICE BOWLES: I doubt it.

MR. CARLYLE: In Section II, Paragraph X, it deals

specifically with money for church purposes and has been I<i discussed by the other committee.

JUSTICE BOWLES: Section II, Paragraph X.

MR. BOWLES: Page 7.

MR. PEARSON: Well, I don't want to detain us any

further on that, but -- and I really don't know what the

policy might be legislatively here with respect to that kind

of aid, but it has come up in other context and there has been

,,- _ _- - _._--_..

--~._~-

...

34 -------1

several restrictions and I don't know whether we want to

Ii

I

,i,' rethink assistance to educational institutions that might be

sectarian, if the assistance is directed to non-sectarian

activities. I don't know whether that's something we ought

to think about and maybe hold for discussion if there is a

need. I just raised the question.

MR. BONEY: I think that would fall in the second

section however. Right now we're talking about the individual!s

rights.

MR. PEARSON: Yeah, I think you're right on that
~- because this really doesn't deal with the financing end of it. "
.",
: ~ We can just hold that.

t ... : I~-.!!?_ 'Jl

JUSTICE BOWLES: All right, I assume we will delete

the "his or her" on this, "the individual's religious

opinions"

tl

MR. BONEY: Are we just going to go through now and

adopt the ones we tentatively adopted before, formally today?

\,

I;

JUSTICE BOWLES: I think so.

19

MR. BONEY: I move the adoption of Paragraph III.

20

JUSTICE BO\iLES: With that change?

MR. BONEY: Yes, sir.

1'

JUSTICE BOWLES: Is there a second to this?

MS. MCGOUGH: I'll second it.

JUSTICE BOWLES: Discussion?

(No response.)

PAGE 35

JUSTICE BOWLES: Those in favor, aye.

(Ayes.)

JUSTICE BOWLES: Opposed, no.

(No response.)

JUSTICE BOWLES: It's adopted. IV, Liberty of

Speech or of the Press Guaranteed.

MR. WHELCHEL: May I ask a question?

JUSTICE BOWLES: Yes, sir.

MR. WHELCHEL: Why has "Freedom" been changed to

"Liberty"? Is there any

,J :I

JUSTICE BOWLES:

I'm not familiar with the back-

ground. Can you help us, Melvin?

MR. HILL: It wasn't supposed to be changed. The

Paragraph IV, Liberty of Speech or of the Press Guaranteed?

This is supposed to be from the computer, the exact language

that we have now, so that may have been an error.

MR. WHELCHEL: I just wonder about changing words

opening up a Pandora's box.

MS. MCGOUGH: The present Constitution says "Libertyll.

MR. HILL: There's been no change there, you see.

MR. WHELCHEL: But I wonder why it was changed.

REPRESENTATIVE MARCUS: Oh, in '76, I see.

MR. HILL: Oh, it was changed from '45 you mean?

MR. WHELCHEL: I think it was changed from '45 to

'76, wasn't it?

36 MR. HILL: I think perhaps -- I wasn't involved

then, but I think perhaps "Liberty of Conscience"in Paragraph

III, they felt "Liberty of Speech" would be a little more

consistent.

JUSTICE BOWLES: But all the wealth of case law we

have on the subject talks about freedom.

MR. WHELCHEL: That's right, that's what I was

~ thinking, whether that reopens the situation.

JUSTICE BOWLES: The public on the street talks

about freedom of speech, this is common thinking of all
-,
I - people, I think. Does anybody disagree with that? We're
(,
~,
~ talking about freedom of speech, it is so basic and so

"!!-~, historical, I would be hesitant -- I don I t see any point in v u'\

14 changing it to "Eiberty of Speech".

,

REPRESENTATIVE MARCUS: Also, if it was in the '45,

r...:;

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i)

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why did they make the change in

'76?

0'

7

MR. WHELCHEL: I don't know. One other question --

;<

JUSTICE BOWLES: The federal protection speaks of

0 freedom.

'e

MR. HILL: I don't have the '45 Constitution.

MR. WHELCHEL: I don't know whether I've got it in

here or not.

REPRESENTATIVE MARCUS: Are you sure in the 1945

Constitution it said "freedom of speech"?

MR. WHELCHE~: I wouldn't swear to anything without

PAGE 37

looking at it.

MR. BONEY: It was in the '77, it's probably in the

'45.

MR. WHELCHEL: Well, I'm just looking at this

Paragraph XIII in this H.R. 514.

MR. HILL: Oh, that was the 1970 proposal. Did they

use "freedom"?

MR. WHELCHEL: They used "freedom".

MR. HILL: Well then they went back.

MS. MCGOUGH: If we're to rewrite to make it more

understandable to the populace, then why should we say

"liberty of conscience" or "liberty of speech". t'1e should

say freedom of both, that's what everyone speaks of.

,;

JUSTICE BOWLES: That's certainly my understanding.

Are you suggesting then that we make it read "Freedom of

Speech or of the Press Guaranteed"?

MS. MCGOUGH: I would add that to include Conscience

in Paragraph III that has already been passed. If we're

doing parallelism, I think they should be the same.

MR. tVHELCHEL: And I had one other question, why

is it limited to prohibiting laws rather than as it was --

and I recognize Justice Bowles, your rule from that first

meeting, I'm sorry I was not here. In your proposed '70

Constitution, rather than saying "No law shall ever be passed

to curtail ... ", it merely read "Freedom of speech and of the

!') ~'\, ('rE," 38

I ' press shall not be curtailed or restrained either by law or

any other means ... "

.' I.

One other thought and then I'll hush. I notice in

some of these other state constitutions that the question of evidence in libel matters was handled in that same paragraph ) rather than as a separate paragraph.

JUSTICE BOWLES: We're going to make a suggestion

immediately when we finish discussing this in regard to libel.
What is your thought about "Freedom of press and freedom of speecH' in this particular paragraph? Which do you like the best? All those in favor of "freedom" raise their

hands.

,4 )
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1:
,5 ,~
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6 It:. 1 I !
"7 r:t.
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(Votes were cast.) MS. MCGOUGH: That's a winning move. JUSTICE BOWLES: That's what we know, isn't it. Those in favor of "liberty".

(3

All right, with that, then what about the language

Ii
!q in Paragraph III that we've just adopted, it does say "Liberty

20 of Conscience".

)
-

1

MR. BONEY: And II says "freedom", I think we ought

)
to stick with the same thing. Let's just use "freedom" all

the way through. JUSTICE BOWLES: I'll then go back to our adoption
of Paragraph III and ask if there is a motion to reconsider and

PA(~E 39
--,-- --------'------,
insert the word "freedom" in lieu of the word "liberty". Is

there a motion to that effect?

< :i

MR. WHELCHEL: I so move.

,I
Ii
JUSTICE BOWLES: Is there a second?

I

"I
MR. BONEY: I second it.

(.

JUSTICE BOWLES: Discussion?

(No response.)

)
~i
"

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1] -

o,-

j2

"
u

JUSTICE BOWLES: Those in favor, aye. (Ayes. )
JUSTICE BOWLES: Opposed, no. (No response.)
JUSTICE BOWLES: It's adopted. Now on Paragraph IV

so far we do have a "his or her" in there again.

MR. HILL: Mr. Chairman, I think it's a very good

,
I

!,

point Mr. Whelchel made about the difference in the '70 proPos~l.

.:r: :,

!

-. I ..j ...l h

The '70 proposal stated a little broadly, "Freedom of speech

i

I"X r,

shall not be curtailed or restrained either by law or other

means ", it is a substantive difference from the present

I') language. I'm not sure if you'd like to consider this as

20 a substitute.

21

MR. PEARSON: Would you quote that language again?

MR. HILL: You should have this in your packet.

MR. WHELCHEL: It's in the '70.

MR. HILL: Page 6 of the '70 proposal states --

JUSTICE BOWLES: Read it aloud. Give us your

- ' - - ---- ------ ,-----,,-,- -

-------- --- ---------- -------,,----

-----_._-- --P--A--G_.E- -.4.-0----------l

i
'I

attention, this is what was in the '70 proposal as against

what's in the '76 Constitution. Read it, Mr. Hill.

I

I

MR. HILL: "Freedom of Speech and the Press.

I

Freedom of speech and of the press shall not be curtailed

or restrained either by law or any other means. Any person

; may speak, write and publish his sentiments, on all subjects,

being responsible for the abuse of that freedom."

JUSTICE BOWLES: That language is better, isn't it?

MS. MCGOUGH: Uh-huh.

MR. WHELCHEL: It seems to me that that's more all

encompassing.

~

2

"(J: ,f.1

JUSTICE BOWLES:

Instead of having a semicolon and

I !~ r

l:
~

break it into two thoughts as the present Constitution does.

... i

MR. WHELCHEL: And it takes care of the bureaucracy I

" ',_:JI as well as the legislation.

'I.;

(J
'.

JUSTICE BOWLES: What about it?

'':1

T

MR. PEARSON: I'd like to move the adoption of the

language suggested by Mr. Whelchel which is Paragraph XIII of
]'- the '70 Constitution.

MR. WHELCHEL: With the change to neuterize it?

MR. PEARSON: With the stylistic change to neuter.
'J 1
JUSTICE BOWLES: Does that complete your motion?

MR. PEARSON: Yes.

JUSTICE BOWLES: I have a motion, is there a second? I

MS. DAVIS: I second it.

.;
I: !.
,./ 'I

PAGE 41 JUSTICE BOWLES: Is there discussion in this area?
(No response.) JUSTICE BOWLES: Those in favor, aye.
(Ayes. ) JUSTICE BOWLES: Opposed, no.
(No response.) JUSTICE BOWLES: That's adopted. Now let me point out here some thinking that we had in out-of-committee discussions. If you will drop down to Paragraph VIII, we'll momentarily, with your permission, bypass Paragraphs V, VI
and VII and go to VIII, which is the issue of Libel. Freedom
of speech and the issue of libel are in the same thought area anyway, and we were thinking perhaps that we should move the libel section immediately to follow the freedom of speech section so as to give it contrast, if that's worth anything. I don't think legally it's worth a lot but for understanding, I think the people reading it could understand it better.
There was a thought from my discussion with staff counsel that in VIII that Libel be the topic of the paragraph and that we eliminate -- you have it here
MR. HILL: They all have it. JUSTICE BOWLES: You have it in your packet as a proposal. The Paragraph VIII, as I said, the subject matter would be the word "Libel" and then the language which you have would read:

l'A(~E 42

"In all civil or criminal actions for libel,
1
I,
the truth may be given in evidence, and the trier

of the facts, under the direction of the court,

shall determine the law and the facts; and if it

shall appear to the trier of the facts that the

matter charged as libelous is true, and was

published with good motives and for justifiable

ends, the party shall be discharged."

MR. HILL: I'd like to point out that this language
i
incorporates some of the language found in four or five of the'

other constitutions on this section. They have added in
"
..I other places, "with good motives and for justifiable ends"
-,
"0 7.: I'm not sure that that's an addition you would want.

~ about.

MR. MARCUS: That's something I was going to ask

MR. WHELCHEL: Yeah, that's a substantive change in

! the definition.

MR. HILL: It is a very significant substantive

change, and I put it in only because it's easier to strike

lC it out, you know, than to give it to you here. The staff

,)' has no thought on this either way, it's up to you.

,'

MR. MARCUS: If I may

JUSTICE BOWLES: Yes, sir, Hr. Harcus.

MR. ~ffiRCUS: It seems to me once you begin to

qualify truth as a defense and you begin to look at why it was

PAGE 43

done, whether it was with good motives and justifiable ends, you begin to diminish that truth is a good defense. It just seems that simple to me. It either is or it isn't.
MR. WHELCHEL: Motive is a state of mind. MR. MARCUS: If it's in order, I would move, just so we get something on the table, that the language as

presented be adopted with the one change, after the words

"as libelous is true, the party shall be discharged." Strike

that portion that has to do with good motives and justifiable

II

ends.

MR. WHELCHEL: I'll second his motion.

JUSTICE BOWLES: Let me clarify my understanding.

The exact language then would be -- would you illustrate?

1,1

MR. MARCUS: You want me to do it?

"In all civil or criminal actions for libel
.. '
-':1
the truth may be given in evidence, and the trier

of the facts, under the direction of the court,

shall determine the law and the facts; and if it

shall appear to the trier of the facts that the

matter charged as libelous is true, the party

shall be discharged."

MS. MCGOUGH: May I just have a point of clarifica-
tion? This change I assume is to provide for bench trials?
MR. MARCUS: Yes.
MS. MCGOUGH: All right, now If the power of judges to,
------_._--

44 grant new trials" is going over to another section, is that

right?

JUSTICE BOWLES: I don't know how that ever got in

this section.

MR. HILL: It's aready in Article VI, it really was

II kind of misplaced.
'i:I
JUSTICE BOWLES:

Hotions for new trials certainly

should be in the Judicial Article.

MR. WHELCHEL: This also adds the instructions of

'I court as to the law, doesn't it, that maybe wasn't in the other?

JUSTICE BOWLES: Yes. The trier of facts -- the

, old Constitution says the jury.
u
MR. WHELCHEL: Will determine the law.

JUSTICE BOWLES: That's what it said. But we have
.,
so many trials now that are not a jury trial. It doesn't

prohibit you from having jury trials but you can have libel

" actions tried by the court. MR. WHELCHEL: What I had reference to

JUSTICE BOWLES: Whoever that trier of facts is.

~l

MR. WHELCHEL: -- was the addition of "under the

,. direction of the court", which I think is good and clarifies

that other statement.

JUSTICE BOWLES: I have a motion then before the

court before the committee that we adopt this language

PAGE 45

which has been presented. Is there a second to this motion? MR. WHELCHEL: I second it. JUSTICE BOWLES: Is there discussion in this area? (No response.)

JUSTICE BOWLES: All those in favor say aye.

(Ayes. )

JUSTICE BOWLES: And opposed, no. (No response.)

JUSTICE BOWLES: It's adopted.

Now as to the location of this, your motion did not

include it. Would we move then Paragraph VIII as adopted up

to and make it Paragraph IV?

(I i

MS. MCGOUGH: I so move.

REPRESENTATIVE MARCUS: I thought that's what we

had discussed.

JUSTICE BOWLES: We did discuss it but you didn't

maybe I'm over-technical, but we are going to have to arrange

it. MS. OSTRANDER: I second the motion. Lucy made the

motion.

JUSTICE BOWLES: You did do that. Is there a

second?

MS. OSTRANDER: I second it. JUSTICE BOWLES: All right, any discussion?
(No response.)

iT ----- - -- -
"

PACE 46 JUSTICE BOWLES: All those in favor, aye.

(Ayes. )

JUSTICE BOWLES: Opposed, no.

(No response.)

JUSTICE BOWLES: And it's adopted. That's good, I

think it is an improvement. If we contribute anything --

The Paragraph V, which would be new Paragraph VI,

"Arms, Right to Keep and Bear. The right of the people to

keep and bear arms shall not be infringed, but the General

) Assembly shall have power to prescribe the manner in which

arms may be borne."

Thoughts about this?

MR. PEARSON: Just a point of information, what

about the placement question? Can someone tell me about that?:

~/'
<

1

5"

MR. HILL: There was some thought at the last meetins

i; that this maybe should be moved lower than where it is, that

7 other things coming later belong where this one is, looking at

this in terms of priority of rights

.j

MS. MCGOUGH: Well it also intervenes between speech

'0 and press and freedom of assembly.

JUSTICE BOWLES: Yes it does.

REPRESENTATIVE MARCUS: That was the reason.

JUSTICE BO~iLES: Well we had said previously I

believe that in the end -- we may be moving some now -- but in

the end, after all recommendations for Articles were approved,

PAGF~ 47 we were then going to submit a recommendation as to order.

We may be doing some of that today, probably at my suggestion,

we will corne back to that. The matter of renumbering and

placement is a matter of logical choice. I don't think we

can do it all in advance is the reason for it. Suppose we

corne back to that. Would that be satisfactory to the

committee?

All right, on the issue then, on this particular

article whatever it may be ultimately numbered, are there

1()

any other thoughts about it?

,,
,I

(No response.)

JUSTICE BOWLES: Is there a motion then that we

adopt it?

REPRESENTATIVE MARCUS: I so move.

JUSTICE BOWLES: Is there a second?

MR. WHELCHEL: I second it.

MS. MCGOUGH: I really don't like "borne" but I

can't think of a substitute. I'm afraid that's not easily

understood by people on the street but I can't think of

anything else.

MR. HILL: Well it relates to bearing arms, so it's

kind of the right word, the right to keep and bear arms, but

the way in which they may be borne can be regulated. I think

it fits in the paragraph.

JUSTICE BOWLES: Any other discussion?
---,-------------- -

MS. MCGOUGH:

_ 48

, .. _...,

I don't like "bear arms" either.

MS. GREENBERG: Has this paragraph been discussed as;

far as changing the wording in view of the recent not

recent, but in view of gun control legislation which is surely'

going to be

I think the "shall not be infringed" is going

to be a problem as far as any type of legislation proposed.

Can that be alleviated without doing any dishonor to that

concept of the right to bear arms?

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JUSTICE BOWLES: I don't know whether we discussed this in committee or whether I discussed it with counsel. I think it would be well to put this in the record because when the courts start interpreting these various questions, they pull this record that this lady is making today and get the

thought input that goes into it. And I think this is good.

This is my particular thought, that the last portion of the

n7
,~

article that says " but the General Assembly shall have

Cl

1

,7 ;{. power to prescribe the manner in which arms may be borne. II

gives them the right to make reasonable laws regarding hand

gun control or what-have-you. That's my thought.

Mr. Marcus?

REPRESENTATIVE MARCUS: Judge, the court does look '2 to the commission's intent?

JUSTICE BOWLES: Yes, sir.

24

REPRESENTATIVE MARCUS: Let me ask you another

question.

PAGE 49

JUSTICE BOWLES: Yes, sir?

REPRESENTATIVE MARCUS: Does the court look to the

con~ittees of the General Assembly also for legislative intent?

JUSTICE BOWLES: If it can find them, and they're

awfully hard to find out of sheer volume. You have so much

volume there. You have constitutional committee proceedings

that is usually bound in one book, but you have such a

tremendous volume, committee discussions and so forth in the

legislature, it's hard to do.

MR. PEARSON: The second part of that clause refers

to the authority to regulate the manner in which arms may be

borne, my question is whether the word "borne" might be

insufficient if we're talking about the idea of regulating

I 'I

sale and distribution of firearms. The use of the word f1borne~

means to me --

MR. BONEY: Carrying.

MR. PEARSON: -- like carrying weapons.

REPRESENTATIVE MARCUS: If you put it in a shoulder

holster.

MR. PEARSON: Yeah. And perhaps it would be

worthwhile to think about adding a phrase which suggests that

the General Assembly has the authority to regulate the manner

in which arms are sold as well as being borne.

MR. WHELCHEL: You can't use one without carrying it

JUSTICE BOWLES: It's never a danger until it's

I
i

- - - - - -------

carried.

PAGE 50 -, - --~---------

- --

j

MR. WHELCHEL: That's right.

MR. HILL: Let me ask this question. The City of

Atlanta is considering an ordinance, as you may have been

reading, to prohibit certain people from carrying weapons, if

they have a history of mental illness or they were convicted

felons they would be prohibited. Now I'm not -- you know,

that may be illegal under state preemption law, but I'm

wondering whether if the state were to try to enact such a

restrictive thing, would that be permissible under this language.

Does the General Assembly have the right not only to prescribe

the manner in which they may be sold -- may be carried, but

can they in fact prohibit a person because of their record

or because of mental illness or whatever from having a firearm?

I'm not sure how this would be interpreted as it is presently

written.

JUSTICE BOWLES: I'm not sure either. I don't want

to prejudge anything but I would think it would be inter-

preted liberally so as to prevent --

MR. BONEY: Manner and persons I would think, I

think the General Assembly under this item here would have the

authority to prescribe the manner and the person who may carry

arms.

JUSTICE BOWLES: We long ago approved licensing,

concealment

PAGE 51

MR. BONEY: Right.

JUSTICE BOWLES:

caliber.

REPRESENTATIVE MARCUS: Isn't it true this is

probably the same language that appears in almost every state

constitution? Many of those same states have in fact done

what you have suggested.

JUSTICE BOWLES: It's practically the same language ..

REPRESENTATIVE MARCUS: I have a negative reason for

liking the language. If you change the language, I am fear-

'iJ ful that, depending upon your point of view, one side or the

other is going to say that that's what you did, you embraced

one side or the other in terms of the whole question. And thi.

way it seems to me that it is overt, that if the General

Assembly acts one way or the other, they won't feel they are

"

l '. precluded. But that's a negative approach.

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JUSTICE BOWLES: Certainly change should be made

where change is necessary but the court does look, when there

is a change in words, that there was an intention on the part

1'1 of the framers to give it a different meaning from the meaning

that theretofore existed, and that's somewhat dangerous unless

there is some compelling reason.

MR. PEARSON: Oh, I was really just suggesting that

maybe the use of the word "borne" might be too limited. 1 1 m

really basically fairly persuaded that it's not something we

ought to worry about.

JUSTICE BOWLES:

l'A(lE 52

""- "--- -- - - f -"~"~-"-

-"--~

I
Well since we've got to move along,;

unless there's something substantial in this area, suppose we

present this question then on this particular paragraph. Is

~ there a motion to adopt?

MR. BONEY: I move we adopt the paragraph.

JUSTICE BOWLES: Is there a second?

MS. DAVIS: Second.

JUSTICE BOWLES: Is there discussion?

(No response.)

JUSTICE BOWLES: Those in favor say aye.

, ,

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(Ayes. )

JUSTICE BOWLES: Opposed, no.

(No response.)

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JUSTICE BOWLES: Fine. Let's go to Right to Assemble and Petition. We had no suggestion for change on that last time. Unless there is a thought about it that hasn't occurred to us, could we again approve it?

8

MR. PEARSON: I so move.

~i

MS. OSTRANDER: I second it.

~ ()

JUSTICE BOWLES: Discussion?

(No response.)

JUSTICE BOWLES: Those in favor, aye. Don't let me

move too fast

MS. MCGOUGH: I have discussion. I would be willing

to bet that nine out of ten people on the street don't have the

PAGE 53
----_.-,
foggiest idea what the word "remonstrance" means. I would

bet nine out of ten law students.

'!

JUSTICE BOWLES: Professor, what does remonstrance

.1 mean?

MR. PEARSON: I was going to suggest maybe one out

"

I

I

of fifteen people here might know specifically what remonstran~E

I means.

MS. MCGOUGH: Did '70 do anythin~ with it?

('

MR. HILL: It's the same in '76.

)'"

MR. PEARSON: It refers to expression, that's the

II idea, but I guess it's kind of an antiquated term. .:.:: ':J .?,; MS. MCGOUGH: I don't think it's clear at all.

MS. OSTRANDER: They left it in.

MR. BONEY: Paragraph XXII in the '70.

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MR. WHELCHEL: It reads the same MS. MCGOUGH: I don't like it.

II

MR. WHELCHEL: It was adopted from the '45

I l' Constitution.

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JUSTICE BOWLES: Well I sort of think the sense in

;:>0 which it is used here, it meant that you could verbally

.-l ; request relief. It's used in the context that you can have

your grievances by petition, that implies a writing, and if nQ~

in writing by verbal request for relief. Instead of demon-

strating you remonstrate. If it doesn't mean that -- I could

be wrong. I think it means remonstrate, "I plead with you to

PAGE 54

do something about this and I have that right to do it. 1I

MS. MCGOUGH: Well, petition by word or in writing

is better in that particular sense.

JUSTICE BOWLES: You might say by act

MS. MCGOUGH: Peaceful act, writing.
i
JUSTICE BOWLES: I'm not using this endorsing it, but

George Wallace standing at the door was a remonstrance. He
I:
didn't say anything, he didn't write anything, but I mean it'sl

a method of saying --

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MS. MCGOUGH: Yes, I agree. MR. HENRY: Doesn't "assemble peaceably" take care of by peaceful acts? MS. MCGOUGH: All right, then "or by petition written or " MR. PEARSON: We're really talking about a separate clause about how you communicate with government. You can assemble peaceably for reasons that don't require you or don't

,8 " have the objective of communicating with government. I think

i9 that's Lucy's point.

:0

MS. MCGOUGH: I'm just suggesting tha.t if;we-'re

!1 troubled about using liberty or freedom, and what the common

man things, then we really ought to do something about remon-

strance.

'4

MS. GREENBERG: Could we not finish the sentence

2~ after petition, period because petition could be --

MR. PEARSON: Oral.

PAGE 55
--, -------------,
I
I

MS. GREENBERG: -- oral or written. And that would

alleviate the problem of what is remonstrance.

MR. WHELCHEL: Why don't you just put the period

S after "grievances"?

MR. PEARSON: I think that might even be the best

Ii thing.

JUSTICE BOWLES: Just make it as broad -- as long as

it's peaceful, make it as broad as possible.

10

MR. BONEY: Do anything you want to do as long as

it's peaceful.

REPRESENTATIVE MARCUS: Wait a minute, if I may

The right to assemble peaceably, is that tied directly to

grievances by petition or is it "the peqie shall have the righij: I <' T.
1" :~ to assemble peaceably for their common good" and the people
"
shall have the right "to apply to those vested with the powers,

of government for redress of grievances by petition or

remonstrance."? It seems to me that

MS. MCGOUGH: How about by petition or assembly?

MR. BONEY: Well, might be inviting trouble. I

think the period after "grievances" would do it, "for redress

~).2

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of grievances".

You've got the right to assemble and go

further to apply to the officials for redress of grievances.

JUSTICE BOWLES: That says a lot to me.

.'C "

REPRESENTATIVE MARCUS: Except that "petition" reallYr

has become historically a way of life.

PAGE 56
l

JUSTICE BOWLES: Yes, but redress includes petition.

MR. BONEY: That doesn't knock out petition.

Sit?

MS. MCGOUGH: Apply would include petition, wouldn't

MR. PEARSON: I would say so. That's my feeling 7 , about the change, I think it will work.

MR. BONEY: Aperiod right after "grievances", by

written petition or oral pleading.
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anyway.

JUSTICE BOWLES: This would eliminate remonstrance
MS. MCGOUGH: For the common man. MR. PEARSON: You'll be the official historian on

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this particular point. JUSTICE BOWLES: In the interest of time, suppose we
have a suggestion then that we adopt it in some form, I'm not trying to suggest a form.

'8

MR. WHELCHEL: Is that opening the door to any

[9 problems?

ZO

MS. MCGOUGH: If we have to do it, that should say

?l something.

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REPRESENTATIVE MARCUS: May we hear from Black's?

_) .>,

JUSTICE BOWLES: Yeah, let's have a report from

~4 Black's. The first law book I ever bought was Black's Law

25 Dictionary, I still have it.

PAGE 57

MR. CARLYLE: It's described as however it's

pronounced -- "expostulation" --

MR. PEARSON: I like that, that's what I'm voting

.1

for.

MR. CARLYLE: " showing of reasons against

something proposed; a representation made to a court or legislative body wherein certain persons unite in urging that

a contemplated measure be not adopted or passed."

MR. PEARSON: A very precise word, isn't it.

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MR. CARLYLE: The dictionary, "to say or plead in

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y protest or opposition." Obsolete, they call this definition.

1 ") "To point out, demonstrate very strong reasons against any

course of action, protest, object." That's it.

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MR. HILL: Maybe it's a better word than I thought
MR. PEARSON: It seems like a very good word. MS. MCGOUGH: Why isn't it covered by "apply"?

l'

MR. PEARSON: I think it is, you could interpret

I; "apply" that way, but I suppose that given the antiquity of

the language, I'm not I would go along with a stylistic
,:
change but I don't think that the word is inappropriate and

I don't really feel that strongly about changing the wording

for purely stylistic reasons where the meaning is clear. I'm '1 open on it, but I guess that's my thoughts.

JUSTICE BmiLES: Any motion?

PAGE 58

- --- ---------------- - --- - --------------------- --------------------l

!'

REPRESENTATIVE MARCUS: If it will help move us

i

forward I will move the adoption as is.

I
I

MR. PEARSON: I'll second that.

JUSTICE BOWLES: Discussion on this?

(No response.)

JUSTICE BOWLES: Those in favor say aye.

(Ayes. )

JUSTICE BOWLES: Opposed, no.

MS. MCGOUGH: No.

JUSTICE BOWLES: I believe the ayes have it and we

will so move.

The next one is VII, Attainder; Ex Post Facto and

Retroactive Laws, Etc. I would suggest we strike so forth, etc. Now this language is somewhat uniform throughout America~

it is somewhat bedrock and we certainly have a wealth of

authority based on it, so I don't know -- we had no suggested

changes the other day. Are there any today?

MR. PEARSON: I'd like to move that we adopt the

paragraph as is with the deletion of etcetera.

JUSTICE BOWLES: All right, is there a second to

this?

MR. WHELCHEL: Second.

JUSTICE BOWLES: Any discussion?

(No response.)

JUSTICE BOWLES: Those in favor say aye.

(Ayes. )

-------

-

-

-

-

-

-

-

PAGE
-----

-

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JUSTICE BOWLES: Opposed, no.

(No response.)

JUSTICE BOWLES: It's adopted.

We have already dealt with VIII, so we'll move to

IX. Right to the Courts.

IINo person shall be deprived of the right

to prosecute or defend his or her own cause in

I)

any of the courts of this State in person or

byattorney .. 1t

The suggestion wasthat we delete "both ll We

discussed this the other day. We had a question -- for those

of you who were not here -- in a very serious criminal charge

~ " .. where a man was furnished counsel, in addition to that he

employed counsel and in addition to that when he got in trial , ' he made a motion that he be allowed to act as his own counsel

I ! or as co-counsel. In doing so, he insisted on his rights to

make a determination as to when certain witnesses would be

interrogated, opening and concluding arguments would be held

and so forth. The result being that instead of an orderly

trial you had turmoil. The question came to the Court of

Appeals, the Court of Appeals says he has a right because the

I' Constitution says lIor both ll Nobody knew that our Constitution
i
said "or both" until that point and upon looking back, for

some reason it had been inserted. But it doesn't aid the triaJ

__

-

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....---.---.-.--- ------- ------.- PAGE 60 -----~---_--_l
process, it confuses it.

We were suggesting before that the words "orboth" I

I

be deleted and that proposal was furnished to you. By way

,,i

of refinement, this has been a suggestion from one of the

other Judges on the Court. I asked their opinion about this

and for suggestions that perhaps to make it absolutely

clear, it should read:

"No person shall be deprived of the right

to prosecute or defend his or her own cause

(and I guess that would be changed'to the

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individual's) in any of the courts of this state either in person or by attorney, but not both."

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MS. MCGOUGH: Mr. Justice Bowles, do you think

i 4 ~ this solves the problem that I'm worried about' in the Ferreta -'

5 .~ case that reached the United States Supreme Court where the

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Court said he could appear pro se but he had the right to have

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counsel as a guiding hand sitting at the counsel table with

8 him. Now would that ability, even though one elected to

9 represent himself be gone, to have the assistance as needed

:0 of an attorney?

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JUSTICE BOWLES: I don't think so. Ferreta, if I

understand Ferreta for what it's worth, basically says that

an individual has a right to represent himself. That's the

primary thing. Second, that he can only be allowed to do this

when he is fully apprised of all the pitfalls that are involved

in undertaking such. MS. MCGOUGH:

-.------- ---I PAGE 61
--~-
I
And then the Court says but this is

I
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not a limitation on the trial

judge's power to appoint counsel,

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JUSTICE BOWLES: Right. And we are not doing that

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here,

we

are

only

saying

that

he

doesn't

have

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right to both. It's not a negative thing. I know, you trial

counsel, Hoyt, Mr. Boney and some others, Mr. Marcus, you

\.l I must make a determination to have an orderly trial, you

Iq must make a determination from the outset as to who is going
.)
1\ ~. to be lead counsel and lead counsel has got to be the one to
, ~ make the ultimate decision if there is disagreement, two canno~

",.. ,,~; do it. This is ridiculous, but what if the individual but
"
1-1 what if the individual and his lawyer got up and wanted to

address the jury at the same time, you know. I know it's

i1 i; ridiculous but this man in the Schlatt case carried it to a

I

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< r idicu.ous extreme.

i
The idea being not to take his constitutio~al

i

right but to disrupt the trial process so as to avoid puniShme~t

I
by disruption and we must steer ourselves away from this, not

with the sacrifice of anybody's fundamental rights but so that ii

.' I the Court can function. It's got to function if we're going

" I to have a constitutional court.

MR. WHELCHEL: I think what may be concerning her

is that a trial judge might read it negatively, that if you

elect to go pro se, then I don't have to appoint counsel.

. _- ---I PACE 62
MS. MCGOUGH: You're by yourself.

MR. WHELCHEL: You're by yourself and on your own.

JUSTICE BOWLES: There have been two decisions since

Ferreta that indicate

I

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MR. BONEY: In most instances in practical experienc$

I

that I have ever encountered -- and I have seen them say many i

7 times ItI don't want an attorney, I don't want counsel, I want

9, to represent myself". In most instances the judge will say

Y but I would like to appoint someone to advise you and assist

u you in striking the jury, in questions of objections to law

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_. if you would permit me. That's usually the way, from a
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practical standpoint that's the way it's approached.

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MR. WHELCHEL: I think most of the judges bend over

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.+ backwards.

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JUSTICE BOWLES: Suppose then "but not both" not be

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at that point.

MR. PEARSON: I think that's good.

JUSTICE BOWLES: "But not both" does fly into the

.2; face of

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MR. PEARSON: I'd like to move then that we adopt

, , Paragraph IX as you stated it. I'm not sure what the numbering

23 is supposed to be now .

. ,,

JUSTICE BOWLES: Shall I re-read it?

MR. PEARSON: Yes.

PAGE 63

JUSTICE BOWLES: "Right to the courts.

person shall be deprived of the right to prose-

cute or defend the individual's own cause .. "

MS. MCGOUGH: It's got "present".

REPRESENTATIVE MARCUS: It says "present", you said

"prosecute" .

JUSTICE BOWLES: Well we did change that because we '

\ were thinking this would apply to both civil and criminal

cases. All right, let me retract that and begin again.

,1\

"No person shall be deprived of the right

!'

to present or defend the individual's own cause

I'
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in any of the courts of this State, either in

person or by attorney."

i.

There's a motion then that we adopt this language.

t ,~ Second?

MR. BONEY: Second.

JUSTICE BOWLES: Discussion?

(No response.)

JUSTICE BOWLES: Those in favor say aye.

(Ayes. )

JUSTICE BOWLES: Opposed, no.

,,

(No response.)

, -'

JUSTICE BOWLES: It's adopted.

..~. i

Paragraph X. Searches, Seizures and Warrants.

Heretofore we had no suggestions about changing this particular

PAGE 64
[1--------..- - - ' - - - --._-- -----.----- ..--. - - - - -..- ....-----... - .....- - - - - - - .. - - - ,
Ii language and there's such a wealth of case law on it -- yes, II

sir?

i

MR. PEARSON: I wanted to get the views of the

I

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, committee about whether it would be worthwhile to add a second I

il
sentence to the effect that articles or information obtained

) in violation of this right shall not be admissible into

evidence in any criminal proceeding.

JUSTICE BOWLES: I would not suggest that. I think

that we are moving -- the Supreme Court of the United States

,J is moving away from the exclusionary rule about as strong as

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they can move without obliterating it. I sure wouldn't want to put an exclusionary rule in the state constitution.
MR. PEARSON: That's I guess why I raised the question. My view is that it's an appropriate rule of law and, I'd like to see it in the state constitution irrespective of

.:;>

'6 ~ what the federal Supreme Court does. I realize that my view

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may be the minority view but I wanted to be on record as

'~i raising that question.
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JUSTICE BOWLES:

You know the basic and fundamental

:0 arguments about it.

MR. PEARSON: Yes.

1)

JUSTICE BOWLES: That the exclusion didn't punish the

:3 wrongdoer. It let the criminal go free and the wrongdoer is

--, out there free also, you want to punish the man who violated

the rights, then punish the officer who violated these rights

PAGE 65

but don't turn the criminal loose on the public because the

officer made a mistake.

MR. PEARSON: Well I don't want to get into a

,1 lengthy debate about that. I think there is some --

~

JUSTICE BOWLES: If you had the responsibility of

>

b law enforcement in Georgia you would recognize the point of

Ii

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7

view --

MR. PEARSON: I realize that, but there is also --

well, I think everybody knows what the issue is and I don't

i,) want to detain you. I would like to have the language that

I: I read to you included, and I would like to move that. If I

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don't get a second then that's that, but I felt like it's an important question and I think we should take a position one way or the other on it.

MS. MCGOUGH: I'll protect your record and second it.

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JUSTICE BOWLES: All right. There's a motion and

1 ; a second then.

REPRESENTATIVE MARCUS: In light of the fact that

it's on the table, would you now present your argument for

including this language?

'1

MR. PEARSON: All right, well just stated

'1

REPRESENTATIVE MARCUS: Tell me the abuse that you

,:3 would see.

MR. PEARSON: Well I think that the basic argument

for the exclusionary rule is that it allows a person who has

q----------------- --- ----- ---------

PAGE 66
-------------------------------~____r

:' been deprived of his Fourth Amendment rights under the

I

2 federal Constitution to have the State vindicate that right. I

I

I know it's in the context of criminal proceeding but I

I

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think that right ought to be respected in the proceeding wherei

I

I
the individual is being forced to bear the consequences of

Ii
o ' that deprivation. Now I know that it doesn't immediately and

directly punish the officer, but I think the emphasis ought to

be on respecting the fact that the person had the right in

the first instance and that he ought not to be compelled to

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bear any adverse consequences as a result of the state's failure to follow the law.
REPRESENTATIVE MARCUS: If I may, you don't feel that the mere fact that the officer lost that case which he probably -- if in fact the man was guilty -- and he lost it

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is ..~, because he didn't respect that right, that that in fact would

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MR. PEARSON: I really don't think the deterrent

18 argument is -- can be made. You know, I would agree with

9 Mr. Justice Bowles on that, and my ground is simply that an

20 individual who has suffered a deprivation is entitled to have

~ J that right respected in proceedings -- and I'm limiting this

only to criminal proceedings -- where he is going to bear
! ! I
adverse consequences as a result of the violation. My emphasis

is on the fact that the State in that context ought to respect,

his interest and insulate him from the consequences of the

PAGE 67 violation because it is an important right, not because you

, can prove imperically that police behavior is somehow changed

i because I won't make that argument, I don't think it can be
"
I made on an imperical basis. So my emphasis is on the respect

) of the right and as far as the impact on law enforcement is

(, concerned, my sense is the exclusionary rule is actually

o ,i

asserted in such a limited number of cases nationally that the

obstructive impact on law enforcement is non-existent. In

') fact, the federal government just came out with a stUdy and

10 it was asserted in less than one percent of all cases and
l?
11 ~7 upheld in an even much smaller number than that one percent.
o.,.
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T enforcement, I personally don't think that it sets up a set

\4 of procedural requirements that really impairs that. I

15 ,~. realize some people disagree with me, but I think that's a
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l~ ~ legitimate rationale for exclusion, but it doesn't depend on

I I' deterrent argument, which I would agree cannot be made.

jCi

One other point, the assertion of the exclusionary

20 rule in the context of criminal proceedings is really the'

2I only situation where the individual can ever assert that right
'I
:!:. because he's got a right to an attorney there and the

.J.....') attorney can press his claim because he's constitutionally

21 obligated to represent the defendant. If you leave the person

25 who is charged with a crime with a civil remedy and so forth,
---,--,------

PAGE 68

T - - - . - . _ - - - - ~-------~----_ - - - - - - .. ---
in most cases they turn out to

~e

m:r;~~~~-~~~n~~~call;~--:tl

I i

2 is rare that they ever pursue civil remedies against police I

as a way of deterring that individual, making that individual

bear some cost for his misconduct. So the idea of the civil

remedy as a reasonable alternative I think is not a very

-J workable one. So that's why I don't think the alternatives

that are available to exclusion really, in practical effect,
.' I"I
~ give the individual ever an opportunity to have that right

9 respected by the state. The exclusionary rule provides an

:J opportunity to assert that 'right in the only forum where he

il

z;:J
>-

is ever going to realistically be able to assert that right.

'o"
"..-,

2~

JUSTICE BOWLES: Your agrument is not sound.

MR. PEARSON: Okay, well we just disagree.

JUSTICE BOWLES: You're making statements to lay

,~,.) people though. You're saying no, that is not effectively

~
c-

o ~ asserted, that's not right.

-'" ,:'
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,;
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MR. PEARSON: If you look at the number of -- the

~ amount of police litigation, you know, suits against law

!9 enforcement officers and so forth, and there is just not much

,~o .1 litigation of that sort. So I, you know --

:1

JUSTICE BOWLES: Maybe you ought to encourage there

,., to be more, maybe that's the answer.

...~,"

MR. PEARSON: But the problem is you can't get the

\1 c"T

right to counsel in civil cases and most people practically are

foreclosed from pursuing that remedy even if it is theoretical~y

PAGE 69

open. And so, I agree that it's a remedy that's available,

but it cannot be practically asserted by the people who would

have an opportunity or have a feeling that they have been the

victim of misconduct.

JUSTICE BOWLES: Well I think we could debate this

:, for weeks. The public is the one that suffers.

MR. PEARSON: Oh, I agree.

JUSTICE BOWLES: But the one who is doing the

) suffering is not recompensed in any way except that the

1(1 criminal continues to vent his ways against the public.

t'1, t - _.
.,:,:
cases.

MR. PEARSON: It's not a bar to conviction in all

JUSTICE BOWLES: The thing about it, it is not

It J~ ~ really necessarily the act of an officer that has intentional

.'

;

i :. done the man wrong. You just put the officer in such a

[I straitjacket of having to walk all the material steps of

I! :" getting a search warrant, it may be that the judge from whom

.1"'; he got the search warrant made the error. The officer has

not necessarily made the error but the exclusionary rule

applies, if it's carried

MR. PEARSON: But you can't sue the judge

."

JUSTICE BOWLES: Well I agree you can't sue the

23 judge, but it's not an invasion of any particular right except

the technicalities of having to walk this tedious path that

the officer must do to get the result.

iI--
II

~h~:k-it p~ l MR. PEARSON: well;

PAGE 70
s :n :'portan: th

, ',I
.:.. il

and that's why I made the motion.

"

I

i

I

JUSTICE BOWLES: I agree it's an important path but I

!IIi

!

4 to turn the criminal loose on an exclusionary rule doesn't

" seem to me to be the answer.

6

MR. BONEY: Like you say, it could be argued all

1II

.,

I,
Ii

day and all night and on into the wee hours, lawyers every

8 time they get together they talk about it and argue about it

9 and of course there are two sides to it and we certainly

,a

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recognize your side. The question oftentime, it has been presented many times I think right forcefully, it's a matter of money, whether the public is going to put up the money to educate your JP's you use to swear out your warrants, your

14 >.
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community magistrates, your officers, have enough attorneys to advise the officers. You have a big turnover of officers, you send them to school. But then one thing is that it throws a block somewhat in arriving at the truth and after

i:: all, that is our objective in the field of law, is to arrive

'9 at the truth. Sometimes we think well you do a devious act
"
'~f J to get the truth, you ought to turn him loose and let him go

2!

and let him smarten up and harm somebody else.

And

your

I
argum~nt

.).., is well heck, if we can't have a society that's smart enough

,.. l

'

~

to catch him without doing something illegal, we ought to turn!

]4 him loose.

25

MR. PEARSON: I don't want to adopt your words.

PAGE 71
I MR. BONEY: That's the thing in a nutshell. I

.',

mean that's --

I

.
.\

MR. PEARSON: I think you understand how I feel. I I

don't want to try to persuade, I just wanted to state that.

JUSTICE BOh'LES: I think you need -- well, you know,

theory is great, but you need to get into the main stream of

, it and then your thinking will get more practical.

MR. PEARSON: Well, I know that I'm academic but I

() look at this on more levels than just reading law review

articles, so

JUSTICE BOWLES: Well where do we stand? We've got

a motion and a second.

MR. PEARSON: Yes.

JUSTICE BOWLES: Is there discussion further on

.'.\ this?

MR. HILL: If this should pass, I'll have to get

17 ';; your language.

MR. PEARSON: Okay, I've got it here.

iY

MS. MCGOUGH: ltd like to state for the record that

I think it involves an enormous value judgment that I am

trying not to make with any of the sections. I will leave

.)

intact what is there as a value judgment but I would be

terribly troubled in making a decision of this magnitude as a

member of this committee.

MR. BONEY: You mean in voting for the

...__._

_ _ - - _ . _ - - - - - - - - - _--~-

. ._ - - - - - - ~ - - - - - -

PAGE 72
--- -------,
MS. MCGOUGH: I would not vote for it because I

think it's a departure from established constitutions.

JUSTICE BOWLES: We've still got --

4

MS. MCGOUGH: And I agree

JUSTICE BOWLES: We still have the exclusionary

6! rule, it hasn't been obliterated, he just wants to go further.

MR. PEARSON: Right.

8

MS. MCGOUGH: I agree with what he's saying but I

Y don't think it's our role, is my position.

10

JUSTICE BOWLES: All right, anything else?

11 ~ c: o .>.
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".

(No response.) JUSTICE BOWLES: Those in favor of the motion, say

(Aye. )

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7 f;:

JUSTICE BOWLES: Those opposed. (Nays. )
JUSTICE BOWLES: Okay, the motion is not carried.

REPRESENTATIVE MARCUS: Now you need a motion --

[9

JUSTICE BOWLES: Need a motion for the article as a

ill whole, as it exists. MR. WHELCHEL: I ~o move.

JUSTICE BOWLES: Second on that?

REPRESENTATIVE MARCUS: Second.

JUSTICE BOWLES: Discussion?

(No response.)

PAGE 73

JUSTICE BOWLES: Those in favor, say aye.

(Ayes. )

JUSTICE BOWLES: Opposed, no.

(No response.)

JUSTICE BOWLES: It's carried. Okay, anybody want

(, a break?

MS. MCGOUGH: I need one. I have to call and cancel

;" a class.

'j

JUSTICE BOWLES: Okay, let's take a five-minute

lli break.

11

(A short recess was taken.)

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JUSTICE BOWLES: Shall we proceed to Paragraph XI? "Benefit of Counsel; Accusation; List of Witnesses; Compulsory Process; Trial by Jury."
MR. HILL: Okay, the only reason this was indicated "for further study" was because there was a suggestion last

! 7 u' time that these be made complete sentences and I attempted --

1'" I started to change that, but I looked at the other constituti~ns

".I and ~ith this particular section they're seriatim, the

guarantees in this paragraph were one right after the other
'j'
<-I with semicolons almost imvariably and I personally would prefer' ,-,
to see this not changed. If you still feel we should go back

and try to make them complete sentences -- but they all kind ,~'f of flow together and I'm not sure how bothered the committee

is by the present wording, so I'm bringing this back to you

1,--- - - -- ._._-_... _.~._-
'I
I! again for your consideration.

PACE 74

MR. BONEY: Mr. Chairman, on this particular one,

not that I am recommending it, but I did promise one or two

lawyers in my area that I would mention this, the last

sentence in the paragraph "shall be confronted with the

witnesses testifying against him", in view of the Thevis

trial that has been up in our area in Federal District Court,

>\ somebody said well we ought to have something in the

(~ Constitution that -- the question came up that he couldn't

u be confronted with the witness against him because it was
.')
..,- alleged that he had murdered the witness, that's going to be
G
,..:.l,.
"" u an important point in that case, and these two lawyers said
~ -..
FIID -. well while y'all are working on the Constitution you ought -'

.+ to put something in there "unless prevented by the act of the l;;

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5 ~, accused". Now I'm not even recommending that, I'm just

... :

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.,

carrying out a duty to bring it to this subcommittee here.

z:

JUSTICE BOWLES: But the cases have recognized,

even with this strong language, some exceptions, have they not~

jlj

MR. BONEY: Apparently, and I haven't done any

20 research on this at all, I really haven't, but apparently they:

)1
didn't have much to go on.

"

MR. PEARSON: There's not much case law. There's

'3 been a couple of situations but the Supreme Court has

definitely not taken a position on it. I think it's a real

proble~ and I really think that with the organized crime

..- . ~.-.-

.------.....-.-

PAGE 75
-I

situations, it's an incredibly serious problem, you've got

I

the federal witness protection programs established to protect!

these folks and the idea of deposing key witnesses and

preserving their testimony for trial I think is a good one

and I think that removing any constitutional barrier to that

is very important. It I:lay not be necessary but if we could

incorporate an idea to make it clear as a matter of state

s constitutional law that that would be -- would not be

() incompatible with the confrontation clause, I would favor an

liJ effort in that direction.

JUSTICE BOWLES: I would too personally. I think

this is something that's really got to be given some studious

thought. I don't think this is something we can sit in a

14
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committee room and develop language -.~n:~. PEA?.:3')N: May!)e \,tole could develop some language
Ti"l.l cL:cul.ace it. I t~1in~: it 's wort:l considering even if we

have to do it by mail. I don't have any language in mind

right now, but

i 'J

JUSTICE BOWLES: Well this is worth -- there have

been a good many exceptions to this conspirator's rule, there'$
11 been a lot of exceptions recognized even in the face of this. , .,
MR. PEARSON: The problem has been most of the

e:~ception3 n''l.\Te heen held up where there has been a prior opportunity for cross examination of the witness whose testimo~

is bei:i1C)" read into a second tml. The kicker in the federal
__ .._. - ._-_..... _--_.. _-_._-_. . _ - - - - _.. - - -

PAGE 76
~a-~:~--;-: thi~~--;-O:-;:~OW~--~OU'r~--t~l~:-~~-abou:-tria~-numb~:twJ

2 or. testimony at a preliminary hearing and then the witness is

bumped off or dies betwp.en that time and the time of trial

and thp courts have stressed pretty much the fact that there

has been one opportunity for cross examination and --

6

JUSTICE BOWLES: You know the dying declaration

7 rule and the

rule, those are all exceptions to

8 the confrontation.

oI

Well, I'm purely speaking for myself.

I don't

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oppose an improvement in the area, I just don't think we sit around the table and do it.
MR. PEARSON: Yeah, I agree with that. JUSTICE BOWLES: Let me suggest to you that we

can adopt

14 >. it as it is because it is basic constitution, and then

recognizing that if there are suggestions that we will
'.?
:""J
6 ~ reconsider on the final draft. Is that okay? C'I
All right, is there a motion then to that effect?

l~

MR. BONEY: I move that we adopt Paragraph XI.

19 I

REPRESENTATIVE MARCUS: Second.

II

,.v, !I

JUSTICE BO~VLES: Those in favor say aye

(Ayes. )

JUSTICE BOvVLES: And opposed, no.

.I.''

(No response.)

JUSTICE BOWLES: And that's the posture that we will

~5 leave it.

PAGE 77

XII. Habeas Carpus. l:'l'he ~.,rit of 'Iabeas Corpus

shall not be 8uspended."

~o ~rin1 you back a little bit, app~rently ~or the

first t.b1e in 13"/7 or shortly after the Civil War when vle had ;

some -- the war of northern aggression, we had -- they adopted:
I
this and they did not include some of the exceptions, most of .
I
7 :: which of the other states had in their constitutions. I beliete
i
X ;, eight out of the ten that I suhnitted to you had it and if

you assume that percentage would hold it means about forty out

of the fifty had it, and the exceptions would be -- and we had l ,J
z
11 some language, did we not, Mr. Hill?

MR. HILL: On the memorandum is the language from

the previous Constitution, the Constitution prior to 1877

with exception for rebellion and invasion.

.,

JUSTICE BOWLES: Yeah. And this has been distribute~

I

"

j;

L

to you in advance by counsel and the proposal would be to make

it read:

"The writ of Habeas Corpus shall not be suspended

unless in case of rebellion or invasion the public

~I)

safety may require it."

.~ 1

MR. HILL: I would say that I went through Small's

Notes from the 1877 Convention to try to find out if there was

any discussion about the change and there was no discussion.

It was just presented and approved. I talked to Hamilton

McWhorter, who is sort of a historian of sorts, and he felt

_. PAGE 78 - _._._.

_._-_. ~- ~-----'-

- --.- --

that it was just the times, was the reason. There was no
1;
Ii
discussion of it in the '43-'44 Convention either. So this

may be the first committee in a hundred years to ever look at

this with any detail. Your options are to leave it alone or

to add this exception.

MR. PEARSON: What effect would this have on the

" unified appeal idea that is being discussed. I wondered about

~ that in light of --

JUSTICE BOWLES: I don't think -- by adding it you

mean?

MR. PEARSON: Yeah.

{

.....

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JUSTICE BOWLES: ~~at effect it would have? It

....

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purely inserts an exception to the Habeas Corpus.

It would

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only be

MR. PEARSON: It limits those exceptions --

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JUSTICE BOWLES: Yeah, to rebellion or invasion when i

i

'; the public good requires it, that's the only exceptbn there is

MR. PEARSON: Yeah.

JUSTICE BOWLES: What's the rule? Exclusio unis

rule, I gather there being one exception, no others would

apply.

MR. BONEY: I move the adoption of the proposal

there on the instruction sheet that was sent out, paragraph 3. '

JUSTICE BOWLES: Is there a second to that?

MR. WHELCHEL: I'll second it.

(',\(;E 79

JUSTICE BOWLES: I have a second. Is there

discussion on it?

MR. HILL: I'd like to point out another thing. I

have spoken with Justice Hill about this and he had asked me

to convey to the committee his feeling that this section, if

() he were here he would propose that this section be changed to

read something to the effect, post conviction relief shall be

provided by the General Assembly, or something of that kind,

'\ sort of in line with what Al is saying, there is going to be

'I

an attempt to unify the appeal process and they feel that

i

! ! habeas corpus should be part of this process and not independedt
I

Y outside of it. So I'm just presenting that.

I

MR. PEARSON: My problem is that the way we're

I' going to couch this, it may suggest that -- it may really

1~ even with the enumeration make it impossible to have unified ~,
I \ '~l appeal process. I know it's a matter of interpretation but

\ : the idea of the writ of habeas corpus implies some review

! ~' independent of the appellate direct appeal and issues of

,) constitutional significance which corne up can still be raised 2U in habeas corpus. The unified appeal procedure is designed to 21 basically say raise all your questions and take your one shot,
,)
which I think is sound and so, you know, I don't want to put

up a roadblock with the language. I'm sorry that I haven't

got anything more specific on phraseology.

REPRESENTATIVE MARCUS: Would you have that same

~.~ _~ ..__ ~_ _ _~~~

.~.J

!'AGE 80

problem even if the new language weren't added?

MR. PEARSON: Oh, yeah. I think the new language

says only it doesn't really protect the unified appeal

idea and the existing language is even more preclusive and

so I think Mel's idea as communicated from Justice Hill might

bear some thought. I just raise that as a question. I don't

have any language myself.

JUSTICE BOWLES: What was the language he had
i'

9

recommended?

MR. HILL: He didn't.

'.
JUSTICE BOWLES: Well I mean the thought.
o

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MR. HILL: The General Assembly shall provide by

.,.

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law for post conviction appeals or for unified appeal process

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or some such mandate that this be done. I don't know whether you would want to add some proviso in here that this shall not prohibit the General Assem~ from enacting or adopting unified

appeal.

1:
MR. PEARSON: I guess the basic idea that I have is

if a person is convicted of a crime he's entitled to a forum

20 where he can raise all constitutional questions, but I don't

"

think he's entitled to two forums, fundamentally, and I think

that's what everyone is debating about. Language that will

_, ..'

make that possible is something that I think is worth

., considering.

MR. BONEY: I think even if you have the one appeal,

PAGE 81

there are circumstances that might exist though that you still

might use the writ and this would not keep you from using it

in those rare and acceptable circumstances that are available.

The only time it wouldn't be available would be invasion or

rebellion.

JUSTICE BOWLES: Post-conviction insanity, newly

discovered evidence.

MR. WHELCHEL: Suppose he has run the gamut of

9 appeals and everything is affirmed all the way up, what's to

'C keep him from going and filing a writ and taking it all the
.)
Ii way? That's what he's doing now.

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JUSTICE BOWLES: There are nine avenues of appeal and five of them are federal, three of them are the original appeal, the extra-ordinary motion for new trial and the writ

of habeas corpus We can talk about a unified appeal and it
.,
it) Z sounds good, but you might merge two of them and you're still /"
<,
I! ~. going to have seven.

REPRESENTATIVE MARCUS: Is there another area, Judge~ that we need to be worried about if we begin to use any kind '() of limiting language? We're talking about more than just 21 criminal prosecutions, what about all the guardianship --

MS. MCGOUGH: Civil custody matters.

43 I to really think that through.

"

.....-t

MR. PEARSON: Yeah

I would need

MR. WHELCHEL: What I was thinking was that on the

PAGE 82
rf-~~i~ied ~~pea~,-i-f YO~--~ad--a~~:fi-ed ~~~~-~-l-~~~ wri-; w~~~~----rli
i>

11 only go to the conviction. If there had been a conviction and I
i I
he had been through the appeal process, the writ wouldn't allot,

I,'i

>

would it?

I

JUSTICE BOWLES: Well the writ would not allow for I
I
those things which could have been raised, this is a waiver

question.

MR. WHELCHEL: I'm out of my area anyway.

9

JUSTICE BOWLES: Listen, we're all out of our area.

o This thing has gotten -- I don't mean this committee, I mean

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even the courts -- it's a problem. It looks like defense
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MR. PEARSON: Very ingenious. Well, I wish I could

-'I >- be more helpful in terms of suggesting a solution. > .".
~ 5 maybe it's worth considering.

I think

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JUSTICE BOWLES: Yeah, I do, I think it's worth

'7 ~ considering too. Suppose I do this, which I don't mind doing

,8 if you permit me too -- suppose we adopt it, we have a motion

19 on the floor, and then let me present the question back to

20 Judge Hill because he is a good student of law and he's

interested in this particular area and see if he would have a

suggestion for us. I think he will undertake to present one,

23 and then we would reconsider it if you think well enough of it.

~~ What do you think about that?

2)

Well then I have a motion and a second on the floor

PAGE 83 .---- - - - - - - - - - - - r ---~.---.----------------
that we adopt as is, subject to the possibility that we might

reconsider in the full committee.

MR. HILL: As is in the proposed --

JUSTICE BOWLES: In the proposed, yes

..,

Discussion?

(No response.)

7

JUSTICE BOWLES: Those in favor say aye.

(Ayes. )

JUSTICE BOWLES: Opposed, no.

10

(No response.)

JUSTICE BOWLES: It's adopted with those changes.
r"

I"

All right, XIII. Crimination of Self Not Compelled.

"No person shall be compelled to give

!4 ' ..,

testimony tending in any manner to criminate

15 ~,

himself."

, 1 ;.l:l
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17 I~~ be much.

I

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Suggestions about change? I don't think there could' Suppose we have a motion to adopt this as is. MR. HILL: This needs another one of those gender

19 1 changes.

JUSTICE BOWLES: Yes, instead of himself. Was there

a motion then that we approve this with that one gender change?
-, ,
MR. WHELCHEL: I so move~

MR. BONEY: Second.

JUSTICE BOWLES: Discussion?

(No response.)

----------

.1

r,---~"" - - - - - - - . - " -

,j

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JUSTICE BOWLES:

II

i

(Ayes. )

Those in favor, aye.

PAGE 84

3

JUSTICE BOWLES: Opposed, no.

4

(No response.)

I
I
JUSTICE BOWLES: Okay. XIV. Bail; Fines; Punishment;

6 Arrest; Abuse of Prisoners.

7

"Excessive bail shall not be required, nor

3 I!

excessive fines imposed, nor cruel and unusual

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punishments inflicted; nor shall any person be

10

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abused in being arrested, while under arrest, or in prison."
Suggested changes on this? MR. PEARSON: I just wanted to get a point of
I I
information. Some of the statutes under the state constitutio*s make an exception for capital cases. In other words, one charged with a capital offense doesn't have a right to be admitted to bail at all. I didn't know whether that was a

18 substantive change that might be worth considering. I know

19 that bail is just set high enough to keep a guy in in cases

20 where he's dangerous, but a change along the lines restricting

::1 access to bail to all those capital cases, would just more or

22 less formalize the practice with a directly --

23

JUSTICE BOWLES: This apparently does not preclude

.~')'f

the legislature from saying that a capital felon is non-bailable.

i
2) This merely protects -- it's really a criterion to say that thy

\f-'--
will be reasonable, whatever that is.

PAGE 85
I don't know how you

! apply it unless the amount involved was so unreasonable that

the Court would say it was an abuse of discretion.

MR. PEARSON: Okay, I just wanted to raise the

~ question, that's all.

(,

JUSTICE BOWLES: Well--

MR. BONEY: I move the adoption as it is.

JUSTICE BOWLES: Second to that?

MS. DAVIS: Second.

if)

JUSTICE BOWLES: Discussion?

(No response.)

JUSTICE BOWLES: Those in favor, say aye.

(Ayes. )

il

JUSTICE BOWLES: Opposed, no.

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(No response.) JUSTICE BOWLES: It's adopted. "Jeopardy of Life or Liberty More than Once Forbidden. No person shall be put in jeopardy of

life or liberty more than once for the same offense,

20

save on his or her own motion for a new trial after

21

conviction, or in case of mistrial."

,,

, , .~

Motion for new trial is very narrow language in view

,-- of the automatic appeal that is now available in a capital

,I

;~4 II case. You don't have to have the motion for new trial, you

have an automatic direct appeal. And I think motion for new

L~'

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-

------

PAGE 86

Ir---
II trial, which every proceeding -- every appeal
1
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used to

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ii

commence with, is no longer appropriate in our present

I

II structure, you see. And I was toying with the idea maybe of

II ,,} II some language that might say something like this, and I'm not II

wedded to it:

6

"No person shall be put in jeopardy of life

7

or liberty more than once for the same offense,

8

save as a result of the individual's own

9

proceeding after conviction, or in case of

:0

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mistrial. II MR. WHELCHEL: Really the only time it would apply
would be -- well, excuse me, that wouldn't work. In case of the granting of a new trial on the basis of the individual's proceeding?
JUSTICE BOWLES: Yes. MR. BONEY: That's right. In other words, if he asked for it, he was unhappy with the first trial and he

td initiated something or if it was automatically given to him,

J9 then he couldn't claim double jeopardy. I think that should

20 be in there someway, I don't know that I know the wording

21 exactly for it, but I think we should have something like that~

22

MS. MCGOUGH: What about if you just said "save

) -,
4-..'

on the individual's own motion for relief"?

)
..' , ' Y

JUSTICE BONLES: Well the thought struck me that if

2) I he had an automatic appeal it's really not his own motion.
'_i... _

PA(~E

87
-- --" - -------,

MS. MCGOUGH: Yea~.

MR. BONEY: He could get one without even --

I,

I

REPRESENTATIVE MARCUS: Under what conditions do you I

I

I

I

} have automatic appeal?

I

JUSTICE BOWLES: All capital crimes.

REPRESENTATIVE MARCUS: lIm trying to see where it

7 would be greater, the punishment would be greater.

JUSTICE BOWLES: Oh, it's not greater, it's a double

trial that's prohibited, it's not the punishment.

lv'

REPRESENTATIVE MARCUS: Itls the double jeopardy

l? "7
II "really. "

Capital offense, it seems to me the only thing he's

worried about is whichever is going to be greater not whichever

is going to be less.

JUSTICE BOWLES: The purpose of the article is to

; -. .1' keep him from being subj ected to the rigors of trial twice.

MS. MCGOUGH: To the risk.

JUSTICE BOWLES: The risk and the rigors

.,

REPRESENTATIVE MARCUS: When he waives, then hels

subject to the greater punishment which is --

MR. WHELCHEL: Are you saying now with automatic

appeal if there is a reversal on the automatic appeal, he

can't be subjected to a second trial as it is written now?

JUSTICE Bm~ES: No, we haventt said that. If the
'., appeal is automatic and the evidence does not support the

verdict, he cannot be subjected again. Itls not always black

r--
and white.

----- - - - - - - - - l ----~---~-----------.

PAGE 88

You might have three areas of evidence that

convicted him. He appeals and says number one area was not

admissible evidence and the state might have been able to

prove this one area by another method of evidence, which it

did not use, it made an election. Then you get to the

Appellate Court and the Appellate Court says we agree, number 7 one should not have been admitted in evidence, maybe it's

we'll say hearsay, something simple -- then two and three are

not enough to support his conviction. Is he freed? Is this

'. J
,1 7
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double jeopardy? Does that illustrate the problem? Maybe it should be "by his own proceeding or appeal otherwise provided by law".
MR. PEARSON: We might circulate some language on

that. I get your idea and I think it's a good point, I just

l:l

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am reluctant to try to draft here at the table. Maybe if we could get something circulated.
REPRESENTATIVE MARCUS: What would happen if you

[8 I"' I I
, ~ ) :1

just struck "for a new trial", mdion after conviction".

"save on the individual's own

20

JUSTICE BOWLES: But what if it's an appeal that

21 the state requires?

2~

REPRESENTATIVE MARCUS: If it's required by the state,

23 then it's clearly not on his own -- the individual's own motion,

2+ it would not be double jeopardy, would it?

2~;
MR. BONEY: The state can't appeal ordinaril". This

I' Ai;!!.. 89

is just something we give him, this convicted person, now

we're giving him automatic appeal, but the state prosecuting

can't appeal.

REPRESENTATIVE ~~RCUS: So long as the language says

"on the individual's own motion"

JUSTICE BOWLES: Yes, all right, but what if there

is an automatic appeal and reversal. Can you try him again?

MR. mIELCHEL: That's what's bothering me.

JUSTICE BOWLES: If the Judge made an error in his

:11 charge.

MR. WHELCHEL: Nobody made the point?

JUSTICE BOWLES: Evidence is overwhelming as to his

guilt, nobody made the point, the Court of Appeals picked it
./ ,'
Ii _ up and said this is an error. Can he be tried again? That's
r
c, awful dangerous.

MR. WHELCHEL:
,1. ~; language as is?

Has nobody raised the point with the

MR. BONEY: Well we haven't yet.

I" '

JUSTICE BOWLES: No. Didn't last time. I thought

..'U about it while we were going over it.

MR. vlliELCHEL: No, I mean has it been raised in the

Appellate Court, or has it been raised in the courts, has

anybody pled double jeopardy on a reversal on an automatic

appeal?

I
JUSTICE BOh~ES: I think so. Gunter wrote a dissentins

opinion on it when he was on the Court.

PAGE 90

- - ------,- ....

__ ,, _. ---'--"-'- .._._--_. ,._--.--------,

I don't remember the

case. He was a strong double jeopardy man. I wasn't on the

Court at the time, but I know it has been raised, yes.

MR. vVHELCHEL: And the court ruled that it was not

double jeopardy?

JUSTICE BOWLES: The Court hasn't been the most

liberal with criminals, I'll say.

MR. BONEY: I think probably the language is so

important that we can't do it here, but I think we all get the

\) idea, it would be save on a grant by the case on review or

by his own admission. I think that's what we're all trying to

get at. If the Appellate Court grants it, then he ought to

.~ be subject to be tried again or if he initiates it himself, he i

ought to be sUbject.

MR. WHELCHEL: At the same time, you shouldn't en-

courage a sloppy presentation in a capital case because the

state knows if you take it up and turn it around on the

automatic appeal, you get another shot.

REPRESENTATIVE MARCUS: I was just going to suggest

in the interest of time and because of the complexity of the

issue that we ask the staff to address the question and bring

it back to us.

JUSTICE BOWLES: That's a good idea. What about that?

You recognize the double problem.

MR. HILL: I'll get with them. AI, would you be

willing to help us on this?

PAGE 91

_ _ .._---_.

._--- ----- - - -

MR. PEARSON: Yeah.

JUSTICE BOtiLES: Okay. Is there a motion then that

we refer this particular article -- paragraph -- to our staff

counsel for study and further recommendations?

MS. DAVIS: So move.

JUSTICE BOWLES: Second on that?

MS OSTRANDER: I second it.

JUSTICE BOWLES: Discussion?

'(

(No response.)

--

JUSTICE BOWLES: Those in favor, aye.

c

"
I,

(Ayes. )

JUSTICE BOWLES: Opposed, no.

_.

(No response.)

,"

i~

JUSTICE BOWLES: And that's what weIll do.

C.

! 11

"XVI. Treason. Treason against the State

<:

I/

of Georgia shall consist in levying war against

the state (struck her); adhering to the statels

enemies; giving them aid and comfort. No

person shall be convicted of treason except

on the testimony of two witnesses to the same

22

overt act, or confession in open court."

.3

Suggestions about this? We neuterized it and Georgia

is no longer a her.

MS. OSTRANDER: That makes you unhappy.

PAGE 92

-~-------------~-~~~--~-

-

-- --- - - - - 1 --~ ----~---~-------------

JUSTICE BOWLES: I like the old girl.

MR. PEARSON: Just for the record, I was talking to

a colleague yesterday and he said that the last treason trial

1 i. in the State of Georgia was in 1789.

JUSTICE BOWLES: I agree.

')

MR. PEARSON: I was surprised that it had been that

long.

JUSTICE BOWLES: I knew there hadn't been much.

MR. PEARSON: I thought possibly around the Civil
o War you might have had a treason prosecution or something

'1 ~
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like that with people who were not for the Confederacy, but there haven't been any.
JUSTICE BOWLES: Well, you think from not having

many that we should --

MR. PEARSON: Oh, no, I was just making a point of

information really.

,- ~

JUSTICE BOWLES: It is a crime in the statutes.

MR. WHELCHEL: Maybe it has been a deterrent.

MR PEARSON: It's the only criminal provision that

20 has been a deterrent.

JUSTICE BOWLES: With these two minor changes then, ,.
is there a motion that we adopt this?

MR. WHELCHEL: I so move.

'--1

JUSTICE BOWLES: Second?

MR. BONEY: Yes.

PAGE 93

JUSTICE BOWLES: Is there any discussion? MS. DAVIS: I still have a problem with its inclusio in the Bill of Rights.

MR. HENRY: Could I ask a question? If you did have

-- my problem is what would be a treasonous act against

Georgia that would not also be a treasonous act against the

United States.

JUSTICE BOWLES: Well it depends what the intent was

to overthrow.

MR. HENRY: But take for instance, and this may

j' raise some people's hair, but if we had a person like Jane

Fonda residing in Georgia who went over to Hanoi and aimed

the anti-aircraft guns at American planes, would we prosecute

her in Georgia?

.~
JUSTICE BOWLES: I don't think so, but if we had

-'

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a group of people who came in here and wanted to take over

,..,.

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the Governor's Office and throw him out and take over state

government, it would be a violation against the state.
:,
MS. DAVIS: Wouldn't you have other laws to take
lJ care of that? Would that necessarily be treason?

MS. MCGOUGH: But isn't the point of it being in

"

the Bill of Rights only -- if it has a place in here, it's

only as you give some special protection. Otherwise it ought
_f
not to be in here.

JUSTICE BOWLES: The protection is that it has to be

PAGE 94

l , witne-~se~~-T-:at' ,Ij by two

s the constitutional protection, the

legislature can't change that, can't pass any law that would

permit any conviction that did not have that minimum.

I

I

REPRESENTATIVE MARCUS: I think it's even more

I
I

limiting, it seems to me that it is more of a protection than \ I
i
anything.

MS. GREENBERG: Then the question would be whether ,i
I
we want to limit treason to those defined in the first sentenc~,

those acts defined in the first sentence.

l

i

MR. HENRY: There's a statute on this that goes into!

much fuller detail about defining treason.

MS. MCGOUGH: Then why don't we leave the definition

of treason out and just leave the protection. If you can

show me the statute where it is. I assume you would empower

the General Assembly to define treason as it saw fit or it's

got to be identical if we define it in here.

MR. WHELCHEL: But the people would have a direct

voice in the definition here, with the General Assembly they

might change it.

20

MS. MCGOUGH: That's true. As people, do you agree '

with the definition?

MR. WHELCHEL: It suits me.

MR. HILL: The definition is exactly the same as in

the Code, but it also has other things added to it. So it

does appear the same now.

MS. MCGOUGH:

He's convinced me.

PAGE 95 I
I'll move it as I

I

is.

I
I

State~ MR. BONEY: It's almost the same as the United

I

Constitution.

I

MS. MCGOUGH: I don't think it's going to do anythin~

II i, anyway.

MR. BONEY: Treason against the United States shall

consist of levying war against them or adhering to their

enemies or giving them aid and comfort. No person shall be

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convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. It's almost identical to the federal Constitution and I don't see any reason not to adopt it, if we recognize that there could be treason against the State and not be a federal offense and

. '~, I don't think there's any question about that.

";'

MS. MCGOUGH: I move it's adoption as is.

,iY.

JUSTICE BOWLES; Is there a second to that?

MR. BONEY: I'll second it.

I'

lLJ i

JUSTICE BOWLES: Discussion?

)'1

(No response.)

-- .

JUSTICE BOWLES; Those in favor say aye.

(Ayes. )

JUSTICE BOWLES: Opposed, no.
Ii
(No response.)

JUSTICE BOWLES: It's adopted.
--_. ------- ----- - ---- - - - . _ - - - - - - - - - - - - -

------

---------'----'---

---,------ --- - - - - I ~------------,----'---

PAGE 96

"Paragraph XVII. Conviction, Effect of. No

I,

I

conviction shall work corruption of blood, or
I
I

forfeiture of estate. D

MR. HILL: I forwarded some new language.

II
')
ii

MR. PEARSON: What is corruption of blood?

h Ii I

REPRESENTATIVE MARCUS: Before you do that, you had

"

i' ,I

trouble with remonstrance?

i>3

MS. MCGOUGH: I had trouble with remonstrance.

9

REPRESENTATIVE MARCUS: We did too the last time.

:0

MS. MCGOUGH: I have trouble with corruption of

blood too.

'2,

MR. HILL: The Judge and I sat down and we really

IZ
~,~~ ~ did work on other language like "No conviction shall work a

14

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forfeiture of estate or bar a person from receiving or transmitting an estate." But then we looked up the definition of corruption of blood and it applies much more broadly than that. It means your character, your person is not going to be

18 tainted in any way by any crimes of your father, you as a
"
19 ii person are not going to have your projects affected by virtue
,i I:
20 of where you came from, your ancestry. It kind of has a broad

2; meaning in the law and it is really one of those words that

""ll
we don't use much -- we're open to suggestion.

JUSTICE BOWLES: I guess that's right. I said in

committee, we were wondering what it meant, and I said one of 2' the basic things it meant was the right to inherit and to

I'AC,E 97
;T"'--
alienate property and itooes mean that, that's certainly one

of them, but it also means that the legislature cannot punish

your son for your misdeeds. If you're a criminal, then your

,j son is totally protected from the criminal stigma that might

attach to your father being convicted. Do you follow me? Thi1

is a very important right and how you want to express it is

another matter. If there is something better than corruption ~
I
I
i
MR. BONEY: Maybe we ought to leave it as it is.

JUSTICE BOWLES: It sort of sounds like you might need

I

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a Wasserman test. That's what it implies, but that's not what; it means legally.
MS. MCGOUGH: I'd certainly like to work on other language

JUSTICE BOhTLES: We would welcome any suggestions.

MR. BONEY: Did you find any cases using the term

k 7 at all?
.,
I, <,.

MR. WHELCHEL: There's a provision in some of these

, .,1 other constitutions, and I've forgotten which ones, that is

more definitive than that.

REPRESENTATIVE MARCUS: Judge, do you think --

JUSTICE BOWLES: Isn't it in the Magna Carta, or not?

MS. MCGOUGH: Probably says corruption of blood.

REPRESENTATIVE MARCUS: I wondered if it was indigenQuE
,I
to our Constitution historically because of how we came about.

MS. MCGOUGH: That might be.

PAGE 98

MR. BONEY: How long, has it been back in all the

Constitutions in this state, same terms?

MR. HILL: Yes. And there have been a couple of
I
cases, but it's just interpreting what the term means. Really:
I
this very thing happened to Judge Bowles and I. We looked at !
,
I
this, we read the definition, the definition just seemed to bel

a paragraph long and all of the things seemed -- this was just;

I a good way to say it. It's just that the average citizen
'I
'I
~ doesn't understand what it means. We could maybe put a

J paragraph in here to spell it out, but --

MR. BONEY: The way you defined it, they said it

~ :~ better than we can say it.

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JUSTICE BOWLES: They said it very well.

.j

MR. BONEY: I don't see toying with it just because I

<, we don't understand it. Heck, let I s go back and interpret it
f.,
6 and find out what it means. If it means something better than I

" we can write in our own language, let's don't tinker with it.

i

:)

JUSTICE BOWLES: The average citizen doesn't understaInd

i

] I what habeas corpus means.

,,

I

I

:~CI

MR. PEARSON: It's like changing the King James vers~on

,

'1. 1 of the Bible .

MS. HCGOUGH: Black! s says "In English law. 1'he

consequence of attainder ... " Like a bill of attainder.

" ... being that the attainted person could reither inherit lands

or other hereditaments ... nor retain those he already had ...

1
i
PAGE 99
:1----
because his blood was considered in law to be corrupted."

We've already prohibited bills of attainder.

MR. HILL: And I will say, this was omitted from the

1970 version. I could not find it in that proposal and it

could be because of the bill of attainder being prohibited.

JUSTICE BOWLES: Well a bill of attainder --

'7

MR. BONEY: It's not quite the same thing.

JUSTICE BOWLES: It's not as broad.

'J '

MR. BONEY: I think corruption of blood is broader,

" a broader term than the bill of attainder.

1i ~

MR. WHELCHEL: Texas says "no conviction shall work

.,)

I) "' corruption of blood or forfeiture of estate in estates of

those who destroy their own lives ... " Washington says "no
(,

conviction shall work corruption of blood nor forfeiture of

i.:
, Co estate ... " I thought I had seen another one that defined it,

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<

but I guess not. REPRESENTATIVE MARCUS:

Judge, you gave us the

lr information last time on corruption of blood

ill

JUSTICE BOWLES: It's broader than I thought. It

'I

1U! does include the things I said but it's broader than that.

.)1,

MR. HILL: It's really a good thing .

MR. BONEY: I move the adoption as it is.

23

MR. PEARSON: I second the motion.

I

JUSTICE BOWLES: Discussion?
!
MS. MCGOUGH: Can we treat this like the other~~~

~---- ------------------ -------- - - - - - - - - - - - - - - -

PAGE 100

!i we come up with another proposal

I,

Ii

Iq!

JUSTICE BOWLES: Yes.

!~

_!

MR. HILL: We'll be happy for any suggestions.

JUSTICE BOWLES: Those in favor, aye.

(Ayes. )

i,

JUSTICE BOWLES: Opposed, no.

I

(No response.)

JUSTICE BOWLES: Okay.

"Banishment and Whipping as Punishment for

Crime. Neither banishment beyond the limits of

~:

the State, nor whipping, as a punishment for

o

"-

.'c'-,:'

~

crime, shall be allowed."

We had no problem with this last time. Do we have

any this time?

MS. DAVIS:
;.:'>
";;, I, ~ object to.

I think that's an area that I really

JUSTICE BOWLES: You think they ought to be whipped?

MS. DAVIS: I don't think it ought to be included,
I
" I simply because it isn't happening, simply because it's not I
happening in this modern day.

MR. PEARSON: I want to make sure it doesn't happen.

MR. WHELCHEL: It would happen.

MR. BONEY: It would happen, that's right, it would

happen.

REPRESENTATIVE MARCUS: We went over this last time
_~ _ _ . _._--J

_ . _ - - - _

_

-

-

PAGE
----

-

-1

0-1-

-

,

on the question of banishment, it's a real question.

I

I

MR. PEARSON: There are some banishments.

1

I
'I

.3

REPRESENTATIVE MARCUS:

I was told last time, I find that there are judges who think

they can banish.

MR. WHELCHEL: There are judges who tell you to get

out of the county.

'I

JUSTICE BONLES: We have upheld that, and there is a

compelling reason for banishment beyond the county. You have

people who absolutely are not going to be able to get along

1t without guns at each other. If one is convicted and punished

and banished beyond the county, there is an area of protection I
I
in this. You follow me? By non-contact. But to permit them

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to banish beyond the state is this prohibition and what it gets into is we send all our criminals to Alabama and Alabama will send all their criminals to us .
MS. DAVIS: I yield to the legal minds.

JUSTICE BOWLES: I think it's necessary.

REPRESENTATIVE MARCUS: It's a problem if you live

on the border of the state.

JUSTICE BOWLES: Of course, you weren~ talking about

the whipping anyway. You don't believe in whipping.

,"

I

1

MS. DAVIS: I don't believe in whipping, that's why I

I thought there's no reason for it in this document, but if ,I
I
you assure me that such is still happening I'll yield to that. I
_-.J

" happen.
I,

MR. BONEY:

" ' " ' - - - ~"~---'-'"'---,- "-'-'-"--~--

rACE 102

---'--"~----"

----'---~'I

I I think if you didn't have it, it would

JUSTICE BOWLES: Motion then?

MR. BONEY: I move its adoption.

JUSTICE BOWLES: Second?

,i

MR. WHELCHEL: I'll second.

I'

"

"
,

I

JUSTICE BOWLES: Further discussion?

::

MR. HENRY: Could I bring up one point?

JUSTICE BOWLES: Yes.

MR. HENRY: I don't know that this would be covered
~;
z
~ by this, but I believe recently the man who kidnapped Barbara ?
~,
~ Jane Mack1e, as a condition of his parole, was sent to Alaska.

Is that the same?

JUSTICE BOWLES: I don't know the legality of it
v,~,"
,-
REPRESENTATIVE MARCUS: He wasn't being punished for
,"0)
,~ a crime there.

MR. WHELCHEL: He was so happy to get out he hasn't

raised the question.

MS. MCGOUGH: He's not going to question it.

MR. BONEY: It was a condition on his parole or

'I

probation.

REPRESENTATIVE MARCUS: That's different than

punishment for a crime.

MR. WHELCHEL: It may be illegal but if he raised

the question he'd be back in jail.

-_.-_. -- --------- -P-AG-E--10-3-l

MR. CARLYLE: There is an annotation 234.182,

I

Condition of Probation. If a defendant moves his residence I
I
out of state it amounts to banishment in violation of the

constitutional provision.

JUSTICE BOWLES: He might not want to contest it.

MR. HILL: He was happy to be banished.
'i
MR. HENRY: In other words, he waived it.

;,~

MS. MCGOUGH: Oh, sure.

Ii
JUSTICE BOWLES: Is there further discussion?

I

\f')

REPRESENTATIVE MARCUS: What's the difference betweet

-,

I i whipping and corporal punishment?
.;,)

I

I) /-

JUSTICE BOWLES: I think whipping would be just

I

i
i

what it implies and corporal punishment could be stocks or

I

holding you by your stretched fingers or any other physical I

L

!

,S ," punishment other than whipping.

I

REPRESENTATIVE MARCUS: Corporal punishment would

l~' ~ not include whipping?

1 ,~., 'v

MS. MCGOUGH: Yes it would, corporal punishment

t" would inc 1ude anything.

MR. PEARSON: I would think so

.'1

JUSTICE BOWLES: Corporal punishment would include

whipping, but all whipping wouldn't include all corporal

punishment.

MS. MCGOUGH: You want to suggest that we put

corporal punishment instead of --

PA\;E 104
-._-- -..-----RE;REsEN~A-TI~E--~RCUS~-~:_not s-:ggest~n;~nyth~~;~l
I
I just want to remind some folks of the Constitution of

some school systems.

JUSTICE BOWLES: Any other discussion?

(No response.)

JUSTICE BOWLES: Call the question? Those in favor

say aye.

(Ayes. )

JUSTICE BOWLES: Opposed, no.

(No response.)

..)

~:

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JUSTICE BOWLES: "Slavery and Involuntary

"-

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Servitude. There shall be within the State of

,.

~: >.:1) :.u

Georgia . "

>
0

MR. HILL: There's a proposed change. In your

.~

T

c. .~~ memo, there is a proposed change in the language. In our

discussion yesterday, Judge Bowles and I felt that there were

two things here; one is involuntary servitude covers slavery,

so we thought it should be involuntary servitude and then to

say "as punishment for crime after legal conviction thereof" ,11 does not take into account contempt of court and you can be

subject to involuntary servitude for contempt of court. So

those were the two changes we suggested in your memo for

Paragraph XIX.

MS. MCGOUGH: This is what the cases say, that makes

it clear. For example, you can be put in jail for not paying

child support.

PAGE 105
---,._----------,
I
i,
I

JUSTICE BOWLES: We have elucidated, I won't say we

held for the first time, but we have held that a person may

I be punished for criminal contempt in domestic areas as well

as civil. This is the only way that you can vorce visitation

rights, because they all occur after the fact. If you can't

punish you never would get it enforced, you couldn't enforce
II
the law. You're supposed to visit on Saturday, the mother

won't let the father do it or versa vice. She brings action

.I

,.
II

".

i....

'" 1

on Monday, you could only punish him for civil contempt, you
I
could punish him until he performed but the date of performanc$
i
is passed. You follow me? So you can punish for criminal

I
contempt for his failure. Right or wrong, that's what we held,

'.

II

So we added contempt to this as an exception.



1t r~i

C1

Z

~

-

,Y.

,rl

Any other thoughts about it?

i
I

I

I

MR. BONEY: I move the adoption of the proposal.

JUSTICE BOWLES: Is there a second?

I"
!I

MR. WHELCHEL: Second.

I:) ,I

JUSTICE BOWLES: Discussion on this?

-If \
.

MR. HILL: This is the proposal in the memo?

MR. BONEY: Right, paragraph 4.

JUSTICE BOWLES: We'll call the question. Those in

favor, aye . .>~ "

(Ayes. )

JUSTICE BOWLES: Opposed, no.

----, PAGE 106
--------_._----- ._--- ----_._------------------ ._.._ - - - - - - - - - - - - - - - - - - - - - - - - - - - -

(No response.)

I

JUSTICE BOWLES: It's adopted. All right, we're at I!

xx. "There shall be no imprisonment for debt."

MR. HILL: A number of the other states have an

exception here for fraud, about four of the states that we hav~

i the Bill of Rights from have an exception for fraud, and I'm

not sure if you would want to consider that as an exception.

It's here for your consideration.

i" !

JUSTICE BOWLES: Fraud is quasi-criminal anyway.

MR. WHELCHEL: That could open up a can of worms.

I.'

,Z..
rY.

MR. PEARSON: I'm a little concerned about adding

0

0-

w

0:
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the exception.

I suppose that if there is a fraud and it

,,. z~

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~

arises out of non-performance of an obligation,

I'm willing

,I

.>-
~

to see imprisonment but I want~ to be handled criminally .

V>

<:

J:

.:J This suggests that there could be a non-criminal fraud, which
1;

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en
.2..-. could lead to imprisonment.
G
z:

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MR. HILL: Criminal fraud then?

.~

REPRESENTATIVE MARCUS: I'd even be concerned about i

i

i

the two being in the same place. The historical protection of i

(, " no imprisonment for debt clearly was, as I understood, a

civil question, to be in the same place with the ability to

prosecute for criminal fraud scares me. You talk about the

man on the street, this is one thing that everybody believes

they are protected with, and I would be concerned. To leave

out the language really doesn't in any way prohibit the

PAGE 107

prosecution for criminal fraud.

MR. BONEY: Of course, this goes back to the

.' historical formation of our state REPRESENTATIVE MARCUS: Absolutely.

Ii

/.

debt. II

MR. BONEY: "There shall be no imprisonment for I don't know that there were any exceptions.

JUSTICE BOWLES: That's the reason we're here.

~.

MS. MCGOUGH: There is an exception currently for

'/ contempt of court, that's not imprisonment for debt but it's

10
'...'}
1 1 ....
0'"
>.

done by case law. JUSTICE BOWLES: MR. ffiIELCHEL: I

Right.
I
move the adoption of xx as Originalf

submitted.

I

MR. BONEY: I second that.

I

I

I 5 ~l
r.;.;
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~ () .~..

JUSTICE BOWLES: Discussion on this? MS. GREENBERG: Why was the exception put in here?

'7 r:r:

II

'"!'l

JUSTICE BOWLES: It had just been a common one in

;: other states and we just threw it out to you for consideration

1" I You know, no strong feelings about it.

MR. PEARSON: I'd like to second

JUSTICE BOWLES: We have a second I believe.

Discussion on it?

(No response.)

JUSTICE BOWLES: Those in favor, say aye.
(Ayes. )
------------------

I
~

I
il

(No response.)

II

JUSTICE BOWLES: And it is adopted. Yes, sir?

!!

MR. HILL: Would you like to jump -- since we're

getting close to the time limit -- jump to Wife's Separate

Estate.

MS. MCGOUGH: I cancelled my class.

JUSTICE BOWLES: Well I think these next three will

move pretty fast, there's not much change in them I don't

think. Let's go to XXI. "Costs. No person shall be
'!J
Z
~ compelled to pay costs except after conviction .. " It read ...o
Q.
."~."). " . except after conviction on final trial." And I think this
IZ
"~ is talking about criminal law but to make it plain we had

t suggested -- did you put that in there?


L

MR. HILL: Yes.

l;,."

0.:

::l

h .':.".::.::

JUSTICE BOWLES: "No person shall be compelled to

,.:1

pay costs in any criminal case except after conviction on

K Ii final trial." Because there is such a wealth of law in civil

cases, you can't file one without advancing some costs. Maybe

that's an over-simplification, I don't know.

MR. BONEY: I move the adoption of the paragraph 6

" in the proposal. I think that clarifies it.

JUSTICE BOWLES: Is there a second on this?

MS. MCGOUGH: I second it.

,c

.J

JUSTICE BOWLES: Is there discussion on it?

--

')
(No response.)

PAGE 1-09- - , I

JUSTICE BOWLES: Those in favor, aye.

(Ayes. )

I
I

JUSTICE BOWLES: Opposed, no.

(No response.)

:

,)

:

JUSTICE BOWLES: It's carried. IIXXII. Status of

'7 the Citizen. The social status of the citizen shall never be

c,

the subject of 1egis1ation. 1I

So if you want to be a king, you can't doit. Any
~I

10 question about this?

'7",

!I

,_.

o

MS. MCGOUGH: Would you say that one more time? Im

,) ,,"' not sure what this does.

JUSTICE BOWLES: It has to do with classes of

14 , individuals. You can't be a lord or a duke or earl or duchess
;'1
";'.
MR. PEARSON: I'm sorry to learn that this is in

(, the Constitution. My aspirations are frustrated. l~' (1

'C
:7 " !,

JUSTICE BOWLES: Well you could say -- the legislatu~e

i
I
>'; could make first class citizens and second class citizens.

I') You can't do that.

)'" J

MS. MCGOUGH: We do it with illegitimate children

)'

I wonder

JUSTICE BOWLES: How?

MR. BONEY: Not really, do we?

MS. MCGOUGH: That's why I'm troubled by " soc ial

status ll , we certainly have first and second classes and groups,1
_________________________________________________--l

._---_._---, P_\.GE

-_ _---_._---- ...

-

-------~----_._----

110

I'
inheritance rights, consents to adoption. Are there any

I

cases in this? Do we know what it means?

JUSTICE BOWLES: Is this a social status?

MS. MCGOUGH: Well I'm not certain, I don't know
,
what social status means. It certainly has legal implications'
I
for social status. If someone is a bastard, that has social

implications.

MR. WHELCHEL: It's not a matter of legislation

though.

MS. MCGOUGH: Yes it is too, born outside of a

marriage

MR. PEARSON: It is legislated.

,>.
bastard.

MS. MCGOUGH: -- the legislature says you're a

,

MR. WHELCHEL: Well the definition, yes.

'>.

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,.'

MR. BONEY: That's one I never anticipated any

"..j

l"

"c.
n objection on. I'll have to take a second thought. What's

your fear on that one now?

MR. HILL: We haven't researched this one, it seemed :1 to be an inocuous provision.

MR. PEARSON: You should favor this language.

MS. MCGOUGH; Oh, absolutely, but I think we ought

to know what we're doing. Why has no one ever raised it?

JUSTICE BOWLES: Because the legislature has never

attempted it, in the meaning that we assign to it -- that I

assign to it anyway.

PAGE III
---------------1

MS. MCGOUGH: I'd like to have it in, I really

would.

JUSTICE BOv~ES: In or out?

MR. BONEY: That's what I thought.

MR. PEARSON: You'd get some litigation coming your

way soon.

JUSTICE BOWLES: You didn't know allfuese things

existed.

MS. MCGOUGH: Absolutely not, tucked away.

.i

JUSTICE BOtiLES: It's like studying your Sunday

School lesson, you may not get the members informed but you'll

sure inform yourself.

What do you recommend?

MS. MCGOUGH: I move its passage.

MR. PEARSON: Second.

JUSTICE BOWLES: Discussion on it?

(No response.)

JUSTICE BOWLES: All those in favor, say aye.

(Ayes. )

JUSTICE BO~~ES: Opposed, no.

(No response.)

JUSTICE BOWLES: It's adopted. XXIII. Exemptions

from Levy and Sale. We have a proposed change in that that

has been circulated to you.

I
!

I

___ ~

. ..__ .

~

,

____J

PJ\(;E 112

"The General Assembly shall protect by law

from levy and sale a portion of the propoerty

of the citizens in an amount of not less than

- - - - - - $

and shall have authority to

define to whom such exemptions shall be

allowed; to specify the amount of such exempt-

ions; to provide the manner of exempting such

property, the sale, alienation, and encumbrance

thereof; and to provide for the waiver of said

exemptions by the debtor."

MR. HILL: Now this proposal is essentially what

was reconunended in 1970 but they used the term "homestead" in
,.
{II.<I 1970 in that proposal, and I think the use of the te~TI

"homestead" is somewhat misleading. We have homestead exempt-;

ions to help you with property, you know, as a reduction to

your assessed valuation over in the Taxation Article, but

this relates to a protection afforded to the citizens.

Formerly -- I mean presently, not formerly -- presently this

protection is afforded only to heads of family, every head of

t?e family, guardian or trustee of the family of minor childrerl

of every aged or infirmed person or person having the care and

support of dependent females; protection is dfforded to this

class of people -- to this group of people. I think the

intention of this change in 1970 was to give the General

Assembly the authority to broaden this exemption from levy and

PACE 113 sale to other persons as well and perhaps not require head of household exemption. They were given the authority to

define what a homestead would be and who it would apply to.

So in this proposed change here, all I did was to remove

homestead because of it's uncertainty and ambiguity and

simply said the property and the amount. You would determine i-
,
I
the General Assembly -- and Michael has a memorandum on this

in your packet of materials. The General Assembly has, by

law, allowed this exemption to be $5,000; the present limita-

\1 tion is not $1600, it's $5000.

.J
i'

JUSTICE BOWLES: Did you know that?

" either.

I didn't

MR. HILL: It applies to every you know, it's

1,-,;' tied in to the same language, every head of the family. I

<,

1
,

e.'

.I

think for consideration of the committee is whether this

~ limitation to heads of household is really a good one, given
"
!" ~. all the single people v.re have more and more of these days.

, So the proposed change would allow the General Assembly to

I') define who would be entitled to this.

MR. WlIELCHEL: And given them the question as to

2: who is the head of the household?

,)

MR. HILL: It doesn't say anything about head of

23 household.

..I ..,

MR. WHELCHEL: That's what I say. Does anyone have

> a promissory note in his pocket? What's the waiver provision

-----.--~------

P.AGE 114
- ._------- --- ----------_.- --I

in most of your present promissory notes? Is it waiver of

homestead exemption?

JUSTICE BOWLES: Assignment, most of them. You

assign it to the payee, you name him as agent and attorney in

fact for the purpose of claiming it in the event of bankruptcy.

MR. WHELCHEL: Would the change in language here

affect that?

JUSTICE BOWLES: It says waiver down at the bottom,

"and to provide for the waiver of said exemptions by the

debtor"

MR. WHELCHEL: I understand that. I'm wondering

about the change in terminology affecting existing notes.

JUSTICE BOWLES: You can't do that.

MR. BONEY: The thing that puzzles me a little bit

on the proposed language -- I think it's an improvement but

the thing that worries me -- and I would like to suggest

.;( .1.1

this, "The General Assembly shall protect by law from levy

and sale a portion of the property of the citizens (skip there)

and shall have the authority ", let's don't write in the

Constitution the amount.

JUSTICE BOWLES: This would just be a bottom amount.

We all thing about inflation and everything going up, but we

have had $1600 in it all these years. ~Vhy not just leave the

minimum at $1600, below which you cannot go, and then let the

legislature make it as much higher than that

they've already

1

got it $5000. What do you think?

PAGE 115
.---~--._--.-.~ -'-~'-------'~'----"-----~--~-'~-'C

MS. OSTRANDER: Remember the issue that I was

concerned about? It's covered in another law, so this one

,+ will be all right, putting this figure in. I'd rather see

percentages, but I don't know how you're going to get it in

11

there.

MR. BONEY: I think that's right, not less than a

'-, particular amount.

MR. miELCHEL: Does this leave i t to the legislature~

',-
~.~
J,
c,

to determine the class of citizens that would be entitled to it? I MR. HILL: This would. MS. MCGOUGH: Aren't you suggesting the possibility

"shall protect by law from levy and sale a portion of the

'!

property of all citizens"?

MR. HILL: Well, you know --

1,)

MR. WHELCHEL: That's my question, whether it's

'.
~ each citizen or whether you're leaving it to the legislature.

MR. HILL: This leaves it to the legislature to

decide what citizens.
MR. BONEY: It's a constitutional right for everyone *,

MR. HILL: They may want to say all citizens or

each citizen a certain amount, but that would be a major chang~
I
I
from what we have.

MR. BONEY: It'd be creating a lot of litigation

I

because that equal protection

if

you

give

it

to

a

household

I I

____ .

~

.J

PAGE 116 and not to a single, then you've got that old equal protection

so we may just open up a good can of worms here. I'm not

opposed to it, but I'm not so sure that every person shouldn't

I have some protection that couldn't be seized unless he waived
"
it and he's going to waive it anyway if he borrows any money.

MR. PEARSON: That's for sure.

JUSTICE BOWLES: What about changing the levy and

sale to "a portion of the property of any citizen"?

REPRESENTATIVE MARCUS: Judge, do you think that

would prevent classifications?

\"

,-

JUSTICE BOWLES: I don't think it would prevent it,

0o<
..,i:&.

~. but I think it would pinpoint the authority given as it

" respects each individual citizen.
,~
REPRESENTATIVE MARCUS: I guess it's open to
<
'J
'~ interpretation, but everything I've heard, "all", "the", "any" I
.. ,.';
" seems still to me to be open to attack that the General

Assembly could define classes. I haven't heard any limiting

language.

JUSTICE BOWLES: They can adopt reasonable classes.

REPRESENTATIVE MARCUS: I thought some of the

interests here were to discourage that. If you're not trying

to discourage that, it seems to me any of the words you're

using would do it, but I thought there were some paoPe who

had a concern about that.

JUSTICE BOWLES: I see.

PAGE 117

MR. HILL: Well, you could say {'The General Assembly shall protect by law from levy and sale a portion of
I
the property of each citizen in an amount of not less than ... 'r
so much and then not allow them to define to whom and just shall protect each and specify the amount. I'm not sure if you want to give them the right to distinguish between classes They may want to give more of an exemption for heads of household than for single people but everybody will get --
MR. PEARSON: Will get something. MR. HILL: This would allow that classification if

i ;' \1
.\\ \

I

they want to do that.

,

I,

",
,

JUSTICE BOWLES:

Everybody's got to protect his

automobile, everybody has one, one or more, one or two.

MS. MCGOUGH: I move that it should be "property of

each citizen in an amount of not less than $1600".

MR. HILL: Five thousand is the current law.

JUSTICE BOWLES: There's another homestead exemption

that says $5000.

, l '~
MS. MCGOUGH: There's a hundred homesteads.

,

"

JUSTICE BOWLES: If it's already on the books

there's going to be some language in this Constitution, it

doesn't affect any existing statute, so there's already law

on the books for $5000 and the General Assembly is not likely to change this unless values get unrealistic again.
MS. MCGOUGH: But if they were giving $5000 to a hea~I

-.-------'-- .--. .--.----------. ! f".--.------------.~--.---------

~-

~._--

PAGE 118
_, -'---'~'-' .~..~... ~- . . ~._--,..

of household, they might want to give less to a single.

JUSTICE BOWLES: That's right. I'd just leave it

at sixteen, because that's what historically it has been.

MR. BONEY: tVhat is your proposal, where did- you

make the change? MS. MCGOUGH:

i,
I would say liThe General Assembly shall

provide by law from levy and sale a portion of the property

of each citizen in an amount of not less than $1600 .... " and

the rest is as written.

REPRESENTATIVE MARCUS: You moved?

MS. MCGOUGH: Yes, I so moved.

REPRESENTATIVE MARCUS: I'll second.

JUSTICE BOWLES: Discussion on this?

-

(No response.)

"<.

JUSTICE BOWLES: Those in favor, aye.

(Ayes. )

JUSTICE BOWLES: Opposed, no.

(No response.)

JUSTICE BOWLES: It's approved. Okay. Wife's

Separate Estate. Now this is an important one. I guess you

ii have seen Ms. McGough's memorandum and most of you who are

lawyers are familiar with Orr.

MR. WHELCHEL: Why don't we just leave it out?

JUSTICE BOWLES: Do you think the old common law

would have any effect on the title to people who merge as one?

PA.. GE 119

~._-

~ _..

-~.,-_._----

------~

i

The reason it was adopted initially was because of that

I

problem.

MR. \~ELCHEL: Because of that common law problem.

I don't know.

MS. MCGOUGH: We still have the head of household,

do we still have the language about merger? The old merger

of identity was contained in 53.501, the husband shall be the

head of the household and the merger of identity is gone,

') isn't it? No, it's still there, it did not get appealed, it

1\1 was a matter of great debate.

,. .,

JUSTICE BOWLES: I think in light of Orr though --

.1 '

MR. WHELCHEL: That was the reason for my suggestion.

JUSTICE BOWLES: In light of ~' I don't think it

has much validity.

MS. MCGOUGH: Hopefully not.

MR. WHELCHEL: I don't think there's any point in

[' making a distinction.

ii'_..

MS. MCGOUGH: If they are to be treated equal in

1~: the sense that the separate property of each remains the

separate property, then I don't see that we are giving husband

and wife any special protection and I don't know what it's

doing in the bill of rights.

JUSTICE BO\iLES: Except to illustrate that they are

independent, individually his or her own property without

hindrance of the other.

________________~ ~

t

P A(;r; 120

MR. WHELCHEL: If you stated it in that fashion,

there'd be no objection, would there?

JUSTICE BOWLES: I don't see how there could.

MS. MCGOUGH: All right, that's alternate two.

MR. BONEY: On this last thing, as I understood the

comments, all property at the time of her marriage and all

property given to, inherited or acquired by her, shall remain

her separate property. Well nobody I assume is opposed to

that "and may not be liable for the debts of her husband"

without her consent. Right now she can't consent andbe liable

,.)

7:

-'J~ for the debts.

()

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....

JUSTICE BOWLES:



Certain areas.

That's been amended

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a

little bit lately .

F,

,..

MR. BONEY: Right. I mean that wasthe background

v,

<1

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on

the

Constitution.

And what we were trying to do at that

,:<,

.,..I
2. time was to protect the estate of the wife so that
:>

~
" constitutionally you can't be responsible for his debts. A

married woman couldn~ sign a bond for a long time, and those

kinds of things.

Now we are saying we're going to treat her just like

we're going to treat him. If that be absolutely true, well

I don't know that we need it in here.

MS. MCGOUGH: I don't either.

REPRESENTATIVE MARCUS: My question is if we're going

to define them as being the same, I don't know why we even have

1

to put it in. HR. WHELCHEL:

PAGE 121
-------------1
i
i
That's right, unless Justice Bowles'

cornnlent about the old common law provision would bother us,

and I don't know the answer to that.

MR. CARLYLE: Even if that were true, the General

Assembly could override that.

MS. MCGOUGH: And already has, in 53.502.

MR. WHELCHEL: Okay.

MS. MCGOUGH: It now says liThe separate property of

each spouse shall remain the separate property of that spouse
',,')
except as provided for by the Code. That's as amended in '79.

This Code section, you will notice, does not attempt to define

separate property, the Constitutional section does by saying

:1

prior to marriage, inheritance and gifts.

MR. TffHELCHEL: Isn't that a matter of title?

:-15. MCGOUGH: Could be.

, ';
:I

JUSTICE BOWLES: I'd be a little bit afraid of not

putting it in.

J'J

MR BONEY: We've got such a body of law.

20

JUSTICE BOWLES: We all recognize pretty well that

lj we have developed to the point that what's his is his and

what's -- I mean what's hers is hers and --

, '.

MR. WHELCHEL: His is hers too.

JUSTICE BOWLES: His is hers too -- I don't know hOWl
I

to say it. She wants both.

_________________~ __ ~

i
..J

it

PAGE 122

REPRESENTATIVE MARCUS: If you're going to put that

in I'd have to vote for that.

JUSTICE BOWLES: We recognize now pretty well the

"
,1

separate individual properties of the wife.

This is where we

,

I,
want to be. I think this is where we want to be. And to

eliminate any doubt, we're striking a constitutional provision,

because of the gender features of it, aren~ we? So if we

neuterize it and leave it in in a neutral fashion, I don't

see how we could do great harm and it may be protective. Mayb~

that's an abundance of precaution.

:.
~ then?
7.

MR. HILL: What would the proposed language be Ms. McGough, did you have --
MS. MCGOUGH: All right. "All property of either

;- spouse at the time of the marriage, and all property given to,
T
inherited or acquired by either spouse, shall remain his or

her separate property." Oh, wait, excuse me, " ... except that
,
the General Assembly shall have the power to ..... ", " ... except,i

as the General Assembly has already provided or may provide in l

,I, the laws regarding divorce and alimony." And Mr. Justice

i
I

i

I

Bowles certainly made a sound suggestion that we should includcl

inheritance in here.

MR. CARLYLE: Why not just " .. except as the General

Assembly otherwise provides," unless you want to provide that

limitation.

JUSTICE BOWLES: As may be provided by law. The

l'.-\.GE 123 General Assembly reviews property rights pretty much, and theyi should. These things change.
MS. MCGOUGH: If we said as otherwise provided by law, we're empowering them to make it marital property.
JUSTICE BOWLES: They could. I think they can do that now.
MS. MCGOUGH: You mean after Orr? I don't think they could under the old Constitution. You couldn't make a wife's separate estate -- if she's already got a half interest in the house, you can't as alimony give her -- be satisfied
by the house since half of it is already hers. That's taking
alimony from her estate. JUSTICE BOWLES: You can do that now. MS. MCGOUGH: After Orr, after the '79 amendment.
You could not before. JUSTICE BOWLES: Right, the '79 amendment. MR. BONEY: Your suggestion a moment ago was that we
read it as you had, "The separate property of each spouse shal
il
remain the separate property of that spouse except as provided -- except as otherwise provided by law." That's in the Code Section now and we could just put that Code Section in the Constitution. Is that your suggestion?
MS. MCGOUGH: I think you ought to realize that you are empowering, for example, to change from a common law state to a community property state.

PAGE 124
JUSTICE BOWLES: Yeah. MR. BONEY: We don't want to do that. MR. WHELCHEL: That cuts both ways if you do it. REPRESENTATIVE MARCUS: That's a judgment they'd ~ have to make. MS. MCGOUGH: What are you saying in a constitutiona] provision though if we say it's this unless the legislature ~ changes its mind? JUSTICE BOWLES: There are so many areas they must consider, surety, divorce and alimony, rights of inheritance.
:J
'; .~ These are three that hit me right off. The legislature is going to have to act in those areas. So if it was just the
.. hard and fast constitutional provision, her property is hers and his is his and never the twain shall be affected by marriage, then it's just too stiff. It's not workable, that's what I would say. MR. CARLYLE: Doesn't it become meaningless and you might as well have it left out? MS. MCGOUGH: That's what I was suggesting. JUSTICE BOWLES: Can we meet back to the common law principle? MS. MCGOUGH: Uh-huh. JUSTICE BOWLES: Would we go back to common law then? MR. CARLYLE: Or whatever statute law may be. MS. MCGOUGH: I think you could, surely. I think they

could say everything --

PACE 125

JUSTICE Bm~ES: When you're married you're one.

MS. MCGOUGH: That's conununity property, everything

thereafter is shared.

are we?

JUSTICE BOWLES: I don't think we're ready for that, : I

MS. MCGOUGH: But I think if we say it's separate

unless they change their minds, i t seems to me a circle, you'r~

saying here's a right but the legislature can take it away.

i'.: Why have it in the Constitution? We have imposed no limita-

tions on the powers of the General Assembly to decide.

MR. PEARSON: But it does state a rule in the absence'

of any legislation that overrides.

MR. WHELCHEL: Which is just as --

HR. PEARSON: That does have some inunediate operative

effect.

MS. MCGOUGH: They've already provided for that.

The legislation, on page two, the second paragraph, the Code

section 53-502, which parallels this one says the separate

property shall re~ain separate except as provided in Divorce

and Alimony and except as otherwise provided by law. So they

have already recognized the separateness except as we

MS. GREENBERG: Is this provision, Wife's Separate

Property, that makes Georgia a separate property state?

Without it would Georgia become a conununity property state?

PAGE 126

MR. BONEY: I don't really think so.

MS. MCGOUGH: Now what?

MS. GREENBERG: Is the distinction here between the

way the Constitution is presently written, does that make

Georgia a separate property state?

MS. MCGOUGH: Yes.

MS. GREENBERG: And without it, Georgia 'ivould

become a community property state, unless the states were

written?

MR. BONEY: I don't agree with that. I think you

11 ,
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would have to have affirmative action to become a co~nunity property state. I don't think you could just strike something and you would automatically become

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MR. WHELCHEL: It just eliminates the husband acquiring any common law rights to the wife's estate, doesn't it, by virtue of the marriage.
JUSTICE BOWLES: The reason we are a separate property state is very subtle. In Alabama and Mississippi and: Texas, they went as couples and the wife had a say-so. It's

~)(! as simple as that. But the wives were left in England so as
,
a practical matter they couldn't initially, as a practical

')
matter, handle property. It's a practical thing and I like it.

Hell, where are we? I think we should say something,

even if we set up a criteria that could be taken down by the

legislature and I would be somewhat in favor of the last

PACE 127

suggestion.

REPRESENTATIVE MARCUS: Why don't you say it one

more time.

JUSTICE BOWLES: "The separate property of each

spouse shall remain the separate property of that spouse,

except as provided (you said in Code Title 30, Divorce

and Alimony) and except as otherwise provided by law."

MS. MCGOUGH: That is the statute.

MR. HILL: That's what the Code Section reads, and

you would like to use this as

JUSTICE BOWLES: If you're going to say this "except

as otherwise provided by law", I don't think you need to say

Code Title 30.

I,'

MR. BONEY: That's my problem.

MR. PEARSON: Let me ask a question. The language

as written, does that in fact preclude -- is that the

provision that precludes wives alimony?

JUSTICE BOWLES: Precludes alimony?

MR. PEARSON: Does this provision in and of itself

prevent

MS. MCGOUGH: No.

MR. h'HELCHEL: Prevent paying alimony?

MR. PEARSON: Yeah. This isn't the provision that

would bar that before Orr. That's the way I was interpreting

it.

It seems like to me that this prOV1Slon is designed to, as
-_.-------- --- - -------------------------------------~

PAC;E 128 you suggested earlier, to prevent the application of common

law rules with respect to unity of estate.

JUSTICE BOWLES: That's the only problem I can

envision.

MR. PEARSON: I don't see that, this type of

() provision, even though it is sex specific, as being unconsti-

7 tutiona1 where it has a remedial character, where it is

~ designed to create a status of equality given the fact that

o the common law is one of inequality. I see it as kind of

10:, having a remedial character and therefore I don't see the sex 1
-'
discrimination problem, as written. And it might be possible

to just state that the wife can be -- shall not be liable for

the debts of the husband unless as provided by law, or som~thing

like that. I don't see the sex discrimination.

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MS. MCGOUGH: All right, I'll show you sex discrimination. As written currently in the Constitution you sayan affirmative grant to the wife, "All property of the

wife at the time of her marriage, and all property given to,

;-,.)

... sha11 remain her separate property .... " That is not true

.'ll as to her claims of alimony upon his property. She could

lay claim to property that he brought to the marriage, that he

acquired after the marriage and that is sex based discrintination.

MR. BONEY: Of course, he can also do that now.

, ,..,.

MS. MCGOUGH: Not under the --

MR. BONEY: Oh , yes.

HR. PEARSON:

--_PA. GE 129 ~.- _~----_-I

See I view this as not preventing

I

the husband from --

MR. BONEY: Oh, yes he can.

MR. PEARSON: He can make that claim against her.

MR. BONEY: I think what he said a moment ago, as

I see it, "The separate property of each spouse shall remain

the separate property of that spouse, except as otherwise

provided by law." These areas where we need to have some

cross-over like the surety, the guarantor, domestic relations,

child support and that sort of thing --

MS. MCGOUGH: I thought you were saying leave the

current constitutional HR. PEARSON:

I
I
I
I don't see this language as preventin~

a husband from making an alimony claim against the wife. This

just says that the title remains in the wife. Now alimony is

" a situation that deals with a property interest as allocated,

so some of this may have to go one way or the other depending

on the equity associated with the marital relationship. I

can distinguish that in my mind --

MS. MCGOUGH: Can I just say that in the debate about

what to do with the legislation -- what to do with 53-502 in

the General Assembly and the committee that drafted the

, amendment, it was the consensus of opinion that former 53-502,

which is the current Constitution, would fall as unconstitu-

tional, and that's why the change was made. __. _ - - -, _._~---------_.

PAGE 130

MR. BONEY: In order for us to move on, I'm going

2 to make this motion, that we approve for the Constitution

3 "The separate property of each spouse shall remain the

;i
.:+ "

separate property of that spouse, except as otherwise provided

:; I" by law."

MR. WHELCHEL: I'll second that. What sort of

caption are you going to put on it?

MR. BONEY: I guess we'd have to say Spouse's

Estates.

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MR. WHELCHEL: Spouse's Separate Estates? MR. PEARSON: Yeah . JUSTICE BOWLES: All right. There's a motion. Is

there a second?

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MR. WHELCHEL: I second it.

i

JUSTICE BOWLES: Discussion on this?

,-"

(No response.)

JUSTICE BOWLES: Those in favor, aye.

(Ayes. )

JUSTICE BOWLES: Opposed, no.

(No response.)

JUSTICE BOWLES: It's carried. That brings us down

to the last one, Enumeration of Rights Not Denial of Others.

Anything that's said in here doesn't preclude other rights

that are considered vested, and I guess we would all agree on

that. Is there a motion on that?

PAGE 131

REPRESENTATIVE MARCUS: So move. MR. WHELCHEL: Second. JUSTICE BOWLES: Discussion?

(No response.)

JUSTICE BOWLES: Those in favor, aye. (Ayes. )

JUSTICE BOWLES: Those opposed, no.

(No response.)

':

JUSTICE BOWLES: Thank you for coming. Unless we

have something special, we will not meet again until the full committee meeting and you will be so notified.

MR. HILL: It will be November 9 at ten a.m. in

Room 337-B and you'll be getting a notice.

(vfuereupon, the meeting was adjourned at 1:20 p.m.)

"
--'
_.--------_._---------

C E R T I F I CAT E

PAGE 132

3

I, Peggy J. Warren, CVR-CM, CCR A-l?l, do

4 hereby certify that the foregoing 131 pages of transcript

represent a true and accurate record of the events which

I

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transpired at the time and place set out above.

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INDEX Committee to Revise Article I Subcommittee Meeting Held on Oct. 25, 1979

SUBCOMMITTEE MEETING ON SECTION I, 10-25-79

Paragraph I: Life, liberty, and property. pp. 5-27
Paragrpah II: Protection to person and property; equal protection (ERA discussed here). pp. 5-27

Paragraph III: Freedom of conscience. pp. 28-32 Paragraph IV: Religious opinions; freedom of religion.

pp. 33-35

Paragraph V: Freedom of speech and the press guaranteed. pp. 35-41

Paragrpah VI: Libel. pp. 41-46

Paragraph VII: Citizens, protection of. (See Section II)

Paragraph VIII: Arms, right to keep and bear. pp. 46-52

Paragraph IX: Right to assemble and petition. pp. 52-58

Paragraph X: Bill of attainder; ex post facto laws; and retroactive laws. pp. 58-59

Paragraph XI:

Right to trial by jury; number of jurors; selection and compensation of jurors. (See transcript of Article VI meeting held on August 5, 1977.) pp. 168-172

Paragraph XII: Right to the courts. pp. 59-63
Paragraph XIII: Searches; seizures; and warrants. pp. 63-73
Paragraph XIV: Benefit of counsel; accusation; list of witnesses; compulsory process. pp. 73-76

Paragraph XV: Habeas corpus. pp. 77-83

Paragraph XVI: Self-incrimination. pp. 83-84

Paragraph XVII: Bail; fines; punishment; arrest; abuse of prisoners. pp. 84-85

Paragraph XVII: Jeopardy of life or liberty more than once forbidden. pp. 85-91

Paragraph XIX: Treason. pp. 91-95

Paragraph XX: Conviction, effect of. pp. 96-100

Paragraph XXI: Banishment and whipping as punishment for crime. pp. 100-104

Paragraph XXII: Involuntary servitude. pp. 104-106

Paragraph XXIII: Imprisonment for debt. pp. 106-108

Paragraph XXIV: Costs. pp. 108-109

Paragraph XXV: Status of citizens. pp. 109-111

Page 2 10-25-79

Paragraph XXVI: Exemptions from levy and sale. pp. 111-118 Paragraph XXVII: Spouse's separate property. pp. 118-130 Paragraph XXVII: Enumeration of rights not denial of others.

pp. 130-131

,
, PAGE 1
1
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I

STATE OF GEORGIA
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COMMITTEE TO REVISE ARTICLE I

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of the CONSTITUTION OF GEORGIA

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Subcommittee on Origin and Structure of Government

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Room 402

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State Capitol

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Atlanta, Georgia

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Friday, October 26, ~

10:00 a.m .
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PRESENT WERE:

COMMITTEE MEMBERS:

MS. MILDRED BELL, CHAIRMAN

MR. GENE GUERRERO

REPRESENTATIVE JOHN SAVAGE

JUDGE ROMAE POWELL

SENATOR PIERRE HOWARD

MR. JOHN GRIFFIN

I,

REPRESENTATIVE BETTY CLARKE

REPRESENTATIVE ALBERT THOMPSON

SELECT COMMITTEE STAFF:

MR. MELVIN HILL MR. MICHAEL HENRY
III
OFFICE OF LEGISLATIVE COUNSEL:

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MS. CYNTHIA NONIDEZ MR. DOUGLAS CARLYLE

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PAGE 2

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PAGE 3
--~~- ~~~----~-----------,
P RO C E E DIN G S

MS. BELL: I'll call the meeting to order and I'll

ask each one of you to introduce yourselves please.

JUDGE POWELL: I'm Romae Powell.

MR. GRIFFIN: John Griffin.

REPRESENTATIVE CLARKE: Betty Clarke.

MR. HILL: Melvin Hill with the staff.

MS. NONIDEZ: Cindy Nonidez, Legislative Counsel.

MR. HENRY: Mike Henry with the staff.

in

MS. BELL: I'm Mildred Bell.

MR. GUERRERO: Gene Guerrero.

MR. CARLYLE: Doug Carlyle.

REPRESENTATIVE THOMPSON: Albert Thompson.

MS. BELL: I expect everybody received the copy of

" the committee's work, both our subcommittee and the other
,
, ' subcommittee from Mr. Hill's office. Before we get started I

would like to check, some of these things are marked "for

1 ,~ further study" and it was my recollection that we had disposed

I 1 of them. Mr. Guerrero, you were here at the last meeting.

2U

MR. HILL: I marked for further study if there was

21 some feeling on the part of the staff that the final language
),
should be looked at.
,;
MS. BELL: Oh, I see.

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MR. HILL: For approval, because people were making

suggestions and

I
the whole thing is for further study, really.
~~~--~-----~---

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__ __ _--P_AGE 4 - - - - _ _ ....

.. -~---_ ..

.... _ - - - _.

..... _ - - - _ .

.. _--------~

If we made a significant change and this is what we agreed to i
i
then, we might want to look at it a little more closely and

just double check and confirm your earlier decision.

Yesterday the other subcommittee on Article I met

and they went through each of their paragraphs and re-approved

each one just so that there was certainty about what has been

recommended to the full co~nittee.

MS. BELL: Approved them again?

MR. HILL: Uh-huh.

MS. BELL: We had several that I believe the staff

11 ~ was going to provide us with some additional information. ,;l

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Good morning, how are you.

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Well, shall we do it as Mr. Hill has suggested then, and go through and examine each paragraph again to be sure that you approve it in its present form?
MR. GUERRERO: A couple of questions about the other committee's work. Would it make sense to do that now or after

1Ii we go through our part of it?

19

MS. BELL: Wait a minute

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MR. GUERRERO: I have some questions about the

,,
other subcommittee's work, a couple of the changes they

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suggested, which mayor may not be relevant .

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MS. BELL: All right, go ahead.

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MR. GUERRERO: I had one question, Ms. Bell, about

2~ the Rights to the Courts section, Paragraph IX, where there was

I
i
PAGE 5 a suggested change to strike. Any person has a right to

prosecute his case, defend his case in court in person or

" by attorney or both. The recommendation was

REPRESENTATIVE THOMPSON: Can I tell you the

, reasoning behind that?

MR. GUERRERO: Yes.

REPRESENTATIVE THOMPSON: Justice Bowles said one

of the worst problems they have in court now is an individual

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decides that he's going to represent himself and then the

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court in trying to protect him appoints an attorney also to

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represent him and then in the middle of the trial, the man get$
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dissatisfied or unhappy with what the attorney is doing and

,j he fires him. There's no way to make decisions, things of

that nature. I think what they have been doing in recent i; ,~, years is to have appointed counsel and the person representing

themselves and they think that's a constitutional requirement,
7
17 " but by striking the language "or both", if a man decided to

represent himself he could just sit there by himself instead

19 I of having an attorney go through the torture of sitting there

.'0 with him and being unable to have any control whatsoever over

_" ,

the case. Wasn't that the thinking, Mel?

1,
MR. HILL: Yes.

REPRESENTATIVE SAVAGE: That's a good point.

JUDGE POWELL: Haven't there been some decisions on

that pro se__~:~~~~~nt~~i~n, that the individual would have the I

I' --- -------------

PAGE 6
- - - - - - - - - - - - - - - - - - - - - _ . -----~

right to represent himself if he wanted to and the courts have:

taken the position I think I can't recall the case now,

two or three years ago -- that in instances like that, to
1,
-f protect everybody that you appoint an attorney anyway and just

i, sit him there.

REPRESENTATIVE THOMPSON: That's what the Judge says!

!i is causing the real problem. You've got an attorney and he's

got to sit there, he has no control. The man wants to fire

9 him, he says okay I don't want him sitting here at this table

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with me and the court insists that he stay there. They removed that language in the hope that they can resolve that problem and if he is adamant in his position that I don't want counsel, I don't want him to have anything to say, to speak to

me or do anything for me, he would have the right to sit

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15 ," there by himself. That was Justice Bowles indication as being:

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his reason for wanting that language taken out, because they're having some problems at the appellate level with

1g cases coming up where there is conflict between appointed

III counsel and the person.

2U

MS. BELL: Representative Clarke?

REPRESENTATIVE CLARKE: May I ask a quick question

before you go on? As a non-legal mind, nothing about the law

do I know, I'm concerned if we remove the "or both" whether a

guy who has hired an attorney and at some point in tllle 25 during the course of his case he feels that his attorney is

PAGE 7
---_.-----~-------
not representing him to the best -- giving him the best

representation that he could possibly have and therefore he

decides that he wants to intercede and start representing

himself; if we remove the "or both" from that point on he

could no longer have any attorney.

REPRESENTATIVE SAVAGE: No, he could have an

attorney, certainly.
I
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REPRESENTATIVE CLARKE: I don't see how he could. H~

would have to dismiss the attorney if

I ...

REPRESENTATIVE SAVAGE: You can dismiss counsel,

1 I ,I employ other counselor proceed without counsel. ) REPRESENTATIVE CLARKE: If you remove that, I don't

see how he would still have that -- he would either have to --

REPRESENTATIVE SAVAGE: That only strikes the 15 ~I language "or both", it doesn't deny him the right to have both

but it would prevent the court from having to have an attorney
; "'
1 there when he didn't want one. What if he didn't want the
..'. attorney?

JUDGE POWELL: But it would prevent also the

defendant being co-counsel.
,1
REPRESENTATIVE CLARKE: I think that's the point I'm

trying to get to.

I

JUDGE POWELL: You give him a right to represent

I

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I himself or an attorney and then you're going to take that rightl

away by saying "or both".

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REPRESENTATIVE SAVAGE:

PA(;I~ 8
------, - --- -~---- ---.--------_.------------ -_._---
I
I thought the "or both" was i

going to be stricken.

-'

JUDGE POWELL: That's exactly what I'm talking about

4 I If you strike that out then he has that right no further.

MR. CARLYLE: For some of these reasons, I believe

6 I the decision yesterday by the committee was still -- if I'm

correct, Mel

to strike "or both" but put in "either in

person or by an attorney" and they had considered language

that said "but not by both". They decided to take that out

it.
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and leave some ambiguity because there was some concern whether, for instance, the language which they had considered

yesterday which was not -- not the same as this, but has that
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JUDGE POWELL: Isn't the ambiguity what you're

trying to eliminate from the Constitution?

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JUDGE POWELL: As long as you're going to still make:

it ambiguous, you haven't done what you're supposed to do, it

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seems to me.

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MS. BELL: Taking out the "or both" it would seem to

me would deprive him of the right to have both. The court

might grant him that as a concession but I don't think he 23 would have the right to insist upon representing himself and

having an attorney.

REPRESENTATIVE THOMPSON: Aren't the two things

-------------

-

-

-

-

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-

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PAGE
-----

-

-9-

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--

1

I repugnant? I know I wouldn't want to sit there with a client

who could tell me how to run that case. Either I'm going to I

run it or else I don't want to be involved in it.

JUDGE POWELL: Suppose your client is a lawyer.

REPRESENTATIVE THOMPSON: He could represent himself

<. then. Most lawyers have got more sense than to try and

represent themselves.

JUDGE POWELL: That's exactly what I'm talking about

'\ but if you've got this language he can't assist you if you \'\ wanted it, you would even be prohibited from asking his

I: assistance.

MR. GUERRERO: I don't know. I meant to talk to I
a number of people to try to check this out, I'm not an attornty

myself, but it seemed to me that what is aimed at is the

I

,I:' co-counsel problem or question. It seems to me like, my

I
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instincts tell me there's a very rare situation where we have I
i

I! the problem. It does happen but it only happens rarely when
I

somebody is foolish enough to want to be co-counsel on a
I
case. But there are those situations and my instincts tell mel

it's a fundamental right. I ought to have a right to help

II
directly in my defense if I'm on trial for something and even I
,

though it inconveniences the court. I can see where the Judgei

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would come from on that, but I'm concerned about it myself

and I wondered how much discussion there was in the other

committee and whether or not the same concerns were raised _ _ _. . - - J

ir -

----------

there.

REPRESENTATIVE SAVAGE:

person or by attorney or both".

---P-A-G-E--1-0----l

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What if you strike "in

I

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4

REPRESENTATIVE THOMPSON: May I make a suggestion?

REPRESENTATIVE SAVAGE: What does that do to the

(, language, where it would simply read "No person shall be

deprived of the right to prosecute or defend his or her own

S cause in any of the courts of this State."

MR. GRIFFIN: That would just leave it ambiguous.

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MR. HILL: Let's put it this way. The full committee I
is going to have to make a decision on this. I think as far
as you're concerned right now you're going to have to make the I
I
recommendation to the full committee. This is already -- you
know, the recommendation of the other committee is what is
going to -- they have jurisdiction over this sentence for the
moment.
REPRESENTATIVE THOMPSON: That's the one we're

1-: going to receive, their recommendation, and the only way this

committee would have any input in that is when we bring it

up before the full committee. Then you'll be able to comment

21 and object to anything that the Section I committee says, but

I don't think we as a committee would have any standing to

come forward with a recommendation.

MR. GUERRERO: Are they meeting again before the

full committee?

PAGE 11

MR. HILL: No, no, there will not be another

meeting of the other committee and I doubt if this committee

will meet again before the full committee .

.j

REPRESENTATIVE SAVAGE: Well the question is, if

that's the case on how we will proceed, why are we discussing

it at this point?

MR. HILL: I think it's an important thing to

discuss. I think that's a very good suggestion he made to

sort of air it and, you know, you may very well want to make II- that motion at the full committee meeting, to change the I' ;. language but I'd say it would be better to hold the

recommendation until the full committee meets because that's

who has to resolve this question if you want to change it. \-1 I think the discussion is worthwhile and helpful.

REPRESENTATIVE SAVAGE: Well that would be the

\) ~ case on every issue of the first section of the Bill of Rights
7-
<
discussion on it is certainly important but we need to

proceed with what is in the purview of our business and at I') the proper time --

MR. HILL: Well this is good background, you know,

and relates to some of the things we're going to discuss. I

think there are things that they took up that relate to you

directly. We're going to get down to a couple of paragraphs

and you'll see that they have accepted some of your

recommendations already, so

PAGE 12

- ~ - - ~ - - - - ~ - - - - - - - - ~ - - - - - ~ - - - - - - ----------~~------

~-~--------I

MS. BELL: Was there something else you wanted to !

conunent on?

MR. GUERRERO: No, that's all.

JUDGE POWELL: I did, with this recommendation 5 ~! but I'll take it up with the full committee. I had several

( things that I wanted to bring up about that section too.

MR. GUERRERO: I'd just like to hear what people's

8 questions are. It seems to me like it's helpful to know what

') are going to be the issues before the full committee so we can

10 think about them and talk about them without belaboring the

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discussion. JUDGE POWELL: In Paragraph IX -REPRESENTATIVE THOMPSON: Of Section I?

JUDGE POWELL: He said he wanted to hear, we're

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not going to discuss it -- I would take out "on demand". I think that the accused ought to be furnished a copy of the accusation automatically. The defendants don't know they

can demand these things and I would take out "on demand".

J9

MS. BELL: Which Section are you in?

JUDGE POWELL: He said just mention it, he'd like

to hear it.

MS. BELL: Paragraph IX?

REPRESENTATIVE THOMPSON: The language "on demand"

,

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is not in there right now.

JUDGE POWELL: On this one you just gave me it's

, "x.;

PAGE 13

still there.

REPRESENTATIVE SAVAGE: On Paragraph IX?

JUDGE POWELL: I'm sorry, Paragraph XI, line 5 or

87, it's still in there.

MS. BELL: Was that the only thing you wanted to

u point out?

JUDGE POWELL: A lot of little things, maybe the

~ other are just nitpicking, I don't know.

MS. BELL: Are there other points that need to be

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brought out about Section I before we proceed with SectionII? MR. GUERRERO: Let me -- is it correct that someone
is working on Section XXIV, Wife's Separate Estate?

,"

jI

>_

MR. HILL: Yes. REPRESENTATIVE THOMPSON: Let me mention one on here

,.

,I

that you might find of interest.

Paragraph XII on Habeas

'0

t:":.)
1', 7. Corpus. The language in there presently reads that the writ

I,
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, can be suspended in case of revolution or a couple of other

things and the recommendation here is that that language be

removed and it just say plainly that the writ of habeas

corpus shall not be -- did they put it back in?

MR. HILL: They put it back in, but it's not in the

present Constitution. It was in the Constitution until 1877

when it was dropped. It said "The writ of habeas corpus

shall not be suspended unless in the case of rebellion or

invasion the public safety may require it." And that was the

_ ------_._---, ._~.... ~-,- . _ - - - _ . _ - -.. - - ...

--_._-----

way this habeas corpus provision was

PAGE 14

-

----- , --

-------------~--------,

I
phrased in all the earlie~

:i Constitutions. In 1877 it was dropped and it was never put
,1
3 ',1 back in. The committee felt that -- well they also looked at

4 a number of other states and eight of ten that we looked at

had this exception in there "unless in case of invasion or

rebellion the public safety may require it," so they voted

-,
I

yesterday to add that language back in. Once again, that's

something that the full committee is going to have to resolve.

They are also considering -- now this is another,

10
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I
habeas corpus is under study for another reason as well. Ther~
I
I
is a desire on the part of the judges and a number of other

people as well, to have a unified appeal procedure, and the

i

thinking

was

that

some

mention

of

the

unified

appeal

procedure

I I

or the necessity of the State to develop such a thing, maybe
<
_f:
15~: it should be mentioned here so that you would not have
:0
16 :~ separate avenues. So that's under consideration by that other C> 7
,. .,.. -,' committee as well. There was no final decision made on that.

1'""1 At the moment the language is

19

REPRESENTATIVE THOMPSON: Let me say this about it.

20 I like it the way it is because I can't conceive of rebellion,

invasion, that type thing, in the State of Georgia. This is
'11
really a national problem. Rebellion in the State of Georgia?
."-.' Rebellion against who, state government? I think the federal
.'-f troops would be in here so fast, you know. We're not a

government in the same fashion that the federal government is

-

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--~

--

-

--

_.

-

-

-

PAGE ----

-1

5-

-

,

and I have some real problems trying to understand when this

writ could ever be suspended, even with that language. If

we're invaded by someone we're going to be so deep in chaos

that talking about doing away with the writ of habeas corpus

5 won't have any meaning. So I really don't see much use in

adding that additional language but there are some other

people that feel very strongly about it.

MS. BELL: Doesn't the federal Constitution have

that provision? Wouldn't that also be binding on the state?

1:~l
,1 7.
I!
.J

REPRESENTATIVE THOMPSON: Yes. MS. BELL: Whether we have it in the State Constitu-

tion or not is really not terribly important.

REPRESENTATIVE THOMPSON: It would a~ply to the

.. federal government in a manner which it does not apply to the
<c -,:r
,I 1 5 ,~, state government because they are the ones who are concerned

e'
; 6 :'1 with revolution and invasion basically, they are the ones "c:

<:

l 7 r:l< -':::1

who would do the suspending of the writ.

If Georgia were

ever invaded, I doubt if very many of us would be at the

Capitol, we'd be out there trying to take care of our family

and all those other things .

.: j

MR. CARLYLE: The Federal Constitution provides

1 1 liThe writ of habeas corpus shall not be suspended unless when

23 ' in cases of rebellion or invasion the pUblic safety may

,1

.-' ~I

require it."

MS. BELL: Where is that in the Constitution?
- - - - - - - - .'~ ~._.'-'-~~---~_.'- -~'-- ..._ . - . _ - - - - - - - _ . - - - - - - - _...

11---'--- ----,---,,-----------,.

PACE 16
-.---------- ------------------------l

II
MR. CARLYLE: It's Article I, Section IX, Paragraph i

II.

MS. BELL: Is that relevant to the question of

whether it would be binding upon the state?

" .-

MR. CARLYLE: Pardon?

;

!
lJ

MS. BELL: Is that relevant to the question of

,I ,.,
{ whether it would apply in all circumstances to the state?

MR. CARLYLE: I just point that out because there

is an exception in the federal Constitution.

10

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MS. BELL: Oh, yes. REPRESENTATIVE SAVAGE: As Albert has so wisely pointed out, the federal Constitution would prevail in that type of issue and certainly if the federal Constitution, it

- I ; ""' 1: 1,J "~
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being the defender of our defense, has every right to put

that exclusion in there. I don't think that's an issue that

addresses itself to the Governor or the people of Georgia.

I

If the writ of habeas corpus is going to be suspended, it'll b~

I

I

suspended throughout probably this entire nation due to a

" I

19 " total catastrophic emergency.

211

MR. HENRY: Would that prohibition against the

II suspension be applied to the state through the Fourteenth
,,
Amendment in light of the fact that it's not in the Bill of

."

Rights, it's in Article I?

MS. BELL: That's a question that I was going to ask,

what is in Article I.

PAGE 17
1
MR. HENRY: I don't think it would apply to the

Fourteenth Amendment to the states.

JUDGE POWELL: I could see where matters in regards

to maybe federal issues, federal prisons, would be involved

during that time that would not necessarily affect the state,

( where we would not necessarily need that.

REPRESENTATIVE SAVAGE: You mean, you're suggesting

that if we don't write this in, that wouldn't apply to the

'! State of Georgia if we didn't write that into the State

;11 Constitution?

!'

MR. HENRY: I would have to research the point, but

1 ? I would say it would be questionable. I believe we could

'-
w

possibly suspend the writ.

MS. BELL: But of course with a flat prohibition

15 that it shall not be suspended --

MR. HENRY: If we deleted that from the Georgia

II Constitution.

1.\'

REPRESENTATIVE SAVAGE: I think the suggestion is

j ., just simply to keep that language in, isn't it? "The writ

I

of habeas corpus shall not be suspended." Is that the suggest~

i
ion?

MR. GUERRERO: Yesterday they ordered it back in.

MR. HILL: What you have in front of you is the

present Constitution, the recommendation is to add the

exception, "unless in case of rebellion or invasion the public :

_.. _. ~...

.._ _~~.

._.

.

.

J

n----------- -~-------- ------------------

PAGE 18

!i! safety may require it." That's the recommendation of the

I other committee, that this language be changed to what it
:1

il

" originally was, liThe writ of habeas corpus shall not be

, IIii
.j

suspended unless in case of rebellion or invasion the public

safety may require it." Again, the full committee will have

to decide if you disagree. I think it's clear where that

came from, that language, they borrowed it right from the

8 federal Constitution and I'm not sure if the issues are the

same. You may wish it to stay as is. You know, it was

dropped in 1877. We did research and there was never any

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discussion in any of the former committees about why it was dropped. Remember Albert had asked us to look into that? There has never been any discussion until now really about why

that exception was there and what it meant.

REPRESENTATIVE THOMPSON: That's over a hundred

i,,;!

.~

1 =' (~ Cfl

years ago, Mel.

Is there any indication that in the last

,~l

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1! <.:: r...

hundred years it was ever necessary to suspend the writ of

habeas corpus because of rebellion, invasion or the public

safety demanding?

20

MR. HILL: Not to my knowledge

.~ i I I

MR. HENRY: They're also studying some type of

qualification on the prohibition of the suspension so as to

,'
.;...'

accomodate the unified appeal process. I think it's fact that

if you have a unified appeal where you are only allowing a

prisoner to seek the writ one time, then you are effectively

PAGE 19 - - -~------------_.. _ - - - - - - - - - - - - - , suspending it for the other times which he seeks to get a

writ.

REPRESENTATIVE THOMPSON: You know, I know what

your problem is. Down in Reidsville and places where you have

~ I: state prisoners, every prisoner down there that has access to

" a law book decides eventually to file a writ of habeas corpus

and the courts are just jammed up with writs of habeas corpus. i
i
I
"' But I don't know whether we ought to try, in the Constitution, i
I

<) to suspend that. Maybe we ought to leave the Constitution

I

d: like it is and try and control that by statute rather than
~",
It build it into the Constitution. I don't know any way it could

be built into the Constitution without breaching a longstandin1

right for a writ of habeas corpus. We might be able to do

something about it by statute.

~
1 1 i: I.. '

MR. HENRY: But this is a stumbling block to the

t.,
unified appeal process.

1'1

REPRESENTATIVE THOMPSON: But I'm not sure the

unified appeal process is what I want.

MR. GUERRERO: Exactly.

REPRESENTATIVE THOMPSON: That's what I'm saying,

'i I'm not sure we ought to just have one appeal and they're

forever precluded again from appealing regardless of what

comes up. If you put a unified appeal in there, that's it.

i

_),."...

i
Something could come up, some new evidence, or something could i

I
be disc~_~e_r_~~ an~_y~u w~~~~ be _~~ec~ude~~rom going back into jt

i:-----

---------1 PAGE 20
--- ----------~ --- -------- ------ -- ---------- ------

II I don't know whether we want to do that.

i

I

MS. BELL: Would the unified appeal preclude that

J, on the basis of --

REPRESENTATIVE THOMPSON: He's talking about

, ,i

)

suspending the writ of habeas corpus, if you do unified

6 appeal then you've just got that one appeal and then you're
-, ",i
through.

JUDGE POWELL: You have to raise all issues of law

9 ' and fact at that time.

10
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REPRESENTATIVE THOMPSON: How are you go~. ng to ra~.s! ei
I
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it if something else comes up? You've got one appeal, you've
had that appeal, what is it, you're just left from now on?

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MR. HENRY: You have your federal avenues of appeal. REPRESENTATIVE THOMPSON: It wouldn't suspend the federal writ of habeas corpus, but I'm not sure we want to do that. I'm just saying I don't know whether we want to writ~ it into the Constitution. I'm certain that I feel like we

Ix

need to stop some of the frivolous habeas corpus writs coming

/9 out of prisons, many of them don't have any basis and I

'~() would like to see that controlled to some extent, but I don't

)
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know if you can throw a baby out with the water. I don't

-,-,
know if this is what we want to do, at least as far as

.::: .."'l

lumping it into this document is concerned. I don't mind

.-.."-'1""

controlling it, I think it needs control, but I'm not sure

,,~
we need to do it by the Bill of Rights.

1

MR. HILL:

PAGE 21

-- -----------~---~-------
I don't think this present language

I

I

prohibits the General Assembly from regulating it, it just
I

says the writ shall not be suspended, it doesn't say it shall i

,i not be regulated or controlled or parameters put on it. I

think they would have authority under general law to do

something to try to deal with thatproblem.

7

REPRESENTATIVE THOMPSON: To those who haven't

met him, this is Senator Pierre Howard from DeKalb County.

;)

I

SENATOR HOWARD: Sorry I'm late, Mr. Chairman.

MR. GRIFFIN: I don't see that the language you

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just spoke of would get around the suspension idea. When you
i talk: about regulating, that in effect suspends the writ. I I

mean I don' t think your language follows that it would not

I

violate the prohibition against suspension.

,I

MR. HILL: You think any regulation at all

MR. GRIFFIN:

Could be interpreted to

be a

I suspens~oi

of it, it seems to me. If you say you're regulating the writ I

1b

of habeas corpus, it seems to me the courts might very well

! lJ

interpret that to be a suspension.

'I
MR. HILL: They very well might, I'm just -- that's

--

just my impression.

l")
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MS. BELL: Now the habeas corpus is regulated, isn't

MR. GRIFFIN: I don't know.

MS. BELL: You can't continue to have habeas corpus

._. YT'-~--'

--.---,-------.--~.---------

ii

:1 on issues you've

already

raised,

can you?

PAUJ~ 22

,i

JUDGE POWELL: Anything that is res adjudicata is

3 res adjudicata.

SENATOR HOWARD: To that extent it is.

MS. BELL: It's never been considered to be a
I
I
( suspension of the writ, but you can't have a second writ, isn'~

7 I; that the point you're making?

MR. HILL: Yes. Although, I mean, it's subject to

9 court interpretation and we haven't had one recently so

(' we're all sort of unsure in this field, but -- well you might

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want to think about that for the next meeting of the full committee.
This is another one of those issues that you're going to have to resolve then.
REPRESENTATIVE THOMPSON: There was one other pet

"' f '
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that I had in here and that was on Paragraph XVI which deals

1:1

7

'7

,,'
'0

with treason

You know, we've been talking about cleaning

1:'\ this document up to a certain extent, and I don't know what

19 , treason against the State of Georgia is. I have a real I,
20 problem with it. I can understand treason against the United

"/~ .t States, but I don't know what treason under the state

" Constitution is and no one has been able to tell me of any

-,-;

instance where anyone has ever committed treason against the

, .\
"

State of Georgia. I may be wrong, I'm no great historian, but'

just within my recollection, I don't recall any.

PAGE 23

---r

MR. CARLYLE: One thing the committee discussed

I

about this paragraph yesterday was the second sentence. They I

thought maybe that was the important thing about this paragrap*,

as a protect~.oni under wh at c'~rcumstances you may I b e con' v~ctedl
I
I
of treason and that's one of the reasons they decided to leave I
I
it in.
i
REPRESENTATIVE SAVAGE: I think our Chairman is
still raising a substantial point, to have a crime that we hav$I

i never experienced in the State and.then to clarify how you're

:0 going to convict someone of it in the Constitution

..

t 1 ..-.

REPRESENTATIVE THOMPSON: I guess every state

constitution has treason in it. I didn't check all of them

for treason, but I wouldn't be surprised. It just seems

antiquated to me and we're talking about cleaning up the

document.

JUDGE POWELL: Why don't you look at what happens

17 ,~ in other countries. I don't think it would be totally

inconceivable that some person way out may try something in

the state. It's really inconceivable that such would happen

but it's not impossible.

REPRESENTATIVE SAVAGE: If you declared war against n I any section or any states of the several states of the United

States, that would not be treason considered against the

United States?

JUDGE POWELL: No. That'would be a question.
--------------

---------------------.

------~-----------

PAGE --2--4------1

II
1 :!

REPRESENTATIVE SAVAGE: If Cuba landed an army in

2 Florida, that would only be treason levying war against

I _, II

Florida?

Certainly that concept won't substantiate it.

,('

SENATOR HOWARD: If Cuba did?

REPRESENTATIVE SAVAGE: That would consist of

6 levying war against the state.

SENATOR HOWARD: I know, but this contemplates a
i\ :il' citizen of this country instead of some foreign power.
I!
;1
REPRESENTATIVE THOMPSON: California on treason

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says this: "Treason against the state shall consist only in levying war against it, adhering to its enemies or giving them aid and comfort. No person shall be convicted of treason unless on the evidence of two 'vitnesses to the same overt act or confession in open court." Nhich is the same language.
MS. BELL: Exactly the same. REPRESENTATIVE THOMPSON: Except it defines what

It; treason is, which is what I said, I just can't conceive of
I
'I
) :1 Alabama and Georgia going to war.

SENATOR HOWARD: How about some county?

I"

_' 1

REPRESENTATIVE SAVAGE: Treason in Georgia is

levying war --

REPRESENTATIVE THOMPSON: "Treason against the

'..1 state shall consist only in levying war against it or

adhering to its enemies --

.. -~._- ~~-_._---------

PAGE 25

REPRESENTATIVE SAVAGE: That's exactly what this

says.

.'

REPRESENTATIVE THOMPSON: Is that the same language?

MS. BELL: Same language.

REPRESENTATIVE SAVAGE: Now the question comes up,

has that crime ever been committed in Georgia's history by a

person against the state.

JUDGE POWELL: How about political parties maybe,

'i it could be a question of political parties within this state

1" waging war against another political party.

1i-
or

REPRESENTATIVE THOMPSON: I don't mean to harp on

T .~

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. 1

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that because it's not really within our providence right now, but it's an interesting question to me.
MR. HILL: And I would say Judge Bowles, Chairman

;' ~. of the other committee, feels as strongly about the need for

,I this as some feel for not having it.

SENATOR HOWARD: What is his thinking, Judge Bowles?

i !'> i :

MR. HILL: He thinks it's a very valid possibility

l) and the fact is, I think in a document of this type where

").0 we're setting up the structure of the government, mentioning

...-,

1
I

treason, while it may be archaic and we may not ever see it

,C
in our lifetime, it goes the part of what this document is

. .'

trying to do

,

"

SENATOR HOWARD: Sovereignty of the state.

MR. HILL: Right. So I don't know that it is so _ _ _---Ji

n . - - - - - - - ---------~--.-. --- ...- --~-- - _.-_..

. . - .. ---.-- PAG.s 26 ---~----_._------

'---'-"--~"-"'-~l

misplaced. It may be archaic and it may be never used, but I

I
it is not just like any other crime with respect to the
I
!
establishment of the government.

REPRESENTATIVE SAVAGE: Can you imagine a crime of

a citizen against the state that would not be prosecuted under

(, the present law, that would be classified as treason? Can

anyone here at this table give me any example of treason by

(.
.\

a citizen of the State of Georgia against the state that

would presently not be covered by some law?

T.
treason

REPRESENTATIVE THOMPSON: Illinois doesn't have a

.'

MS. BELL: I really don't know, John, whether it

~
~~C'!O '~; would be covered by federal law or not.

}.

REPRESENTATIVE SAVAGE: I don't know either, I'm

~::, just asking. is anyone here able to give me an example of an

!i

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act of treason against the State of Georgia that would not be

f.'i
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I

"

covered as a crime perhaps by another law of the state,

I
anothe~

I

statute.

MS. BELL: I can't give you an example, but I would

certainly be unwilling to say that there are none.

REPRESENTATIVE SAVAGE: I don't know either, I'm

just asking that as a rhetorical question.

MR. HENRY: This entire provision is set out in the

criminal statute and it goes even further. It is also

distinguished from insurrection.

REPRESENTATIVE SAVAGE:

- ------

PAGE 27 ._---,

I You mean treason against the

State of Georgia is covered by statute very comprehensively

-' and fairly?

SENATOR HOWARD: What does it say?

REPRESENTATIVE SAVAGE: Then it wouldn't be needed

" in the Constitution.

MR. HENRY: It basically says what this provision ,~ right here says and then it goes on to further define levying

war, adhering to the state's enemies and giving them aid and ;:) comfort.

't

~

REPRESENTATIVE SAVAGE: That's what this says. If

o

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that's covered in statute law in this state -- do you know

l~
~ anyone that has ever been prosecuted under those statutes?

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MR. HENRY: It was pointed out yesterday that this I

I

is one of the criminal statutes that has served effectively as!I

a deterrent.

I

I

(Laughter. )

I

REPRESENTATIVE SAVAGE: If that's the case, then whai

we should do in the legislative process is to figure out some i

criminal statutes that no one would ever violate.

I

REPRESENTATIVE CLARKE: But there's nothing written I

", :

in it that says how much time you get or whether you're hung -~i

I I

MR. HENRY: You get the death penalty for treason. !

REPRESENTATIVE SAVAGE: Nobody has ever been tried

under that category of crimes, so what we would do to eliminatJ

...._..__. . __._. . .. . . .__.. .

---.J

rr --. -.---------. ----- ----- ......-~.-----ii crime would be to create categories of crimes that no one

~ would ever violate and then we could give a report saying that

3 the categories of these crimes has been greatly reduced in

-f Georgia.

,-
~

MS. BELL: The people who feel strongly about that

i!

" " provision, the fact that there is a statute wouldn't satisfy

7 them because a statute could certainly be --

MR. HILL: I should certainly point out that treason i

'J is mentioned many times in the Constitution. There are four

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or

five

other

places

where

it

is

mentioned

in

our

.

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Const~tut~on;

I

it's not just here. Even if you omitted it here you would

still have reference to it elsewhere. I think it's going to

be one of those issues that's going to have to be resolved

14 .......,



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at the next full committee meeting. REPRESENTATIVE THOMPSON: It doesn't really bother
me that much, it's just archaic and we were talking in terms of streamlining the Bill of Rights. If we're going to

1t' streamline it, we've got to take something out and I don't

19 think from my deliberations we've taken but three paragraphs

]U out of the whole Bill of Rights, that had to do with lottery,

'1 I I

lobbying and then XXIII or XXII about women's property. There!

,,
was a recommendation that it come out. Those were the only

three I believe that have been taken out of the entire Bill

of Rights.

MR. CARLYLE: They put that back in.

PAGE 29
- - - - - - - , -._---~----~-_.

MR. HILL: It's in there neuterized.

I

!

REPRESENTATIVE THOMPSON: Well that's fine.

\

MS. BELL: We recommended the deletion of Paragraphs I

XI, XII and XIII.

<,

REPRESENTATIVE THOMPSON: Yes.

"

MR. HILL: As long as that has been brought up, I

feel that I should ask you to look at those three provisions

again. This is on page 7, Lotteries, Lobbying, Fraud;

Concealment of Property, just to confirm your earlier discuss

on this. I presented this to you the last time in this frame-
,)
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t , c, work, I said there is another committee who is taking this
,';
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need to worry about it. They were going to put it into the

powers of the General Assembly over in Article III. I was

just saying we're happy to take those three issues away, you

i, don't have to worry about them and you said fine, but, you

i I know, while you're at it, tell them we don't want them. That

was about the extent to which we really discussed these issues

and I felt like I may have killed any debate that there may '0 have been on these things. I feel that the other committee

will not include them. They are not considering them as part

of their package because they don't feel it's their jurisdictiqn

it's yours and they would like you to make that decision,

whether it should be there or not and if you would decide no,

then they will not -_. it will not go in. I don't feel we had

_______ _.

.

.-J

PAGE 30 enough discussion last time because of the way I framed the 7 question, and that's why I'd like to bring it up.
MS. BELL: I don't have the feeling that you killed the discussion. It was my impression that there was a 5 consensus of the committee members who were here that it
i'
f. should be deleted, and not simply be referred to another
,
; " committee. How does the committee -- we have some people who were not here at the last meeting. How do you people feel about that? REPRESENTATIVE THOMPSON: I feel that very strongly. REPRESENTATIVE CLARKE: I've got a question, since I was one who was not here, on page 7 in Paragraph XI, what status are we in if that is deleted as it relates to lotteries in the state now? REPRESENTATIVE SAVAGE: The present law we have by statute would cover that operation, which is exactly where we ought to be. REPRESENTATIVE CLARKE: Are you sure about that? MS. NONIDEZ: You have parallel language, you have implemented that whole area statutorily. REPRESENTATIVE CLARKE: Are we in the posture that if we wanted to institute paramutuel betting, would that
,,
,. ~.., deletion mean that the General Assembly could do it? MR. GUERRERO: Yes. MS. BELL: Pierre, how do you feel?

SENATOR HOWARD:

PAGE ----

-3-1-

-

,

I feel that this has no place in

the Constitution at all, I think it ought to be taken out.

MS. BELL: Do you think we should go through the

i fonnali ty of voting on these again, or should we just leave

"
ii

it the way we voted on it?

Unless there is some--

MR. HILL: Well, you know, welre going through each

paragraph again making a decision. I would like to see you

8 make a formal decision.

MS. BELL: Another formal decision.

III

REPRESENTATIVE SAVAGE: Madam Chairman, I move that

Ii we adhere to the language that we have recommended, deletion

~ of those paragraphs.

MR. GUERRERO: Second.

MS. BELL: Any discussion?

1<;

(No response.)

MS. BELL: All those in favor say aye.

(Ayes. )

MS. BELL: Opposed.

19 I

(No response.)

20

MS. BELL: The motion carries.

REPRESENTATIVE CLARKE: I have another question on

another paragraph back on page 3, Paragraph XIII. Crimination

of self not compelled. lid like for one of the legal minds
24 in her to maybe address -- I have a serious problem with the
I
fact that once a person takes the Fifth Amendment when they'reJ
------------- ----------._--- - - -

,,----

_._-_ . --- .._-- --

.._ .

-

.. _ . __ PAGE 3 2 ._._--------------~--_.--,

i" '
on trial -- and I was recently involved in a trial and it

I
I

I

iI

I

':'I
')

happened there

isn't there something we can do whereby if

J a person takes the Fifth Amendment, they're not automatically

assumed to be guilty of something?

REPRESENTATIVE THOMPSON: They're not automatically

assumed to be guilty of something.

7

REPRESENTATIVE CLARKE: It seems to me if you take

the Fifth, somebody assumes -- the Judge or whomever, the

jury assumes -- that you're hiding something and you are

1i :

'i".
t 1 co: 0 'J.
~

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'_.,.

t~~:.\I!I_~

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guilty of something. I know you attorneys don't want to think that.
REPRESENTATIVE THOMPSON: You're automatically hiding it, but there's no automatic

\ t

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I ;;; ~
I.J .:r.-

16 It} "2: ~ a

2-

; <,

7

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REPRESENTATIVE CLARKE: Assumption that you're guilty?
REPRESENTATIVE THOMPSON: -- assumption that you're guilty. Our law even goes further than that, if you refuse to testify at your own trial, the District Attorney can't get

I <;1 up and comment on your refusal to testify, saying you must be

,

20

I,
I,

guilty,

you were scared to get up here and be cross-examined.

., 1 ,I \ That's grounds for a mistrial. He can't comment on the fact

,,.' _. that this person refused to testify, took the Fifth Amendment .

This is not a proper argument, however, as a practical

matter, if I'm trying a case I like for my client to get up

there and say no I didn't do it because the jury sort of gets ,

PAGE 33
- - --------- - ----------------------------..,
the feeling he didn't testify, he didn't get up to say he
Ii
didn't do it, so he must have done it. You're right that

, that feeling is there, but I don't think that this has anythin

4 'I to do with the fact that a jury, as a practical matter, feels

that a man who is telling the truth will get up and say so.

You understand what I'm saying, there's a difference between

practicality of the situation and what the law requires.

MS. BELL: Is there any such word as "criminating"?

MR. HILL: Yes, I looked it up, it's a verb

transitive, it's the proper term.

SENATOR HOWARD: It also may be archaic, Ms.

Chairman, I never heard that word before; a lot of them I've

never heard.

MR. GRIFFIN: That's part of my problem.

SENATOR HOWARD: Benjamin Franklin used that word,

16.
:J
,-~
:7

I think

MR. CARLYLE:

Black's defines it as "to charge one

with crime; to furnish grounds --

MS. BELL: Criminate, well then it wouldn't be the

20 proper use here.

REPRESENTATIVE SAVAGE: "to furnish grounds for a

criminal prosecution".

MR. CARLYLE: "to expose a person to a criminal 24 charge'l.

REPRESENTATIVE SAVAGE: Then it says "A witness

;

_ _ _ _ _ _ _-.-J

"
,

rr----- --------------- --------- -----~.,'

PAGE 34

cannot be compelled to answer any question which has a
, I"!
2 tendency to criminate him."

, Ii"

SENATOR HOWARD: I think "incriminate" is a lot more:!

!.}' graceful anyway.

MS. BELL: Do we have any other comments on

G ,I Section I before we return to our own section, Section II?

REPRESENTATIVE THOMPSON: By the way, didn't they

put that language back in on Paragraph I, Life, Liberty and
"
9 I property, on page l?

10

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MR. HILL: We're going to get to that in a second. You'll be receiving early next week or the middle of next week a printout, a new printout of what the changes have been since you received this one --the committee yesterday and your committee are making, so you'll be able to see what changes have been made. Then if you'll take a close look at that for purposes of our next meeting, that's when these issues will be resolved, and I imagine we'll have one or

18 two more meetings of the full committee in order to come up
'I
ji
1'1 i with a final version to present. I'm not sure, Albert, do

you think we'll meet again as a subcorrunittee from here on?

REPRESENTATIVE THOMPSON: Only if you feel like you ,)
need it after we have met here today.

'' ) ,
..

MR. HILL: I was thinking after the full committee

24 meets maybe we'd better proceed as a full committee.

REPRESENTATIVE THOMPSON: We have two meetings of

----_._-- -- - - -
the full committee, is that right? MS. BELL: November the 9th and

PAGE

35
I
I
I
I

,

MR. HILL: November the 9th and November the 29th.

I

'f

REPRESENTATIVE THOMPSON: That would give us time I

to schedule a meeting between November 9th and November 30th I

h or whenever that second meeting is, if we felt it was

I

i

I

, necessary, but I should think we would hang loose and only mee1

"

if necessary. I wouldn't want to meet just for the sake of i

Ii meeting.

I

I

)

MS. BELL: I suspect none of us would.

~1"

I ,-,

Shall we proceed then to Section II and see if the I

,~ ,I group, as it is constituted today, will approve what we did !

(r - '~)\ ~S\''Z1

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co"''''" 1-

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last time.

,,<_.::/ /

Paragraph I, as I recall there was no discussion

i5 ,~ about that, it was just the unanimous view at the previous ('1

1 <1' (";

meeting that it should be retained.

('I

2,

" -,
JI

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.,
REPRESENTATIVE CLARKE: "Public officers are the

r.,
i

trustees and servants of the people, and at all times,

10 amenable to them."

2C

REPRESENTATIVE THOMPSON: ,Betty, I think that

::>1 language has been in every Constitution we've ever had.

11

REPRESENTATIVE CLARKE: I'm just saying that it mean"

nothing at all.

I

SENATOR HOWARD: Would you like to put some enforce- I

'",1,.,.' ment language in there?
- - - . _.,.,-- ".,.- -~----------.

PAGE 36

MS. BELL: Do I hear a motion that we retain that?

;i

2 :: :!

MR. GUERRERO: I so move.

3

SENATOR HOWARD: Second, Madam Chairman.

"

MS. BELL: All those in favor, signify by raising

your right hand.

(,

(Votes were cast.)

MS. BELL: Opposed.

(No response.)

MS. BELL: The motion carries unanimously.

J(i

Shall we vote again?

~~
~ ~ ~: by saying aye.

All those in favor respond

(Ayes. )

MS. BELL: Opposed?

(No response.)

MS. BELL: The motion carries unanimously.

Paragraph II. The committee approved it as it is
'1
17 ~ shown on page 5 of the new document~

REPRESENTATIVE CLARKE: Do the people of the State i~ actually regulate the police? The people in the State don't

,".1 regulate the police.

REPRESENTATIVE THOMPSON: I don't think it means 1" police department as such, it means maintain good order and a

number of other things .

.'4

MS. BELL: \'lould it be better to say "police power "?

REPRESENTATIVE SAVAGE: They don't really regulate

PAGE 37

__ .... .. ----- .._------ - - - - - - - - - - -

---"l

I

the police powers if you ask in the interpretation that Betty

asked.
, .'

MS. BELL: No, but that was the point you were

4 making, wasn't it, that this is not referring really to the

~') police, it's referring to police power.

:, " :!

REPRESENTATIVE THOMPSON: I don't think it's

'I
I
'i referring to police, it's referring to police power -- I

v. believe it is.

C)

MS. NONIDEZ: We had gotten up the notion of ending

10 the sentence liThe people of this State have the inherent

right of regulating their internal government. 1l That's really

you're saying.

SENATOR HOWARD: I think so too.

14 >,..

REPRESENTATIVE CLARKE: That's'all you need.

1S ,~j

MS. NONIDEZ: That's the principal

>.
")
16 ~~'
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SENATOR HOWARD: There wouldn't be any case laws

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1; ~ predicated on that language that would get us in trouble?

JiS

REPRESENTATIVE CLARKE: That's just something to

!9 1 make the citizens feel good, that they do regulate something

20 when in fact they don't.

21

REPRESENTATIVE THOMPSON: The people do regulate

it, Betty. We went round and round on that at the last meetin,'

we had. The people regulate through their representative

government. REPRESENTATIVE CLARKE:

I
I
By virtue of _t_h_e__f_a_c_t__th__a_t .--Ji

IT-- ~- - - - - - - - - - - - - ---- -~ -- ---- --- - .---------

. --- ._- -------~-.---- _.- -_.--_. -- .----P--A.-G-E------3.8---1

i they have the right to go and vote and select someone?

I

-, ii
"- ,i

REPRESENTATIVE THOMPSON: They voted for you to come

.1 up here and speak for them, that's the only way the people

if can be represented in a government the size of this.

,

REPRESENTATIVE CLARKE: That's where their governing

6; authority stops once the send me seriously.

Ii,[

REPRESENTATIVE THOMPSON: Betty, you mean you don't

8 represent them once you get up here?

REPRESENTATIVE CLARKE: I sure do, but once I'm

'-i up here I'm on my own and they're not here to govern what I do

I I .... I'm not making an issue but --

v,-

.-1 ., "'
J

REPRESENTATIVE THOMPSON: They elected a bright,

,-
. ;~~.":':!f':!..~ ~1.J intelligent person whom they thought represented their . ."
+ ,. viewpoint or reflected it in some manner. I,,

,~

r.

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)

REPRESENTATIVE CLARKE: I want to make the motion

;:,
-)
;., .z..: that we stop with "internal government" and make it a period. Co,

It seems to me that may be all we need to have in t.his

" portion of the Constitution.

REPRESENTATIVE SAVAGE: I would be delighted to

vote for your motion.
,
"
REPRESENTATIVE CLARKE: The other part that has
1 ) been added "Government is instituted for the protection,

security, and benefit . ", I don't know if we need that, but

put a period and delete the "and the police thereof .... "

) .-
. J

I'll make that in the form of a motion, Madam Chairman, if

- -- ----- - -------------- --------PA--G--E-----3-9-----1
you'll entertain a motion.

REPRESENTATIVE SAVAGE: I will second it.

MS. BELL: It has been moved and seconded that we

'f delete the four words "and the police thereof", retaining

the first part of that sentence, and the second sentence.

REPRESENTATIVE SAVAGE: And then the second part

of it goes ahead and clarifies that, "Government is instituted

for the protection, security. " and people have the right

at all times to reform that and they have the inherent right

It) of regulating their protection and security. -,
MS. BELL: Is there further discussion of the

motion?

(No response.)

MS. BELL: If not, wetll call the question. All

'<":

T
j 5 ,0
"I.':
;.
1(, :~.

in favor, respond by saying aye. (Ayes. )

MS. BELL: Opposed?

18

(No response.)

1<) i

MS. BELL: The motion carries unanimously.

20

Paragraph III.

MR. GUERRERO: Did the other committee deal with

this at all?

.,

MR. HILL: Yes, the other committee has accepted

+ your recommendation and Section I, Paragraph I will say "Due

Process; Equal Prot__e__c__tion" and _the second sentence underlined J!

PACT<; 40

f'r--' --

---

.----.---------

'.-.-..- - - - .. - - - -. --_.~.

---.-~.--.-.------

----- . --------------

---...--- . ---.----'---- ._----._------+.-. -- -- .--------,

l': here, "No person shall be deprived of life, liberty, or

1

property without due process of law; nor be denied the
I" i
~ II equal protection of the laws; nor be denied the enjoyment
I' 'f of his or her civil rights (and they have used "the individual

~ instead of his or her) the individual's civil rights or be

6 discriminated against in the exercise thereof because of

7 race, sex, national origin, religion or ancestry."

MR. GUERRERO: I would move to strike Paragraph III

9 because we put that in in Paragraph II in terms of the

;0 function of government, protection, security and benefit and

11 0' so forth. So it seems like we don't need Paragraph III.

]"2 '.'

MS. BELL: You're moving to delete the whole

"':I. paragraph?

MR. GUERRERO: Yes.

~ 5 .';

REPRESENTATIVE THOMPSON: You know, we're going to

l'i

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have

to go through this again as

a

full

crnumittee,

and where

i 7 . the language is in conflict or where it duplicates itself

J.: we're going to have to resolve that and decide that section

we want to have it in. I almost would like to see it stay in

",,-,
~' 7 there and when we get together as a full group

because I

want to be sure this language gets in somewhere.

MR. GUERRERO: Okay, I'll withdraw the motion.

REPRESENTATIVE THOMPSON: Is that all right?

_'Of

MR. GUERRERO: Sure.

MR. HILL: It's already in Section I, Paragraph I.

._.- .----.---_.--- -- -- ----.--P-A--G-E---4-1----l

You mean the second sentence or the first sentence?

I

I
REPRESENTATIVE THOMPSON: What I'm saying is when i

' the full group gets together and we start relooating sections Il

and things, if there's any duplication of language we're

I

I
going to take it out at that time any way. I was thinking by I

leaving it in here, it would be an expression of this

I

i

Section II group that you want the language in there. It

:

I

would strengthen the placement of it. I admit it's dUPlicatioJ.
I
I
REPRESENTATIVE SAVAGE: Well now let me get

lU clarified on this. This "Protection to person and property
c; 7.
" is the paramount duty of government, and shall be impartial
...
~l
-, and complete." That's in the first section?

MR. HILL: No, no. The first sentence is not there.

!i
.,.
j'i there?

REPRESENTATIVE SAVAGE: Is that what you want in The second part the language is in there.

I"

!i

.,
In

there.

MR. HILL: The second sentence has the language

1 ,~

REPRESENTATIVE SAVAGE: What do you want to leave,

19 that first sentence?

20

REPRESENTA'fIVE THOMPSON: I was going to lea.ve i t al~

in there.

I

REPRESENTATIVE SAVAGE: If the second is in there,

I certainly see no reason to leave it and discuss it again

as to moving it from Section II to Section I, if it's already

in Section I.

j'

!

MR. HILL: It is.

PAGE 42

REPRESENTATIVE SAVAGE: All right, then the next
I
3 : question is important to me. Is this first sentence extremely

4 important to you?

5i

REPRESENTATIVE THOMPSON: No.

REPRESENTATIVE SAVAGE: Then Gene's motion is

certainly appropriate at this time. I mean there is no

,<

reason --

REPRESENTATIVE THOMPSON: I'll withdraw my

IC' objection to it, really I didn't object to it because I
-'
11 want the language in, it's just a technical matter.

} 2 .:>:
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SENATOR HOWARD: The first thought expressed in the first sentence of Paragraph III is expressed already, as

1";
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Gene said, in Paragraph II, and then of course the impartial and complete thing goes to the equal protection process.
REPRESENTATIVE SAVAGE: Well let's move about our business efficiently and move that that Paragraph III be

deleted.

MS. BELL: The entire paragraph?

REPRESENTATIVE SAVAGE: Yes ma'am.

MS. BELL: Is there a second?
")
SENATOR HOWARD: I'll second.

MS. BELL: Further discussion?

(No response.)

MS. BELL: All those in favor?

(Ayes. )

PAGE 43
-------,
i

MS. BELL: Opposed?

(No response.)

MS. BELL: The motion carries unanimously.

Paragraph IV. At the last meeting we recommended

I,

no changes.

SENATOR HOWARD: Should we renumber or do you want

K to do that later?

MS. BELL: Should we renumber these?

MR. HILL: We can do that. We will, the staff will

:i

renumber.

MR. GUERRERO: I move approval of that paragraph.

MS. BELL: Is there a second?

MR. GRIFFIN: I second.

MS. BELL: Discussion of the motion?

,(,

(No response.)

MS. BELL: All those in favor, aye.

(Ayes .1

,.,

I ~,

MS. BELL: Opposed.

(No response.)

MS. BELL: I didn't hear very many, but I didn't
,-,
hear any no's. The motion carries.

. _l

Paragraph V, as you can see at the last meeting it

was recommended that we delete all except the first clause,

"The civil authority shall be superior to the military."

~1r. Carlyle?

--------P-A--G-E----4.4-"--1
i

MR. CARLYLE: At the last meeting, I think I had
:i
" suggested that this could be done statutorily, and I still

"" think that's the case, but you may decide that a statutory
, guarantee isn't sufficient and maybe we should keep that as
Ii
I
!i a Constitutional guarantee.

REPRESENTATIVE CLARKE: vfuat does lithe civil
"
I' authority" mean?

9

MR. CARLYLE: I suppose that would be local governing

J'J
.
Ii Y. n 5),
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~

bodies .

REPJ.-,;ESENTATIVE SAVAGE: It's saying in effect -REPRESENTATIVE CLARKE: Superior to the military? REPRESENTATIVE SAVAGE: We're saying that the

14 ~ legislature of this state and any military that exists within

]) ~l Georgia, the military is subservient to the civil authority. ~'1 u: :'
16 ,: The same thing is true on the national level. The President,

Congress, etc., as Commander-in-Chief of the United States

13 Armed Forces, we're saying that same thing is true in

relationship to Georgia militia.

REPRESENTATIVE CLARKE: You don't mean that if

,'
LJ

something were to happen whereby we had to have military forces

come into the State of Georgia to protect the citizens of the

State of Georgia, that the legislative body -- it would be

~..j the Governor's Office --

REPRESENTATIVE SAVAGE: The National Guard is always

subservient and the police of this state subservient to the civil authority.

-

-

-

_

PAGE ._._-

-

-4

-5

-

-

-

,

are always

I
I

!
I

SENATOR HOWARD: The Governor can tell them what to

do, ,they can't tell the Governor what to do.

REPRESENTATIVE CLARKE: That's the question I was

about to ask.

SENATOR HOWARD: Yeah.

MR. GUERRERO: The last time I raised a question

about striking quartering the soldiers in the house and it

seems to me it is the kind of thing it's like treason, it
,l,,:~
! i . doesn't really have to be in there, but it seems to me like
..
it ought to be in there for all the same kind of historical

reasons and, you know, sort of fundamental right kind of

reasons that treason ought to be in there.

REPRESENTATIVE SAVAGE: That's the very reason I

1, would stop it after liThe civil authority shall be superior

to the military. II That's exactly what that implies, all those

other things are saying that in effect it can be handled by

1': statute very easily. If we don t t want to have an antiquated

document, we're trying to shorten something, this is

certainly an opportunity here to remove several paragraphs and

several words that will be among the few things that we

delete in our recommendation on this Constitution.

MR. HILL: But wait a second, isn't the case,

Representative Savage, that the General Assembly, if it decide4

n-

PAGE 46 ----, --- .--_.-- -- -'- -_ ..._---

.. --' --'

i!
II

pursuant to enactment of law, to modify this requirement,

2 ''!I then they would have the authority? By saying the civil
!:

3 authority is superior to the military, the General Assembly

.~ would still be able to, you know, through enactment of some

:. law, modify this protection. When you put it in the

6 Constitution, it's an absolute protection as against the

7 I General Assembly, as against the civil authorities, against

~ anybody.

REPRESENTATIVE SAVAGE: If the General Assembly is

];', going to handle that type of traditional historical issue

',')
7.
11 c .
.:-:
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that's exactly what they would write in a statute that they would put in there. They would write in a statute that no soldier can be -- in time of peace be quartered in your

}4 > house except by the consent of the owner Now that is

/
15 J another issue that has not been confronted in this state that

i(l g we know of in the last hundred years. I can I t think of any

Q
~

1:

"
<

case

where

the

National

Guard

of

Georgia

is

going

to

be

housed

18 in people's homes against their will. The people of this

19 state would not tolerate that for any extended period of time.

20 It's the kind of antiquated language that has no experience

21 to justify its continuation in the Constitution. Now if we

want to continue antiquated language, if we want to continue

this tradition just to be continuing them here, this is an

excellent place to do it.

REPRESENTATIVE CLARKE: Just reading the language you

PAGE 47-----l

can tell that it's back from like Scarlett O'Hara days.

I

REPRESENTATIVE SAVAGE: That's correct, Scarlett \

I,

O'Rara is correct.

I

...,

i
REPRESENTATIVE CLARKE: I saw that on TV, I don't

5 I know anything about it.

I
I,

(Laughter. )

MR. HENRY: I believe this is further guaranteed

by the federal Constitution also and I'm certain -- pretty

,] sure -- that this would be applied to the states through the

10 Fourteenth Amendment.

J 1 ." (> a.

REPRESENTATIVE SAVAGE: Absolutely. MR. HENRY: I don't think it has ever been applied

MS. BELL: Where is it in the federal Constitution?

MR. HENRY: Second or Third Amendment.

15 ~

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MS. BELL: Is it? REPRESENTATIVE CLARKE: Would you make a motion? REPRESENTATIVE SAVAGE: Madam Chairman, I move that

"1
1

'.'

Paragraph V remain as we have recommended in our last session,

in after lots of debate.

SENATOR HOWARD: I second it.

21

MS. BELL: Is there further discussion?

1,

(No response.)

MS. BELL: Under the motion we will retain the first

clause --

REPRESENTATIVE SAVAGE: First sentence.

p,'GE

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I

48

r I - - - ~ ~ - - - - - - - ~ - ~ - ~- - - - ~

i

MS. BELL:

II

- . . -------------.~

~-----l

With a period after "military".

i
I

ii,

2I

Are you ready for the question?

3

REPRESENTATIVE SAVAGE: Ready.

!I

I,I'

,

ii
,

ii '+

i'

MS. BELL: All in favor?

.'i

(Ayes. )

MS BELL: Opposed?

(Nay. )

MS. BELL: The ayes have it and the motion carries.

Mr. Hill, did the other subcommittee discuss any

of these things? Did they have comments to make on what we

had done?

MR. HILL: They did not go any further than their

section. There was about a three or four hour meeting as it

was with their section and by the time they were finished,

]) " they didn't really go on.
1.'1
c-','
16 I~l up at the full committee.
,:
!7 ~ this.

All of these matters will be brought They may have some thoughts on

]~

MS. BELL: Paragraph VI. At the last meeting we

!:

il

1
j

~)

recommended that that be moved to Article III.

,I'

..'0

MR. HILL: That's still a possibility. I wanted to

,') suggest that this provision, Paragraph VI, and also Paragraph

1 , VIII about what acts are void, I think both of these two

'3 sections may belong here in the Bill of Rights for the reason :.\ that they relate to a cross -- in other words, we've had , before here the separation of powers -- legislative, executive,!

PAGE 49

jUdiciary power shall remain separate and complete -- but

these two provisions, both Paragraph VI and Paragraph VIII

relate to an exception to that in some respects'."The power

of the courts to punish for contempt shall be limited

5 I by legislative acts." You know, the legislative branch being

given some authority over the courts to limit them. That's

the kind of institutional thing. Then down here, What acts

are void, "Legislative acts in violation of this Constitution,

are void, and the Judiciary shall so declare them." It's Fl kind of the courts control over the legislative branch.

II

It's kind of -- I see it as almost a balance between

VI and VIII and it does relate to the system as a whole. And

I have had a change of mind since that last meeting. I feel

that they are placed where they should be.

f_

<.\

, 5 J:: ->

REPRESENTATIVE SAVAGE: I wanted to raise this

'':'

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~)

1(;

roO'}
<-

question

on

Paragraph VIII.

"Legislative acts in violation

"-;

c.

~

] 7 '"'.0 of this Constitution, or the Constitution of the United

States, are void, and the Judiciary shall so declare them." 1') Isn't that so obvious that anybody could understand that at 20 i any time, if you have any legislative acts in violation of

the Constitution and they are carried to any court and they
)1
are in violation of that Constitution, the Judiciary is going

to declare them so. I mean that's just a judicial principle

that we're writing into the Constitution. I am absolutely

fascinated we want that language. ---'

PAGE 50

,

MS. BELL: I guess it wasn't really all that obvious

I

~!

2 -- what, 200 years ago?

:!

~I

'i

3 '!

REPRESENTATIVE THOMPSON: Marbury versus Madison?

.~ This right was established through a long series of Supreme

Court cases and it was a difficult thing to establish and it
;:
6 took some great Justices really to establish this. I think !!
'7 !;, it might be well to leave that language in there as a pure

~ expression of what we feel the courts have the power to do.

MR. CARLYLE: The Supreme Court still cites that as

10 a basis for its decisions.

o

7:

11

REPRESENTATIVE SAVAGE: The question I'm asking is,

:)

w"-

1"1
,~

.x:: U

is this issue being debated in any serious judicial circles,

,~ .

?
~ that that is not a basic and fundamental right?

v

14 >,..,.
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IS ~l
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17 ,t'

REPRESENTATIVE THOMPSON: If you leave that in there, it won't be debated as to whether it's a proper function of the court. I think that might be a good reason for leaving it in there, that would eliminate any possibility of debate

18 that the courts can declare acts of the legislature unconstitu1
I ,
]':! tional.

W

REPRESENTATIVE CLARKE: I can just see some members

21 of the House of Representatives saying, when someone tells

-" l
-

them that this is unconstitutional, oh, but don't worry about

23 that, the courts can't do a thing to us, we can pass anything

24 we want. I agree that it ought to stay in.

25

REPRESENTATIVE SAVAGE: The fascinating thing, what

- ------ - ------l PAGE 51 ----~--'i

they would be arguing from the well of the House is that

I

I
almost at times regardless of what you pass by statutes the I
I

:; ,I courts have the right to interpret that, and thatfs what they

4 don't like.

REPRESENTATIVE CLARKE: If we take this out, they

I may assume the courts have no right to interpret it.

REPRESENTATIVE SAVAGE: Thatfs what the legislators

would like.

Q

REPRESENTATIVE CLARKE: That I s why it ought to stay

Jj,

in.

'1.::'

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._-

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REPRESENTATIVE THOMPSON:

c_

,-l~J

~, Georgia would like that.

~

lim not sure the State of

,--

REPRESENTATIVE SAVAGE: The legislators would love

'~

the opportunity to pass statutes the courts could not
_.
interpret and then rule unconstitutional.
'~'1

1,)
-,

REPRESENTATIVE CLARKE: That's right. It would be

~ I '~ dangerous to take that out.

REPRESENTATIVE SAVAGE: Now on Paragraph VI, I

.1J" want some further clarification on that. "The power of the

20 I' Courts to punish for contempt shall be limited by legislative

acts." Does the court itself set up its own punishment for

contempt?

I
~'-j I think it is limited now, if lim not mistaken. MR. HENRY: I believe what happens is the court has

!'AGE 52 -----l
,
the power to determine what a contempt is, the legislature

"'
L

Ii

has the power to set up the punishment for that contempt, I

I,
3 !I

believe is how it has been interpreted.

i'

REPRESENTATIVE THOMPSON: I believe there are some

5 limitations on what the court can do, a certain number of days

h thatit can put a person in jail.

SENATOR HOWARD: It depends on whether it's civil

/'. contempt or criminal contempt, doesn't it? Aren I t there two

',.) classifications, civil and criminal?

.,.....'J
11 ~.
~:
o_ w
12 ~
'"

statute I

REPRESENTATIVE THOMPSON: Yeah and it's set up by believe. SENATOR HOWARD: Right. MR. HENRY: That's the extent of the legislative

power though.

REPRESENTATIVE SAVAGE: The question that I'm asking! I
1() I' is, does the court have an inherent right to set up the C L
"\ 7 ... punishment for contempt?

:r

REPRESENTATIVE THOMPSON: They have to have it.

MR. HENRY: The legislature sets "-

SENATOR HOWARD: We set up the punishment.

REPRESENTATIVE SAVAGE: If that is an inherent right

that the court does not have, I don't know why we deal with

it in the Constitution.

MR. GUERRERO: It's a separation question, it's

PAGE 53

n--"

. - - - - - ' f ~- --~-~---_._------ -_._-~---

~-----_. --_.---~------'

I' I

REPRESENTATIVE SAVAGE: Fascinatingly enough, I

I

\'1

I,

I,

, :, thought that's exactly what we said, that the legislative and

"

the executive and the judicial are separate and distinct

forever. Then you're corning in here saying they're going to
"
'\ i relate to each other in this way.

b ,i ,

MS. NONIDEZ: That's correct.

-;

SENATOR HOWARD:

I ,,

g doctrine comes in.

Except that the balance-of-powers

q il i

REPRESENTATIVE THOMPSON: Another thing --

iO

REPRESENTATIVE SAVAGE: That's exactly what I'm

'.:1 2
[) ~ saying comes in here, if the judiciary has no authority ,~,

inherently to punish, they can determine if it's contempt but

they can't set any punishment for contempt, that's all this

!;., says.
-:

MR. CARLYLE: But I think they do have inherent

1i\ o~ power but that acts as a limitation on that power.

REPRESENTATIVE SAVAGE: Do they have the inherent

right to determine the degree of any punishment?

MR. CARLYLE: The degree of punishment for contempt,
"'1)
which is a violation of the courts.

REPRESENTATIVE SAVAGE: What can they do if they

find contempt?

REPRESENTATIVE THOMPSON: Put you in jail.

MR. CARLYLE: Or fine you.
I'
REPRESENTATIVE SAVAGE: How is that controlled?

REPRESENTATIVE THOMPSON: By statute.

PACE 5.4----l

SENATOR HOWARD: By the legislature.

REPRESENTATIVE SAVAGE: Then the court itself can do

4 no punishing, except by legislative act, is that true?

5

SENATOR HOWARD: Within the limitations set on it

6 by the legislature. What if you said, well the judiciary

7 would have the inherent right to determine when a person was

~ in contempt of court and then set the punishment; they could

9 put a person in jail for a hundred years.

10

REPRESENTATIVE SAVAGE: That's correct.

SENATOR HOWARD: Well maybe that wouldn't be so
c.
]2 "... good, if you had some despotic judge here in Atlanta who was
,..
,'!!!.T!!.'.'~ ~ doing that, for example.

14

REPRESENTATIVE SAVAGE: I'm agreeing completely with

'<":
1:
15 ~ everything you're suggesting but I wanted to clarify that

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16 ~.;:. in my own mind
i.

17 ~"

REPRESENTATIVE THOMPSON: Let me say, about inherent

18 rights, most come from the British common law and most of us

19 are statute states or code states now and there is some

20 question as to whether the authority comes from common law or

21 statute. By putting it in here, it eliminates the question of 22 where inherent power comes from, and I think it's good for that

purpose of eliminating any question as to the basis of this
i.
24 particular power, because it says so in the Bill of Rights.

l~

~

I
REPRESENTATIVE SAVAGE: I appreciate that clarification.
--- ....

MR. GUERRERO: I move

and VIII.

SENATOR HOWARD: Second.

MS. BELL: Paragraphs VI and VIII. I'd like to ask,

~ do you think if we're going to retain both of these, on the

n basis of what Mr. Hill has said, should they perhaps be

7 consecutive paragraphs?

MR. HILL: They will be anyway, because this next

~ paragraph we're going to talk about has been moved to another

hi Article, so they will automatically fall together.

11 f

MR. HENRY: I'd like to point out one thing as a

point of information on Paragraph VIII, What acts void. This

concept has been incorporated in the Article III proposal,

not in these specific terms, but in the fact that the

.'; .:. General Assembly shall have the power to enact laws not
'J
J () z..',J inconsistent with this Constitution or the Constitution of the '~ -.
i 7 "x. United States, and it was felt that the power of the jUdiciary

to declare them so is not needed, that it was

i9

MR. HILL: No, we just decided we don't want

:?O I implication when it comes to this principle, we want it to be

;, , clear as a bell that the judiciary has the power to declare

"1-' i_ .'.

I
I' them void and that's what this

does

for

us.

1

1

'. )
~j

II
::

MR. HENRY: This is certainly a stronger statement

than the one in the Legislative Article. If you were wanting
[
to clear up things covered in other places, this could be _______ J

IT -------- ------------ ---- -

II
I,;

taken out, I think.

iI

iI

'i

REPRESENTATIVE CLARKE:

PAUi~ 56
If they decide on language

that says "not inconsistent" at the full committee meeting,

Madam Chairman, I will probably move that it say "shall have

the power to institute laws consistent with the Constitution".

6

MR. HENRY: This is the Article III committee.

7

REPRESENTATIVE CLARKE: Wouldn't we be able to

t make a recommendation? I'm just saying that for the benefit

of the language, "not inconsistent".

;(1

MR. HENRY: It appears to be a double negative.

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MS. BELL: We still have the problem though of who is going to decide whether they're consistent, unless you retain this language.

14 ,)-..

MR. HILL: Uh-huh.

V>
.. ;.:
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MS. BELL: Is there any further discussion on the

':"',

'"::J

16 !zwX.,l motion? It has moved and seconded that we retain Paragraphs

c~

Z

<t

11 ''"" VI and VIII.

18

(No response.)

1,)

MS. BELL: All those in favor, aye.

20

(Ayes. )

21

MS. BELL: Opposed.

2_

(No response.)

.1...-,

MS. BELL: The motion carries unanimously

."'"1i

Mr. Hill, you say that Paragraph VII has been

--;~ incorporated in

I I
-_.------~

PAGE 57

ry- - -~_.

l

MR. HILL: Article III under Enactment of Laws,

\

Powers of the General Assembly.

I

MR. HENRY: It's under Powers of the General Assembly,
!
the paragraph is entitled Limitation on those powers and the !,

,
:: limitation is that they cannot enact local laws.
'I
"
MS. NONIDEZ: Or general laws.

7

MR. HILL: In other words,it's exactly the same

language. The present provision in Article III, Section

q i whatever it is on Powers of the General Assembly, states that

Iii "Laws of a general nature shall have uniform operation

11

,.-
0:
o

throughout the State,

and no

special law shall be enacted in

, Cl) '"

~'~1

C' any case for which provision has been made by an existing

~))<~. ' general law." This second sentence of this paragraph has been I

I-t ,- changed to read "No special law relating to private persons

l' ~ shall be enacted.. "

SENATOR HOWARD: And population acts shall be void.

1,--;

<
~

REPRESENTATIVE THOMPSON: Where is that?

l_

ld

MR. HILL: We're working on population statutes,

we haven't resolved that yet.

20

REPRESENTATIVE CLARKE: The language is still a part

thereof that says "except with the free consent, in writing,

of all persons to be affected thereby"?

MR. HILL: No, this second sentence has been

removed completely. There has been no litigation on the

second sentence. All of the litigation has been on the first

'1
--I r'AGE 58
-~~n~e=ce~~d there has been no 1itig~t~~~ on thes:cond

sentence. The ability to contract is covered substantially I

I

in statute, you know, in terms of what your rights are and

!I

whatnot. And this sentence about no special law relating to

private persons shall be enacted is what this was attempting

to do, you know, as far as the other committee is concerned.

So is their proposed language over there, it will no longer be

in Article I, it will be a limitation on the powers of the

General Assembly in Article III. So unless you object to the

10 way they are going about working with this, that's not even a

:'

~.

11 ~ matter for your consideration any more.

e>

.>.

~

12 'v"

MS. BELL: I suppose we need a formal motion that we

"~..'!!'- :,.:u; delete i t from Article I.

14

SENATOR HOWARD:

So move, Madam Chairman.

1:: ',J
'"';;' 16 'z".
t... 7-
17 ,:::-: ,;

MR. GUERRERO: Second. MS. BELL: Discussion.
(No response.)

MS. BELL: All those in favor of the motion.

(Ayes. )

MS. BELL: Opposed?

:::J

(No response.)

',-'

MS. BELL: It carries unanimously.

Mr. Hill, do you have any record of where we

recommended -- what our question about placement was?

25

MR. HILL: I think that question about placement was

1

-

5 9__.- ., --.__._".,.- ----_._~.--_._-_._.

whether this provision should be earlier~ whether this state-

ment about federal immunities we agreed on this language

but whether this provision should be perhaps over in Section I,

Rights of Persons. I think it was just a question that this

may have a higher priority than it appears to have by

falling in Paragraph IX, but that question of placement again

is one that we have to deal with as a whole in the full

~ cOMuittee, so that's not an issue we have to address right now.

MS. BELL: All right, shall we --

,
I ' .~

MS. NONIDEZ: It's very similar though to the

provision you have in Paragraph III, which you earlier, I

believe, deleted. We're talking about the same issue that

currently I believe the other subcommittee is trying to

incorporate. Is that right, Mel?

MR. HILL: Paragraph III of Section I you mean?

MS. NONIDEZ: Protection of persons paramount duty

of government, protection of the citizens.

1.'\

MR. HILL: Right.

MS. NONIDEZ: That's the principle --

MS. BELL: Do we have a motion with respect to

Paragraph IX?

SENATOR HOWARD: I move that it be retained as

written, Madam Chairman.

REPRESENTATIVE THOMPSON: I second it.

MS. BELL: Discussion?

60

(No response.)

MS. BELL: All those in favor of the motion, say

aye.

(Ayes. )

MS. BELL: Opposed?

(No response.)

MS. BELL: The motion carries unanimously.

MR. HILL: In Paragraph X, this is what we agreed
-j
to last time, I just wanted you to look at it again and make

sure this is what you'd like to say in terms of this

1I
(-
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,
)

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provision. MS. BELL: We had quite a discussion about this
paragraph last time. SENATOR HOWARD: You think "denomination of

I:

,~
..

religionists" is the best way to put that?

Why wouldn't you

'.":

.-J say "religious denomination"? There's something about the <~
;
" word "religionist lt -- what is a religionist? Sounds like a

disease.
Jq I
MR. HII.L: Terminal piety.
--I
SENATOR HOWARD: I hope that's not a political
",
problem.

REPRESEN'rA'l'IVE CI,ARKE: What's the need for that?

I know it says separation of church and state -- I guess that's

the need for it, where by the state can't support the church.
,-
REPRESENTATIVE THOMPSON: It protects the church.

1)l"c~'rI", 61

REPRESENTATIVE CLARKE: As much as they beg the government for money, I doubt if they would feel protected if ; they were not able to get any.
REPRESENTATIVE THOMPSON: The reason I say it's to

protect the church is all the federal money coming down to the State of Georgia has a little tag line on it, as long as 7 they comply with the wishes of the federal government, and

the minute we start appropriating money for churches, we're

'.j also going to start putting limitations on what they can do

with that money, how they're going to spend it, who is going

1\ to be authorized to spend it, and I think it protects the

-'

.~'2)Y11.'1".

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church by us. having this language in there REPRESENTATIVE CLARKE: People who operate day care
centers are violating this particular portion of the

.1 J.
I:: , Constitution in this particular case then.

REPRESENTATIVE THOMPSON: You mean we in the General 1 I' .' Assembly are doing it because we have done some things I

disagree with, but this prohibition is here and it ought to be

'} here. Somebody ought to stop us in the General Assembly from

doing those things which are in violation of this.

," ,'

REPRESENTATIVE CLARKE: My question is, is it agains~

the law if children are in a day care center that happens to

,,
- ~.,

be housed in a church and they are i.ndigent children whose

day care monies are paid by the federal government?

REPRESENTATIVE THOMPSON: That's not religion.

PAGE 62
-1
REPRESENTATIVE CLARKE: I'm asking if that's a

, violation

REPRESENTATIVE SAVAGE: The money is going to those

individuals in the way of their paying rent in that building,

:, to that particular church or institution. If the state is

(, ' helping, your question is very valid.

MR. HENRY: I think the federal government has

'\ delineated what is an establishment and what is not an

establishment. I know with respect to schools and I imagine

with something like that they would classify that as an

1: indigent program rather than as pertaining to the church
.'.-~,
o itself, and by that classification, they are able to get
-I-
i..-. around that.

jJ

REPRESENTATIVE SAVAGE: Well it says very clearly

~.

1"

.'

,

~

l {' -.

"directly or indirectly". MR. HENRY: Are you talking about

federal

funds or

".

state funds? i --,

:'(:

"

1'.1

REPRESENTATIVE SAVAGE: I'm talking about -- since

we're dealing with the State Constitution, I'm specifically

i' talking about state funds that would go to a Baptist Church

here in Atlanta where a day care center of indigent children

was being housed in that facility for a very nominal rent or

a reasonable rent to pay for utilities, gas, etc., that religiops , 1 institution. That State money would be indirectly going to - .::., that religious institution, i t would be going to that specific

PAGE 63

Baptist Church here in Atlanta.

MS. BELL: Do you think that's really an aid, an

aid to the institution or an aid to the children?

m~PRESENTATIVE SAVAGE: That would be a good

judicial question.

"

MR. GUERRERO: It dpends on the particular --

REPRESENTATIVE SAVAGE: And I raise that issue in a

\ fascinating way and I wanted to share that with at least

Pierre and Betty since both of you are from DeKalb County. If i

we were ever challenged on the basis of all of the private

institutions such as the Methodist institution of Emory

. \ . !~(~'(_Si..f~.-[,~;j.\~;'}'k~'~"i":!O

_

University where the to students in those

$400 a year state institutions, and

grant it is

indirectly my opinion

goes that

\.>- ~ . ;

j .~ if that were challenged it would be in violation of this

Constitution and according to Article VIII over here, the

, Judiciary would have to declare that in violation of the

Constitution of Georgia.
i)
MS. BELL: Is that that $400 state grant you're

talking about?

REPRESENTATIVE SAVAGE: I think that would certainly

be in issue.

MS. BELL: That goes directly to the student.

REPRESENTATIVE SAVAGE: And then they turn around

and give that directly to the institution.

MS. BELL: Not necessarily. They use it for books

64 .1. ,.C\~,'J'1..~"'

or whatever they wish.
iI
REPRESENTATIVE SAVAGE:

In some ca.ses, I was under

the kind of impression that that money was even sent to the

institution. Is that not correct?

.'

MS. BELL: I don't know of that.

REPRESENTATIVE SAVAGE: You think it is always a

check to the student?

MS. BELL: For example, a't Mercer -the students

apply for it.

REPRESENTATIVE SAVAGE: And then how do they obtain

II > the money?
'-
I, "'
MR. GRIFFIN:

It's an entitlement to an individual,

.. ~T!~I!~ ~
n not an institution at all, as I understand it.

J1.'.-1t

REPRESENTATIVE SAVAGE: How does the mDney actually

transfer?

MS. BELL: I think maybe they send it to -- Itm not

sure, I think they send i.t to the institution earmarked for
.',
the student, don't they?

MR. HENRY: When I went to Emory they sent me the

tuition subsidy, directly to me.

REPRESENTATIVE SAVAGE: The $400?

MR. HENRY: I turned around and gave it to the

school, but it came to me in my father's name.

REPRESENTATIVE SAVAGE: Could you have taken that

and gone out and paid it as a downpayment on a car?

PAGE 65

------ -----------l

r[ -

MR. HENRY: I never questioned it, I always --

I

you know, I didn't --

I

REPRESENTATIVE SAVAGE: What was on the check?

,~

MR. HENRY: I just gave it to the school. It came

to my father, I'm sorry I don't know more about it.

t.

REPRESENTATIVE SAVAGE: Did you ever see the check?

MR. HENRY: No, I didn't.

SENATOR HOWARD: Wouldn't it be that you could spend I

9 it any way you wanted to, but if they found out you were doing

(" that, they would probably cut you off?

MS. BELL: I don't think so, Pierre, because I 1 -; ) checked the statute

REPRESENTATIVE SAVAGE: Now if that's the case, I

absolutely know some student that would spend it as a down-

:,', payment on a car.

MS. BELL: I checked the statute at one point in

;"; time and it is not phrased in the statute in terms of a

tuition grant, it is a grant to the student.

Jl)

REPRESENTATIVE THOMPSON: If they don't pay their

fees from this source or some other source they'll put them 21 out of school.
-, "
REPRESENTATIVE SAVAGE: Oh, I concur with that, but

the interesting thing, if they get that $400 check and take it

directly to Emory, which is the case that we've had some

testimony -- in every case at Emory -- I don't believe we're

PAl~E 66

---------------------------------------\

going to be able to find a case where they have taken that

I'

money and bought clothes or cars or booze with it.

MS. BELL: John, I can tell you that it is not

4 earmarked for tuition. As a matter of fact, I had a child

who went to Mercer and as a Mercer faculty member my children
I
I I
get tuition waivers if they go to Mercer, but my children still

7 are entitled to the grant if they go to Mercer.

REPRESENTATIVE SAVAGE: Itts interesti.ng in debating

9 I this in the legislature, we talk about the great service that

10 these institutions do for the State of Georgia by preventing

]1 - us from having to have an additional capacity of state

institutions to take care of these Georgia residents, and that s

the reason we're granting these institutions vis~a-vis the

$400 apiece for each student that goes there. It's far easier

l~ -~ to grant that $400 a student than it is to increase the

lr, capacity of the University of Georgia a-t maybe some $5000

17 1 per student peryear. Fascinatingly enough, the dental school
i
at the University of Georgia, I know from last week, is costin~

1'1 I us $23,000 per student a year; Emory University costs $9,000

I
I

per student per year. The total cost of educating a student

at Emory University Dental School is $9,000 per year but at

the University of Georgia itts $23,000. Now thatts part of the

logic that the state comes up with for these grants. Then I

also know that these state ins-titutions invite all the members

of the legislature to dinner to encourage them to continue to

I i vote for those $400.

----P-A-G--E--6-7---1

MR. GUERRERO: The point is well taken in that the

court might take a serious look at that.

REPRESENTATIVE SAVAGE: I'm just suggesting that the

court is going to take a serious, serious look at that

particular function if that's ever raised by any person in the

, courts of this State.

REPRESENTATIVE THOMPSON: Can I say this? If

either one of these things falls, I would rather this to

i\' remain in the Bill of Rights and the grant to fall. I really

11 feel that pretty strongly, because I just think there ought

to be a strong separation of church and state, and if that's

the way we have to enforce it, then that's the way it ought

to be enforced, but this ought to be --

15

REPRESENTATIVE SAVAGE: I don't disagree with you,

;~; -, but I'm just pointing out to the gentleman and lady from

17 DeKalb County

SENATOR HOWARD: We just might put in there "except

1<-' for Emory University" --

REPRESENTATIVE SAVAGE: We've got to have Mercer.

REPRESENTATIVE CLARKE: I think that's what we'll do.

MS. BELL: Doug?

MR. CARLYLE: As I discussed the last time, there

may just be a conflict, but there is in Article X authority fori
I
!
the General Assembly to provide __f_~~_gr_,,=-nts _~= scholarship-~ran.:f

fr-----

PAGE 68

for educational purposes, so that might be used to sustain

:. these grants, although that --

3

SENATOR HOWARD: Where is that, Doug?

4

MR. CARLYLE: In Article X.

MR. HENRY: Section II, Paragraph I, page 86 of

!) this book (indicating).

REPRESENTATIVE THOMPSON: Madam Chairman, I move

that that provision be retained.

SENATOR HOWARD: Could I amend his motion, Madam

10 Chairman, I would like to move that the words on line 3,

page 7 "of religionists" be struck and that the word

"religious" be added in front of the word on line 3, page 7,

"denomination", so that it would read "sect, or religious
,
, ;;~ denomination, or of any sectarian institution."
...;,(
REPRESENTATIVE THOMPSON: I agree to that.

"L ,~

MS. BELL: Would you consider changing your

:)

<

...::,
'L)

amendment?

Why can't we delete -- since we say directly or

indirectly in aid of any church, why can't we say in aid

of any church or sect and delete the rest of line 3 through

institution on line 4? Do they really add anything?

REPRESENTATIVE THOMPSON: Has that language been

interpreted in case law, does it have any meaning?

SENATOR HOWARD: Someone might say well some church

related function is not a church and therefore it is not

covered. I think you need probably to leave sectarian

PAGE 69
~---~------------l
institution as opposed to non-sectarian in there because of \

all the related things churches get into.

I

I

MS. BELL: Except that doesn't "directly or

I

indirectly" take care of that?

SENATOR HOWARD: Probably, but maybe not, I don't

h know. I see your point, but it's just not that clear to me.

MS. BELL: So you accepted his motion?

REPRESENTATIVE THOMPSON: I accepted his amendment.

MS. BELL: And the motion now --

jJ

SENATOR HOWARD: I'm not debating the fact that we

"<:: . - ;_: probably could delete the word "sect, or denomination II and
u

just say lIin aid of any church or of any sectarian institution

That might do it without these other words, "sect and

~ religious denomination".

1 ')

REPRESENTATIVE THOMPSON: The only thing that I

was saying was if this language has specific meaning by

i i interpretation in case law, then I would not want to disturb

it because of the past specific interpretation. Removing it 19 or adding it doesn't really make that much difference. Wetre I, just talking about two or three words.

SENATOR HOWARD: As has been pointed out, for

example, the Jewish people don't refer to their synagogue as

a church. You have all sorts of
MR. CARLYLE: There is an annotation on that indicati~g
,
Salvation Army as a sectarian i~~~~:~~~_~~~~~hin--=-~: mea~in~

....-.~ _. _. -_._-.P_A.-.GE--..-7-0-----l
of this provision. I don't know if they dealt with whether i
!
it was a religion or sect or not, but there may be.
!!
SENATOR HOWARD: So there is case law based on that.:
I
REPRESENTATIVE SAVAGE: So actually we would be

~ prevented from ever giving anything directly or indirectly to

6 the Salvation Army.

SENATOR HOWARD: Yeah.
I
MS. BELL: Will one of you state the motion as it is

now?

SENATOR HOWARD: I'll restate it, Madam Chairman.
z
. 1J ~ I'll restate my amendment-- my amendment is to add the word o "" ~ ., "religious" before the word "denomination" on line 3, page 7.

REPRESENTATIVE THOMPSON: And to take out "of

religionists".

v,

c,
15 ',-~.,
.,

SENATOR HOWARD: "of religionists".

} Ij

~

REPRESENTATIVE THOMPSON: My motion was to accept

'c".

i.



I')

n:' ':1

that

with

his

amendment

--

to

accept

that

provision.

Iii

REPRESENTATIVE CLARKE: I second the motion.

19

MS. BELL: Is there further discussion?

(No response.)

,.
L'

MS. BELL: All those in favor of the motion, respond

, . by saying aye.

(Ayes. )

MS. BELL: Opposed?

(No response.)

PAGE 71 MS. BELL: The motion carries unanimously. Well that completes our work on Section II. On Section III, I believe we were going to have some input from the staff on that. MR. HILL: Michael Henry prepared a memo in your packet on the issues involved here in Paragraphs I and II. MR. HENRY: I'll just briefly state what's in here. Article I, Section III, Paragraph I and I called it subparagraph (l),deals with private ways being granted in I,} case of necessity and private property being taken or damaged i: for public purposes and provides that both shall not be u taken until just and adequate compensation shall first be paid -- I'm sorry, this was the 1877 constitutional version and this was the present version up until 1960. In 1960 1'; there was a constitutional amendment proposed and ratified L" " which provided an exception to the requirement for just and
c
adequate compensation be first paid and this provided that when private property is taken or damaged for public road or street purposes that just and adequate compensation need not be paid until the same has finally been fixed and determined as provided by law.
This language gave rise to the declaration of taking 23 method of condemnation proceedings whereby the state or the
Department of Transportation or a state entity who had been delegated that power could come into the court and declare _-_-__J

PAGE 72
.- --- ---------- --- - -.- - -_.- ----I

file a declaration of taking and simultaneously deposit

\

i
estimated just and adequate compensation into the registry of i

the court.

4

In 1978 there was a further amendment on this to

provide that this method or at least the requirement of just

and adequate compensation be first paid, another exception to

this requirement and that was any public transportation

purposes, so that it now reads, after the 1978 amend..TTIent, it

now reads the exception reads "for public road and street

11 ,: purposes or for any public transportation purposes." These

'"

I

~ are the exceptions where just and adequate compensation doesntJ

o

0..

((~bJ);'J1 .~9Y1f~

~ have to be first paid for the condemnor to make use of the

0 f.'cc'!.."- dondemned land.

'~/

i
I ~~ >.
"

The prohibition against taking private property for

~, ;~ public purposes without just and adequate compensation being
.:Y,
'D
n" paid is in the federal Constitution in A.rticle V -- Amendment

V I believe and it is extended to state action through the

Fourteenth Amendment. The language in the Georgia ConstitutiD~

is more restrictive than that in that it provides that just

and adequate compensation be first paid; therefore, you have

a bigger hurdle in Georgia than you would under the federal
,"
Constitution for taking that property.

The staff looked over this and we proposed some

language here which would take away the necessity of having

to amend the Constitution whenever a purpose arose for which

PAGE 73
~ ~---~------------~-l
the general public felt that just and adequate compensation I

be not first paid. This is the language on page 2, and

\

I

I'll just read it:

I

"In case of necessity, private ways may

be granted upon just and adequate compensation

() I'

being paid first by the applicant. Private

property shall not be taken, or damaged, for

public purposes, without just and adequate

compensation being paid as provided by law."

!U

So that there is still the prohibition against the

':J 'l:
1] "0 taking of private ways without first paid just and adequate

, .,
1 L.

-.'
"-
v-.-

compensation;

however,

with respect

to private property taken

for public purposes, we would allow the General Assembly to

,~ provide by law the procedure by which that property was paid
<:
for. I would like to caution this subcommittee in making that

"'., policy decision by the fact that if this is done, you are -:>, giving the General Assembly the power to, in effect, provide

that all private property taken for public purposes could be

taken by the declaration of taking method. On the other

2:) I hand, you're taking away the language, the inherent defect in

there which makes a constitutional amendment necessary to
1)
provide for the quick taking of property when you have I

believe the '78 Amendment was probably put in there to help

the MARTA work, the 1960 Amendment with respect to public

---------. ---------.-. -'74--I interstate highway system in compliance with the federal

system, in order to get matching funds. So it's a policy

decision and I think the implications need to be discussed.

It was in the 1877 Constitution with no exceptions, that it
had to be first paid, before the condemnor could make use of I

" it. You know, there's two sides of the question; you're eithet

granting the General Assembly that power or you're restricting

that power in the Constitution. We felt that in the cases

where necessity was the reason used for taking private

jJ
-
'-
".,
".-.
'"

ways, paid.

that it should remain that the compensation be first That's another policy decision you'll have to make. I'll go ahead and go through this entire -- no?

MR. HILL: Let them talk about that.

REPRESENTATIVE SAVAGE: Now is this your recommended

language on page 2?

MR. HILL: Well I had recommended those two

sentences be reversed. The second sentence talks about

private property being taken for public purposes, may not be

done unless just and adequate compensation is paid, and then

theprivate ways in the second sentence. This is the

recommendation to you, how you want to go with it.

REPRESENTATIVE THOMPSON: May I ask this? That

language is going to completely substitute for the language

we have in Section III?

MR. HILL: Subparagraph 1.

REPRESENTATIVE THOMPSON:

PACE 75 ----- -------1

Subparagraph 1. Well,

Ii

I

, let me ask you this also, do you feel that the expression of

the General Assembly in passing of the Constitutional

provisions that we have now, that we ought to simultaneously prepare statutes or legislation which would make that statutor~
I
law?

MR. HENRY: I believe that what has happened is

that under this provision you've got the statutory law with

respect to the first payment before the condemnor can take the I
I
land. There is legislation that has been enacted pursuant to I
i
the exceptions which declared for -- I know at least one metho4

" id the declaration of taking method, there could be more, I'm

not certain, but that is the method where you just take the

land -- it's been enacted pursuant to both --

!'

REPRESENTATIVE THOMPSON: What I'm asking is, if

~( we delete that language from the Bill of Rights and adopt

this language, does that leave a vacuum? Does it leave an

area where the people have spoken by way of Constitutional

amendment which is not even covered by statute?

MR. HENRY: I believe it is covered.

,1

MR. HILL: There is no vacuum.

MR. HENRY: I think it's covered.

MR. HILL: There has been a statute enacted covering

this situation for the exceptions. REPRESENTATIVE THOMPSON:

Was there a statute enactedli --~

76 f ' " .~.~\.)"L6'

or was it put into the Bill of Rights? Because this language

in here is very explicit, it goes into quite a bit of detail.

MR. HENRY: The 1877 Constitution and the 1945

1 Constitution had "In case of necessity, private ways may be

granted upon just compensation being first paid by the

applicant. Private property shall not be taken or damaged

for public purposes without just and adequate compensation

~ being first paid." That would be the first three lines.

In 1960, you had an amendment which added the

J(1 rest of that paragraph in order to allow the General Assembly ,

to enact legislation which allowed the condemnor not to first

pay just and adequate compensation, but that -- to make a

prepayment into the court.

t~

So legislation has been enacted with respect to

IS both of these provisions, both the initial limitations and

. r, the exc,eptions.

I, "'

REPRESENTATIVE SAVAGE: I do agree with the

suggestion of Mel that those sentences ought to be reversed

and we certainly ought to have "Private property shall not be

taken. " in the first part. MR. HILL: Do you have my memo?

,
I have it as another'

way I proposed it.

).

REPRESENTATIVE SAVAGE: Now the applicant question,

is the applicant always the State or city?

MR. HENRY: No, it could be a private property owner ,

PAGE 77
l

who is landlocked.

\
I

-)

i

REPRESENTATIVE SAVAGE: Wait a minute -- I'm

I

I

talking about the second sentence the way you have written

! this, Mel, please.

MR. HILL: uln case of necessity, private ways may

'I be granted upon just compensation being first paid by the

applicant." That would refer to the private owner.

REPRESENTATIVE SAVAGE: I just simply don't like

the construction of that sentence. If you read it, putting iU the emphasis on being paid first by the applicant, some 1 ;, ~ people could say I'm the applicant and I've got to pay first.

(\'':,\~f-O~S=-V=-;~< ...:j../'d/\,/I!I!,.~ .",

u

.,
P,

If you're going to leave that there, I would say "In case public necessity, private ways may be granted upon just

of

;1

- compensation first being paid to . " and then however you

- want to describe it.

-,
\ f) i~
u,: CI

MR. HENRY: Would you read that again?

.~

MR. HILL: Wait, wait -- understand how this works

now. The applicant is the person who is landlocked. He is
I.:
trying to get through somebody else's property to get to a

\' road. Okay? The applicant has to pay the person whose land

he's going through before he's going to have the access that

he wants. And I think that's how it's stated and I think

that's what we want to say. If I am landlocked --

REPRESENTATIVE SAVAGE: In other words, you're not

talking about in that sentence, public necessity.

,l'
MR. HILL: No, no, no. They are two separate concepts. Maybe it wouldn't be a bad idea to have them as two separate paragraphs in Section III, just to clarify it. i It's two totally different situations r one is the general eminent domain power of the state
REPRESENTATIVE SAVAGE: We ought to say that. MR. HILL: -- the second one is a particular situation. REPRESENTATIVE SAVAGE: Let me clarify this, y'all have probably done this and I was confusing that with the private; "Private property shall not be taken or damaged for pUblic purposes, without just and adequate compensation being paid in the manner provided by law." And we're going to provide by law that that be paid first before property is 1'1 taken, or we can provide that. MR. HILL: You can provide it be paid first, or L you can provide, as we have in the case of a prepayment -MS. NONIDEZ: The mechanism though is in place. REPRESENTATIVE SAVAGE: That's good, all right, then if that's the case we ought to put this i.n a little sUbparagraph, etc. and deal with it separately. It would be much clearer. MR. HENRY: Deal with the two concepts in two separate paragraphs? REPRESENTATIVE SAVAGE: Certainly. MR. HENRY: I agree. It's two totally different

things.

PAGE 79

REPRESENTATIVE SAVAGE: It's confusing.

MR. HILL: It is confusing and the way this is

phrased, it puts the less important one first -- not as I

proposed it, but in the present Constitution, the private

, ways is mentioned first and then you have the pUblic, the

eminent domain provision that is so important, and it's kind

" of hidden. So I think that would be a good suggestion, make (, them separate paragraphs of Section III, or -- we'll have to

ll, talk about this in the full committee, but I would almost think I
! that this could be incorporated as a paragraph under Section

II, Origin and Structure of Government. It certainly relates

to one of the, you know, central governmental powers.

MS. NONIDEZ: Duty of government.

REPRESENTATIVE SAVAGE: It would even be better to

" separate those and not -- that is going to confuse many

people who read it.

MR. HILL: Okay, in terms of the paragraphs?

,; ~

REPRESENTATIVE SAVAGE: Yes.

MR. HILL: Separate paragraphs for these two.

REPRESENTATIVE SAVAGE: Yes.

MR. HENRY: I think that's a good idea, but the

history of it is that that's a provision that has been in there

since 1877.

REPRESENTATIVE SAVAGE; We're going to keep that

provision and clarify it.

PACE 80

MS. BELL: Clarify it in what way, John, just

by separating it?

REPRESENTATIVE SAVAGE: Separating it will do it,

and we might even -- if you make a new separation there, it

would come under some heading, some clarification that would

be a little clearer than just adding some sentence, "In case

of necessity, private ways may be granted upon just

compensation being first paid by the applicant."

MR. HILL: They should be in separate --

MS. BELL: If we're going to separate, don't we

need to come up with suggested titles for the paragraphs?

MS. NONIDEZ: Yes. Whaot would you suggest for

that latter one.

MS. BELL: For the second one?

MS. NONIDEZ: Dh-huh.

MR. HILL: Private ways.

i<

REPRESENTATIVE SAVAGE: That'd be fine.

MR. HILL: The first one should be eminent domain.

REPRESENTATIVE SAVAGE: Certainly, and then that

clarifies what we're talking about. I don't see how anyone

could read this Constitution and understand it if we just

come up ''lith that sentence, "In case of necessity .... " and

'i include it under eminent domain.

REPRESENTATIVE CLARKE: Eminent domain prevails over

PAGE 81 -1
,i
the second part relative to "private property shall not be

taken" .

MR. GRIFFIN: It would be in a separate section.

REPRESENTATIVE SAVAGE: But you could still take

private property for public purposes, you're correct.

(,

REPRESENTATIVE CLARKE: Through the process of

/ eminent domain?

REPRESENTATIVE SAVAGE: Yes.

REPRESENTATIVE THOMPSON: Can I ask this? I don't

I:. know if we're going to be able to resolve it, but we've got the

!

,1 II

book on eminent domain and it's got a lot of stuff in it.

I'm sure that we wouldn't be able to quickly read it to the

extent that we're quite sure what we're doing. I'm afraid

that if we take this language out and put that better language

<

e' in

because I agree that it is better and that's what ought

1(, to be in the bylaws -- but if we don't have adequate statutory

. 7 backup, you'll be leaving a vacuum in there which would be

pretty bad. I don't even know if we could get it passed that

way.

REPRESENTATIVE SAVAGE: The real question is whether

there is adequate statute law on the books to cover this.

MR. HILL: And I'm pretty sure there is.

REPRESENTATIVE SAVAGE: We just need to know an

answer to that.

REPRESENTATIVE THOMPSON: No disrespect, but I don't I

82 want "pretty sure". I want to know verse and chapter and

say this is it and this replaces this particular thing. If

:; we destroy this balance '>Ie have, we f 11 be doing the State a

tremendous disservice. We could correct it by adopting this

) language for the bylaws, but simultaneously prepare statutory

i) law which would cover any gap.

REPRESENTATIVE SAVAGE: First we will want to do

research to make sure there's not a gap in statutory law .

.) Madam Chairman, who is going to be responsible for that?

MR. HILL: The staff will check that.

~.;

1'

MR. HENRY: Can I just say one thing? It's my

y

L' '"" understanding right now that there are in effect two ways to

take property; this is not withstanding the in case of

necessity, I'm talking about the ability of the State to take
<'
r
l .~j private property for public purposes. Prior to 1960, there was
".
I {~ .a an absolute prohibition against not paying first just and

] i .~ adequate compensction. Statutes were enacted which set up the

lK procedure by which you went into court or you met with the

owner of the property and worked out what that compensation

?,j would be. So you have a body of statutory law setting up

'i that procedure.

In 1960, this amendment came in that said you can

make prepayment against adequate compensation and take property

~l._1 for public roads and street purposes. 'rhe General Assembly

enacted legislation pursuant to that, so as to provide for the

PACE 83
building of highways; that's on the books. In 1978, you had the purposes for which exceptions
could be made extended to public transportation. You had the General Assembly enact legislation pursuant to that also. It's my understanding -- of course if you don't feel " comfortable with this, I'll do more research on it.
MR. HILL: We'll double check it. MR. HENRY: The legislation is on the books. MR. HILL: We'll be absolutely certain next time l. \.J what the status of the legislation is about this. MS. BELL: It seems to me the real question we have
,"y
-' to face though is do we consider that this is adequate
r-
constitutional protection. Personally I think it is always risky to rely on the fact that we have legislation that does what we want to do because what the General Assembly giveth it can take away. I think the real question is, do we think this is adequate constitutional protection.
REPRESENTATIVE THOMPSON: In other words, should all of this language be retained in the Bill of Rights, is that what you're saying?
MS. BELL: Do we think the one that is being proposed as Paragraphs I and II -- personally I thin~ it's all we need, I think the legislation should handle this, but how does the committee feel about it? That's our real question.
MR. HENRY: It would be a major policy change to do

that.

84
-1

REPRESENTATIVE SAVAGE: I think we're on firm grounds

3 if we answer the question that has been raised by our

Chairman here, and I think that question needs to be answered

) thoroughly and I also suggest, Madam Chairman that either

(\ yourself or Senator Howard be asked to agree in the opinion

that is being suggested by the staff, that we have -- and

perhaps that we get Frank Edwards to give us an opinion on

that language.

MS. BELL: Would you state that~ain?

I]

REPRESENTATIVE SAVAGE: I think all of us would vote

_. ~

.":/,~,SV~d\.

\\",'- r'---' II,I\ttCI"i(~E.--:'~"->. /\ /\\

...

~~

.. _

;

/

/

' /

Cflt-TlJltO

_!

'---'-

.l .__
u,

for that language if the reservations that have been,raised by Albert are answered. Let's answer those in a very definitive way by getting an answer from Frank Edwards' office f

J,5 Legislative Counsel, or either the Attorne~{ Gene:t:'al. Let's

;r. get that type of input.

REPRESENTATIVE THOMPSON: The specific think we're

asking is if we adopt this language as proposed by staff,

Jq whether or not the methods of condemnation that have been

amended into the Bill of Rights in the last ten or fifteen

years would still be retained and protected.

MR. HILL: And a.ssuming that we have the exact same

statutory protections that are here now, then you're not going

to have any problems with this?

REPRESENTATIVE THOMPSON: We wouldn't have any

PACE 85
----, - - - - - " - - - " " - - - - - - - - -
I problems with it if we had the statutory backup that would
I
be required. You see, I would be afraid of reducing the language to this and then after we have adopted it, we find out we don't have adequate methods of condemning property and doing the type thing that the General Assembly -- if it's in the Bill of Rights, then that means that it passed in a general election by a vote of the people. And to remove that without proper safeguards ~w it's a relatively current expression, it's not something that was passed a hundred years ago, what you're talking about was passed, didn't you say 1960?
MR. HENRY: The basic prohibition is a hundred
!:
years old, the exceptions have been passed for two purposes; in 1960 and for one other purpose in 1978. The people have spoke that they want these exceptions to that basic limitation ~ that they place on the power.
REPRESENTATIVE THOMPSON: You see, those are current expressions.
MR. HENRY: The exceptions. REPRESENTATIVE THOMPSON: And I think our current exceptions, our current additions to the Bill of Rights would have to be given more strength than stuff that was done a hundred years ago. MS. BELL: But weren't those current exceptions necessitated by the way it's phrased in Section III. Now you

86 don't need the exceptions.
REPRESENTATIVE SAVAGE: That's correct. I like the \ new language, Madam Chairman. I just want to get all
assurances that that's appropriate and proper. MR. HILL: The federal Constitution doesn't say
anything about being first paid, it says paid just and adequate compensation. That is a mandate on the government. They must do that, but by saying first paid, it has really put a road block up for a number of purposes that we have tried to deal with that necessitated all the exceptions. So I think the basic protection will be ther~ by taking out first paid it \., just means it gives the General Assembly more flexibility in the way it's going to do this.
MS. BELL: That's what this constitutional provision
"~
<;.
r-
is all about, isn't it? REPRESENTATIVE SAVAGE: That's true. MR. HENRY: Before I leave this subject, I just
i >( want to say I can't stress enough the impact of this policy change, and I think it should be discussed more at length as to the implications. SENATOR HOWARD: Are we going to get into that on the 9th? MS. BELL: On the 9th? That would be the general meeting. MR. HILL: Yes.

!'AGE 87

MR. HENRY: I'm sure it'll be brought up.

SENATOR HOWARD: Madam Chairman, could I ask a

question?

MS. BELL: Unless we have another meeting we won't

have a recommendation to make on this.

SENATOR HOWARD: I'm about to leave, which is

something I regret, I've got to make a speech at 12:30. Are

you going to run this meeting this afternoon or what is the

situation? How much further have we got to go?

, -( J

REPRESENTATIVE SAVAGE: I am ready to vote on

accepting that language with the research being done and the

" recommendations in the general committee meeting. I think

to continue to debate the type of issues that we've been

debating over the last ten minutes is good if we want to 1. debate it, but I don't think it's going to add any additional

light on what my understanding of the issue is at the

present time. I want our Chairman to have the assurance he

wants and I don't think we're going to get that assurance by

debating that issue any further.

REPRESENTATIVE THOMPSON: Mike, let me ask you this,

does this document cover what you are saying?

MR. HENRY: Yes. It's a very brief

REPRESENTATIVE THOMPSON: It's three or four pages

long. I tell you what I'd like, I'd live the opportunity to

read this for a few minutes and maybe we could recess for ten

minutes and peruse this. Nouldn't you like to read the

document and see what's in it?

MR. HENRY: Why don't you allow me to go to the

library, not today, but for the next meeting, go to the library

and pull the statutes and Xerox them and attach them to a memo

for the next meeting so you will have the assurance that what

is being done is not going to change dramatically the

legislation that has been enacted.

REPRESENTATIVE THOMPSON: That'll be fine with me.

;",

MR. HILL: It depends on how much statutory material

there is. If there's 25 or 30 pages it's foolish for us to

try to --
REPRESENTATIVE THOMPSON: I don't think it's 25 or 30

pages, just two or three short paragraphs.

MS. NONIDEZ: Give you some citations at any rate
1"':',
I" :c to answer your question, which is a very, very valid question.

MR. HILL: We can just put -- what we can do is we

can put the language, if you agree to it, in the proposal with

a (For Further StUdy) so everybody knows we haven't made a

final decision on it, and get this research done in time for

the next meeting.

REPRESENTATIVE SAVAGE: That would be appropriate,

Madam Chairman.

MS. BELL: For the general meeting?

REPRESENTATIVE THOMPSON: Could you see that both

PAGE 89 sections receive the same material, not just this particular

section, because we'll all have the same advantage then.

SENATOR HmvARD: If we felt the need of it, we could

even meet a little earlier on the 9th, our subcommittee, and

talk about this issue.

MR. HILL: Others have done that. Would you like
to do that, we have a meeting scheduled for ten o'clock on tha~

day. If you'd like to meet at nine, that would give us an

hour just to talk about this plus Michael never even went

into number two and the Tidewater Titles thing. There are

two other issues. Maybe we would want to meet at nine. Is

that satisfactory?

REPRESENTATIVE SAVAGE: It's satisfactory with me.

MS. BELL: It's all right with me.

MR. HILL: We'll get another room for that meeting

so we're not in the room when everybody starts coming in and

we'll have a full hour to work.

MS. BELL: Well did I understand you to say what is

now Paragraph II is going to be put somewhere else?

MR. HENRY: Yeah, about the relocation assistance,

yes, ma'am.

, , next.

MR. HILL: That's what he was going to talk about

REPRESENTATIVE THOMPSON: Where is it going to be

put?

MR. HENRY: Can I go into this? Is that proper?

REPRESENTATIVE THOMPSON: I think it would be well

to open it up.

MS. BELL: Well let's make a firm decision about

what we're doing with Paragraph 1, are we deferring action on

that until the meeting at nine o'clock?

REPRESENTATIVE THOMPSON: I thought what we really

were saying was we like the language that has been proposed

but we are deferring final action on it.

MR. HILL: Could we put that into the draft, the

proposal from this committee for further study?

REPRESENTATIVE THOMPSON: Put it in there. Would

, that be agreeable? Just to get us off of dead center?

MS. BELL: Shall we go ahead and recommend that it

be changed to this but then indicate further study and we can

reconsider that?

MR. GRIFFIN: That procedurally is the most satis-

factory way to do it.

i

j,

MS. BELL: Is there a motion then to adopt the langUa~e

for Paragraphs 1 and 2 --

MR. HILL: Now wait

MR. HENRY: Paragraph 2 is

MS. BELL: This would be Paragraphs 1 and 2 as you

have proposed it.

MR. HILL: I understand.

P.'\.GE 91
REPRESENTATIVE CLARKE: I so move. MR. GRIFFIN: I second. MS. BELL: Any further discussion?
(No response.) MS. BELL: Those in favor say aye.
(Ayes. ) MS. BELL: Opposed?
(No response.) MS. BELL: The motion carries. You might want to comment on this MR. HENRY: Article I, Section III, Paragraph I, subparagraph 2, deals with the power of the General Assembly and its political subdivisions to tax and spend in order to provide relocation assistance to displaced persons and to implement acquisition policies pursuant to and in order to comply with Public Law 91.6-646. It was determined in another subcommittee considering other provisions in the Constitution which deal with specific grants of power to the General Assembly to have the power to -- in these other two provisions which would be contained in Article IV, Section VIII, Paragraphs II and III, dealing with compliance with federal law in inter- , modal transportation funds -- it was felt that this in Section II is the same type provision and that it could be included in a more broad and general grant of power to the General Assembly to comply with federal law and to exerci.se their powers to__the~

PAGE 92 extent necessary that those powers need to be exercised in

order to comply with federal law. And so in Article III,

the Legislative Article, this language is being proposed:

"The General Assembly shall have the powers

to provide for the participation by the State

and political subdivisions and instrumentalities

of the State in Federal programs and the compliance

by the State with laws relating thereto, including

but not limited to the exercise, to the extent

and in the manner necessary to effect such

participation and compliance, the powers of

taxation, eminent domain and zoning."

It was felt that this provision that was proposed

"t '~ would take care of not only the two provisions in Article IV

J" dealing with the power of the General Assembly to comply with

1(, federal law, but would also take care of subparagraph 2 of

It Section III of Article I.

is

REPRESENTATIVE THOMPSON: Now let me ask you this.

~0 That one is tied strictly to federal programs, is that right?

")

MR. HENRY: Yes.

REPRESENTATIVE THOMPSON: What about state programs

where there is no federal participation, wouldn't that leave a

vacuum there? Doesn't the way that it i.s presently in the

Bill of Rights also apply to the state as well as the federal

government and Ttlouldn't it be desirable to require the state

PAGE 93 as well where they are operating federal programs and displacing people, to take care of this particular problem?
MR. HENRY: This gives the General Assembly -- this was the 1972 amendment. This was proposed and ratified in 1972 in order to allow the General Assembly to effectuate legislation which was needed in order to comply and take advantage of the federal funding, the matching funds coming in. It was felt that this would be a gratuities problem were it not for this specific Constitutional Amendment in that you would be giving money to displaced persons or giving assistanc~
I
to displaced persons. If we grant a broad grant of power to the General Assembly to exercise their powers in order to comply with that federal law, it is felt that this will give them the power to do these sorts of activities without Constitutionall Amendments. If you continue -- if you don't, I believe, correct the inherent defect, you're going to have these type amendments coming into your Constitution until perhaps another revision effort comes around later on down the road, but at present I know that you have this one here and you have three others at the end of the State Transportation Board.
REPRESENTATIVE THOMPSON: In other words, you feel the question I was asking -- I understand from the language you: were reading there that where we participate in federal programs, it would give to the General l'-.ssembly the authority to pay money for displacement, etc., etc. In programs in which

PAC]' 94 . --- _._,,
,
the federal government does not participate but in which the State of Georgia or a municipality would participate, would that also extend to them, the requirement?
MR. HENRY: This provision right here would extend to powers in aid -- or in order to participate in federal programs alone. With respect to --
MR. HILL: But he's suggesting we broaden this maybe and, you know, worrying about whether the General Assembly could do that. Our philosophy over in Article III is that the General Assembly has all powers that it can have within its jurisdiction except as limited by the Constitution. So my own feeling is we don't have to make any specific mention of that power of the General Assembly because it is inherent.
MR. CARLYLE: I would disagree. If you're talking about some sort of state relocation assistance, I believe the gratuities prohibition in the Constitution would prohibit it without specific authority.
MS. NONIDEZ: This language picks up instrumentalitiJs of the State, which I believe -- let me see if I am under standi
I
ing Mr. Thompson's question. Your concern I believe is not just in those instances in which the State is participating in a program in which there is federal funds.
REPRESENTATIVE THOMPSON: Right. MS. NONIDEZ: But programs where the State is not the

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PAGE 95

entity on the local level, but rather it's a city or a county

or some

REPRESENTATIVE THOMPSON: And there are no federal

funds involved.

MR. CARLYLE: That's different.

MS. NONIDEZ: And I think you would still have a

problem there. I agree totally with what Doug is saying.

All this does is try to correct the problem where you've got

federal funds

a federal program which involves the use of

federal funds.

REPRESENTATIVE THOMPSON: Well let me ask you this --

MS. NONIDEZ: In state or local --

REPRESENTATIVE THOMPSON: Paragraph 2 of Section III,<

as is written into the Constitution now, that only affects

federal programs?

MR. HILL: Yes that does, but your question is

whether maybe we want to broaden it?

REPRESENTATIVE THOMPSON: I'm just wondering, and I

was just wondering if Paragraph 2 was broad enough to cover

programs other than federal programs.

MR. HENRY: No, I don't think so.

MR. CARLYLE: I think it might

MS. BELL: It doesn't seem so, if you look down on

line 24.

MR. CARLYLE: But this says "including \.vithout

limitation" all of those relocations. I believe that the intent was to comply with federal law, although it appears as though the language is broad enough to provide relocation assistance for other purposes, but I think the intent was to provide
MR. HENRY: I have a passage here out of the Department of Transportation v. Doss at 238 Ga. 480, in which they sun~arize the act, in effect saying the 1972 Amendment authorizes the General Assembly to require the State and other 'I entities to provide relocation assistance and payments to persons displaced by public projects and to establish and
'.,.
implement acquisition policies and practices and to provide for the payment of reimbursement of necessary expenses of
'.~
:' persons whose properties are acquired i.n connection with the !~ acquisition of real property for public projects. The purpose
~ of the amendment essentially was to authorize the General ., Assembly to permit governmental entit.ies acquiring private
property for public projects to expend public funds to comply with Public Law 91-646, Wli.ch is the federal la,v. So they read
MR. HILL: But that's because that's the way the case probably came up. I don't know whether the issue was ever addressed.
MR. HENRY: This issue -- it was alleged in that case, and this was more of an informational type of -- it was

the --

PACE 97
--- --- - --

-- ---,

I

MR. CARLYLE: Well, if the language in the amendment

itself had not said "to include without limitation" so on and

so on; if that had said "to include only" or something like

that --

MR. HILL: ~fuat line are you on, where are you

reading that?

MR. CARLYLE: Well on line 22 of page 8, "sponsored

by the foregoing public entities, including without

[U limitation, all of those relocation assistances and paYments

I: as are .. " and then you have the (ii),on page 9, lines I and

2 say "policies, practices, paYments and reimbursements to

include, without limitation, those real property acquisition

;- policies ... " so on, so on, so on. It seems to me as though

that language is broad enough to include other things than the

federal requirement.

REPRESENTATIVE THOMPSON: I think it's broad enough

1 I.

to cover things other than federal funds.

MR. CARLYLE: Although I'm not sure the General

Assembly really wanted to do more than that at the time they

passed it, but that's another question.

")

MS. BELL: There's a question in my mind, I have a

feeling it's a very stupid question, but I don't know the

answer to it; on this memo, page 3, it seems that we're

talking only about instances in which private property is

98 being acquired for public projects and we're authorizing them to spend certain monies in connection with that. Why wouldn't the eminent domain power cover that?
REPRESENTATIVE THOMPSON: The difference is this, we're talking about relocation money. You buy somebody's house, you give him adequate and just compensation for the house, but' at the same time this person has got to move, he's got to relocate himself at some expense, moving expenses.
MS. BELL: I don't understand why that wouldn't be in just and adequate compensation.
REPRESENTATIVE THOMPSON: It's not the purchase of property, that's in addition to the value of the property. The only thing that the law required at that time was that you, pay him for the property. Now the federal programs have gone into giving grants for relocation. They do it every day in urban renewal programs, which is a separate grant, aside and apart from what they're paying for the purchase of the property and this authorized that particular type of program. Maybe I'm not coming through clearly.
MS. BELL: I understand what you're saying. REPRESENTATIVE THOMPSON: They've been declared as separate things. MS. BELL: It has been interpreted, the just and adequate compensation has been interpreted to extend no further
!
than just the value of the property itself?

99 REPRESENTATIVE THOMPSON: I would think that's what

it has been and then we came along with some relocation funds

which this enabled the state to do.

MS. BELL: Well in that case, I suppose we do need

it.

REPRESENTATIVE THOMPSON: The question that I'm

raising is this; it's clear that where federal funds are

involved, this permits relocation funds, but there are other

projects which are not federally funded, there are other

l .' ' . governmental entities that exercise eminent domain that federa~

funds are not included in. Does this also permit the payment

l of relocation funds in those circumstances? And I'm saying

-~ it's highly possible that if we adopt just the language they're

proposing go into Article III, the Legislative Powers, and no

more, which limits itself to the spending of federal funds,

, that maybe this would not require other entities to pay reloca-:

~ tion grants. I think if you feel relocation grants ought to be!

paid, then they ought to be paid by all governmental agencies,

JI, not just those in which federal funds are involved.

;,

REPRESENTATIVE SAVAGE: May I ask this question,

Madam Chairman? I want to get a clarification on the gratuities

section, what does it specifically say?

MR. HILL: It's a prohibition against any kind of

gratuity being made by the state to any person.

REPRESENTATIVE SAVAGE: I think I'm going to agree

PAGE 100 with Mr. Hill that if the State decides that a relocation is a part of the cost of relocating or building a State project there, then the State under its rights would have the right to include that as a cost and to allocate and budget that Inoney in appropriations as we do all other appropriations. For example, your travel here to the State Capitol is a part of your cost of being a legislator; that's not a gratuity.
REPRESENTATIVE THOMPSON: But that's specifically in the Legislative Article.
REPRESENTATIVE SAVAGE: Are you saying we specifically have to write into the Constitution of Georgia that the relocation of people or giving them if we write in an appropriation of money, and you're suggestjng that we do this and not include at any time relocation, that that is going to be a gratuity?
REPRESENTATIVE THOMPSON: I'm saying this, Doctor Savage, that they found it necessary to amend the bylaws.
REPRESENTATIVE SAVAGE: And you're saying -- you agree?
MR. HILL: That's the situation, it is a gratuity unless you have some kind of special exception, which is what this is, it allows the General Assembly to make relocation grants under these circumstances. I think Ms. Bell maybe has the answer for us and that would be under the eminent domain section, to add a provision that would say with respect to the

exercise of the

power of eminent domain,

the

PACE 101

- -" ---------- -l ------.~.---.--

~

I
General Assembly

may also provide relocation assistance where necessary under

federal or state programs.

REPRESENTATIVE SAVAGE: That solves it.

REPRESENTATIVE THOMPSON: I think that would solve

it.

MR. HILL: Go ahead and put it under eminent domain. :

That may be where we would take care of it and get rid of

this language.

REPRESENTATIVE THOMPSON: Let them put what they

want over in Article III.

MR. HENRY: Let me throw a wrench in the works here

for just one second, just to throw this out. I would imagine

that prior to this amendment that either they tried to do

this before -- they tried to comply with federal law without

this amendment and smeone raised the question -- now as Doug

says this could also apply to state and not just federal

projects as it is written. Then it would in effect allow us

to write into our eminent domain law the fact that you can

provide for relocation assistance, but absent that interpre-

tation that Doug gave, I don't believe it would stand up as a

challenge to a gratuity.

MR. HILL: But it would be a Constitutional provision,
I
we wouldn't have any problem with it if we're going to add it

to our eminent domain section which would be part of the

PACE 102 Constitution. It would automatically be an exception.
MR. HENRY: So we're going to put in the Constitution that relocation is not a gratuity, in effect.
MR. HILL: We're just going to authorize the General Assembly to make the payments and if anybody would challenge it as a gratuity, we can always say no, it's not considered in the same context because it's in another section.
REPRESENTATIVE SAVAGE: How did \ve come by the statute of paying mileage or per diem?
MR. HENRY: That's compensation MR. HILL: And allowances as provided by law. REPRESENTATIVE SAVAGE: You mean then relocations are not allowances? MR. HILL: It's not a public officer receiving compensation. REPRESENTATIVE SAVAGE: Has that been established by the judicial system that that's not an allowance? MR. HILL: It never came up in that context. REPRESENTATIVE SAVAGE: Well how could it possibly come up and be attacked then by a resident of Georgia if it were passed, and it would have to be passed through the legislature in the budget or by statute, that you would allow an allowance as some form of compensation for this displacement. It has to be enacted by statute, which the budget is, isn't it?' MR. HILL: Public employees are entitled to compensation

PACE 103 and allowances as provided by law. People who are displaced by public action in eminent domain proceedings are not public employees, they're not working for the government, they're not employed by the government. They're displaced.
REPRESENTATIVE SAVAGE: But it has been determined by the legislature that this is a cost of implementing this project and in the cost of implementing this project you do ~ have to allow the cost of obtaining the project and the cost of moving these people to another location.
REPRESENTATIVE THOMPSON: There must have been an interpretation that that's not correct, else it wouldn't have ' been necessary
MR. HENRY: It's not a public purpose -- apparently it was decided that it was not a public purpose.
REPRESENTATIVE SAVAGE: By a court, in relationship to State monies.
MR. HENRY: I would think so, yes, in relationship to the necessity of this amendment also.
MR. CARLYLE: I have a comment, that the Georgia Supreme Court has waivered as to whether attorneys fees are payable under this Constitutional Amendment or not, and I don'~ believe -- they didn't really have to deal with the question then of other kinds of relocation assistance but at one time they had held attorneys fees to be authorized under here and I believe in the last case they said they were wrong, that

104 attorneys fees were not authorized to be paid under here and they may have indicated that the General Assembly could provide for their payment, but now whether that would be pursuant to this Constitutional amendment --
MR. HENRY: I believe I can clear that up. In Department of Transportation v. Doss, the Department of Transportation came in and said tha~ only under this section could a condemnee receive attorneys fees for the condemnation proceeding itself. The court said if the General Assembly decides to provide by statute for attorneys fees in these , \ condemnation proceedings, which they have the full ability to do, it would be under just and adequate compensation, but that the attorneys fees under this provision are for when the publici entity attempts to conderr~ the land and loses. In other words,: l~ is not successful in the condemnation proceeding. Then they have to pay the attorneys fees to the winning plaintiff in ~./ that case.
REPRESENTATIVE THOMPSON: We have worked with this I" question in the General Assembly as to whether attorneys fees
would be payable in condemnation proceedings, and I think that the General Assembly has really turned thumbs down on the payment of attorneys fees because that would be encouraging more litigation in the condemnation area. Now some attorneys fees are paid in another area that I am familiar with; for instance, where you get replacement housing and there's a grant!

1
.. ',," ~' ;':'._~

for that purpose.

PAGE 105

- _...-

.. ._.----~_

--~----_._----,

,

I receive attorneys fees frequently for

I

searching the title for replacement housing, for closing and

things of that kind and I get a grant from-the Housing

Authority at home for that type of expense. But the other

attorneys fees we would be concerned with would be where the

person goes in in a condemnation proceeding and fights whether

there is adequate compensation, and I don't think the legis-

lature is quite at the point where they'd be willing to pass

legislation anyway which would permit attorneys fees under
i
those circumstances. I think we have so far declined to do so~

MS. BELl.: But wouldn't adding to the eminent domain

the language that was suggested by Mr. Hill take care of that

from the State point of view and then if this is put in in

Article III, doesn't that solve it from the federal point of

view?

REPRESENTATIVE THOMPSON: I think it would.

MS. BELL: That would leave it to the legislature,

isn't that where we should leave it?

REPRESENTATIVE THOMPSON: I think so. I think that

would be adequate, put it in the eminent domain part where

they could pay it if they wanted to.

REPRESENTATIVE SAVAGE: That's correct.

MR. HENRY: Under Doug's interpretation, I believe

you could do that.

REPRESENTATIVE THOMPSON: Let me ask this, I have no

PAGE 106 particular expertise in this area and I don't think -- I'm talking about not as a member of the General Assembly, I don't have any expertise in it. What about letting Mel talk to the people in the Legislative Counsel's Office, they have a tremendous fund of information over there as to what has happened in the past, basic arguments and things, and maybe they can point you to the committee that has been handling this. I don't even know what co~~ittee has been handling the l; legislation. There is some expertise rolling around here :\, someplace that is just not present in this particular body as ;, it stands now. Dontt you think we could avail ourselves of some of that expertise?
MR. HILL: As well as the Attorney General's Office. REPRESENTATIVE THOMPSON: The Attorney General's Office would be an excellent source. MR. HILL: Doug, do you think this proposal would fly by just adding in the eminent domain an authorization for relocation assistance? MR. CARLYLE: Would fly, do you mean would cover the I situation? MR. HILL: Yes, if we would make that change and we remove -- and we know what's going to happen over in Article III, or we're pretty sure -- can we remove this Section 2 without getting anyone into some trouble. Have we covered that way what this is attempting to cover?

PAGE 107
-,-~--~-~._.-------~-------
MR. CARLYLE: There are really two parts to this,

2 the one that allows relocation assistance and two that

allows you to establish and implement acquisition policies
i
and practices, which have to be in compliance with the federall

I 5 law. But I would think this broad language going in Article

"
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III is sufficient to cover --

I
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7

MR. HILL: The second part?

8
10
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MR. CARLYLE: The second part, and probably the

I

'I

first part as to the -- as to money in State programs in

\

conformity with the federal requirements. It would seem like

both of those suggestions together would cover all of the

objections.

MS. BELL: Would the committee like to make that

14)0,.. ", <.< :I:
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reco~~endation and then if we get an adverse report from the
,
Attorney Generalts Office -- are you going to see about gettin~

'I
some input from there? If we get an adverse report, then it
I

would be considered by the whole committee on November 9.

i

F"
j~ move.
20

MR. GRIFFIN: It certainly seems reasonable. I so I

I

REPRESENTATIVE SAVAGE: Second, Madam Chairman.

~

21

MS. BELL: Any further discussion?

22

(No response.)

_3

MS. BELL: All those in favor --

24

MR. GRIFFIN: This is a part of what we1re supposed

25 to be doing, cutting down the complexity of this document.
- - - ---------~--------- - ~ - -

PAGE 108

IIr!Ir

MS. BELL: It seems that's exactly what welre

IIII

2 II supposed to be doing.

3

(Ayes. )

4

MS. BELL: Those opposed?

5

(No response.)

6

MS. BELL: The motion carries unanimously.

7

MR. HILL: The only other thing is the Tidewater

Titles, and Michael has quite a bit of information in your

9 packet about that.

10

MS BELL: Actually we have two other things, don't

MR. HILL: Right.

MS. BELL: Would you like to

MR. HENRY: Illl go over the Tidewater Titles. I'm

going to conclude -- I'll tell you what my conclusion is

before I start and that is it's a very, very complex area

and my recommendation is going to be to defer this question

1Q '0

until the 1982 committee, to hopefully get a Supreme Court

19 decision in this area before then. As it stands right now,

20 the first question I asked myself with respect to Tidewater

21 Titles concerned whether it effectively did what it purported
11 'I to do; that is, ratify a 1902 Act which many people felt the :i
1 ' I' 1902 Act was a void act by the legislature because it granted
1,~ title to the foreshore in non-navigable streams to the thread

25 of the stream or if the stream was within your land, then you

u~__. _.

..__

~---- . - _ . . II

..-_._------- --_.-.__. - - - - - - - - _ ..._--

PAGE 109 I

;i had the entire bed, like an upland stream. Second, it grantedl

I

2 II right to farm the clams or oysters or fish or whatever you

:i
!

I

.I

i
I

do to clams and oysters in the foreshore on navigable streams. I

i

--+ This was a grant of public land to private persons in violatiot

5 of the gratuities law and also in violation of the public

I

I
b trust concept by which the State of Georgia held that land. i

I
7 This pUblic trust concept goes back to the common law of
I

S England in that the crown would grant land adjacent to

I

I ,I <) " navigable tidewaters but would reserve the foreshore to the

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use and benefit of the public. When the Revolution came of

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course we -- that land evolved on the State of Georgia in

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wa1 public trust for the citizens of Georgia. .The~efor~, there

some doubt whether that act granting that ~n v~olat~on of the

14

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public

trust was a

valid act.



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The Attorney General argued that you cannot raise

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a

void act by a

later Constitutional Amendment.

The court

2.

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held that you can.

The court held that the 1945 provision,

115 which is right here, this was brought in to the 1945 Constitu-

19 tion, effectively shielded this provision from later

20 constitutional attack.

21

The second question I asked myself was what are the

rights entitled under this provision. It has been litigated

in State of Georgia v. Ashmore, the court held the State of
24
i Georgia owns fee simple title to the foreshore but the

landowners adjacent to that navigable tidewater have rights in
_ l~i _.__

PAGE 110

n - - - - - - - - - - - - - - - - ._--_._.._ . _ - - - - - _ . _ . _ - - - - _.. _ - -
;1

--1

I' the form of a license to take the clams and oysters from this,:

I

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il11

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2 but this is subject to the land use restrictions placed on that

II

II
3 !I land by the marshlands protection agency, by the State of I.

ii

4 Ii
il

Georgia through the Department of Natural Resources, by the

5 federal government and also their title is marred by the fact

6 that that land is held in public trust which is presumably --

~
I

the State could never violate. Therefore, the title is very,

very -- they have title, they have rights and title to that

Cl I land, but they are so qualified by all of these different

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concepts that the rights that they have on paper and the rights that they have in substance are two different things. But they do have rights and I think it would be a major policy decision by this subcommittee to delete that provision

to as to affect what little rights they do have. And I

15 ,,~
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would say that we should defer to a later committee and perhaps a later Supreme Court decision
MR. HILL: In other words, the suggestion would be

18 to just transfer this intact over to Article XI, so that --

19 Article XI relates to the laws of the state. There is no

committee per se that is working on Article XI right now,

21

I
but Article XI just outlines what the laws of general operatio~

-

!

and force in the State is and it would fit in there as well

as in Article 1.

24

REPRESENTATIVE THOMPSON: May I make this suggestion~

I
In light of what you're saying, I'd like to move that we leave I

l.L..--

.-.--------------. --- .....- - - - - - .

PAGE III

it as it is in Article I and recommend that whenever Article

XI is taken up, that they take it from Article I in that same

Constitutional Amendment and put it in Article XI, but that

we cannot afford to leave a vacu~~ here, so we must

or we

5 should -- retain it in Article I until such time as adequate

6 provision is made to take care of it in another Article.

MR. HILL: The only thing is, Albert, the way we're

2 doing this in some of the other committees, is if we're going

9 to transfer something to an Article that is not going to be

10 up for a vote this time, we have it attached to the change in

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Article I- In other words, your approval of the new change in Article I, if the people say yes, it automatically throws this section over to Article XI. If they say no, it stays

"-....:_~

14

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where it is.

So we don't have a problem with the vacuum.

We

':;

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15 .:> could do it another way, but I just think it doesn't really

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belong

in

Article

I.

Do you disagree with me?

z

17 "~

MR. CARLYLE: Well as far as its placement, it seems

like since there was a constitutional grant of that right,

19 ratified by the 145 Constitution, that it would be a taking

20 requiring just compensation be made if the General Assembly
21 ' were to delete that provision, so I think its placement is ,,
maybe not as incorrect as it might appear. But I don't feel

23 that strongly about its placement.

!

MR. HILL: I guess the thought from the Attorney

I

I

i

General's Office

is

they really would

l

i

k

e
_

to see
____

something
______

_....Ji

LL

0-

PAGI~
---

-1

12I

II!i done with this but they're not ready to decide exactly T,vhat i

and they're hoping the Supreme Court will give them some more \

3 guidance. They can amend Article XI in 1982 to amend back to

Article I, so, you know, if you want to leave it here it's

~ okay. I tend to think I'd like to see it put somewhere else.

MS. NONIDEZ: It's a very short provision. I

7 I guess what everybody is saying is we don't really knovl what

t.his means, we don't know what the ramifications would be if

9 we started tampering with it, we're not really getting much

10 information from the AG's Office or others as to how we might

1]
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12 ~
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say what this paragraph means or how the courts have construed it.
MR. CARLYLE: But is there any question as to its

14 >...-.
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17 ~

necessity to stay somewhere? MS. NONIDEZ: I think it probably ought to stay
right where it is. MR. CARLYLE: Since the Ashmore case resulted in the

18 Attorney General himself arguing against former Governor

19 Carl Sanders, there is sufficient interest in this paragraph

20 to retain it, wherever it might be placed.

21

REPRESENTATIVE THOMPSON: I have no stronq feeling

about where it ought to be placed, but I do have strong

feelings about disturbing the balance and I don't think we

should do it.

MR. HILL: ~~y don't we just leave it here. It's I
---------- -----------_-----!

1
!
PAGE 113

certainly easier to leave it.

2

MR. HENRY: That would not preclude consideration --

3
!
..( no.

MR. HILL: It wouldn't preclude consideration later,

REPRESENTATIVE THOMPSON: I so move.

()

!

i

REPRESENTATIVE CLARKE: Second.

I

MR. GRIFFIN: I want to ask a question. You're

S :1 saying it wouldn't preclude consideration later, but this will

~9 be on the ballot.

10

MR. HILL:

I think we're deciding that this prOViSiot

11 ~
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T

will remain in the Constitution this time; the people, you

I

know, they may be asked to vote for Article I and we may

I

I

decide to delete it from Article I, but if \V'e do we're going

to say that as part of the change in Article I, we're

amending Article XI to put it there It's going to stay here.

.)

1(:

en Z

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The agreement is that it has to stay in the Constitution, I had thought it would be good to get it out of Article I over

JX to Article XI, but it's kind of irrelevant because we can

]'1 change it in '82 after we've had enough time to look at it.

20

MR. GRIFFIN: So in effect they would be amending

21 this Article in'82 by deleting it here and putting it over

2.'.

there?

MS. NONIDEZ: Possibly, but not necessarily. Artic11

XI speaks to -- it's sort of a supremacy clause. The federal . 25 i Constitution and legislative acts are supreme to the state and i

- - - - - Il~--------~ ~-

-~--------- -~--

----~-

I: state laws -- the whole series of where we stand

PAGE 114
1 judicially,

i!

~ and I'm not sure this kind of provision belongs over there

1 any better than it belongs right where it is in the Bill of

"{ Rights. But I think what we all are saying is rather than

5 tamper with the language, that we ought to leave it alone

and as far as placement, it's fine in the Bill of Rights,

, you're dealing with the rights of persons to property, is what

8 you're dealing with, certainly in my mind. It's an issue in

9 the Bill of Rights.

10

MS. BELL: The motion is to retain it where it is.

11

"z
1-

Does it include recommendation that it be

studied by a

c<
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12 : conunittee?

~I~~~J\~~

REPRESENTATIVE THOMPSON: After we have talked about

'-

14; this, I don't even think it ought to include that recommenda-

~
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15 .~., tion, it would not preclude them from later coming along and

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16 ~ doing that anyway. I don't know why we should clutter up our

oz
17 ~-< report with a recommendation of that type.

18

MS. BELL: Any further discussion of the motion?

19

(No response.)

20

MS. BELL: All those in favor, respond by saying

aye.

(Ayes. )

MS. BELL: Opposed?

,,

-'"+

(No response.)

MS. BELL: The motion carries unanimously. We do

--~-

- - ~ - - - ~ -

- - - - - - - - ---- - - - - - - - ---------~-

- , - - - - - - - - - - - - - - - - _ .__.---------------~

PAGE 115
-------------------,
still have the October 4 memorandum from Mr. Hill regarding

the deletion from Article V, Section III. Does everybody

~

have a copy of that?

MR. HILL: It's in the memo that I gave out today.

5 If I might just say this real quickly, we got a letter from

6 the League of Women Voters of Georgia related to the work

7 of the other section really about the statement of equal

S protection clause. I have a copy of that letter here, it

') has already been discussed and it is here for information.

!O But the memo of October 4, you should have gotten one earlier
"z
and here's another copy of it if you don't have it with you.

This committee working on Article V, Section III,

which relates to Other Elected Executive Officers, voted to

recommend to this committee that some provision be put in the

15 ,~
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Constitution relating to the receipt of fees, perquisites or
I
I
compensation other than the compensation allowances prescribed I

by law. Article V, Section III presently says uNo State

I

official --(no elected executive officer of this

state,

which

I
I

19 ii could mean the Secretary of State, Attorney General, State
I
20 School Superintendent, Comptroller General, Commissioner of

21

Agriculture and Commissioner of labor) shall be allowed any

I

22

fee, perquisite or compensation other than his compensation

I
I

23 and allowances as prescribed by law, except his necessary

I

I

I

,'..) expenses when absent from the seat of government on business

I

for the State. 'I And the thought in that committee was that i

__________~

~__________

~

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jUS~ rr------------ ------------------ ---------.---

PAGE 116

II this provision should be broader, should encompass not

Ii

I

2 il the other elected executive officers but other officials, and

3 !IIi that this kind of a broad conflict of interest limitation
III
4 should be put in Article I at some point. So they are
I

5 recommending to you that that be considered. There was no

6 consensus over in that other committee about language or the

7 virtue of this proposal. There were a lot of questions

8 raised about the receipt of retirement funds and, you know,

outside employment and a number of issues were raised which

10 there were no clear answers to, so they kind of just threw

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the ball to you. A number of them felt strongly about it, but they did not reach any final resolution. So I'm not sure how you wish to proceed with it.

14 ;.

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MS. BELL: On page 2, that is obviously a typographical error, the third line from the bottom, should be Section II of Article I.
MR. HILL: That's right.

Ii) !

MR. GRIFFIN: This would mean, would it not, that

19 the Governor, for example, could make a speech to the National

20 Association of Manufacturers and get paid a thousand dollar

21

honorarium?

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MR. HILL: I imagine that's what it would mean .

23 This doesn't apply to the Governor and Lieutenant Governor,

24 these prohibitions. I

I

2~

MR. GRIFFIN: It would also mean that a member of th4

PAGE 117

faculty of the University of Georgia could not come and do

l

some special job at the request of the legislature and be

\

.3 compensated for it

I

MR. HILL: It depends how broadly you stated state

1\1

official, I don't know that a faculty member -- I don't think

t.l that other committee had faculty members in mind when they

I

\
were thinking about broadening it. I think they were

considering other department heads, other people in comparable ') ! positions to the Attorney General and all of the others listed

10 in the paragraph.

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MR. GRIFFIN: Well that practice in some places

I

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12 ~ though is nonetheless followed, isn't it sometimes followed, if you're working in one division of the state you cannot be

I
. I

14 ~ compensated by another?

I

15 ~

MS. NONIDEZ, There is a state law, if you are draWi1g

10

~
~

funds

from the Executive Branch, which you would be if you wer~I

~

I

11 m an employee or a faculty member of any of the Regents units,

18 that you cannot draw funds from the legislative branch or the

19 judicial branch.

20

MR. HILL: As a matter of fact, all of the universit~

people

involved

in

this

work

are

prohibited

from


receJ.vJ.ng

I
I

any compensation, per diem or whatever, from the state

I legislature because of that prohibition.

~4 I

REPRESENTATIVE THOMPSON: And they have deleted it

completely?

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-------. -

----~---.----- ~----~-.-------

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PAGE 118

- - -- -----~ ---- - - - - -

-- ---------

MR. HILL: Yes.

l

REPRESENTATIVE THOMPSON: That means if we feel

3 strongly enough about limiting this, that we ought to put it

4

in 1.

5

MS. NONIDEZ: However, Representative Thompson, we

6 were just knocking this around a little bit in the office

last week and Terry McKenzie and I were talking. If you

8 make a blanket statement to the effect that no state official J_

you see this provision we're speaking of is in Article V --

10 if you say no state official and you put it in Article I, that

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11

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means

that you as

an attorney

I'm not sure, but could you

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as

an attorney practice

law?

Do you see what I'm getting at?

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This

is

in

Article

V dealing

with

executive

elected officers,

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15 ~ their not profiting from their public charge. ,~ ,::::

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16 .'2"..:

REPRESENTATIVE THOMPSON: That wouldn't fly at all

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17 '"""

REPFESENTATlVE CLARKE: It sure wouldn't.

18

MR. HILL: I thought they had in mind state executive

19 officials.

20

MS. NONIDEZ: In that case, it ought to be in Article

21 V. ),

MR. CARLYLE:

Unless

you

specify

no

elected

I
executJ.vel

23 officer.

II

24

MS. NONIDEZ: But if you do that, why isn't it in

I

Article V?
- - - - - - - - - - - - .~-~-_._----~-- - - - - - - - - - -- - - - ~--

; ----~--_._- - - - - - - - - - - - - - - '

PAGE 119

MR. CARLYLE: Did the committee indicate what would

happen if this committee didn't want it in Article I, would

they reconsider?

..j

MR. HILL: They very well may, I'm sure they will .

5 As a matter of factI they're going to meet again next

Wednesday, so that if you should decide thank you but no

7 thank you, they would have it back in their lap and they

would have to think about it.

REPRESENTATIVE THOMPSON: Isn't what they're

talking about conflict of interest rather than compensation

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12 :
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for services? I could go along with it if we could find some way of eliminating conflict of interest where you would not receive money from some person who is doing business with the

14 ;.
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government or in matters relating to the government or things of that kind, but just this broad prohibition against all elected officials, I don't think we could put that in ARticle I, or at least I wouldn't recommend putting it in Article I.

MS. BELL: What is the significance of language

19 "shall be allowed", does that mean shall be permitted to rece

20 any fees or does it mean shall be allowed any state monies?

21

REPRESENTATIVE THOMPSON: Let me give you an

2.: example of what I think it has done, the Secretary of State

and these other people are members oftentimes of something
jUS~ like the Jekyll Island Authority or the MARTA Board -- I'm

throwing that out as an example, I know about the Jekyll Islan~

,-,--,-------

I

PAGE 120
Authority -- they don' t pe"::t them ~ddi~ional :om~=:sa::~l

:;

I for serving on those boards, the only thing they're permitted

3 to have is what they get here. At one time we didn't pay

I

4 the Governor anything and the Governor got X numbers of

I

I 5 dollars for serving on various boards and things which really

() brought his salary up almost to what he is receiving now. I I

-,

think we have had a prohibition against the Governor receiving

is additional compensation and we give him something like

9 I forty-forty five thousand dollars a year as salary, but this

10
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prohibition kept him from various boards and things that they be members of.
MS. BELL: Does

receiving pay as a member of the of the state which the law requires

it prohibit their receiving

for

14 ,>.v, <J;
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example, if one of these officials were a member of the Board of Directors of a corporation, are they not permitted to receive compensation for that?
REPRESENTATIVE THOMPSON: I think it would prohibit

18 that and I think maybe it ought to prohibit that. I doti't

19 think they ought to be permitted to be members of five

20 corporations doing business with the State or regulated by

21

the State

..,."")
MS. BELL: Well they wouldn't necessarily be. You I
I
I
could have an elected official who is a member of a corporatio9
I
-- a Washington State corporation which doesn't even do

business in

PAGE 121
-------------------- - - - - - - - - - ,
REPRESENTATIVE THOMPSON: Isn't there a prohibition

2 against any funds being paid an elected person from the 3 United States or any other state?

MS. BELL: I don't know, I'm asking.

5 ':

MR. HILL: For the General Assembly there is. No

6 person can serve in the General Assembly --

7

REPRESENTATIVE THOMPSON: I think that same law

applies to all elected officials.

9

REPRESENTATIVE CLARKE: The people who serve on the

10 MARTA Board aren't given -- well, I guess that would be

different, MARTA pays them per diem in addition to their

salary, whatever it is.

REPRESENTATIVE THOMPSON: Does MARTA pay them?

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REPRESENTATIVE CLARKE: I believe so. I'm not positive about that.
REPRESENTATIVE THOMPSON: You're talking about members of the General Assembly?

18

REPRESENTATIVE CLARKE: No members of the General

19 Assembly serve on the actual MARTA Board, Tom Moreland is on
:'
[:
20 it and there are two other people who work for the State but

21 I don't know if anyone of these is listed here in this

,~
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24

I
paragraph. I'm sure the Commissioner of Labor and Commissionet
I
of Agriculture aren't, Attorney General isn't -- Tom Moreland i
and two other people from the state that the Governor
I

25 appointed to the MARTA Board, and I know that they get
~-------------- - -- - - - - - - - - - - - - -

I

PAGE 122

~
II

compensation, so I guess what the argument is is that if

II

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these people cannot get compensation for serving on similar

l

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Boards then why should those people be allowed to.

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MR. HILL: That was probably what was behind some I

II

5

Ii
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of the thinking and they did consider adding "shall be

I
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6 II'III allowed any state fee, compensation", they felt that W&S the I

11

7

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intent, you know.

I

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MS. BELL: Well I would have thought that was the

9 intent.

10

MR. HILL: But then they got into the question about

"T.
what about retirement benefits. Once you're receiving a

re"tirement benefit, does that preclude you from then serving

in one of these positions? If you runfor one of these offices

then are you going to be prevented from getting -- then you

can't have a salary?

MS. BELL: But limiting it to state funds does not

raise that question, if that question is there it's there

anyway, but now there's a question whether it would apply more 19 i broadly than that.

20

MS. NONIDEZ: I'm not sure what it means, if you

21

just attach the -- "No state official named in Paragraph I of

),
this Section shall be allowed any fee, perquisite or

compensation ... " from the state, if you read in that other

24

than his compensation and allowances as prescribed by law,

I think if he was receiving anything it would be prescribed by;

.

,,

...

,

.

~_____

_,

,,_._ _ ,

- - - - - - J1

PAGE 123

law, so I'm not sure what that --

-)

MR. HILL: Oh, I would say nprescribed by lawn that'

-'

his compensation and allowances. I mean it would prevent him \

I

<t from getting a fee for serving on another Board, this is

!

i

:)

salary and certain expense money associated with the job and I

I
6 that's what he would be limited to receiving. He could not get
I I
7 extra per diem or whatever.

X

REPRESENTATIVE THOMPSON: Doesn't the Commissioner

9 of Labor -- isn't a part of his pay from the federal govern-

10 ment?
~ z

MS. NONIDEZ: Yes.

REPRESENTATIVE THOMPSDN: That seems to be in

violation of this provision, doesn't it?

REPRESENTATIVE CLARKE: Commissioner of Labor, I

thought all of his pay was from the State.

I

w

REPRESENTATIVE THOMPSON: No, ma'am, the Commissione~

C.

7-

I

'" 17 Cf. of Labor's salary, X number of dollars, a very small amount is I

I

II'> paid from the State of Georgia and the rest comes from the

I

19 federal government.

I

20

MS. BELL: That's still compensation though, isn't iJ?

!,

21

REPRESENTATIVE THOMPSON: You see, he's adm1 n1ster1 ngi

.22 a lot of federal funds over there in the Department of Labor.

"cl.",)'

REPRESENTATIVE CLARKE: But I thought we were

24 prohibited -- I don't know.

~S

REPRESENTATIVE THOMPSON: That's by special --

PAGE 124

REPRESENTATIVE CLARKE: You couldn't get any federal funds, why is it that he can, we're both constitutional 3 officers, I couldn't.

4

REPRESENTATIVE THOMPSON: Because the federal

5 government pays him for administering several programs that

6 they pay the money for.

-,,

MS. BELL: But it's paid as part of his compensation

8 from the State, isn't it?

9

REPRESENTATIVE THOMPSON: The State pays him a

10 much smaller salary than it does any other elected official,
z~"
11 ~ I think he gets something like twelve or fifteen thousand

dollars from the State.

MS. BELL: The money that comes from the federal

government, does it go through the State to him? REPRESENTATIVE THOMPSON: I don't know how that's

handled, but if Il m not mistaken, if I remember my salary

bill correctly, he receives a salary which comes up to a

certain amount but the State only pays a portion of it, the 19 rest is paid by the federal government. I could find that 20 law over there someplace. When is the last time we gave him 21 a salary raise?

MR. HENRY: Can you prescribe by law that part of

his compensation shall be from the federal government?

.:>\

REPRESENTATIVE THOMPSON: The law does prescribe

that now.

PAGE 125
'-,---
!1R. HENRY: So there'd be no problem with it.

MR. CARLYLE: I think you're violating the

; Constitution.

MS. BELL: But it wouldn't, would it, because it

5 says nother than his compensation and allowances as prescribed

()

by lawn.

7

MR. HENRY: If they prescribe it, it fits that

l')

definition.

9

REPRESENTATIVE CLARKE: Madam Chairman, I'm inclined

to

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to disagree with the other committee that in some fashion we need to include that paragraph in Article I. I don't think it belongs in Article I.
HR. HILL: You think it should be broadened in Art.icle V, if it were to stay in Article V cbyou think it should be broadened?
REPRESENTATIVE CLARKE: I think that it needs to be,

it needs to include -- as we say in the General Assembly you

IS ought to feed everybody out of the same basket, same dirty

19 I spoon. I think it needs a little broadening but I don't think

20 it belongs in Article I, I think it probably needs to stay in

2t

REPRESENTATIVE THOMPSON: Unless it's just a blank

prohibition against things that create conflict of interest,

and that's not what this is doing, it's doing something entire

different from that.

MS. BELL: I'm inclined to agree that it belongs in

---------, ~------- - - -~

PAGE 126

Article V too.

I

I:
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I

2 'i

MR. HILL: Well you're in luck, you can kick it

3 back to them and they'll get it next Wednesday.

!"I, 4I

MR. GRIFFIN: Isn't it possible that a broad

!

5 reading of this would mean you coundn't make fees for

6 outside offices?

7

REPRESENTATIVE THOMPSON: It says that, it's not

8 a broad interpretation, it flat says that, and I think it

9 might be right. I can conceive of the Comptroller General

10 down there, who is also the Insurance Commissioner, being on

11 the Board of Directors of Metropolitan Life Insurance Company
o0: "--,
J2 ~ and receiving compensation for that and doing special favors
@r"'~ ~~ by way of his regulation of Metropolitan Life.

14 ,.

MR. GRIFFIN: It doesn't flatly say that, it says

'<

15

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"shall be allowed any fee ... " it means that the state shall

:'
16 ~ not pay them any fee.

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17

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MS. BELL: That sounds like what it's intended to

iK mean.

19

MR. GRIFFIN: Not that they shouldn't be allowed to

20 make a speaking engagement somewhere and get a fee.

21

REPRESENTATIVE THOMPSON: I wasn't thinking about

22 ' speaking engagements, I was thinking about participation at

23 other levels of private enterprise.

MS. BELL: Well of course if it prohibited fees from

2~ Boards of Directors, it would also prohibit fees from speaking

PAGE

engagements.

2

MR. GRIFFIN: Right.

3

MS. BELL: It's either talking about allowed from

4 state funds any additional compenation or --

REPRESENTATIVE CLARKE: And it needs to be

clarified by the other committee if they're going to put it

7 back in V, they need to clarify exactly what shall be allowed

8 any fee, from whom, they need to state from whomever it's

9 referring to.

JO

MR. GRIFFIN: And who is covered by it.

oz
REPRESENTATIVE CLARKE: Who is covered and

REPRESENTATIVE THOMPSON: I don't think it limits it

to the State, not the language as I read it.

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REPRESENTATIVE CLARKE: I think it's general. REPRESENTATIVE THOMPSON: I don't think there's any limitation. MS. NONIDEZ: There is one provision in the

1.'\ Constitution in another Article that kind of relates to this

19 whole topic we've been discussing. I don't know if y'all have

20 copies of the Constitution, page 63, there's a provision in

21 Article VII, it's a prohibition on state officers, county

officers, members of the General Assembly, from receiving

directly or indirectly -- it's paragraph VIII -- profit on 24 public money arising from the use or loan of public funds in

his hands or monies to be raised through his agency for state

LL

~

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PAGE 128

- - - - ~~--~----~

I

county purposes shall be deemed a felony and punishable I

!
I

may be prescribed by law.

I

I
I

I just point that out while we're talking about this I

whole issue. If I had been looking for a provision in the

Constitution that said that, I probably wouldn't have ever

gone to Article VII to find it, I would have probably looked

,

7

" I

I

for it in Article I,

because it is -- while we're talking

I

I

8 i about a broader sort of prohibition, it's one of those

it

9 does apply to any state officer, member of the General AssemblJ,

I

10 county officer.

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REPRESENTATIVE CLARKE: It's relative to compensatiorl?
I
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MS. NONIDEZ: Well it's relative to profiting from
the handling of pUblic funds.

14 .;...

REPRESENTATIVE CLARKE: Maybe instead of Section V,

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15 .:> it needs to be put back there in that section somewhere.

":'">

16 ~...

MR. CARLYLE: In Article V, Section III, Paragraph

o

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17 ~ III --

18

MS. NONIDEZ: That's another one.

19

MR. CARLYLE: That's another one that talks about

20 fees.

21

MR. HILL: They deleted that as well, perhaps becausel

of this one over here in Paragraph VII, or they felt it was

-I-'' covered by statute already. I think they felt it was already

24 covered so well that it really didn't have to be stated in the

25 Constitution.
,
....... _----------~

So the recommendation of this committee will be

_.--~----------~_.~--~

~---~-----~--

broa~e:,~~~ha I to put it back in V, but to clarify and

PAGE 129
t

basically REPRESENTATIVE THOMPSON:

I
I
I
I think the only thing we I

.+ can recommend is we don't think it belongs in Article I.

MS. BELL: I think we could also recommend it be

6 clarified, since we all seem to have different views about 7 what it probably includes.

REPRESENTATIVE CLARKE: Not necessarily broadened,

but clarified.

10

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REPRESENTATIVE CLARKE: If we know exactly what the intent is, which I doubt if they'll ever figure out what the

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intent is. MR. HENRY: Maybe that's -MS. BELL: After they clarify it, we might recommend
that it be deleted.

18

HR. CARLYLE: Is it appropriate to perhaps bring up

19' another matter that we have already approved? I thought I

20 would bring up

21

MS. BELL: Before we do it, can we dispose of this

one?
'-)-'' I

MR. CARLYLE: I'm sorry.

MR. GRIFFIN: I so move.

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REPRESENTATIVE CLARKE: You're moving that it be

i.l..--- ~~

_

PAGE 130

~ broadened, right, your amendment or whatever?

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MR. GRIFFIN: The way you want it.

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REPRESENTATIVE CLARKE: Let it go back to V and

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4 11 let them figure out what to do with it. I'll second the

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5 i motion, whatever it is.

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MS. BELL: The motion is to send it back to Article

8

MR. GRIFFIN: With a suggestion that it needs

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clarification.

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MS. BELL: It's moved and seconded, any further

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(Ayes. ) MS. BELL: Opposed.

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(No response.) MS. BELL: The motion carries unanimously.

1><,

Now, Doug.

19

MR. CARLYLE: This is in Paragraph IV of Section II,

20 it's page 5. There is some dispute between the Executive

21 and the Legislative Branches over the legislature's power to

review rules and regulations of the

23

REPRESENTATIVE THOMPSON: I sure wish you could take

that function away from the General Assembly -- oversight,

that's what you're talking about?

PAGE 131

MR. CARLYLE: As well as the 3(c} amendments.

REPRESENTATIVE CLARKE: I'd like to introduce a

-' bill to abolish those actions by the General Assembly. I'm

~' so tired of getting mail from the Office of Legislative

5 Counsel, millions of pieces -- I don't read it, I don't know

6 why y'all keep sending it to me.

7

MS. BELL: I haven't followed what you said. They

8 understand but I don't.

9

MR. CARLYLE: There's a statute that authorizes

10 the General Assembly to review rules and regulations of the

11

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various licensing boards and the Governor has taken the

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~'~"~~ vetoed or threatened to veto, or both, some bills and there

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may also be -- I don't think there is probably the difficulty with sunset because you do abolish by statute -- you can abolish what you create.
REPRESENTATIVE THOMPSON: Do you understand?

18

MS. BELL: I think I do, but it's the legislature

19 that creates these boards, isn't it?

20

MR. CARLYLE: They can abolish but the sunset of

21 the agency and board is not a problem I believe, but the

review and the in effect overriding the rules and regulations

of those agencies, if the General Assembly disapproves of 24 them, overriding them other than passing a law, may be

questionable.

PAGE 132
I
REPRESENTATIVE THOMPSON: After we create these

2 I boards, they become a part of the Executive Branch, they're

3 II not a part of the Legislative

,I

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MS. BELL: But they have legislative functions too,

III'

5 II don't they?

II

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REPRESENTATIVE THOMPSON: Not the boards.

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MS. BELL: They're rUlemaking.

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REPRESENTATIVE THOMPSON: They make policies.

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REPRESENTATIVE CLARKE: They're not legislative in

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that it has no effect of law, it's just a rule that they have promulgated in order to operate.
MR. CARLYLE: The courts have said they do have the effect of law.
REPRESENTATIVE CLARKE: They do have the effect of law?
REPRESENTATIVE THOMPSON: Once they do it, they control and rule by that. What we did

18

REPRESENTATIVE CLARKE: It's a big mess.

19

REPRESENTATIVE THOMPSON: Every time they want to

20 change a rule, they have to send the Legislative Counsel's

21

Office a notice that this is a proposed change. Each of our

22 committees is assigned so many of the agencies and then we

start getting this mail that the Real Estate Board proposes

to change their regulations about doing such and such a thing. I

!

You have 30 or 40 days to file any objections to it that we __ ' - ' - - - - - - - - - - - - - - - - . _ - - - - _.. ._~---------_..

I
,I

1
i
PAGE 133 wish to file. Then after we file it, they go ahead and

:'. either do it or don't do it, whatever they're going to do.

I

Then within 30 days after we come back to the General Assembly~

I

4 we have a right by statute to reject what they have done by
l!

5 regulation.

MR. CARLYLE: But the way you can reject it, you

7 can overcome their rule just by resolution passed in both

8 houses, which is not the same way that the statute would be

l) ! passed.
,I 10

REPRESENTATIVE THOMPSON: Which really puts us in

the business of being a part of the administration because

we're over there telling them -- I sort of like sitting back

in the bird seat and letting them do what they want to do

and if I don't like it I'll pass me a law to change it.

REPRESENTATIVE CLARKE: That's exactly what is
::>
16 ; happening. A committee that I serve on, Health and Ecology,
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17 ~ recently filed an objection to the rules and regulations

18 relative to certificates of need and we filed and objection

19 without even knowing what we were filing an objection on.

20 I So we filed an objection on the whole regulation changes and

21 we were told by the department that no matter what you do,

legislators, we're going to adopt this. So they go ahead and

23 adopt it even though we file objections to them. Now come

24 January, we've got to go back and justify why we filed an

2~ objection to it.
Ii
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We filed an objection out of ignorance. We
. --------------------------- - - - - - - - - - - - - - - - - '

r PAGE 134 had no idea what that document that we got had in it. See

1

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now we've got to go back -- when you file an objection, you

3 III, should file objections to specific parts that you take issue I

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with, but we haven't done that.

The sunset is not working in I

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no longer have authority to do that.

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REPRESENTATIVE THOMPSON: The sunset is not working

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8 and the oversight is not working. The committees aren't

9 able to meet and determine whether those regulations are good I I I
10 or bad, and they are passing them and we aren't doing anythingi

~ 11 with them. Really by our inaction, we are participants in the I

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That's right.

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REPRESENTATIVE THOMPSON: We're doing ourselves a I

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15 .:. disservice. What would you propose to do about it?

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MR. CARLYLE: I just wanted to know whether you

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17 ~ wanted to make your authority clearer and I think you don't

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18 from what you have said, your authority to review.

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19

REPRESENTATIVE THOMPSON: That's just my own persona~

20 sentiments. There are members of the General Assembly that I 21 want to dibble and dabble and they're the ones that got this I

3(c) legislation passed. But there are some others of us --

23 I'm one of them -- I don't appreciate the function because I 24 know what my committee has done. What I do, when we get these'l

25 I have asked the member of the Legislative Counsel's Office \

PAGE 135

assigned to my committee to attach to the notice to each o : l

co~~ittees 2 of my

I a note, do you approve or do you disapprove,

I
II
,, I and if all of them approve then we don't have to meet on it. I

4

If everybody or a certain nQ~ber, certain me~bers of my

5 committee disapprove, then we're supposed to call a meeting

(, and we come up here to Atlanta for the purpose of notifying 7 them that we disapprove. It just hasn't worked. Getting our S committee together takes almost an act of Congress to get 9 those folks to corne -- and rightly so, everybody has got a 10 living to make. We don't get paid enough in the General
Assembly to justify being up here two and three days a week. REPRESENTATIVE CLARKE: And another problem is that

since sunset was instituted, I don't think that we have

abolished a single board. We haven't abolished a single one,

I don't think we've even combined any two boards. We're havin~

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a meeting now in State Planning -- not State Planning, Health

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and Ecology to determine whether or not

the

I
Board of Dispensin1

18 Opticians ought to be combined with some other Board or

19 whether they should stand. They're not self-sufficient in my 20 opinion based on the hearing but nine times out of ten the 21 Board of Opticians is going to stand. The only thing we're

22 :i going to do is recommend that they charge higher fees for

persons taking the test, that's all. It's just a waste of 24 taxpayers' money. I hope we can abolish it, it's a waste of

25 I time.

PAGE 136

REPRESENTATIVE THOMPSON: I guess this was the

2 wrong group.

3

REPRESENTATIVE CLARKE: Cut off the tape.

4

MS. BELL: What is it you want to do about it?

5

REPRESENTATIVE THOMPSON: I wish they would take

6 that function back, I don't want the function.

7

MS. BELL: You want the legislature to create these

8 boards and just turn them loose?

9

REPRESENTATIVE THOMPSON: If we don't like what they

10 do, what they're doing wrong, we can come back up here and

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pass specific legislation what they can do or we can abolish

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'" them, but we're not handling the oversight in an efficient

manner. I don't think we're capable of handling it in an

efficient manner. If we were full time legislators, and God I

15 ~ forbid, but if we were full time legislators and stayed up her~

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for

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purpose

of

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18 overseeing. But we're part time legislators, we meet forty !

I

19 days a year and for us to exercise this function we have to II

20 call special meetings of the committees of the General Assembl~

21 to accomplish it, and it just doesn't work. We get changes I

22 every other week in some agency or other. We would be up here

'_".):'l all the time trying to dibble and dabble in these regulations

24 and things and I just don't think we're set up for it.

I

L 25

RE_-_P_RE_S_E_N_T_A_T_I_V_E_CL_A_RK_E_: I_n_H_e_a_l__t_h_a_n_d Ecology we' re '

1y----- --

~~ - - - - - - - - - - - - - - -

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doing Human Resources.

PAGE 137

:2

MR. CARLYLE: There is one other thing that relates

3 to that same paragraph. At the last meeting I was asked to

4 look to see whether there were any proposed amendments to

5 Article I, Section II and there is a Senate Resolution 38

h that amends the separation of powers paragraph that says that

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paragraph won1t prohibit a person who is otherwise qualified

8 and who is a member of a faculty or employee of the university

') system of Georgia from serving as a member of the General

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Assembly. REPRESENTATIVE THOMPSON: Yes, that's Ms. Gaylor1s
bill, Mary Jane Gaylor1s bill. She was a librarian at Columbus College at home and when she was elected to office

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it was decided at that time that it was a conflict of interest and she had to either give up being a member of the Assembly or give up being a member of the faculty of Columbus College. The court ruled against her, so she put that in. I think

10 there's pretty strong feeling that many people who want to

19 retain that separation -- maybe rightly or wrongly so, public

20 school teachers, we've got one in the House right now and we

21 at one time had a faculty member from Mercer who was a member

of the General Assembly and I think we have had faculty

members from Emory who were members of the General Assembly.

24 The prohibition would go to members of the faculty of the
,I,

University of Georgia and the university system, but we also

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PAGE 13g

control their pay, we also control the appropriations to the

units of the university system. I don't mind saying this, I

know I'm wrong for saying it as openly as I'm saying it and

I don't want you folks talking about it, but you've got a

5 member -- the Executive Director of the Georgia Association

6 of Educators who is a member of the State Senate over there

7 and he's constantly putting in legislation which affects

S : teacher pay and other things. I think that's a conflict of

9 interest.

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(To the reporter) I hope you aren't taking all this down.
MS. BELL: I agree, but whatever happened to the old fashioned notion of recusing ones self?
REPRESENTATIVE THOMPSON: They don't do it. REPRESENTATIVE CLARKE: Very seldom . REPRESENTATIVE THOMPSON: Not only do they not recuse themselves, but they initiate most of the legislation

18 which affects where they get their pay and I disagree with it.

19

REPRESENTATIVE CLARKE: The legislature is so divers

20 now, you have people who are in the various hdustries. If

21 we really talk about conflict of interest, Al and all the

22 other attorneys could hardly vote on anything that we have

23 coming before us. They would have to excuse themselves from

24 voting on so many issues.
I
I
REPRESENTATIVE THOMPSON: That's not really true. I
-----~----------------~

PAGE 139

REPRESENTATIVE CLARKE: Yes it is, because when we
il
I
2 sit down there for an hour and here comes one of those silk

stocking lawyer bills, I don't see how those guys could vote

4 on them. They vote for them because it's going to help them.

5 I don't see any problem with that part of it.

REPRESENTATIVE THOMPSON: As an attorney, most of
I
the bills and things that I either initiate or vote on that I

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have to do with criminal laws in the State of Georgia and
I things of that kind, which affects you as a citizen just as
bU~ much as me, so I don't think that's a conflict of interest,

we do have some lawyers who work for bonding companies

I

I

REPRESENTATIVE CLARKE: Insurance agents.

REPRESENTATIVE THOMPSON: And things of that kind

and they come up here and --

MR. GRIFFIN: Public utilities.

REPRESENTATIVE THOMPSON: There are a lot of

conflicts of interest and I'd like to see them all eliminated

1"(.

but I don't know any way to do it, because we do not -- I

19

I
have seen two or three people request the House of Representattves

20 to permit me to abstain from voting on this because I believe

21 it's a conflict of interest.

22

REPRESENTATIVE CLARKE: That's after they have worke

i

23 the fleor and made sure it passes.

I

I

24

MS. BELL: Mr. Chairman, is it your view that this

~" subcommittee has completed its assigned task except for the

PAGE 140
~~---~--~~~-~--~-----,

1 II consideration of the item at nine 0' clock on November the

Ii
2 III, 9th?

3 II

REPRESENTATIVE THOMPSON: I certainly think you

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4 have done a tremendous job on it. I don't know anything else

5 that we can do other than meet an hour before the regular

6 meeting on the 9th to see if we can come to some conclusion

7 on the one that we did not complete.

8

MS. BELL: Well I think we did take action on it

9 with the idea that we might reconsider, and I suppose we

10 could at that same time if any committee member comes up

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with some other thing -MR. HILL: We'll try to get the Attorney General's
reaction so that you feel more comfortable about it.

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MS. BELL: Will you be able to get that to us before the meeting?
MR. HILL: I doubt if you get it beforehand, we have to get it to him and he's got to get it, you knw -- I

18 doubt if you'll get it beforehand, but you'll have it for that

19 meeting.

20

MR. HENRY: When is the meeting?

21

MR. HILL: The 9th of November.

22

MR. HENRY: If we send it today, we might. I know

23 they are going to proceed with caution, I can tell you that.

24

MR. CARLYLE: Have they given any opinions?

LL--~

MR. HILL: No, not yet.
_

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--- ---- --- ~-----~ - - - _.._-~-----

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PAGE 141

MR. HENRY: They gave us their opinion to proceed
Ii

, :'1I with caution.

IIII

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REPRESENTATIVE THOMPSON: That's the Jeason I'm

I'!

4 II afraid to tackle some of these things, just go running in

51 there because there are so many things that could happen by
I
b us inadvertently leaving something out of one of these

7 Articles, and it's a frightening concept when you really

8 think about it. We could upset a whole lot of different

9 things by carelessly removing something or deleting an area.

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MR. GRIFFIN: And checking on all of that is a terrific job.
REPRESENTATIVE THOMPSON: It's a job and we have to rely on staff and I think Mr. Hill is doing a tremendous job with the staff, with the assistance that we're getting, but still the responsibility is going to be ours. Nobody is going to look at staff one of these days and say staff goofed, they're going to say the Committee on Article I goofed.

18 il

MR. HIL~: I'm glad thatfs on the record.

19 II

REPRESENTATIVE THOMPSON: This is where the Jesponsi-

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bility is

because this

is who

is going to have to vote on

it.

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MS. BELL: ~ve're adjourned.

n

(Whereupon, the meeting was adjourned at 1:25 p.m.)

23

24-

- - - - l PAGE 142
-C -E -R -T -I -F -I -C-AT- -E
I, Peggy J. Warren, CVR-CM, CCR A-l?l, do
\
hereby certify that the foregoing 141 pages of transcript
represent a true and accurate record of the events which
transpired at the time and place set out above.

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--- - - - - - - - - - - - - - - - - - - - - - - ---------------~---

INDEX Committee to Revise Article I Subcommittee Meeting Held on Oct. 26, 1979

SUBCOMMITTEE MEETING, 10-26-79
SECTION I: RIGHTS OF PERSONS Paragraph II: Protection to person and property; equal protection.
pp. 39-43 Paragraph VII: Citizens, protection of . .pp. 58-60 Paragraph XII: Right to the courts. pp. 4-10 Paragraph XIV: Benefit of counsel; accusation; list of witnesses; compulsor:
process. pp. 12-13, 29-31 Paragraph XV: Habeas corpus. pp. 13-22, 29-31 Paragraph XVI: Self-incrimination. pp. 31-34 Paragraph XIX: Treason.pp. 23-28 Paragraph XXVII: Spouse's separate property. p. 13
SECTION II: ORIGIN AND STRUCTURE OF GOVERNMENT Paragraph I: Origin and foundation of government. pp. 35-36 Paragraph II: Object of government. pp. 36-39 Paragraph III: Separation of legislative, judicial, and executive powers.
pp. 43, 130-139 Paragraphs IV: Contempts, and
V: What acts void. pp. 48-56 Paragraph VI: Superiority of civil authority. pp. 43-48 Paragraph VII: Separation of church and state. pp. 60-71 Paragraph VIII: Lotteries. pp. 29-31
SECTION III: GENERAL PROVISIONS Paragraph I: Eminent domain. pp. 91-108 Paragraph II: Private ways. pp. 71-91 Paragraph III: Tidewater titles confirmed. pp. 108-114 Article III, Section VI, Paragraph. IV: Limitations on special legislation
(general laws, uniform operation). pp. 56-58 The 1976 Constitution, Article V, Section III, Paragraph V: Fees and
perquisites denied (no comparable provision). pp. 115-130

PAGE 1

2

3

4

STATE OF GEORGIA

5

6

7

8

COMMITTEE TO REVISE ARTICLE I

9

of the

10

CONSTITUTION OF GEORGIA

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of Government

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19

20

21

Room 401-A

State Capitol

22

Atlanta, Georgia

23

Friday, November 9, 1979

9:00 a.m.

24

25

PRESENT WERE:

2

COMMITTEE MEMBERS:

3

MS. MILDRED BELL, CHAIRMAN

JUDGE ROMAE POWELL

4

MR. CHEATHAM HODGES

REPRESENTATIVE ALBERT THOMPSON
5

SELECT COMMITTEE STAFF:

6

MR. MELVIN HILL

7

MR. MICHAEL HENRY

8

OFFICE OF LEGISLATIVE COUNSEL:

9

10

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MR. DOUG CARLYLE MR. LOU LITCHFIELD

III

19

20

21

22

23

24

25

_______________~

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PAGE 2
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,

rr-----------------------------

----------------

PRO C E E DIN G S

PAGE 3

2

CHAIRMAN BELL: Would you like to go on the record

3 w.ith whilt you were just commentinll about, with respect to the

4 proposal that has been made from Mike Henry regarding the

5 eminent domain provision. At the last meeting we tentatively

6 approved the first sentence in that paragraph 1, as it is

7 shown on the revision Mr. Hill has passed out to us. We

8 approved it tentatively with the idea of coming back together

9 this morning to either affirm or change the wording.

10

Mike Henry has suggested that the alternative

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on

the

last page of his memorandum be adopted if we

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MR. HENRY: Well basically, after doing further

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shall

not

be

taken

for

public

purposes,

without

compensation

IX being paid as provided by law." The question arose as to

19 whether that phrase "compensation being paid as provided by

20 law" would take in the declaration of taking method, which is

21 a method of condemnation whereby the title vests upon the

22 filing of the declaration of taking and payment is not made

23 until the end of the appeals process as to what that just and

24 adequate compensation is.

25

I looked in the '43-'44 provision of the Constitutiona

PAGE 4

Revision Commission, and they suggested that "Private property

2 shall not be taken without just and adequate compensation

3 being provided for." That seems to me that it would take it

4 one step further, whereby you could almost -- I mean, that woul

5 provide the Court with better language in which to say that

6 this declaration of taking method could fall within that. I

7 went further and proposed some language on the last page of

8 the memo, which is taken from the statute -- I mean from the

9 present provision, and it provides that the General Assembly

10 can determine what a public purpose is and it provides
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12 ~ taking method. It's a very sticky area because of the fact tha
~._.". ~ ~ ~ the title vests at the point of the filing of the declaration,

! 14 rather than in the other method, title to the land does not tV>
<{
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15 .:> vest until the final determination is made.

Cl
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I tentatively researched as to whether we could

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17 ~move the vesting up in the declaration of taking method, but

18 I found that that's just not feasible due to the realities of

19 land condemnation. I believe the Department of Transportation

20 -- there's a federal requirement that they be able to say that

21 they own the land before they can get the money and if they

22 have to wait until the end of the appellate process, then they

2.1 can't make that statement.

24

CHAIRMAN BELL: And it just what, delays the --

25

MR. HENRY: It just delays the acquiring of ai1d the

building on the land.

PAGE ----~-------- - - - - - - - - - -5- - - ,

2

CHAIRMAN BELL: But the paragraph that you have

4

HR. HENRY: On the last, page 6, of the memo, I

5 incorporated the "provided for" language, which was in the

6 1943-44 Constitutional Commission proposal, and I also tried

7 to incorporate the exceptions which we presently have. It

8 cuts it down a little bit, but it really -- I'm not sure that

9 this is really -- if the committee's purpose is to cut the

10 language back as much as possible, then this might possibly

"z
II I- be okay, but it's not really much better than the present ."oa...

12 : provision because it's very wordy and lengtlly.

~~ -"~ .~

CHAI RrvlAN BELL: It is. Tell me, what would your view

14 ~ be of simply changing the present wording to take care of that lv> <l: :I:
15 .:. ini tial problem you mentioned wi thout -- changing "wi thout
""::>
lil ~ just and adequate compensation being provided", change that
c z
17 ~ wording to "wi thout jus t and adequate compensation being

J~ provided for in the manner provided by law."

II)

MR. HENRY: Okay. It's still questionable whether

20 the declaration of taking method could be done under that

21 language is what --

22

CHAI~Ulli BELL: You think not? If the declaration

23 of taking method is provided by statute, then wouldn't that

24 authorize it?

25

MR. HENRY: Well I think the problem is that you get

PAGE 6

the land before you pay for it. Now granted, I can see how

2 you could say that one way of providing for the just and

3 adequate compensation for the land being taken is to vest in

4 the owner of the -- former owner of the condemned land the

5 right to just and adequate compensation, which is -- when you

6 file the declaration of taking, the land vests in the

7 condemning authority, the right to just and adequate compensa-

8 tion vests in the former owner of the condemned land. Granted

9 I could see -- at least I could construe that to mean that

10 one way of providing for just and adequate compensation was to

z~

11 I- vest the right to just and adequate compensation, but that's

.'o0."...

~ 12 ~ a constructional problem and given the Supreme Court's tenor

~r~ in this area, I think they are very jealous of having people's

14 ~ land taken from them and they construe most strictly against

I-

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15 .:> the condemning authority in many instances in that area .

~

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16 .z<.Q.

CHAIRMAN BELL: Well of course it is a matter of

Q

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17 '"<Q construction. This is the type thing -- would you be willing

18 to go along with changing the wording, keeping it short, but

19 changing "being made" to "provided for" and then let the

20 Attorney General give an opinion on that?

21

REPRESENTATIVE THOMPSON: That would be fine with me.

22 It would appear to me that the courts -- what we're trying to

23 do is to put broad general authorization for this type of

24 statute in the Article I. We're not trying to provide the

25 method by which it can be done, we're providing that that can

PAGE 7 be done by statute, and this authorizes the General Assembly

2 to adopt legis lation. Whether or not their legis lation is

3 proper is for the courts to determine and the only thin~) --

4 they canlt knock down the Constitutional provision, all they

5 can knock down is whether or not the General Assembly has done

6 it properly, and does this .. and the only question we have is

7 does this give the General Assembly the authority, for instance

8 to adopt legislation for declaration by taking, is this broad

9 enough to do that.

10
..,

MR. HENRY: Itls a constructional problem.

Z
11 IIX ...0 0..

MR. HILL: Arguably.

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MR. HENRY: Arguably yes, you could.

;:::

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on

the bench,

I

would

say yes,

but

u

V>

If I was si ttin

>-

REPRESENTATIVE THOMPSON: Well 1 1 m in favor personall

l-

V>

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15 ...0, of keeping this language as simple as we can keep it, keeping

IX
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16 ~ it from being too wordy or anything else. I would suggest that

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17 ~ we adopt the simpler language, without the wordiness, and run

l~ that by the Attorney General I s Office and see if this will

19 accomplish the purpose.

20

CHAIRMAN BELL: Would you agree to changing Ilbeing

21 paid ll to Ilprovided for ll ?

REPRESENTA'I'IVE rrHOMPSON: IlProvided for ll ?

23

CHAIRMAN BELL: That does seem to be broader than

24 what we have. IlBeing paid ll is open to construction that it

25 has to be paid first.

PAGE 8

REPRESENTATIVE THOMPSON: "Being first paid"

2 "being provided for", I would go along with that.

3

MR. CARLYLE: One comment I had that Justice Bowles

4 has thrown out in one of his sub-committee meetings is that 5 the courts, in interpreting the Constitution, since we do have 6 a record, they will, you know, go back to see what the record

7 shows. If it indicates that this particular problem was

8 debated, that we took out "first being paid" in order to

9 broaden the language and allow the General Assembly more

10 flexibility, I think that's a strong argument for its being

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11 Ia-: broad enough to cover the quick take method. o

.0.....

12 :

REPRESENTATIVE THOMPSON: Well let me ask this, what

@r~ would they go back to, would it be the minutes of this

14 )0- commi ttee or would i t be the debate in the General Assembly? lV> :z:

15 .0

MR. CARLYLE: On the '45 Constitution there are

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16 .~... cases; for instance, tile Ashmore case where they went back to

17

cz
~

the

deliberations

of

the

committee.

18

REPRESENTATIVE THOMPSON: I'm thinking that sometimes

19 we rush these things through the House so fast that this might

20 not get the debate on it that we're giving it, the deliberation

21 that we're giving it in the commi ttee.

MR. HODGES: Madam Chairman, could we have Hike
'I
~~ explain to us what the difference would be in being paid and
M being provided for.

25

CHAI~~ BELL: Mike?

PAGE 9

MR. HENRY: The '43-'44 Constitutional Commission

2 -- the evil that they were trying to eliminate was the fact

3 that when someone' s land is being condemned -- and this was

4 back before they had the exceptions which gave rise to the

5 declaration of taking method, but the evil -- the evil that

6 they saw was that people were coming in and getting their just

7 and adequate compensation paid by looking at a blueprint. They

8 said we're going to build a highway across here. You don't

9 know what the ramifications are of that highway being built

10 with respect to your land until after the highway is built, 11 Cz~I and they wanted to postpone just and adequate compensation
i'o"
~.~ "" ::~:p:::::~ne:h::t::Sa::::rt::t:::::na:t::1:::e~i::W:Yr:::

! 14 ... it
15 V:~rI

And another thing, to kind of speak to Doug, is that

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16 ~ in a case where they did refer to the minutes of the '43-' 44 w Q z

17 : Consti tutional Commission, they misread their intention and so --

18 we can say what our intentions are till we're blue in the

19 face, or the committee can say it, but whether they're going

20 to follow that intention is a different question.

21

MS. GREENBERG: The way we handled this in other

22 committees is we've gone on record in a progress report or a

23 complete report to the Select Committee by saying the conscience

24 of this committee is we intended it to mean such and such, if

25 that would help matters.

PAGE 10

CHAIRMAN BELL: Well it might, but don't you think

2 it's better, to the extent that we can, not to force them

3 to go back to the minutes. If "provided for" will make it

4 necessary to go back to the minutes, then --

5

MR. HODGES: That's what my question was, Madam

6 Chairman, if "provided for" actually is saying that we are

7 leaving the door open for further negotiations down the line

8 in the event that the act of taking was causing more damage

9 than was anticipated at the moment, you know, originally, then

10 that "provided for" is by far better, because the circumstances

11 "~z we have seen in many instances throughout the state with the

o

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12

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h

i

g

hw
.

ay

s

,

what

they

were

paid

is

in

no

way

akin

to

~ .~ ~ what they should have been pai d, by virtue of the damage th at

14 .>.. wa. s done.

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15 ~

MR. HENRY: with respect to that fact, at least the

"Ill:
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16 ~... 143-' 44 Commission felt that it would take care of that

Q

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17 ~ problem. I think that it would take care of the declaration

18 of taking problem to -- at least much better than either

19 the phrase "first being paid" or "to be paid provided by law".

20

REPRESENTATIVE THOMPSON: Would a motion help at this

21 point?

22

CHAIRMAN BELL: I think it would, but before we do,

23 let me bring Judge Powell up to date on what we're doing.

24

We're taking this language in paragraph 1, the

25 eminent domain language, we've been discussing the possibility

PAGE 11

of retaining it just the way we tentatively approved it' last

2 time but changing the words "being paid in the manner provided

3 by law" to "just and adequate compensation being provided for",

4 removing any implication that it would have to be paid first.

5

We were doing this in line with what Mike has set

6 out in the memo and in light of the recommended language but

7 trying not to adopt language that is cumbersome or too long.

8

MR. LITCHFIELD: I hate to keep interjecting new

9 proposals, but what would be the effect of adding the three

10 words to what you have on page ten of the draft, "Private

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11 ~o... property shall not be taken or damaged for public purposes
@ --I12 ~ without just and adequate compensation being paid in the manner and in the time provided by law."

! 14 I'<"l: J:
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17 ~

MR. HENRY: That sounds better. CHAIRMAN BELL: That might clarify it a little bit What do you think about that? MR. CARLYLE: That would keep

18

REPRESENTATIVE THOMPSON: " . in the manner and at

19 the time provided by law. II

20

MR. LITCHFIELD: That's just an alternative.

21

MR. HENRY: Would that go farther than Mtri~be

22 provided for ll ?

23

MR. LITCHFIELD: You could even say in 1I the manner

24 and at the time provided for by law. II

25

REPRESENTATIVE THOMPSON: That would indicate that we

PAGE 12

had at least talked about a time for payment, it has that

2 inference.

3

MR. HUDGES: " . being provided for in the manner

4 and at the time provided for by law."

5

CHAIRMAN BELL: It may be a little redundant,

6 arguably "in the manner" encompasses it, but I cgree that it

7 certainly removes any doubt.

8

MR. LITCHFIELD: It's contemplating not only the

9 moment of payment, but the manner in which it will be paid too.

10 I don't know whether that would solve the problem completely.

~

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11 j:
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MR. HENRY: Another thing I must point out is that

12 jyou are making a substantive change here with respect to the

iF" .6;;)

,limitations on the power of the General Assembly at present,

14 ~in that they could conceivably provide that all condemnations

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15 ~ could be done in this manner.

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16 ~... o Z <t

CHAIRMAN BELL: Well I don't know how the other

17 l:i members of the committee feel, but it seems to me that one of

18 the things we're supposed to do is make some changes so that

19 the General Assembly has the legislative powers rather than

20 putting it into -- making these provisions, defining these

21 provisions in the Constitution.

22

MR. HENRY: Well i t would certainly cut down on the

23 constitutional amendments you would need.

24

MR. LITCHFIELD: That's true, but it must be pointed

25 out I think that there's a tremendous amount of entities that

PAGE 13

have the power to condemn. Obviously we have made the

2 decision somewhere in the past that compensation being first

3 paid is a requirement when Georgia Power condemns or the

4 Board of Regents condemns. A lot of people have the power to

5 condemn property.

6

CHAI~~ BELL: But we're not just turning i t over

7 to them, we're giving it to the legislature.

8

MR. LITCHFIELD: Oh, no, that's true. But in the

9 past it has been considered important. It's just something

10 we'd have to consider, th.at's all, that certain kinds of

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11 ~compensation should be first paid.

o......

~ 12 ~

CHAIRMAN BELL: Mr. Thompson?

~-~

REPRESENTATIVE TliOMPSON: I'd like to make a motion

14 ~ that on line II, immediately after the word "manner", we

en
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15 .:I amend by adding the words "and at the time". Would that do .i t?

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16 ~...

CHAIRMAN BELL: I think it would.

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17 ~

REPRESENTATIVE THOMPSON: " .. being paid in the

18 manner and at the time .... "

19

CHAIRMAN BELL: I believe it would, if you had at

20 the time, you wouldn't need that first "provided for".

21

REPRESENTATIVE THOMPSON: I so move.

22

MR. HODGES: I second.

23

REPRESENTATIVE THOMPSON: Romae, you going to second?

24

JUDGE POWELL: I'll have to study that a little bit.

25

CHAIRMAN BELL: Would you like to speak to it?

PAGE 14

MR. CARLYLE: Not as to that sentence. Were you

2 going to approve the whole paragraph or just that sentence?

3

REPRESENTATIVE THOMPSON: I'm moving that that

4 paragraph, that language be approved as amended by those four

5 words.

6

MR. HILL: That one sentence in paragraph 1.

7

MR. HENRY: Ms. Chairman, this second sentence with

8 respect to relocation assistance, we're attempting to take

9 care of this in another Article sub-committee. I don't think

10 that this would take care of relocation assistance.

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9-~

REPRESENTATIVE THOMPSON: You don't think it would? MR. HENRY: No. REPRESENTATIVE THOMPSON: You don't think the

14 ~ language is adequate for that purpose?

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15 .:l
Cl Cl:

MR. HENRY: No, sir.

j

16 ~...

CHAIRMAN BELL: The motion goes to just the first

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17 ~ paragraph, let's go ahead and dispose of that before we

18 consider sentence two? We need a second to the motion.

19

JUDGE POWELL: Repeat your language. Are you

20 leaving in "being paid"?

21

REPRESENTATIVE THOMPSON: " .. being paid in the

22 manner (and then inject the words) and at the time provided

23 by law."

24

Simply, Judge, the problem that we have is this;

25 the original Act was amended so that a declaration of taking

PAGE 15

could be used by the Highway Department, they could take the

2 property, go ahead and contract and have title to it as the ..

3 federal government was requiring while the appellate procedure

4 was being followed. Sometimes it takes a couple of years for

5 those cases to go through court and if the Highway Department

6 had to wait until the final amount of payment was determined,

7 you couldn't contract for highways. So they put the declara-

8 tion of taking in and we want this understood that you still

9 have to first pay for it. And that's the reason we're going

10 around and around with the language so that we can have a

~

11 EIz:l declaration of taking which would give the State title upon o Q"
12 ~ the filing of a declaration of taking, but it would vest in

,~ ~ ,-'", the property holder a right to a just and reasonable compensa-

14 ~I t1.0n for that property at the same time, but he would be

lI'I
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15 ~ divested of title. That's what the shooting is about.

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16 ~

CHAIRMAN BELL: What we're really trying to do is

oz

17 ~ to provide the constitutional guarantee that just and adequate

I 18 compensation will be paid, but we're leaving it to the

I 19 legislature to determine

20 I

REPRESENTATIVE THOMPSON: How and --

I 21
22

CHAI RMAN BELL: The manner and when it must be paid. JUDGE POWELL: I haven't had a lot of condemnation

23 cases when I was in private practice. I don't know, I have

24 some questions about this. You get a declaration, you get

25 people who are elderly and you have a lot of problems, the

PAGE 16

matter of declaration of need has been declared and people go

2 ahead and take the property, then they have to agonize going

3 over through a lot of litigation to get just and adequate

4 compensation and it makes for a whole lot of problems for

5 citizens, and that bothers me.

6

If I hadn't seen a whole lot -- I represented a lot

7 of people when I was in private practice -- I wouldn't be

8 concerned, but it bothers me.

9

CHAIRMAN BELL: Under the present provision, the

10 declaration of taking method is used, isn't it?

zCI 11 j:
@ i.'o".. w 12 ~r~

MR. HENRY: Yes. JUDGE POWELL: But they have to make a -MR. HENRY: It's limited to -- there was a 1978

14 ~ amendment which brought in public transportation purposes which

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15 oll I believe allowed Marta to condemn land by that method. CI '";;;)
16 ~ Mainly, it's for public road and street purposes, is what the
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17 ~ exception s tates

18

REPRESENTATIVE THOMPSON: Let me ask this, Mike, if

19 we adopted this just as it is, there are still statutes which

20 place limitations on other methods of condemnation which

21 require they be first paid?

22

MR. HENRY: It would take an act by the General

23 Assembly to extend this method to other than those two methods

24 of taking, those two purposes for which property can be taken

25 by that method.

,
!
PAGE 17

REPRESENTATIVE THOMPSON: Then the adoption of this

2 would not change the method of taking that exists today?

3

MR. HENRY: It would take an affirmative act by

4 legislation in the General Assembly to extend the declaration 5 of taking to any other type of condemnation.

6

CHAIRMAN BELL: Why would it, Mike, if the only

7 thing we have in the Constitution -- if we approve this as it

8 is written -- I can't see where you're getting at.

9

MR. HENRY: There's legislation on the books right

10 now.

~

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11 ~

CHAIRMAN BELL: Oh, I see, so they would have to

o

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12 ~affirmativelY change that.

~ _- ~

MR. HODGES: Madam Chairman, speaking to the Judge' s

14 ~ point, i t is a sE!rious point, but I think from what I ':"z:
15 ~understand from a layman point of view and having had to Cl <l: :>
16 ~assist in helping old people being moved from their property
Qz
17 ~in order to overcome the trauma that they have suffered, I

18 it looks to me like what you're doing here is going to the

19 legislature and giving them the power for statutory purposes

20 of control or regulatiQn of the condemnation procedures and

21 payment procedures as opposed to having to go back again and 22 again to the Constitution to overcome the difficulties each 23 time they arise because of some method that has been establishe

24 r bY the legislatLon being struck down, so there is a possibility
25 I that through this, through the adoption of this and the wise

PAGE 18

action of the legislature, that you could probably address

2 more specifically the problems that the Judge has raised than

3 you can right now under the present Constitution.

4

Is that a proper interpretation?

5

CHAIRMAN BELL: I agree with what you said and I

6 think that approach accomplishes what we're trying to

7 accomplish. We don't want to end up proposing things that

8 -- new provisions that are going to require constant amendment

9 the way the old provisions have.

10

JUDGE POWELL: The only thing that I'm saying is

~

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11 ~ that this again puts the power in the legislature to decide
o...
12 ~when and the manner and at the time without having an assurance

~ ~ - on the part of citizens that I do have s orne money somewhere

14 ~ even though how I get the money, the amount of the money, when
'-:"<r 15 I .:l get the money can be controlled by the General Assembly,
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16 ~ they do know that there is some money there for the title of Q z -<
17 ~ my property having been transferred from me to whatever the

18 public utility is. And I think that gives a little more

19 assurance in the minds of a citizen. I've got to go through a

20 procedure, the manner, ten days after the title is taken or

21 maybe sixty days after the title is taken, but at least I

22 know that they money is there and I don't have to wait until

23 I go through the procedure to get the money. You see, if

24 you've got the just compensation, there could be some manner

25 prescribed wherein they could take down something and use it fo

PAGE 19

a down payment on a house some other place and the relocation

2 process, but the way you have it here now, if perhaps the

3 General Assembly decides that they don't want to include in

4 that manner of taking that the public utility first deposits

5 so much amount of money, then that citizen is lost and they

6 have to wait maybe one or two years. And here you've got a

7 poor person out, got to pay rent, even though there's a

8 reimbursement. But you put them under hardship to go borrow

9 money, if they see a house over here that they want, to make

10 a down payment on the house, when they could at least tie i t

11 ~"z down and finalize the procedure at a later date.

..o....

~ 12 ~

You're so uncertain as to what the Gen~ral Assembly

.~ ~ -". is going to do because every two years you're going to have a

14 ~ change.

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15
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REPRESENTATIVE THOMPSON: Let me ask this, the

16 ~problem is if we put in enough language to guarantee everything

zQ
17 ~ that you're talking about in this document and we lock it in

18 there, we're going to have a section a page -- I mean, I'm not

19 saying we shouldn't have page long sections, but the drafting

20 of the language which assures everything that you say, we'd

21 have to put back in there evertying we took out plus some.

22

JUDGE POWELL: No, you just need "just and adequate

23 compensation" or if you just say "without compensation being

24 first paid" and then define it.

25

REPRESENTATIVE THOMPSON: Yes, that's what we -- you

PAGE 20

see we had to amend the Constitution to get that "first paid"

2 out and it had to be amended to get the "first paid" out

3 because of the federal highway money corning in and it requires

4 that the State of Georgia have title prior to the time they

5 can use that money for highway purposes. If the appellate

6 process took one year or two years, then that meant we could

7 not contract the highways because there had been no final

8 determination as to the value of the property. That held

9 up the contractual rights that were needed for highway purposes

10 and that's the reason the exception was placed in it. I

1z:1

11 5don't see how we can operate if we've got to pay the compensa-
o...

@.__.ititle. ~

12 ~tion and it has to be determined prior to the time we can take

14 .~..

JUDGE POWELL: I'm not saying that. Your legislature

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I:

15 ~ can provide the manner. In other words, they could corne up

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16 "~" with a deposit.
az

17 ~

REPRESENTATIVE THOMPSON: That's what this says.

18

JUDGE POWELL: But the manner could be -- because of

19 the change in the composition of the General Assembly every

20 two years or at least the possibility of a change every two

21 years, you've got the possibility that that particular provisior

22 as to the deposit and this kind of thing can be changed.

23

REPRESENTATIVE THOMPSON: You want language placed in

24 there that if there is any undisputed sum, that that amount be

25 paid immediately and only the amount that is in dispute be

PAGE 21

litigated? Is that the type thing you're talking about?

2

JUDGE POWELL: Not necessarily, no. Not necessarily

3 so. I don't see -- at least something should be made

4 available. I think that there ought to be a constitutional 5 guarantee to the individual whose property is being taken, 6 without having to be at the mercy of the General Assembly, 7 that they're going to make some kind of legislative enactment

8 that would guarantee this type of security. That's the only

9 thing that I'm saying. Here you're at the mercy of the

10 legislature.

~

z~

11 ~

MR. HENRY: Presently under the declaration of

o

~

12 ~taking method, at the time of the filing of the declaration

~--. ~Of taking, they are required to pay into the registry of the

14 ~ court their estimated -- granted it is their estimated --

~
x~
15 ~ just and adequate compensation, and I believe the citizen

~

16

=j
~would

have

the

use

of

that,

and

that

would

not preclude

any

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~

17 ~ appeal of that amount, but they would have the use.

18

Now I think what you're saying is that they could

19 take that away too, if they wanted to. By saying they can

20 provide for the time, they could even say you won't even have

21 to put it in the registry of the court any more.

22

JUDGE POWELL: That's right. And that private

23 citizen would not have that right. You know, you make a

24 declaration and go ahead and take the property and there's

25 no assurance --

PAGE 22

REPRESENTATIVE THOMPSON: The present Constitutional

2 provision does not provide what you're saying now.

3

JUDGE POWELL: Doesn't it have "without first paid"?

4

REPRESENTATIVE THOMPSON: But that only applies to

5 certain areas of condemnation, not the whole thing, because

6 there are exceptions placed in there.

7

MR. CARLYLE: My question is, the last sentence of

8 the present Constitution says "The General Assembly may, by

9 law, require the condemnor to make prepayment of just and

10 adequate compensation as a condition precedent . " so on and

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11 ~ so on.
..o....
~ 12 ~
~-,

Is that the kind of guarantee that you want? JUDGE POWELL: Yes. MR. CARLYLE: Even in the present Constitution that

14 ~ seems to be at the discretion of the General Assembly so that

'<:z":

15 ~ the question amounts. to how much do you trust the General

or:
;;)
16 ~III Assembly.

zQ
17 :<ii

CHAI RMAN BELL: The words you just read doesn't

18 give you any rights, i t just commits the legislature to require

19 that.

20

One point is it would seem to me, with respect to

21 what Judge Powell is taking about, I think, as I understand

22 what you're saying, you're thinking about the really extreme

23 kinds of situations where the legislature has not made adequate

24 provision. And I would suggest that very likely if situations

25 like that arose and the General Assembly was not fulfilling the

PAGE 23

intent of this constitutiona provision, that it would be

2 open to the first case that hit the courts for the courts to 3 say the General Assembly is not providing for just and adequate

4 compensation, because it is not just and adequate compensation

5 if these old people don't get compensation for ten years after

6 the property is condemned.

7

JUDGE POWELL: I may be old fashioned, but I don't

8 like to do things that I know is going to open up a lot of

9 keg of worms later on. I mean you say the first case hits the

10 court. Why should we have to have the first case to hit the

11

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i=

court

if we

have

plain

language

that

is

not

disputed.

.'oc"....

.

12 ~

CHAIRMAN BELL: My point on that would be that

~ .._1 perhaps it is better to have a court interpretation which will

14 ~remove any doubt about it, than it is to have a dozen

I-
'" 15 ~ constitutional amendments which keep coming year after year.

"='">

16 .~.. Doug?

Q

17

Z
~

MR. CARLYLE: Judge, do you oppose the current

18 exceptions to the first being paid? Would you like to see

19 the language go back without those exceptions?

20

JUDGE POWELL: Uh-huh.

21

REPRESENTATIVE THOMPSON: You just want everything

22 first being paid in all condemnation proceedings.

23

JUDGE POWELL: Yes. Then the manner and the time

24 provided by law, you would have a right to litigate or to

25 negotiate.

PAGE 24

REPRESENTATIVE THOMPSON: The two things aren't

2 compatible, I don't think. If you're going to put that in,

3 the manner and the time provided by law, that's not the same

4 as being first paid, first being paid. They are diametrically

5 opposed.

6

Do you agree?

7

CHAIRMAN BELL: I agree.

8

REPRESENTATIVE THOMPSON: Madam Chairman, I would

9 suggest that we adjourn this and perhaps let the full

10 committee make a decision on it.

11 ~"z

CHAIRMAN BELL: I think you' re right, I think we

.o..

~""-~!:!I12 ~ almost have to in the present posture.

~

_.

.

MR. CARLYLE: I might suggest one thing, taking into

14 ~ consideration the Judge's concerns with the language as you
'-:"<r
15 q moved it it, that is being amended, and with the addition of
":'"J
16 ~ something like "but in all cases the General Assembly shall
oz -<
17 ~ require the condemnor to make prepayment against adequate

18 compensation" I don't know whether that's an acceptable

19

REPRESENTATIVE THOMPSON: Read that.

20

JUDGE POWELL: That would meet my objection.

21

CHAIRMAN BELL: Would you restate that, Doug, "but

22 in all cases the General Assembly . "

23

MR. CARLYLE: " shall provide that the condemnor

24 make prepayment against adequate compensation as a condition

25 precedent to the exercise of the right of eminent domain."

PAGE 25

REPRESENTATIVE THOMPSON: That still leaves i t

2 what is prepayment, can the General Assembly get in there and

3 say five dollars is prepayment?

4

MR. HENRY: Well it's against just and adequate

5 compensation. I think you would have to have a reasonable

6 estimate of what just and adequate compensation is to make a

7 prepayment of that amount.

8

MR. CARLYLE: You could say "adequate prepayment".

9

REPRESENTATIVE THOMPSON: Well in justice to the

eV

10 General Assembly, you've got people in there who guard the
zCl
11 ~ right of eminent domain more zealously than you would ever.
- ~o l1. 12 ~When we get in there and start talking about this kind of thing
the feathers really fly because you have people trying to

14 ~protect the same people you're concerned about and I can't
III
:r
15 <!I ever perceive of a statute being passed which was not adequatel' Cl ~ ::>
16 '~" or to the best ability of a large number of people -- protect Q z
17 ~ the public. I don't say that about the General Assembly in

18 most areas, but I do say it about the area of eminent domain.

19

I move that we adjourn unless you want to adopt that

20 language.

21

CHAIRMAN BELL: Well there seems to be -- how do

22 you feel about that, Mr. Hodges?

23

MR. HODGES: From the explanation you have given to

24 me, I think what Judge Powell is saying is contained in the

25 wording here and really having watched now for the last several

PAGE 26

years these little constitutional amendments reaching out,

2 they really are almost at the point of being innocuous and

3 really that's what the claim is that they're innocuous. As

4 you heard Judge Bowles say, that's why we need the Constitution

5 itself brought down into a more concise instrument.

6

I just don't think we need to go any further.

7

MR. CARLYLE: Again, I think it becomes a question

8 in the whole constitutional revision process as to how much the

9 people are going to trust the General Assembly. The

10 Constitution acts as a restriction on the General Assembly

Czl

11

i=
o0..<.

and

unless

they

are

otherwise

restricted

they

can't do

it.

12 ~ u

CHAIRMAN BELL: Mr. Chairman?

~1 )~~

REPRESENTATIVE THOMPSON: You talk about the second

! 14 l- sentence, can we go on to that second sentence for a minute?

V:-<r>

15 ~ I don't think we're going to resolve this.

Cl

0<

;:)

16 ~...

CHAIRMAN BELL: Does it meet with everybody's

oz

17 -~< approval then to just defer any further consideration on this

18 provision to the full committee and go on to the second

19 sentence?

20

Mr. Hill was mentioning something with respect to

21 that second sentence. What he was telling me today, what my 22 understanding of it was at the last meeting, that what is 23 presently paragraph 2, not on page 10, but what was paragraph 2 24 on page 8 of the old one, last time we put in a new paragraph

25 2 dealing with private ways. That's not under discussion right

PAGE 27

now. And we were told, or it was my understanding that what

2 was the old paragraph 2, new language was being used for that

3 and it would be included in Article III, and we voted to just

4 completely delete it from Article I.

5

MR. HENRY: Yes, it's properly a power of the General

6 Assembly.

7

CHAIRMAN BELL: We added this second sentence in

8 paragraph I to cover those situations with respect to state

9 payments, which -- it was the general view, I think, that old

10 paragraph 2 did not address itself to state, only to federal

Czl

11 ~ funds.

~

12 ~."o.".

MR. HENRY: It's questionable, as Doug brought out

~- ~in the last meeting, that interpretation that you aa"e af it,

14 ~ the court has also made a similar interpretation although the
VI
:E:
15 ~present legislation under relocation -- or under that paragraph
..IX
:::>
16 ~only provides what is required by federal law, so that there is Q z
17 ~no state relocation assistance right now.

18

CHAIRMAN BELL: Well that was the purpose of our

19 adding the second sentence. I thought that we had finished

20 with that, I didn't realize there were still some problems

21 there.

22

REPRESENTATIVE THOMPSON: Is there any problem?

23

MR. HENRY: With this, with respect to state, I don't

24 know. What I was saying before was that this would not take

25 care of the provision, but this is adding something new, this

PAGE 28

is adding a state relocation --

2

CHAIRMAN BELL: That's what we intended it for.

3

MR. HENRY: I suppose that would be fine.

4

CHAIRMAN BELL: Because we understood that the new

5 language in Article III would be addressing itself to federal

6 situations.

7

MR. HENRY: It would be up to the General Assembly

8 to enact laws to provide for this relocation assistance and

9 this would be separate and apart from just and adequate

10 compensation.

IzII

11 j:
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a.

CHAIRMAN BELL: Right.

12 ~
ii:

MR. CARLYLE: Perhaps even this language in the

j:

,~
u second sentence is bzoad enough to -- I would say it's broad

v>

14

>-
l-

enough

to

include

relocation

assistance

under

federal.

v>

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15 .:l
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MR. HENRY: I wouldn't think so.

1%

J

16 z.'".. Q

MR. CARLYLE: Or state.

Z

~

17

1%
'"

MR. HENRY: I'd say the courts are very jealous of

18 their right to construe just and adequate compensation and

19 they have construed that these relocation assistance payments --

20 they go strictly by an adminstrative procedure and any time

21 someone tries to raise one of the payments that they could

22 otherwise get under the administrative procedure in a 23 condemnation proceeding it's thrown out. They say go back, 24 you've got administrati~remedies, we're not going to provide 25 for it here, and they also -- some of the payments that are made

PAGE 29

under the federal program, I don't think would be the courts 2 would allow under this broad language. I think that they would

3 try and restrict it.

4

CHAIRMAN BELL: But isn't that what the new language

5 in Article III is taking care of?

6

MR. HENRY: It's going to take care of the -- it's

7 going to in effect grandfather in the present entire provision

8 so that we don't change anything.

9

REPRESENTATIVE THOMPSON: Article III is doing that.

10

MR. HENRY: Right.

Cl
11 ~
'o.".. ~ 12 ~ care of.
i ~._-

REPRESENTATIVE THOMPSON:
MR. HENRY, Yes.

And that will be taken

14 !

REPRESENTATIVE THOMPSON: Then we don't have to --

I-
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MR. HENRY: You don't have to deal with it. What

Cl
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16 ~... Doug said could possibly -- his interpretation is just as valid
zQ
17 ~ as mine is, it could possibly take it in.

18

CHAIRMAN BELL: But what that would lead to is we

19 wouldn't need a provision in Article III, it wouldn't mean

20 that there's something wrong with the second sentence in our 21 paragraph.

22

MR. HENRY: No. This provides for state relocation

n assistance, it's fine.

24

MR. CARLYLE: I mentioned that because I have heard

25 that there are difficulties with Article III as to what all is

PAGE 30

-- can happen to it.

2

MR. HENRY: We're going to try and resolve that

3 question this afternoon but y'all don't have to --

4

MR. CARLYLE: But that aside, if the substance of

5 this second sentence is agreeable, it seems to me that 'hot-

6 withstanding any other provision of the constituno~ is

7 unnecessary,and language such as "the General Assembly may

8 provide"

9

REPRESENTATIVE THOMPSON: I'm going down and set

10 up for the other meeting.

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11 l-
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CHAIRMAN BELL: I think we should, with so few of

12 .~.. us, probably the best thing at this point would be to take any

i=
~~~ small change like that up in the full committee, so --

14 >l':<"r

MR. HENRY: One more thing. I think it has been

15

~ Cl

suggested

that when

you're

transferring

things

that you take

ct:

::l

16

...zlIll
Q

care

of

everything

you've

got

in

your

Article

so

if

another

Z

17

<
ct:
lIll Article

fails

--

I

think what will happen

in

the end is you

18 will actually provide -- this Article will actually provide

19 for the relocation assistance provision with a limitation or

20 a condition that if Article III passes, tHS language will be

21 deleted from Article I, but that's a procedure that the staff

22 will work out.

23

CHAIRMAN BELL: If Article III passes and itself

24 specifically takes care of the state funds.

25

MR. HENRY: Yes.

2
3 4 5 6 7 8 9 10
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11 I-
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@;I ! 14 I':"r 15 .:> "IX ;) 16 ~... cz 17 : 18 19 20 21 22 23 24 25

PAGE 31
CHAIRMAN 'BELL: Otherwise it won't.
MR. HENRY: Yes.
(Whereupon, the meeting was adjourned at 9:54 a.m.)

PAGE 32

2

C E R T I F rCA T E

3

4

I, Peggy J. Warren, CVR-CM, CCR No. A-171, do

5 hereby certify that the foregoing 31 pages of transcript

6 represent a true and accurate record of the events which

7 transpired at the time and place set out above.

8

9
10
"z
11 t-
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II.
j:::
~;
U
III
14 >t--
III
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15 .:>
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16 Iz..I.I Q Z
'" 17 III
18

PEGGY J. WARREN, CVR-CM, CCR A-17

19

. 20

21

22

23

24

25

INDEX Committee to Revise Article I Subcommittee Meeting Held on Nov. 9, 1979

SUBCOMMITTEE MEETING ON SECTIONS II &111, 11-9-79

Section III: General Provisions Paragraph ICa-d).: Eminent domain. pp. 3-26 Paragraph ICe): Eminent domain - relocation assistance.

pp. 26-31

STATE OF GEORGIA
COMHITTEE TO REVISE ARTICLE I
of the
CONSTITUTION OF GEORGIA
FULL COHMITTEE
Room 337-B
, Sta,te Cap.l.tol
Atlanta, Georgia, Friday, Novembe~..-tr, 1979 10;00 a.T:t
runhtnburg & i;asty
231 .J'atruttw .nall Utnntnnb. "tllrgia 38849
484 - 414~1748

2
PRESENT HERE:

2

COMMITTEE MEMBERS:

3
REP. ALBERT THOMPSON, CHAIRMAN

4

MS. MILDRED BELL

MR. F. H. BONEY

5

MS. MYRTLE DAVIS

MR. GENE GUERRERO

6

MR. CHEATHAM HODGES

7

MS. LUCY MCGOUGH

MS. VITA R. OSTRANDER

8

HR. ALBERT PEARSON

JUDGE ROMAE POtVELL

9

MR. HOYT H. WHELCHEL, J'R.

10

SELECT COMMITTEE STAfF;

11

MR. MICHAEL HENRY

12

MR. MELVIN HILL

MS. VICKIE GREENBERG

13

OFFICE OF LEGISLATIVE COUNSEL;

14

MR. DOUG CARLYLE

15

MR. LOU LITCHFIELD

16

~-1S CYNTHIA NONIDEZ

17

18

19

20

21

22

23

24

25

3

PRO C E E DIN G S

2

CHAIRMAN THOMPSON: If we can, suppose we get

3 started. I understand we have nine committee members present,

4 which I believe is a quorum and I think we have enough to go.

5 I hope we'll be able to complete all of our deliberations

6 before 1:00 today and for that reason I'm going to push on and

7 I hope we'll be able to go right straight through without any

8 problems arising, I would hope.

9

We have two sections. I think we should first

10 discuss the procedure that we're going to follow. I

11 understand Justice Bowles, who was the Chairman of Section I,

12 will not be present. There was no Vice-Chairman, so we're

13 going to have to take that into consideration. Ms. Bell is

14 here, she had Sections II and III and she can speak for

15 herself.

16

I had hoped that when we -- we would be able to get

17 from the Chairman of each Subsection a motion that the draft

18 that they have adopted would be made the draft of the

19 Committee and then we would go into the discussion of it after

20 we got that on the floor. I had thought that the procedure we

21 would use would be to have the Chairman of the Subcommittee to

22 read the actual language that they're proposing for that

23 section. That's relatively short in each instance. It won't

24 take but just a second to do so and if there were no

25 objections to that language -- I would ask you if there are

4

any objections to it. If there are no objections to it and no

2 one wishes to discuss it we would consider that particular

3 section as being adopted. i thought we could do that without

4 formal motions for each one of the sections because the motion

5 is going to be to adopt each of the sections in total, the 6 whole thing. So we will have a motion to adopt the whole

7 thing, but we will perfect it or amend it as we go along

8 paragraph by paragraph without having a lot of motions and a

9 lot of formalities. But I don't think that would cut anyone

10 off from having any discussion that he wished to have

11 pertaining to that section, but yet and still we could move on

12 more expeditiously with the business of the Committee. Does

13 anyone object to that particular format?

14

MR. HODGES: Let me ask a question since I walked in

15 in the middle. You're saying that the whole first section

16

CHAIRMAN THOMPSON: I'd like a motion that the whole

17 first section be adopted.

18

MR. HODGES: May I ask a question since I missed the

19 last meeting on that? There were some questions about

20 revisions with regard to certain of the paragraphs in that

21 section.

22

CHAIRMAN THOMPSON: The only reason I'm requesting

23 the motion is so we can get it on the floor and we can discuss

24 the revisions.

25

MR. HODGES: Okay.

5

CHAIRMAN THOMPSON: That would not cut off any

2 discussion at all.

3

JUDGE POWELL: May I ask a question?

4

CHAIRMAN THOMPSON: Yes, Judge.

5

JUDGE POWELL: The second working draft then dated

6 November the 9th is the one that you will accept a motion on?

7

CHAIRMAN THOMPSON: November the 9th is what we would

8 be accepting a motion on. Does everyone have that draft?

9

All right. Mr. Hodges has moved -- Go ahead, Judge.

10

JUDGE POWELL: Where you have in parenthesis (for

11 further study), does this mean that this is the final thing?

12

CHAIRMAN THOMPSON: This is for further study right

13 now.

14

JUDGE POWELL: Okay.

15

CHAIRMAN THOMPSON: If we adopt these things we adopt

16 -- we wipe out that for further study. That just indicates

17 that there were some questions left the last time we had a

18 meeting.

19

All right. There is a motion on the floor that we

20 adopt Section I of Article I, do I hear a second?

21

MR. OSTRANDER: I second.

22

CHAIRMAN THOMPSON: It has been properly seconded.

23 The house is now open for discussion. Now what I've proposed

24 further to do -- Justice Bowles is not here. Would someone

25 for him read each of these paragraphs? I don't think it would

6

take very long to do it, read that language and then if the

2 staff has some comments, if there are editorial comments, Mr.

3 Hill would then read the staff's comments and then we'll

4 discuss it. We'll have everything before us that has been

5 written and we could discuss it. I will ask if there are any

6 objections to the adoption of this as written, and if there

7 are no objections we'll go on to the next section.

8

Mr. Guerrero, would you read for me, starting with

9 Section I, Paragraph I, Rights of People?

10

MR. GUERRERO: Paragraph I would read: "Equal

11 Protection. No person shall be deprived of life, liberty or

12 property without due process of law, nor be denied the equal

13 protection of the laws, nor be denied the enjoyment of one's

14 civil rights, nor be discriminated against in the exercise

15 thereof because of race, sex, national origin religion or

16 ancestry."

17

CHAIRMAN THOMPSON: Mr. Hill, there were some

18 editorial comments?

19

MR. HILL: Yes. This language was first proposed in

20 the 1970 proposed Constitution which passed the House of

21 Representatives. There was a request, and I think each of you

22 got and should have received a copy of a letter we received

23 from the League of Women Voters specifically requesting a

24 provision of this kind. That was independent of the

25 Committee's judgment. The Committee came to its own decision

7

on this. It was not a unanimous recommendation in that

2 Committee, but as I said, this does incorporate language from

3 the previous proposal.

4

CHAIRMAN THOMPSON: Is there any objection to the

5 adoption of this section?

6

MR. HODGES: Mr. Chairman, further discussion. How

7 does the legislation -- I'm thinking about getting this

8 through now as we're proposing.

9

CHAIRMAN THOMPSON: Let me say this about the

10 legislation. This was in the 1976 proposal and it passed the

11 House of Representatives.

12

MR. HODGES: There's no confusion with this so that

13 we can have the pro and con fighting over this Constitution

14 with regard to ERA.

15

CHAIRMAN THOMPSON: Mr. -- Cheatham, I couldn't

16 guarantee anything.

17

MR. HODGES: I know you can't guarantee anything that

18 takes place in the hall, but the language is not that similar,

19 is it? I don't see it as that similar.

20

CHAIRMAN THOMPSON: The Equal Rights Amendment

21 doesn't really say anything except that Congress shall make no

22 laws discriminating against women because of their sex.

23 That's what the Equal Rights Amendment says and it really

24 doesn't say anything. All the rhetoric you've heard about the

25 Equal Rights Amendment is stuff that people have read into

8

that. This could be considered an Equal Rights Amendment if

2 that's the way you want to look at it. I don't know how you

3 want to look at it.

4

MR. HODGES: I'm asking the question for information.

5

CHAIRMAN THOMPSON: Some people would say this would

6 be it, I'm quite certain.

7

MS. MCGOUGH: As Mr. Guerrero read it, he read it as

8 equal protection. Its title now from our Subcommittee comes

9 to you as "Due Process; Equal Protection".

10

MR. GUERRERO: I'm sorry, I missed that.

11

MS. MCGOUGH: Well that's not on the draft.

12

CHAIRMAN THOMPSON: It is "Due Process; Equal

13 Protection". Both of them are on there. Is there any

14 objection to adopting this section or is there any further

15 discussion of it? Hearing no objection and no further

16 discussion, that section is adopted.

17

We'll go on to the next one. Would you read

18 Paragraph II?

19

MR. GUERRERO: Paragraph II, "Freedom of Conscience.

20 All people have the natural and inalienable right to worship 21 God, each according to the dictates of the individual's own

22 conscience and no human authority should, in any case, control

23 or interfere with such right of conscience."

24

CHAIRMAN THOMPSON: Is there any objection to the

25 adoption of this paragraph? Does anyone wish to discuss it?

9

Hearing no objection, Paragraph II is adopted.

2

Would you please read Paragraph III?

3

MR. GUERRERO: "Religious Opinions; Freedom of

4 Conscience. No inhabitant of this state shall be molested in

5 person or property, or be prohibited from holding any public

6 office, or trust, on account of the individual's religious

7 opinions; but the right of freedom of conscience shall not be

8 so construed as to excuse acts of licentiousness, or justify

9 practices inconsistent with the peace and safety of the

10 State. II

11

CHAIRMAN THOMPSON: Is there any discussion?

12

MS. BELL: I have a question as to the purpose of

13 changing State with a capital letter to state with a small

14 letter.

15

CHAIRMAN THOMPSON: I notice it's been done

16 throughout the document.

17

MS. BELL: It seems to me more appropriate in the

18 Constitution to have state capitalized.

19

MS. NONIDEZ: Mr. Chairman, as I think may have been

20 mentioned earlier, we are going through a Code revision, a 21 recompilation of the statutes of Georgia. Some decisions had

22 to be made with regard to editorial style. That Code Revision

23 Commission adopted a certain style that has been accepted by

24 the other Article Revision Committees to follow suit in

25 revision of the Constitution, we would follow the style

10

adopted by the Code Revision Commission. So it's that

2 Commission that has determined this style. I understand your

3 reaction.

4

MR. HODGES: I have the same problem, but from the

5 opposite point of view. From the Code Revision, if we're

6 talking about a principal person, place or thing

in this

7 case we're talking about a principal thing, the state, which

8 is an entity which of itself means that it should be

9 capitalized. You know, you can defer to the code

10 modifications and such as that but it's just poor grammar. If

11 you're talking about the State of Georgia the State of Georgia

12 is a principal thing and should be capitalized and I think we

13 ought to go with that throughout the Constitution.

14

CHAIRMAN THOMPSON: You want to make a motion to that

15 effect?

16

MR. HODGES: I move that.

17

CHAIRMAN THOMPSON: Do I hear a second?

18

MS. BELL: I second.

19

CHAIRMAN THOMPSON: It's moved and seconded. For

20 purposes of Article I, wherever the word state appears that it

21 be capitalized, is that in essence what you're saying?

22

MR. HODGES: Meaning the State of Georgia.

23

CHAIRMAN THOMPSON: Meaning the State of Georgia as

24 opposed to -- All in favor let it be known by saying aye.

25

(Ayes. )

'-------------------------------------------

11

Those opposed by the same sign.

2

MR. MCGOUGH: No.

3

CHAIRMAN THOMPSON: We better have a show of hands.

4

All in favor let it be known by raising your hands.

5 Three votes. Those opposed, by raising your hands. One, two,

6 three, four.

7

All right. The motion is lost.

8

Is there any further objection to the adoption of

9 Paragraph III? Hearing no further objection, Paragraph III is

10 adopted.

11

Paragraph IV, Mr. Guerrero.

12

MR. GUERRERO: "Freedom of Speech or of the Press

13 Guaranteed. No law shall ever be passed to curtail, or

14 restrain the freedom of speech, or of the press; any person

15 being responsible for the abuse of that freedom may speak, 16 write and publish one's sentiments on all subjects."

17

CHAIRMAN THOMPSON: Is there any discussion of

18 Paragraph IV?

19

MR. BONEY: Paragraph IV, read that again please. I

20 don't think my copy looks like that.

21

MR. GUERRERO: Let me try again. "Freedom of Speech

22 or of the Press Guaranteed. No law shall ever be passed to

23 curtail, or restrain the freedom of speech, or of the press;

24 any person being responsible for the abuse of that freedom may

25 speak, write and publish one's sentiments on all sUbjects."

12

MS. BELL:: I don't understand it.

2

CHAIRMAN THOMPSON: That language, there's something

3 wrong with it.

4

MR. BONEY: That didn't turn out like we thought it

5 would.

6

MS. MCGOUGH: Let's go back --

7

MR. HILL: Cindy, do you know why this change was

8 made?

9

MS. NONIDEZ: Yeah. The last clause, "being

10 responsible for the abuse of that liberty", does not modify

11 subjects, it modifies persons and that was why it was moved up

12 to person. It's awkward regardless, but --

13

CHAIRMAN THOMPSON: If you put a period there and

14 made that a capital

15

MS. BELL: Couldn't the phrase be less awkward by

16 saying every person may speak right and publish -- Oh, we get

17 to gender there. Each person may speak right and publish

18

CHAIRMAN THOMPSON: Why don't you say a person?

19

MS. BELL: All persons may speak right and publish

20 their sentiments on all subjects, but shall be responsible for 21 the abuse of that freedom.

22

MR. PEARSON: I think that's grammatically

23

MR. BONEY: That would sound better.

24

MR. GUERRERO: Why did we change it in the first

25 place?

13

MR. MCGOUGH: It's a dangling modifier.

2

CHAIRMAN THOMPSON: Would you say that again so that

3

the recorder --

4

MS. BELL: All persons may speak right and publish

5 their sentiments on all subjects but shall be responsible for

6 the abuse of that freedom.

7

CHAIRMAN THOMPSON: You got that, Mr. Hill?

8

MR. HILL: Yes.

9

CHAIRMAN THOMPSON: All right. Is there any

10 objection to adopting this paragraph with the amendment that

11 we have just made? Hearing no objection, Paragraph III

12 Paragraph IV is adopted.

13

Paragraph V.

14

MR. GUERRERO: "Libel. In all civil or criminal

15 actions for libel the truth may be given in evidence; and the

16 trier of the facts, under the direction of the court, shall

17 determine the law and the facts and if it shall appear to the

18 trier of the facts that the matter charged as libelous is true

19 the party shall be discharged."

20

CHAIRMAN THOMPSON: Didn't you have something on

21 that, Mel?

22

MR. HILL: Yes. This paragraph was rewritten to

23 clarify the fact that it covers civil -- in this case covers

24 civil as well as criminal offenses and to clarify also the

25 effect of truth as a defense and it was moved -- this

14

paragraph was moved to follow Freedom of Speech because it

2 seemed to be a qualifier of the Freedom of Speech and more

3 logically would fall there. There was some confusion under

4 the prior wording about whether this would cover civil cases

5 as well and the feeling of the committee was that it should

6 cover both civil or criminal and it was restated to do that.

1

MS. BELL: Is a provision like this really needed in

8 the Constitution?

9

MR. HILL: It's common. Almost every Bill of Rights

10 has a provision about libel and truth as a defense.

11

CHAIRMAN THOMPSON: I guess it's part of the Freedom

12 of Speech type thing.

13

MR. BONEY: The thing that puzzles me about it now,

14 and it looks like we've got it kind of ambiguous here, we're

15 saying under the direction of the court, then we're saying the

16 trier of the facts. We're using the trier of the facts there

11 one time under the direction of the court and then we're

18 giving the trier of the facts the same authority without the

19 direction of the court. I'm not sure we need the direction of

20 the court there.

21

CHAIRMAN THOMPSON: It could be the court or --

22

MR. WHELCHEL: I think we stuck it in there because

23 of the fact we were concerned about the triers of the fact

24 construing the law.

25

MR. BONEY: Okay. I don't oppose that at all, but

- -_._----------_.._----------------------_._------15

the way it looks to me like -- the way we have it here now,

2 giving the trier of the facts under the direction of the

3 courts, that would be a jury of course. If we didn't have a

4 jury trial then the judge could do it, but it would seem to me

5 some way, maybe at the end of it, we could say under approval

6 of the court or something. I think I'm not opposed to the

7 principle at all but it seems like it's kind of awkwardly

8 worded to me. I'm not opposed to the substance of it at all,

9 but here we're saying under the direction of the court if you

10 have a jury.

11

MR. PEARSON: My question is in the first independent

12 clause I was doubtful about the addition of the language after

13 the word "evidence" because it seems to me implicit in our

14 jUdiciary system that the trier of the facts under the

15 direction of the court is going to determine the law and the 16 facts. I would say strike that language, put a semicolon

17 there and then add the remainder of the sentence.

18

CHAIRMAN THOMPSON: " and if it shall appear "?

19

MR. PEARSON: Yeah. I think the trier of the facts

20 under the direction of the court shall determine the law. We

21 can presuppose that.

22

MR. WHELCHEL: The only reason for putting it in

23 there was to clarify the fact that the trier of the facts was 24 not to be the judge of the law.

25

MS. BELL: Are we saying anything more than that?

MR. WHELCHEL: Your suggestion may be a good one.

2

MR. PEARSON: I would say leave it out, I think that

3 we don't really change anything fundamental and it certainly

4 reads a lot more smoothly. I think the meaning is -- it's

5 less cumbersome and I think the meaning is the same so I would

6 have it read as follows: "In all civil and criminal actions-

7 for libel, the truth may be given in evidence; and if it shall

8 appear to the trier of the facts, whether judge or jury

9 that's my parenthetical -- that the matter charged is a 10 libelous truth, the party shall be discharged."

11

MS. BELL: Are we then saying anything more than that

12 truth shall be an absolute defense in any civil or criminal

13 action for libel?

14

MR. PEARSON: No.

15

MR. BONEY: That's all we're saying.

16

MR. HILL: Well we got into the question of what the

17 effect of an absolute defense is though. You see this is

18 clear to anyone, you know, a non-lawyer as well, that if the

19 truth is given and it is found to be the truth, the party

20 shall be discharged. It just seemed like it was more clearly

21 acceptable --

22

MR. PEARSON: Under some standards, I think it is

23 possible to say something that was truthful but was said with

24 scurrilous motives and that would, under some old theories of

25 libel, used to be a ground for cUlpability. In other words, a

1---------
17

truthful bad purpose statement in some contexts used to be the

2 basis for liability. So this is something that may not be

3 necessary any more as a matter of substantive law, but I think

4 at the time the concept was developed, it was in response to a

5 problem with the status of libel theory.

6

MS. BELL: Well, AI, are you suggesting that we

7 perpetuate that?

8

MR. PEARSON: Yeah, we don't want to change the basic

9 rule, we're really sort of restating black letter law I guess

10 as it would exist in Georgia anyway.

11

MS. MCGOUGH: But not only that, we're removing the

12 power from the legislature to abolish truth as a defense.

13

MS. BELL: I'm in favor of it, but saying truth shall

14 be an absolute defense takes care of it, in all civil and

15 criminal actions for libel. To me that's more understandable

16 than the language that's used.

17

CHAIRMAN THOMPSON: In all civil or criminal actions

18 for libel, the truth may be given --

19

MS. BELL: No, I'm not suggesting we say the truth

20 may be given in evidence --

I
21

CHAIRMAN THOMPSON: In all civil and criminal actions

22 for libel the truth shall be an absolute defense, is that the

23 way you want it to read?

24

MS. BELL: That's essentially it.

25

MR. PEARSON: Well that's an aWfully -- I think

1 18

that's the thrust. I like phrasing it in procedural terms,

2 you know, frankly.

3

MS. BELL: I don't care for that in the Constitution.

4 Is there any action of any sort, libel or anything else where

5 the truth may not be given in evidence?

6

MR. LITCHFIELD: The rights of privacy of certain

7

MS. BELL: You can't give evidence of the truth.

8

MR. PEARSON: The truth is irrelevant.

9

MS. BELL: It may be irrelevant.

10

MR. PEARSON: But if it's irrelevant it can't be

11 given in evidence.

12

MS. BELL: Isn't it unnecessary to say the truth may

13 be given in evidence? Truth may be asserted as a defense is

14 all right, but to say truth may be given in evidence?

15

MR. LITCHFIELD: I'd have to think about that a

16 minute, but I think that certain new forms of action are

17 developing in the Right to Privacy actions where truth is not

18 a defense and therefore is irrelevant evidence. There are

19 lots of new type actions that are being developed where truth

20 is no longer an absolute defense, or maybe could even be 21 excluded as not being relevant.

22

MS. BELL: Well of course, I'd have to agree with

23 that if it's irrelevant, you wouldn't get it in evidence, but

24 you wouldn't in any action. What we're trying to say here is

25 that it's a defense and what we're saying is that it may be

~-~._---------,
19

given in evidence.

2

MR. PEARSON: Well alternative phraseology would be

3 "In all civil or criminal actions for libel, if it shall

4 appear to the trier of the facts that the matter charged as

5 libelous is true, the party shall be discharged."

6

MS. BELL: I could go along with that.

7

CHAIRMAN THOMPSON: Well to accomplish that you would

8 just strike the phrase before the language that you wanted to

9 strike? Take "the truth may be given in evidence" out?

10

MR. PEARSON: I would strike that, I would strike the

11 word "and" and the comma after "and" and just conclude the

12 sentence, n if it shall appear to the trier of the facts

13 that the matter charged as libelous is true, the party shall

14 be discharged."

15

MS. BELL: You're retaining the first and the last?

16

MR. WHELCHEL: Does that suit you, Mr. Boney?

17

MR. BONEY: Let's hear it one more time, the final

18 thing that you're proposing.

19

MR. PEARSON: Do you want me to redo the whole thing?

20

MR. BONEY: Please.

21

MR. PEARSON: The way I think we're going to come

22 down is this, "In all civil or criminal actions for libel, if

23 it shall appear to the trier of the facts that the matter

24 charged as libelous is true, the party shall be discharged."

25

MR. HODGES: That's not what you said the first time.

20

CHAIRMAN THOMPSON: That's not what he said at first,

2 but that's what Ms. Bell says.

3

MR. HODGES: Well you see, why in this case -- I'm

4 following his line of argument now because I can see the

5 argument developing on a higher legal plane here rather than

6 from a layman point of view, but why after the contemplation

7 that he gave regarding the truth may be given in evidence, did

8 by virtue of talking of procedural developments occurring did 9 he drop out "the truth may be given in evidence" because it is 10 what the Constitution states upon which procedure will be 11 performed and it's not that the Constitution should be written

12 in order to acommodate procedure, so I would rather just

13 following that point of view, I would rather him do what he

14 did originally and leave the "truth may be given in evidence"

15 in there and then exclude the other points because then you

16 are establishing procedure through the Constitution.

17

CHAIRMAN THOMPSON: Does everybody understand the two

18 positions that we have before us now? One is that the

19 language the "truth may be given in evidence" be left out and

20 the other is that that language be left in. We need to 21 resolve this. May we have a motion that we do it one way or 22 the other so that it can either stand or fall?

23

MR. PEARSON: I would like to move that Paragraph V

24 be phrased the way I first suggested it which is to leave the

25 "truth may be given in evidence; and if it shall appear to the

21

trier", etc., etc., "the party shall be discharged".

2

CHAIRMAN THOMPSON: Is there a second?

3

JUDGE POWELL: I second it.

4

CHAIRMAN THOMPSON: There is a motion -- it has been

5 moved and seconded that this paragraph shall read: "Libel.

6 In all civil or criminal cases, actions for libel, the truth

7 may be given in evidence; and if it shall appear to the trier

8 of the facts that the matter charged as libelous is true, the

9 party shall be discharged." That is the motion. All in

10 favor, let it be known by raising your hands.

11

(Votes case.)

12

CHAIRMAN THOMPSON: That is unanimous, I believe.

13

MR. PEARSON: Mr. Chairman, you read, "In all civil

14 or criminal cases for libel ", you meant "actions for

15 libel".

16

CHAIRMAN THOMPSON: I misread it, the language as

17 written there is what the motion was. And the motion passed.

18

will you please read paragraph VI?

19

MR. GUERRERO: Arms; Right to Keep and Bear. The

20 right of the people to keep and bear arms shall not be 21 infringed but the General Assembly shall have power to

22 prescribe the manner in which arms may be borne."

23

CHAIRMAN THOMPSON: Is there any objection to this

24 section?

25

(No response.)

22

CHAIRMAN THOMPSON: Hearing none, we go on to the

2 next. I'm pausing a short time, if you will notice, after I

3 ask the question, so if you have some objections you've got

4 time to state them. After I pause for a short time, I'm going

5 on.

6

Next paragraph.

7

MR. GUERRERO: "Right to Assemble and Petition. The

8 people have the right to assemble peaceably for their common 9 good and to apply to those vested with the powers of 10 government for redress of grievances by petition or

11 remonstrance."

12

MS. MCGOUGH: I have discussion.

13

CHAIRMAN THOMPSON: All right.

14

MS. MCGOUGH: I objected to remonstrance in the

15 Subcommittee and I continue to object to it because I don't

16 think anybody understands what it means. If we're rewriting

17 for the layman I would like to propose -- By the way, we

18 looked up in the Subcommittee what remonstrance means and

19 apparently it encompasses almost everything else except

20 written petition. It's a very vague term, orally, by action 21 or in writing. I don't know ~hy we couldn't simply say what 22 is said through "for redress of grievances", period, why we

23 limit it since we have already put the limitation of peaceable

24 assembly -- why there is any necessary for adding "by petition

25 or remonstrance" since I think they're included in the

23

application for redress.

2

MR. HODGES: Doesn't it stand for what the professor

3 says that the Legislature really is now being vested with the 4 right to establish the procedure through which grievances may 5 be expressed, you're really mandating to them to do so? By 6 putting "petition or remonstrance" in you're giving them a

7 specific way

8

MS. MCGOUGH: I'm not sure "petition or remonstrance"

9 limits. I don't think it's limiting at all. If you want to 10 do remonstrance one more time --

11

CHAIRMAN THOMPSON: I think what we're saying is

12 they've got a right --

13

MR. MCGOUGH: I think it's unnecessary. "Petition or

14 remonstrance" says exactly the same thing as to apply to those

15 vested and I'm concerned about our duty to rewrite this in 16 layman's terms to leave this thing in since I heard it twice 17 and still don't remember what remonstrance means.

18

MS. BELL: I don't really have a clear item what it

19 would mean.

20

MS. MCGOUGH: Let's hear it for remonstrance.

21

MR. CARLYLE: I'll read Black's.

22

CHAIRMAN THOMPSON: What does Black's say

23 remonstrance means?

24

MR. CARLYLE: Expostulation, showing of reasons

25 against something proposed, representation made to a court or

24

a legislative body wherein certain persons unite urging that a

2 contemplated measure be not adopted or passed.

3

MS. MCGOUGH: See, it does not say anything about

4 method. It just says desired changes.

5

JUDGE POWELL: It says to court too.

6

MS. MCGOUGH: Court or legislative body. We've got

7 powers of government which is broader.

8

JUDGE POWELL: Yeah.

9

CHAIRMAN THOMPSON: All right. What is your

10 pleasure? Has it been adequate discussed? The chair will

11 entertain a motion.

12

MR. BONEY: I move to leave it as written.

13

CHAIRMAN THOMPSON: There's a motion that it be left

14 as written, is that motion seconded?

15

MR. PEARSON: Second it.

16

CHAIRMAN THOMPSON: It's been moved and seconded that

17 Paragraph 7 be adopted as written. All in favor let it be

18 known by raising your hands. One, two, three.

19

Those opposed?

20

Let's have it again. All those in favor of that

21 motion let it be known by raising your hand. One, two, three,

22 four.

23

Those opposed will you please raise your hands? One,

24 two, three, four.

25

MR. GUERRERO: It doesn't make any difference to me.

r----.--------------------.------------.---...,
25

CHAIRMAN THOMPSON: It doesn't make much difference

2 to the Chairman, but the chair has got to vote one way or the

3 other. I'm going to vote against the motion and if I could

4 make an explanation as to why I'm voting against the motion.

5 I'm in favor of simplifying this document as much as possible

6 and making the language as clear as possible. I think that

7 the language as it is now is a bit vague. Do I hear a motion

8 that we have other language?

9

MS. BELL: I move that the language be changed to

10 read: The people have the right to assemble peaceably for

11 their common good and to apply by petition to those vested

12 with the powers of government for redress of grievances.

13

MS. MCGOUGH: May I speak against that?

14

MR. BONEY: The only thing I would object to that

15 would be they might want to apply without written petition. 16 You may have an oral or a committee, you might want to appear

17 before some legislative committee.

18

MS. BELL: This wouldn't preclude that. It would

19 just insure that they have a constitutional right to do it by

20 petition. It wouldn't preclude doing it.

21

MR. BONEY: When you get to interpreting the

22 Constitution sometimes they say well if they wanted to do it

23 any other way they would have specifically said so. That was

24 the basis for my motion a minute ago. I have no objection to

25 people petitioning, corning orally, and that was why I wanted

26

the word maybe remonstrance because we hadn't come up with a

2 better word, just to give them a right to come in writing, in

3 person or any other way. That was my only reason.

4

JUDGE POWELL: Don't you think apply presupposes

5 manners of which that grievance can be addressed and if the

6 powers of government that people are objecting to, anything

7 about those powers, that they can prescribe whatever manner

8 they want to prescribe for grievances to be changed -9 addressed. So we say apply, that in my opinion gives leeway 10 for people to use methods and means as that power would so 11 prescribe.

12

MR. BONEY: Well I think it would imply that but I

13 don't want to leave it to the Legislature or the governing

14 bodies to specifically say how we can do it. We've got that

15 right anyway. We've got that inherent right to go either in

16 writing or in person. That was my point.

17

MR. HODGES: Why not say that? Why not change her

18 word "petition" to apply in writing or in person?

19

MR. BONEY: That would suit me fine.

20

MS. BELL: To apply by petition or in person?

21

CHAIRMAN THOMPSON: Let me ask, would the word

22 remonstrance carry with it the picketing of a legislative body

23 and nothing else here would correspond to that?

24

MR. PEARSON: I think that's the symbolic speech

25 idea, what is captured in the term remonstrance. You can

_.- ------------ -------,
27

stand outside with your little sign.

2

MS. MCGOUGH: But if you say apply in person you

3 certainly can too and everybody knows what it means whereas

4 you're saying at 2:00 we're have a remonstrance at the State

5 Capitol.

6

MR. WHELCHEL: I bet you could get out the crowd

7 though.

8

MR. PEARSON: You know, I'm not going to vote for

9 anything that leaves out the word petition. I think the idea

10 of petitioning government is not only a fundamental right, I

11 think it's language that so clearly captures that that it's

12 got to be in and I'm not going to vote for this paragraph

13 without that language in there. Now you may quibble about

14 remonstrance but I think the term carries a different

15 connotation than petition and I think that idea has got to be

16 in there somewhere.

17

CHAIRMAN THOMPSON: But would remonstrance -- I might

18 change my vote really if we're going to picketing and that

19 type thing that would be covered remonstrance.

20

MS. MCGOUGH: What if we said Ms. -- if Ms. Bell

21 would accept an amendment to her motion to apply by petition

22 or in person to those vested?

23

MS. BELL: Yes, I accept that.

24

-- MR. HILL: Does that imply a formal You know, the

25 thing that Al was implying, I think, is that the term

28

remonstrance implies ad hoc kinds of activity standing out

2 there with a sign as opposed to applying by petition or in

3 person. It sounds like you're going to be absorbed into a

4 system. I don't think that's what you want to say.

5

MR. BONEY: To me remonstrance would give you more

6 liberty, more right to express your grievances than petition

7 in writing or in person.

8

CHAIRMAN THOMPSON: Let's do it this way. There is a

9 motion, was that motion seconded?

10

MR. WHELCHEL: Excuse me, Mr. Chairman, but didn't we

11 vote on this thing?

12

CHAIRMAN THOMPSON: We voted one motion down. We had

13 a second motion.

14

MR. WHELCHEL: You voted against the motion?

15

CHAIRMAN THOMPSON: I'm sorry I did now because we

16 could have resolved it if I had not voted against that motion.

17

MR. WHELCHEL: Okay.

18

CHAIRMAN THOMPSON: But I'm hoist on my own petard.

19 I wish I hadn't voted that way now but I can't help that.

20

MR. BONEY: Why don't we make a motion for

21 reconsideration.

22

MR. GUERRERO: I second.

23

CHAIRMAN THOMPSON: It's been seconded. All in favor

24 of the motion for reconsideration let it be known by raising

25 your hands. One, two, three, four, five, six. That's a

29

majority. Okay.

2

Well where does that put us?

3

MR. BONEY: I'll restate my motion. I move that it

4 be adopted as written.

5

CHAIRMAN THOMPSON: All right. It's moved that it be

6 adopted as written.

7

MR. GUERRERO: I second.

8

CHAIRMAN THOMPSON: It's moved and seconded that it

9 be adopted as written. All in favor let it be known by

10 raising your hands. Do that again please. Six.

11

All those opposed let it be known by raising your

12 hands. One, two, three, four.

13

CHAIRMAN THOMPSON: Six to four, it's carried.

14

Let me say this, the chair might seem a little high

15 handed on some of these things but we're going to have to 16 resolve these matters one way or another. I know no way to do

17 it other than by a show of hands and voting on it. That means

18 the majority is going to rule in some instances but that's the

19 way it's going to be. That's the way it must be.

20

We'll go on to Paragraph VIII.

21

MR. GUERRERO: "Attainder; Ex Post Facto and

22 Retroactive Laws. No bill of attainder, ex post facto law,

23 retroactive law, or law impairing the obligation of contracts,

24 or making irrevocable grant of special privileges or

25 immunities, shall be passed. 1I

30

CHAIRMAN THOMPSON: Is there any comment on that? Is

2 there any objection to that language?

3

MS. BELL: Just a minute before we go on.

4

CHAIRMAN THOMPSON: Do I hear an objection?

5

MS. MCGOUGH: Wait just a minute.

6

MS. BELL: Wait just a moment.

7

MS. MCGOUGH:: Aren't we missing an article, an a or

8 the or making irrevocable a grant of special privileges or

9 immunities shall be passed, making irrevocable grant? That's

10 a tiny thing but

11

MS. BELL: I think we need an "s" on law "or laws

12 impairing the obligation of contracts or making irrevocable

13 grant"

14

CHAIRMAN THOMPSON: I don't think so.

15

MR. PEARSON: Parallelism would require that you have

16 laws before and after or law before and after the or. So law

17 impairing is consistent with retroactive law and Ex Post

18 Facto Law.

19

MS. BELL: But then you need law down there or law

20 making irrevocable grant. If you're referring to both of

21 those you're referring to laws.

22

MR. PEARSON: I don't see your reasoning on that law

23 impairing the obligation of contracts or making irrevocable a

24 grant of special privileges.

25

MS. BELL: You're talking about limiting ex post

1

--

- - - - - ------

----,

31

facto law, retroactive law or laws impairing the obligations

2 of contracts or making irrevocable grant of special

3 privileges. You're talking about two kinds of laws.

4

MR. HILL: But it says no, it's no bill of attainder,

5 no ex post facto law, no retroactive law or no law impairing 6 the obligation of contracts or making irrevocable grants shall

7 be passed. I think the no carries over to all of those which

8 is why the singular may be proper.

9

MR. PEARSON: As far as the impairing the contracts

10 or making irrevocable grant of special privileges, both of

11 those can refer back to a singular word, law. It's like

12 either/or requires a singular

13

JUDGE POWELL: She's putting obligation and

14 irrevocable grant in the same context.

15

CHAIRMAN THOMPSON: Is it grammatically incorrect as

16 it's written? Are we talking now really about grammar rather

17 than the substance?

18

MR. HODGES: The comma between contracts and making

19 irrevocable grant has been removed and that's where the

20 confusion is coming in. With that removed, I think it's

21 correct.

22

CHAIRMAN THOMPSON:: Let me ask this. Are we going

23 to flyspeck this for grammar?

24

JUDGE POWELL: Commas have a different meaning, you

25 put a different connotation on what you're talking about with

32

commas.

2

CHAIRMAN THOMPSON: Well how do you propose that we

3 cure this?

4

JUDGE POWELL: Take the comma out of contracts I

5 think that it would have complete clarification for obligation

6 of irrevocable grant to be under the law.

7

MR. WHELCHEL: They're saying the or takes the place

8 of a comma.

9

CHAIRMAN THOMPSON: Do you want to remove the comma

10 after contracts, is that what you're suggesting?

11

MR. BONEY: I move its adoption as written with the

12 commas stricken, one after contracts and immunity, as I

13 understood it to be.

14

MR. WHELCHEL: I'll second it.

15

JUDGE POWELL: I'll second it.

16

CHAIRMAN SNOW: All in favor let it be known by

17 raising your hands. One, two, three, four, five, six, seven.

18

Opposed?

19

(No response.)

20

MR. GUERRERO: "Right to the Courts. No person shall

21 be deprived of the right to prosecute or defend, either in

22 person or by attorney, one's own cause in any of the courts of

23 this State."

24

MR. HILL: There's a major change in this section.

25 Justice Bowles, who is the Chairman of the Subcommittee

-------------------------------...., 33

assigned to this, was very concerned with situations that have

2 arisen where a defendant will at some point in the trial --

3 Albert, help me here if I misspeak, but at some point during

4 the trial will assert his constitutional right to have

5 co-counselor to remove his counsel and Justice Bowles felt

6 that it has created a lot of problems procedurally for the

7 courts and he didn't feel that the original attention of the

8 draftsmen of this document really was to allow what is

9 happening now to happen. Can you expand on that, Albert?

10

MR. BONEY: I think I can help a little bit on that

11 one maybe. It's been before the Supreme Court for

12 consideration. A person was appointed counsel to represent

13 him, counsel gets along in the middle of the trial, counsel

14 wants to do one thing and the defendant says oh, no, we're not

15 going to do that, I'm going to do it and he says I want to

16 make the final argument -- well I want to make the final

17 argument, we want to put you on the stand; no I don't want to

18 get on the stand. In other words, it reaches a point before

19 the court who's going to have the final say-so. In any trial,

20 if you have multiple counsel representing the defendant,

21 somebody has got to call the last shot. You can't just have a 22 little caucus there and say we're going to vote on it,

23 somebody has got to be responsible for it. Somebody is going 24 to have to object to the evidence or somebody is going to have

25 to make the point. The idea was not to deny a person the

34

right to defend himself. He could always do that but once you

2 have appointed a counsel then who's going to be in charge?

3 You couldn't have or both. That's what was before the court

4 for consideration and has given them a terribly hard time.

5

CHAIRMAN SNOW: Putting it another way, Justice

6 Bowles says they get in a situation where the man has

7 appointed counsel and he's representing himself at the same

8 time and it's creating conflicts because the attorney can not

9 have the say-so, the man is firing his attorney in the middle

10 of the case, a number of situations coming up. He feels the

11 right for him to represent himself should be preserved or the

12 right for him to have counsel of his own choosing should be

13 preserved, but he can't have both of them, where he can

14 represent him and at the same time have counsel. If he's

15 going to have counsel he ought to have counsel, if he's going

16 to represent himself he should represent himself.

17

MR. BONEY: That's right. He could also have

18 assistance and he could be the head hauncho, the defendant

19 could be. He could have legal assistance, but the way it's

20 written now "or both" is what has got them all confused.

21

MR. WHELCHEL: It just requires an election before

22 you begin the trial.

23

MR. BONEY: That's right, who's going to make the

24 final decision.

25

MR. GUERRERO: I'm opposed to that change. I'm not

35

an attorney but I've talked to a number of criminal attorneys

2 in the state who say they are concerned about it, that it

3 happens very rarely in terms of the actual problem happening

4 and they can conceive of situations in which it would make a

5 great deal of difference and that the intention of the authors

6 of the Constitution was precisely to have the final shot be

7 called by the individual and that is the expression of our

8 constitutional tradition is to have that basic fundamental

9 right in the hands of the individual to exercise properly or

10 improperly, rightfully or wrongfully or to a person's own

11 detriment, as a matter of fact. It's easy to conceive of some

12 situations in which this basic right, although it is very

13 rarely used or exercised could make a world of difference.

14

MR. BONEY: How would this change keep him from

15 having the final say-so?

16

MR. GUERRERO: Let's take an example where an

17 indigent, a prisoner, escapes from a work camp and he gets

18 hauled in for escape. He's appointed counsel on his charge of

19 escape. Now we have made great progress and most of the time

20 attorneys who have been appointed do very well, but there are

21 times when there are problems with that. That prisoner is 22 caught between a rock and a hard place. Procedurally, he

23 needs an attorney to represent him and if he makes that 24 election beforehand -- it's in his own interest to elect to be

25 represented by counsel, but he may decide because he's a

36

jailhouse lawyer and he thinks he knows the law or whatever,

2 for whatever reason, he may decide in the middle of the trial

3 that his attorney is not doing right by him and he wants to

4 exercise his right to represent himself and I think he ought

5 to have that right.

6

MR. BONEY: I think he can still have it. I think he

7 can have it right then and there.

8

CHAIRMAN THOMPSON: He would still have that right,

9 but he would have to fire his attorney.

10

MR. BONEY: I think that's right.

11

CHAIRMAN THOMPSON: That's the difference.

12

JUDGE POWELL: Suppose he doesn't want to --

13

CHAIRMAN THOMPSON: Ms. Bell?

14

MS. BELL: I'm not sure the Supreme Court would

15 approve of Georgia citizens having to make an election between

16 having an attorney and representing themselves. 1 1 m

17 not sure that wouldn't offend the Federal Constitution to say

18 you canlt do both.

19

MR. PEARSON: No, that's okay in the Federal

20 Constitution.

21

MS. BELL: Under the Federal Constitution they

22 certainly have to participate in the decisions that are made.

23

MR. PEARSON: Maybe I'm misunderstanding your point.

24

MR. BONEY: You must be offered counsel.

25

MR. PEARSON: If you wish to decline that offer and

37

represent yourself you have the option.

2

MR. BONEY: Right.

3

MR. PEARSON: I take it -- One question that was

4 being raised a moment ago was what about the situation where

5 you get midstream and you are disenchanted with your attorney?

6 My understanding is that you could fire your attorney on the

7 spot. I don't think there's -- that this would create an

8 obstacle. What I thought you were going to say, Gene, was

9 what about a situation where an individual wants to represent

10 himself but wants to have an attorney there to help him?

11

MR. BONEY: He could still do that.

12

MR. PEARSON: That's not prohibited but it's not

13 available as a matter of right. Now if the judge wants to let

14 a guy represent himself and ask someone to sit in there I

15 think that's discretionary with the judge. The question is 16 whether we should make that something available as a matter of 17 constitutional right, this sort of assistance, and I think the 18 decision that we have reflected here so far is if someone

19 wants to start out representing one's self then that's a

20 decision they have to make and they go it on their own unless

21 the trial judge decides he wants to help out. It seems to me

22 that's the tough choice. The language as we have it here

23 would lead to a situation where a trial judge could say if you

24 want to represent yourself, fine, you go it entirely alone.

25

MR. BONEY: But we ought not to overlook this fact,

38

that under the Federal Constitution he has to be intelligent

2 enough to make a reasonable determination and you've got to

3 have a finding of fact of that before the court.

4

MR. PEARSON: It's also under state law.

5

MR. BONEY: So here we are. I don't see how the

6 language as we've got it here now as proposed would deny

7 anything. I think he would still have the right to counsel.

8 I think he would have the control over it if he said yes, I

9 want counsel to help me, but I don't think he could ever say

10 but I don't want Jim, I want Jake or I want John. I don't

11 think he can select his counsel, he can't do that, and

12 certainly I feel like under this, at any stage of the game, if

13 he says I don't want that attorney anymore he has a right to

14 discharge him.

15

CHAIRMAN THOMPSON: Judge Powell, I saw your hand,

16 and then I'll recognize you.

17

JUDGE POWELL: I think the language either makes him

18 initially make a choice between I want to represent myself or

19 whether I'm going to have counsel. If he makes the initial

20 choice -- I don't read into this what the gentleman reads into

21 this that he can be co-counsel with himself. I think this

22 limits him. If I'm going to be counsel then I'm going to be

23 counsel. I can't have co-counsel who is an attorney. If I'm

24 going to get an attorney then I can't be co-counsel, being a

25 nonattorney. In other words, I preclude whether or not I want

----------_._--, 39

to represent myself and I think some jailhouse lawyers or some

2 private individuals -- Let's take for example an attorney, if

3 an attorney is on trial for something and he makes an election

4 to get another attorney then this language precludes him from

5 even assisting. The way I read it you've got the word either

6 and that either precludes you -- to my feeling it makes an

7 election now, I either do A or B.

8

MR. PEARSON: Do you think it precludes the guy from

9 firing his attorney in the middle of the trial?

10

JUDGE POWELL: Why should I have to fire him then

11 represent myself? Then I am still precluding myself in the

12 middle of a trial to get another attorney because I have again

13 made an election. Either I fire this attorney over here then

14 I become my own counsel, then I can get another attorney.

15 You've still got either.

16

CHAIRMAN THOMPSON: If you're paying, you can get

17 another attorney, but if he's an indigent that's the only

18 situation where that would come up.

19

JUDGE POWELL: Well this is one of the things that

20 we've been talking about now. The indigent is denied a whole 21 lot of rights and privileges for adequate legal counsel that 22 this would -- people who could afford to pay don't have it. I

23 don't think you ought to limit him.

24

CHAIRMAN THOMPSON: He's already denied by law the

25 right to get an attorney of his choice. He's got to take who

40

the court appoints for him or pay for his own lawyer.

2

This young lady has had her hand up.

3

MS. MCGOUGH: I asked Justice Bowles -- I was

4 concerned under the United States Supreme Court cases where if

5 a person elects -- this is the same following on what you just

6 said, Judge Powell, where if a person decides to go pro se the

7 Supreme Court says or at least recommends to the states that

8 they provide him with the assistance of counsel to give him

9 help even though the person is the lead tactician. I was

10 troubled about that and Justice Bowles says oh, no, I'm sure

11 this encompasses the right to have the assistance of counsel

12 even though he's not formally representing. I'm not sure at

13 all that it does and I would like to throw out for discussion

14 the possibility of adding, shall be deprived of the right to

15 prosecute or defend in person with or without the assistance

16 of an attorney, or by an attorney, one's own cause, set off by

17 commas. I would like to guarantee that a person is not

18 choosing between going it totally alone or going it totally

19 with an attorney.

20

MR. GUERRERO: Does that language allow for

21 co-counsel?

22

MS. MCGOUGH: What do you mean, co-counsel? You

23 don't mean two counsel?

24

MR. GUERRERO: The only case -- One lawyer talked to

25 me that was a State Representative, he was not a lawyer, who

--------------------------- ---, 41

was on trial and he participated as an attorney in this case

2 with an attorney. Now would that allow for that to happen?

3

MS. MCGOUGH: I think one has to be chief and one has

4 to be Indian.

5

MR. WHELCHEL: You have to make an election as to who

6 is head counsel.

7

MR. GUERRERO: He would elect to represent himself

8 but he would have the right to have assistance and that could

9 not be denied by a judge who decided to do that.

10

CHAIRMAN THOMPSON: Isn't that creating something new

11 now as a constitutional obligation or requirement? I mean the

12 court at its discretion could do that now. Are we creating a

13 requirement that every time a man decides he wants to

14 represent himself that you have to?

15

MS. MCGOUGH: He may proceed without the assistance,

16 with or without.

17

CHAIRMAN THOMPSON: Can he, as a matter of right

18 though, choose to have counsel appointed to assist him?

19

MS. MCGOUGH: I certainly think he should have the

20 right.

21

MS. BELL: Doesn't both language encompass that a

22 little less wordily, either in person, by attorney or both?

23

MS. MCGOUGH: That eliminates the who's in charge

24 problem of both which appears that they're coequals.

25

CHAIRMAN THOMPSON: Someone raised the question as to

42

whether the Supreme Court of the State of Georgia would pass

2 this language. Justice Bowles is the one that suggested it

3 and he suggested it because of problems that had been coming

4 up in cases to the Supreme Court and he thought the language

5 as written now would solve the problem. Whether it would or

6 not, that's for us to determine.

7

Judge Powell?

8

JUDGE POWELL: I think if we leave out the language

9 that Professor McGough just recommended, just leave in person

10 or by attorney, then I think that the Supreme Court of the

11 United States decisions in pro se representation cases would

12 apply and the judge then would have a wide discretion in terms

13 of how the representation in person or by attorney would

14 proceed.

15

CHAIRMAN THOMPSON: You mean as it's written?

16

JUDGE POWELL: Just leave out the " e ither".

17

MR. PEARSON: "Either" is implied it seems to me and

18 I think it doesn't matter whether you leave it in or out.

19

MR. BONEY: I agree with that.

20

JUDGE POWELL: Well when you go back into your

21 legislative history, if these proceedings would be recorded,

22 then it would show that either was intended to mean you make

23 an election now at the beginning and that election can not be

24 changed, it's irrevocable, and that's the reason why I am

25 suggesting that the either should be left out so that it would

43

not be believed or the interpretation that you've got to make

2 a decision now which that defendant has to live with forever

3 throughout that trial to either fire the attorney in the 4 middle

5

MR. PEARSON: If you want to strike the "either" it's

6 fine, but I think you're putting some interpretation into that

7 term that is not reasonable.

8

JUDGE POWELL: We're talking about what they

9 discussed. You're talking about in the legislative. If you 10 go back in the legislative history and you look at what the

11 committee members discussed and the interpretation they put on

12 that --

13

MR. BONEY: I don't think the word "either" would

14 make any difference. I wouldn't oppose striking it.

15

MR. PEARSON: You've got to make an election

16 basically when you come to trial anyway. You're going to show

17 up with an attorney or you're going to defend yourself. The

18 practicalities of the process require a choice.

19

MR. BONEY: In order to move on with it I'm going to

20 move that we adopt it as it is written in the proposal.

21

CHAIRMAN THOMPSON: Do I hear a second?

22

MR. WHELCHEL: I'll second it to get it on the floor.

23

CHAIRMAN THOMPSON: It's moved and seconded.

24

MR. HODGES: Discussion. I have a question from the

25 legal point of view. Now I'm asking for an interpretation.

44

Does "by an attorney" as a statement or "with an attorney" as

2 a statement mean the same thing?

3

MR. BONEY: I would think so.

4

MR. WHELCHEL: I don't know.

5

MS. BELL: I don't think so. I think if you used

6 with an attorney they could work together.

7

MS. MCGOUGH: Uh-huh.

8

MR. HODGES: If that is so then I offer a substitute

9 motion. I would then say -- offer the substitute motion so

10 that this Paragraph IX would read: Right to the Courts. No

11 person shall be deprived of the right to prosecute or defend,

12 in person or by or with an attorney, one's own cause in any of

13 the courts of this State.

14

MR. BONEY: I would accept that amendment.

15

MS. MCGOUGH: That's very good.

16

CHAIRMAN THOMPSON: All right. Is there any further

17 question?

18

MS. BELL: A little bit of knitpicking. I think we

19 need to consult our grammarians because I don't think one's is

20 appropriate. I think this is one of the few places where

21 you're going to have to use that awkward language, his or her,

22 or else use his. I don't find that objectionable. One's does

23 not go back to no person, grammatically it can't.

24

CHAIRMAN THOMPSON: Do you have any suggestion?

25

MR. PEARSON: You could say all persons shall have

-----------------, 45

the right to prosecute or defend, use the plural, and then --

2

MR. HODGES: It would be their own cause.

3

MR. PEARSON: You could state it in affirmative

4 terms.

5

MR. HODGES: I'll incorporate that, changing one's to

6 their and changing --

7

MR. PEARSON: That reads the same as the rest of the

8

9

CHAIRMAN THOMPSON: Have you got that, Mel?

10

MR. HILL: Let me read it. All persons shall have

11 the right to prosecute or defend, either in person or by or

12 with an attorney, their own cause in any of the courts of this

13 State.

14

CHAIRMAN THOMPSON: Is that the motion?

15

MR. HODGES: I dropped the either.

16

MR. HILL: I'm sorry. Okay, drop the either.

17

MS. BELL: I think it sounds better with the either

18 in the way you've changed it now.

19

MR. HODGES: One thing it does, it breaks down the

20 specification of either across the board as Judge Powell is

21 referring to it. So you could really leave it in and not have

22 the problem.

23

JUDGE POWELL: Including or with an attorney, it can

24 be left in.

25

CHAIRMAN THOMPSON: Let's try it again.

46

MR. HILL: Whose motion originally was it?

2

MR. HODGES: We're working on a substitute and I'm

3 accepting the grammatical corrections.

4

CHAIRMAN THOMPSON: He accepted the substitute, yes,

5 he did. It's Mr. Cheatham Hodges'substitute and it was

6 accepted by Mr. Boney. Would you read that again please?

7

MR. HILL: All persons shall have the right to

8 prosecute or defend, either in person or by or with an

9 attorney, their own cause in any of the courts of this State.

10

CHAIRMAN THOMPSON: All right. Everyone is agreed

11 that that is the motion?

12

MR. BONEY: I would like to say one thing. I accept)

13 that and I do it with a tremendous amount of reservation. It

14 seems to me now that we are really opening up a can of worms

15 here in the practical side of the case. It's going to be a

16 real outlet for the attorney. He's going to say well, heck,

17 let me just help him.

18

CHAIRMAN THOMPSON: I just hope I don't ever get

19 appointed as co counsel with a defendant.

20

MR. BONEY: It's tragic to be appointed in a death

21 action. I've had that experience and really you're trying to

22 do everything you can, but to me it looks like we're just

23 going to hand the court here something

24

MR. PEARSON: In terms of the effective assistance of

25 counsel question you've got a system where the role of the

47

attorney, it's a professional responsibility under the system

2 designates him to make certain judgments and, you know, where

3 you've got this contemporaneous defense of a case you may have

4 a person who's going to have an easy out.

5

MR. BONEY: I feel so strong about it I would like to

6 withdraw my motion of accepting the amendment. I feel like I

7 would be saddling the courts with something for years to corne.

8

CHAIRMAN THOMPSON: wait now. Parlimentarily, you

9 don't really have to accept an amendment.

10

MR. BONEY: I know it, but I did a moment ago and now

11 I want to withdraw my acceptance.

12

MS. BELL: Well I'd like to second the motion to

13 amend.

14

MR. WHELCHEL: The thing that disturbs me is you get

15 into that problem when the client and the attorney, and let me

16 preface this by saying that I quit handling criminal matters

17 under our rule at horne and relieved of appointments, but when

18 you get into the problem it's usually when the counsel and the

19 client get at cross purposes and if you get into a situation

20 where the court is required to force the attorney to stay with

21 the client with the client calling the shots you're putting

22 the attorney in an untenable position.

23

MR. PEARSON: In your habeas cases, you know, you

24 focus in on the attorney and the attorney is the guy who's got

25 -- he can't say well, you know, my client said this was a good

48

idea so I just did it because that's my client's view. My

2 philosophy is he's got a constitutional right to defend the

3 case however he wants to. If he says he doesn't like my

4 strategy I'm going to do whatever he says even though it's

5 professionally something I disagree with. Well under this

6 standard, I would say that the attorney would simply be

7 reflecting the constitutional preferences of his client,

8 whatever professional judgment he might have to the contrary

9 to one side. I like the system where the attorney is the one

10 you point to and say this is what you do in court, why for

11 professional legal reasons did you make this choice? That's

12 the criteria on the basis which his assistance can be

13 measured.

14

MR. WHELCHEL: Well I can see the situations where

15 the guy is going to come back with a habeas and he'll say my

16 attorney knew better than to allow me to do that, why did he

17 let me do that?

18

MR. BONEY: That's right, it comes up every day.

19

CHAIRMAN THOMPSON: That comes up only with

20 Cheatham's added language, that with attorney. If it were

21 back to what it was originally that question would not arise.

22

MR. GUERRERO: I think these problems might be

23 created by this. I don't see it. I don't practice law but if

24 it happened -- If I were in a trial and I got at cross

25 purposes with my attorney and I said I don't want him

49

representing me anymore and then the judge would advise me of

2 my right, I would have the right to have the advice of with an

3 attorney. I would have the right to invoke that clause but it

4 wouldn't have to be that attorney. The judge could tell me

5 that he's not going to appoint me another attorney and that

6 would be my decision.

7

CHAIRMAN THOMPSON: If he puts that language in there

8 he's got a right to have another attorney.

9

MS. MCGOUGH: It's an attorney.

10

MR. WHELCHEL: He's got the right to go with an

11 attorney.

12

MS. MCGOUGH: Or not.

13

MR. WHELCHEL: Believe me, it can happen because --

14 Excuse me.

15

MS. MCGOUGH: You know, I think the United States

16 Supreme Court has a rule that you can go by yourself or you

17 can go by an attorney and they have also said if you don't

18 provide the person who goes pro se with the assistance of

19 counsel you're going to be vulnerable on appeal. So I don't

20 think we're doing anything radical. We're doing exactly what 21 the Supreme Court said they would rule when a case comes up to

22 them.

23

MR. HODGES: This is what Judge Bowles said, but he

24 said the or both did cause confusion in the Supreme Court on

25 appeal and that's why he wanted that out and he alluded to

50

this thing that the prominent individual in the case was the

2 defendant and not the attorney and that the attorney should be

3 subservient to the individual in that case regardless of

4 professionalism and that's why I was trying to deliberate on

5 the by or with and that's what Judge Bowles brought up. As a

6 matter of fact, if you will think back or if you read on the

7 case that just took place down in Miami where the man, you

8 know, fired a bunch of attorneys down there the judge finally

9 ruled and cited that the individual was the dominant figure in

10 the trial and therefore, he had to yield to the individual. I

11 can't remember the man's name and I think that's what we're

12 doing. I think we're pretty well saying that here. That's

13 why I needed to know whether by or with meant the same thing

14 legally.

15

MR. WHELCHEL: I think there's no question he can get

16 rid of his lawyer anytime he wants to.

17

CHAIRMAN THOMPSON: Okay. Mike, did you have

18 something?

19

MR. HENRY: One other thing. Y'all have been

20 focusing on the fact that a person has the right to go pro se

21 to defend himself but I think this also preserves the right to

22 be present in the courtroom. You can not be barred from the

23 courtroom where someone is prosecuting you. If they want to

24 shackle you they have to feed it in by the sound into your

25 wherever they confine you. I think the language in person or

51

with attorney would cover that and would also cover the fact

2 that you can also at least assist him, but I think a court is

3 given the discretion to make them elect who will be the

4 dominant figure in the trial. I don't think you can really

5 Without really very, very specific language, I don't think you

6 could force a court to give up that discretion.

7

CHAIRMAN THOMPSON: You think this language would

8 force the court?

9

MR. HENRY: I just think in person or with an

10 attorney I don't think you have to say in person or by or

11 with, I think just or with.

12

MR. BONEY: In other words, you would eliminate one

13 or the other. You don't want the man to say are you with

14 counselor are you by counsel? Are you here today represented

15 by an attorney or are you with an attorney or are you here

16 representing yourself?

17

MR. HENRY: Well with could take in by.

18

CHAIRMAN THOMPOSN: I don't think it could in that --

19 not in the context it's being used. I think if you say with

20 that makes him co-counsel in almost every instance the way

21 it's being used here. That's the impression I have.

22

MS. BELL: I think the language of the motion to

23 amend gives our citizens nothing that the United States

24 Constitution doesn't give. I think if we don't amend it we're

25 guaranteeing them less which is not to say they wouldn't have

52

it because the Federal Constitution, but what it is to say is

2 that if the language is interpreted -- the original language

3 is interpreted, as I'm very much afraid it would be, to

4 require an election we're going to end up with our cases going

5 to the Supreme Court with the Federal Constitution. I think

6 they have the right anyway.

7

MR. BONEY: What does the Federal Constitution say

8 about counsel?

9

MS. BELL: I'm not a constitutional lawyer, but there

10 are some cases that have said that if this individual does not

11 knowingly participate in the decisions made in his trial the

12 Supreme Court will strike it down.

13

CHAIRMAN THOMPSON: I'll tell you, we've discussed

14 this very thoroughly.

15

MS. BELL: You want to call for a question on the

16 motion to amend?

17

CHAIRMAN THOMPSON: Call for the question. I'm going

18 to put the motion -- We've debated it, we've gone around and

19 around and we're really repeating ourselves as we go on.

20

All in favor of the motion as amended, as it was read

21 by Mr. Hill a moment ago, that has the language by or with

22 attorney in it, let it be known by raising your hands. One,

23 two, three, four, five, six, seven.

24

Those opposed, by the same sign. One, two, three.

25 Seven to three.

53

Let's move on to the next

2

MR. GUERRERO: "Searches, Seizures, and Warrants.

3 The right of the people to be secure in their persons, houses,

4 papers, and effects, against unreasonable searches and

5 seizures, shall not be violated; and no warrant shall issue

6 except upon probably cause, supported by oath, or affirmation,

7 particularly describing the place, or places, to be searched,

8 and the persons or things to be seized."

9

CHAIRMAN THOMPSON: Is there any objection to this

10 language? Hearing none, Section X is adopted.

11

MR. GUERRERO: "Benefit of Counsel; Accusation; List

12 of Witnesses; Compulsory Process; Trial by Jury. Every person

13 charged with an offense agains the laws of this State shall

14 have the privilege and benefit of counsel; shall be furnished,

15 on demand, with a copy of the accusation, and a list of the

16 witnesses on whose testimony such charge is founded; shall

17 have compulsory process to obtain the testimony of one's own

18 witnesses; shall be confronted with the wtinesses testifying

19 against the individual; and shall have a public and speedy

20 trial by an impartial jury."

21

CHAIRMAN THOMPSON: You object?

22

JUDGE POWELL: Yes. In line 19 and 20, I would

23 suggest that "on demand" be stricken because if we're going

24 back to the person representing him or herself they don't know

25 all the intricacies of the law about making demands or list of

54

witnesses and I think that that ought to be automatic in all

2 cases where there is a criminal prosecution. I would take out

3 "on demand" and leave the other

4

CHAIRMAN THOMPSON: Can I comment on that, Judge?

5

JUDGE POWELL: Yes.

6

CHAIRMAN THOMPSON: First of all, the person who

7 represents himself is a nut. There are a lot of things that

8 he doesn't know. I would suggest that that "on demand" stay

9 in there for a different reason. You're going to encourage

10 habeas corpus proceedings where some District Attorney did not

11 provide him with a list of witnesses and some of the other

12 things that he would have to demand under this procedure.

13 They go down there and stay in jail and say dog gone, they

14 didn't provide me with that list and I'm going to file a writ

15 of habeas corpus and I think it's just opening up a can of

16 worms. If they want the legal expertise and it's available

17 they ought to hire a lawyer.

18

JUDGE POWELL: We've got poor folks, Mr. Chairman,

19 and they can't hire attorneys and a lot of times --

20

CHAIRMAN THOMPSON: Being poor doesn't give them the

21 knowledge to represent themselves. When I say hire a lawyer 22 they've got a right to have one appointed. That's encompassed

23 in that same thing.

24

JUDGE POWELL: Let me go another step further. I

25 have had attorneys to appear before me right in the time of

55

trial, even though they know they should have made demands for

2 lists of witnesses in a reasonable period of time, they come

3 before me at the trial and they say I don't have a list of the

4 witnesses and I ask them have you made a demand for it? Well

5 even some attorneys don't know and I think it ought to be

6 automatic. I don't think it would be putting any particular

7 burden on the district attorney to just simply give the

8 indictment with a list of the witnesses that have testified.

9 In civil actions you would give -- you know, serve a petition

10 and I don't see anything different here. If you served an

11 indictment as well as the witnesses on which the indictment

12 was based it would not put an undue hardship on anybody.

13

MR. BONEY: There's one practical thing there, Judge.

14 I don't object to him having it of course but when would he be

15 furnished the list? You're just going to work up a real paper 16 load there for the clerk if you just automatically when he's 17 indicted or when the accusation or when he's arrested -- when

18 are you going to give the formal accusation? When are you

19 going to give him the list?

20

JUDGE POWELL: Unless procedures change, I don't

21 think they give any formal written accusation except if that

22 is demanded, they say okay, you're charged with burglary and

23 that's it. The defendant knows he has to go to trial to

24 defend on burglary. There is no specific serving of an

25 indictment on the defendant so that he would know the exact

56

language.

2

MR. BONEY: Surely on the arraignment date --

3

JUDGE POWELL: They read them to them, that's all.

4 They just sit up and they read them to you. The charge is

5 burglary on x and x day, that you did enter with the intent to

6 commit a theft or felony in the dwelling of Mr. White.

7

MR. BONEY: When would you have them furnish the

8 list?

9

JUDGE POWELL: At that time, at the time of the

10 arraignment.

11

MR. BONEY: Suppose he's going to enter a plea of

12 guilty, are you going to do it before then? I'm just talking

13 about the burdensome of the administrative end of it.

14

JUDGE POWELL: Unless procedures have changed, when

15 they do the indictment on the indictment they have a list of

16 the witnesses that they will be calling before the Grand Jury.

17 If the indictment is returned a true bill then that true bill

18 has again a list of the witnesses on the back of the

19 indictment with the true bill. I see no reason why they can

20 not make a photostatic copy or make an extra copy for the 21 defendant. If a true bill is returned serve it on him, that's 22 no problem.

23

MR. HODGES: Mr. Chairman?

24

CHAIRMAN THOMPSON: Mr. Hodges.

25

MR. HODGES: This is speaking from the common side.

57

I notice in the conversation we tend to debate the

2 professional aspect. The Constitution is supposed to be for

3 the good the common people and I think what Judge Powell is 4 talking to is about the good of the common people and we're

5 talking

The other question coming back, we're talking about

6 specifications of the legal process. I think those ought to

7 be set aside completely and we should look at the Constitution

8 as that bland instrument that is concerned only with the

9 rights of the common people, particularly since this is the

10 Bill of Rights, and we should keep that in mind in what

11 wording we're trying to apply to this and based on that I am

12 in support of Judge Powell's argument.

13

CHAIRMAN THOMPSON: Yes.

14

MS. MCGOUGH: May I hear from Al or anybody else on

15 the Constitution if we go -- if we drop "on demand" to its

16 effect on those who are already convicted?

17

MR. PEARSON: It wouldn't have any effect on

18 convictions that had been obtained prior to the effective date

19 of this language. Would anyone disagree with that? I don't

20 see any possibility for an effect on current convictions.

21

JUDGE POWELL: Because they do have a right to demand

22 that at the present time in criminal procedures.

23

MR. PEARSON: I would say it only has prospective

24 effect. I don't see how it could be turned at all. Right now

25 a demand is required.

58

MS. MCGOUGH: Does anybody -- Would anybody like to

2 see the language on or before arraignment with a copy of the

3 accusation?

4

MR. BONEY: If you do it before arraignment you're

5 going to have -- the only thing I'm talking about here now is

6 not to deny anybody the rights, but from a procedural

7 standpoint how are you going to get all this paperwork to

8 them? One little clerk there in a Superior Court with four or

9 five hundred accusations and maybe fifteen or twenty

10 indictments, how are they going to get all that information

11 out?

12

MS. MCGOUGH: I said on or before.

13

CHAIRMAN THOMPSON: There's another thing that

14 bothers me. We're trying to protect people's rights, but we

15 can't protect all the rights in this documents. For instance,

16 there's certain motions that have to be made prior to

17 arraignment. Some of this might be based on the type of thing

18 that would be in that indictment and the list of witnesses and

19 sundry other things -- certain pretrial motions that you have

20 to make prior to time of arraignment. This in no way protects 21 those things. I don't know any way we could put into the

22 Constitution or into the Bill of Rights which is going to get

23 into that area -- I don't think we can do everything by this

24 document, but I think by removing "on demand" in this instance

25 we're creating a paperwork jam that's going to be detrimental

59

to the courts.

2

MS. PEARSON: It may be paperwork but I think a guy

3 who is going to be tried criminally ought to be able to have 4 his indictment.

5

JUDGE POWELL: I think so too.

6

CHAIRMAN THOMPSON: He's entitled to it but he's got

7 to demand it.

8

MS. PEARSON: I just think you ought to give it him.

9

JUDGE POWELL: I think so too.

10

MS. PEARSON: That doesn't bother me at all.

11

MR. BONEY: When would you give it to him?

12

JUDGE POWELL: In fact, I think it would help the

13 courts.

14

MS. PEARSON: The list of witnesses, I might be

15 willing to pose a demand requirement on the list of witnesses.

16

MR. BONEY: In most instances on arraignment day he's

17 called up and said, so and so, you're charged with so and so,

18 do you have counsel? No, I don't. Do you want the court to

19 appoint you counsel? Yes, I do. That's the one we're talking

20 about. Okay. Counsel goes immediately and says I want a copy 21 of the indictment and all witnesses against him. He gets it 22 right then and there. He goes and talks to the defendant,

23 what does this guy know about it, what does this guy know

24 about it, who can you call as a witness, right then and there,

25 but if we do all this beforehand to me it's just impractical.

60

If you give it to the defendant before the arraignment he's

2 going to lose it or misplace it.

3

MS. PEARSON: I agree with you but it's just

4 something about proceeding against a person criminally that I

5 like the formality of the state giving the indictment.

6

CHAIRMAN THOMPSON: Ms. Bell?

7

MS. BELL: For clarification, because I really don't

8 know this, do we really have people who are charged with

9 crimes who are entering pleas without really knowing what 10 they're being accused of?

11

JUDGE POWELL: Yes. They never see the indictment or

12 accusation.

13

MR. BONEY: I think that's a rare instance.

14

MR. WHELCHEL: They might not know but they certainly

15 say they know.

16

MS. BELL: Let's give them a copy of what they're

17 accused of.

18

CHAIRMAN THOMPSON: Ms. Bell, we're putting people in

19 jail who have IQ's of 50, we're putting people in jail who are

20 retarded, who are actually incapable of understanding these

21 things, we're putting people in jail who are medically insane. 22 We're doing that every day and handing them this thing ain't

23 going to make them know any more about what they're doing or

24 what's happening to them. The lawyer ought to be

25 knowlegeable. I have no sympathy for the lawyer going into

----------

---- --------- ------------------, 61

Judge Powell's court and talking about I need a list of

2 witnesses.

3

JUDGE POWELL: I don't either but it happens. It

4 shouldn't happen but it happens.

5

MS. MCGOUGH: I have a compromise. What if we said

6 shall be furnished with a copy of the accusation and upon

7 demand with a list of witnesses on whose testimony such charge

8 is founded.

9

MR. PEARSON: I like that.

10

MR. BONEY: Sometimes you have an indictment rather

11 than an accusation so you're getting into technical points.

12

MS. MCGOUGH: Right now in the current Constitution

13 it encompasses indictment. This is generic.

14

MR. BONEY: Well an indictment only for felonies.

15 You don't have to have an indictment for misdemeanors.

16

MS. MCGOUGH: That's what I said it uses the

17 accusation.

18

JUDGE POWELL: It doesn't matter which way you deal,

19 accusation or either indictment.

20

CHAIRMAN THOMPSON: Our state court does not give us

21 a copy of the accusation or a copy of the list of witnesses.

22 We do get that in all felonies in the Superior Court as a

23 practical matter.

24

Ms. Bell?

25

MS. BELL: Isn't there an enormous due process

62

problem here if you have people enter a plea when they have

2 not seen the accusation?

3

CHAIRMAN THOMPSON: Ms. Bell, the procedure now for

4 entering a plea is so highly complicated. Have you been in

5 court recently and watched this thing?

6

MS. BELL: No. I'm asking for information.

7

CHAIRMAN THOMPSON: The judge in a Superior Court,

8 when he takes a guilty plea now, they have to make a written

9 record of this. He stands there and he asks this man what is

10 your name? He knows the name. How old are you? How far did

11 you go in school? Have you had an opportunity to talk with

12 your attorney about this accusation? Has he explained to you

13 what your rights are? Has he told you that you are entitled

14 to be confronted by the people who are accusing you of this

15 and the right to cross-examine them? He goes right straight

16 through in detail, minutiae really.

17

JUDGE POWELL: That's in your court.

18

CHAIRMAN THOMPSON: I've been in courts allover the

19 State of Georgia.

20

MR. WHELCHEL: That's what they do in our court. It

21 takes 15 or 20 minutes per person.

22

CHAIRMAN THOMPSON: They do it in all of the Superior

23 Courts now. It's a matter of record and in some of those

24 courts they go even further, they give the defendant a long

25 list of questions. He has to go out there -- They don't do

63

this in my Superior Court but I've seen it in other Superior

2 Courts. He goes out there and he goes through those

3 questions. He reads each one of them to that defendant and

4 that defendant signs this thing saying that I

this has been

5 explained to me, I have read it. They've gone a long ways

6 when it comes to due process in these particular matters and

7 it's getting so it's burdensome as the dickens entering a

8 guilty plea.

9

JUDGE POWELL: Going back to the question Ms. Bell

10 asked, even in spite of all that when a guilty plea is 11 accepted do they actually see a copy of the accusation? They

12 read that you are being charged with burglary, how do you

13 plead? The attorney may see that but if he does not have an

14 attorney where the attorney has read the accusation and knows

15 that it is legally correct then the attorney

16

CHAIRMAN THOMPSON: The first thing the judge says to

17 him is do you have an attorney? He says no. Do you want an

18 attorney? If he says no at that point then the judge goes

19 into even greater detail and tries to explain to him what his

20 rights are, but if he says I want an attorney the judge

21 immediately appoints somebody, he hands this thing to him, the

22 indictment, the list of witnesses and says go out and talk to

23 him and they stop it right there.

24

MR. GUERRERO: I would like to second the compromise

25 language. It seems to me all it involves is a -- four, five,

64

six xeroxes and it's an important principle.

2

CHAIRMAN THOMPSON: Ms. Bell?

3

MS. BELL: One brief comment. It seems from what you

4 say that they are being afforded this anyway so I can't see

5 the objection for giving them a constitutional right to have

6 it.

7

CHAIRMAN THOMPSON: I'm going to put the motion

8 There's a motion before us that the language "on demand" be

9 stricken. Can I say that there is a motion that this

10 paragraph be adopted with the language "on demand" being

11 amended out or being stricken?

12

MR. OSTRANDER: There's one word here you may want to

13 take a look at. You changed it in the Paragraph IX that one's

14 to their, it's underlined --

15

MS. MCGOUGH: All persons charged --

16

MR. HILL: This is okay in this case.

17

MR. OSTRANDER: Okay. I just wanted to be sure

18 before we leave it in one place.

19

CHAIRMAN THOMPSON: Okay. Are we ready for the

20 motion?

21

MR. HILL: Does this include Lucy's?

22

MS. NONIDEZ: I thought that the motion was to have

23 the middle clause there read "shall be furnished with a copy

24 of the accusation and on demand a list of the witnesses"?

25

MR. PEARSON: That was a substitute motion.

65

MS. MCGOUGH: I don't know whose original motion

2

CHAIRMAN THOMPSON: Did you make a motion?

3

MS. MCGOUGH: I don't know if it was accepted.

4

MR. PEARSON: I'll accept it.

5

CHAIRMAN. THOMPSON: As a practical thing, the

6 accusation and the list of witnesses is all together on one

7 document.

8

MR. PEARSON: Then you get more than you bargained

9 for. I would, as a practical matter -- In trial work don't

10 you just have an opportunity to request a final list of

11 witnesses before trial? Is the list of witnesses set as of

12 the indictment? You have a right to make a request for a list

13 of witnesses up until the day before the trial.

14

CHAIRMAN THOMPSON: You could make a demand for a

15 list of witnesses. The only advantage to having a list of

16 witnesses is they're precluded from using witnesses at the

17 trial of a case that they have not advised you of prior to the

18 trial but they can amend up to the trial but I think there are

19 certain requirements for the amendment. They have to allege

20 that these witnesses had not been discovered or were not 21 available or something of this nature. That's the only

22 advantage to having a list of witnesses, at least that's one

23 of the advantages of having it most times.

24

If I understand the motion correctly now it reads:

25 "

with a copy of the accusation, and upon demand with a

66

list of the witness on whose testimony such charge is

2 founded", is that correct?

3

MR. HILL: And on demand.

4

CHAIRMAN THOMPSON: All in favor of the motion let it

5 be known by raising your hand.

6

Opposed, by the same sign.

7

MR. BONEY: I'm not so sure I understood the motion,

8 but go ahead it's passed anyway. If -- We're striking "on

9 demand" and then they're going to be furnished with a copy?

10

MR. HILL: It will read:" shall be furnished

11 with a copy of the accusation and, upon demand, with a list of

12 the witnesses.

13

MR. BONEY: We're going to demand

14

MR. HILL: Required demand of the witnesses.

15

MR. BONEY: But not of the accusation, he's going to

16 get that anyway. I just think we're really getting into

17 procedural things rather than protecting on broad

18 constitutional principles. We're getting into the gritty

19 details of every day administration.

20

CHAIRMAN THOMPSON: Paragraph XII, Habeas Corpus.

21

MR. GUERRERO: "The writ of Habeas Corpus shall not

22 be suspended, unless and in case of rebellion or invasion the

23 public safety may require it."

24

MR. HILL: There was an addition in this paragraph.

25 The original statement of the writ of Habeas Corpus had this

67

language in it. In 1877, it was dropped. We did research to

2 try to find out why it was dropped and we researched other

3 state constitutions and found that they generally had this

4 exception in there and the judgment of the Committee was that

5 it should be put back in so that's where it is.

6

CHAIRMAN THOMPSON: You've heard this language, do I

7 hear any objection? Hearing no objection, the Paragraph XII

8 on Habeas Corpus is adopted.

9

Paragraph XIII.

10

MR. GUERRERO: "Self Incrimination. No person shall

11 be compelled to give testimony tending in any manner to

12 incriminate one's self."

13

CHAIRMAN THOMPSON: Do I hear any objection to this

14 language? Hearing no objection, this language is adopted.

15

XIV.

16

MR. GUERRERO: "Bail; Fines; Punishment; Arrest,

17 Abuse of Prisoners. Excessive bail shall not be required, nor

18 excessive fines imposed, nor cruel and unusual punishments

19 inflicted; nor shall any person be abused in being arrested,

20 while under arrest, or in prison."

21

CHAIRMAN THOMPSON: Do I hear any objection to this

22 language? Hearing no objection, Paragraph XIV is adopted.

23

Paragraph XV.

24

MR. GUERRERO: "Jeopardy of Life or Liberty More Than

25 Once Forbidden. No person shall be put in jeopardy of life or

68

liberty more than once for the same offense, except on one's

2 own motion for a new trial after conviction, or in case of

3 mistrial."

4

MR. HILL: Okay. Mr. Chairman, there was some

5 concern by Justice Bowles that this -- the way that this is

6 stated does not really cover all of the current situations.

7 There's automatic appeal processes so there was some question

8 about changing this language. I feel that the only addition

9 that may be necessary to correct the problems he raised at the

10 meeting would be to see at the end or in case of automatic

11 appeal when so provided by law. I would say that should be in

12 there. I'm sorry that it isn't in your draft.

13

CHAIRMAN THOMPSON: Are there any questions about

14 that?

15

JUDGE POWELL: You said automatic appeal?

16

MR. HILL: In capital cases automatic appeal is

17 provided by law.

18

CHAIRMAN THOMPSON: Shall we add that language?

19

MR. PEARSON: Let me say something. I think the idea

20 is sound. I don't know whether you want to use a reference

21 that is as specific as automatic appeal since that sort of is

22 dependent on the current state of law as we have it. You

23 might want to put language like upon reversal of a conviction

24 after appeal as provided by law which would be broader. It

25 would include automatic appeals and it would include just your

69

regular direct appeals that you're going to have in most

2 criminal cases anyway. It would be in part simply restating

3 the law as it would apply in voluntary direct appeals and it

4 would also encompass the automatic appeal situation where the

5 client says -- like Jesse Bishop said no, I don't want any

6 appeals taken in my case at all. That might -- The broader

7 language might be better than the reference to automatic

8 appeal. That's the only suggestion I would make. It's a

9 style matter.

10

MR. HILL: Would it read then "or upon reversal of

11 conviction upon appeal as provided by law"?

12

MR. PEARSON: Something like that. I'm open on

13 language.

14

CHAIRMAN THOMPSON: Wouldn't that leave it open if

15 you just use that language where he was convicted and the 16 conviction was reversed? Wouldn't that be double jeopardy if

17 they tried him again according --

18

MR. PEARSON: No, only if the reversal is on grounds

19 on insufficient evidence on appeal. There you have --

20

CHAIRMAN THOMPSON: But that isn't excluded in the

21 language that you're using.

22

JUDGE POWELL: You said as provided by law.

23

MR. PEARSON: Yeah. That is correct as a matter of

24 federal constitutional law now. If your conviction is

25 reversed on the grounds that the evidence was insufficient to

70

convict before the jury then jeopardy attaches. My language

2 wouldn't deal with that particular factual situation. It says

3 "upon reversal" which would be any reversal. Now how would we

4 take that one into account?

5

MR. WHELCHEL: It isn't taken into account now?

6

MR. PEARSON: No, it's not taken into account. We're

7 bound by that federally anyway, but it was not an obvious

8 conclusion as a matter of federal jeopardy law for a long,

9 long, long time. But I agree with the result you're

10 suggesting there, I think jeopardy ought to attach in those

11 cases, but I don't know what language I suggest to try to

12 tailor it.

13

CHAIRMAN THOMPSON: Mike?

14

MR. HENRY: Doesn't jeopardy attach in the case of

15 mistrial where the conduct was by the State? Would this

16 exclude that?

17

MR. PEARSON: This is --

18

MS. MCGOUGH:

manifest necessity.

19

MR. PEARSON: We don't have that in there. Some

20 mistrials would result in attachment of jeopardy.

21

MS. MCGOUGH: Why don't we just leave it perfectly

22 constant with the Federal Constitution and say "shall be put

23 in jeopardy of life or liberty, more than once for the same

24 offense" and let the judicial exceptions continue rather than

25 trying to specify them. I'm afraid in specifying we'll leave

-------------------------------------
71

out one.

2

CHAIRMAN THOMPSON: I like that.

3

MR. PEARSON: You run into problems. We just can't

4 draft the Code on this. I'm sure that --

5

CHAIRMAN THOMPSON: You want to put a period after

6 "offense"?

7

MS. MCGOUGH: Yes, I do.

8

CHAIRMAN THOMPSON: Would that do it?

9

MR. HILL: My only question is is the court going to

10 read that change as an intent on the part of the people to 11 remove these exceptions that are there now?

12

CHAIRMAN THOMPSON: Let me ask you this. I don't

13 have my Constitution right before me, is it parallel to what

14 the law is right now?

15

MR. HILL: Oh, yes. As a matter of fact, this entire

16 draft is the present Constitution.

17

CHAIRMAN THOMPSON: Why don't we leave it like it is?

18 The courts have already interpreted that and the rights are

19 pretty well protected. Why don't we leave it like it is?

20

Ms. Bell?

21

MS. BELL: One little point. I hate to keep bringing

22 this up. Is somebody going over this eventually for

23 grammatical construction, for example, where we say "no 24 person" and then we say "one's". It should either be no one

25 shall be put in jeopardy except upon one's own motion or it

72

should be no person shall be put in jeopardy except upon that

2 person's own motion.

3

MS. MCGOUGH: Or the individual's.

4

MS. BELL: I really don't want to make a lot of that

5 but when you refer back to person's it incorrect.

6

MR. HODGES: What Ms. Bell is saying is it should

7 read: No person shall be in jeopardy of life or liberty more

8 than once for the same offense except on motion.

9

CHAIRMAN THOMPSON: Can we say this, that where those

10 inconsistencies appear, can we give Mr. Hill the authority to

11 remove the inconsistencies? Is that all right, Mr. Hill?

12

MR. HILL: It's fine with me if it's all right with

13 the Committee.

14

CHAIRMAN THOMPSON: I think it would be better to do

15 that than have to pick it out in each instance because that is

16 what we want. We don't want the inconsistencies removed.

17 Okay.

18

MR. PEARSON: I guess I agree with the comment made a

19 minute ago about dropping that final clause. I don't want

20 anybody to think we're trying to change the rules there but 21 I'm not too optimistic about doing a sort of a black letter

22 code of double jeopardy rules. The language I had come up

23 with was in response to the concern that Judge Bowles had

24 stated. You caught a point that wouldn't be covered by my

25 formulation.

_ __.. . _ - - - - - - - - - - ,
73

CHAIRMAN THOMPSON: Let me ask you this. In this

2 instance where there is an automatic appeal, wouldn't that be

3 considered one's own motion really? Wouldn't that be more or

4 less parallel?

5

MR. PEARSON: If I was representing a death row

6 inmate or something like that and you've got a reversal on an

7 automatic appeal I sure as hell am going to come in there and

8 say look, my guy didn't authorize this, you know, you reversed

9 the decision, fine, it wasn't done at my behest. I want --

10

CHAIRMAN THOMPSON: A reversal on an automatic appeal

11 of a death sentence, there ain't nobody going to go in there

12 and argue against that reversal, are they?

13

MS. MCGOUGH: They are once they get ready to be

14 retried.

15

MR. PEARSON: Once you get your reversal you're going

16 to go in and say jeopardy is attached. This isn't one of the

17 situations where you've got authority. Most situations -- The

18 theory under double jeopardy is that when you ask -- you

19 appeal you're saying basically I want a trial free of errors.

20 Now if the state for reasons -- for some reason decides you 21 should be tried again because they made a mistake and they 22 recognize that mistake on their own motion they say we're

23 going to give you another trial again, you know, you would

24 come in and say I don't want to be tried again, I didn't

25 contest the validity of my first conviction. Now if you're

74

saying that's invalid as a matter of state law then you're

2 trying to try me twice when I never requested it.

3

CHAIRMAN THOMPSON: Why don't we put in there then or

4 in the event of reversals by automatic appeal?

5

MR. HILL: In case automatic appeal as provided by

6 law.

7

MR. BONEY: Wouldn't this simplify it, except when

8 new trial is granted? In other words a new trial is granted

9 by the courts or by the defendant.

10

CHAIRMAN THOMPSON: That would cover it.

11

MR. PEARSON: That might be -- I like that better

12 than anything that's been suggested so far.

13

MR. BONEY: In other words, we're getting away from

14 who made the motion.

15

CHAIRMAN THOMPSON: That would be fine.

16

MS. MCGOUGH: But what would keep Then you would

17 rely upon the Federal Constitution to prevent the Legislature

18 from authorizing appeals by the State. In the federal system

19 there's some recognized appeals that can be brought by the

20 United States prosecutor where's he acquitted and the 21 prosecution appeals and he can be retried provided it's not on 22 the insufficiency of evidence but they're limited.

23

MR. PEARSON: A dismissal, yeah.

24

CHAIRMAN THOMPSON: You mean you think this would

25 prohibit the state?

1 - ---------- ----- ------------------ - - - --- ------------------.
75

MS. MCGOUGH: I don't want to give the Legislature

2 the right for the state to appeal.

3

CHAIRMAN THOMPSON: I don't either.

4

MS. MCGOUGH: And I'm afraid if you leave out

5 anything having to do with one's own motion for a new trial or 6 an automatic that at least keeps any appeal by the state --

7 Oh, after conviction. That would solve it, excuse me. I

8 withdraw my objection. He would have to have been convicted

9 initially, that's okay.

10

MR. PEARSON: So how is that, Mr. Boney?

11

MR. BONEY: My thought was that it would say, except

12 when a new trial has been granted after conviction.

13

MS. MCGOUGH: Or a mistrial.

14

MR. BONEY: In other words, what I'm trying to say is

15 come along here now, he's going to have a review. Okay. If 16 the courts say well he ought to have a new trial well then 17 there ought not to be double jeopardy. Or if on his own

18 motion he files for a new trial and he grants it it shouldn't

19 be double jeopardy.

20

MS. MCGOUGH: That's right.

21

MR. BONEY: It's favorable to him in either event.

22

CHAIRMAN THOMPSON: Okay.

23

MR. HILL: So the full language will now read: "No

24 person shall be put in jeopardy of life or liberty more than

25

i
once for the same offense, except when a new trial has been

76

granted after conviction or in case of mistrial".

2

MR. BONEY: Right.

3

MR. HODGES: That's not how I understood it. He

4 picked it up to early. I understood it to say -- to read, the

5 whole thing, "No person shall be put in jeopardy of life or

6 liberty more than once for the same offense, except on motion

7 for a new trial after conviction or in case of mistrial or at

8 the conviction" and then however Mr. Boney added --

9

CHAIRMAN THOMPSON: That's too burdensome.

10

MR. HODGES: That's what I'm following as being

11 burdensome, I'm questioning.

12

CHAIRMAN THOMPSON: That wasn't the motion. He read

13 his motion correctly.

14

MR. BONEY: Well then would you please read it again?

15

CHAIRMAN THOMPSON: No person shall be put in

16 jeopardy of life or liberty more than once for the same

17 offense except when a new trial has been granted after

18 conviction or in case of mistrial.

19

Is there a motion that this be adopted with that

20 amended language?

21

MS. MCGOUGH: So move.

22

MR. BONEY: I second.

23

CHAIRMAN THOMPSON: It's moved and seconded that

24 paragraph XV be adopted as amended. All in favor let it be

25 known by raising your hands.

r - - - . - - - - - - - -..- - - - - - - - - - - - - - . - - - . - - - - -
77

(Votes cast.)

2

CHAIRMAN THOMPSON: It appears to be unanimous.

3

Paragraph XVI, my favorite.

4

MR. GUERRERO: "Treason. Treason against the State

5 of Georgia shall consist of levying war against the State, 6 adhering to the State's enemies or giving them aid and

7 comfort. No person shall be convicted of treason except on

8 the testimony of two witnesses to the same overt act or

9 confession in open court."

10

CHAIRMAN THOMPSON: Is there any objection to that

11 language?

12

MS. DAVIS: Who does "them" refer to?

13

MS. MCGOUGH: The enemies.

14

MS. BELL: In that case, shouldn't the "or" be in

15 front of "adhering", shouldn't there be an "or" in front of

16 "adhering"?

17

MR. PEARSON: Usually the "or" is before the last

18 asrticle mentioned in the list.

19

MR. WHELCHEL: There's a comma there.

20

MR. CARLYLE: What if the comma was stricken?

21

MR. WHELCHEL: There's a comma after "State".

22

MR. PEARSON: Yeah.

23

CHAIRMAN THOMPSON: There is a comma after "State".

24 Is there any objection to this language?

25

Hearing none, paragraph XVI is adopted.

78

MR. PEARSON: You have to think fast.

2

CHAIRMAN THOMPSON: Paragraph XVII.

3

MR. GUERRERO: "Conviction, Effect of. No conviction

4 shall work corruption of blood or forfeiture of the State."

5

MR. HILL: There was much discussion about whether or

6 not to change this language because it sounds worse than it

7 turns out to be. The Committee decided -- well the majority

8 of the Committee -- there were dissenting opinions, but

9 decided this "corruption of blood" term covers many, many

10 things. It means your conviction of a crime would have no

11 effect -- have any effect on your progeny, your ancestry. It 12 won't affect the family. We read it from Black's Dictionary

13 and we found that it was really a pretty good term. We

14 couldn't find a way to say it any better, any shorter or have

15 it mean what we want it to mean so we left it in.

16

CHAIRMAN THOMPSON: That prevents one from passing a

17 law that says if you're convicted of a crime your children can

18 not inherit your property or something of that nature. Have

19 you read it?

20

JUDGE POWELL: Read--

21

CHAIRMAN THOMPSON: Read "corruption of blood". Is it

22 in there?

23

MS. MCGOUGH: I don't like it but I'm convinced

24 there's no substitute.

25

MR. BONEY: I move the adoption.

1-----------------------------------------
79

MS. DAVIS: I don't like it for a different reason.

2 I think if it goes to the voters -- if we can't explain it

3 right here how are we going to explain it to them in the hope

4 they will vote for it?

5

CHAIRMAN THOMPSON: I think by the time they get down

6 to that paragraph they'll be tired of listening to it.

7

MS. DAVIS: That's all the more reason to vote

8 against it. If they don't understand that's all the more 9 reason to vote against it.

10

CHAIRMAN THOMPSON: I've got a lot of faith in the

11 voters.

12

MR. WHELCHEL: They've adopted it time and time

13 again. Every time they've voted on it it's the same language.

14

MS. DAVIS: Recently though, if you go according to

15 the last election, they opposed everything because it was too

16 weighty and too meaty and I just think we ought to be as

17 explicit as possible and that is not explicit.

18

CHAIRMAN THOMPSON: Have you found it, Romae??

19

JUDGE POWELL: Yes.

20

CHAIRMAN THOMPSON: What does it say? "Corruption of

21 blood", in English law the consequence of attainder being that

22 the attainted person could neither inherit lands nor other

23 herediments from his ancestry, nor retain those he already

24 had, nor transmit them by descent to any heir because his

25 blood was considered in law to be corrupted. I can't think of

80

any better way to say it unless you write that definition in

2 there.

3

MR. PEARSON: It's just a term that has historical

4 utility. It does have a very distinct meaning. There are

5 lots of terms in the Constitution that are going to be

6

MS. MCGOUGH: Bill of attainder, ex post --

7

MR. PEARSON: Ex post facto law.

8

MS. MCGOUGH: And now remonstrance.

9

MS. BELL: Is that Could we say no conviction?

10

MR. PEARSON: It's more than that.

11

MR. BONEY: I move the adoption.

12

MR. GUERRERO: I second it.

13

CHAIRMAN THOMPSON: It's been moved and seconded that

14 language be adopted. Is there any unreadiness? All in favor

15 let it be known by raising your hands. That's a clear

16 majority. The minority was one, two, three. It was seven to

17 three.

18

Paragraph XVIII.

19

MR. GUERRERO: "Banishment and Whipping as Punishment

20 for Crime."

21

JUDGE POWELL: That bothers me. There is a provision

22 in the Constitution not the Constitution but the statute

23 that has to do with inheritance by a person if they kill

24 someone else, is that still in effect, that provision in the

25 law?

'-------------------------------- -----------

1------ -- ---'--. - -~~~- ----~---------~-~-,-----

----~------,--

81

MR. BONEY: A person who killed another can not

2 benefit by the death. Sometimes a person would kill one's

3 insured, is that what you have reference to?

4

JUDGE POWELL: Yeah.

5

MR. WHELCHEL: That's different.

6

CHAIRMAN THOMPSON: That doesn't have to do with

7 land.

8

MR. WHELCHEL: That's in a different context.

9

CHAIRMAN THOMPSON: Proceeds of insurance policies

10 and things of that kind.

11

JUDGE POWELL: It only has reference to policies?

12

MR. WHELCHEL: It only has reference to profiting by

13 your act. You can not profit by killing someone.

14

MR. BONEY: Benefit by your --

15

MR. WHELCHEL: It doesn't have anything to do with

16 "corruption of blood".

17

MS. MCGOUGH: Well it does in the sense that you can

18 kill and your children could inherit.

19

CHAIRMAN THOMPSON: Item XVIII.

20

MR. GUERRERO: "Banishment and Whipping as Punishment

21 for Crime. Neither banishment beyond the limits of the State,

22 nor whipping, shall be allowed as punishment for crime."

23

CHAIRMAN THOMPSON: Does anyone have any objection to

24 that? They removed slavery, that's what they did. It's all

25 right to have slaves but you can't have -- you can't hold

82

people in involuntary servitude.

2

MR. BONEY: That's not the one.

3

CHAIRMAN THOMPSON: "Banishment and Whipping as

4 Punishment", any objection to the language? I hear no

5 objection so that language is adopted.

6

Paragraph XIX.

7

MR. GUERRERO: "Involuntary Servitude. There shall

8 be no involuntary servitude within the State of Georgia,

9 except as punishment for crime after legal conviction thereof

10 or for contempt of court."

11

CHAIRMAN THOMPSON: The explanation reads that they

12 feel like involuntary servitude covers slavery.

13

MR. GUERRERO: Why do they need to add "contempt of

14 court" in there? Just as information?

15

CHAIRMAN THOMPSON: Because we're putting folks in

16 jail for contempt of court.

17

MR. GUERRERO: That needs to be in there explicitly?

18

CHAIRMAN THOMPSON: I think so. I think the court

19 gets this power in certain types of civil contempt.

20

MS. MCGOUGH: Nonpayment of alimony and child

21 support. It might be added the appellate cases have carved

22 that out. In any event all we're doing is confirming what

23 they've done.

24

CHAIRMAN THOMPSON: Somewhere else in this thing it

25 says "the General Assembly has the power to limit the court's

83

right to punish for contempt" so there are some limitations on

2 it.

3

Hearing no objection to that language, it is adopted.

4 That's Paragraph XIX.

5

Paragraph XX.

6

MR. GUERRERO: "Imprisonment for Debt. There shall

7 be no imprisonment for debt."

8

CHAIRMAN THOMPSON: Do I hear objection to this

9 language?

10

MR. PEARSON: Those who believe in the simplicity of

11 language should like that one.

12

CHAIRMAN THOMPSON: That's the best paragraph I've

13 seen yet. The language in Paragraph XX is adopted.

14

Paragraph XXI.

15

MR. GUERRERO: "Costs. No person shall be compelled

16 to pay costs in any criminal case except after conviction on

17 final trial."

18

CHAIRMAN THOMPSON: Is there any objection to that

19 language. Hearing none, Paragraph XXI is adopted.

20

Paragraph XXII.

21

MR. GUERRERO: "Status of the Citizen. The social

22 status of the citizen shall never be the subject of

23 legislation."

24

CHAIRMAN THOMPSON: Is there any objection to that

25 language?

84

Hearing none, Paragraph XXII is adopted.

2

Paragraph XXIII.

3

MR. GUERRERO: "Exemptions from Levy and Sale. The

4 General Assembly shall protect by law from levy and sale a

5 portion of the property of each citizen in an amount of not

6 less than $1,600 and shall have the authority to define to

7 whom such exemption shall be allowed, to specify the amount of

8 such exemptions, to provide the manner of exempting such

9 property, the sale, alienation and incumberance thereof and to

10 provide for the waiver of said exemptions by the debtor."

11

MR. HODGES: I still don't like it. I don't like the

12 $1600. I think it ought to be a percentage.

13

CHAIRMAN THOMPSON: It's a minimum, that's what it

14 is.

15

MS. OSTRANDER: It's up to $5,000. It still puts it

16 in the realm of the General Assembly. I brought the same

17 question up, Cheatham, about percentage but I can't see a

18 soluation to it.

19

JUDGE POWELL: It says "not less than". I think

20 you've got a floor but you don't have --

21

MR. HODGES: That's what bothers me. You see, when

22 you deal with money in the Legislature, Mr. Chairman knows it,

23 they always work to the floor.

24

CHAIRMAN THOMPSON: No, we don't. We have folks

25 right now who are exempted up to much higher than that.

85

People who are over the age of 65 are exempted from certain

2 things.

3

MR. HODGES: But that's because they're over the age

4 of 65.

5

CHAIRMAN THOMPSON: The point I'm making is there are

6 instances where we have gone above the floor already. We

7 don't stay at the bottom.

8

MS. OSTRANDER: It's up to $5,000 now.

9

JUDGE POWELL: Levy and sale.

10

CHAIRMAN THOMPSON: We have a floor but the General

11 Assembly, and in some instances by special legislation certain

12 counties have exceeded that. So that just means that there is

13 a bottom. They can't go below it but already the example has

14 been set where they have exceeded that particular figure.

15

MR. HILL: Mr. Chairman, I think I should point out

16 something about this. There's a major change in here. The

17 present exemption from levy and sale applies primarily to

18 heads of households. That's how it was written and that was

19 the intent. Now the Committee, in thinking about it and

20 talking about it, decided that the exemption should apply to

21 each person regardless of their marital status but the General

22 Assembly

or family status but the General Assembly should

23 have the authority to define other categories besides each 24 person and perhaps provide for a higher exemption from levy

25 and sale from others so what this does by putting a floor of

86

$1,600 in it extends this to all single people in the state

2 that have no such exemption from levy and sale at this point

3 in time and then secondly, it also authorizes the General

4 Assembly to define the categories and classifications that

5 will be used for others.

6

Now presently the state law does authorize an

7 exemption for heads of households under this very provision of

8 $5,000. You know, this state -- general state law passed

9 pursuant to this authorization has gone higher, much higher

10 than $1,600, so the Committee -- you know, I think the idea of

11 a percentage was thought about but the problem was finding

12 what to tie it to, what the base would be and they felt they'd

13 gone pretty far with this recommendation because it gives the

14 $1,600 exemption to all people that is not there now so that

15 was kind of the thinking.

16

MR. HODGES: I understand. Excuse me.

17

JUDGE POWELL: Question. Does it really do what

18 you're saying? It seems to me in line 15 you say "a portion

19 of each citizen" and that would take care of the single 20 individual but then you go down to line 16 "and shall have the 21 authority to define to whom such exemptions shall be allowed".

22 I'm wondering if that line is necessary if each citizen would

23 be accorded this floor. Don't we need to leave out "and shall

24 have the authority to define" and give each citizen that

25 right?

-----------------, 87

MR. HILL: Well the reason for that second part

2 though is to allow them to have different categories and have

3 higher exemptions for heads of households if they so choose.

4 Maybe we didn't accomplish what we were trying to with this

5 language but the idea is that everyone would have $1,600, but

6 if the General Assembly wanted to give heads of household a

7 higher as they now do, give heads of household a higher

8 exemption then they would be authorized to do it by this.

9

JUDGE POWELL: Couldn't that still be accomplished by

10 specifying the amount of such exemptions and specify different 11 amounts to different categories or persons?

12

MS. MCGOUGH: What if we said or shall have the

13 authority to define to whom any additional exemptions shall be

14 allowed?

15

MR. HILL: That would probably help.

16

MS. MCGOUGH: That's a good point.

17

MR. HODGES: Mr. Chairman, the word "citizen" is also

18 limiting because of the fact don't we also need we have to

19 protect our nonresident aliens and such persons as that who

20 have legitimate rights within this state and they are 21 legitimate residents of the state and I think we should change 22 the word "citizen" to person.

23

You know, I raised the question and then couldn't get

24 back to the meeting on the $1,600, so I see the reasoning that

25 you brought forth on that. I can accept generally that but my

88

concern was -- and the reason I brought it up so that the

2 General Committee or the whole Committee can hear it is that

3 there is such a tremendous number of bankruptcies that are

4 taking place today and are anticipated that we should make

5 some effort to protect the body of the household in what way

6 we can and obviously the Committee has attempted to do that by

7 making this applicable to each person in the household so that

8 when you have children a child is a person so that means

9 everybody in the household will be -- It will be cumulative to

10 the extent, instead of being $1,600 for the entire family, it

11 could be $1,600 times 5 or whatever the limits are when you

12 say each person.

13

But I would, on line 15, specifically request a

14 change of "citizen" to "person".

15

MR. PEARSON: I'd like to suggest an additional

16 reason that it might not be constitutional to restrict

17 exemptions to citizens. States might not be able to impose as

18 restrictions. The authority of the states to discriminate on

19 the basis of alienage is fairly limited and this would

20 probably be a situation where that kind of discrimination

21 would not be constitutional as a Federal Constitutional

22 matter.

23

MR. BONEY: We might have one danger here'. If we

24 eliminated before land any type property but we keep a person

25 from having multiple residences here maybe -- and get an

89

exemption of several states I'm not so sure that maybe we

2 shouldn't have some limitation on it. Is every transient

3 coming through going to have the right to have a certain

4 amount of property that you couldn't levy or sale?

5

JUDGE POWELL: If he goes to another state and gets

6 into the same situation of pressing himself subject to a levy

7 and sale wouldn't he have that same right in another state or

8 here in our state?

9

MR. BONEY: If you're a judgment creditor and you

10 think the man is a resident of Alabama and you catch him in

11 Georgia and you can seize his automobile or some property here

12 could he set it aside here and you go over in Alabama and he

13 sets it aside over there? Could you never be able to satisfy

14 me? That's the point I'm raising.

15

MR. PEARSON: Sounds like a conflict of laws

16 question. You might find the Georgia State saying that the

17 law -- the exemption laws of the state of domicile would

18 apply, I don't know.

19

MR. BONEY: By changing it to persons I think we're

20 opening up something that's not there when we say "citizens".

21

MR. PEARSON: But on the other hand, his point is

22 you've got your resident alien who couldn't claim it at all

23 and I think as applied to that person under the federal case 24 law this provision would probably be unconstitutional.

25

MR. BONEY: I think you're probably right.

90

MR. CARLYLE: Would the language " each person

2 domiciled in this state" --

3

CHAIRMAN THOMPSON: That would discriminate between

4 people who owned properly and live in the state and those who

5 own property and live out of the state.

6

MR. HILL: This has come up in other places. We have

7 used the term "legal resident" anytime we have a question

8 about this. Now a person would be as broad as it could be and

9 it would cover --

10

MR. PEARSON: Resident alien.

11

MR. HILL: Resident alien, legal resident. I'm not

12 sure whether it would be covered or not. That requires --

13

MR. PEARSON: You run into another constitutional

14 problem there. The privileges and immunities clause of the

15 Federal Constitution prohibits discrimination by states

16 against nonresidents so you're really -- I think "citizen" has

17 problems, I think legal residents would also present some

18 constitutional problems. I'd be a little concerned just

19 trying to be right as far as the law is concerned. Now I

20 think you run some risk with both types of phraseology.

21

CHAIRMAN THOMPSON: Can we get a motion?

22

Ms. Bell?

23

MS. BELL: I have one further point on lines 18 and

24 19. I would suggest that we change that to read:

to

25 provide the manner of exempting such property from the sale,

91

alienation or incumberance thereof".

2

CHAIRMAN THOMPSON: Okay.

3

Mike?

4

MR. WHELCHEL: That's changing it and I'm not saying

5 we shouldn't change it but that changes the meaning, doesn't

6 it?

7

MS. BELL: It's not a complete clause the way it's

8 written. You're exempting from sale, alienation or

9 incumberance, aren't you? All I'm doing is inserting the

10 from.

11

MR. WHELCHEL: Well I was reading it as saying what

12 you can do with it after you apply for and obtain the

13 exemption. I may be misreading it.

14

CHAIRMAN THOMPSON: I don't think you need the from.

15 It -- That thereof takes care of it. The sale of alienation

16 and incumberance thereof, that relates back.

17

MS. MCGOUGH: I have a question. We certainly did

18 not discuss in the sUbcommittee when we were trying to get rid

19 of head of household whether or not on Mr. Hodges point we

20 meant by using the word person to include children. I think

21 we talked -- Our discussion focused exclusively on adults.

22 What happens when you use person? Are we saying three

23 children and two parents is 5 times $IGOO?

24

MR. WHELCHEL: I don't think you do.

25

MR. PEARSON: I think the judgment debtor would claim

92

the exemption to the extent of $1,600. If he's the person who

2 is the property holder then that's it. Now I don't think you

3 get an accumulation.

4

MS. MCGOUGH: Well he was doing the mathematical

5 formula times children and I wasn't taking into account

6

MR. PEARSON: I see the point you're trying to make

7 but my thought is --

8

JUDGE POWELL: It's just the judgment debtor.

9

MR. PEARSON: That gets the claim of exemption.

10

CHAIRMAN THOMPSON: We need to resolve this.

11

JUDGE POWELL: Of course if you have a head of

12 household who is entitled to an additional exemption it seems

13 to me under this language the General Assembly could make such

14 provisions for that if they want to take in the three children

15 or what have you.

16

CHAIRMAN THOMPSON: We're going to hear Mike and then

17 we're going to close our discussion.

18

MR. PEARSON: I make a motion then. Go ahead, excuse

19 me.

20

MR. HENRY: I was just wondering if the words "after

21 the General Assembly shall protect by law from levy and sale a

22 portion of the property" in the present provision has "by

23 virtue of any process whatever under the laws of this State",

24 and I notice it was deleted from here. I think that extends a

25 broader protection than the words that you have now, whether

1
93

you want to extend that protection. There are certain things

2 where it would possibly be construed that absent that language

3 that exemption would not be applicable.

4

JUDGE POWELL: Read that again.

5

MR. HENRY: In my research specifically into whether

6 this exemption could be claimed in a garnishment type of

7 proceeding it was difficult for me to see how property would

8 be garnished but it is possible. The only thing I had to hang

9 my hat on to say yes, this exemption would apply was that

10 garnishment was a process under the laws of this state.

11

MR. CARLYLE: But to collect the jUdgment once you

12 got the property you have to levy and sell the property.

13

MS. MCGOUGH: Not if you're talking about a bank

14 account. You attach it by garnishment and you obtain it after

15 the hearing. There's no levy and sale in garnishment. There

16 is if you garnish a piece of property but not as to an account

17 of money.

18

MR. CARLYLE: But under the old language it's an

19 exemption from levy and sale and of course that arose because

20 of the homestead real property and I think that was the

21 intent.

22

CHAIRMAN THOMPSON: Okay. Does someone wish to make

23 a motion pertaining to this?

24

JUDGE POWELL: I so move that we delete the word

25 "citizen", insert person and in line 17 add an additional

94

before the words -- "any additional".

2

MR. GUERRERO: I second it.

3

MR. HODGES: You didn't feel on 19 from --

4

CHAIRMAN THOMPSON: (Nodding head negatively.)

5

JUDGE POWELL: No.

6

CHAIRMAN THOMPSON: It was the consensus from didn't

7 add anything.

8

MR. HODGES: And also the question rather than saying

9 "the property", would it be protective to say any property?

10

MR. HILL: No. I think "the property" encompasses

11 the whole total sum of their property. Any would mean a

12 specific portion of it. We're saying "the property", whatever

13 it is, wherever it is.

14

MR. HODGES: You're not getting into real properties

15 alone then by saying the property?

16

JUDGE POWELL: It would include personal property

17 too.

18

MR. HODGES: This means everything, okay.

19

CHAIRMAN THOMPSON: All right. There's a motion that

20 this paragraph be adopted.

21

MR. BONEY: What was the change on line 18? I missed

22 that.

23

MR. WHELCHEL: It's on 17.

24

MR. BONEY: What was that change?

25

CHAIRMAN THOMPSON: Strike the word "such" which is

95

the second word on there and it would read: "whom any

2 additional exemption shall be allowed".

3

MR. BONEY: All right.

4

CHAIRMAN THOMPSON: All in favor let it be known by

5 raising your hands. One, two, three, four, five, six, seven,

6 eight.

7

Opposed?

8

MR. PEARSON: But the point that Mr. Carlyle brought

9 up and you did, I would like to reserve the right to look into

10 some of the technical aspects of that before I make the final

11

12

CHAIRMAN THOMPSON: I'm being a bit arbitrary because

13 we do have some time restraints. I hope we'll be able to get

14 out of here by 1:00. I don't know whether we will or not but

15 I'm trying to head for that. We're going to have another

16 meeting for the adoption of the final document.

17

MR. PEARSON: All I'm saying is given the changes

18 that we're making here I'm a little bit in the dark as to the

19 precise -- precisely how the impact might come up on

20 garnishment situations and I want to be sure that we're not

21 doing something that could be construed as making it 22 inapplicable.

23

CHAIRMAN THOMPSON: Well we do have one more meeting.

24

MR. PEARSON: Okay. That's what I'm saying. Let's

25 reserve the option to take that into account.

96

CHAIRMAN THOMPSON: I want that. I'm being a little

2 arbitrary sometimes in the way I'm pushing you and I

3 understand that and I hope you go along with me on this

4 because we do have some time restrictions.

5

Okay. Next paragraph is XXIV.

6

MR. GUERRERO: "Spouse's Separate Estate. The

7 separate property of each spouse shall remain the separate

8 property of that spouse except as otherwise provided by law."

9

CHAIRMAN THOMPSON: Do I hear any objection to this

10 language? Hearing none, the language is adopted.

11

Paragraph XXV.

12

MR. GUERRERO: " Enumeration of Rights Not Deinal of

13 Others. The enumeration of rights herein contained as a part

14 of this Constitution shall not be construed to deny to the

15 people any inherent rights which they may have hitherto

16 enjoyed."

17

CHAIRMAN THOMPSON: Is there any objection to the

18 language of Paragraph XXV? Hearing none, the language is

19 adopted.

20

Okay. That brings us to the motion that is before

21 the body at this time, the adoption of Section I as amended.

22 It has been properly moved and seconded that Section I as

23 amended be adopted. Is there any unreadiness? All in favor

24 let it be known by raising your hand.

25

Those opposed, by the same sign.

97

It's unanimous.

2

We'll go to Section II. Ms. Bell, would you go ahead

3

4 and read the paragraphs in the same manner that Mr. Guerrero

5 has been doing for Section I?

6

MS. BELL: Shall I make a motion first?

7

CHAIRMAN THOMPSON: Yes, make a motion.

8

MS. BELL: I will move that we adopt Section II as

9 approved by the Subcommittee.

10

CHAIRMAN THOMPSON: Is there a second to that motion?

11

MS. OSTRANDER: I'll second it.

12

CHAIRMAN THOMPSON: We're going to read it section by

13 section.

14

MS. BELL: "Paragraph I. Origin and Foundation of

15 Government. All government, of right, originates with the

16 people, is founded upon their will only, and is instituted

17 soley for the good of the whole. Public officers are the

18 trustees and servants of the people, and at all times,

19 amenable to them."

20

MR. HODGES: I move it be adopted.

21

(Brief pause.)

22

CHAIRMAN THOMPSON: All right. We've had a reading

23 of Paragraph I. Is there any objection to the language in

24 Paragraph I? Hearing none, we have adopted Paragraph I.

25

Paragraph II.

98

MS. BELL: "Object of Government. The people of this

2 State have the inherent right of regulating their internal

3 government. Government is instituted for the protection,

4 security and benefit of the people and they have the right at

5 all times to alter or reform the same, whenever the public

6 good may require it."

7

CHAIRMAN THOMPSON: Now, Mel, wasn't there some note

8 you had on that?

9

MR. HILL: This paragraph came from -- It's a

10 restatement of the present principle but in better language.

11 We looked through some other Constitutions and found a better

12 statement and decided to incorporate it into this draft.

13

CHAIRMAN THOMPSON: Is there any objection to this

14 language? Hearing none, we have adoped Paragraph II.

15

Paragraph III.

16

MS. BELL: This is a new Paragraph III.

17 "Legislative, Judicial, and Executive Powers, Separate. The

18 legislative, judicial, and executive powers shall forever

19 remain separate and distinct, and no person discharging the

20 duties of one, shall, at the same time, exercise the functions

21 of either of the others, except as herein provided."

22

CHAIRMAN THOMPSON: Is there any objection to the

23 adoption of the language in Paragraph III?

24

MS. MCGOUGH: I have a question. Was Paragraph

25 "the original Paragraph III omitted simply because it was

99

thought to be redundant?

2

MR. HILL: Yes. The intent was that Paragraph II,

3 the new restatement, encompassed the intent of Paragraph III. 4 Now the fact is this other provision stated that protection

5 is the paramount duty and shall be impartial and complete. By

6 virtue of adding an equal protection clause in Paragraph

7 Section 1 we felt that impartiality was being perserved.

8

MS. MCGOUGH: Okay.

9

CHAIRMAN THOMPSON: Is there any objection to that

10 language? Hearing none, Paragraph III is adopted.

11

Paragraph IV.

12

MS. BELL: "Paragraph IV. Contempts. The power of

13 the Coruts to punish for contempt shall be limited by

14 legislative acts."

15

CHAIRMAN THOMPSON: Is there any objection to that

16 language? Hearing none, Paragraph IV is adopted.

17

Paragraph V.

18

MS. BELL: "Paragraph V. What Acts Void.

19 Legislative acts in violation of this Constitution, or the

20 Consitution of the United States, are void, and the Judiciary

21 shall so declare them."

22

CHAIRMAN THOMPSON: Is there any objection to the

23 adoption of Paragraph V? Hearing none, Paragraph V is

24 adopted.

25

Paragraph VI.

100

MS. BELL: "Paragraph VI. Civil Authority Superior

2 to Military. The civil authority shall be superior to the

3 military."

4

CHAIRMAN THOMPSON: Now did you want to

5

MR. HILL: There was some discussion in the Committee

6 about whether to retain the specific prohibition about the

7 quartering of soldiers in homes without the consent of the

8 owner and the consensus of the Committee, although it was not

9 unanimous, was that the first statement encompassed the latter

10 and that there was no need for the specific statement in here

11 so that's where it is.

12

CHAIRMANTHOMPSON: Is there any objection to the

13 adoption of that language?

14

MR. HILL: Do you understand what we're deleting?

15 Are you with us? This might be one of those things that's

16 controversial. We're deleting the statement that no soldier

17 shall be quartered --

18

MS. MCGOUGH: Except by civil magistrate. Even under

19 the old one a civil magistrate could say you take these four

20 privates into your home, right? All we're limiting here is

21 the power of the military to quarter them.

22

MR. HILL: Right.

23

CHAIRMAN THOMPSON: I don't think the question has

24 really come up since the British army came through the last

25 time.

----------------_._101

MS. MCGOUGH: You never know when they're going to

2 come through again.

3

CHAIRMAN THOMPSON: All right. If there are no

4 objections that language is adopted.

5

Paragraph VII in the old one was wiped out. Mel do

6 you have

7

MR. HILL: Paragraph VII was transferred to Article

8 3. It really relates to the enactment of laws by the General

9 Assembly and this appears with modification over in Article 3

10 will not be in the Bill of Rights Article any longer.

11

CHAIRMAN THOMPSON: Ms. Bell?

12

MS. BELL: Present Paragraph VII. "Citizens,

13 Protection of. All citizens of the United States, resident in

14 this State, are hereby declared citizens of this State, and it

15 shall be the duty of the General Assembly to enact such laws

16 as will protect them in the full enjoyment of the rights,

17 privileges and immunities due to such citizenship."

18

There's a comment here that placement is questioned,

19 but as I recall in the last Committee meeting we decided

20 unanimously to retain it, didn't we?

21

MR. HILL: Oh, it's definitely going to be retained

22 in the Bill of Rights. I think there was some -- That's

23 right. We wondered whether to move it to the Section I and

24 decided to leave it here so the Subcommittee's recommendation

25 is to leave it where it is.

102

CHAIRMAN THOMPSON: Well we're going to open up the

2 question as to whether anything is misplaced after we have

3 gone completely through Section II.

4

MS. DAVIS: You might put that above the citizens

5 right to bear arms.

6

CHAIRMAN THOMPSON: Hearing no objections to the

7 language, Paragraph VII -- we have adopted Paragraph VII.

8

Paragraph VIII.

9

MS. BELL: "Paragraph VIII. Separation of Church and

10 State. No money shall ever be taken from the public Treasury,

11 directly or indirectly, in aid of any church, sect, or

12 religious denomination, or of any sectarian institution, nor

13 shall any public property ever be appropriated for any such

14 purpose."

15

MR. HILL: The feeling of the Committee was that the

16 prohibition should be more extensive than just public funds.

17 It should also apply to public property and that was the

18 intent of the addition.

19

CHAIRMAN THOMPSON: Is there any objection to the

20 language?

21

MR~ HODGES: Mr. Chairman, the new word cult is now

22 creeping -- I'm wondering if we should be more protected to

23 the point of getting -- since we've got sect in there we

24 should also have cult.

25

MS. MCGOUGH: The likelihood of the General Assembly

1,

-- - - - - - - - - - --....,

103

2

CHAIRMAN THOMPSON: Cheatham has suggested we put

3 cult in there, is there any objection to adding the word cult?

4

MS. DAVIS: Wouldn't sect refer to cult?

5

MR. HODGES: In California they just refer to -- they

6 were separate.

7

CHAIRMAN THOMPSON: Let's put cult in there. Is

8 there any objection to the language as amended? Hearing none,

9 Paragraph VIII is adopted.

10

All right, Madam Chairman, explain what used to be

11 XI, XII and XIII.

12

MS. BELL: Paragraphs XI, XII and XIII dealing with

13 lobbyists, lobbying penalties, fraud, concealment of property,

14 the Subcommittee unanimously voted -- I believe it was

15 unanimous, voted to delete these from the Constitution feeling

16 that they are not appropriate for Constitutional

17 consideration, that they are matters properly for the

18 Legislature; therefore, the Committee recommends that all

19 three of these be deleted.

20

CHAIRMAN THOMPSON: Are there any questions about

21 that or does anybody disagree with this? Okay. The motion

22 before the house is that Section II be adopted. It has been

23 properly seconded. Is there any unreadiness? All in favor of 24 adopting Section II of Article I let it be known by raising

25 your hand.

104

Those opposed by the same sign. It appears to be

2 unanimous.

3

All right. We have Section III and IV, but before we

4 get into that could we discuss briefly the question of whether

5 anything in Section I and Section II you would prefer a

6 different placement?

7

MS. DAVIS: I raise the question of the right to bear

8 arms and whether that's placed in relationship to some other

9 rights and I still think it would be better, even though it's

10 a federal constitutional right, it ought to be be placed

11 further down in terms of where it is placed now. It's very

12 close to the top.

13

CHAIRMAN THOMPSON: Does anyone have any Do you

14 have any specific place you want to put the right to bear arms

15 other than out of the Bill of Rights?

16

MS. DAVIS: I go back -- I think a citizen's right to

17 be protected certainly ought to come before his right to bear

18 arms.

19

MR. HODGES: Why not put it after Paragraph VII in

20 Section II?

21

CHAIRMAN THOMPSON: Why don't we move the protection

22 of citizens -- why don't we move that up?

23

MR. HILL: Which one now?

24

CHAIRMAN THOMPSON: You want I'm talking about

25 Paragraph VII, Citizens, Protection of. Make that Paragraph

._-----

-------------,
105

IV in Section II and renumber all of the others.

2

MS. BELL: We're moving it from Section I to Section

3 II. I'm sorry, I'm lost. I thought we were talking about the 4 right to bear arms.

5

MR. HILL: The right to bear arms is in Section I.

6

CHAIRMAN THOMPSON: Are you moving that it go in

7 Section I?

8
9 Arms. 10

MR. HODGES: Right, in front of the Right to Bear CHAIRMAN THOMPSON: Protection of Citizens goes in

11 Section I?

12

MS. DAVIS: Before the Right to Bear Arms.

13

MR. BONEY: What paragraph is going where now?

14

MR. HILL: We're now sure of anything.

15

MR. BONEY: The Right to Bear Arms is now VI in I on

16 page 2.

17

MS. MCGOUGH: Paragraph VII from Section II to

18 Section I, Paragraph IV.

19

MR. BONEY: Give us a page and a section.

20

CHAIRMAN THOMPSON: Is that a motion that Paragraph

21 VII of Section II be removed to Section I and it become

22 Paragraph IV and all of the other sections be renumbered?

23

MR. WHELCHEL: You want to make it IV or V?

24

MR. BONEY: Paragraph VII. Paragraph VII on page 7,

25 moving it to page 2 in front of Paragraph VI and renumber, is

106

that what we're doing?

2

CHAIRMAN THOMPSON: Someone has suggested that it

3 become a new Paragraph IV. You could put it in front of

4 Libel.

5

MS. MCGOUGH: Paragraph VI.

6

MS. OSTRANDER: That would just move everyone down

7 one.

8

CHAIRMAN THOMPSON: All right. That become Paragraph

9 VI, is that a motion?

10

MS. DAVIS: I so move.

11

CHAIRMAN THOMPSON: Is there a second to it?

12

MS. MCGOUGH: I second.

13

MS. OSTRANDER: I second.

14

CHAIRMAN THOMPSON: It's moved and seconded that

15 Paragraph VII of Section II become Paragraph VI of Section I

16 and that the other paragraphs be renumbered. All in favor of

17 that motion let it be known by raising your hand. It appears

18 to be unanimous, it passed.

19

Are there any other displacements? If there are none

20 we'll go down to the knotty problem of Section III.

21

MR. HODGES: Mr. Chairman, you're still saying that

22 in the final meeting, the right

23

CHAIRMAN THOMPSON: We can change anything we want to

24 in the final meeting. We're not locking anything in.

25

Madam Chairman, can I take the liberty of opening up

-----~--~----------------_._

.. _-~

107

on Section III?

2

MS. BELL: I wish you would.

3

CHAIRMAN THOMPSON: Section III has to do with

4 condemnation procedures and we have some knotty problems

5 dealing with this particular thing because we want to preserve

6 all of the rights and things that we have, but there was a lot

7 written into Section III as it was because it has been amended

8 to permit a different type of condemnation, particularly in

9 reference to the Highway Department. The Highway Department,

10 which has a great deal to do with federal funds, under the old

11 condemnation proceeding it was required that the money be

12 first paid before title passed. That meant that in the event

13 there was a appeal from a condemnation award, if it took two

14 or three years for that to be determined then it was two or

15 three years before the State of Georgia or the condemning

16 authority had gotten title to the property. The federal

17 statutes, as I understand it, on road building requires that

18 the State of Georgia where they were going to participate with

19 federal funds had title to the property at the time the

20 federal funds were granted or at the time the federal funds

21 were expended which meant that if there was an appeal from the 22 condemnation award that they could not proceed with the

23 building of the federal highway because the State of Georgia

24 could not acquire title until after the money had first been

25 paid in the condemnation proceeding. The old statute was

108

amended. We have an authority on this present. The old

2 statute was amended so we have a declaration of taking which

3 would pass the title immediately and the money would be placed

4 into the registry of the court or something of this kind until

5 there was a final determination as to the amount or what the

6 award should be. We were trying to simplify this thing. The

7 Committee recommended the elimination of two and a half pages

8 of printed material there and it carne down to what we carne up

9 with this morning as a recommendation on eminent domain.

10

Madam Chairman -- is there any question about what

11 I've said? Maybe I didn't say it clearly. Madam Chairman, if

12 you would go on into Paragraph I of Section III.

13

MS. BELL: "Paragraph I. Eminent Domain. Private

14 property shall not be taken, or damaged, for public purposes,

15 without just and adequate compensation being paid in the

16 manner provided by law. Notwithstanding any other provision

17 of the Constitution, the General Assembly may provide by law

18 for relocation assistance and payments to persons displaced

19 through the exercise of the power of eminent domain. " That is

20 the paragraph as it was tentatively approved by the

21 Subcommittee at our last meeting.

22

This morning we met briefly with a very, very small

23 subcommittee present. A motion was made to change the first

24 sentence to read: "Private property shall not be taken or

25 damaged for public purposes without just and adequate

109

compensation being paid in the manner and at the time provided

2 by law." The motion was directed toward Mike's view that the

3 way it was tentatively approved last time might very well 4 undercut the declaration by taking method -- what is it,

5 declaration of taking -- The motion was made. Our discussion 6 had to be cut short in order to come to this meeting so that's

7 really where we left it at the time that the subcommittee

8 meeting ended.

9

MR. BONEY: Mr. Chairman, on this question now the

10 thing that has baffled and puzzled the courts of our state for

11 years and years and which they have ruled one way and

12 subsequently ruled again and then reversed themselves is what

13 about the expense involved in ascertaining what is just and

14 adequate. Did y'all give any consideration to that? It's

15 been up before the Supreme Court three or four times, they've 16 gone this way, they've gone that way and they've gone back

17 this way. The Constitution says "just and adequate

18 compensation". Now we've argued up there both ways. I've

19 been on both sides of it. I've lost, I know, two or three

20 times but it's a real close question. Now the question boils

21 down to this and I just really want to know if y'all gave it

22 any consideration?

23

MR. HENRY: I don't think that we speak to that, the

24 issue of attorney's fees?

25

MR. BONEY: Expense of litigation, simplified for

110

these people here that are not familiar with this.

2

You go out there and you're going to take a man's

3 tract of land, five or six acres. You say okay, declaration

4 of taking. A couple of experts say it's worth $10,000. My

5 expert says it's worth $20,000. We're going to pay you the

6 $10,000. Well gracious, I can't take that. I've got to

7 appeal it. It's going to cost me a lot of money to go and get

8 my experts, get them ready to go to court, it's going to cost

9 me for attorney's feesand I end up Yeah, I got $15,000 but

10 it cost me $10,000 to get the $15,000.

11

Now the courts have said time and time again that's

12 what the Legislature ought to do and the courts have said, no,

13 by golly, that's right, just and adequate compensation means

14 just and adequate compensation and not minus what it costs to

15 find out what's just and adequate. Then they flip over the

16 other way and then say no -- we have a change on the bench

17 and they say no, just and adequate compensation just means

18 what they determine it to be finally at the jury. It's your

19 own expense. Everybody has to litigate for themselves and you

20 have to payout of pocket what it costs you to determine the

21 jury to be just and adequate.

22

The only question I'm raising is did y'all give that

23 any consideration because that's a real hot issue? Every

24 lawyer in my circuit has jumped me about that. What are you

25 going to do now in the Constitutional revision about eminent

'1
--- ------_._._--
111

domain?

2

MR. HENRY: I believe the Legislature lets those

3 cases go both ways. In one instance they say this is the 4 exclusive jurisdiction of the court to determine what the

5 words "just and adequate compensation" means, but they also 6 speak sometimes saying we will not read attorney's fees into

7 any cause of action unless it is provided for by statute.

8 They say the Legislature is free to provide for attorney's

9 fees in this action if they so desire and another time they'll

10 say well we're not going to pay any attention to what they say

11 anyway because we're going to determine what just and adequate

12 compensation is. I don't think you could write that.

13

MR. BONEY: I would like to offer to it just for

14 discussion and as you have it here, I have no objection to

15 this language, "Private propery shall not be taken or demanded

16 for public purposes without just and adequate compensation

17 being paid, including reasonable expenses, to determine just

18 and adequate compensation in the manner and time provided by

19 law.

20

MR. HODGES: I'd like to second that. This is an

21 area I just got through being the expert witness in a case in

22 this matter and exactly the way Mr. Boney put it was what

23 happened. They had to go to an untold amount of expenses

24 because they were fighting a public utility who just was

25 throwing money hand-over-foot into the case and every time you

112

turned around the two ladies were having to come up and spend

2 more money to fight it.

3

The judge prepared one award, you know, this was in

4 South Carolina where the judge can give the right before the

5 jury comes back in on a condemnation award for you to accept

6 his verdict. He writes his verdict and seals it -- his award

7 and seals it and if you accept his before the jury comes back

8 in, you know, you've got him and he dismisses the jury. It so

9 happens that he was 160 something thousand dollars higher than

10 the jury because he took into his decision all of the costs

11 and everything that the people had to go into to fight the

12 utility company where the jury figured that they were, being

13 citizens, in the long run were having to pay for it if they

14 gave the higher award. So they guessed at an award rather

15 than calculated an award.

16

If there's any way that we can incorporate what Mr.

17 Boney is saying I think we should.

18

CHAIRMAN THOMPSON: May I throw in a word of caution?

19 This question has come up time after time in the General

20 Assembly and they have refused so far to provide by law for

21 the granting of attorney's fees. I don't think they have yet

22 gotten to that point. That also could be the thing to keep

23 this document from passing. We could get in there and get

24 into the doggonedest fight about whether that provision ought

25 to be locked into the Article.

113

May I ask you this? Does this prohibit the General

2 Assembly from providing lawyer's fees in those instances?

3

MR. HENRY: No.

4

CHAIRMAN THOMPSON: It gives them authority if they

5 wish to do so to do that, but what you're saying is we want to

6 make them do it?

7

MR. BONEY: No, that they'll have to consider that in

8 arriving at what's just and adequate. Certainly I don't think

9 any of us really believe -- As I say, I've condemned many,

10 many tracts of land for the State of Georgia on these

11 interstate highways, 75 and 59; many, many, and I've argued

12 both ways and I've represented the land owner against the

13 Georgia Power Company. So I've been on both sides, I know

14 what I'm talking about. In many instances it works a hardship

15 on a man out here. You say we're going to take your property

16 for public use. Whether you want us to or not ain't got

17 anything to do with it and here's what we say: We sent our

18 experts out there, they're the best we can find and we say

19 it's worth this. All right. We pay that money in court and

20 we go on with the construction. The only thing you've got to 21 do is you can take that amount down but you can appeal and 22 then finally when you go before the jury you've spent a lot of

23 money or maybe you get less. Once or -- One or two cases have

24 gotten less by the jury than they were awarded so it works

25 both ways, but I think reasonable attorney fees -- well not

114

attorney fees, expenses for litgation -- sometimes it costs

2 you as much to get an engineer and a recognized appraiser as

3 it does to get an attorney and you spend two or three days

4 there in court. It costs the man money to determine what is

5 just and adequate and I don't believe that's right. I just

6 don't think that's right.

7

MS. MCGOUGH: What if we included -- What if we

8 shifted your phrase -- because I disagree with you about the

9 impact, what if we shifted your phrase "including the 10 reasonable expenses for litigation" down to the second clause 11 in which we said, "the General Assembly may provide by law for

12 the reasonable expenses of litigation, for relocation

13 assistance and payments to persons displaced". Then we

14 haven't mandated and we've maybe avoided the legislative

15 battle and we haven't defined what just and adequate

16 compensation is.

17

JUDGE POWELL: Shift it down to where?

18

MS. MCGOUGH: "Notwithstanding other provisions, they

19 may provide by law for the reasonable expenses of litigation,

20 for relocation assistance . "

21

CHAIRMAN THOMPSON: Ms. Bell?

22

MS. BELL: The problem I see with that, as I read the

23 second sentence, it's the General Assembly that's going to be

24 providing the funds for these relocation payments and with

25 nobody suggesting that the General Assmbly pay these attorney

'1

115

fees --

2

MS. MCGOUGH: No, provide by law for.

3

MS. BELL: Who's going to be given the relocation

4 assistance? It's the state funds that are to be used.

5

CHAIRMAN THOMPSON: The condemning agency but that

6 same thing would be true in the attorney's fees. The

7 condemning agency would also have to pay attorney's fees if

8 the General Assembly so provided.

9

MS. BELL: I thought this sentence was put in to fill

"."
10 in the gap. While the previous paragraph had made provisions

11 for federal funds, this was to authorize the use of state

12 funds for relocation assistance.

13

MR. BONEY: The second sentence there in the first

14 paragraph really is geared toward the federal funds.

15

MS. BELL: No. The second sentence is geared toward

16 state funds. There's a separate provision dealing with state

17 funds.

18

CHAIRMAN THOMPSON: No. What she's saying is the

19 part pertaining to the federal funds is being placed in

20 another part of the Constitution. It's not going to be in 21 Article I.

22

MR. BONEY: I see.

23

CHAIRMAN THOMPSON: But this is in there so it could

24 allow or permit the state to pay relocation funds should the

25 General Assembly wish to do so.

116

Ms. Nonidez?

2

MS. NONIDEZ: Yes. Mr. Chairman, the second sentence

3 is really in there to overcome the prohibition in Article III

4 against granting a gratuity or donation and relocation

5 assistance has been viewed as that -- As Dr. Bell suggested,

6 the second sentence speaks to another problem. It speaks to

7 Sub-Paragraph 2.

8

MS. BELL: Would it meet the attorney's fees problem

9 to add, as a second sentence, between present land 3, "just

10 an adequate compensation shall include reasonable attorney's

11 fees to determine justice and adequacy."

12

MR. WHELCHEL: A reasonable expense is litigation.

13

MR. BONEY: Don't say attorney's fees because that's

14 not the only expense.

15

CHAIRMAN THOMPSON: Why don't you use the word " may "?

16

MR. BONEY: If you used " may " I don't know whether

17 you'd ever do it or not.

18

CHAIRMAN THOMPSON: I'm trying to pass this

19 legislation.

20

MR. BONEY: I understand, but I think this is a

21 fundamental question here. The government is to protect life

22 and property and here we are seizing property and I think we

23 ought to

24

CHAIRMAN THOMPSON: Mr. Boney, I love your position

25 but I'm not sure it will go over in the General Assembly.

117

MR. BONEY: I'm not so sure either but I feel like in

2 obligation through my experience, and here again I represent

3 the State of Georgia right now, the Department of 4 Transportation. I might not tomorrow but even so, I feel very

5 strong about this. I've litigated it for years and years on

6 both sides of the fence and to me it's just a fundamental

7 principle. You shouldn't take a man's property and say well

8 yes, but you contest whether that's right or not and spend

9 every dime you've got and we'll wear you out here in court?

10

CHAIRMAN THOMPSON: Can I tell you what the argument

11 in the General Assembly has been against this?

12

MS. MCGOUGH: Yeah.

13

CHAIRMAN THOMPSON: That it would be encouraging

14 litigation, it wouldn't cost the person anything to litigate.

15 He can go in there and if he disagrees with the state, whether

16 rightly or wrongly, he goes in there and he knows we've got to

17 pay for his lawyers and all the expenses for litigation.

18

MR. BONEY: I think reasonable could take care of

19 that. If the award is less it might cost him.

20

CHAIRMAN THOMPSON: Why don't we put in there "may"

21 instead of "shall"?

22

JUDGE POWELL: No, I think it ought to be "shall". I

23 think that the court can determine whether or not that person 24 is encouraging litigation and being unduly litigous. I think

25 the "shall" ought to go in there. That would be taken into

118

consideration in the assessment of their litigation expenses.

2

Let me ask if you would accept my argument in the

3 Committee was that going into your rationale about how long it

4 takes to litigate the issue of just and adequate compensation

5 that at least a substantial amount should first be paid and I

6 ask if you would accept that because it seems to me that you

7 get people who litigate and they have all these expenses of

8 hiring experts, taking depositions in a lot of instances and

9 you don't have people who can afford to pay this ahead of

10 time. But if they have some money on deposit that they can

11 take down to help the litigation expenses prior to the

12 adequate compensation issue being decided by the court then I

13 think that would help also. I would suggest, if you would

14 accept an amendment, "a substantial amount being first paid

15 into court" and I don't think that would prohibit the state

16 from going ahead and taking the title and I think it will

17 cover the instances that I'm concerned about.

18

CHAIRMAN THOMPSON: Substantial amount doesn't have

19 any real meaning. You have nothing in there to determine what

20 a substantial amount is.

21

JUDGE POWELL: Put a percentage in there, say one

22 half.

23

CHAIRMAN THOMPSON: Why don't you say "any amount not

24 in dispute"?

25

JUDGE POWELL: That would be fine.

- - - - - - - - - - - - - - - ----"--"--------------.,
119

CHAIRMAN THOMPSON: I'm just trying to figure out -2 They're going to make an offer. If the person doesn't accept

3 that at least they've offered that.

4

JUDGE POWELL: That would be fine.

5

CHAIRMAN THOMPSON: If we could develop some language

6 that would pay the amount that has been offered in the court

7

8

MR. HENRY: They do that.

9

MR. BONEY: In most instances they pay it into court.

10

CHAIRMAN THOMPSON: But she's trying to lock this

11 into Article 1.

12

MR. BONEY: I see. It's now in our present

13 Constitution.

14

CHAIRMAN THOMPSON: What language is now in the

15 present Constitution?

16

JUDGE POWELL: First being paid.

17

MR. HENRY: But look at the exceptions.

18

MR. CARLYLE: The last sentence says: "The General

19 Assembly may be law require the condemnor to make prepayment

20 against adequate compensation as a condition precedent to the 21 exercise of the right of eminent domain and provide for the

22 disbursement of the same to the end that the rights and

23 equities of the property owner, lien holders, the State and

24 its subdivisions may be protected".

25

MR. WHELCHEL: First has been left out.

120

CHAIRMAN THOMPSON: Well, we want to leave "first"

2 out because of some things -- The title needs to pass.

3 There's no reason -- Eventually it's going to pass anyway,

4 it's just to pass here.

5

MR. BONEY: I agree that the title ought to pass and

6 go on with the construction. I agree with that 100% but I

7 think they ought to have to pay some money in the court. I

8 agree to that.

9

CHAIRMAN THOMPSON: I don't have any argument with

10 that but I think we ought to say exactly what we mean.

11

JUDGE POWELL: Undisputed amount, I can go along with

12 that, or the offered amount or the amount offered.

13

MR. BONEY: Why don't we say amount determined by the

14 condemnor be paid into court? What he says is just and

15 adequate, let it be paid into court.

16

MR. HENRY: That's what he does at present.

17 Simultaneous with the filing of the declaration, he has to pay

18 it.

19

MR. BONEY: That's what has to be done now.

20

CHAIRMAN THOMPSON: But how could we perfect the

21 language to accommodate this?

22

MR. HILL: We can use that same language we have in

23 the present Constitution, that sentence we just read about

24 providing the prepayment.

25

MR. HENRY: Yeah, the prepayment against adequate

121

compensation I think would mandate that they could not take

2 away that payment into the registry simultaneous with the

3 filing. Your concern this morning, I took it, that we were

4 allowing them to not make them pay before

5

JUDGE POWELL: That's right.

6

MR. HENRY: I think if we add Doug's language, it

7 would mandate that you do have to pay that.

8

JUDGE POWELL: I go along with that.

9

CHAIRMAN THOMPSON: Could someone read it now so that

10 we're trying to do all of these things that --

11

MS. MCGOUGH: We haven't resolved the second point on

12 the just and adequate compensation, have we?

13

MR. HILL: No.

14

MR. BONEY: That was the first point that I raised.

15

CHAIRMAN THOMPSON: That is right. That's still up

16 in the air.

17

MS. MCGOUGH: Can we do anything with the notion of

18 Ms. Bell's suggestion that we use a second sentence defining

19 just and adequate compensation and come up with some

20 satisfactory limitation to take care of your problem unless

21 the court finds the litigation was frivolous or some 22 limitation, some language that would limit it to avoid the

23 free ride notion or does the Committee feel a free ride is

24 okay?

25

MR. CARLYLE: And it's mandated, not leaving it to

122

the discretion of the General Assembly as to litigation

2 expenses?

3

MS. BELL: What if you don't have litigation? If

4 they go through the preliminary stage for a long period of

5 time and it costs them a lot of money but they never progress

6 to the point of litigation is there nothing for them?

7

MR. HENRY: I don't think you'd have any expenses if

8 you just took the money they deposited into the court.

9

MS. BELL: But maybe you reach a compromise a long

10 time before you reach the litigation stage.

11

MR. WHELCHEL: Or you might make some investigation

12 and decide whether you think you're being adequately paid.

13

CHAIRMAN THOMPSON: You'd probably have to hire an

14 appraiser before you come to any conclusion to go out and

15 appraise that property and say it's worth something different

16 from what they're offering.

17

MS. BELL: Why not just reasonable expenses to

18 determine just and adequate compensation?

19

MR. HILL: I have a proposed sentence here as a

20 second sentence to go between the first and the third: liThe 21 General Assembly may provide or shall provide by law for the 22 payment by the state of reasonable expenses of litigation in

23 determining just and adequate compensation."

24

MR. BONEY: I'll accept that.

25

MR. CARLYLE: Payment by the state. How about

123

utilities here as the condemnor?

2

MR. BONEY: Most of the time it's not the state.

3

JUDGE POWELL: Are you putting mayor shall?

4

CHAIRMAN THOMPSON: May. Mr. Boney says shall.

5

MR. BONEY: I want to vote on that one word, mayor

6 shall.

7

JUDGE POWELL: They can read it out like they've

8 already read it out all these years and not provide it.

9

CHAIRMAN THOMPSON: What we're doing is we're sitting

10 here legislating now. We'll legislate money out of the

11 treasury.

12

MR. CARLYLE: The Full Committee or the Legislature

13 can go back to may if they don't like shall.

14

MS. OSTRANDER: You've got to listen to what Al is

15 just saying. Regardless of the legal thing, we're legislating

16 monies now.

17

JUDGE POWELL: This is private money, money by the

18 condemnor which doesn't have anything to do

19

CHAIRMAN THOMPSON: This is public money.

20

MS. OSTRANDER: Public money.

21

MR. BELL: If we use the word may it just seems we're

22 putting in some excess baggage because the General Assembly

23 could provide for that anyway. If you want to guarantee

24 something we've got to use shall.

25

MR. BONEY: I agree with you. We've had the "may"

124

for 10 or 12 years.

2

CHAIRMAN THOMPSON: Wait. The Chairman has had his

3 say and you folks are going to make a motion eventually and 4 whatever you put in it I'm going to put that motion and that's

5 what's going in this document.

6

MR. WHELCHEL: Suppose we just added a sentence in

7 there that the Legislature might leave out, that just and

8 adequate consideration shall include reasonable expenses of

9 determining --

10

MR. GUERRERO: I second the motion.

11

MR. WHELCHEL: -- its adequacy. That doesn't make

12 much sense, but --

13

MS. BELL: Justice and adequacy?

14

MR. WHELCHEL: Something to that effect.

15

CHAIRMAN THOMPSON: Whatever language you put in

16 there and the motion passes that's what's going to be in

17 there.

18

MR. GUERRERO: I would move the adoption with Mr.

19 Hill's "shall" language so that we can vote on it.

20

MR. BONEY: Read it again.

21

MR. HILL: "The General Assembly shall provide by law

22 for the payment by the condemnor of reasonable expenses of

23 litigation in determining just and adequate compensation."

24

CHAIRMAN THOMPSON: That's separate from that

25 relocation?

,--------------------------- -------------------,
125

MR. HILL: Yes.

2

CHAIRMAN THOMPSON: I feel just as strong about

3 relocation.

4

MS. BELL: Mr. Hill, do you mind taking out the

5 litigation expenses -- reasonable expenses of determining

6

MR. HILL: Reasonable expenses?

7

CHAIRMAN THOMPSON: If they shall do that any man

8 that looks at it they've got to pay for his appraisal, they've

9 got to pay for the state's appraisal.

10

MS. BELL: I'm just thinking about the poor people

11 and the condemnor always cuts it off before getting into

12 actual litigation.

13

JUDGE POWELL: But they still can provide --

14

MR. BONEY: You've going to have to put litigation

15 because if you don't

16

MR. HILL: She wants it to be broader than that. She

17 wants it to be expenses in court no matter.

18

MR. WHELCHEL: What Ms. Bell is saying is the cost of

19 litigation.

20

CHAIRMAN THOMPSON: Mr. Hill, is this is such a form

21 now that you can read --

22

MR. BONEY: Let me ask Ms. Bell a question. I wasn't

23 so sure I followed it. You strike litigation. Your idea was

24 that may if they're required to pay some expenses it might

25 eliminate the litigation, is that --

126

MS. BELL: Well not only that, but if the condemnor

2 has no obligation until it reaches the litigation point this

3 can be a protracted experience and a lot of expenses can be

4 incurred and they'll soon learn to cut it short before they

5 get to litigation so they won't have to pay any expenses.

6 Meanwhile, your poor condemnee may have incurred a lot of

7 expense in trying to get an adequate award.

8

MR. BONEY: I think you've got a real good point. I

9 don't know of any state in the Union or any provision for that 10 but as I understand what you're saying, maybe the condemnee, 11 the owner of the property, could say well all right, I want

12 three people to appraise it from my behalf and the General

13 Assembly would have to provide that the condemnor make some

14 allowance for having this person make independent appraisal,

15 is that kind of what you were saying?

16

MS. BELL: The expenses incurred, obviously you have

17 a dispute over what's just and adequate, and there are going

18 to be some expenses incurred into determining what is just and

19 adequate. It won't necessarily be determined as the result of

20 litigation. It could be determined --

21

MR. BONEY: The only way we've ever determined it

22 ultimately, unless they can agree on it

23

MS. BELL: That's the case I'm going talking about,

24 where they ultimately agree on it but meanwhile your condemnee

25 has had to incur --

- - - - - - - - - - - - - - - - - - - - - - - - - ._-- -_._-----_.._ - - - - - - ,
127

MR. PEARSON: Costs in negotiations is what she's

2 talking about.

3

MS. BELL: If somebody comes out and condemns my

4 property the first thing I've got to do is go out and get

5 somebody who knows something about this and they've offered me

6 what I think is about half what it's worth. You may be months

7 in this business trying to negotiate back and forth before you

8 go to court. If it costs me $10,000

9

CHAIRMAN THOMPSON: You're opening up a barrel of

10 worms.

11

MR. BONEY: You sure are. I respect your point, but

12 from a practical standpoint, once they file the declaration

13 you've got a limited number of times to get in there and say I

14 accept it or I reject it. You've got so many days in which to

15 answer and if you've not going to take it you've almost got to

16 get into litigation, that was the point.

17

MS. BELL: Well every condemnee will be certainly be

18 well advised to take it to litigation, not to agree till it

19 gets to litigation if that's the only way they're going to get

20 their just and adequate determination fees paid.

21

JUDGE POWELL: Going on what Ms. Bell said, why

22 should a private owner have to any expense to go to an

23 attorney to get some advice because when you get all these

24 documents they're all in legal language and the average layman

25 doesn't understand them? The lawyers have to sit down and

128

study them. You've got this private individual who has to go

2 to that expense, which normally they would not have to go to.

3 They're satisfied living right where they are, paying their

4 taxes and expenses and are comfortable and here comes the

5 State and says I want your property and they say okay, we've

6 file a declaration and we're taking it and I'm going to give

7 you $10,000 and they're sitting there saying my property is

8 worth more than that but they don't even understand that. I

9 go along with what Ms. Bell is saying.

10

MR. BONEY: I do too, but how are we going to

11

JUDGE POWELL: If you've got an attorney that

12 attorney will say okay, this is just and adequate and you

13 don't have to go to litigation.

14

CHAIRMAN THOMPSON: The conversation we're having is

15 presupposing that every condemning agency in the State of

16 Georgia is going to offer less than what property is worth.

17

JUDGE POWELL: They generally do.

18

CHAIRMAN THOMPSON: That has not been my experience.

19

MR. BONEY: That's not true.

20

CHAIRMAN THOMPSON: In many, many instances I think

21 they offer fair and adequate compensation for the property

22 from the wire. Now you get into some pretty legitimate

23 disputes sometimes as to what it is, but in most instances I

24 don't even think -- Mr. Boney, what is your experience in that

25 area?

129

MR. BONEY: I'd say -- I'd have to say when we

2 started out back in the early '60's before we made a lot of

3 law the idea was the cheapest you can get it the better.

4 There was nothing concerned about the adequacy and now we go

5 out and take pictures and fly the aerial photos, we try to get 6 recognized, approved appraisers, we try to do a good job, we

7 try to come up with a reasonable amount, but that hasn't

8 always been true. In this little county out here he wants to

9 get it as cheap as he can but he's got the right to condemn

10 too. Georgia Power wants to get it as cheap as they can. I

11 never heard of them overpaying anybody. Pipelines are the

12 same way, in other words, and I'm not denouncing anybody, but

13 oftentimes the condemnor is in the position and can take the

14 advantage of the land owner and many times they do. Here all

15 I'm trying to do is say well we're trying to protect this land

16 owner and I would -- I like the idea but I don't see how that

17 could be practical.

18

CHAIRMAN THOMPSON: Ms. Bell, why don't we

19 compromise? Let's put litigation in there and not talk in

20 terms of all expenses because you're talking -- The only way 21 they would ever really build any kind of dispute is to go out 22 and get two or three appraisers to come in. And I just can't

23 see in every instance because I can't see any reason why any

24 property owner who ever has a condemnation wouldn't go out and

25 hire two or three appraisers if we passed that law, whether

130

they need them or not. I just don't see why they wouldn't do

2 that and I just think that's unnecessary expense on the

3 condemnor.

4

MS. BELL: Mr. Chairman, I disagree with that for

5 this reason. A limitation is put on it when it says

6 reasonable fees. That in itself is a limitation and in

7 addition, we don't need this provision at all to protect

8 people who are given -- who are offered just and adequate

9 compensation. We need it to protect those who are being 10 offered far less than they think the property is worth.

11

CHAIRMAN THOMPSON: How do you know that unless you

12 hire somebody to go out and find out?

13

MS. BELL: But you don't need a constitutional

14 provision to protect people from making -- I think you make

15 the point a moment ago that usually they make adequate awards

16 -- adequate offers to begin with, but those are not the people

17 we're trying to protect.

18

CHAIRMAN THOMPSON: But there's no limitation. Those

19 people

That's what I'm saying, even those people who are

20 receiving adequate compensation can go out --

21

MR. PEARSON: Why are they going to go out and get an

22 assessor? It wouldn't do them any good.

23

CHAIRMAN THOMPSON: Why wouldn't it? It's not going

24 to cost them anything.

25

MS. BELL: Would the fees be reasonable in those

r------------------------------------ ---,
131

circumstances?

2

MR. WHELCHEL: What Ms. Bell is saying is that the

3 condemnee doesn't want to sell in the first place. It's the 4 condemnee's property, the condemnee's being force to give it

5 up for the public good and the condemnee should come out

6 whole. The condemnee should not be -- How do you know what

7 it's worth until some independent of a condemning agency takes

8 a look at it and tells you.

9

MS. MCGOUGH: I can't imagine a more awesome civil

10 power of the state than, you know

and property is going to

11 get even more scarce. It's going to get worse than it is now.

12

MS. BELL: But if you take the case where the

13 condemnor has made a good and fair offer and you have the

14 condemnee going out incurring $50,000 worth of expenses, isn't

15 that a question of whether it was reasonable for him to do 16 that or not? It seems to me we've limited it when we say

17 reasonable expenses.

18

MR. WHELCHEL: I think the Legislature could lay down

19 guidelines as to what you could do.

20

CHAIRMAN THOMPSON: I seem to be in the minority of

21 one so I'm going to shut up. Go ahead and perfect your

22 language and let's pass a motion.

23

MR. PEARSON: You'll get us on the floor, huh?

24

CHAIRMAN THOMPSON: I didn't say -- but I got the

25 last shot, no question.

132

JUDGE POWELL: The people got the last shot.

2

MR. BONEY: I move the adoption with the language

3 prepared by the gentleman here a moment ago.

4

MR. HILL: Expenses of litigation --

5

MR. BONEY: Right.

6

MR. HILL: You're removing the litigation?

7

MR. BONEY: Reasonable litigation.

8

CHAIRMAN THOMPSON: He's moving litigation, Ms. Bell.

9

MR. HILL: liThe General Assembly shall provide by law

10 for the payment of the condemnor of reasonable expenses of

11 litigation in determining just and adequate compensation."

12

MS. BELL: I move to amend to delete " o f litigation".

13

JUDGE POWELL: I second.

14

MR. HILL: "Reasonable expenses incurred in

15 determining . "?

16

CHAIRMAN THOMPSON: Is there a second for the

17 amendment?

18

JUDGE POWELL: I did.

19

CHAIRMAN THOMPSON: Okay. I have to put that first.

20 Are you ready for the question?

21

JUDGE POWELL: Question. Is this --

22

CHAIRMAN THOMPSON: This is just for that one

23 sentence, it's not for the whole paragraph.

24

JUDGE POWELL: Well that's what I wanted.

25

CHAIRMAN THOMPSON: All in favor of adding that

133

sentence to that paragraph let it be known by raising their

2 hands. It looks like it's about unanimous. The Chair did not

3 vote.

4

Let go to the rest of the paragraph. Sentence one.

5 Do I have a motion pertaining to the first sentence of that

6 paragraph?

7

JUDGE POWELL: With the change --

8

CHAIRMAN THOMPSON: We don't have any motion at all.

9 Make your motion. Put any change you want into it.

~ .'

10

MR. HODGES: Ms. Bell did that originally in the

11 following manner. She indicated --

12

MS. BELL: I indicated that a motion had been made to

13 that effect in the Subcommittee and it never

14

CHAIRMAN THOMPSON: We don't have a motion pertaining

15 to sentence one at all.

16

MR. HODGES: I move that

17

CHAIRMAN THOMPSON: What are Y9U moving, Cheatham?

18

MR. HODGES: The recommendation on line 11 following

19 the word "manner", inserting "and at the time".

20

CHAIRMAN THOMPSON: The motion is -- Let me read the

21 sentence so you'll understand it as amended. It reads,

22 "Private properties shall not be taken or demand for public

23 purposes -- or damaged" -- Let me start again. "Private 24 properties shall not be taken or damaged for public purposes

25 without just and adequate compensation being paid in the

134

manner and at the time provided by law." That's the way it

2 reads, I hope.

3

Now, Ms. Powell.

4

JUDGE POWELL: We discussed about the prepayment --

5 the amount offered by the condemnor.

6

CHAIRMAN THOMPSON: Didn't we have another sentence

7 we were going to add to put in that language for prepayment?

8

JUDGE POWELL: You're going to add another sentence,

9 th~ sentence that is already in the Constitution?

10

MR. HENRY: The last sentence.

11

JUDGE POWELL: That will be fine.

12

MR. HILL: That will be a third sentence.

13

JUDGE POWELL: As long as that will be included that

14 will be fine.

15

CHAIRMAN THOMPSON: Okay. You want that sentence in

16 as we have it. All in favor of sentence one let it be known

17 by raising your hand. Okay. That's un~nimous.

18

Sentence two I think should be what you have -- Read

19 that language will you please?

20

MR. CARLYLE: This would be the language on page 8 of

21 the Constitution. We're looking at now page 8, line 23. liThe

22 General Assembly may by law require the condemnor to make

23 prepayment against adequate compensation as a condition

24 precedent to the exercise of the right of eminent domain and

25 provide for the disbursement of the same to the end that the

135

rights and equities of the property owner, lien holders, and

2 the State and its subdivisions may be protected."

3

CHAIRMAN THOMPSON: You move that sentence.

4

JUDGE POWELL: Except I would take out the "may" and

5 put "shall" on line 20.

6

CHAIRMAN THOMPSON: The motion for that sentence is

7 "The General Assembly shall by law require " and it reads

8 just like it is starting on line 23, page 8. Are there any

9 questions about what the motion is?

10

MS. BELL: That would be in every case it shall

11 require prepayment.

12

CHAIRMAN THOMPSON: Shall.

13

MS. BELL: Of the undisputed amount?

14

JUDGE POWELL: It doesn't say. It just says

15 "prepayment against adequate compensation".

16

CHAIRMAN THOMPSON: It doesn't say you have to pay

17 the whole thing, "prepayment against adequate compensation."

18

MS. BELL: What is that doing to the declaration?

19

MR. HENRY: That mandates that you have to pay into

20 the registry of the court at the time of filing. If it were

21 not for that you could conceivably not even have to pay.

22

MS. BELL: It doesn't interfere with --

23

MR. HENRY: It does not interfere with the litigation

24 expense.

25

MS. BELL: It doesn't interfere with the declaration

136

of taking?

2

MR. HENRY: No.

3

CHAIRMAN THOMPSON: That's the procedure they're

4 using now.

5

MR. HILL: In every case? This is in every case?

6

CHAIRMAN THOMPSON: What shall we do with this

7 sentence? All in favor raise -- let it be known by raising

8 your hands. Okay. That passes unanimously.

9

Now we've got another sentence which is involved

10 there. "Notwithstanding any other provisions of this

11 Constitution, the General Assembly may provide by law for

12 relocation assistance or payments to persons displaced through

13 the exercise of the power of eminent domain."

14

Yes, sir?

15

MR. CARLYLE: I have one minor question. Is the

16 notwithstanding any other provision of the Constitution, it

17 doesn't seem like that's necessary. It would shorten the

18 language.

19

MR. HILL: We were worrying about the gratuities

20 section. We didn't want to have them say that this -- You 21 know, we wanted it clear that nonwithstanding the gratuities

22 prohibition if it would be so construed, that's why it's in

23 there.
24

MR. CARLYLE: It wouldn't seem like that -- if you

25 put that -- if you're going to do that you need to go ahead

137

and put that notwithstanding for a number of provisions where

2 there may be a conflict in other parts of the Constitution. I

3 just don't see

it would seem if youlre amending the

4 Constitution at a later time that that might be necessary.

5

MR. HILL: They would both be pooled together. It

6 would just be assume?

7

CHAIRMAN THOMPSON: Ms. Bell?

8

MR. PEARSON: Welre talking about the gratuities

9 provision is going to be a part of in effect the

10 notwithstanding language which it seems to me resolves the

11 conflict between the two. I would think that it would be

12 necessary because otherwise the court might narrow the scope

13 of this relocation assistance in light of the gratuities

14 provision, I don't know.

15

CHAIRMAN THOMPSON: Ms. Bell?

16

MS. BELL: 1 1 m picking up on the point you just made.

17 Without the notwithstanding, the court might interpret this to

18 mean that it can require Georgia Power and so forth to do that 19 but that it does not override the gratuities provision as far

20 as state funds are concerned. I think we need the 21 notwithstanding.

22

MR. CARLYLE: Okay.

23

CHAIRMAN THOMPSON: Okay. Anything further on that

24 sentence?

25

MR. HILL: Yes.

138

CHAIRMAN THOMPSON: All right, Mr. Hill.

2

MR. HILL: Just a point of information. This

3 sentence was added in here in order to encompass provisions we

4 now have in Article I, Section III on relocation assistance.

5 Now the fact is the very language is going to be cross-

6 referenced by Article III. The very language we have

7 presently is going to be cross-referenced into the new

8 Constitution to preserve the authority that is there now. I'm

9 just saying there is no real danger of your losing anything

10 you have now in Section I by virtue of this new change. It

11 extends it, Ms. Bell would probably say, to authorize the

12 state to provide for relocation assistance as in -- in state

13 activities as well as under federal programs.

14

MS. BELL: You said the provision in Article III

15 won't do that?

16

MR. HILL: Yes.

17

MR. HENRY: Well it takes in both.

18

MR. HILL: Specifically mentions federal.

19

MR. HENRY: The legislation has been enacted pursuant

20 to it has only dealt with federal programs but you could

21 conceivably read it to say that it could also have state

22 programs under it also. This is making sure that we have

23 state programs right here. It says may so it's not really

24 requiring the General Assembly to enact legislation in that

25 area.

139

CHAIRMAN THOMPSON: Mr. Hodges has moved right here.

2 A second?

3

MS. DAVIS: Second.

4

CHAIRMAN THOMPSON: It's been moved and seconded that

5, that sentence be added.

6

MS. MCGOUGH: As it's now written with the

7 notwithstanding.

8

CHAIRMAN THOMPSON: Yes. All in favor let it be

9 known by raising your hands.

10

Those opposed by the same sign. It appears to be

11 unanimous. It is unanimous.

12

Now that leaves us with Section IV. I think we

13 decided earlier in our deliberations --

14

MR. BONEY: Mr. Chairman, please will you have them

15 read the entire paragraph now as we've amended it? I want

16 Paragraph 1 in its entirety

17

CHAIRMAN THOMPSON: Mel, can you read Paragraph I.

18

MR. HILL: "Private Property. Paragraph I. Eminent

19 Domain. Private Property shall not be taken or damaged for

20 public purposes with just and adequate compensation being paid

21 in the manner and at the time provided by law. The General 22 Assembly shall provide by law for the payment by the condemnor

23 of reasonable expenses incurred in determining just and

24 adequate compensation. The General Assembly shall by law

25 require the condemnor to make prepayment against adequate

140

compensation as a condition precedent to the exercise of the

2 right of eminent domain and provide for the disbursement of

3 the same to the end that the rights and equities of the

4 property owner, lien holders and the State and its

5 subdivisions may be protected. Notwithstanding any other

6 provisions of the Constitution, the General Assembly may

7 provide by law for relocation assistance and payments to

8 persons displaced through the exercise of the power of eminent

9 domain."

10

MR. BONEY: Thank you.

11

CHAIRMAN THOMPSON: Okay. Take Paragraph II.

12

MS. BELL: "Paragraph II. Private Ways. In case of

13 necessity, private ways may be granted upon just compensation

14 being first paid by the applicant."

15

CHAIRMAN THOMPSON: Is there any objection to that

16 language?

17

CHAIRMAN THOMPSON: Paragraph III.

18

MS. BELL: "Paragraph III. Tidewater Titles

19 Confirmed. The Act of the General Assembly approved December

20 16, 1902, which extends the title of ownership of lands

21 abutting on tidal water to low water mark is hereby ratified

22 and confirmed."

23

MR. HODGES: I wanted to ask a question on that, Mr.

24 Chairman. When we're talking about the Act of 1902, are we

25 talking about oceanfront property? Now that's what I would

141

"
like to draw an exception to. It's all right to have to use

2 tide water marks on rivers and creeks and such things as that,

3 but the very fact is that the shorelines, you know, are

4 generally taken from the mean highwater mark in order to give

5 you some way to move along the beachline. In this case you're

6 actually cutting people out almost completely.

7

CHAIRMAN THOMPSON: Mr. Hodges, if we change this

8 we're changing some property rights and things that have

9 existed since 1902.

10

MR. HODGES: I realize that and I remember the

11 argument in the Legislature not too long ago about the fact

12 that the King and Prince Hotel, do you remember, in the Alton

13 Bill two years -- last year or two years ago?

14

CHAIRMAN THOMPSON: Frankly, I understand what you're

15 saying but I would be extremely reluctant for this committee

16 to get into an argument with the General Assembly about

17 property rights in this

We've got a right to do it and if

18 that's what you want to do we'll entertain it and we'll go on

19 with it, but there are so many vested property rights that are

20 hinged on that thing there that we would create some 21 litigation that would be in our courts for years and years and

22 years based on what we would do right here, whereas the

23 easiest way to do it is to go on and adopt this like it is and

24 let the General Assembly worry about that thing. That would

25 be my recommendation to you. We can do what you want to do

142

but I sure would hate to upset the existing title rights.

2

MR. CARLYLE: To do anything with this paragraph

3 might constitute a taking by the General Assembly of these

4 tidal land.

5

MR. HODGES: That's why I'm asking. See, if you

6 recall in the not too distant past when they were studying

7 King's Bay as the location for the new sub base a lot of that

8 got into the dispute and consideration of that. Were they

9 really dealing with public lands or were they dealing with

10 private lands and what restrictions are there on the citizenry

11 for free movement across the land and that's the question I'm

12 really asking. Are you we really getting to the point that we

13 can say that in the future development of the shore lines of

14 Georgia, I'm talking about shorelines along the oceanfront

15 that we could conceivably have no public beach whatsoever.

16

CHAIRMAN THOMPSON: On that particular thing we

17 passed the Tidewater Bill. Whether we own it or whether we

18 don't we control strictly what they can do with it. They

19 can't dredge it, they can't put piers in there, they can't do

20 anything unless they comply with the Tidewater Act. The

21 subject of title in that particular instance has very little

22 to do with what they can do with that land because we strictly

23 regulate the use of the marsh lands and beach lands and

24 everything else. There's a federal act that does it and also

25 a state act that does it, isn't that right?

143

MR. HENRY: Mr. Chairman, I think I can clear this up

2 by saying the provision here does not convey the act that it's

3 purporting to confirm. It says the title to the ownership of

4 lands abutting on tidal water to the low water mark. They

5 don't have title. That very act says they don't have title to

6 it. They have rights in it and those rights are subservient

7 to the public trust. We have rights of navigation and to walk

8 across that. They have rights in it, they don't have title

9 to.
10

MR. HODGES: You answered my question already.

11

MR. CARLYLE: There was a Supreme Court case a few

12 years ago, the Ashmore case,

13

MR. HODGES: That was the King and Prince -- That's

14 the Ashmore case.

15

CHAIRMAN THOMPSON: Okay. Does that resolve it? Is

16 there any objection to the adoption of the language in

17 Paragraph III of Section III? If there's no objection that

18 language is adopted.

19

May we have a motion to adopt Section III?

20

MR. BONEY: I so move.

21

JUDGE POWELL: I second it.

22

CHAIRMAN THOMPSON: Let it be known by raising your

23 hands. It appears to be unanimous.

24

Section IV. I think when we first started as a

25 committee we agreed at that time we would not interfere with

144

Section IV. That was a 1978 general election ballot and it's

2 a recent expression of the will of the people of the State of

3 Georgia and we felt that it was so new and so recent that we

4 would not interfere with it.

5

MS. DAVIS: I have one question as to why it is

6 placed in Article I and not in Article II? It looks like

7 we're giving the right to recall even before we talk about a

8 person's eligibility to vote.

9

CHAIRMAN THOMPSON: I have no idea as to its

10 placement.

11

MS. DAVIS: I would propose that when we look at the

12 total document that that be looked at in terms of being placed

13 under elected franchise and not --

14

CHAIRMAN THOMPSON: The problem that we have is since

15 we're only dealing with I, we can not mandate the placement.

16

MS. DAVIS: I'm not mandating, I'm just saying that

17 it be looked at in terms of where it's presently placed.

18

CHAIRMAN THOMPSON: Okay. Ms. Nonidez.

19

MS. NONIDEZ: That was done -- purposely placed in

20 Article I in the 1978 election in preparation of that election

21 because at that time the revision of the Election Article was

22 going to be on the ballet and they didn't want to confuse the

23 issues. They wanted to have recall and that was the major

24 question, then there was the revision of Article II.

25

MS. DAVIS: Was it a political issue?

1
145

MR. NONIDEZ: Yes, it was.

2

MS. DAVIS: That's all the more reason why it ought

3 to be placed in another place rather than in -- It should not

4 be a part of Article I.

5

CHAIRMAN THOMPSON: We have a note that should be

6 done.

7

Mr. Pearson, you had something else you wanted to say

8 about Section I, I believe it was?

9

MR. PEARSON: Okay. The language we had some

10 problems in dealing with ,in dealing with the exemption. I

11 hate to detain everybody on this but this is language that

12 might simplify the phraseology a bit.

13

Page 5, starting in the underlined language, "The

14 General Assembly shall provide by law for the exemption from

15 levy and sale of a portion of the property of each person in

16 an amount of not less than $1,600 and to provide for the

17 waiver of said exemptions by the debtor" leaving out all this

18 language with respect to "and shall have authority to decide

19 to whom any such additional exemption shall be allowed" and so

20 forth. That language perhaps could be debated on whether that 21 should be included, but leaving all the procedural specifics 22 just to the discretion of the Legislature and simply stating

23 that the exemption would be provided to each person in the

24 amount of $1,600 because that's basically what we want to do

25 and it doesn't preclude additional exemptions as the

146

Legislature might wish to provide. I'll just say, let's just

2 leave it open for further discussion. We had some problems

3 with that language and that was a solution. I'm a little 4 reluctant to make that in the form of a motion.

5

CHAIRMAN THOMPSON: We've adopted it and actually

6 we'd have to have a motion to reconsider our previous action

7 if we went into that, but since you mentioned it to me I just

8 ~hought I'd bring it up.

9

MR. PEARSON: We can do that at the last meeting.

10 I'm not satisfied with the way we've got that phrased and I'd

11 like to -- I think we ought to think about it.

12

CHAIRMAN THOMPSON: May I say this? The Chairman is

13 very proud of this committee and the work that it's done and I

14 want to thank each of you for having been so cooperative and I

15 think the attendance has just been tremendous. I know we've

16 got one or two people that haven't shown, but those people 17 that are here today have shown extreme interest in this. This 18 is the kind of dedicated work that can really make the State 19 of Georgia go forward and I want to thank you for the

20 cooperation that I've had.

21

MS. OSTRANDER: I'll be satisfied when you get it all

22 the way through.

23

CHAIRMAN THOMPSON: We have one more meeting. We

24 will meet on November 30th at 10:00. We will receive notices

25 of the meeting. Our meeting tentatively will be for the

147

purpose of adopting the completed document. I think all of us

2 want to see it as it's going to be presented. It will be

3 prepared and on that date we will take a look at it and make a

4 final adoption of that Article I.

5

Mr. Hodges?

6

MR. HODGES: You didn't find a way to reconsider that

7 day and move it back into the next week like we'd talked about

8 originally because I'm going to be in Washington almost all

9 that week?

10

CHAIRMAN THOMPSON: I don't know how we could change

11 it, Mr. Hodges. We've built this in so long ago I'm sure

12 everyone

13

MR. HODGES: At that time you were going to consider

14 moving it back one week though.

15

CHAIRMAN THOMPSON: That would be Thanksgiving.

16

MR. HODGES: I'm talking about moving it back, not

17 forward.

18

CHAIRMAN THOMPSON: To December 7th? You can't

19 because the Bar Association is having its

20

MR. HODGES: Yeah, that's right. Okay. I remember.

21

CHAIRMAN THOMPSON: And actually I think I'm supposed

22 to make a presentation of this Article to them on that date.

23 Robin Harris called me and asked me if I would make a 24 presentation to --

25

MS. MCGOUGH: He's looking for a front man.

148

CHAIRMAN THOMPSON: -- to the Bar Association at 9:30

2 on -- that Friday morning at 9:00 and I agreed to do it.

3

JUDGE POWELL: Is that from that Constitutional

4 Committee--

5
6 Bar

CHAIRMAN THOMPSON: No. They're having a mid-winter Governor's -- something like that, I don't know what it

7 is.

8

MR. BONEY: Mid-winter Bar Association.

9

JUDGE POWELL: The State Bar has a committee on the

10 Constitution, is that what you're going to present?

11

CHAIRMAN THOMPSON: I'm going to submit this to the

12 whole Bar Association.

13

MR. HILL: Is the meeting adjourned?

14

CHAIRMAN THOMPSON: The meeting is adjourned.

15

(Whereupon, the hearing was concluded at 1:25 p.m.)

16

17

18

19

20
21

22

23

24

25

INDEX Committee to Revise Article I Full Committee Meeting Held on Nov. 9, 1979

FULL COMMITTEE MEETING, 11-9-79

,;ECTION I: RIGHTS OF PERSONS

'roceedings. pp. 3-5

1otion for adoption of Section I. p. 5

?aragraphs I: Life, liberty, and property; and

II: Protection to person and property; equal protection. pp. 6-8

?aragraph III: Freedom of conscience. pp. 8-9

?aragraph IV: Religious opinions; freedom of religion. pp. 9-11

Paragraph V: Freedom of speech and the press guaranteed. pp. 11-13

Paragraph VI: Libel. pp. 13-21

,Paragraph VII: Citizens, protection of (transferred from Section II). ,pp. 101-102, 104-106

Paragraph VIII: Arms, right to keep and bear. pp. 21, 104-105

Paragraph IX: Right to assemble and petition. pp. 22-29

Paragraph X: Bill of attainder; ex post facto laws; and retroactive laws. pp. 29-32

Paragraph XI:

Right to trial by jury; number of jurors; selection and compensation of jurors. (Discussed along with Paragraph XIV below) pp. 53-66

Paragraph XII: Right to the courts. pp. 32-52

Paragraph XIII: Searches, seizures, and warrants. p. 53

Paragraph XIV:

Benefit of counsel; accusation; list of witnesses; compulsory process. (Discussed along with Paragraph XI above) pp. 53-66

Paragraph XV: Habeas corpus. pp. 66-67

Paragraph XVI: Self-incrimination. p. 67

Paragraph XVII: Bail; fines; punishment; arrest, abuse of prisoners. p. 67

Paragr'aph XVIII: Jeopardy of life or liberty more than once forbidden. pp. 67-77

Paragraph XIX: Treason. p. 77

Full Committee Meeting 11-9-79 Page 2

Paragraph XX: Conviction, effect of. pp. 78-80 Paragra~h XXI: Banishment and whipping as punishment for crime. pp. 80-82 Paragraph XXII: Involuntary servitude. pp. 82-83 Paragraph XXIII: Imprisonment for debt. p. 83 Paragraph XXIV: Costs. p. 83 Paragraph XXV: Status of the citizen. pp. 83-84 Paragraph XXVI: Exemptions from levy and sale. pp. 84-96, 145-146 Paragraph XXVII: Spouse's separate property. p. 96 Paragraph XXVIII: Enumeration of rights not denial of others. p. 96 Adoption of Section I~ pp. 96-97

SECTION II: ORIGIN AND STRUCTURE OF GOVERNMENT

Paragraph I: Origin and foundation of government. p. 97

Paragraph II: Object of government. pp. 97-98

Paragraph III: Separation of legislative, judicial, and executive powers. pp. 98-99

Paragraph IV: Contempts. p. 99

Paragraph V: What acts void. p. 99

Paragraph VI:

Superiority of civil authority. pp. 99-101 (Citizens, protection of - discussed here and transferred to Section I, Paragraph VII. pp. 101-102, 104-106)

Paragraph VII: Separation of church and state. pp. 102-103

Deletion of paragraphs dealing with lobbying, fraud, concealment of property. p. 103

Adoption of Section II. pp. 103-104

SECTION III: GENERAL PROVISIONS Paragraph I(a-e): Eminent domain.

pp. 106-139

1

11-9-79

Page 3

Paragraph II: Private ways. p. 140

;-."

Paragraph III: Tidewater titles confirmed. pp. 140-143

Adoption of Section III. p. 143

Article II, Section II, Paragraph IV: Recall of public officials holding elective office. pp. 143-145 (Transferred to Article II, Section II, Paragraph IV)

STATE OF GEORGIA
COMMITTEE TO REVISE ARTICLE I of the
CONSTITUTION OF GEORGIA
Room 337-B State Capitol Atlanta, Georgia Friday, November 30, 1979 10:00 a.m.
BRANDENBURG & HASTY
SCIENTIFIC REPORTING 3715 COLONIAL TRAIL, DOUGLASVILLE, GEORGIA 30135
942-0482 DEPOSITIONS - ARBITRATIONS - CONVENTIONS - CONFERENCES

'r--
PRESENT WERE:

PAGE 2 - --_._------------- -----,

COMMITTEE MEMBERS:

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to

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REPRESENTATIVE ALBERT THOMPSON, CHAIRMAN MS. MILDRED BELL JUDGE ROMAE POWELL MR. JOHN GRIFFIN MR. CHEATHAM HODGES MS. MYRTLE DAVIS MS. VITA OSTRANDER MR. ALBERT PEARSON MR. GENE GUERRERO REPRESENTATIVE JOHN SAVAGE MR. HOYT WHELCHEL JUSTICE JESSE BOWLES REPRESENTATIVE SIDNEY MARCUS MR. F. H. BONEY
SELECT COMMITTEE STAFF:
MR. ROBIN HARRIS MR. MELVIN HILL MS. VICKIE GREENBERG MR. MICHAEL HENRY
OFFICE OF LEGISLATIVE COUNSEL:
MR. LOU LITCHFIELD

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21

,23 24
25 I

PAGE 3

.- ---------------,

-PR-O- -C -E -E -D-IN- -G -S

I

I CHAIRMAN THOMPSON: To start off with, this should

be our last meeting and I just wanted to express my personal .~ II, appreciation to this group for the hard work that you have

) i done. I don't think I have ever worked with a group that was

6

'.I
.,I

more cooperative or put more time and effort and energy into

7

'I:
'I

a project than this committee has done,

and I want to express

i

P, Ii to you my personal thanks. I know I am chairman of the
9 I"i group, but to you goes the credit, not to me, but to you

10 because of the hard work that you have done. I think we have

z_:_~ )

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done

a

job,

I

think we have done

it expeditiously.

I think we

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@;,'.,~a-: can complete our work today and wetll have a document that none I I of us will be ashamed of, that will be a credit to the State o~

14

;.
,-

Georgia.

I
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15 ~

We have with us this morning our distinguished

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Chairman,

our distinguished Executive Director Mr.

Robin

"~

1" ~": Harris. He has come back to be with us for the final draft

,.
J approval of the final draft.

lSi !I

Before we go into it, I think we ought to discuss

20

, :" I

the

procedures

that we're

going

to

use

today.

If I am correct,

I,

) I we adopted this document as it was mailed to you by Mel Hill.

I
) Ii, We had a formal motion that every item in this be adopted as

2J " the work of this committee at the last meeting. I see no

need to read through it word for word as we have done in the

past, as we have done every time we have considered any portion
--.-------------------_._---------. - - -

PAGE 4 , ,-----,--,-,-- ---,- '---'--------1
of this and adopting it word for word as we have done in the

past. I propose to go through this document, all right we'll

consider Section I, Paragraph I, are there any objections to I I

that, and go right on straight through with it, without takin. g II

formal motions because it has already been approved, and unles~

1i
(, ilI someone wishes to offer an amendment to a specific section,

!

II

,

"

7

i. :1

then we'll go ahead without taking any further motions.

If

I!

II

8

il
Ii

we are moving too rapidly,

say so.

If we get to a section tha~

II

9

ii
it

you have some question or argument with, we will open the floo~ I

i

10 for discussion of that particular item. Do I hear any dis-

agreement with this procedure? Does someone wish to do it

differently?

(No response.)

If not, then we'll go ahead and proceed. I'll just

call off the sections as we consider them.

Of course, we have the preamble, does anyone have

any problems with the preamble?

(No response.)

Hearing none, we'll go to Article I, Section I, 20 Rights of Persons. Does anybody have any argument with

I
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Paragraph I?

Is there any objection to Paragraph I of Section

"

:1

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I ? "
!i

As a part of the procedure, as I call off each Paragraph,

II

,I

'1

I II

I'm going to pause for an instant so that you have an oppor-

I'

::4 tunity to inject your objections during the time that I pause.

i:,I
25

MR. HODGES: May I ask a question?

----_., PAGE 5
.. _-------_._--_._---_ ..- - - -

CHAIRMAN THOMPSON: Yes.

-., II

MR HODGES: I just spent the last week in

:11
3 Washington getting ready for the White House Conference on

'l Families among other things. 0ne thing that kept corning back

5 :' I

to me as I left is the essential quality of this type of

i

6 i! concern that exists throughout the country, and I was thinking!

i

I

7 here we are dealing with a part of the Georgia Constitution

8 that is going to have a great bearing on the quality of 9 family life. I am just throwing this out so that someone may

10
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think of it, because it's late. It is going to be a very crucial thing that's going to corne up during the next year.
Might there be a possibility that somewhere in here we might put in the words somehow in our Bill of Rights "and

14 , preserve the integrity of family life", just simply those
"
IS I:: words.

16 "

CHAIRMAN THOMPSON: I'm going to have to suggest

17 that you do it this way. Let's proceed. with going through it

18 in the fashion that we are and as we do that, you try and find

J9

!i
"

someplace you'd like to put it in there

"and preserve family

-- 20 life" , and when we get to that point

after we have gone

.2 i through it, if you have found someplace you think that's

appropriate, I think we would permit you again to speak to

that particular point, where it is that you want to put it,

and we'll see how it flies.

MR. HODGES: Thanks.

PAGE 6
------- - - - - - -------~-----------------------------------------------------~ -
CHAIRMAN THOMPSON: Is that all right?

MR. HODGES: Yes.

CHAIRMAN THOMPSON: Hearing no objection to

Paragraph I, we'll move on to Paragraph II, Freedom of

conscience. Do I hear any objection to Paragraph II?

(No response.)

To those of you who have come in late, what we are

doing is this, we have already had formal motions to adopt all

of this. I asked if procedurally we could just go through

10 it and if no one has any objection to it weill move on to

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11

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the next section.

At the end of course, weill have a motion

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12 ~ to adopt the whole thing.

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MR. GRIFFIN: You want editorial suggestions as well

14

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as

substantive

suggestions?

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15 .:l
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CHAIRMAN THOMPSON: This would be the time if you

'"::>

16

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oz

have

editorial

suggestions

or

anything

else

17 ~

MR. GRIFFIN: It seems we ought to have "nor"

18 II instead of "or" in the language.

I,

19 II
I!

CHAIRMAN THOMPSON: Is that Paragraph II?

Ii

20 II

MR. GRIFFIN: Paragraph I, lim sorry, I was late

211ii coming in.

22 II

CHAIRMAN THOMPSON: You mean right after "civil

') , II
_.:> ,t rights", "nor be discriminated against"?
I:

24 "

MR. GRIFFIN: Yes, to be consistent with the two

previous nors in the same clause, in the same section.

PAGE 7 CHAIRMAN THOMPSON: Do we have a grammarian who

disagrees with that?

MR. HARRIS: Mr. Chairman, just a cursory look I

4 think the "or" would be correct in the sense that it joins
I I
<; "i: together "nor be denied the enjoyment or be discriminated
:1
() IIII against because of " both of those phrases are qualified , ii
7 :1 by the language "because of race, sex, national origin,

8 I' religion, or ancestry."

MR. GRIFFIN: If they govern it, I think that's

~o right, surely.

MR. HARRIS: You might have the qualifying clause

apply only to the last phrase.

MR. GRIFFIN: If that's the meaning of it, I stand

corrected.

i

15 '0

CHAIRMAN THOMPSON: If we can accept that then,

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16

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Paragraph

II,

Freedom of

conscience.

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Paragraph III, Religious opinions; freedom of

IS conscience. I, III

19 Ii

(Brief pause.)

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20

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Hearing no objection, we move on to Paragraph IV,

I

2J Freedom of speech or of the press guaranteed.

I

22 ,i

MR. BONEY: Article IV in the third line, do we

23 need the word "ever"? "No law shall be passed .. ", do we

24 I need the word "ever U ?

25

REPRESENTATIVE SAVAGE: There's not an Article IV,

__ ---- - - - - - -- rr---._-~-------------_.

._--------_.'-'-~

'I
\i are you talking about --

I!II

2 II

CHAIRMAN THOMPSON:

Paragraph IV.

3 II MR. BONEY: Paragraph IV.

PAGE 8

4 \I1i
,I

REPRESENTATIVE SAVAGE: On page 2?

5 IIi'

MR. PEARSON: I'd like to move that it be deleted.

'III

6 II I think it is redundant, it's an absolute statement, "No law i

7

;1
II il

shall be passed rr,

if you say

!
"No law shall ever be pas sed i. "

8 :I,1I you're just putting a mdundancy in.

9 I'II
"

CHAIRMAN THOMPSON: There's a motion that the "ever ll

10 be removed. Is there any objection to removing the lI ever "?

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(No response. J CHAIRMAN THOMPSON: Hearing no objection, let's just

(@d)r~ go ahead and remove it, the motion has passed.

14 ;.......

Paragraph V

1:

15 ~
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MR. GRIFFIN: Should we have "or" between IIFreedom

'::">

.. 16

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of

speech

or

of

the

press

guaranteed ll ,

it looks like "and"

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17 g;

would be more appropriate, "Freedom of speech and of the press

l~18 Ii guaranteed"
il

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CHAIRMAN THOMPSON:

Is there any objection to

20 !I changing that 1I 0r " to ttand"?

21 II !i Ii

(No response. J

il

22 I,I'

Hearing no objection to changing the!'or" to "and",

ii

23 Ii

:: we'll change it so that it will now read "Freedom of speech and

24 I
of the press guaranteed."

r---- - -------
I
explain this.

PAGE 9 We have already adopted this document, there is

2 no reason to go through it word for word again, so we are
-' Ii calling it off paragraph by paragraph and if someone has an
"
4 I , objection or an amendment they wish to make, we will discuss

5 it at this time. If not, we'll go on to the next paragraph.

i:

6 I'!

Paragraph V, Libel.

7

(Brief pause.)

Ii :,
i

Hearing no objection, we move to Paragraph VI,

l) Ii:, Citizens, protection of. Is there any objection?

10

(No response.)

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Hearing none, Paragraph VII, Arms, right to keep and

2

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(Brief pause.)

'-----

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Hearing no objection, we'll move to Paragraph VIII,

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15

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are

there

any

object~ ons to

Paragraph VIII?

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(No response.)

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Paragraph IX, Attainder; ex post facto and retro-

J8 il active laws.

]9

II
I',

(Brief pause.)

Hearing no objection, we move to Paragraph X, Right 2i ii to the courts.

JUSTICE BOWLES:

,', )

_,

I

! not be here last time --

Mr. Chairman, I unfortunately could

24
CHAIRMAN THOMPSON: We missed you too, Judge, I had

hoped you could be here for that.

PAGE 10

-~~~~~~-----~--- -------~-----~----------~--------------,
i

JUSTICE BOWLES: I wish I could tell you I was

11

I

2 ! away working, but that would not be true.

I

3 II

On this particular section, we were all -- I think

4 II maybe I'm a little more conscious of it than many committee
II
5 I members because of the problems presented to the courts as a
I
6 II result of the previous Constitution which had language

7 II providing a person could not be deprived of his right to R II prosecute or defend either in person or by an attorney or
11
9 II[I both, is the way the old Constitution read. This was
"
10 construed both by the Court of Appeals and the Supreme Court

to mean that -- literally what it said, "or both", though

there was some dissent.

Now at the first meeting we struck the words "or

both" and gave every individual the right to plead his own

case in person or by attorney. These are vested rights and

they are in the alternative, he could have either. Then this

was amended at the last session and added the words "or with

18 II an attorney", and I am afraid that this might re-enter the
I'
19 III problem that we had eliminated.

20 !I

Certainly nobody wants to deprive anybody of his

21 ii right to counsel nor do we wnat to deprive him of his .right to II ',,I
22 IIII represent himself, but when you have "or both" construing that
23 i two can act as counsel and then strike that and say "or with

24 1.:1 an attorney", I 1 m afraid we have gone back to where we were

25 1I1: though we have just changed some language to a small degree.

'-L--

--- - -~-----~--------

- - - - - - - - - -~-

~---- --~-

----- ----~--

PAGE 11

, This creates some real problems for the courts. Two lawyers
I
I'I
) I cannot run a lawsuit. You beLng' a lawyer, you know that. You
!
3 have to have someone in charge. We have long, throughout the

4 history of our courts, had lead counsel and lead counsel has

5 the responsibility and court deals with lead counsel, it

b doesn't even have to hear from any subordinate counsel. This

7 is a matter of the courts operating with speed and with

R purpose and knowing whereof the court stands and who has the 9 rights to make the decisions and this sort of thing.

10

Now if a person agrees to -- or elects to represent

II

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'0"

himself and the

Supreme Court of the United States has

I
i.
said he ,

'-

~

12
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n'
u
~
1-. 7-
"
. f

has the

this right and we don't disagree with him, then he can be lead counsel. Or if he wants to hire an attorney to

c"

_/

,

14 l-' represent him he is lead counsel and all of theattendant thing~

'"

r

15

~
":.I:

that this

involves.

But when we say him with an attorney,

.CJ

16

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Q

surely it would be elementary that anybody

in court could be

"7c.

<::

17

Q'.
'"

there with his attorney.

This is so elementary I don't think

IH it's a matter of debate, so with an attorney must mean

19 something other than physical presence and I think we are

20 going to create a problem with it, not denying anybody any

right, but to go back where we were, that two lawyers cannot

22 try the same lawsuit at the same time.

23

CHAIRMAN THOMPSON: To get it back on dead center,

.24 , what do you propose language-wise, Mr. Justice?

25

JUSTICE BOWLES: Let him have the right to represent,

PAGE 12

his own cause in person or by attorney, that's it.

2

CHAIRMAN THOMPSON: Mr. Hodges, I saw your hand.

I I
MR. HODGES: You know, that was the explanation that!
I
!

we needed at the last meeting. Remember we played around

CHAIRMAN THOMPSON: I tried to repeat what the Judge

had said at the first meeting when we discussed this, but I

was not able to do it as eloquently as he has done.

MR. BONEY: I move we delete the words "or with".

CHAIRMAN THOMPSON: I don't think we're quite ready

10 for a motion, Mr. Boney, we'll take a motion in a minute.

'z-'

11 I0<

Judge Powell?

i

o
I.>..-.

,i

~r!12 ~
~~

JUDGE POWELL: We discussed this pro and con last

time and we discussed the rights of the individual and the
gJ; 14 I

~ way I hear the Judge saying you've got to have one or the


1:

15 ..:.>, other, I see no reason why with this language that you can

0< ::>

16 .~.. still not designate lead counsel and say if you are going to Q

Z <.
17 :ii have an attorney who is licensed to practice law and then the

18 II person who has a constitutional right by the U. S. Constitutionl

19 11'1 to represent himself to say okay, Mr. X, you're going to be
I

20 II'j' your lead counsel. Mr. Hired Attorney, you are the subordinate!

i!

I

21

1
i:1

counsel,

and the courts can control

that.

I see no reason why

22 ;;11 you should preclude a person from representing himself if

23 III,;IIi that's what he wants, and say okay, if you hire an attorney

Ii

24 Ii

:1 you can't act for yourself.

,I !

25

II
l:' l-io_n_ ally

incorrect.

I think that would be constitut-

'I
'I
2 at all.

PAGE 13
JUSTICE BOWLES: We haven't attempted to say that

JUDGE POWELL: Well that's what you're saying, you
'I
4 1 either get an attorney or yourself.

5

JUSTICE BOWLES: I think I was saying it was so

6 elementary that a person helps his lawyer, he can't represent

7

II
'i

the man without him helping his lawyer, but for the

8 individual to have a lawyer and then get up at the same time

9

,II
II

and voice objections

in the course of

the trial

just creates

10 turmoil. It does not add anything to his constitutional case, I

"2:
11 I-
"o"
"...-.
~ 12 ~
~r~

it only disrupts. You can only realize this if you have been in the court and see how
JUDGE POWELL: I have had it happen and that's the

!4

~
l-

reason

I

am saying the

judge can control this kind of

V>

4-

:I:

15 ~ behavior and conduct by simply designating, you are lead

cY

='
16 o~ counsel and I will not hear from you. If you are going to be

z

..,;

17 ~ co-counsel, then you speak through your lead counsel. There

18 are special instances where you permit both counsel at some

J9 point to participate in the trial of the case, but I think the

20 i
:1

judge can control that,

Justice.

I don't think you ought to

21

I'
1

preclude

that person

--

an

example

that

I

gave

is

Mr.

I'

Ii

22 1 Thompson -- Representative Thompson, he is an attorney.

If yoU:

23 :i put the language in there like you're saying, you're saying

ii

24
okay, Representative Thompson, even though you are an attorney

:;

..:.'l 11

I

lL __~~u_~~v~ __~o__~_i~e _~~~_the::.~t_~~=n~~ ,__!o~_ c~n :'1::__ ~~r~_i:ip~~_in ~~_~it

_ PAGE 14
- - - _.. .. ---------_._,

[I case. This is what you're saying by this if you take this II
2 II language out.

-, II
.J

JUSTICE BOWLES: Oh, no, not at all

'I

4
II

MR. PEARSON: I don't know if this will clarify

5

Ii
il

anything or not but the situation I

think that we're trying to '
i

6 I! deal with is one where we're not worried about the indigent

:1

7 I,II who wants an attorney appointed for him, the courts says yes

II

8 I,iI we'll give you somebody, he's representing you, he speaks;

9

Ii:: I
!.

the situation I

think we're talking about is the situation whe~e

10 someone is indigent, wants to represent himself but doesn't

l?

Z

11

~
o~

want

to

do

it totally by himself,

and

so

is

the

state under

@;,!a. "' an obligation

should we put an obligation on the state to

make an attorney available to assist the person who is

! 14 ~ representing himself. My conception of the situation is that

'<":l

J:

15 .:> if you go that far, then the trial judge can in effect say you

l?

~

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16

.~..
o

want

to

represent

yourself,

we

will

have

an

attorney

there

I
!

Z

<:l

17 ~ at the table to give you advice, but you have to speak to the

18 court and make any -- and voice any objection. If that's what

19 we want, then I think this language does it. If we don't

20 want that, then we'll drop the "or with". It seems to me the

21 basic choice we're talking about as far as the trial judge's

22 control of the situation, I don't see any problem with the

trial judge saying to someone, if you want to represent

24 yourself then you speak to the court and we can appoint an

.~s !j attorney to give you advice on evidentiary questions, but it

u..

~. __._. ._.... _----- --.--~._--- ~---_.

- - - - -- -- ,'---~_--'-- - - - -- ----- -- -- ". --- ---- -

- - ---

PAGE 15

seems like to me that's the basic fact situation that we're

dealing with, and whether we want to make that possible,

it

1
I

create an obligation on the part of the state to provide an

I

Ii

4 i, attorney to assist the self-representative.

I!

5

CHAIRMAN THOMPSON: Let me ask one question.

(;

JUDGE POWELL: The Supreme Court has ruled on that

7 i~i
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II,'
1\ i,
I
9I !
10
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"-
@;:~""

question. CHAIRMAN THOMPSON: Mr. Justice, how often do you
anticipate that a situation would arise where the problem that i
!
you are citing would become a problem to the court? JUSTICE BOWLES: Only in those situations where the
accused attempts to disrupt. We have only had it where they attempted to disrupt the orderly process of the trial. There

I-f

;
t..

has been a

strong movement in Georgia and America not to try

<i.

J:

15

.~ ~?

the merits of the case,

but to create as much disruption as

"=">

J6

czo
a~

possible with announced plans of taking forty-five days for a

Z

<

17

~:
'"

single trial.

This has been in the press by one very

11: \' prominent lawyer, that his intention was to break a small

J') county so as to prevent them from prosecuting an obviously

20 , guilty criminal. So the method that they have been using is
II
21 I to disupt the orderly process of the court, not deny the

I

22

I'
I

defendant

any right

that

he

has.

I

I'

23

CHAIRMAN THOMPSON: Now Mr. Justice, that would

24 arise where the attorney who is assisting this person would be

2~ I, in agreement with that procedure, is that right?

i..l

..__.. _.

.

,,-----_._. i

r---

-------------------------------------- --

PAGE 16

II

JUSTICE BOWLES: Yes. If this were interpreted to

II

2 !I say "or with an cttorney", "use an attorney or with an attorney ,I

I

i

3

II
,I

how this would be interpreted by the court, I cannot say,

4 iI,1I my crystal ball is no clearer than yours but I don't think
!!
5 IIIi we have eliminated the problem with it.

Ii
6 I"

CHAIRMAN THOMPSON: Let me ask this, Mr. Justice.

I,I'

7 II A trial court judge, could he by appropriate rulings control
Ii
8 I_~ I that type situation or would it be the type situation that

I!
Ii
9 iIli he would be unable to control?

10

JUSTICE BOWLES: The minority of the court thought

~ z

11

Iet:

that he could even under the other language,

but a majority

(@,..:;o .0..-. unfortunately thought otherwise.

,;;3j I

CHAIRMAN THOMPSON: Mr. Boney?

14 >I-

MR. BONEY: Let me say one word on behalf of the

",

:t:

15

.:> Cco:l

practicing attorneys.

I discussed this with several since the

::>

16 ~.a... last meeting. Some of them expressed the opinion that they

z

<:

17 :;,; are really going to create a serious problem, some of your

18 appointed counsel are going to do all they can to represent

19 the defendant, but they are going to corne up here and say well

20 I elected to be the lead counsel and then hers going to say

21 well I acted on the advice of the man sitting there advising

22 me and the lawyer is going to say, when it comes up on habeas

23 corpus, that he had incompetent counsel, that he wasn't

24 responsible for it, and we're just going to have a situation

25 i there where we're going to really add fuel to this habeas corpuIs.

u

... __ _ -_ -

.. ------------.--- ---- ._- .

----- - - -- -. ~.--.---.-:

------- _._-- _ . _ . - - -
CHAIRMAN THOMPSON:

PAGE 17
You're in agreement with

!

I ,i
II

Justice Bowles on it.

:1

3,

MR. BONEY: Yes, I am.

""

4

! II

JUSTICE BOWLES: If I thought that it denied

!i'

5 anybody any substantive right, I would not be for it. On

Ii

6

Ii
i
Ii

the other hand,

I

see where it grants no additional right that

., I he has not had under our system or jurisprudence for two

hundred years.

9
ii

CHAIRMAN THOMPSON: Let me ask this. I'm not going

to limit debate in any way whatsoever, but is there anyone

<,1.

11

,.
~<
c'

here who does not understand the difference

in the

I
two positions,

@ r i12 '~""' that expressed by Judge Powell and that expressed by Justice Bowles? Is there anyone here who does not understand the

I

14 :~:; difference? Doctor?

<l

r

15 "J

REPRESENTATIVE SAVAGE: I want to get this clear in

III

~ ~

my

own

mind

and

for

the

other

members

on

the

committee.

The

T

language as written would give a person three opportunities

18
I before the court, either they could act as their own counsel

lSi or they could have an attorney to represent them or they could

20
act as counsel with an attorney advising them. Now is that

21
correct, there would be three different methods by which that

22 person would appear before the court under the language as
...,"
_J Ii written?

_~ ~ II
' L..

MR. PEARSON: That's what I think the language says. REPRESENTATIVE SAVAGE: I refer you to the language
- ._-,----._--~------------_._--~_._._-_.._-_._--_.._ - - - - - - - - - _ . _ . _ - - - - - .--------------_._------+._---,

PAGE 18
~-~---------~--~--~ ~-----------~----~-----,
l'
I as written, Justice Bowles, and ask is that your interpreta-

2 tion of it, Judge Powell? Is that your interpretation of it,

3 Albert?

4

CHAIRMAN THOMPSON: I'm presiding, I'm not going to

get into this. Justice Bowles?

JUSTICE BOWLES: With respect to the question of how!
i

this is going to be interpreted by the court, it is not clear

!
,I

I

I
as it is. If the court decided that this changed nothing, then)

we're back to where we were and I cannot anticipate how it

10 will be interpreted. I would think it would be absolutely

clear if it said "in person or by attorney", it's a fundamental, I
right that he have either but not both.

REPRESENTATIVE SAVAGE: Well run over cgain exactly

what is the present right in Georgia.

,-,

JUSTICE BOWLES: Well, the Supreme Court decision

<X

16 "o~ I don't remember the party's name, but it's popularly known

z

<

17 ~ in Atlanta as the Schlatt case because he killed Officer

18 I' Schlatt in a robbery.. The court held that it was harmless

19 11 error but it nevertheless held that he elected to have counsel
II
20 II and elected to participate on equal terms himself. With the
I'
21 Ii "or both" method he could do both. He could have two attorneys

22 1\

1
,

acting

--

,I

23 .:
II

JUDGE POWELL: I think the language in the old

i'
i 24 ii Constitution had "or both" and we are deleting that.

~5

I

REPRESENTATIVE SAVAGE: lI" L_

- - - - - ---~- ~~- ~

----~-- ~--

No.

I think that the Justice

PAGE 19 --,

I; here has said exactly what you are saying is that this

i

II

I

il
2

language simply establishes in the new Constitution exactly

J the legal problem that he says we have as law in Georgia now.
I
4 I just want to be correct is that is the present law and Justiqe

5 Bowles agrees with this and you agree with it, then what we

6 would be doing is esta~shing in the Constitution of Georgia

7 the right for an individual to either do it by himself or by

8 an attorney or with an attorney as: co-counsel. That's exactly

9 the way this language reads now as it is written. Is that

10 correct? And that's what you're saying, Justice Bowles, that

Cl

7.

11

i
oe

you object to,

is that correct?

""~J

@r'"~12 .J

JUSTICE BOWLES: I am afraid of the interpretation

that might be placed on it.

14 ,.
~

REPRESENTATIVE SAVAGE: If we were to strike the

IS ~ words "or with", would that then mean that you would have to

'":.:-) 16 '~" elect to either represent yourself or either by an attorney?

L

17

<l l>:
m

Now would

that

prohibit you,

if

you

elect

to

represent

It 1: yourself, from having an attorney there in the courtroom to

19 I,Ii advise you?

II
20 il Ii

!

JUSTICE BOWLES: No it would not. There t S no

I
!

i

prohibition against it, but you would not have a constitutional!

right -- Feretta vs California, which is the case that said

that you can represent yourself and interpreting the Federal

Constitution says that one of the basic requirements of doing

""":; ,I

~I__ ~h_i_~~: __t_hat ~~~_~o,:rt must advise the accuse~ fUlly__~_~~

_

PAGE 20

effectively that he is not qualified to represent himself

2 because of lack of training and experience and that he must
I

I 3 be advised of all the pitfalls that can come from a man trying I

4 11 to ~epresent himself. This is part of the constitutional I I

5

I
I

criteria

for

appointing

an

individual

as

his

own

counsel.

So

I

II

6 Ii at least it recognized, if the man makes the election, then

7

II II

he takes it with all the attendant shortcomings of having made I

,I

8 I,I' this election.

I,:i

9 IIII

REPRESENTATIVE SAVAGE! But if he makes that electio~

10 in Georgia under the language -- if we were to strike "or with "I

Iz!l

I

11

....
"o

and he makes

that

election,

could he

then

still have

an

Q.
w

~ 12 ~ attorney there with him to advise him before the court?

~r~

JUSTICE BOWLES: He would not have it as a

14

~
l-

constitutional

right.

V>

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1:

15 .:>
C)

MR, PEARSON: It would be at the discretion of the

"::>

16

~
w

trial

judge.

C

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<

17 ~

JUSTICE BOWLES: It would be discretionary and this

18 II is a matter of practice, it is often done.

19 II

REPRESENTATIVE SAVAGE: This is extremely important

III

20 I then to me, in trying to have some order in the court, if they I
21 I!II would still have the right even if they elect to represent II.
22 iiil themselves, if they have the right then to have an attorney

'I
23 il with them if they want to hire one and bring one, then I think

24 !I I favor that position, without giving them the constitutional

25 IIIi right if they elect to be their own attorney, then to require

,1___

_.

. ..

.

... __.

.__

.-----... -----.--

n- --~-~

PAGE 21

!I that they have an attorney there with them also.

Ii

2 II

JUDGE POWELL: But the problem that you run into,

b~ ; II and I would submit that the judges that we have- are going to

Ii 4 i fair in that possibllity that that judge would not grant that

5 as a matter of exercising their discretion if that right is

t) not there. Here again, I say my initial premise is that in

my opnion all the judges are fair, but there is this

possibility and we have seen it, you know, over the years when i !
that has not been done, not only here in Georgia.

10

REPRESENTATIVE SAVAGE: You're suggesting we don't

11

Ie<;

write this

in the Constitution?

o

<>.

UJ

(@) ..:.~ ; JUDGE POWELL: That's discretionary on the part of

~

the judge.

14 ~I >--

REPRESENTATIVE SAVAGE:

If I elect to represent

V>

-0:

1:

15 ~ myself I could then have counsel there to advise me.

-"",

16 ~

JUDGE POWELL: Yeah.

Cl

L

<

17 ~

JUSTICE BOWLES: Not under this clear language.

18

MR. PEARSON: I want to make one comment. I think

the issue is, if the guy wants to represent himself and

speak for himself and to hire his own attorney to come in and
21 , sit at the counsel table, this doesn't stop that, the issue is
I
22 whether the state has got to cough up the money to pay an
23 attorney to come am sit at the table with someone who wants 24 to represent themselves, that's the issue. If it's a
25 ! constitutional right even if he chooses to represent himself,

-------, PAGE 22
.-_._._-----

II

I

1 I: that the state has got to appoint an attorney to advise him

I!

2 I: if he decides he wants to have someone there to help him on

I,I

3 11 evidentiary issues. That's quite a different matter, that's

I',

II

4

Ii
~\

what we're voting about.

I'

5

!1
I'

MS GREENBERG: This language to me is very unclear

I':

6 '"I'III when it says "in person", I think a clearer word would be Ii

7
II

"alone", "either alone or by an attorney or with an attorney",

8 IIII,,IiI that would distinguish the three postures that a person can

9 I'I,
il

take.

He doesn't need counsel if he doesn't want it, he can

10
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11 ...
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~ 12 ~
~~.__.. ~
14 ~ i':<"rl
15 ..:.>, '"::>
16 ~.a....
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18

be represented by counselor he can be with counsel, but 1Iin person" to me means nothing. He can be in person and still have counsel.
CHAIRMAN THOMPSON: All right. I think that the positions are clear. I don't think anyone here does not understand exactly what we're talking about. If someone does i not understand what we're talking about, would you tell me so .
MR. HODGES: I think I have picked up something that !
might be helpful to us because we're talking along one basic ,i

19 point, and I believe that by the addition of several words in

20 here we would satisfy all parties. I think we could siqiy

,

21

I
find a way of removing "or with" and then writing in the right

22 of supportive counsel shall not be denied and then you are

23
locking the court in to the prohibition.

24

i

"

25i

: isn't it,

l L - - . __.

.

CHAIRMAN THOMPSON: That's Cheatham?
-..... . -.-.-.---~.---~------------- -~-.-- -------~--

saying

the

same

thing,

PAGE 23
- - .. ---"~-_ _-,_.---_._-----
i MR. HODGES: You are but you're spelling it out.

REPRESENTATIVE MARCUS: I'd like to ask a question,

3 I'm not sure I do understand it. Does the constitutional

4 guarantee require providing for more than the indigent, the

5 cost that has been referred to by the Professor, cost would

6 only relate to the indigent, wouldn't it?

7

CHAIRMAN THOMPSON: Cost would only relate to the

8 indigent. The question only arises when there is indigence.

9 It might arise otherwise, but nobody could hire me to go in

10 court and sit up and advise them. Frankly, I do not consider

this a good situation for a lawyer. There is roway in high

heaven and I hope no judge ever appoints me to go in there and

sit with somebody who is going to run the case and I have to

sit there and take it. If that's what he wants, I think he's

15

~\ ;~J

a

nut anyway,

but Mr.

Bowles

is disturbed by the possibility

'::">

16

'z"
'Q"

that

this

would

come

up and

it would

be disruptive

in

a

trial

Z

<

17 O<"J situation, and that1s what he has said.

18

Those who are opposed to that want to preserve this

19 right and say he should be entitled to do this if that's

20 what he wants to do.

21

MR. HARRIS: Mr. Chairman, I don't have the right

22 I to speak

23

CHAIRMAN THOMPSON: Yes, you do have the right to

24 speak, the Chairman says so.

25
II
U~"

MR. HARRIS: If I understand Mr. Justice Bowles'

" "__"

" "_"_________

------------ -

PAGE 24
~--------------------,
I
concern, one concern is that as drafted it is possible that a I

person would be constitutional held to have the right to have I

himself and a lawyer both conduct the trial. Possibly that

side of the issue could be settled by adding the three words

"and the advice of", so that it would read neither in person

or by or with the advice of an attorney". Now that doesn't

get to the second question which is whether or not you want I
I
to constitutionally provide that the state must furnish counse~

9 to act in that capacity of advising if a person who elects to

10 represent himself is not otherwise able to engage counsel. I

look on it as two different questions.

REPRESENTATIVE SAVAGE: If we write the advice of

counsel and guarantee that as a constitutional right, you

couldn't have the advice of counsel without counsel being

there.

MR. HARRIS: Huh-uh.

REPRESENTATIVE SAVAGE: So the real question is

18 I whether we,!want to write in the Constitution, as a constituI
19 I tional guarantee in Georgia, that any person can elect to I,

20

II II

represent

themselves

and

then

be

provided

with

counsel

at

the

21 ,I

trial while they are exercising this right.

1,1

22 I,
il

MR. HARRIS: There are two questions initially. One

II
23 il is can you have a situation where two people act as counsel,

24 Ii the lawyer and the indigent or the defendant and then the second

25 Ii,:IIL. ques_tion is, aside from that if you put it in with the advice

---",---,P--A-G--E--'---2--5-----1

of an attorney, is the question of whether the state is under I

1 !i an obligation to provide that advice. I don1t know whether

il

ii

,

,

II
i'i

adding those three words would make it better or worse,

but it! I

II

I

4 :il is simply a suggestion.

5 II
"

JUDGE POWELL: If you put the amendment in the

I"I

G IIIi Constitution requirang that there should be counsel as a

7 III,I, part of due process --

:1

II

8 "I
II
9 II"i' Judge.

CHAIRMAN THOMPSON: He elects not to have counsel,

10
..,

JUDGE POWELL: I understand that .

z

11 ....
'oa"..

CHAIRMAN THOMPSON: This is an election, he doesn't

~r~12 '~"
~~

have

to

do

that.

JUDGE POWELL:

And the issue as to whether or not

--

I

14 ~>- counsel is competent is going to be raised even if sometime



1:

15

.0
l:l

you have

an attorney,

so you know,

if

the

results

don1t

end

:'">

16

~ 'o"

as

the

person

wants

it to

end,

that

always

can

be

raised

L

<
17 ~ whether it is an attorney paid by the state or an attorney

18 paid by the individual. If that1s the way that person wants

19 to feel or thirl; they're going to raise it anyway, so I don't

20 Ii see where we're cutting off anything by saying that the
II 21 indigents are the only ones that can raise that particular

11 Ii
Ii question.
':

23 II
I'

MR. BONEY:

Mr. Chairman, I still think there is

24 iI a further complication to this, that if we let it go as it

2<; I'

stands now, we're writing into the Constitution something that

[i,_, __,

_

- - - - - - - - - - - - - - - - -P-A-G-E- -2-6 - - l

I hasn't been decided anywhere by any court and we're just

i

i

;,;
;',?

2 II really inviting and calling for a multiplicity of litigation.

3 III, Now as you said a moment ago, what lawyer would voluntarily

4 :1 say I'll be employed to go and sit at the table with you and

II

5 II I'll give you some information but the final responsibility

II

6

Ii
II

of whether you're going to object to that evidence is going

7 iIl, to rest with you, whether you're going to take the stand is

8 IIII going to rest with you, he's going to leave every major

II

9

II j!

II

decision up to that person and he's to try the case.

Then we

10 all know that somewhere down the line this person is going

lz.?

11

I0:

to

say well

I

acted on the advice of my counsel

and we're

.0c....

@.... ..'12

a: u

going

to

have

litigation

like

we've

never had

before

in

~ ~ " determining whether or not he was receiving competent counsel.

! 14 I- The buck has got to rest with somebody and if we just leave

'-"<

J:

15 ~ it without the words "or with", the responsibility is going

l.?

16 :"c.z:.o>". to be either with the attorney or with the defendant

Q

Z

<I:

17

0: co

CHAIRMAN THOMPSON: Mr. Boney, at one point you

18 wished to make a motion.

19 IIII

MR. BONEY: I wanted to make a motion that we

20 II delete the words "or with".

21 II,i

JUSTICE BOWLES: I'll second it.

il

22 II

CHAIRMAN THOMPSON~ There's a motion that the words

II

23 "or with" be deleted, and it has been properly seconded. Is

I

24

I
,I

there

any

unreadiness?

II

25 \1

(No response.)

rr----------------- ,- ---- - - - - - -

PAGE

- - - , ,----------_..-----,-------

----2-7---1

"f,
I!

CHAIRMAN THOMPSON: All those in favor of the

.

.,
"

motion, let it be known -- and let's have a hand count -- by

raising your hand.

(A show of hands.)

CHAIRMAN THOMPSON: Six. All those opposed, by

raising your hands.

(A show of hands.)

CHAIRMAN THOMPSON: Four. The count is six to four

for the motion, and the words "or with" are deleted from this

10 Paragraph X.

"z

11 ...
'oa".

We'll go to Paragraph XI, Searches, seizures and

w

(~r~ ~~~

12 ~ warrants.
;;:

Is there any objection to Paragraph XI? (No response.)

14 >-
!;;

CHAIRMAN THOMPSON: Hearing none, Paragraph XI is

<:

J:

15 ~ adopted.

<:l

r:.' ::

:1

16

<!l
2:

0

Is there any objection to Paragraph XII, Benefit

Z

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17 ''"" of counsel; accusation; list of witnesses; compulsory process;

18 trial by jury?

19

(No response.)

20

CHAIRMAN THOMPSON: Hearing no objection --

21

JUSTICE BOWLES: It's really somewhat repetitious,

22 ! with X and XII. i:
JUDGE POWELL: That's right.

24 :1

JUSTICE BOWLES: I don't oppose saying it twice but

II

25 II we are repeaing the same protection that we granted in X, we

lL......,_, ,

- ~ - - - - - - - - - - - --~--

r __ PAGE 28 - - _ . . _ - - - - - - _ . _ - - - - - - - - - - - - ---_._-----_ ..._. -----------------, are restating it in XII. Let me mention something, I won't

I

;"
., ~ ,
0'

2I
I

talk too much, but this came about because of the civil right

3 I and a criminal right in the 1877 Constitution. X was

I
4 intended initially as a civil right, a person was in the courti

II
5
I[

I
! on his own behalf and XII was the criminal protection, but it I

6 II would seem to me that out of the matter of refinement, that

7 I we could eliminate, the duplicity that we have in theMo
II
8 1 sections. I would refer it to staff counsel as a matter of

9
II

nicety, I don't want to deprive any right, but aren't we

10

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11 t:

"o'

12 ~'w"

~r~ (~,

~

14 .~..

VI

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15 .')

Cl IX
:;)
16 ~... Q
Z
< 17 ~

covering the same subject matter in two almost consecutive sections?
MR. HILL: Yes. MR. GRIFFIN: You would make it one section? JUSTICE BOWLES: Either one section or eliminate the duplication. CHAIRMAN THOMPSON: Do you suggest that first sentence be removed, or the first portion of it be removed

18 so that it would then be "Every person charged with an offense

19
against the laws of this state shall be furnished with a copy

20 of the accusation and on demand with a list of the witnesses

.... 21 I

", is that what you are suggesting?

I1
22
Ii

JUSTICE BOWLES: Yes.

23 II

JUDGE POWELL: Did you say eliminate that?

I,

24 I!

JUSTICE BOWLES: I would put "Benefit of counsel"

25 I.i
~_b_a_C__k _i_n_the tit_l_e_o_~_x_, R_i_g~~ t~_~~e courts.

Benefit of ?_~~_~~1 l.

PACE 29
r----
And then eliminate the benefit of counsel in XII, it's just

! a matter of refinement. That's my only thought about it.

CHAIRMAN THOMPSON: Is there any discussion of this? !

4

MS. BELL: I think we ought to leave it like it is.

We discussed this a long time last time.

,"

,"
I

CHAIRMAN THOMPSON: We didn't discuss that phrase.

,i

7,

JUSTICE BOWLES: Well you're submitting to the

8 public a report, you know, that doesn't look like you have

') ii given very clear thinking to the two provisions.

10
,-r..:'
tI .Yo CI

CHAIRMAN THOMPSON: Mike? MR. HENRY: Mr. Chairman, just a point of informa-

~)r~'~':~ f'" tion, it appears to me that Para!raph X also insures two other rights other than the right to an attorney and that is,

- 14;

t:; number one, to be present when you are being prosecuted and

<
'I:

15

.t> c:

number

two,

you

have

the

right

to prosecute

or

defend

~ n the

.",

.;>

16 ~
~ courts which also would preserve the right of hiring a
z

<
17 ~:,
private attorney to prosecute,a special attorney to assist the

state in prosecuting a particular crime, perhaps against your
19
own family or something of that nature. I think it's really
20
two different rights.
21
CHAIRMAN THOMPSON: In other words, you are suggest-

ing that the language ramain in there.
2J "
MR. HENRY: I think the implications flowing from
24
both of them are different, although there is -- it could be
:5

- - - ---_._-_._-_._.. ----------------

l'AGE 30

I 1 long, I would think it would be better just to leave it as it

2 is.

3

CHAIRMAN THOMPSON: Well they do no harm. Would

I

4 I you say they do any harm, Justice Bowles?

5 II,I If

JUSTICE BOWLES: No real harm.

6 Ii

CHAIRMAN THOMPSON: What is the pleasure of the

I

7 I group, is there a motion that this be done?

8 II

MR. BONEY: I'm not so sure that I'm following. If

il

9 :! I understood a moment ago, it was suggested that we go back

10 up to X and say "Right to the courts. Benefit of counsel." and;

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11

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'o"

leave it like we have and then come down in XII,

eliminate

.<.>...

12 ~ "Benefit of counsel" and just say uAccusationi list of

(~~ .._.; .

witnesses~ compulsory process~ trial by jury. Every person

____'?J; I

J4

>-
l-

charged with an offense against the laws of this

state shall

V>

:<z:l

15 ...:,l be furnished with a copy of the accusation .. " I don't see

IX

::>

16 .~oz... if we do that we have denied anybody anything, so I'll make

-<
17 ~ a motion that we delete the words uBenefit of counsel" and

insert it back up in X and eliminate the words "shall have the

privilege and benefit of counsel".

CHAIRMAN THOMPSON: Do I hear a second?

(No response.)

CHAIRMAN THOMPSON: Mr. Boney, I hear no second.

MR. BONEY: Okay.

CHAIRMAN THOMPSON: So that language remains just as "_ .J , it is, unless there is an objection of some other person to this.

PAGE 31 -----.---..- - - __-_,---__----~---I
We'll go on to Paragraph XIII, Habeas corpus. Is

there any objection to Paragraph XIII?

3 .1

(No response.)

II,

CHAIRMAN THOMPSON: Hearing none, we'll go to

5 Paragraph XIV, Self-incrimination.

,

(, Ii

(Brief pause.)

:1

7

CHAIRMAN THOMPSON: Hearing no objection to Para-

8 graph XIV, Paragraph XV, Bail; fines, punishment, arrest;

9 I, abuse of prisoners. :'

10

(Brief pause.)

z"

11 I-
a:

CHAIRMAN THOMPSON: Hearing no objection to XV,

()

~.

w

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12

~
~

we'll

go to

XVI,

Jeopardy of

life or

liberty more than once

forbidden. Is there any objection to Paragraph XVI?

14 >t;;

(No response.)



1:

1" ,~

CHAIRMAN THOMPSON: Hearing none, we go to Paragraph

':J

'""

16

~
~,

XVII,

Treason,

my favorite.

Is there any objection?

Cl

z



17 ~

MR. HODGES: Mr. Chairman, there has been some

Ik II. discussion by political scientists on this subject and also
J 9 I think over in the Legislative Counsel, someone who can talk
Ii
:.1,
20 !I to that and give the committee advice on it as to a need for

21 this particular paragraph in the way in which it is written.

,-,

I, ,I

We

talk

about

war

--

levying

war

against

the

state.

It may be I

_-,.'' needed but not in the case of levying war. It may be needed

'f , in a matter of coup as opposed to the levying of war. We have

2~ I' had of recent date, you know, in the past several decades, a

l L __.

.

.

- , . - - - - - - - - - - - - - " - - ..---.. ' . - - - - .-._~

PAGE 32

matter of coup against the state and that might be a better

2 delineation of the section or paragraph as opposed to this,
:1
3 1II\ and I think that's what the political scientists are
4 II concerned with.

5 II

CHAIRMAN THOMPSON: When they start shooting at you,

il:1
6 you're going to make a distinction between war and coup?
II

I

7 II

MR. HODGES: Yes, in the state, because it's not a

I

8 matter of war unless it is a matter between two nations, but

1I,\
9 II a matter of coup can corne within the state and I think if

10 we stated that, it would be so, coup comes from within, war

Czl

11 ~ comes from without, it could be coup or rebellion.

~

o
0. w
12 ~

CHAIRMAN THOMPSON: The battle between the states

riJI) ...... ,-~

~ was not a war?
I

14 ~

MR. HODGES: When you're talking about states, you'r

':"r

15 ~ talking about national states; between Iran and the United

a:
::>

16 ~ States, that would be a matter of war, but if someone took the

Q
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17 ~ state patrol or state militia and took over the Capitol of

18 I the state, that is a coup, it's not war.

19

CHAIRMAN THOMPSON: Mr. Pearson?

20

MR PEARSON: If this is a concern that the committee

21

22

23

24 ion I think.

2~ ,_.

~__M~_H_O_D_G_ES_: It_w_oU_I_d_~e better understood b~_':~=- I

PAGE 33

voters too, I have to agree with you.

"')

I'

CHAIRMAN THOMPSON: You mean you want to add "levying

-' ;, war against the state and insurrection"?

4!

MR. PEARSON: No, Ird just substitute "insurrection ll

:) for "levying war", I tend to agree that the notion of levying

o war is something that is not really comprehensible when yourre

7 II talking about action against the state.

CHAIRMAN THOMPSON: All right. Is that a motion, Mr

l\ 'l

iI
II

Pearson?

II

.-, z 11 l-
i.)':
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"...-..
12 ~
~~ ~!));=~~

MR. PEARSON: Yes, 1 1 11 make that motion, to substitute for the words Illevying war" the word llinsurrectiDn ll
MR. HODGES: 1 1 11 second that. CHAIRMAN THOMPSON: Therels a proper motion and

---

14 ~

I,"- second that that be changed to "insurrection against tie state".

<\

:x:

\) ~ Is there any objection to that?

='">

iU

1'.0
2.

All those in favor let it be known by raising

J 7 co your hand.

(A show of hands.)

1Y

CHAIRMAN THOMPSON: It seems to be just about

Ii

201II unanimous. Thank you, Mr. Hodges.

Ii

21 I

Item XVIII, Conviction, axect of. Any objection

,, to Paragraph XVIII?

(No response.)

CHAIRMAN THOMPSON:, Hearing none, we move to Item

)~

1; XIX, Banishment and whipping as punishment for crime. Is

L.~_~__ ~_~___

------- ---~----------

PAGE 34

there any objection to Paragraph XI~?

2

(No response.)

3

CHAIRMAN THOMPSON: Hearing none, we move to

4 Paragraph XX.

MR. HILL: Michael has done some research on

Paragraph XX.

CHAIRMAN THOMPSON: Mike?

MR. HENRY: Well when I first began research on it,

I went under the impression that it was the intent of the

10 committee to state what is presently happening and that is

Ii

"z.
~.
'o"

that people can be confined when they are in criminal contempt II

"...-.

~ 12 ~ of court. I find that involuntary servitude encompasses

9<o:~ ~ confinement but it also involves peonage or work --

...

CHAIRMAN THOMPSON: Slavery

'<"!.

I

15 ~
"'":;)

MR. HENRY: Well, yeah, slavery is within involuntar

16

~,...
a

servitude but it does involve work,

it does involve sentencing

Z

J7 ~ someone to work the city streets of Atlanta when they are in

IX Ii violation and convicted, and I just don't know whether you

19 II! want to just have that apply to contempt of court. It might !i
20 1'1 be construed as civil, you could do it for civil contempt of
I

21

I'
i

court,

which is

not intended to be penal

in nature but

II
-, -, IilI intended to be remedial. I think if you want to include

II

.:' ~

iI
!i

criminal

contempt of

court,

I

think

it's

already

included

24 "ii within the definition except as punishment for a crime, is

I
what 1m saying, I don't think that the words "or for co~_tem~~__ j

l ..

.__ ..

..------" --- - _.....

PAGE 35
q--
1
of court" -- I think that involves more than was originally

intended.

3

JUDGE POWELL: Under the penal code it's enforce-

4 ment, so if you say for crime, that would not include

MR. HENRY: I think criminal contempt --

JUDGE POWELL: What you're saying is "or for

criminal contempt"?

S

MR. HENRY:

I,

I'

9 :! 'I

put that.

II

I don't think you necessarily need to

10

JUDGE POWELL: You think crime would include that?

11 ~.
'"("l
0w
12 ~
@!r~'~

MR. HENRY: I would think so, it's in the nature of a criminal proceeding. And civil contempt, I don't know if you want to include civil contempt, I just don't know if that

14

;>-.
:,;

was your intention or not.



I:

1" '"

CHAIRMAN THOMPSON: You aren't suggesting that we

":'">

lh

I~
~.

remove civil contempt?

C1

7

<

17i

MR. HENRY: Just remove the words "or for contempt

] K I: of court" or put "or for criminal contempt" but I think that

IlJ would be redundant.

20

CHAIRMAN THOMPSON: Wouldn't that remove then the

2i right of the court to put a person in confinement for civil 2:2 !i contempt under certain circumstances, or would that remove it? I

MR. HENRY: Well I think when you confine someone

24 for civil contempt, it would be criminal contempt because it I

!

is my understanding

J

PAGE 36

MR. BONEY: No, I don't think so. You could be

2 held in contempt of court in a civil matter and it wouldn't

3 be a crime.

4

CHAIRMAN THOMPSON: It's mostly in domestic

5 relations as I understand it.

6I

JUSTICE BOWLES: The difference between the two

7 I basically is this, in civil contempt you can always purge
II 8 II yourself by complying. In criminal contempt you cannot as

9 Ii !I

a matter of right.

Do you follow me?

i!

10
..,
z 11 le-.:
o
.Q.... 12 ~
(~ ~"."~ ". ~ is.

MR. PEARSON: Yeah CHAIRMAN THOMPSON: Well, what is your pleasure? JUDGE POWELL: I think we ought to leave it like it

14 ~ I-

CHAIRMAN THOMPSON: Is there any objection to the

'"

"I:

15

.:>
CJ

adoption of

it as

it

is?

Let me do it that way.

"~"

16 ~
Q

JUSTICE BOWLES: Servitude is somewhat of a misnomer.

Z

17 ~

MR. HENRY: It is.

18

CHAIRMAN THOMPSON: Hearing none, we will go to

19 Paragraph XXI, Imprisonment for debt.

20

(Brief pause.)

21

Hearing no objection, Paragraph XXII, Costs.

(Brief pause.)

Hearing no objection, we go to Paragraph XXIII,
24
Status of the citizen.

L I, L - -

- ~_ -~--

(Brief pause.)

I,
J"

PAGE 37

Hearing no objection, we go to Paragraph XXIV.

l

MR. HILL: Mr. Chairman, we added into this

3 provision from the last time, "shall protect by law from levy

4 and sale by virtue of any process whatever under the laws"

to make sure that it would cover garnishment or any other

b type of proceedings and this was just Mr. Pearson had

I

Ii
II

suggested that that may be necessary, so we added that back

in there.

q
CHAIRMAN THOMPSON: You added the word "whatever"?

10

MR. HILL: "by virtue of any process whatever",

'z"

1I

f-
ooe

that phrase we added.

0-

,~

CHAIRMAN THOMPSON: Is there any objection to that?

(No response.)
particular~y MR. PEARSON: Whatever is not something I

1)

,~
,-'

care for,

but the idea was

just to make it clear.

~ '"

J6 ,'z".
0z

CHAIRMAN THOMPSON: That it is an absolute

, -/ <Y

" '" prohibition, that's what you wanted?

lS

MR. PEARSON: Any collection process for debt is

J9 going to be one in which you have --

20

21

II II

, , ,"

now.

MR. WHELCHEL: Are we opening up a can of worms here Does that mean that if a person has no property in his

name and works for a salary, that you can't garnish his wages?

23
CHAIRMAN THOMPSON: No. This has to do more with

.>+ i

I II

the area of homestead exemption.

I

.:<:

MR WHELCHEL: Wasn't that what Mr. Hill just said~

'------- _ - - - - - --- ---------~---..

PAGE 38
I

put that in there for, to cover garnishment?

I

2

MR. HENRY: Garnishment is covered by any process !

I

3 whatever.

I

Ii

I

4 \1

MR. WHELCHEL: That's what I say.

il

5 II

CHAIRMAN THOMPSON: I don't think you can garnish

6 right now as the law presently exists, up to that amount that

7 person is entitled for his homestead exemption.

8

MR. WHELCHEL: I think I could garnish everything

9 that isn't specifically exempt by either federal edict or
. 10 state exemption, under the garnishment law.

JUDGE POWELL: That's what he's saying.

CHAIRMAN THOMPSON: As it stands now, the homestead

exemption is provided for you by state law but you can't get

to that with a garnishment proceeding, this merely says the

15 ..:.>, same thing. I don't think there is that much distinction

'::">

16

!Xl
Z....

0z

MR. HILL: The federal law recognizes state

17 "!Xl exemptions and one state exemption recognizes this under the

18 II garnishment law, so we didn't think we were saying anything

19 II other than what is true already.

I

20 I[
21 IIII~II'I this.

CHAIRMAN THOMPSON: The thing that bothers me is As a practical matter this isn't worth two cents because!

22

\1
I"I

every

note

that

anyone

signs

now

waives

homestead

exemption,

':I'

~3 it lets them get to it anyway, the way the language of the

24 existing credit instruments -- so it doesn't have any meaning

:~ II unless a person knows he ought not to sign a waiver note, and

,l_

--_.-_.-.~-~----------

i ,I
just about everyone does sign those things.

PAGE 39

MR. WHELCHEL: If he doesn't sign the waiver, he

3 doesn't get the money.

4

MR BONEY: That's about right.

5

CHAIRMAN THOMPSON: I'm wondering about the

effectiveness of it anyway

..,

I

JUDGE POWELL: This protects those who refuse to

sign it.

CHAIRMAN THOMPSON: Okay, if there are no specific 10 objections to this Paragraph XXIV, is there a specific

objection to XXIV?

MS. GREENBERG: I think the word "whatever" can be

deleted without any great difficulty.

:;;

MR. HODGES: I would object, because I wanted to

r<

15

~)
~)

tighten this up,

I

wanted to make

sure they couldn't come in,

i:<

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]6 ~

a and I would even like to have a constitutional guarantee

z

-0:

17 ';

against waiver.

CHAIRMAN THOMPSON: I don't think you're going to
19
be able to get that.

MR. HODGES: I know, we've already discussed that in
21
three meetings. That's why I'm satisfied with this as it is.
22
CHAIRMAN THOMPSON: The word "whatever It doesn It
23
really have that much meaning as far as this is concerned,

whether you take it out or whether you leave it in there.

MR. HODGES: It gives the court a chance to be a
- - - - - lL __~ .. _.__~_.. __~.~_ _.

little bit tighter.

PAGE 40
~--------~-----------------~---~----,

CHAIRMAN THOMPSON: Do I hear a motion pertaining

to this?

4

JUDGE POWELL: To take out "whatever"?

5I

CHAIRMAN THOMPSON: I hear no motion. I hear no

I

xxvJ I,

6 II objection to Paragraph XXIV. We will move on to Paragraph

I

7 II Spouse's separate estate. Is there any objection to

I

II
8 I,

Paragraph XXV?

9 :1 II

(No response.)

10

CHAIRMAN THOMPSON: Hearing none, we move to

Paragraph XXVI, Enumeration of rights not denial of others.

Is there any objection to Paragraph XXVI?

(No response.)

CHAIRMAN THOMPSON: Hearing none, we have completed

15 ~,.,:; Section I. We'll pause for a moment.

'":::>

16

OJ
Z

,~
a

(Brief pause.)

Z

17

0'.
'"

CHAIRMAN THOMPSON: All right, we're back in

18 II business. Mel Hill has pointed out one thing. I call your

19

I'
I"!

attention

to

page

1,

Paragraph

II

has

Freedom of

conscience

II

20 II and Paragraph III has freedom of conscience. I noticed it as

21

Ii
,I
II

we went

through

it,

but

it brought

it up

and

he

has

a

I,I

'"

!i il
'i!j

suggestion.

I didn't say anything because I thought freedom

of conscience in Paragraph II meant one thing and freedom of

24 conscience in Paragraph III was applying specifically to

PAGE 41
---_ ..__. _ - - - - - - - - - IT,
freedom of conscience, that we make it freedom of religion

as a matter of heading, and let it go with that. Is there
I

any objection to that, because the two things do seem to be I

I

repetitive.

I

I
I MR. HODGES: Because we made it a point to add in,

you know, cult as an exception, so I think that would strengthtn

that.

I

CHAIRMAN THOMPSON: Is there any objection to

I

I

changing that second one to freedom of religion? Does that do

10 us any harm or any damage?

<z'

11 fo-e
o

JUSTICE BOWLES: Of course you repeat the language

"w-

(t).~r="' ;l~ : down in it too.

~-- V/ I

MR. HILL:

Well it would be changed there as well

----

14

>.
~.

to say freedom of religion shall not be construed.

< r
1( ,~
t.')

CHAIRMAN THOMPSON: Okay, to change it

.L

:oJ

J()

co 2

.~
a

JUDGE POWELL: Wait, let me see -- let me understand

L

<i
17 :::i "but the right of freedom of religion" instead of "freedom

18
of conscience" on line 321

19
MR. HILL: Yes, that's the proposal. It seems like

20 !
we're being redundant somewhat. I thought the understanding

21 of the committee was to deal with conscience in general and

III was more religious opinion, se I just thought that would b ,, , ~-" ' more in keeping.

24 :

JUDGE POWELL: When we discussed this --

l L 25 I

_ CHAIRMAN THOMPSON: Mr. Hodges?

PAGE 42

JUDGE POWELL: Mr. Hodges, we were talking about

2 11 cult not being a religion, I believe that was the reason.
II

3 If you construe a cult as a religion then I go along with it,
I

4 II but we felt this would be

II

5 II

CHAIRMAN THOMPSON:

I

Well you don't have any freedom

6 I

of cult, you've got a freedom of religion.

7

'I!
,I

MR. HODGES: Why did we do that, we took that --

II

8

I
I

where

did we

deal with

it?

I

1

9

"
:\

MR. HILL: It's a little later.

10

MR. HODGES: It's in the structure of government

'z-'
11 feor-: yeah. I kind of think you are talking only to religion 0..
~/9!'~~~ ~w II er: generally in Paragraph III, I think you picked up a fine point that really needs to be addressed and by doing it that way

14

>-
f-

you

are

addressing

religion

specifically,

in

Paragraph

II

'<

J:

15

~
'e-x':

you

are

dealing

with

general

aspects

of

conscience.

::>

16 ~
aw

CHAIRMAN THOMPSON; Can I get a motion?

-Z

17 ~

MR. BONEY: I move that we designate it "freedom of

18 religion" and eliminate the words "freedom of conscience" and 19 i eliminate "freedom of conscience" and substitute "religion"

20 on next to the last line on page 1.

21

CHAIRMAN THOMPSON: Do I hear a second?

22

MR. HODGES: I second it.

23 i

CHAIRMAN THOMPSON: All in favor, let it be known

!

24 'I

I

I by raising your hand.

i

25 I.!I

j! lL~_~

_

(A show of hands.)

I
___________ .JI

PAGE 43

CHAIRMAN THOMPSON: Those opposed by the same

.: sign.

(No response.)

I

4

CHAIRMAN THOMPSON: There were no votes in OPPositiot

:) All right, we go to Section II, Origin and Structure of

h Government.

7

Mr. Guerrero, what we are doing, we're not going

8 through this word for word as we have done in the past. We

9 II have already adopted it and I'm going through it just calling
10 out the paragraphs. If no one has any objection or
~,
z
amendments to propose at this time, we go to the next one.

MR. GUERRERO: Thank you.

CHAIR~ THOMPSON: Paragraph I, Origin and

foundation of governoment. Any objection?

':;(

r

1" J

(No response.)

CHAIRMAN THOMPSON: Hearing none, we'll go to
z
<:
17 ~ Paragraph II, Object of government. Do I hear any objection

1S I! to Paragraph II?

1Y i

(No response.)

20

CHAIRMAN THOMPSON: Hearing none, we'll go to

Paragraph III, Legislative, judicial and executive powers, 22 separate. Is there any objection to the adoption of Paragraph

III?
24

(No response.)

i
I

anuI I
CHAIRMAN THOMPSON: Hearing none, Paragraph IV,

----------

'\
II objection to the adoption of Paragraph IV?

PAGE 44

2I I

(No response.)

II

3

CHAIRMAN THOMPSON: Hearing none, we'll go to

4 Paragraph V, What acts void. Is there any objection to the

5 adoption of Paragraph V?

6 'i

(No response.)

7I

CHAIRMAN THOMPSON: Hearing none, we'll go to

I, I-; II Paragraph VI, Civil authority superior to military. Is there

1,!1
9 ;i any objection to the adoption of Paragraph VI?

10

(No response.)

"z
11 fox

CHAIRMAN THOMPSON: Hearing none, we go to Paragraph

o

0-

w

12 ~ VII, Separation of church and state. I'm going to pause here I

(@\ "..,,; because we took out some stuff. Have you had a chance to look II ,'SJ; I

14

>>-

at

it?

V->

I

J:

15 ~

MR. GRIFFIN: I wondered about the word, Mr. ChairmaJ,

"'"::;,

16

'z"
C

"appropriated",

and

I'm

not

sure

my

position

on

it,

but

I'm

\

:z.

<:
17 ''"" trying to substitute the word "assigned". Appropriate is

I
i

18 shown as a transient verb in the dictionary. We appropriate I

II 19 III, funds, but here we are saying

I'll be glad to see if

20

II
I

anyone

has

anything

to

say

on

the

question.

I

I

21 I
1

CHAIRMAN THOMPSON: You think you can appropriate

22 money but you can't appropriate property?

23

MR. GRIFFIN~ Well we're using it in a somewhat

24 different sense as I understand it, and maybe I'm misunderstand~ng

25 :. the way we're using it.

I,

-- -------------------

I
- ..-. -_._. --------- ._-- .--- ---~

PAGE 45

CHAIRMAN THOMPSON: Let me ask you this, is it

-) unclear as a prohibition against giving public property?

3

~m. GRIFFIN: No, it's not unclear sUbstantively,

4 it's only a question of whether that's ~he right verb. I

5 think I would be more comfortable with assigned to any such

() purpose.

7

CHAIRMAN THOMPSON: What about given?

S

MR. HODGES: I would look at the word assigned as

C) being almost without limitation as opposed to appropriation.

10 To appropriate means to specifically delineate, assign could

cJ

Z

11

~
".o.".

almost

be taking in a

general sense

-- you know,

assign an

w

12 ~ obligation. One you're talking about funds, you know, and

(' 0~)/)~D ~ ~'fJY1i..1

'L
what may be achieved through appropriation of funds; the

14

>-
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other

is

talking

about

even

--

you

have

to

use

the

word

to

say



"I:

15 .!) what I want to say, the assignment of acts. I think

l.:J

'":::>

16

~
w

appropriate

more

specifically tells

us

what we're

trying

to

D

7.

17 ~ say.

Ii) iI

CHAIRMAN THOMPSON: Does anyone feel strongly

19 enough about it to make a motion?

20

MR. GRIFFIN: I don't, I just raised the question.

CHAIRMAN THOMPSON: I hear no motion and I hear no

objection.

23

We have eliminated what was XI, XII and XIII and

I

2~ ~ I that finished Section II.

I
Section III, General Provisions. We used a sharp J

PAGE 46
l pencil, removed a lot of materi:~-, we're down to Paragraph I,

2 Eminent domain. Is there any objection to Eminent domain as \
I

3 I it is written? Let me say this, I wrote a letter to the

I
I,

I

4 !I,i Attorney General's office and asked for an opinion. I told

Sill the group I would do that, at the last meeting. As of this

i

6 I! date I have received no answer from the Attorney General's

'I,
7 I office so we have nothing in that direction to act upon.

8

Does anyone have any objection to the adoption of

9 Paragraph I, Eminent domain as it is written?

10

(No response.)

Czl

11 le<

CHAIRMAN THOMPSON: Hearing no objection, we have

o

0-

w

(r@-::t, -".~, ~ 1')

e<
~

adopted Paragraph I.

Paragraph II, Private ways.

Is there

any objection to the adoption of Private ways as it is written.

,gj I

14 r I-

(No response.)

':<x:

15 .:>
Cl

CHAIRMAN THOMPSON: Hearing no objection, we move

:'">

16

~
w
Q

on to Paragraph

III,

Tidewater Titles confirmed.

Is there

Z

4:

17 :ii any objection to the adoption of Paragraph III, Tidewater

18 Titles confirmed?

19

(No response.)

20

CHAIRMAN THOMPSON: Hearing none, we have completed

21 Section III.

22

Now we have done nothing to Section IV, since it was

23 a very recent act of the Assembly by resolution and passed 24 by the people of the State of Georgia in 1978, and from the
25
beginning we proposed to go with that. Does anyone ha"e c:~X 1

__ rT--~-

_~~

._.~--~----_._--_.

-------.-.-----~---

"
1"

objection to that?

PAGE 47

MS. DAVIS: I would like to raise the same objection

3 that I raised the last time, Mr. Chairman. And maybe this

4 ought to be directed to Mr. Harris as Chairman of the Select

5 Committee. It is only about a question of placement, if in

fact the whole subject of recall should not be in Article II

7 instead of Article I, the section on elections, and I would

ask that that be considered. I think that maybe it ought to

() :: not be under the Bill of Rights, but under the Elective

!()
~1
Z
1 j ....
'o"
0w
12 ~
( ,~~ ....... ~~

Franchise. MR. HARRIS: I think that's a good point. CHAIRMAN THOMPSON: Is there any way we could change
that, Mr. Harris?

14 ;..
f
Ul
:r

MR. HARRIS: We'll be taking up Article II at this

15 ..:.>, session of the General Assembly also, along with Article I

'";;;)

16

'2"-
w

We've

got

some

technical

problems

to

cover

in

removing

a

'0z.

17 ''"" section from one Article to the other, making certain that no

18 damage is done if one is ratified by the people and the other

19 is rejected, but we are faced with this in some other areas,

20 so we'll add this to the list that we'll try -- I agree, I

21 think it belongs in the elections article and if we can do it,

22 : it will be done.

23

CHAIRMAN THOMPSON: Okay, that's fine.

24
MR. HODGES: Mr. Chairman?

CHAIRMAN THOMPSON: Mr. Hodges?

PAGE 48

lit'

MR. HODGES: I'll go back to the original reserva-

2 I ~on, I have found a possible way to insert what I mentioned

3 i about the family life and it may possibly fit simply and

4 without any argument or possible debate, in Paragraph XXIII

5

lion Ii

page

4,

in

Article

I.

6 II

CHAIRMAN THOMPSON: Where is that cgain?

II

MR. HODGES: Page 4, line 35, Paragraph XXIII,

7 :1

8 :~Ii it says "Status of the citizen", at the very bottom of the
ii 9 I!Ii page. I think we could also just put right behind that,

10 "status of the family" and then say -- it would then read by

<..'J

z:

11

...
...o0:
"-

adding after the word

"citizen",

the

family,

and

it would

@ -P

0:
~

then read,

Paragraph XXIII,

Status of the citizen;

status

@)r~ of the family. The social status of the citizen or of the

14 .>... family shall never be the subject of legislation."

'<"I:
J:

15 ..:.,.

CHAIRMAN THOMPSON: What do you mean social status

0:

3:>
]6 az of the family?

] 7 :ii

MR. HODGES:

It's the same as the social status of

]8 il the citizen. What we've been doing -- and that's one of the

19 i,iiIl reasons the White House Conference has been called, if you

II

20

i'dI
I:

read

the

whole

reason

or

the cause

of

it

in

the

debate,

it

21 l:

II was that we have been constantly degrading the social status

,

22 r of families as such, making it the subject matter of

,

I

legislation and as a result of that, the family has been

,

I

24 i,: demeaned and divided.
I

I

~" 'i

I
CHAIRMAN THOMPSON: Do you:nak~~~~~ti~ctio~n betweenJ

lL--

... _ _ ~_ _..

_ ---

PAGE 49

rr the legal status of the family and the social status?

, II
II

MR. HODGES: Yes, both, but I'm just trying to get

II

3 \i it in here without -- unless you wanted to write another

4 I,I' section. 'I
5 I! II

MR. BONEY:

I'm afraid that would repeal all of our

6 1!1i domestic relations law and family support.

Ii

7 !I

MR. HODGES: I don't know that it would, you're

Ii

looking at it from an attorney's viewpoint --

CHAIRMAN THOMPSON: Mr. Hodges, let me ask you this.

JO You wouldn't want to put anything in this document that would

11

d.
oa.

raise a

question as

to whether we have changed the basic

~@ (" '~ 12 '~" relations so drastically that we don't know what we're doing?

'

MR. HODGES: No, I wouldn't want that, and that's

14 ;~. the reason I brought it up, it may be dropped. If we've got



1:
15 ~ a few minutes that we can talk about such a serious issue.

'2"-

16

~ 'Cz"l

Our

difficulty

here

--

and

this

is

the

reason

for

this,

you



17 ~ know, national conference, it happens to be also an

18 !' international situation. ~ve no longer delineate what a family

]9 is. It's simply that. If we are dealing with a new
II
20 IIII Constitution and we are dealing with an article concerning

21 the Bill of Rights of the people, then we've got to recognize

22 that the quality of the famil~ that the individual comes out

I

.:'

II
of a Ii
II

family,

that's what we've got to do.

You first must

ii,

2~t :1 recognize that the individual comes out of a family. Now II

2~ lIi:!l what we do_w-i_th. the individual after that is another matter.

PAGE 50

----_.--- - - - - - - - - - - -

2

CHAIRMAN THOMPSON: But the individual might not corne out of a family.

l

3

MR. HODGES: Sure he does.

i

4 II I

MR. BONEY: But are we going to define the family I

5 II
ji

in the Constitution?

I

6 II!

JUDGE POWELL: That's what he's saying, he wants

I

I

7 II the Constitution to guarantee there would be no legislation

" I for that, that's what I hear you saying.

I

9 !I

MR. HODGES: Not essentially that. I want to see

10
"z
II f-
...IoX
Q.
12 ~
@r"~

what I'm trying to do is say that the quality of family life will be preserved.
CHAIRMAN THOMPSON: You're talking about what is already the public policy of this state?

14 .~..

MR. HODGES: Yes, but --

':<r

15 .:>
"IX
::>

CHAIRMAN THOMPSON: What used to be the pUblic

16

~
Cz

policy

of

the

state.

<

17 ~

JUSTICE BOWLES: I think it still is.

Ig I

MR. HODGES: You think it is?

19

JUSTICE BOWLES: It has been attacked severely, but

20 it's still standing as of now. We've got about five votes

21 that says so.

22

MR. HODGES: It's a serious matter.

23

MR. HILL: How about if we make an amendment to the

24 preamble to say liTo perpetuate the principles of free

25

government, insure justice to all, preserve peace, promote the i

L______________

---

~________

----- -------------------!

--- -

- --

-

PAGE
_ _.. - - - - -

. _51- - ,

interest and happiness of the citizen and the family and

2 transmi t to pos~erity the "

3

MR. HODGES: That would be fine with me.

4

CHAIRMAN THOMPSON: Is that what you were thinking

about, Mike, in the preamble?

6

MR. HENRY: I don't think that would involve any

7 legal implications like putting it where Mr. Hodges suggested

8 it.

9

MR. HODGES: That would be fine with me, "of the

10 citizen and of the familyff, that's on line 7 in the preamble.

CHAIRMAN THOMPSON: Would that make you happy, Mr.

Hodges?

MR. HODGES: Yes, sir, Mr. Chairman I so move.

JUDGE POWELL: I second.

15 ,:,
':J

CHAIRMAN THOMPSON: It has been moved that we

r:<

:0

16

~
ow

preserve

the

family.

Is there any objection to that?

Z



17 ~

All in favor let it be known by raising your hands.

(A show of hands.)

19

CHAIRMAN THOMPSON: It appears to be almost

2U Ii
11 unanimous.
I
21 ':

All opposed? (A show of hands.)

CHAIID1AN THOMPSON: We have two votes in opposition

and we had I think about nine votes for it .
.'4
Well, we're at the end of this long document. There
i 25 ii
i_:_one o_:_h~_~_thing. I want to recognize Ms. Bell, she has some

PAGE 52

remarks and I agree with what she is saying. We whispered

to each other up here a moment ago and neither of us knows

how to attack this and we thought we would just throw it out

to you and when we finish this unless someone has anything

else, we'll be able to go.

Ms. Bell?

MS. BELL: I would like to suggest that before it

goes to the General Assembly in final form -- and I expect

9 \I1I maybe it will be done anyway

I think it should be gone

10 over very carefully to be sure that it is grammatically

<.:l Z

11

f-
oet:

correct.

There are a number of things that we talked about in

C.....

('I~(~~r~"~-~ l' et: the past and it still has a lot of things that aren't grammatically correct. I think it might tend to detract from

~.

I

14 ~ the time and work we have put into it by suggesting that we

'"

:I:

15

~
<c:.r:I:

haven't

been as

careful

as we

should.

::>

16 'z..".. a

MR. PEARSON: On the efforts to neuter the style,

appreciat~ 2

1

<l

17 ',"D I think there has been some clumsy phraseology and I

th~s 18 Ii the motivation behind it but I hope that maybe in polishing

19 1\ thing up, there will be some further consideration of our

I

!I

I,

20 efforts on that. You know, I can't edit at the table, but I'm

21 a little concerned about that.

CHAIRMAN THOMPSON: That's exactly what Ms. Bell was

saying and I agree with it, but I don't know how we can approach
I
24 it at this stage.

MR. PEARSON: Oh, no, I don't want to do it at this

PAGE 53
II
, stage. I think it's going to be a problem throughout the

2 entire document and there has got to be a decision on style

~ that is going to be compatible throughout the document, and

4 that can be done at some stage by the umbrella committee or 5 the General Assembly. We can't do that here.

CHAIRMAN THOMPSON: Robin, do you have any comments

7 on it?

8

MR. HARRIS: Well of course it is our intention that

91'i the final product would be as grammatically correct as we can

10

<z:1

II f-

oa:

.0.....

12 ~

(~, ~Y~~)f\ ~

~~
'j

14 .>.-. V>
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r
15 :~
'::":>
1(1 .~...
a
L
<
17 ~

have it, and as aptly phrased as it can be. We would welcome suggestions, not necessarily in this meeting but by correspondence, and we'll do the best we can.
CHAIRMAN THOMPSON: Robin, would you inform the group what the procedure is now? We're having a meeting of the Select Commission on the 17th of December. What do they propose to do with these Articles?
MR. HARRIS: What happens now, of course, all the

IH committees dealing with the various articles were appointed

IS' by the Select Committee. Your work product will be

20
distributed to the Select Committee prior to December 17 and

21
on December 17, the Select Committee is meeting beginning at

1,
one o'clock with no termination date or time. The committee

chairmen are asked to be present and we will report to the

Select Committee here are the work products of these
i25 c~~it~e:_es that have functions thus far. The Select committee,]

PAGE

of course, can accept that which is presented to them, they

can make changes if they elect to do this and then the

Select Committee would, whatever its final determination is,

would forward on to the General Assembly in the form of

resolutions proposing new Articles to the Constitution. I

have worked out with the Speaker and the Lieutenant Governor

that Articles I and III will be introduced in the House.

Hopefully you would agree to be the author of Article I and

the Speaker has indicated that it would be his intention to

10
..,
z 11 >0-
oct:
"w-
@;:~

send Article I to your committee. Articles IV and V will be introduced in the Senate, and of course each of those bodies has the absolute right to operate on what they receive as they see fit, both in committee and on the floor, so that I cannot

14

>t;

guarantee you that that which you have done will

come out



:I:

15 .~., unscathed after it travels through this process

ct: ;;;>

16 zIn W

MR. PEARSON: Will there be an opportunity for

0z

17

ct:
CXl

members

of

the

committee

or

the

chairmen

to

appear

before

the

18 various committees either in the Senate or the House to

19 clarify our thinking on that? I don't really know tha~ we 20 should rely strictly on a reading of the transcript. I

21 would hope that we would have advocates to make sure our

22 viewpoint gets the weight.

23

MR. HARRIS: At such time as the appropriate - of

24 cour~ Mr. Thompson can work out his hearings where he's

chairman of this committee, can present to himself as chairman

_~

.......J

_____~

PAGE 55
- __ --------------------r

of the special judiciary committee the thought processes

that went behind your work.

3

CHAIRMAN THOMPSON: Even further than that, if it

,l comes to my committee, I can see to it that this group would

5 be well represented at that particular time. There wouldn't

be any problem as far as --

7

MR. PEARSON: I didn't know if there had been any

8 thought given to that.

9i

CHAIRMAN THOMPSON: That's sort of left up to the

10
~ z
1I fa: o 0w
I:.? ~
~~ F: ;

indiv~dual chairmen to a certain extent, how they want to cnduct their own committee.
MR. HARRIS: They're a very, very autocratic group of people. I have difficulty with committee chairmen from

14

>';:;

time to time,

but --

'0-.":
.:>
It, ~ u o L
<i
] 7 ?,

MS. OSTRANDER: Would you notify us if you have enough lead time when it will come up? I know sometimes you don't have enough lead time.

CHAIRMAN THOMPSON: Mel, let me ask you this, are

19 you going to still be with us?

20

MR. HILL: Oh, sure.

21

MR. HARRIS: For two more years, we've got four

Y) I;
more Articles.

,,

--'

MR. HILL:

These were the easier ones.

CHAIfu~ THOMPSON: That's the reason I asked that.

I will coordinate with Mel to get notices and things of that

PAGE 56

1'-----------------
iI 'd sort Olt.
II i

2I

If it is introduced and brought to the committee, as

3 I chairman I can call up a bill when I wish to call it up. I

4 don't think I have a right not to call one up because I try

5 to~ve every bill that comes in there some consideration.

6 Some of them I don't like but I still try to give them

7 consideration. I think I would have full opportunity and

8 particularly as author of the bill to call it up when I

9 wished to call it up.

10

MS. OSTRANDER: That would give us lead time.

"z

11 ...
u.oe>:
Q.

CHAIRMAN THOMPSON: It would be my idea to get it

(@)F~12 ~
~~

out

as

quickly

as

we

can

for

debate

on

the

floor

so

it

could

go over to the Senate. I don't want them sitting over there

14 .~.. saying -- by the way, we had two or three Senators on this

'<

J:

15

.:>
"'::">

committee

and

I'm

just

going

to

say

this

and

it's

not

really

16

~
w t:l

critical

because

I

know they

have

a

lot

to

do,

but we

had

Z

<1.

17 ~ three House members on the committee and each one of those

Ik members has been here for meetings and has participated. We 19 had one Senator present for one meeting. When it gets to the

20 Senate, they oftentimes holler that we haven't had time to

21
look at this. Perhaps if they had come to the meetings, they

22
could have participated in the development of it. I don't thinr

23 members of the House can say that they have not participated I

24
because we have been here.

I
I
i

".;:...!

_ J You're taking all this down, aren't you? (To the

I'
I I reporter. )

PAGE 57

MR. HODGES: Mr. Chairman, I might say, I made the

) point that I tried to talk to that, and there were times when

,; there were conflicts because I'm on a couple of advisory

5 Ii committees and they were in conflict with these meetings.

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CHAIRMAN THOMPSON: My remarks were not editorial

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7 ': but I need to get this to the Senate as quickly as possible

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8 so they'll have plenty of time to consider it.

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MS OSTRANDER: Will you have any opportunity -- will

10 it go directly to the Judiciary Committee on the Senate side

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CHAIRMAN THOMPSON: We have nothing to do with what

@F'~ the President of the Senate, or the Lieutenant Governor, does

14 .r.. by way of assignment. I think Robin might have more to say ':<r
15 ~ about that than I would or than we would. I would have Cl ct: ::>
16 '~" nothing to do with assignment in the Senate.

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MR. HARRIS: Well the Lieutenant Governor was presentl

[,'\ at the Article III committee yesterday, Albert, and he'll work III

III with me on it.

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20 Ii

CHAIRMAN THOMPSON: I think Robin can take care of

"

21 that, I don't believe there'll be any great problem.

I

22

MR. HARRIS: Now when it gets to the Senate, then I

... n Spairrnan Thompson will be asked by me to participate in the
.:).-..,, Senate committee hearing.

~5 'i

CHAIRMAN THOMPSON: As author of the bill, it'll be J

PAGE 58

my obligation to follow the thing through. lIm gang to go

over and just push on the Senate committee so that they will

3 consider it.

4

MS. OSTRANDER: There are several of us here that

5 are in other positions other than being legislators and I

6 think we can do some talking and monitoring.

7

CHAIRMAN THOMPSON: I would appreciate the help, III

8 try and keep you informed, if I go before a Senate committee

9 for instance with this. If I have the support of some

10
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members of this group I would personally appreciate it. MS. OSTRANDER: I think Cheatham and I are pretty
much here almost every day. MR. HARRIS: Mr. Chairman, may I express on behalf

14

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of

the

Governor

and

the

Select

Committee

their

appreciation

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for the hard work that you have put into this and I

have to

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also comm+nt that the other committees have been equally

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18 of the committees. I would hesitate to recite the number of

19 pages that have been generated to date as a result of the

20 hearings of all the con~ittees and I would suppose that it is

21 in excess of 3,000.

22

MR. HILL: Four thousand.

23 I

MR. HARRIS: And I appredate and the Governor

24

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appreciates it and the Select Committee does.

25 ""

JUSTICE BOWLES: Mr. Chairman, counsel will make our

PAGE 59

draft and then I suppose that you will accompany it with a

recommendation, or how will it be physically delivered? Will .' you take it in hand for presentation, will it go from this

committee to you?

5

MR. HILL: As this memo points out, the final report

6 of this committee to the Select Committee will consist of

7 a draft which you are about to approve finally, the notes and

comments that the staff will prepare on each of the sections

as to what the changes are, what the rationale was and thirdly

10 staff memoranda analyzing the statutory effects that this will

11 ... ox au.,.
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have on the Code. Then Chairman Thompson will be attending the meeting of the Select Committee on the 17th to present the committee report, but as of next Wednesday this will be

--

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JUSTICE BOWLES: As a matter of pride from the

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commi ttee as a rtlhole:,

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would

like for us to refine our

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17 ''"" language. We do have some rough areas in there and I don't

18
think there would be anyone who would want to try to change

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19

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the substance of it, but I would like if possible for us to \

20
refine some of the rough spots that the Professor has mentioned!

21 and perhaps counsel is aware of. You suppose we could have I

the subcommittee to have some refinements of language without
23
changing the substance and then send them back out to the
24
whole committee? If anybody thinks it changes the substance
25
it will not go, but merely a refinement in language.
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PAGE 60

CHAIRMAN THOMPSON: Do you have any recommendations

2 for the composition of a subcommittee that could work on this?

3

JUSTICE BOWLES: A very small one, three people,

4 counsel could work with them.

5

CHAIRMAN THOMPSON: We don't propose another meeting

6 of the entire group.

7

JUSTICE BOWLES: No, I would not.

8

CHAIRMAN THOMPSON: Is there anyone here who could

9 give a day for going through this for purposes of changing

10 grammar and not substance?

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MR. HILL: This afternoon as a matter of fact. Is

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there anyone sit down and

who would be willing go through this with

or able this the staff so

afternoon to that we can get

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whatever

editorial

changes

we

feel

we

should make

completed.

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MR. GRIFFIN: I'll give it a couple of hours this

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CHAIRMAN THOMPSON: Mr. Pearson?

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MR. PEARSON: I can't do it this afternoon, I

19 could do it this weekend and call andtalk to you on the phone

20 Monday if you wanted or are you going to be in some time this

21 weekend? I could get with you, call you on the phone Sunday
'.)..). afternoon.

23

MR. HODGES: I can't do it this afternoon.

24

CHAIRMAN THOMPSON: I can' t r I' m flying out .this

25 '" afternoon.

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,

Well if I could meet with those who can

-~ meet this afternoon, then I could get a better revised draft

3 and then I can speak with the others. We really are running

4 into a deadline problem.

5 I,

CHAIRMAN THOMPSON: We've got two people here who

I'

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h have indicated that they can, Mr. Griffin and Ms. Bell.

7 I,II

MR. PEARSON: You know, Mel, what is your schedule,

I I,

X I are you going to be here Sunday afternoon or where could I get II II
<.) in touch with you?

MR. HILL: I'll be at home, I'll give you my number.

MR. PEARSON: Some of these changes may come as a

result of going from the passive to the active voice too.

I've been sort of playing around with a few things in my mind.

The sentences will read differently but you're just going to

) have to go through a different voice, there won't be any
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people to get worried about the substance.

CHAIRMAN THOMPSON: Mel when you complete this, I 19 think we have given you the authority along with members of 20 the committee, to make grammatical changes, you're going to '_1l' send each one of us a copy of the document?

MR. HILL: Yes, the final document.
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CHAIRMAN THOMPSON: When you get the copy of the

document, make your comparisons and see if injury has been done

to the substance and if no injury has been done to substance

PAGE 62
~~~en- we'll accept i t . 1

2

MR. GRIFFIN: He made the point earlier that there I

I

3 were some awkward situations in regard to trying to make this I

4 neutered. It seems to me we ought to have an opportunity to

5 say now whether or not we want to keep it absolutely as it is

in its present form or whether we can modify that. A simple

7 illustration on the first page, ones religious opinion is

awkward in my judgment. It would be simpler to say his or

9 her religious opinion. What is the committee's opinion?

10

MR. HILL: The staff has not been unaware of this

11

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problem and we have evolved through many attempts

to do what

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14 ~ becomes very clumsy, much clumsier than what appears.

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MR. PEARSON: There may be situations where that's

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the only solution

In situations where you can't use a

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17 ~ modifier like one or a term like individual or something like

that, it may be that that's the last resort neutering phrase.

I think that's what we're really talking about. There may be

ways to do it without resorting to it and if so, I would urge

that we use that, but I would not adopt the policy of never

using his or her, I agree, I think it would be incredibly

repetitive. Just put a little priority of phrase selection

Ii and see what we can come up with, but no promises, you may

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I! like our product less than what we have now but we'll give_a .J

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-- - - - - - --- - - - - - - - - - ---~

~ shot at it.
j

2

MR. GUERRERO:

PAGE 63
It seems to me you ought to -- I

3 would like to move that we create a suboommittee of Mr.

4 ~earson, Mr. Griffin and Ms. Bell to work with the staff to

5 make grammatical changes to the document and that unless there

6 is a division, that we go ahead and accept this entire

7 document with those revisions as the final product.

MS. DAVIS: I second the motion.

CHAIRMAN THOMPSON: There is a motion that a

10 subcommittee of Mr. Griffin, Mr. Pearson ana Ms. Bell work

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with the staff to make grammatical changes and that the document be accepted with the grammatical changes that they are authorized to make. That"motion has been seconded. Is there any unreadiness?
Now this is the posture, this is the final vote on this thing because we are adopting with grammatical changes the whole shooting match. All in favor, let it be known by

18 raising your hand.

19

(A show of hands.)

20

CHAIRMAN THOMPSON: We t re voting on the whole

21 thing, that was my understanding of the motion. It seems to

22 be unanimous. And that's it.

23 ,I

Ladies and gentlemen, I tell you, I don It know how

I
24 I I could ever express my appreciation to you for the very

~ 25 fine cooperation you have given to me in this effort. I think

PAGE 64

you have done a very, very fine job and I just want to

2 express my personal appreciation.

3

There being nothing further, the meeting is

4 adjourned sine die.

5

(Whereupon, the meeting was adjourned at 11:38 a.m.)

6

7

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C E R T I F I CAT E

PAGI!; 65

I, Peggy J. Warren, CVR-CM, CCR A-17l, do

hereby certify that the foregoing 64 pages of transcript

represent a true and accurate record of the events which

i

transpired at the time and place set out above.

I

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12a2''Q z,r&,,~,.. / ~

Peggy J. Warren, CVR-CM, CCR A-l 1.

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INDEX Committee to Revise Article I Full Committee Meeting Held on Nov. 30, 1979

FULL COMMITTEE MEETING, 11-30-79 SECTION~: RIGHTS OF PERSONS

Paragraph

I: Life, liberty, and property. pp. 4-7

Paragraph III: Freedom of conscience. pp. 6, 7

Paragraph

IV: Religious opinion; freedom of religion. pp. 7, 40-43

Paragraph

V: Freedom of speech and of the press guaranteed. pp. 7-8, 40-43

Paragraph VI: Libel. p. 9

Paragraph VII: Citizens, protection of. p. 9

Paragraph VIII: Arms, right to keep and bear. p. 9

Paragraph

IX: Right to assemble and pe~ition. p. 9

Paragraph

X: Bill of attainder; ex post facto laws; and retroactive laws. p. 9

Paragraph XII: Right to the courts. pp. 9-27

Paragraph XIII: Searches, seizures, and warrants. p. 27

Paragraph XIV: Benefit of counsel; accusation; list of witnesses; compulsory process. pp. 27-30

Paragraph

XV: Habeas corpus. p. 31

Paragraph XVI: Self-incrimination. p. 31

Paragraph XVII: Bail; fines; punishment; arrest, abuse of prisoners. p. 31

Paragraph XVIII: Jeopardy of life or liberty more than once forbidden. p. 31

Paragraph XIX: Treason. pp. 31-33

Paragraph XX: Conviction, effect of. p. 33

Paragraph XXI: Banishment and whipping as punishment for crime. pp. 33-34

Paragraph XXII: Involuntary servitude. pp. 34-36

Paragraph XXIII: Imprisonment for debt. p. 36

Paragraph XXIV: Costs. p. 36

Paragraph XXV: Status of the citizen. p. 36, 48-51

Paragraph XXVI: Exemptions from levy and sale. pp. 37-40

Paragraph XXVII: Spouse's separate property. p. 40

.Para~raph XXVIII: Enumeration of rights not denial of others. p. 40

Full Committee Meeting 11-30-79 Page 2
SECTION II: ORIGIN AND STRUCTURE OF GOVERNMENT Paragraph I: Origin and foundation of government. p. 43 Paragraph II: Object of government. p. 43 Paragraph III: Separation of legislative, judicial, and executive powers.
p. 43 Paragraph IV: Contempts. pp. 43-44 Paragraph V: What acts void. p. 44 Paragraph VI: Superiority of civil authority. p. 44 . Paragraph VII: Separation of church and state. pp. 44-45
SECTION III: GENERAL PROVISIONS Paragraph I: Eminent domain. p. 46 Paragraph II: Private ways. p. 46 Paragraph III: Tidewater titles confirmed. p. 46 Article II, Section II, Paragraph IV: Recall of public officials holding
elective office. pp. 46-47 (Formerly in Article I, Section IV, Paragraph I)