Transcripts of meetings, 1977-1981, v. 4. Article III

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

j
j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j

COMMITTEE MEMBERS:
GEORGE BUSBEE GOVERNOR CHAIRMAN
ZELL MILLER LIEUTENANT GOVERNOR
THOMAS B. MURPHY SPEAKER. HOUSE OF REPRESENTATIVES
ROBERT H. JORDAN CHIEF JUSTICE. SUPREME COURT
J KELLEY QUILLIAN CHIEF JUDGE. COURT OF APPEALS
MICHAEL J BOWERS ATTORNEY GENERAL
MARCUS 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 III

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

DATE
September 17, 1979 September 27, 1979 October 1, 1979 October 2, 1979 October 5, 1979 October 11, 1979 October 12, 1979 October 18, 1979 October 19, 1979 October 22, 1979 October 29, 1979 November 6, 1979 November 7, 1979 November 15, 1979 November 20, 1979 November 29, 1979

# OF PAGES
19 126
74 138
36 128 183 140 177 125
71 86 69 139 99 94

I
J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J

BEFORE THE LEGISLATIVE ARTICLE COHHITTEE ARTICLE III
"BROAD POWERS" SUBCOmUTTEE

The transcript of the proceedings heard before
1m. TIHOTIIY J. SHEENEY, Subcommittee Chairman,
commencing at 12:30 o'clock p.m., Friday, October 19, 1979, in Room 40l-A, State Capitol Building, Atlanta, Georgia.
-000-

1------------------------------

- - - - - - - - - - - - - --------1I

BH;\!'\lDENBUHG & HASTY

~C1ENTII'JC REPORTING

Fl~ COLO:\;I;\1 IRA1L, DOUGLASVILLE. CEORCIA 3013~

942-0482

DEPOSITIONS - ARHITRAT!ONS - CONVENTIONS - CONFERENCES

1--_-----------------------------

J

2 APPl:ARAlJCES:
SUBCOHIlITTEE HEHBERS:
rrrH07lIY J. SHI:mmy, Chairman
SEi.J. PARKS 13 RO\VU
HR. DALE CLARK DR. CHARLES PYLES ltls. BARBARA RYSTROH
ALSO PRESENT:
rm. CANTER BROUN
H~} VICKIl~ GREENBERG HR. HICIIAEL m::NRY HR. BELVIN HILL MieJ' . CYNTHIA NOlUDEZ

3 PROCI:EDIUGS
1 f everybody is ready, we can qet st.arted. Has ",",fcrybody had a chance to lool:;: over the draf\:. I sent last ~irne around? Does anybody have any questions before: we gD~ to the gratuities provision?
1lR. I3ROHH:
Tim, if I could --
HS. rJ01UDEZ:
Go ahead. MR. BHOHN:
I'r.1 Canter BrmJn with the Legislative Counsel's Office, and Cindy and Frank had asked me to be here. Harvey l"indlay in our office had also ""ant.ed to be herE!, hut wasn't able to.
THl: CHAHU1lI.N:
Ue're start.ing to attract a lot of attention I think.
HR. LHOV,1I~:
\lc wan~ed to suggest to you all for your connideration the possibility that a qreat deal of the languagt:; that is ill this draft really isn' -I;:. nBce.ssary in the Constitution. As all of us know, one of the themes 0 f thin process set b;l t.hs Constit.ntional Revision COI,U1ission was to delate as much non-rwcGssary,

material fror:l each of ~hc articles as 'IdS possible,;. TtL CHAIRHi\H:
I agree. HR. BROHlJ:
lmd we just wanted to suqgGst.: to you -- and I \1ould Le happy as you go through to provide cor:U!lCnts relati.vE:' to each one -- that there's a great deal left iii here that. really mos'C statest.hat have '10n(~ t ..hrouqh constitutional revisicn in the last. ::on or l r; YGarsju!,:.
do !'lot have in their Constitution.
THE CHl~IRH2\H:
Okay.
And you nay ac::ually not find neces!,ary for ours.
THE Cill\IlUli\.N:
Okay. Let' s tak ..~ i t paray raph h.::' :'idl"iV;rc1ph.
Ploase don't Misunderstand mc. I'!t not trying to come in hnre and just lJe a snart al(\ck. I knc') yon have \vorked very hard on this.
Ubi' dOll 't,'f: just fit.art para-';raph j',,, rJiu:aCjraph? A.nylJouy thil'r.. I s 'Jot an~' coment.s, \/c C<:1n t.ak( the,; IIp thae ::'iI~lH.
r aragra}jll I is the ~IcnGral powers. Do yoU have any

5
problem with that? !'vIn. BROh'N:
Not as such. The om~ thing of course, a State. Constitution, as we all }~now I servos as a limitation on the iJo\'ler of the Legislature. If you don't prohibit or ot.hcrwise provid~ in a Constitution for something, the General Assenilily can do it, and I'm looking both at ~'our general statement of powers and then speci fically at this unumeration of specific pm-mrs. I ~.:.hink you l,tay find that they just restate the obvious. They seen TO provide for an authority ",hen I t.hink in fact they're. operating as a limitation.
'l'he first good example I see there: is in bvo under Pan.lgraph I I. Clcarl~1 -::he ~;tatc has the aut.hori ty to provide for a militia, just. bv way of an oxanple.
HR CLAl-U~E:
Hell, Cantor, \-,hat do you think about the provision in th(;re for trial by courts martial and ths non-judicial iJUn i shr,len t 0 f i tos menbe r s ?
I do think in that caSE -- and I'm not personally ~3ure that. it's absolutely nocessary, but I don't t.hink ::'hat. hu'rts because i.t makes clear that you'rE'; not
rGljui ring a :i udicial adj udicadon of overything Really
I guess i. t' s in thrce ,,,hen \18 ;,tart.ea getting real

excited about the possibility of deleting some things. HS. RYSTROM:
I just had acomrnent about two, if: we're going to go on to three. Assuming that this languaqe stays othertvise the sane, couldn't we climinat.e the second "to provide." As I read through it , it looked fwmy. THE CliIn RHAlJ :
Yeah. rrhat ';lOuld be fine. HR. HILL:
Hhat? HS. RYSTROM:
The second "to provide for a r,lilitia and trial by courts martial." just. eliminatin9 that "to provide." THE CHAIRHAN:
Well, the concern \"ith that \vas tIm necessity to provide constitutional authority to est.ablish a disciplinary system for the militia, \.jhat(;ver practical benefit it may have, to establish constitutional aut.hority for a non-judicial systen of discipline. Absent that, I think the courts would probably say that 'IDless it's inherent in simply providing for a militia, that you have to follo';l judicial procedure. rrh~t's v,'hy it.'s in there. MR. DROWN:
Yeah. 'lou might ,,,ant to considr the possibility of

somethinq in nature of just saying, "The General Assembly may provide for disciplinary actions against members of the militia," and leave it to the law to specify how it is, and you might even want to say "non-judicial." 'fHI.: CIlAIRHAN:
Hell, we tried to narrO\I this language down. L,m. BROHU:
Sure. TH}.; CHAIRMAN:
I think this is as far as we got. When we get to three, I think the concensus of everybody on the Committee is to the extent we could eliminate this language, we would like to do it. The concern we have is whether or not by eliminating it we somehm"/ change ~he meaning of it, and I know that all thf>. provisions which paragraph three, all of the concerns which paragraph three deals with have cone up .in litigation contexts where courts have said in the absence o'f such provisions, the C~neral Assembly didn't have the power to do thi~. HR. ilROHH:
I think you find, again just not necessarily in the context of our court decisions, but in the experience that similar types of states have had in their constitutional revision process, that they really haven't

:3
felt elC need to continue the inclusion of those type things, and I want to suggest to you on behalf of the folks in our office the possibility of giving the General l\ssembly the blanket authority t:o participnte however is appropriate in programs pursuant to fedoral law or in compliance with federal 1a\-1.
rm. CLARK:
This g(mtleman is singing our song ohvi'Jusly. At lGast he's singing my sonCJf but He run in~o these stutr\bling blocks. He' va gone over thesB things in prGvious meetings and ospecially numb,,;!' three, \'JO ran it to tho lawyers of the State Department of Transportation as to whether this was necessary or not necessary, and it comes back in the form that's in there, so I assume they said thur,ilis down. THE CHAI1~HAN:
I haven't had a chance to confer \'lith the Highvvay Department.
MH.. BROm~:
I think in a way what I'm suggesting is in othsr states that have tried this, they have had the exact same feedback from the people invol veer in each of these little areas. Clearly you would like to have, if :.-rou're dealing \Vi th land acquisition, you knm'l, you \wuld lil~e to have your name spelled out in there, but I'm just

9
suggesting to you that through our research, wc! have gotten a feel for the fact that eVGn though there has b~(;.n similar re.sponse in other states to that type thing, that in fact once they have gone to just grants of authority to participate or to comply, that they haven't found the other necessary.
HR. CLARK:
Did you, for instance, in this number three, if we could just say, "The (':>aneral Assembly shall have the powers to take actions necessary to comply with federal law providing for the control of outdoor advertising and junkyards adjacent to the roads of the Fedoral-Aid Highway Syst.ems," period?
HR. CLARKE:
It seems to me if vm I re going to do that, you might could go even broader than that and takE;1.in whatever federal programs might come along.
tIR. DROWN:
Yeah. I think that's our initial recommendation.
MR. CLARKE:
And get eminent domain on a broader scope than before, and I think if we're doing that, you might very well also take into account number four on the next page.
HR. DROHN:
Yes, sir. I was going to suggest that.

10 MR. CLARKE:
l\nd possibly even, if you're really talking about. zoning problems, even number one miCJh~ come into play to some extent. HR. BROWN:
Thci language then -- and again there is no artistry in this at all, but the language ViC: have kind of though~ about was one that would not only authorize compliance, but also participation in programs authorized pursuan~ to federal law, to just say, "In order to participate in prograr.ls authorized by or pursuant to federal 1mv or to comply with the provisions of fedc.ral 1 a"", ," period.
MR. HENRY:
Canter, I'd like to ask one question. Hhere do you see the courts coming down on the question of whether the General Assembly can act and bind throuqh t.he Department of Transportation, can zone property adjacent absent a specific grant in the constitution in light of the fact that we have a broad grant, a blanket grant of power to comply with federal 1a\,,? It was my feelinCJ that in reading a few 0 f t.he cases, not a 11 0 f them by any means, but absent that specific qrant, t.hey would not read into a broad grant of power to comply 'i-lith federal law as power to zone.
MR. BRm"1N:

p.\GF 11
\Vell, as I say, all I can really go by is the fact, \"611, Florida, Horth Carolina and Louisiana and I guess Tennessee to a certain extent are our contemporary efforts in this regard, and as a practical matter, they just haven't felt the need for that type thing as a problem. If you did feel as though it. was a specific problem, I think you might want to consider using a sentence such as I've mentioned and say, "Including, but not limited to exercise of the powers of zoning, eminent domain" and just don't go into all this detail. You know, if you are concerned with the exercise of that ~articular power, there's no reason you can't do that in one word rather than in a whole paragraph and just leave it to the law to specify how that is to be done. THE CHAIRlIAH:
Did you come with the language?
MR. BROHN:
As I said, I haven't got it written out what we're talking about, and Cindy, please correct me. Something in the nature of, "In order to participate in programs authorlzed by or pursuant to federal law or to comply wit.h the provisions of federal law," and you know, like I say, you can say, "including, but not limited to the exercise of the powers of zoning and eminent domain," if you felt that was a problem. Um", again, I clearly want

12 to encourage you, if you do decide to <]0 in a direction like that., for all of you all to car6fully examine once it's written down that particular language. I don't think there is any malJie in those particular words, but I do thin}: the concept is one that's \Vorthy of your consideration.
THE ClIAIRHAH:
Essentially you would recommend ';:.hat we change three and four to simply provide that t.he Gcmsral Assembly have the power -::'0 provide for participation by the E;t.atB in federally sponsorod programs and t.o comply vlith laws and regulations governing such participation, includinq the power
HR. BROWN:
I \vould just say, "including the power to comply \<1i th federal laws and regul ations, Ii period, because we have to do that anyway, even if our Constitution says we can't.
MR. CLARK:
As one single voice, I certainly would buy that, and I would add the eminent domain and zoning. Well, H:.' s wordy, but simply as a clarification and protection even though North Carolina and Tennessee don't have it.
HR. Dn.mm :
As I say, certainly i-::.'s just a policy decision on

i' ACE 13
your part. If you do though, I would suggest you can do that with JUSt one little clause, and I would say, if I vlare you, I would say, "incluuing, but not limited to the eXjrcise of the powers of zoning and eminent domain."
r,1S. RYSTROI1:
He don't have present t;he people that told us last time that ii.t's prudent to follow that, which of course is what we really wanted to do, and I wish 'v could get some response to that because Hr. Tidwell in particular is the one that asked. THL Clil~I RHAN :
That. was also one of my concerns, and I haven't had a chance to go to the Law Department.
MR. HENRY:
Tim, I would just like to point out that the COIMaittee should consider the granting of the power to zone and some of these ot_her powers than just giving the General Assembly the blanket authority to do that, and like, you know, the fact I keep harping on the zoning -power, that's been given to municipalities and counties.
HR. I3HOHN:
I would like to point out now that your grant of authority is limi ted only so far as you're complying 'vi th a federally authorized program or in compliance ''lith the mandate of federal law, and I think that's a big

14

difference from authorizing a blanket authority of the

powers of zoning. I'm not aware of any programs now

where vie have local governments complyinc; \vi th fcckra1

programs by the exercise of zoning, and it's hard to

imagine what that vlould be.. You would have a night.mare

if you tried to have 159 counties all complying 'with

conflicting zoning regulations in a federal program.

HR. CI.ARK:

You have reservations about this I guess.

TIII~ CHAIRMAU:

I think as long as -- I agree with you. I just

think \Ie can probably narrow the language, but we need

to include specific powers such as the power to zone and

power for use of the right of em.inent domain in connection

with these programs. I think if we do that, then maybe

we're all right. I don't know what kind of an objection

we're goinq to get.

MR. HILL:

My thought on this one about the eminent domain

power, it's not so much, you know, the government has

the power to take property for public ?urpose, but ".:his

specifies that one public purpose Vlhich -the court \vi11

read into the eminent domain thing as outdoor advertising

signs. How, that's a very

you know, in the law that's

a very back and forth kind of thing, whether aesthetics

is a valid issue in zoning. So I think this was, you know, to protect against the future court holding that eminent domain power did not extend to that public purpose on the outdoor advertising signs. So that's why I felt that specification there was kind of needed to protect us in the future, and of course, as r-1ik~ pointed out about the zoning, you know, just because the opposition, I think the major opposition we're going to get is from cities and counties, if they felt that their zoning authority was going to be somehow affected by this change, and once again, every Committee has said, "He really should do what I s right, what's good, what.' s best for the State, not worry so much about the political ramifications," but then everyone begins to think about those other things. NR. CLARK:
Well, .don't you think that the billboard thing was part of the federal legislation, as I recall it, and wouldn't our broad authorization to comply with these federal programs cover the billboard issue without our spelling it out? THL CHAIRHAN:
Lssentially what we would say is, "The General ',ssembly has thn power to zone to the ext.ent that it has to have that pO\17er to participate in federal programs. II

16 MR. HILL:
And only to that extent. MS. NONIDEZ:
Tim, I think the problem that Canter is addressing here is that this language is in the Constitution because of that particular federal program and we were not in the posture, at least the courts held we vlere not in the posture to participate ",Ii thout this language. ~vhat Canter is trying to at least 9ct us to recognize is that if we leave just this language in the Constitution and in the future some other federal program comes down the pike, the courts may construe this language as beinfJ applicable; only to that particular program, and thon you have again put in language that brCf,ds the necessity of amendment, and that's all I think that vle'ra trying to HR. BRO~'1N:
Yeah. One of the things to bear in mind is all tllis is authorizing the C:reneral Assembly through tho norraal legal processes to do som.thing. It doesn I t say chae t:.lw lIuman Resources Department can automatically do just whatever they want because there's a federal la\;1. This says the General l\ssembly in the normal constitutional way can authorize the State's participation. You've got all the normal checks and balances regarding

legislative acts, both in terms of both houses
considering legislation and in terms of the Governor's veto. So it's not like you're giving a blanket authority to State bureaucrats to do whatever they want. It's just permitting the central deliberative body of th6 State to participate in the programs that have become a way of life in the 20th century, and that's federally authorized or federally mandated programs. DR. PYLES:
'I'hat still fits under the general powers, which it shall deeml necessary and proper for the welfare of the State. If the Legislature deems it in the welfare of the State to comply with these federal laws, they're not inconsistent; they're not repugnant.
r'1R. BROh'N:
Yes, sir. As many of you all know, really a lot of these court decisions came from -- in fact the whole idea of what was a public purpose, you know, which the government rightly belonged in the business of, and from 1880 through the 1950's nad 60's, courts tended to be extrer.lely restrictive in what a public purpose was, and I expect if you research the issue, you would find that this amendment was required because some court sor.le\'lhere said that it was not a valid public purpose for the State to buy up billboards, and so they felt, "Hell# ]<1le

HI need to amend the Constitution." HR. CLARKE:
Canter, I'll ask you and 'l'im. ~;tlPPOSG there was just a one sentence provision something to this effect, "To provide for the participation in and compliance \,ith federal laws and programs, including, but not limited to providing for the right of eminent domain and providin0 for zoning"?
MR. BRmm:
The only suggestion I make is providing for the exercise of the powers of nminent domain, but yes, sir, I don't see any problem with that, and I think that would cover four as well as three. You I.liqht Hant to
,
say -- I'll tell you what you may want. to do, is say, "Providing for the exercise of the powers of taxation over the entire State and of eminent domain," because we do cover taxes. If you're going to list then, I P1ight include that. MR. CLARKE:
Where is the tax included? HR. BROHN:
It'S in the bottom of four there, talking about taxing for airports. If you want to be safe by listing the other two, I think you might \-Tant to do that. MR. CLAHKE:

Tiro, what would the court do with it?

P ..\GE 19

THE CHhIRHAN:

I'm confident the courts have moved far enough to just take the provision and run with it and let. the

General Assembly decide what they want to participate in,

but I don't know whether everybody else is going to have that same confidence.

HR. CLARKE:

I feel that way, but I haven't been to the court

with these issues, and you have.

THE CHAI !UlAN:
Your language "vas "to provide for the participation and compliance by the State"?

I,m. CLARKE:

Let's ace. "Provide for the participation in or

compliance with federal laws and programs, including,

but not limited to providing for t.he eXErcise of the pmvers of eminent domain and providing for zoning."

HR. CLARK:
lUlU taxation.
:m. CLARKE:

Yes.

HR. DRmm:
I thinl: just taxation would do it because in

Article 'II \-l lilnit State taxation to beiWT over the

20 entire S'::.ate, so I thin}: just. thr, word "taxa.tion" will covc:r:tha;:.
The tohing I disli}:e about all of this i:; we rcad
it and \,;e. knO''! the purpose for it. Somebod~' 25 years
f-rom IlO\J is going to come alonq ano l'Gcld tha.~ litt::I.r:
s<;;ction in the paragraph in the Sta te Canstit.ut-ion and
say, "I/hal: on earth did the dra::ters Jnpan '<lhen they put that dotvn?"
\lle could worry about that.
1m.. CLARKB:
That's what we'r', doing now, \Vorryinq about \lhat folks meant in 1945. DR. PYLES:
At le.ast we have a recordinq device.
MR. Hl:.:IJRY: Could I ask Canter one question? I know you're
more involved in the meshing of federal and state law. I'm not ~hat familiar with it. In these other departments t.hat arc receiving federal funds to do certain thin(js where it could be questionable wl~ther it's a public purpose, !Jut Hhlc11 is not requirir,q it cOHG'.::.i.tutiona] ar,wnJmcnc. to do that, what is the (1i..J=fcreI1cc bc'':.\oJcml that and this that we have here with respect to it?

PAUE 21
I,m.. r~RO\lH: Hell, there is a differencE'!. The Constitut.ion, as
you knm.,r, automatically appropriates federal qrant. funds fo1.- the same purposes and in the same amounts as they were granted by the federal government, and I think that particular provision just authorizes us to spend any federal government money we get, notwithstanding this. Hhat this does,\olhen it comes into play is ,.,hen the General Assembly has to pass a lm'l that says \tTe' re going to takt; land for this, project, when it's doing something o'ther than spending mony, passing through money. Ha're going to take land for this project. H'c're going to buy up billboards under this one. tIhen the State actually has to do something other than spend federal money or when it has to spend State money along with federal money, that's where it comes into play. In terms of just spending what they give us, I don't think we have any problem. The Constitution takes care of that already. This is when we have to do something more, and again I think it goes back to something more than the old line conservative approach to what a public purpose was, but the courts have changed about that. Even Georgia courts hav(.; changed,. and one of the t.hings in looking forward, wha t you're doinq is cutting these future arl1endJllents.
~
Lvelybody gets so upset at 30 amendments on the ballot,

..'1') '-
which is one of the main reasons for this effort, and really without a broad grant to comply with these federal nandates and fe.deral prograpl~, you're going to keep coming back, because let's face it, we're in a world where you're just going to keep having more fsderal programs. It's not going to be less, and there's going to La a continuing need in that area. I think some language such as \'las suggested would take care of i'!:. TIlE CHAIRHAN:
Let me lead some language. "To provide fpr the participation by the State and compliance \'lith federal laws and programs and for the exercise of the powers of taxation and eminent domain and for the zoning of property in connection therewith." MR. BROHN:
The only thing, Tim, there again I think you may want to consider some language specifying you're not limiting it to just those powers. "Including, but not limited to the exercise of those powers somehow," because what's that old doctrine? r-1R. CLARICE:
Inclusio unum, exclusio altcriur;.
MR. rmmm:
'l'hat's it. I think you migbt cut yourself off with that one. Expressio unius at exclusio alterius.

MR. CLARKE: That's it.
HR. HILL: Did you get that?
THE REPORTER: (Nods affirmatively)
MR. CLARKE: I argued that one to the court one time, and they
didn't go with it.
HR. BROwl1:
They didn't buy it? They always buy it at the most inconvenient time. Z,lR. CLARl\E:
Yeah. MR. HILL:
~rould anybody like to move to thank Canter for cowing to our rescue here?
on. PYLES:
\Ve haven't got to the impeachment article yet.
NR. I-lHO\'lN:
Hell, when you get this stuff written out and look at it, you might not want to thank me any more.
MR. m:NRY:
That would probably ta}:e care of other p] aces in the Constitution \lhero you have fedoral laws referred to.

24 MR. I3ROWU:
I think you' 11 find that a numbor of tir-ms. HR. HENRY:
Relocation assistance, for inst.ancE.
HR. I3ROHU:
7hat's a good exar.1pln, but aqain 110\V' you I r6 not. saying that these programs autoDati<:ally are adopted. hll you I ru saying is the General ',ssELbly in its flonnal course of business with the Governor's supervision or participation can authorize participation.
'!'U:L CUAIRHAN:
Let me read this language and r~aybe we can get a
vote on it. "To provide for the part.icipation uy the
State in complia.nce "Jith federal laws and programs, including, but not limited to the exercise of the powers of taxation and eminent domain and "~hE zoning of prOplorty in connection therewith."
HR. I3Rm'lN:
Again, taxation. THE CHAIRHAN:
That's in there.
MR. lmmlN:
all. I't1 sorry.
TIlL; CllAIRH.r\H:
"~L'o providli'.for the exercise of the powers of

d',

25

taxation." "Including, but not limit(~d t.o the exercise

of t.he powers of ta)~ation and emine.nt domain."

MR. DROHH:

Tim, h01.1 about just saying, "Including, but not

Ih1ited to the ex:rcise of the po\'lers of taxation, eminent domain and zoning in connection therC\,Tith"?

THE elm IRH1\1I :

Well, do they have an inherent zoning power?

HR. LRmm:

You could say, "In connection therO\vith" or

something.

DR. PYLES: Is zoning power considered a police power?

HR. HILL:

Wods affirmatively)

HR. DH.mm:
. Article I " limits the State in terms of what it can
do in .mning t.o just providing by general law for

certain things.

DR. PYLES:

I guess zoning should stay in there.

THE ClllI.IRHAU: "Including, but. not limited to the exercise of the
powcrs of taxation, eminent domain and zoning in

connection therm"ith." By concern about the way it' s

26
worded is that either t.he court will say that. thero's an inherent power, a suggestion of this language is either that t.here' s an inherent power in the General Assembly to zone, \vhich is not what \'Ie' re sayinq, or that the General Assembly can exercise the power, the State's power of zoning through the established constitutional mechanism, which is to delegate its authority to the counti(~s, which \vas not what the existing language says. The existing language says, "The State has the power." HR. CLARK:
You could say, "In connection tii t.h federal proqranls." THE CBAIRHi\N:
Yeah. vlhat I'm saying is oi thor 1:110 court will read this language as saying, the court will read it as \VB intend it to mean, or the court "'lill say that, "\1el1, this language suggests that there is an inherent power in
the General Assembly to zone property. II But ''''6' rc
saying the exercise of the powers of taxation, which is granted otberwise, granted by the Constitution, el"linent domain, which is othenlise granted by the Constitution, and zoning, and they're going to say, "Zoning is included in Paragraph I of the general powers."
MR. BRovm:
I think that's a good point. MS. UONIDEZ:

27

Yes.

THI.; CHAIRNAN:

Or \ve can say, "The General Assembly can participat.e

and provide for the exercise of the zoning power, but it

has to use the established constitutional mechanism,"

which is local.

MR. BROHH:

I would point out to you, Tim, that the lead-in on

this thing starts without limitation of the powers granted
in Paragraph I. I don't know if that would help you at

all.

HS. RYS'l'ROH: ~lhy do we have to have mention of eminent domain or

taxation since those are powers already granted?

THE CHAIRMAN: ~vell, that's what generated this language in the
first instance. The court said our pow~r of eminent

domain did not extend to taking billboards.

MS. RYSTTIOH:

But I thought you thought or anyway that it was a

concensus now that that was a judgment that would come

down now. IIo\v long ago was that?

THE CHl~IRiW~:

in It vIas very recent, back

the 60 IS.

The court

hasn't substantially changed. Hell, ~ .-.F. ~'.t is the

28 concensus that we ought to track language along that line and r,lake it clear that what we I rc talking about is the General Assembly's direct power to zone, but only incident to the federal program, then I think I can work up some language to sugqest that. HS. NONIDEZ:
Okay. HS. RYSTROH:
But separate it from the other ";.:\VO items. MR. CLl\RKr~:
I Hish somebody would make a motion to authorizp. our Chairman to do that. HS. RYSTROH:
So moved. DR. PYLES:
Second. 'fUE CllAI RHAH :
All right. 1\11 in favor? MR. CLARKE:
Authorize and request. (ShO\'1ing of hands) HR. BROillH:
Respectfully request. Tlll: CHAIHMAU:
That will essentially consolidate paragraphs three

i \~. ~l<

29

and four.

DR. PYLES:

Paragraphs three and four. Hhat about. -- \-lait a

minute now. You mean under Paragraph II?

THE ClIAIRHAN:

Consolidated in a new paragraph three would be the substance of the present paragraph three and the present

paragraph four.

MR. CLARKE:

. Okay. Tim, I've got another question. TIlE ClIAIRHAN:

All right.

NR. CLARKE:

Relating to paragraph five or not -- section five

I guess of Paragraph II. It seems to me -- and we talked

a little bit yest~rday about this -- that the provision

for compensation and allowances to elect:ive officers

cortainly seems to have no reason to specifically grant

that. I think that's got to be covered under Paragraph
..T Hhy not mark that out and pick up with a change,

put that over in Paragraph VIr as a limitation?

THE CIIAIRHAN:.

All right.

And ~_hen in t.he same connection, well, I guess we

30

ought to talk about that first. 1'hi3!1 '.:h6re are ~wo other

things that occur to me.

HR. rmOHH:

'::,'ha't brings a song to T.1Y hear ~!K cause, that's just

what I was going to suggest thcr:. I J:hink I could hc.lp

you all und('.rstand why "that provision \'::.IS in the

Constitution. As you know, we used to actually

what Sor.1C of these 0 fficErs maGe in ~;h'2; Constitution.

!1R. CLI.RKL:

Yeah.

HR. I3ROHH:

And of course inflation and '!che ehansi.ng T,imes just

I;

made it absolutely -- woll, in the ;li11 that authorizf~d

us to do it by Imv, they didn't purport, to qo back and

change all those figures. As a matter of fact, those

were not taken out of the Constitution '::-ntil the

Constitution of 1976 was done. This was just one little

provision that was put in to make it short and sweet and

easily explainable, and it was done so as to avoid doing

it the right way. You do have a chance nOVl to do it. the

right way by eliminating that language.

IvIR. CLARKE:
It would take a little bit of editing to do it.

THE CHAIRl1AlJ:

That's no problem.

,-
,, ,

PAGE 31
MR. CLARKE:
The other thing I wonder about -- maybe one of you all can answer is section two of Paragraph VII. Why is that necessary right at the top of the page? If you are granting them the power or if you're saying they can't do this, why do you have to have the power to enforce the prohibitions? THE CHAIR11AN:
You don't.
'1, lv1S. RYSTROM:
I thought we had taken that out. \'~asn' t that one where we talked about moving the lower sentences up and out or over or something?
MR. CLARI\:
Yeah.
~
l" THE CHAIRMA1I:
I don't think you need it.
MR. CLARKE:
If it's not needed, why don't we get rid of it? Then the other thing I have in mind is we're using Paragraph VII as a limitation of power of the General Assembly. Hhy should Paragraph VIII be a separate paragraph? Hhy should that not be one of the limitations listed? THE CHAIRHAN:

32 That's a good idea. DR. PYLES: Which one is Paragraph VIII? HR. CLARKE: It has to do with the re9ulation of public utilities, pUblicly owned utilities. HR. BROWN: I want to suggest, if you're on Paragraph VIr there, the (a) I think means more than we think it means. I think you are probably prohibiting yourself from letting the Public Service Commission grant franchises to utilities and other things. THE CHAIRMAU: No, you're not. MR. BROWN: This is based on old language? THE CHAIRliAN: No. HR. CLARKE: You're talking about Paragraph VII, l(a)? HR. BROHN: 1 (a) THB CHAIRMAN: Ho, it's not. It doesn't have any effect at all. MR. BROWN:

33
I don't know of any express authority in the General' Assembly to grant territorial franchises to utilities. TUE CHAIIUiAN:
It's inherent in the power to regulate public utilities. MR. llROHN:
Bear in mind this is going to be a brand new law. THE CHAIRMAN:
No. It's in the Constitution now. MR. BROWN:
It is to regulate utilities?
'l'llE CHAlm1AN:
No. The langyag~ prohibiting contracts and agreements restraining trade is in the present Constitution. MR. BROWN:
Oh, no. I know that, but that language was adopted prior to our adoption of the state-wide scheme of public utilities regulation. THE CHAIRHAH:
No. Hell, there is a decision that says the language rolating to the regulation of public utilities does not add anything to the General l\.ssembly's inherent power to regulate public utilities.
MR. lJROVJN:

PAGE 34

In any event, what I was going to suggest is whether

')

or not you actually feel like you need this in the

Constitution. Again, the ones we have to go by in terms

of recent developments in our region don't have anything

like this as a practical matter. Fede~al law certainly

in terms of anti-trust actions and other things is

generally what we go by in State law. Again, it doesn't

really do any good to mandate the Legislature to do

something.

\, THE CHAIRMAN:

Well, this is not a mandate. This establishes --

i~~\
(((~3i\,c,~,:"o
\<"'_~_ .1'

MR. BROWN:
I think if you read 1 (a) there in conjunction with 2, it is a mandate. It's a mandate for the General

1': 1._'

Assembly to take action to make sure that doesn't happen.

THE CHAIRMAN:
l
No. This paragraph two, which we agreed to take

out, says, liThe General Assembly shall have the power."

It doesn't mandate anything. Paragraph l(a) deals with
',(\
a declaration of what is a pUblic policy of this State

so that the General Assembly cannot change the public

policy.

MR. BROWN:

I guess what I'm suggesting is the effect of those

two.

PACE 35 THE CHAIRMAN:
The effect of those two is to prohibit the General AsseIl\bly from acting, prohibit the courts from saying that those aren't the public policies of the State. HR. BROWN:
Again, all I can do is just suggest for your consideration that this type of language has not been found necessary in these other constitutions and whether or not you feel as though there's a necessity to have it in the Georgia Constitution. THE CHAIRMAN:
Well, we've talked about lotteries in connection with taking that out and the political implications I guess. , MS. NONIDEZ:
Excuse me. Tim, on (b) the attorney in our office that was monitoring the actions of Article I, \"hich is where this prohibition on lotteries is currently found, 'at least indicated to us that he understood from that Committee's meeting that they planned to delete the lotteries, the lobbying and the fraud by debtors, and since those are provisions that are in Article I and not in Article III, maybe we ought to find out exactly what they plan to do with them. THE CHAIRHAN:

36 Well, I understood that they had in essence abrogated their responsibility with respect to those provisions to us. MS. HONIDEZ: There seems to be some confusion on that. HR. CLARKE: Tim, I apologize for the fact that I had to leave early last Friday and miss the discussion with regard to the lottery, and I acknowledge the fact that. on several occasions I've made mention of the dangers of getting something that would not pass. On the other hand, I feel right strongly that that ought to be a subject of
-.c.
legislation rather than constitutional provision, and I wonder if maybe the Select Committee might could deal with the political realities of it after we 100J.,ad at it purely and simply on the bare desirability of it as a constitutional provision.
MR. BRmm:
One thing on lotteries is absolutely nobody knows what a lottery is, and it's interesting that we have two states that \-Ie border on, Alabama and Florida, which have each considered almost exactly the same language and whose Supreme Courts have said it meant two different things on exactly the same issue. For instance, in Florida the court ruled down there that a lottery prohibition would

jl.\(~E

37

not permit parimutual wagering at dog and horse tracks. The Alabama Supreme Court looked at exactly the same clause and said it doesn't prohibit pariroutual wagering at dog tracks. nobody knows what it means.
At the least you might want to consider specifying what it's supposed to mean and at best consider deleting it and let the General Assembly worry about it. THE CHAIRMAN:
Georgia has got a defined definition. I mean it's beert to the courts numerous tines in terms of what is a lottery. You know the confusion between Florida and Alabama. Georgia has clearly established what a lottery is. I guess that's the material for our consideration. The only concern I have is political. Absent that I don't think it ought to be in there, but it's in there because it expresses a popular declaration of what's against the public will. It says the General Assembly can't do it, and you know, it's a limitation on the powers of the General Assembly, and paragraph Ca) is not dealt \-lith by public law. Paragraph Ca) is far broader than any federal anti-trust statute. MS. NOUIDEZ:
I guess all I'm suggesting on lotteries is the paragraph or provision as \'/6 now have it is in Article I, anu that ComrJittec, you know, has first the first chance

L'\\,I,

38

to really deal with thar... If they clearly asked this Subconunittec to deal \-lith i"t, that.'s another matter.

TH:L CHiUR14AH:
\lell, that was my \UHlcrstandin'.T.

MS. NOlUDEZ :
Yeah. I think there ~las some confusion abou,t that. HR. HILL:
Well, what happened was we considered our addition of this article before they met and one of the things we thought of in here was pulling ove.r int.o 7.his Article all of the powers relatinq to the General llsscmbly, which are lotteries, lobbying and, you know, concealing fraud. ~JO \lhen that Conmittee met and they qot to this point, I said that this Committee was considering that

in their jurisdiction, and that other Conunittee said, "\'1ell, that's fine with us, but let them know while they're at it that we're against them, and we would like

to soe them removed," and that was about the extent to which they considered it over there. You know Cindy makes a point that maybe it's a jurisdictional problem in the sense that the Committee \'iorkinq on Article I really has th,,;; lotteries and thG lobbying and the other thing in their thing right now, but I think it belongs herE. If it's going to be in here., H: belongs here. It may not:. lie our decision, this Committee's decision. It

PAGB 39 may, given where it is -- so it's ultimately the Select committee's decision. I think they would appreciate, you know, your feeling about it, your particular irnlJression. ThEy're going to have to decide, you know, no matter what you two Committees do. The Select committee is going to have to make a decision on this point anyway, see.
MR. CLi\m~:
Why don't we examine the possihility of giving to the Select Committee the best possible document we can give them7 It seems to me if we did that it would not include that provision, and then if they want, if they find that the political realities are such that it's got to be in there, I guess they can put it in. Now, we can say to them informally or otherwise we understand the political implications.
MR. HILL:
lUld it might add some force if this Conunittee and another Committee have already looked at this, thought about it, and both of them came out against including it. I1aybe that would cause the Select Committee to look at it even that much harder and leave it out, but you know, I'd say it really. is over in that Committee's jurisdiction. They're going to have to consider it again, but my feeling is that Commit-tee did not \'1ant it

when they first saw it.

" { ,I

40

They're go inq to talk about. it.

some more, but I doubt if they're going to \-/ant it

again, and so I'd appreciate a decision by this

Committee, a recommendation at least by this Committee.

about it, you know, either recommending you leave it in

or take it out.

THE CHAIRMAN:

Is there a motion?

DR. PYLES:

Mr. Chairman.

THE CHAIRMAN:

Yes?

DR. PYLES:

I'd like to make a motion that we completely ignore

it in the absence of a fonlal request on the part of

Committee I or II, whatever the other committee is,

until they formally notify us that they want us to

consider it, which means we're finessing it.

,; THE CHAIRHAN:

Okay.

DR. PYLES:

And we'll get that on the board. I'm suggesting

we either vote it up or down, and then if \-10 want, if

we don't like that motion, then we can go on and get

the sense of our Committee. Otherwise I'd just as soon

PAGE 41
leave it clear off the record. THE CHAIRMAN:
Okay. That's a punt. DR. PYLES:
Maybe just go out.
MR. CLARKE:
The spiral is real good. THE CHAIRMAN:
That's a long hang time. Is there a second to that motion? MS. RYSTROlv1:
Second. THE CHAIRMAN:
Discussion? (No response)
All in favor, say "Aye." (Ayes) MR. CLARKE:
Very good. THE CHAIRNAN:
The motion passes. MS. RYSTROM:
I would like to suggest we go on from there. I think \vhat \ve've done, especially at this point, is \'Is've \/restled at each point with the question of shall

42
we be idealists or pragmatists, and maybe we should really just address that question now. One of the. things that troubles me about the discussion is I think that this time we' va ~1Ot the idealist. The idealist in each one of us is perhaps being stimulated by the things that: are bein9 said to us. Last time \ve had different people from outside the Committee \vho clearly \mre very much on the pragmatic mede, ald you know, so 'tie- listened to them, and I guess we could kind of swing back and forth 'quitn a bit, but it \vould be more reasonable from ray point of view at any rate for us to determine \vhich :mode He want to operate in 'and then follow that pattern rather than kind of deciding each time, because then we end up with a hodge-podge where we really held the lint, on number one and on number two \-JE' just waffled all the ""my. I don't think I can really make th<1t as a motion, but if we could perhaps reach a concensus on that issue, ,'m could probably facilitate the rest of our work. HR. CLl\RKE:
Barbara, maybe that might have to bc something that will be decided in the minds of each member of the Con~ittee I suppose. I'm one of those who have swung from one side to the other as I've sat:; and vmtched these things go, and I started off very pragma"'::.i.c or so I thought and now I'm leaning or tending to go in t.he other

PACI'; 43
direction, but part of my reason for that is the concern
that we may end up with something we're not that proud
of.
NS. RYSTROH:
Hell, I felt our charge was somewhat to combine the two. I remember specifically I guess Hr. Harris that mentioned the failure of what surely should have passed had the populace really wanted constitutional reform, partly because there was not an understanding, but also because of some little details. l-m. CLARK:
Hy concerns can La either/or. Hy basic feeling is to leave everything out that doesn't have to be there and simplify t.he language, but that's the ideal state, but what I've encountered in the meetings we've had is that we're not starting from square one, that we're enmeshed in a history that you just can't wipe out. There's one segment in here I still don't understand, and I know you said it had to be in there, and I just hav~ to buy this. Nobody in Georgia is going to understand it, but you know, I'm willing to go along because I don't \'lant to get into the serious issues here, even though they aren't clear. So it looks to me like we're carrying ",rater on both shoulders.
MS. NONIDEZ:

44 Uell said. HR. CLARK: Being idealistic in various certain instances and pragmaticin others. MR. BROWN: I would be happy to try to give you all somethinq substantive to chew on. THI.: CIIAIRHAN: Let's take up the next aspect of Paragraph VII, \'1hiGh was --
MR. BROWN: Would it be possible, Tim -- arc you going to go
back to Paragraphs III and IV and V and VI? THE CHAIRMAN:
Yeah. I'm going back. I'm going back, but right now we're talking about the limitations paragraph. Specifically it is now narrowed to include only the reference to restraints of trade. MR. CLARKi.::
And the possibility of including the Paragraph VIII as part of Paragraph VII? THE CHAIRHAN:
Right. Right. It would be Paraqraph VIII would be included as subparagraph or Paragraph VIII would be included as a section to Paragraph VII.

45
MS. RYSTROH:
l'lell, how about the restraint on trade? Does that. need to be there? TIlE CHAIR11AN:
Hell, let me just go through again my feelings about these limitations. They are in essence declarations in the Constitution of what constitutes public policy of the State. It comprises both the limitation upon the General Assembly and a limitation upon the courts to a certain extent. The language restraining or prohibiting contracts in restraint of trade is duplicative of federal law, but this federal law prohibits restraints of trade to the extent it effects interstate commerce, but not all contracts which are prohibited under this paraqrapp would be prohibited under the federal anti-trust laws, and for an example, incident to an employment relationship, there are contracts executed by the ~.mployer and the employee which prohibit an employee from competing with the employer upon the severance of his employment. Those contracts, if they're reasonably drawn, are valid. If they're not reasonably drawn, they're invalid. The invalidity flows from both this provision and a statute which declares the same thing.
All right. By feeling is that the limitation ought to be in the Constitution, and this is just my personal

I\

46

opinion, and the limitation ought to be in the

Constitution to prohibit the Goneral Assembly from

authorizing an ove.rburdening contract in favor of an

employer.

HR. DHmm:

Tim, do you see a reason rather than having it

going the way it is to just have a statement in the Constitution to the effect that all contracts and

agreaments.which have the effect or which are intended to

have; tho effect of defeating or lessening competition or

encouraging a monopoly are void and are punishable as

provided by law?

TEE CHAIRHAH: I don't even think you need the "punishable. arj

provided by law." I think uhat we'rE talkinq about and again that "punishable by la\1" gets into a mandatt?

to the General Assembly to adopt SOMe law providinq for

the i:mnishment. r=ssentially ,,,hat Vie' vc been talkinc; about is the ,limitation, not a mandate.

HR. ,BROWN:

Yeah. The only reason I said that was because of your point earlier. Because we mention it, Wf'; )<lay be inadvertt"mtly excluding any ability of the General

Assembly to act in the area other than to say a contract

is void.

ll":\~.lE

47

TIIi; CHAIRNAN:
Hell, I was going to suggest that the lanql1age th(;J:'c bc trimmE:;d, sinet; we have struck paragraph (b), that essentially "The General l\ssembly shall no't have the power to authorize any contract or agreement which may have "cba effect of or which are intended to have the effect of defeating or lessening competition or Gncouraging a monopoly."
!vIR CLl\RKE:
, Tim, I think we are also intending to put in the limitat.ion on changing the compensation.
TIlE CllAIltt-'lZ\N:
Right.
NR. HILL:
11m.." let me understand something now. You think we don't need this provision about t.lle power 0 f t.he General Assembly to prescribe the compensation of the elective officers? !1S. UONIDEZ:
Right.
HR. CLARlZE:
Sue, 'I.,m 'l.'lOuldn' t need that since if we look at P<J.Tagraph I, the general pm..,srs, they've got the right to make all laws not inconsist~nt w~th this Constitution. MR. BRONN:

48
As I mentioned earlier, Nel, t.he only reason this is in there is because the Constitution used to specify what the salaries of those officers were or most of them, and I when the bill was drawn to pennit. the Gi:-"!ncral Assembly to do it, it Has donn at the urging of the: author of the bill to be in the simplest, clearest, most straightforward manner, and unfortunat.ely that isn't always the best way to do it, and they <1id not amend the salaries that were in there. They just supHrscded the authority \V'ith this provision. It wasn't. needed. All they really needed to do was just delete all those specified salaries. If you rnmov(': the language hare about salaries, that's the effect. The General Assembly can just do it by law because you don't have a limitation on their ability to do it. HR. HILL:
I guess because they're independently elected and they have a certain status 'in themselves, just as long as w6're clear that their salary won't be dangling and that they don't have the authority by virtue of being elected to set their own salary. I mean, you know, but it has to go through appropriation. MR. CLARKE:
That's right. HR. HILL:

PAGE 49 And through the law. MR. CLARKE: I think the General Assembly inherently has the purse strings. MR. BROHN: Right. And clearly by definition in the Constitution, since no money can be drawn from the State Treasury except as provided by law, and there's only one way to get a law in Georgia. MR. HILL:Right. DR. PYLES: I thought you suggested putting that in Paragraph VII. You suggested striking it? MR. CLARKE: No. THE CIU\IR!'1AN: No. HR. CLARKE: I'm suggesting striking the first portion of it, this part up here, to provide. for the compensation, and
J
just provide that you can't change the compensation of thu members. !-is. RYS'l'ROH:
Tim, the language you composed, it referred to the

General Assembly directly authorizing such agreements and not refer to legislation. Do you think that's all right or is it really their power to authorize t.he legislation? THE CHAIIDmN:
I think they would have an inherent power to expand on the limitation. This is just a restriction on them doing something, and I think they can expand under their inherent power, expand the limitation and provide for punishment or expand the prohibition and provide for punislunent and that sort of thing.
f.lR. BROvll":
Tim, do you think that if thf; Constitution says chGse agreement and contracts are void t.hat it re;ally adds anything to then go on and discuss the General Assembly's lack of abilit.y to authorize it? THE CHAllU1.t'\H;
No.
r-lR. BROHN:
If it's just void in the Constitution, it doesn't seeI.l to De like at that point it P1attGrs Hhat the General Assembly's power is. If they pass it, it's still void because the Constitution says it.
'I'IlE ClIAIHHAN:
Yeah. ':i.'he reason it ""as in here at all is i~. \Vas

originally contained in Articlu III, and it's phrased

in t&rI:lS of the General Assembly's powers primarily

for logical consistency to just gE:'t the language to

relate to the General Assembly rather than outlawing

the specific thing, which is stuck right in t.he middle

of the Legislative Article.

MR. rtILL:

Do you think this \'lould more properly belong over

in Article I, the general policy statement?

TIll: CHAIRHl\H:

You know, I really think we're talking about a

limitation on the General Assembly's powers. That's

the way I see it.

r DR. I!YLES:

t,

..:.

r
!(

I'm a little concerned about the attempt to place

a limitation or to address broad public policy. I guess

it falls in the same category as lotteries. It's against

public policy to slay another person, andwe do have

,I

laws to that, but we don't put it in the Constitution,

and public policy could change in ten or 20 or 30 years,

and raaybe what we could do of course is put it in and

then let the later group corne in and amend the

Constitution and change public policy. It is t.he public

policy to allow lotteries; it is the public policy to

allow contracts that the State can deal with j.nt.rnally

52 intrastate rather than interstate. I assume though that a court \vouldn' t actually go bacL to uocisions that have been made under this Constitution in looking at the history of how a case camE to them, would th~'!y not? ThE CllAIRHAH:
Right. DR. PYL~S::
IIm-1 much weight \vould that carry in the light of a new Constitution, a later Constitutivn aftc.r decisions have been made? Are ex post facto considerations given to that? THE CHAIRMAN:
Hell, if the language has been construed by a court, if you adopt language from a prior Constitution and it has been construed by the court -DR. UYLES:
I see. 'l'HE CHAIRHI.N:
It will have the same meaning in the new Constitution as it was used in the old. DR. llYLES:
I see.. MR. CLARKE:
I think the interesting thing, Tim, would be ~!'lhat.: woull] happen if we struck that. section. Hhat would

happen to the body of law that we nO\v have in Georgia dealing with, for instance, covenants not to compete? I'm not sure. I just got t~rough losing one of those cases. THE CIU~Im1AH:
.Sb you're trying to win one. MR. CLARKE:
The line is open. I've already lost mine. TIlE CIIAIRl1AN:
Ybu know, it would still flow from the statut;ory prohibition, which is almost identical to the constitutional prohibition.
MS. R~S:rROM:
You're saying what if that were no longer underwritten by the Constitution, right? MR. CLi"\Rl~:
\Jell, they still have the right to do it by statute.
MS. NOlUDr.::Z:
If that is a statutory prohibition now, does that not given us more weight for thinking that maybe we should leave it as a matter to be dealt with by statute? THE CllAIRrIAN:
It prohibits the General Assembly from changing that. statute.

54
MS. HONIDEZ: I agree, but arc we so convinced we think tl1at
should Le the case in the future? THE CllAIlU1AN:
I personally am, but that's my argument that it ought to he in the Constitution, but that.'s personal.
HR. HILL:
I'I:! a little concerned as well about this in the sensa that the General Assembly doesn't have to authorize the power to contract, right, and that's kind of your issue, right? I mean the private cont.ract.ing between parties is something independent of the General Assembly's power to act. This speaks to the General l\ssembly not having the power to authorize such contract.s, but it dOSll't speak to the courts or anybody (~lse when it COlaes tim~ to see whether this contract that you and I have entered into not to compete is going to be enforcE';ablc, and right now we have a constitut,ional prohibition that the court can read that says that such contracts are void, whereas here unless the General Assembly has ~ade them illegal, it has nothing to, you knm,r, go by.
I-lR. HEHRY:
I'd like to say one thing, and I think I expressed this earlier, that this is like you were saying, that the 1a\v of contracts is a 1a\v out of Blackstone or

f' \..' i

55

whoever in England, the conunon law, and that this is a

contract that is void by definition, and whether you need

a specific provision in the Constitution to allm'1 the

General Assembly to enact legislation to follow the common

law is a question. THE CHAIRl1AU:

Ho. 'l'his says the General Assembly cannot overturn

the common law. This is the common law that contracts

in restraint of trade are non-enforceable, but this says

the General Assembly can't change the common law.

MH. IIEJ:mY':
But you think if this ",as not in here, take, for

instance, Hr. Clarke's case could have gone the other

way?

MR. CLARKE:

Bine was so bad it couldn't have gone any other way.

THL CHAIHHAlJ:

Hell, in the absence of constitutional prohibition,

thE> common la"l evolves through the judicial decisions

and through statu'cory change. H~ can accomplish the same

purpose by striking the period following "J:lonopoly" and

add the words "~"hich are hereby declared unlawful' and

'Joiu. "
1m. HILL:

Okay. I third~ that Hould taka care of it.

56
DR. PYLES: ~['hen does that h1ean WE' va cOMpletely eliminated all
of Paragraph VII? HR. HILL:
Ho. We have kept Paragraph VII \-li th this modi fication there.
TIll.: CHl~IRHArJ:
I've have eliminated (b) already essentiall ~7. Essentially Paragraph VII now consists of of "The ~encral Ass6mbly shall not have the powE.r to authorize any contracts or agreenont.s" dm\m to "nonopoJ.y" follm'Ted by the \wrus "which arc hereby declared unl awful and void. " DR. PYLES:
lmd that's the, only item undel:' ::ha":. ent.ire paragraph?
iJo, no. THE ClIl\.IRNAN:
TWo more. One, it keeps the prohibition against changing t.he compensa'tion of the members of the Gt:mexal i\ss.J11bly in t.heir term, and the t.hird \'1ou10 lie nm.., \lhat is Paragraph VIII. "The General Asspm)lly shall not have the power to regulate chargc;s of publ ic utili ties m-med or operated by any county or municipality."

HR. BRO\'lH:
Just as a matter of draft.ing style, you nay want. t.O set that up to just the Icad in, "The Gl':meral Assemblv shall not have the power to:" You r:light save yourself a couple of lines. DR. PYLES:
Okay.
THE CIIAIRI1AN:
But I still think even with that change He have a policy decision as to whether or not this should be includod. I've expressed, you know, what. I think, but that's rae.
MR. HILL: On the contracts tto defe~t competition?
THE ClIAIRHAN:
Yeah. DR. PYLES:
Did you say contracts and what? l1H. lII:LL:
To defeat competition. DR. PYLES:
all, defeat.
MR. HILL: To defeat competition.
MR. BRCHm:

58 In terms of what Tim has said, I think the history of Georgia would tend to indicate overall that H: is nice to have some constitutional protection to fall back on. I think if you look all the way from the Ya~oo Land frauds to the railroad wars of the 70's and 80's of the last century that there have been times when you could construe the General Assembly's actions as in the very nicest, best light of encouraging p10nopolies, if not an outright run on the pUblic -till, and certainly this would require a vote of th(~ people before you could change that policy. We may not always have fine legislators the way \ve do now. DR. PYLES: Them if we leave it in in terms 0 f a pol icy decision, ,,hat 'ye are doing then is merely confirming the cornmon law? TilL CHAIRMAN: That's correct. MR. HILL: And reaffirming what we already have. He have a statement in the present Constitution that says the same thing, that they are to be declared unlavlful and void. MR. HENRY: Then you have a statutory provision that says the

i',\I:F 59
same thing.
DR. PYLES:
I move as a policy matter we leave it in, Hr. Chairman.
THr CHAIRMAN':
Okay. Is there a second?
MR. CLARK:
I second.
THE CHAIRl1AN:
Mr. Clark seconds. Any discussion?
NS. RYSTRON:
That's the kind of thinking, you know, here we are waffling again. Maybe I'm just being foolish about consistency -- small minds, you know -- but how handy it is in Georgia to have a constitutional justification for sometiling is what accounted for the mentioning of junkyards and billboards, and if it's the kind of thing we want to avoid, I guess what I have not been able to determine is how we as a group have decided which ones will stay in, which will stay out, and it's almost like this one in and that one out.
MR. EROViN:
I think you'll find that that splendid agony is shared by all the other task forces.
NS. RYSTROM:

!'

60

I'm sure it is. I guess what I really I'1ean to say

is at least this once I myself feel it should not, be

there, and that's the Hay I intend to vote when we vote.

HR. HILL:

But do you agree \-lith the hasic principle? 1: think

this is not a waffling kind of an issue.

MS. RYfJTROH:

Wt-11l, the basic principle about \7hether such things

should Le in or whether this particular iteM should be

in?

HR. HILL:

vlliether this particular issue of contracts tending

to defeat competition, whether t.hat prohibition should be

in the Constitution? I mean it's one of those

foundational issues in the democratic economic system.

MS. RYSTROM:

So foundational that I wouldn't think it would need

to be in a State Constitution, despite the evidence to

the contrary.

MR. HILL:

Well, it's in here to protect the principle.

f>ilS. RYSTH.OH:

I understand.

HR. HILL:

So the courts can't construe it othen~ise.

HS. R'iSrrRON:
But there are other principles He've found pretty basic that we didn't find neceBs~~J to include. DR. l'YLbS:
~vell, that lIias my argument a moment ago.
tIS. RYS'l'ROH:
And I used the argument before. And you made this motion, didn't you?
MR. CLARl,:
l\nd I seconded it, and I'm sitting here waffling. It's the history of the Legislature.
HS. RYS'i.'ROJ'.1:
Yeah.
NR. CLAIlli:
On the contracts and statutes, but I just feel, waffling or not --
MS. RYSTRON:
That this is one that belongs. I guess one of the things that maybe the ,-ray I should have said it is I would like afteL\vards in my own mind when we finish this to be able to say, if somebody says, "\fuat in the world llave you got that in there for," just to say, "Hell, you see," and then sort of give a statement that was reasonable and also to be able to make a distinction betvoen that inclusion and the other exclusion~, and I

62 certainly do not feel that I'm now in the position to do that.
MR. CLARK:
Fall back on woman's intuition.
as. RYSTROH:
That's it. I just got a feelinq I'll say. THL CHAI IU1AU :
Hell, let's take a vote. All in favor of the motion, which is to leave it in, signify by raising your hand. (Showing of hands)
Four votes. All opposed? (Showing of hands)
To one. DR. PYLES:
Now, Barbara, you're going to have to defend why it's in there you understand. 115. RYS'l'ROM:
I'll just say my co-workers on the Committee just
insisted. TUL CllAI RHAN :
The next limitation paragraph is now what is Paragraph VIII.
HR. BROliN:
Hould it be possibl'. --

THE CHAIRMAN: Yes. ~'le' re going to. Dr. Pyle-shas got to leave.
So we're going to take up this next one.
MR. BROHN:
I'm sorry. DR. PYLES:
Hes getting the hard ones out of the way now. THE CHAr rotAN :
The next one is the prohibition against the General Assembly regulating prices of utilities owned by any county or municipality. Absent that prohibition, they could have the authority to regulate. That's in the present Constitution.
MR. I3ROWlJ:
Just by way of reference, I thi.nk you have to look 1011g and hard to find a similar provision in these other contemporary constitutions.
MR. CLARKE:
Now, this is one I can get to from a practical point of view. You really have to look long and hard to find a situation similar to the one in Georgia as to particular electrical distribution systems. There are 50 systems in Georgia owned by municipalities, and there has been a running battle between those and the Georgia Power Company and in some instances the electric member-

64 ship c."O-ops. I believe the co-ops are not regulated either. SBH. BRmiN:
They're not. MR. CLARKE:
By the State. The r:lUnicipalities felt a strong need for this provision, and there, being 50 0 f them in existence sounds pretty overwhelminq politically, yet 50 is not a very large number compared to the many municipalities who are served by the Power Company, and I think they feel the need to have some protection that goes beyond just what might be over in tho halls of the General Assembly. That's the background for it.
Now, whether you all feel it's justified or not, the General Assembly \"ould still have the right t.o provide for -- well, of course the Public Service Commission does to regulate power companies, and the General Assembly provides statutes for its operat,ion.
I might .also mention that it might involve, could theoretically involve vJater systems, sewer systems, things of that nature. MS. RYSTROH:
Under what authority could the General Assembly without this regulate the charges of municipally owned just because they can do anything?

HR. CLARKE: \lell, the General Assembly creates municipalities
in the. first instance. So they're all creatures of the State, you know, of the General Assembly.
HR. CIJ\.RK:
The Public Service Commission does not regulate these county owned --
HR. CLARKE:
No. The rationale behind that, Dale, is this. If you have a city owned system, the people who can best control that are the voters in that city. If they don't like the rates that their city fathers are establishing for their electricity, they have an absolute and perfect remedy by the ballot box. They can throw the rascals out.
MS. RYSTROH:
Further they are mostly wholesale customers of electrical distributors anyway, the municipal power companies. HR. CLARKE:
In th~ past few years, rtr.1\r; has come on, Hunicipal l;lectric .huthori ty of Georgia, which is a combine of 48 I believe of those 50 systems, and they are dealing contractually with t.he Power Company and so on, but the nlunicipalities do feel the need for this protection, and

66

whethe:r: or not that feeling is justified you all can

consider.

MR. CLARK:

Coming back to this Qatter of practicality, j~

seems to IUH if our State is di ffenmJ.~

I don't Lnm",

what the other states have in the. vJay c)f independent

ll1unicipally ovmed --

HR. CI,l\Rla;:

I really don't know.

HR. CLAro~:

But we're dealing with our State, our nS8ds, a~d

against i:hose facts, it seeQS to nlctha-:.this should s~ay

in.

l-1R. HILL:

And you know, this is a question of ideally wha t.

would be best. See, this is a case where maybe th,sc.

local systems, as Harold just said, these local s)stems

under local control is the best situat.ion, so to try to

change it ideally may be to leave it out.

1'15. RYS'rROH:

I clon' t feel the same way about the other. For one

thinCJ, if 'Ul'~y clearly \"1Ould have thE:-ight to do that

wit.hout this being there, that wasn't quite the case.

MR. CLAro~l~:

I think they would have.

SEN. DROHN: In the cities I'm familiar with, the tax~s are less
than in other cities. MR. CLARKI.::
That's true. And electric rates are less than from the Power Company. THE CHAIRNAN:
Is there a motion that we leave it in?
MS. RYSTROH:
So moved. 'fHI.; CIIAIRHAN:
Second? SEU. BROHN:
I second. THI; CHAI Rrli'm :
All in favor? (Showing of hands)
Unanimous. Let's take advantage of Dr. Pyles' wisdom. Let's go to gratuities before he gets out of here. DR. PYLES:
Maybe I better get out. THE CHl\IRMAN:
The language that's in the. provision is what was proposed last time, except that I have added 'the require-

68 mont in the General Assembly of a two-thirds vote. It still requires a referendum.
Alternative two is essentially a rehash of what's there now. I've tried to simplify the language somewhat and take a lot of the detail out and leave it up to the General Assembly to establish the detail, and alternative three is "'hat we discussed last time, and that is essentially authorizing the General Assembly upon some voce: higher than a majority, and I used tHo-thirds just for purposes of inserting a vote requirement, to authorize an exception to the gratuities provision.
MR. BRONN:
In using your alternative one, what would happen to the presently existing exceptions to the gratuities provision? THE CHAIRHAN:
Hell, language would have to be developed that would go on the ballot and be part of the proposed amendment that we preserve the existing exceptions. HR. CLARKE:
One of the practical dangers is suppose that fails and the other passes?
lvlR. BROWN ~
Why is that U16 case? Because all those exceptions have already been approved at a constitutional referendum.

;\i"

69

THE CHAIRMAN:

Well, if you're going to strike! all of those out

of the Constitution, which is '''hat "le' re talking about
doing, unless we use alternative two -- if we're ta]king

about using alternative one, we're going to strike all

of those out of the Constitution, and I just think we need

some statement that we're not trying to repeal all of

those authorizations.

HR. BHOl'lN:

That's what I'm concerned about. I think this

language does that.

THI:; CHAI rolAN :

Ho. Well, the design was to use this language and

then, if this is what is adopted, if alternative one is

what is adopted, then on drafting the final version of

what's to be submit ted as a resolution, there ,,",ould be

some catch-all provision. I'm not trying to draft the

whole resolution in other words. That was discussed

last time that '"e would preserve the existing exceptions.

f1S. NONIDEZ:

Well, are you saying could we not preservp. those

current oxceptions statutorily and put language in here

that does that?

THE CHAIRl-1.i"\N:

Yeah. That IS vlhat I'm suggest.ing.

70 11S. NONIDE{;:
7hat's what you'n1 saying? THE CHAIRMAH:
rrhat's what I'm suggesting. I thought that was just implicit. DR. PYLES:
Hell, wouldn't that not be present in alternative
three? THE CHAIRHAN:
Yes. That would also have to be done in altcnlative three. DR. PYLES:
Holl, it's already that way, isn't it, or would it have to be added?
THL CHAIID'IAN: I think it would have to be added.
HR. BRONN: You might \vant to consider just adding a sentence
or a clause to the effect that exceptions to this provision authorized on the day immediately preceding the effective date of this Article are hereby continued or something.
One other thing you may want to look dt, the last four words of the first sentencE, "members of each house, I' generally in the Consti tut.ion when \IE refer to that we

71 say "r:lombers elected to each house," to make clear that you're talking about the full complement of all members of t.he C',-eneral Assembly rathel: than whatever thero might be, minus vacancies and such others. m<.. PYLES:
Or even absentees perhaps. MR. BROWN:
flight. The absentees. DR. PYLES:
Hhat kind of language -- I guess I have a problem with trying to put in a date, everything before the date this is adopted and thus and so; and I think \'16' ve got this over here somewhere before where we felt it had to stay in there, August 13th of '45. I found that highly unhandy in a Constitution. In the absence of specifying a date, if we adopted alternative three, do I infer then that the General Assembly would have to go back and by two-thirds vote redo everything that had already been done? TUI.: CHAIRMAN:
Yeah. DR. PYLES:
To include them? THE CHAI RHAi;;r :
I think so.

72 DR. PYLES:
Then this as written ,.,ould have the effect of striking out all the:. gratuities and everything else you had? THE CHAIRtmH:
Right. HR. CLARKi::
That might be a pretty good sunset provision once you get down to it.
DR. PYLES:
Yeah.
1-18. RYSTROH:
't'.t-
You're a humanist.
HR. BROWN:
The limitation t-here that it serve a public purpose, again it's very di fficul t to sho", that any gratuities serve a public purpose, if you base it on the historical train of court decisions. The reason this gratuities prohibition was in there, originally it was felt that gratuities were not a public purpose, period. So, you may find yourself back on square one. MR. CLAHKI::
Could you have some declaration -- '''1ell -THE CHAIRNAH:
Well, see, I see a distinction between money for

retired schoolteachers --
MR. CLARKE:
I don't see that so much.
THE CHAIRMAN:
I think that's a public purpose. And simply a donation to the First National Bank of Atlanta. That's not a public purpose.
HR. CLARICE :
The line in between would be the meals for the industrial contacts. THE CHAI RMAN :
That's right.
MR. CLAlU~E:
And even more, the oil well.
DR. PYLES:
Well, the oil well may become a high pUblic purpose.
THE CHAIRMAN:
Maybe you can so construe it. I don't know.
HS. l-lONIDEZ:
I think this is getting back to the problem that Charlie Tidwell was noting at the outset. This is a very, very difficult provision to deal \odth. But alternative one, I'm not sure how on the other end of this question of designing a Constitution so that you don't present before the voters this series of questions, this

74
is \",hat the voters are. objecting to now, and '''hile you are by virtue of requiring a --
MR. BRmm:
A referendum.
I"iS. NOlHDBZ:
a referendill~, a majority of the voters at the next general election arc goinq t. 0 have to rat.ify.
THE CHAIRf.1AH:
It '\TOn' t clean up the ballot. 'I'he only di fference between '''here we are now and alternative one is that it makes everything statutory inste.ad of constitutional, but it doesn't clean up the ballot. HS. NONIDEZ:
night.
'I'm: CHAIRHAH:
The only alternative to get.ting something on t.he ballot that's not there now is approval by the Governor.
HR. CLARKE:
My basic feeling is that we ought not to provide for
the operation of the government to defy a half million people in a town hall method. I just somehow don't leok on that as being very practical, and while I had some real misgivings about the problc~ms of public exceptions, I personally sort of arrived at th~ conclusion that alternative number three may be the better way to go.

'fhe raising of the issue of what is the definition of a
public purpose docs grab me a little bit because I know t.hac there a lot of decisions dealing with public Furpost:: when you get into the area of eminent domain, and if you take that phras& out of those cases and apply H~ to this provision, it may preclude a lot of t.hings tha~ we have in mind.
HR. BRO\'m:
HHII, really in a way by requiring an extraordinary
majority in each house of the General Assembly, you're placing a tremendous burden there on each member to be certain that it is in the best interest of the St.ato, but even though all of us sitting in this room might feel like something is a public purpose, by no means does that mean that the superior Court Judge in Lanier County thinks it is or the gentlemen that sit on the Supreme Court think it is, and yet you have required an extraordinary majority of the General Assembly to arrive at it in the first place. You may just in the end need to leave it to whatever wisdom they have to determine that it is a valid purpose for the state's money to be used, and you are really trying to tell them to take notice that you \lant them to do t.hat by requirinq this extraordinary majority. This is not a normal bill. This is somuthing separate.

76
NS. nONIDE~: Because this provision of +.h. Constitution is really
what. gave rise to a developl~IGnt of a \!hole oth(.;r7\.rticlt'; in th~ Const.itution. It Has one of those that was on the ballot ...:his last time. HR. CLhRKE:
I'HI impressed by the fact that it would have to be pursuant to a general leiw, which says to mo that some membGr of the HOUSH could not come a10n9 and just introduce an act providing a gratuity to Harold Clarke. MR. BROHH:
Right. For instance, the typical example I think you would find would be re\vards. He vlOuldn't be able to -- under this alternative three, if you eliminated the words tI for public purpose, tI 'Vie \vouldn' t be able t.O say Harold Clarke is hereby rewarded in the sum of $100,000. Vlhat we would be able to do is establi8h a systematic state-wide program of rewards when certain actions meet the standards specified in that law. MR. CLARKE:
Let me ask you all this question. Hhat is the difference in a general law and a law of general application? Is there a difference? MR. BROWN:
rrhere is a difference, believe it or not. There are

, 77 a series of Supreme Court cases beginning in 1884 that indicate that a general law is any action having the effect of law with general application within the area involved, and that was done, construing the provision saying that taxes shall be levied only pursuant to general la\o""5, and the Court has upheld that twice, saying that all that means is when the city levies the tax, it has to apply throughout the city, and it's a general application ~lithin the city. The courts on the other hand have said that a law of general application is in fact Vlhat \ie think of as a general law; it applil~s throughout the State. HR. CLARKE:
Should consideration be given to using the phrase "1a\-1 of general application" rather than "general law"? That's what I was leading up to.
MR. BHOHN:
I think it would be wise to do that, yes, sir. In my personal opinion, I think the court was wrong in the other case, but they wanted to arrive at a certain decision, and that ,,"as the only \'lay they could get there I t.hink.
1-1S. RYS'l'ROH:
It's still not impossible to design this law of general application so that the only person who is eligible

to receive it \vould be the Chairmen of Subcommittees of Constitutional Revision. DR. PYLES:
Hay I ask a question? Hhere we have here, "or to forgive any debt or obligation owing t:o the public from," is that a period of did I just put that in there? "From, any private person." Is a corporation considered that?
'1'm: CHAIRHAU:
Yes. DR. PYLES:
A private person?
THE CHAIRHAH:
Yes. DR. PYLES:
\'Iould then that phrase "private person" take into account corporations, private individuals and any other group that \lOuld be unincorporated?
Tm~ CHAIRliAN:
Yeah. It would cover everybodjt. My only qualm with thE: words after I used them was whether or not a court would sa~ that doesn't extend to a public officGr, but I think if it's an individual deht from that officer, tha~ would cover it individuall}.
HR. HILL:

\- \\ ,E 79

Hhat if we just said "any person"? Hould they imply

it:.?

Tm~ CliAIENAN:

No, I don't think so. The other exceptioni:.hat I

wanted to deal with/was grants .to.mUnicipalities and

countios. I just wanted to emphasize that they were not

gratuities.

HR. BRONN:

One of the things on that, Tim, assuming this

Article is submitted next year and is approved in 1980,

the grants authorization that we now have, which is very

limited, other than relating to grants for road purposes,

;,,"-""

all are found in either Article VII or Article IX, both

of \l7hich will be submitted in 1982. It could be that

you would decide that in light of that, you may not need

the last sentence, since theoretically that \vould be the

latest expression of intent at that time.

DR. PYLES:

That last sentence in alternative thrHe? 118 . NONIDEZ:

Yes.

DR. PYLES:

That:. last sentence, "No (Jrant" --

1-18. NOHIDEZ:

Vh-huh.

80 MR. BROHN:
I understand v.hat you're trying to get at, but we do deal with that specifically in oth8r Articles, and 0. course the general is superseded by the specific authority or a general prohibition \lQuld be superseded by a specific authority. He really had very little authority in the Constitution to makE. grants. He can make grant.s to municipalities, and we can make qrants to school districts, and we can make grants to counties for road and bridge purposes, but that's it. Ne're up against a wall after that. HS. RYSTROH:
It's easier to discuss each orie of these than it is to decide which alternative we might want to choose. I thought that I liked your alternative m.unber one, but now it seems to me it has almost all the disadvantages of the prEsent system and not enough advantages, and I
personally don't like alternative three. r think it is
too easy to imagine abuse of this and endless court cases about public purposes and the terrible chore of determining "'hat is and \vhat isn't, and I kind of think I like a1 ternati VB number t\vO nyse1 f t which is \Vhere we were, right, except cleaned up a bit or more attractive in its present form. THE CHAr ffilAN :

P\';F 81
Well, the words "public purpose" may be redundant because I' m not sure that absent a publ ic purpose the
,-
General Asse~)ly can tax for purposes of distributing the money to somebody else. MR. BROWN:
One of the things I would just in terms of the context here it's hard to imagine any other single provision of the Constitution that causes more frustration and more problems than this one does. I don't think anybody is willing to tell you they feel they have a pClfect answer to it, but it's just my personal opinion, I think if you leave that provision alone, that a lot of people are going to feel I ike the ",hole constitutional revision offort has failed, because that is, if not the major one, a big source of frustration in the Georgia Constitution. MR. CLARKE:
Tim, you got a letter from the Commissioner of Agriculture. THE CHAlillmN:
I did. HR. CL.l\RKE:
And we're already gettin9 people asking to be included in additional exceptions. I forget now exactly what it was. To promote certain --

82 TIlL: CllAIRHAN:
Yeah. They wanted to do the saMe thing that Indust.ry and Trade does in connect.ion \lith promoting markets for Georgia agricultural products, to spefic money for business meals. MR. CLi\RKE:
l\.nd Industry and Trade \..,ants to chanqe it to be abl c to give away small gifts, and next year it. will bc somebody olse. I don't. know the answ.r, bu't I'm sure not. satisfied with what we've got. HR. BROHN:
One thing we've got is people are frust.rated on having to vote on numerous constitutional amendments and do not appreciate on going in anc1 hav'inq to nay for somebody's lunch to attract business to (;oorgia, but. that's the situation \'if"ll hav0. if you don't rovis~ t.hat provision. MS. NONIDEZ:
In addition, you know, alternative two, even cleaned up, that doesn't contain all the excGptions to the gratuities.' You've got a whole other Article in t.lle Constitut.ion that the voters had to vote on individually paragraph by paragraph through the years on medical education scholarships, thB dental education scholarships, th(~ scholarships for any and every number of areas,

PAGE 83
mental health, Board of Regents, vocational rehabilitation grants. I mean, you know, the problem is this very provision. HR. BROl'lN:
It's pervasive throughout the Constitution. MS. NONIDEZ:
It really is. THE CHAIRHAN:
Hell, you have t\'l0 concerns. Number one is the one \ve' re dealing "lith, \vhich is gratuities, and number two is other provisions dealing with the purposes for which taxes may be levied.
dMR. BROWN:
That is true. THE CHAIRMAN:
They're related, but they're distinct. MS. RYSTROM:
That problem of what is a gratuity really underlies the discussion, and I think we have kind of gone wtth the notion that expenditure of State funds practically' constitutes a gratuity, though we know that cannot be. THE CHAIRMAN:
Hell, you have two probler.ls. You have the constitutional limitation which says you can exer.cise the pOHer of taxation to raise money only for specified

84 purposes. All right. And then the gratuity provision on the other hand that says assuming that. tho taxing power has been lawfully exercised for the purposes under the Constitution, you cannot. give that. money away to a private individual or forgiv~ a debt. They're two related concepts, but even if we deal with the gratuities exception under alternative three, I'm still not sure wn have eliminated the problem of the. purposes of taxation under Article VII. VIe have again punted t.o another section.
MR. BROV1N:
To give you an idea of how absurd the whole thing gets, \>lC had to adopt a constitutional amendment to permit school buses to be used to transport kids to high school football games, because that was a gratuity. The transportation was free.
MS. RYSTROM:
Because some judge decided it was a qratuity or some bureaucrat, not because it is self-evident to
MR. BROh7J.J:
Aqain, that's a problen. Do you want the Constitution written so as to invitf;", litigation of that type, so as t.o make more complex the '~ntire constitutional procedure to complicate really every single area of the Constitution

':H;;

85

by a single arbitrary limitation that can only he met in one way? If you leave the flexibility to law, whatever limitations you put on it, at least it can be dealt with by a statute, which is fairly flexible, and there are safeguards in not only the normal checks and balances we have with the legislative process, but the 'additional requirement of an extraordinary majority to enact it.

DR. PYLES: Let me ask a question. Alternative three requires
a ~wo-thirds affirmative vote of the members elected to each house. I assume that also means upon the concurrence of the Governor, \'1ho does not veto it.

THE CHAlIU1AN:
Unless that's being changed. That's not heing changed.

HR. BROWN:

t'Jhere it says pursuant to a general law, the only way to get a general law is it is approved by the Governor or his veto is overridden.

DR. PYLES:

Okay. MR. rmm'nJ:
On its own the only thing the General Assembly can 0.0 is adopt resolutions not having the effect of law and proposing constitutional amendments.

86 DR. PYLES:
!1r. Chairman, I don't kno\-'l i:: ,m're n":ldy to {let. do",'n to making some. dec i sions or not .....
THE CHAIRHAH:
Yes, we are. DR. PYIXS:
All right. Hay I I:1ake a motion? r,nd then 1 C2 1:. , s begin to shoot at. it.
'l'HE ClLAIRHAN:
Okay. DR. PYLES:
I \."ant t.O make a mot.ion in favor: of altnrnative three.
TIlE CIIAIRHAH: All right.
DR. PYLES: I would like to amend it, if I may, in the proper
kind of language. .Hay I <10 that -_.
'flIE CHAIRHAI~:
DR. PYLES: without voting on the idea first?
THE ClIAIRHAN:
Yes. DR. PYLES:

,"

87

I want to say something to this effect, and you

lawyers \vill have to clean it up. "r.ratuities. Except

as provided by law, p~ior to tho adoption of this

Constitution" -- I don't know if that's the \-lay to do

it. Then, continuing, "owing to the punl ic fror'1, any

person except pursuant to a" -- strike "general" --

"law," add "of generai application serving a public

purpose adopted by th~ General Assembly," at cetera, down

to t:he nexJc line. "Two-thirds of the members elected

to each house,1I and strike out "no grant to any county"

and the rest of that $entence.

11mv, is that too confusing for a motion?

HR. I3RONU:

In terms of your first clase --

DR. PYLES:

All right.

MR. DHOmJ:

There arc two things I would like to mention. One,

lIexcept as provided prior" could include as provided in

1832. Of course we didn't have any gratuities prohihi~ion,

so \.,0 authorize all sorts of things. lva gave away a lot in the 1830's and '40's, land. lve gave away all those

road beds to the railroads that run allover the State.

So I think you may he opening up quite a bit larger

exception there than you intended, and generally the only

88 way you can meet that is to specify it as of a cer'tain date. Generally \'1hen we do that, in the Constitution, we specify it to be the date immediately preceding the day upon which the new law took effect. That way we qat the ones, we pin it down to those.
The second thing, again if you leave the public purpose language in there, I think you're inviting litigation even after the entire legislat.ive process has taken place as to whether or not these things are a public purpose as is normally defined for purposes of the Constitution. MR. CLARKE:
What do you all think of some language similar to this? "Any debt or obligation owing to the public from any person, except pursuant to a law of general application, the effect of which sorves the interests of the State and which is adopted by the General Assembly by two-thirds vote." That may be just a policy statement that has no meaning, but at least it would give some weight to the idea that it just can't be an absolute sweetheart. THE CHAIRMAN:
Well, going back to the exist.iner language, tho \'1ords "public purpose," they're in the Constitution already. For exanple, the State debt may not be. issued except for

a public purpose, and the Supreme Court said that's fairly much up to the General Assembly to determine unless it's a clear abuse of their power and we're not going to interfere with that. HR. CLARKE:
That's almost what they said in eminent domain cases too. THE CHAIRMAN:
Yeah. HR. CLARKE:
You've almost got to be wilful. THE CHAIRHAN:
Yeah. HR. CLARKE:
Even in order for a public utility, they just say that they're taking it for a public purpose, and it's darn hard to overcome that presumption. THE CIIAIRHAN:
Like I said, the limitation may be inherent anyhow because I don't think you can take my tax money and give it to somebody for their 'private benefit.
MR. BROWH:
vlould you consider the possibil i ty, inst.ead of usinq "public purpose," saying "public interest~?
MR. CLARKE:

90 . That's about what I was getting at, which I said, "The effect of which serves the public interest. It
MR. BROHN:
Just saying Ita general law serving the pUblic interest enacted by the General Assembly." HR. CLARKE:
I wouldn't want to say "a public interest. It I want to say Itthe public interest. It
HR. BROHN:
By all means.
MR. HENRY:
I don't think you're ever going to be able to prevent litigation on this subject.
MR. BROHN:
Well, that's true, but certainly you can act to minimize litigation based on what you have now, and again, I think it's fair to say -- and the Senator can disagree with me or back me up -- of all the provisions in the Constitution day to day for t.he General Assembl~', year to year, this provision causes r"ore problems, more frustration, more confusion and invites more litigation than any other provision.
MS. RYSTROH:
And it may also prevent a tremendous amount of legislation we wouldn't approve of.

\, 'I,

91

MR. BROWN:
That's true. I guess you have to get back onto your faith in the electoral process to a certain extent.
MS. IWSTROH:
I don't want to be on record as not having faith in that, but
DR. PYLES:
But you don't.
MR. BROWN:
If you look again at the historical momentum that has brought us to where we are, our State is becoming more complex. The way t.hat we have to compete with other states, other regions, even other nations now requires that the State do certain things, be in certain postures to be able to do things. We do things in terms of progrilljS that weren't even conceived of for our own citizens, and I think the number of these we need has just increased and increased, and it's not going to stop. It's just going to get bigger and bigger and bigger, and the frustration is going to grow. If y.ou permit more flexibility and still have safeguards, then you "11 both help the frustration of the voters with all these amendments and the ability of the State to adapt to the needs of the present and the future.
MR. CLARK:

92 I have two questions, and I got lost in this conversa-tion. One, if al terna-tiva three -- h()\~T do we pick up the exceptions t.hat we want to pick up that have been voted on by the people? Some of them are listed in
alternative two. How do '''0 do that" in alternative three?
THE CHAI ID1AN :
I think that's primarily a drafting problem. MR. BROHN:
Yeah. THB CHAIRHAN:
I think once we reach the decision to encompass them, I think it's primarily a drafting problem. MR. CLARK:
Does this wordage then cover the problem of the Department of Industry and Trade in buying lunch under their appropriated monies? THE CIIAIRHAN:
All those existing exceptions would be covered. MR. BROWN:
Now, understand the appropriation process in Georgia would require that before they could do that, you would have to have two laws enacted. One law would authorize the purpose for which it i~ to be spent, and thE~ next law would appropriate the money, and that_ first law would have to be pursuant to c3 two-thirds vote.

I'\CE

93

DR. PYLES:

But the second law would be a simple majority?

MR. CLARKE: It would be part of the appropriations bill.
:1R. BROWN':

Right.

MR. CLARK: And this "in the public interest," is that broad

enough to cover this question of buying lunch?

DR. PYLES:

If the Legislature says it is.

HR. BRONN:
Oh, yeah. Yeah. I think at that point you're

really into the field where the legislative discreti.on

would be given tremendous weight. DR. PYLES:

Nr. Chairman, may I alter my original proposal?

THE CHAIRMAN:

Sure. DR. PYLES:
I want to see if I can get Barbara into my account here. I would like to alter it to say, "By vote of

three-fourths," which ups the ante. I don't want to get it as high as 90, but let's do that for purposes of a

vote, and then we'll see what happens. Then we can always

94 come back to two-thirds. THE CHAIRHAN:
Let me be sure I've got it. Let me be sure I've got this. Do you accept the change to se:;rvinq the public interost? DR. PYLES:
Yes. Oh, yes. TIlE CHAIRMAN:
So it reads, "Any person except pursuant to a law of general application serving the public interest adopted by the General Assembly upon the affirmative vote of three-fourths of the members elected to each house." DR. PYLES:
Do you want to leave "a public interest"? Is that what you decided? THE CHAIRHAl1:
No. "The public interest." DR. PYLES:
All right. MS. RYSTROH:
The question of these grandfathered exceptions -would t.he General Assembly have the right to eliminate one of those? Could they pass legislation that would -MR. CLARKE:

Repeal it.

f-1R. HElmy:

I would say if it was statutory, they could.

MR. BRom~:

All the exceptions now are merely permissive.

...
..L

don't think there are any mandated exceptions to the

gratuities provision. So they can repeal th~~ now if they

wanted to.

TIll; CHAIRHAH:

Except for the one on Industry and Trade, which

seems to be self-perpetuating.

HR. CL1\RKE:

But the General Assembly has a switch on t.hat on

the appropriating process. They can just refuse to

appropriate the funds.

HR. DRmvH:

That's true.

THE CHAIHMAN:

Is there a second to Dr. pyles' motion?

HR. CLAIU~:

I second it. THE CIIAIRfvlAH:

Do we need any more discussion?

MR. HILL:

011, yeah. I had a question. Do you 'think from this

anyone would infer that tho Governor's siqnature \vould not be necessary? THE ClIAIRHAN:
That's one of the concerns -.: had. HR. 'JROHN:
Again, Hel, you cannot have a 1<:1\'1' unless thB Governor approved it or!:he General .":..1:is~Jmbly overrides.
r-1.R. HILL:
And if he vetoes, it goes back. I f the~' had th rccfourths before, thHy would probably <JP.t {-:.ilJQ-thirds for it this time, but maybe not.
rm. BROHN:
See, you've got two separate limitations there. One is it has to ho pursuant to general law, and the other, the:. 1a\.; has to be adopted by a vo::e of three-fourths of the members eleeted to each hOUSE. Those arc twu separate limitations. The only way you can get a law is with the GovernoJ:' eit.her approvinq it or 'i::hc; General Assembly overriding it. THE ClIAlill1AN:
The only other problf'..m that conCE.rns me is Paragraph IX, Section 7 says, "No provision in this Constitution for two-thirds votE. of both houses shall be construed to waive the ncccssit~ for signature of the Governor. " The speaks to two-thir(ls. It d08sn' t spea}~

i ,~GL

97

to three-fourths.
!-is. p.':.'S'l'nOH:

We could say something like greater than a majority

vote.

'iR. CHl\IPJIAI1:

Yeah.

DR. PYI,ES:

Hhat are you saying, Thl, that the three-fourt.hs

trould not fly in light of this other section?

THE CIIAIn.m~N:
That might be the implication. I don I t }:now ;lh~the.r it \vould or not, but the cxistinq language of

tllE:) Constitution says that t.h~ Governor I s approval is still required even ~vher the Constitution requires a

t\'lC'-';:hirds vote. I f that can bf: changed to greatp.r than C1. majoriJ;:y

DR. PYI,:Z:;S:

Hy intent is I guess partly theoretical and partly practical. It just occurs to me that there might he a

lot of complaining on the part of the press, the

Legislature and maybe the entire Select Committee and ~-.h voters, an objection" to removi.n~l the voters from

that process, which in essence is just like going hack and amending thE Constitution every two years, and Il m j US4.:.

trying to (' li.rninate that by upping that. to a three-fourths

98 requirement. That's the purpose of: it. THE CllAIHl1AH:
I think we can chango th~ language in the other provision so it's a requirement of greater than a majority vote \'lould not eliminate ::he roquiremmrt for the Governor's signature. MR. CLARKE:
I think so. ~m. HILL:
They would be more than willing to change tha-':. Would you give me the cite again for that? THE CHAImIAH:
It's Article III, Section 7, Paragraph 11. MR. HILL:
Okay. Right.
MS. RYS TROI-t :
So what would be the mechanics of a veto? On such a law that was vetoed, what would happen then? THE CHAIRMAN:
It would come back to the General Assembly for the same. r1S. RYSTROH:
For the same three-fourths? MR. HILL:
It \vould come back to hlo-thirds the second t.ime.

DR. PYLES: It would be overriden by two-thirds.
MR. RYSTROI1: I thought we were getting around that.
HR. HILL: The first time it would have to be passed by three-
fourths. If he should veto it, it comes back, and they can override it with two-thirds, although that's not as silly as it sounds. HR. CLARKE:
That's right. HR. 13ROHN:
You've got a different ballgame. HR. CLARKE:
The fact that the hill is vetoed exerts a tremendous influence on a lot of people that may have voted for it in the first instance, and the Governor's weight is behind that veto, and it's strong. SEn. BRmm:
Let me you something. You know, you can only veto the first ten days of the session. The next year after the General Assembly is adjourned, he vetoes. Can the new General Asse~)ly override it? MR. CLJI.RKE:
This is an issue that is being worked on and given

, ,r .f<

100 a great deal of attention by another' fubcomrnittee. There.' 5 some division of thought as tG what, ought to be done. I don't think another General Asse.mbly can cone back. SEN. BROWN:
So you can't veto it, I mean override his veto? MR. CLARKE:
Do you think so? HR. HILL:
They can't at the. moment, but there is some thought being given to having a veto session ,..here the members of each house could call thE- members back in order to have it. SEN. BRmVN:
The way the law is now, could we do it?
HS. NOlHDEZ:
No. SEN. BRONN:
I didn't think we could. If he vetoes the bill, there's no way to override it.
MR. CLARKI~:
Yeah. You can no\,;. MR. HILL:
At the next S'58ion you can in the first ten days. SEN. BROWN:

l 101 You'll have a new General Assembly then. MR. HILL: Hhat I'm trying to say -SEN. BROUN: You'll have a new General Assembly seated then. MS. RYSTROH: If it's the first year, you can. If it's the last year, it's dead. HR. CLARKE: Right, because there's nothing there then to ovurride. HS. RYSTROH: .Tust as everything else is dead. There's no carry
MR. CLARKE: So what the Speaker and some Members of the Se.nate
wanted was a one day veto overriding session. SEN. BROHN:
I was talking about what we had now.
THE ClIAI:Rf.tAN:
You can still require, slip in the requirement of the Governor's approval and make it clear it's still required for three-fourths to override it by adding language. MR. CLAHKE:

102 I hate for us to get into the veto issue in blO sections of thE"; Ar-ticlE-. I think it's gointj to open doors to some confusion. MR. HILI.: Hmv about this? Bow about sped Eying t.:.\Vo-thirds and the \;ovGrnor's signature and 'Jiving hiI~1 the aLsolute V;'t:O on this particular question? 7his would maybe, you know, get off clos(,'.r to ie/hat you Itlan{.:. The Govtrnor would have to sign it as Hell as t\{o-;:.hin~s of <each house in urder for this grat.uity "':C\ (jO throuqh.
fiR. CLl~RKE:
'J:'hat's a good thought.
HR. HElmy:
Hith no veto? HR. HILL:
Then there would be no veto involved. I4.S. NONIDLZ:
Ho override. DR. PYI.JLS:
That would be then part of that other section dealing with veto pmmrs? MR. HII::. , :
No, no, no. \;c could fix it ri(Jht hero to say, "Except pursuant to a. qeneral law ac1op-tc(1 by the (;enf:ral 1\5Sembly by a vote of t.:.v/o-thirds and the signature of the

103 Governor," period. Then that. would -- or mayb~ we would have to specify more than that.
~m. BROWJ:
Generally you say, "And approved by the \,overnor" in Georgia.
HR. lULL:
And approved by the C~vernor. DR. PYLES:
So that what this means then is that. i.n the absence of his signature --
MR. HILI.:
It fails. DR. PYLES:
-- it fails. Even after the 30 days?
!'lR. HILL:
That's right. But it would be, you kno\<r, just one more check on the General Assembly's doing this. HS. RYSTROl1:
It seems like you would have to alt~r this section about the C~vernor's veto though to make an exclusion about the override of a veto, that this would not be subject.
HR. BRO\VlJ:
Again, a specific provision to the contrary of a general provision, the specific provision will prevail,

104 and this h'Quld be a specific instance. I think. HS. RYS'l'ROH:
l~ll, I ju~t feel like I'm bargaininq and I'm holdinq out for am, more thinq. HR. CLARl~E:
You're doing a good job, Barbara. HS. RYS'fROH:
The big Conuni ttee will get ahol<3. of it and it ,.;ill be back down to two-thirds so fast. MR. CLhRKE:
I don't know. HS. RYS'fROn:
Or eliminate that. I still don't feel very keen about it, but perhaps certainly that kind of provision I rather like, nel's idea, if that's acceptable to other people. I guess I would shut up. DR. PYLES:
Today you will. HS. RYSTROM:
Today, right. A new ballgame. MR. CLARK:
i~ell, if everybody agrees that this has been a difficult section, a difficult prohle~l, it see~s to me that this cl<.Lrifies it, and some of the difficulties
in the d~g1.UUent about what is in the public interest

J "i;f

105

will always be there, but if you've got three-fourths of

the General ASSG1Tlbly and the Governor signing it, it

seems to me that takes care of that problem.

N.R. RYSTROH:

Well, I've always heard one of my representatives

say that one of the most important things that he's done

in the legislature is stopping inappropriate bills, and I

guess that's been very much on my mind -- or ones that he

finds to be inappropriate at any rate, but certainly

the more difficult \l1e make it --

MR. CL1\.RJ(E:

One thing you need to remember too, it's not even

going to be easy to get three-fourths of them there, and

that's voting in the same direction.

DR. PYLES:

Let me raise the question.

MR. CLARK:

He could say the General Assembly only meets once

every five years.

THE CHAIRHAN:

On the other hand, I was just thinking. If \119 would require the three-fourths and three-fourths can't

be obtained, but t.wo-thirds without the Governor' 5 approval can be obtain ed, we're really eliminating the

ability. That's an end run around this provision. In

106 other \'lords, if you can't qet three-fourt.::hs and you can It
get tho Governor's approval and you propose a constitutional aI:1cndme:nt on two-thirds of oE':ach house without ::.lIe Governor's approval.
HR. CL1\RKE: 'i.'h.at's right.
J'.1R. l3ROHN:
But then it's a different consideration though. Hhatever you say here is a limitation on t.he General Assembly. They can always propose a constitutional a~endroent to get around it.
MR. CLARKE: Sure.
MR. BROHtl:
But you do have thE. added necessit/ at that point for public approval, but that's 90in(J to apply regardless of what you do. That wilJ ahmys apply.
One thing if I could, Tim, if yeu aL':. Itlould considor keeping the phrase "any private person," I think you could eliminate the last. sentenco ])i.,cause, governments are not private parsons, first of all, and sEcond of all, we do have governT::\ental agencies other than countie.s or nunicipali ties 'vlE might qrant funds '::CJ. School r:Ust.,::ic':::s, and He' ve :.Jot three c.1if-f3ren::. ~:inds of those:. \.;i:'" ve (}oti:.hc consolidated city-count.y Cjovermnents. HE'. , ve

got fire districts, mosquito districts.
MR. CLAlmE:
That's right. HR. rmmm:
But. if you say "private," I think you solve that problem. Your prohibition only relates to private grants ratlHU' than to intergovernmental transfers and such. DR. PYLES:
?he question I want to ask I guess i.n that light, what about a sweetheart retirement bill? THE CHAIRHAN:
They're there all the time. DR. PYl:.BS:
'l'hey all corne out of t.his?
r-1R. CLARKI::
Ho.
Tlll~ Clll~IRHAN:
Ho, no.
Retirement is C1 diffc;rc.nt Article in the Constitution. DR. PYLES:
'Hell, \:hnn is ~.::.hat going ::0 come up?
That cane up and. was defeated, but it's qoing to be

103 reproposud essentially as is. HR. BRmnS:
l\s a prac-tical matt~cr, "::hcre' s no 'v"ay ::0 avoid a
sweethuart bill. DR. PYLES:
1Jell, private bills are a nec~ssi~~.
He can't have those now. !:>-.:-ivatl; f.-e:+-.ire.,'nent hi.lls? They'rE:. all by ']<'moraJ Luv, hut you just, tailor the
provisions of the genera:!. law. Hel1., iE you could fiqure
a \1ayto prohibi-;':; that, you're \,mlcor:lE': to try. I can't. Nobody has Gver been able 'to do it. (.15. RYSTROH:
I haven't got anys):amples, but I assume there's some examples of some fairly outraqcous bills -that would look like they were ~:he kind of qra'tuity this was designed to prevent. h'hat sorts ')f votGS do they get? Usually not nuch at all? SElJ. 13ROWU:
You know, they don't get very far. MS. RYSTROM:
So somebody j llst sat.isfies a debt of some sort introducing legislation. If it is feasibl~ to 00 to the mandatory Governor's signature, I think t.lle t,tvo-thirds would do. The differoncE; between bJO-thirds and three-

1119
fourths in the senate is not very many people.
THE CHAImIAN:
It's pretty high.
HS. RYSTRON:
Yes, it is. It's 42, three-quarters of 56.
Slm. BROllN:
Of course in the House it would be hard t.o get three-fourths of them there.
DR. PYLES:
Well, don't we intend to make it hard? That's my intent.
HR. HILL:
But maybe not impossible.
DR. PYLES:
To satisfy the outrage of the public \.,rho don't get to vote on all these things? HS. RYSTROl1:
It gives tremendous pownr to tho person with the last votl~. Perhaps they can get sernet.hing 01 se they want or not show up that day I suppose, hut that's unavoidable.
MR (~r.....l\P~i~L:
Hell, when they vote on the machines it's not.
DR. PYLES:
1nlat has been suggested? The idea of adding "and the Governor's signature"?

110
THB CHArIDiAN: Hell, what I was going to add was at the end after
"members alec'ted to each house," add .. and approved by the Governor. II Then we need some kine. of time li.mitation, within 30 days after i~ has been presented. HR. HILL:
How many days? \Ht.hin 30 days? THE ClIAlmW~:
Yeah. Or we could muke it five or ten, whatovor. It doesn't matter. HR. HILL:
Hall, why don't wo make it when they're called up, you know, when all the bills are going to be called up and how much time he has. Haybe if \ve just gi.ve him 60 days, it would cover all contingencies. I mean are we in a hurry about it? DR. PYLES:
Does he usually have around until -- what is it? July 1st?
THE CHAIRMAN: He has five days after it's suhmi.tted to him unless
the General Assembly is adjourned. Correct me if I'm wrong. Five days unless the General- ASBembly is adjournoJ. SEN. BROWN:

i \{'

111

That five day period really isn't what it sounds

like. It doesn't begin to run until the (",overnor calls

the bill dO\vn. The General l\ssernbly docsn t t send them

down. He calls -them down so he can do it. at any time,

regardless of when they pass, up to adjournment. We may just want to keep it consistent with the regular statutory

veto period, which is 30 days.

DR. PYLES:

I think that would simplify that.

HR. HILL:

Okay.

THE CHAIRH1\N: Are Wlf:~ adding "private person" back?

MR. BRmm:
I would really encourage you all to, because again

I don't think we can even start listing all the

different governmental subdivisions and different names

for them and "county and municipality" clearly is not all of ths~. Li~e I say, we've got three diffnrent kinds of

school systems. He've got consolidated city-county

governments. H~'re talking about some sorts of regional

govornnents and the various types of things. I think

you would get at YOUl' problem if you \\Tould limit it to

private persons.

DR. PYLES:

112 Well, my only concern is that if 1'011 strike "private," then that certainly woule imply public pf~rsons and all, any person.
r-m. rmOVJN:
'rhatls what rim saying. I would cncQuraqe you -\':'0 l~avG "private" in, but strike the las~ sentonce. You'vo limited the effect only to the priva.~>",- 3dctor at that point and left your public limitations (ycherwise. :; just hate by this to cut off our YJ~ants to ::;chool systens par-ticularly. MS. RYSTROH:
And not allowin9 t.11e corporations included as private persons? DR. PYLES:
I think -- well, no. HR. BROWN:
A person at law for these purposes includes all different types of business entities or pcersons actiny in a con~nercial capacity. DR. PYLES:
This is not -- all right. Now, let ne worry about this for just one more mOr.1ent. Th<:; compensation section, it I S not 'Joing to effect that in any way?
MR. BRO\\TfI:
No. 'rhis only cov(,rs donations and gratuities.

j':,,\;E 113
DH. PYLES: All right.
ME. ImOVlN:
Again, a compensation is an earned thing. ~ve would consider refunds froM taxes. They arc ne.ver really our money anyway. It's just a different category. This only relates to when you're not getting anything back for what you're giving. TUB CHAIRHAIJ:
i~ell, it does. It ,.,ould permit a bill raising the salary of a public officer retroactively. That's one of the things that's prohibited by the gratuities provision now. After he's served his time or part of it, he can't raise his salary retroactively. You can raise it prospectively so that if he continues to serve, he. earns 'the higher salary. HR. BROi'lH:
Except you do have a provision in the Constitution prohibiting retroactive laws. THE CHAIRHAN:
Yeah. I'm not sure that this would permit a gratuity for priar service, such as it would cover the heinous situation of one public officer, but it also permits increasing retirement benefits for retired teachers without going to the constitutional amendment.

11<1 DR. PYLES:
I see.
MR. BROWH:
Well now, again retirement and scholarships are a separate Article in the Constitution as it's presently written and presently proposed, and aqain this is 7.:h(: specifics. THE CIIAIRHAN:
\'1E: have a retirement provision in our Article III. DR. PYLES:
Hr. Chairman, I propose we put "private" back in. 'fHE CHAIRHAN:
All right. DR. PYLES:
And get this thing fixed right.
MR. BROWN:
And strike the last sentence? DR. PYLES:
Well, I didn't include that in my original motion. I meant to strike the last sentence or intended to. 'l'HE CHAIRHAH:
Okay. The motion has been seconded. I don't think we need any further discussion. All in favor r si~Jni fy by raising their hand. (Showing of hands)

115 Four in favor. All opposed? (Showing of hands) One opposed. NS. NONIDEZ: 'l'im, could you read the provision now? THE CliAIRBl\N: All right. The provision reads, "The General Assembly shall not have the pOvler to grant any donation or gratuity in favor of or to forgive any debt or obligation owing to the public from any private person, except pursuant to a law of general application serving the public interest, adopted by the General Assembly upon the affirmative vote of three-fourths of the members elected to each house and approved by thE:: Govornor within 30 days after it has been presented to him. DR. PYLES: NOvl, should there not be the a.ppropriate language dealing \vith the grandfathering in what's there? THE CIll.IRHAH: Yeah. DR. PYLES: I don't know where it goes.
THI: CHAIRHAN:
I don't either. Harold? "'lR. CLAW,E:

116 I don't. know.
'l'HE CHArmiAH: It lleeds 'to go in tho Constitution, and it just.
can't Le separated out.
HR. BRO\'1H:
I think you would want it in that paragraph. It's just a question of whet.her or not you ,rant it as the first clause or the last sentence I thinJ:, and you nay just want to have your drafters look 3t it. anI] seC! what fits best. DR. PYLES:
Yeah, because I don't want to qrandfather in l1R CLI~RKE:
Hel, will some of you folks tr/ tu sort: that out. for us? HR. HILL:
Yeah. TIlE CHAIRHAH:
Okay. I'm glad that's over "'ith. J,c;t's go back t.O Paragraph III. I think we were through with everything on Paragraph II relating to speciFic powers.
HR. DROWN:
I ,-lould like to recommend to you a:_1 on Paragraph III that ::,'ou all eliminate it. THE ClIAIPJ1AH:

117 Let's bG snr(o \1Te' re t.hrough \.ri th Paragraph II. THE CIIAIRHAN: Oh. I'm sorry.
Tll CHArm-1AIl:
Is everybody satisfied with Paragraph II?
HS. m'S'l'ROH:
Did we actually insert the thinq about not changing thu salaries of the General Assembly in session in VII or did we just talk about doing it?
THE ClIAIm!J-\i~:
Ho. It's in VII.
HS. RYS'I'ROH:
You did it. OkCl.Y. THE CHAIRHAN:
Okay. We go to Paragraph III.
MR. BROHN:
As I said, I'd like to recoI'..11l1end to you all that you delete this as a paragraph and just add a sentence to Paragraph II to say that t.he General AsseMbly shall be aut.horized to provide for continuity of government. in periods of emergency resulting from disasters caused by enemy attack, period. MR. CLARKE:
\fllat about the suspension of the constitutional legislative rules during such J1ergency?

118 MS. NONIDEZ:
I think that's vlhat you really have to be sure you get, because as Tim pointed out before, that.' s the meat of \vhat you're getting to. HR. CLARKE:
TIle constitutional majorities. MS. NONIDEZ:
In the Legislature. DR. PYLES:
You can just add "and. 1I MS. NONIUEZ:
Yeah. DR. PYLES:
We can just put lI and." MR. HILL:
v~at do you mean? At the end of number one? DR. PYLES:
You can say, IIIn order to insure continuity of the State and local governments in periods of ~mergency from disasters caused by enemy attack II --
MR. BRO\'J'N :
Yeah. I would say, liThe General Assembly may provide ll -- or II s hall," whatever -- "provide for continuity of gO'lernment in periods of emergency resulting fron disasters caused by enemy attack, \'I1hich may include the

119 suspension of all constitutional legislative rules during the. emergency." MR. CLARKE:
Again, not trying to be hard to get along with, what about the &uccession to office? Do you think that is a necessary provision or is "the continuity of government" enough to cover that? MR. BROHN:
We can already provide for succession to office by specifying what a vacancy is without any constitutional mandate I think. HR. CLARKE:
That can be done by general act now is what you're saying? MR. BROWN:
I believe it could, yes, sir. MR. CLARKE:
And it can also be done on local officers hy local act? MS. NONIDEZ:
Right. THE CIIAIRHAN:
SO it's agreed that a new paragraph will be part of Paragraph II and essentially say, "To provide for the continuity of State and local governments in periods of

120 emergencies resulting from disasters caused by enemy attack, including but not limited to suspension of all constitutional legislative rules during such emergency."
MR. BROWN:
You relay want to consider that "which may include." You may want to leave the flexibility to let the General Assembly decide whether or not you really do need to suspend those rather than mandating that they be suspended. THE CHAIRMAN:
He're not mandating. We're just authorizing it.
HR. BROWN:
Hell, it says to provide for somethinq, including THE CHAIRHAN:
It says in the first one -- in the direction it says, "':L'he General Assembly shall have the power to provide. "
MR. BROVlN:
Right. And saying, " for continuity of State and local governments in periods of emergency resulting from disasters caused by enemy attack, which nay include the suspension." MR. CLARKE:
\"1ell, yes. If they shall have the power to do it, that doesn't mean they have to exercise that power.

121
MR. BROHN: Okay.
DR. PYLES: What about other kinds of emergencies? We spent
a lot of time talking about that in the past. Barbara? MS. ' RYSTROM: .
They ended up with only enemy attack. DR. PYLES:
Enemy attack. Well, I had forgotten that. MS. RYSTROH:
.\
I had those Russian troops in mind. MR. CLARK:
I had the earthquakes in mind, but it didn't clear either. THE CHAIRMAN:
Mel? MR. HILL:
The only difference between what we have done and what we had was that we did more or less mandate the (,cneral Assembly to do this not..,. THE CHAIRMAN:
Right. 1-1R. HILL:
You know, and I'm not sure that we've done it under the present language.

122
HR. BRmW:
Well, of course we do have in the statutes now provision for emergency reaction, and it's alre.adv on the books, but again, it's impossible to mandate the General Assembly to do something. Hho's going to tell them they did it wrong or that they should have done it when they didn't? Each branch is a separate and equal branch of government. There's nobody to tell them. MR. HILL:
\'Then the Constitution tells them t.hey shall provide by law, then if 'they don't provide by laVl, then -MR. BROWN:
Then nothing happens. MR. HILL:
The citizenry can get on them. I mean it's just kind of MS. RYSTROM:
roletorical, but it's certainly got some power. MR. HILL:
It's got some influence, but I would just point out that it's a change from what we had, and with what this new language says, maybe that change is fine. MR. BROHU:
Given what. 11el says, you know, you may want to consider if this is the type of thing that the public is

',\Jd<. 123 liable to rise up in righteous indignation about. You know it seeMS to me that the only reason you have this
'.-
in here is to permi t extraordinar~' measures to be taken when it's done. You know, so often in the drafting of the Constitution prior to now people have used "shall" and "may" interchangeably. A lot of people don't even realize there is a difference. MR. HENRY:
But there is a difference.
r1R. BRm'm:
Oh, clearly. But I'm saying you can't necessarily assume that the reason "shall" is in here now is that somebody intended to mandate it. THE CHAIRHAN:
I think it's clear froM the language though that they intend to mandate it. I'm comfortable with the change. MR. CLARKE:
I am too. THE CHAIRHAH:
Paragraph IV? HR. BROHN:
Does anybody know what this means? MR. HILL:
The Chairman may have some idea. THE CHAIRHAN:

124 Yes. It means that the General l\ssembly cannot, as it has done in the past, limit it's powers of eminent domain, taxation or police pm-mrs. It has an historical purpos{;
MR. BRmvN:
Hhy can't you just. say then that the General Assembly may not limit its powers of eminent domain, taxation or police power? THE CHAIRHAN:
It has no power to abridge any of its powers, to limit any of its powers.
MR. BRmiN:
Well then, do you need to cite the other things? It seems to me that at the very least you only need half of that, if you need it at all. MR. CLARK:
I think that this is one \V'e felt went back to some problems that existed or activities that existed that made it necessary to put this in, wasn't it? THE ClIAlRHAN:
Yeah. MR. CLARKE:
Maybe \vhat Canter is saying may make some sense, if we were to put a period after "Constitution." Tipl, what do you think? lim just looking. Hhat do you think?

125
Would that not include the latter part? THE CHAIRHAN:
Yeah. MR. HILL:
Of course we're trying to address the t\~O provisions we have now that are specified', and so if they. say, "Hhat happened to this," you say, "lvell, you know, we just included it in this one." It's a lot easier to say, "t-lell, here it is, and here it is, and we're only talking about eminent domain and taxation and the police power." That's why we had the specification, because it's in the Constitution now.
l-lR. BRmVN:
Yes, but at what point does it come into play is the thing. If you don't have the power to do it, you never get to the point where you exercise the power you didn't have. MR. HILL:
You might though because, you know, trying to bind a future General Assembly -- we talked. I guess it's more -THE CHAIRHAN:
Creating a franchise is construed as a contract so that you can't condemn a franchis~ for taxes or regulate it.

126 MR. BROWN:
Again, if you say you cannot ~nact anything to abridge the power, it just see-JUs to me the stronger statement is the first statement, and that covers everything. The second statement reaches. MS. RYSTROH:
Doesn't it seem like it would be awfully hard for a judge to read, if you did put the peri.od after "the Constitution," to read they could now or after that was passed limit the power of eminent domain? MR. HENRY:
Since we have deleted the three provisions on eminent domain, taxation and policn power and you say, "The General assembly shall not have the power to abridge its po\Vers under this Constitution," and since these powers are no longer sp~cified, although they are inherent, you might have a problen later because you're not listing any powers under the Constitution which you shall not abridge. MR. BRm"JN:
Except your general powers. MR. HENRY:
It's inherent. I mean you could say that the General Assembly shall enact laws for public purposes I imagine and not have to bother \"lith any of these.

't ,I

127

MR. BROWN: Well, no, you coul~n't. The public purpose again
.is one of the things --
THE CHAIRt1AN: I'm just personally more comfortable with the
redundancy. MR. HENRY:
Wouldn't it be clearer to put the period at the end of "powers" and not the end of the "Constitution"? THE CHAIRr-tAN:
"Under this Constitution" gives it a flow. DR. PYLES:
What we're saying then is, all right, the Legislature has all the powers. ~ve said that at the very first section. Now, we're coming back and saying but they don't have the power to give up their powers. THE CHAIRMAN:
That's right. MR. HILL:
But you see, what this implies is that the General Assembly is a fluid body, next year, two years from
t
now and ten years from now. You're constantly having a changing group, and it's just kind of to let this group and let the courts, if it ever gets to the question, knmv that it can't really affect the powers given to

128 fut.ure generations of General Assemblies, and so I personally agree with 11 ",' m. I'm mor~ comfortable with the repetition, even if it is redundant in hera, just to help explain to anybody looking at it what we're talking about. DR. PYLES:
I guess I was thinking if they have the power, it \'1ould never occur to them to give up t.he power. THE CHAIRMAN:
Yes, it WOUld. DR. PYLES:
That's \tJhat we've been saying, that. they do; they have in the past. Mr. Chairman, I move we adopt the language as written. THE CHAIRMAN:
All right. DR. PYLES:
And wherever we put it, I think. we decided we were going to put it, we were going to consolidate it somewhere, were we not? THE CHAIRHAU:
No. It's supposed to be a separate section. DR. PYLES:
Okay. THE CHAIRHAH:

'J

129

Is there a second?
rm. CLARK:
I've got to bring the layman's lack of understanding

of this I guess. As he said awhile ago, we give them powers and then you say they can't limit their powers. I don't believe this is understandable to the general public. It may be legal phraseology, and it may be a legal restraint that history has shown is necessary, but is there any way to write it any simpler? It's only four lines, but I don't believe again that this paragraph is going to be widely, generally understood. DR. PYLES:
Let me phrase the question another way. I've made a motion, and maybe I'm b~cking off from it, but does not the united States Constitution give, the Congress the authority to grant letters of marque and reprisal? Is that not in there? It seems to me it. is. Now, that's power that the Congress has, but they have not exercised it to my knowledge since the days of the bucaneers, have they, or have I just -THE CHAIRMAH:
No. DR. PYLES:
So in that case, have they abridged it? THE CHAIRHAN:

130 This deals '-lith the situation, in which -- to give you the context in which it arises is where the General Assembly, which we're. prohibiting them from doing in the Constitution where the General Assembly creates a corporation, for example, or provides that a corporation can obtain a charter, then that charter becomes a contract between the State and the persons who hold the charter, and it cannot -- the State, after it grants the charter, cannot abridge that contract. That is the context in which it has arisen and which is the derivation of the provisions which we are trying to consolidate into one, and once that contract arises, the State can't anend it without the consent of the other party, and the State can't take that contract by eminent domain because this is in essence contracted that they will always have this charter, and in some cases, the charter provides that they will be exempt from taxation, and this says they can't provide that any more. MR. BROWN: If you do decide to keep this, you may want to consider that. the catch line says "PO'-lers Not to be Limited," to switch and say, "Not to be Abridged," since you really have just gotten finished with limiting them allover the place. MS. RYSTROH:

131 The fact that you mention specifically the powers which you're concerned about, which cannot be abridged, does that somehow weaken the notion that in general the powers of the General Assembly cannot be abridged? I have this feeling all the time in our discussions that every time we break into specificity, not quite needing to, that we weaken the strength of the general statements that are sort of at the heart of everything we're saying. MR. BROWN: I think that to the extent that every word in a Constitution limits the General Assembly's authority to act, you're right. THE CHAIRMAN: Hell, when we drafted it the first 'lalf of it down to the word "Constitution" was addressed to the General Assembly and the second half was addressed to the court. MR. CLARK: To who? THE CHAIRHAN: To the courts. And other than eminent domain, taxation and the police power, I don't know that there are any other powers. HR. CLARKE: I see. You are talking about the construction of it rather than the execution of it, and it is different.

132

MS. RYSTROH:

I haven't seen that before, but I do now.

MR. CLARKE:

For instance, the Wand A Railroad, the lease on

the railroad, how that would need to be construed.

MR. CLARK:

I second the motion.

MR. BROWN:

If you say that, could you say, "Be so construed as

to limit its powers," period, and not list them? THB CHAIRNAN:

Yeah.

..

MR. BROWN:

It seems to me by listing them, again you're

implying somehow or it could be reasonably inferred

that there are instances in which its pm,mrs could be

construed as abridging it if it \vasn't one of these

three.

H.S. RYSTROM:

That listing of eminent domain, taxation and the

police power means these, and I understand, Tim, what

your point is, but would what he has just proposed he

all right. THE CHAIRlffiN:

To me it's satisfactory,

i 'I,F 133
MS. RYSTROM: Then we could get away from specifying it.
MR. CLARK: What has been proposed, Hr. Chairman?
THE CHAIRMAN: Hell, now the language is just a little bit more
apparently redundant, but it says, "Pm"1ers Not to be Abridged. The General Assembly shall not have the power to abridge its powers under this Constitution nor shall the exercise of its powers be construed as to limit its powers." I think we got down that far. MR. BROWN:
You may want to consider in terms of shorter, simpler sentences just to say, "The General Assembly shall not have the power to abridge its powers under this Constitution. The exercise of powers by the General Assembly shall not be construed as to limit the powers of the General Assembly." Period. MR. HILL:
You really didn't shorten it though.
MR. BROliN:
But again, you don't have these long, old sentences. He was making the point that you've got two separate statements here, one to the General Assembly that you don't do it, and one to the courts that says if they do

134 it, don't say they did it, don't construe them as having done it, construe it some other way so as to avoid that. So I think you do have an advantage if you can make those statements separately. THE CHAIRHAN:
What was your wording for the second sentence? MR. BROWN:
"The exercise of powers by the General Assembly shall not be construed so as to limit the powers of the General Assembly." THE CHAIRt..fAN:
That sounds good to me. MS. RYSTROH:
YOu really like the idea of having it in two sentences just to make it clear that it points in two directions bec~use otherwise it seems to me it could be simpler than that by saying, "Nor shall its actions be so construed," or something like that, not keep mentioning powers and so on, but if you really think two sentences, one for the courts and one for the Legislature, is appropriate -THE CHAlmtAN:
I like his proposal, his language. SEN. BROWN:
Read what you've got.

135
THE CHAIRHAN:
All right. "The General Assernb~y shall not have the pO\'1er to abridge its powers under this Constitution. Exercise of the powers of the General AsseMbly shall not be construed so as to limit the powers of the General Assembly."
MR. BROliN:
Tim, one possible additional change. lVhere we say, "The General Assembly shall not have the power t.o," what if we said, "The General Assembly may not abridge its powers under this Constitution"?
MR. CLARKE:
That would read a little better. You \'lOuldn't have powers, power, power.
THE CHAIill1AN:
Good. "The General Assf'.mbly shall not abridge its powers under this Constitution. Exercise of powers by the General Assp~bly shall not be construed as to limit the powers of the General Assembly." Any more than that?
MR. BRm-m:
I don't want to quibble, but the \'lOrd "may" involves whether or not they have the permission to do it under the Constitution. "Shall" just kind of makes a statement that we hope they won't, they shall not. I think "may" might be the more appropriate word in that context.

136 THE CHAIRMAN:
I'm not going to quibble about it. Is there a motion? SEU. BROVm:
I move. So moved. MS. RYSTROH:
Second. THE CHAIRr1AN:
All in favor? (Showing of hands)
Unanimous.
MR. BROWN:
I want to mention one thing. I have to leave. I thank you all for being patient with me. I know I go off the deep end a lot, and I would like to suggest for your consideration one thing. Apparently you have discussed this before, and Tim or someone you had hen: felt like this second paragraph to Paragraph VI needs to be there. I'd just like to respectfully disagree. The only magic in that date is that was the date the Constitution of 1945 was proclaimed, and of course we don't even go by the Constitution of 1945 any more. He go by the Constitution of 1976. He didn't feel it necessary in '76 to grandfather in this provision. THE CHAIRHAH:

137 Yes, you did.
MR. BROWN:
Grandfather from '45 to '76.
THE CHA I ill1AN :
Well, it refecred specifically to 1945.
MR. BROWN:
I knml7. I' In saying we didn't feel the need to apply this provision to charters granted between August 13th, 1945, and January 1st, 1976, '77 when the new Constitution went into effect, and I'd suggest that the very same reason by which we didn't need to specify it for that period, we don't need to specify it prior to then.
MS. RYSTROM:
It was indicated, because this ''las the one that's impossible to understand. The point here was exactly the opposite to grandfathering. It was to preclude grandfathering, and I couldn't ever figure that out.
THE CHAIR11AN:
Corporations chartered after '45 don't present any problem. It's the corporations chartered before then that present the problem.
MR. BROHN:
Nell, I don't understand why that's the case. THE CIIAIRl1AN:

138 That's the Georgia Railroad case and the potential for any other corporation that was chartered p~ior to that date.
MR. BROWn:
To what -- I mean what's the evil bing protected against? THE CHAIRHAN:
To the end that if Georgia Railroad forfeits that charter, that charter cannot be remitted unless the Georgia Railroad submits to the new Constitution, nor can the Georgia Railroad's charter be amended unless the Georgia Railroad submits to the new Constitution.
,~ '
MR. BRm'JN:
It seems to me at that point that what you may "",ant to consider is just saying -- and again in this Paragraph VI, I think you say, "Shall not. have the power." Anywhere you use that, you can just say, "May not." "The General Assembly may not remit the forfeiture of any corporate charter or grant incorporation to private persons but shall provide by general law the manner in which private corporate charters may be grant.ed" and save all that language. THE CHAI ID1AN :
We're saying the Georgia Railroad's charter cannot be remitted. I mean the forfeiture, if it has occurred,

139 cannot be remitted unless Georgia Railroad subjects itself to the new Constitution, which gives the General Assembly power to wipe out the tax exemption and all that, and without that specific preservation, just saying that they can remit the forfeiture --
MR. BROvlN:
Why do we need to authorize a remittance of a forfeiture in any event?
THE CHAIRr1AN:
We're not authorizing it.' We're saying you cannot do it unless the corporation for whom you're remitting the forfeiture
MR. BROHN:
I guess what I'm suggesting, it seems like you're going a long way around to get at two corporate charters, which is the railroad bank and that little railroad down in Southwest Georgia. If it's a question, why don't you just bar remittiture of forfeitures and require them to get a new charter under the normal corporate charter provisions, which would make them apply to this Constitution, and save all that language nobody understands?
MS. RYSTRON:
I understand it perfectly now. It took about half an hour of explaining so I would. I was hoping to go on

140 a quiz show sometime and be asked that question and win a thousand dollars.
MR. BRmffl:
Like I said, I really appreciate your all's patience. MR. CLARKE:
Thank you, Canter. THE CHAIRMAN:
Oh, no. It's been helpful. You've chopped up a lot of language. I appreciate it.
Do you want to take a five minute break? HR. CLARKE:
Yeah. Let's do that. (Brief recess) THE CHAIRMAN:
Hc're now down to Paragraph V, Limitations on Special Legislation, and Mel has a proposed addition. MR. HILL:
Well, this was just -- did you see my one sheet, my one page sheet here? This is just my first st.ab at, you know -- I'm not sure what we can do with this. I knm", that population statutes are a probl'em for the General Assem.bly. They're a problem for the St,atc as a whole. There's been a lot of abuse, as you're probably aware, of population statutes. They've been used to try

\.i.d

141

to get around general law by having a general law passed

that applies to only two cities between 10,050 or

something like that and there's only one city that fits

that description, and the courts have struck down these

population statutes when they cannot find a rational

basis for the classification, and they feel it's been

abused. They have struck some of them down, but this

would be the place in this section of the laws of a

general nature having uniform operation. No special

law will be enacted. This will be the place to address

this question about these population statutes.

Now, we could have a stat~~ent in here that says

that population shall not be llsed as a basis of

classification in any general law, period. You could

do that.

MR. CLARKE:

I don't agree with that, and I'll tell you why in a

moment.

MR. HILL:

And I don't either.

MR. CLARICE:

Or perhaps one that just says straight out that it

shall not be used as a classification unless the

population

MR. HILL:

142

Perimeters?

M.R. CLARKE:

Yeah. Have a direct bearing relationship to the

subject matter of the bill. Now, as an example, if you

dealt in the area of

this is one that's dear to my

heart

in the area of annexation o~ consol~dation of

governments, you get to a certain density of population,

taking into account the total population of a county,

say, and the square miles in the county, that could

have a direct bearing on the necessity for some

consolidations, because all of a sudden you would have

an area in which there is a cohesive community that ought

maybe to have one government rather than a multiplicity

of governments.

SEN. BRmm:

He have one at Muscogee and Columbus.

MR. CLARKE:

Yeah, but they did theirs straight out, but I'm

talking about suppose it were attacked from a state-

wide approach that once the particular area reached a

population of so many people -- well, this is not in the

true sense of population, but so many people per square

mile or even just suppose a county had reached a give.n

population and it could have only one government for

them all to do municipal and county functions for the

143 whole political subdivision. MS. RYSTROl1:
If you try to link the appropriateness to the size of the population to that kind of stipulation, once again you'll have all the possibilities for litigation I suppose where somebody would contend that it was and somebody would contend that it wasn't appropriate. MR. CLARKE:
That's right. I don't know anything you're going to do that's not going to have the possibility of some litigation. Lawyers as smart as Tim over here. can always find a reason to litigate. THE CHAIRt-iAN:
You don't have to be smart to find a reason, just a client. MS. RYSTROM:
Just a lawyer. MR. CLARKE:
Bless his litigious heart. But it seems to me that perhaps some statement that the population perimeters used have to bear a relationship to the subject matter -MR. HILL:
But I think even that ,~ording would allow one city to have a general law applying to it, you know, and .my conception of this is the general la",<, has to apply widely

144

to a number of cities, you know, in the State or just

I would say the City of Atlanta, and I feel the City of

Atlanta in unique in being the capitol city and being,

you know, the largest city, and being an international

airport city and all these things make it unique, and

I'd almost like to see it be allowed to have a class

re.latinq to it, maybe all cities of a half million and

over, in which there is only one now. There may be

more later, but then I don't know that this kind of

having a direct relationship to the subject matter --

maybe if we had some statement that any general law

would have to

well, I don't knO\'l. I tried to say

....

here to apply to more or apply to cities found generally

throughout t.he Stat.e. 'l'hat really didn't address it

too well because, as I said, Atlanta is kind of a

separate class in itself. Hayhe some specific -- well,

do you feel

all right. Do you feel though that, you

know, the General Assembly should be able to use

population as a basis as a classification if it only

relates to one city or one county, if in fact there's a direct relationship between th~ subject matter and

the population?

MR. CLARKE:

Well, if there's some reason that a city which

falls between these two levels, if there's something about

145
that particular population category that brings about a need for that particular legislation, th~n I say yes, but if you're just doing it in order as a device, then I think it's sort of wrong, hut. that's just. my personal feeling, and everyone here may very well have a different feeling.
!-1R. CLARK:
That's the \<Thole purpose, as I understand it, to avoid specific legislation under a general bill. HR. CLARKE:
That's right. MR. CLARK:
And it's done by population. I'm not so clear on it. It seems to me like this doesn't -- this just does what's being done. now. MS. RYSTROI1:
We're trying to stop there being a floor and ceiling in the categories. MR. HILL:
Originally I didn't even have a floor and a ceiling; originally my proposal was just to say that population shall not be the basis unless such law applies to a political subdivision of a certain kind or type function throughout the State. That was my initial proposal. The fact is now we have a provision in the Constitution in

146 Article IX that says with respect to sornp- 15 powers given to cities and counties, if t.hc G<meral Assembly should choose to enact legislation on any of these matters, then they must do so by -- and they're going to use population as a basis for th~ classification. Then it can bE, only more than a certain population or less than a certain popUlation. I kind of just borrowed what we already had and tlum added this other, but I' n not I think that it may be that my initial proposal was better so that it would apply to more than just one city. I was going to say -- what I was going to say before was maybe if there were just some specification about authorizing the General Assembly to classify cities and counties on the basis of population, you know, just address directly what tho Article IX Comrnitt(~c whose, you knO\~, proposal this is kind of, to get around this problem. 1'1S. RYSTROM:
At least if someone wanted to design some legislation that was actually special, it would probably be a two-step procoss. They'd have to jigger the classifications to carve out the One they want, if they could get away with that, and then come up with the la\~, which would probably dampen the possihiliti~s considerably.

147 MR. HILL:
Deter it. MR. CLARK:
What you're saying is you think cities .like Atlanta have needs for -- well, why couldn't that not be local legislation? THE CHAIID1AN:
It can. That's the problem. The local legislation has the advertising requirement, and a lot of times you get involved in a session, and you don't have time to advertise. So they do a special. MR. CLARKE:
The way they're advertising it now in Fulton County and particularly in the City of Atlanta, they run a notice in the Fulton County Reporter, whatevery they call it up here, saying it's the notice of intention to introduce local legislation to amend the charter of the City of Atlanta. THE CHAIRNAN:
And nobody reads that except lawyers and primarily lawyers' secretaries. TIlE CHAIRMAN:
And you can do anything you want to do. MS. RYSTROM:
Lookinq for an error so it can't go through.

148 MR. CLARKE:
And then they also, you know, introrluce a lot of dummy bills and then amcmd them by stri}:ing the Hhole bill and starting back over. TIlE CHAlIU4AN:
The only thing I can think of, Hel, is just t,o mandate classifications of cities and counties accor~ing to population and then prohibit any population bill not within those classifications, you know, and adopted pursuant to that mandate.
HR. HENRY:
Wouldn't that be frce?ing a n\mber into your Constitution though? THE CHAIRNAN:
No. Just say, liThe General Assembly shall classify according to population, II and leave the populat.ion brackets up to the General Assembly, and then just say, "Except for laws relating to those classifications, you can't adopt any law which depends upon populat.ion. II
MS. RYSTROH:
And actually that classification could be, could introduce factors other than simply population. I don't knoH how it's done in other states, but there might be situations. I don't know. I can't even think of it. I guess geographical size.

"'1'. 149 HR. HILL:
A lot of them do it like form of government, like all city manager forms of governments, regardless of size, would have these particular powers, and the thing is what we're trying to address is the State is straightjacketed at the moment with having to deal with every city in the State the same way by general law. I'm speaking of by general law, they have to deal with every city the sarne way, whereas they can make changes in the local legislation, but that's with the full General Assembly looking at it, and it's just if we want to try to limit population statutes, you know, the Committee working on Article IX is hoping that we can do something to preserve the right of the G~neral Assembly later, if it chooses to, to classify cities based on population, t.hen adOpt. general laws relating to a class of cities or a form of government or kind of government. It gives us more flexibility. HS. RYSTROM:
It's so ironic that it should he easier to get legislation passed as if it's for t.he whole State than as local legislation, you know. If you just stopped me on the street and asked me that a couple of years ago, I would have said it was the other way around. MR. CL~RKE:

150
,
Well, the population bills are treated on the floor as local acts anyway. HS. RYSTROH:
Exactly. And it gets to be the courtesy every term. MR. CLARKE:
That's right. HR. HILL:
Right. They just automatically approve theM. r.1S. RYSTROH:
Which in a way is abuse of the legislative powers I guess it would be fair to say to in effect no exercise HR. CLARKE:
~'.
I frankly don't like it. If I had my druthers, I would probably -- and I may find a lot of disagreement. I would be more inclined towards some language like "population shall not be used as a basis for classification in general law unless the population category cited therein bears a relationship to the subject matter of the Act," but that may not be a popular position. MR. CLARK:
Well, would that not just open the floodgate for all legislation then? MR. CLARKE:
No. It would close it considerahly. MR. CLARK:

'\', 151
You think it would? MR. CLARKE:
Uh-huh. Because I thin}~ then if there wasn't something peculiar abOut the population bracket that made it relate to the subject matter of that act, then you couldn't use the population act. MR. HENRY:
Isn't that the way they would fall now? 11R. CLARKE:
I think so. MR. HENRY:
If they do in fact fall. MS. NONIDEZ:
If they're challenged. MR. CLARKE:
Yeah. If they're challenged, right. I think that really is what the law is at the present time, but not very well enforced, but I sort of look on population bills as being sort of a subterfuge. SEN. BROHN:
That's the way it's been used. MR. CLARKE:
That's right. And I used to be Chairman of the Local Affairs Committee in the House, and I guess part of this goes back to my dislike for having to sit there

152 with the population figure and check to be sure t.hat not more than one town \Vas being covnred by that particular act. HR. HILL:
And not only that, a lot of thes~ cities or counties would grow into that. MR. CLARKE:
Hell, every ten years we ""ould have to go back and re-enact all of these things after every dicennial census because they all say, "In the last dicennial census" or "Any future dicennial census," so tl?-ey have to go back and redo tho whole shooting mat.ch every ten years. MR. HILL:
Or if you don't, the city \V'ould be automatically included in the old cat.egory. MR. CLARKE:
That's right. MR. CLARK:
Isn't it basically good government if a general law is a general law? Then if you'va got a special law that ought to be local legislation, it ought to be introduced as local legislation, and there ought not to be the alternative. MR. CLARKE:

.'~ :' 153
Two years ago a member of my district where I lived introduced a bill that made hunting on Sunday unlawful in counties between two sizes, being th~ two counties he represented. Now, I can't conceive of how any stretch of the imagination that population categories in those counties had anything to do with ,,,hether it was good or bad to hunt on Sunday, and the Governor vetoed it as being unconstitutional, but I'm not sure if we might be getting ready to make such things as that constitutional, and I think that would be a horrible thing to do. MR. CLARK:
Just say, "Population shall not be used for basis of classification in general law unless such law applies to general subdivisions of a kind or tyve found generally throughout the State." tvouldn't that just eliminate the possibility of local legislation under population fonnula? HR. CLl~Rl(E:
I'm not sure. MR. HILL:
I'm not wedded to this by any means. I mean, you kno\v, in mind a nUmher of things. The form of governr.1ent, \.,,~ can deal with form of government generally in the State, being able to classify on the basis of

154 population and these kind of things. HR. CLARKE:
Yeah. But in that inst.ancB, couldn't. you say that it does bear a relationship, the subject matter dODS bear a relationship to the population cat.gory? tiR. HILL:
I think it \;Tould be true, they Hould. bear a relationship, but I'm worrying about your particular suggestion, and I can think of a lot of very clOSG calls, you knml1, and I can soe an a\'7ful lot of litigation being generated by this direct relationship between the subject and the: other one. It sounds like \11e really can't. pinpoint what we're speaking about.
Well, this needs more \l1ork. I don't think we're going to be able to co~c up with something. I don't want to -- it's too important. So why don't -- I'll get with the Legislative Counsel's Office and we'll look at this more.
This has been helpful, but let me ask Dale one question. Do you feel that the General Assembly should have the authority to classify cities based on population and provide general laws that only apply to cities of the first class, cities of the second class or cities of the third class or something like that? MR. CLARE:

'155
General classifications. MR. CLARI{E: ~
I think that would be fine. MR. CLARK:
I think that there's a need for that, but it needs to be said, it should be a negative here, that legislation shall not be, local legislation shall not be introduced under the guise of general legislation by citing population. MR. HILL:
Is it the feeling of the group as a whole that the General Assembly should be able to classify on the basis of population, so I can get with Legislative Counsel and try to draft something?
MS. RYSTROH:
I think if you do anything with the kind of language you have here, in the first line where you say "classification" really means an application, don't we? MR. HILL:
You mean -- what?
MS. RYSTRON:
In the first line where you had "classification," it's really application you're saying. You're saying that population shall not be used as a basis for applying

156 a general law. Sometimes \'lhen you say "classification," it sort of sounds like -THE CHAIRl1AN:
You have salary legislation related to local officers which internally contains brackets for the salary level. In other words, counties between a population of 10,000 and 20,000 pay their sheriffs so much, and between 20 and 30 pay so much. l-1S. NONIDEZ:
Yeah. The minimum salary. MR. HILL:
That's true. THE CHAI RliAN :
So they do use population as a classification in general laws. , MR. CLARKE:
That's needed. MR. CLARK:
Senator Brmvn, what do you think? Hhat's your feelings? Should this be restricted? SEU. BROHN:
Hell, I'm not too use about. that, but as I say, \ve have them, and they're necessary because you can't qet the local people to introduce the local bills. It's necessary to have those types on the sheriffs and the

.1,

157

tax con~nission and the probate judges.

MR CLARI~E: What you've got there is a state-wide pay scale

sliding according to the population of the

MR. CLARK:

Classifications.You were talking about.

MS. NONIDEZ:

Right.

THE CHAIRHAN:

Haybe the way to articulate it is like yon're

talking about, maybe mandating classificat.ions by

population and type of governMent and prohibiting the

legislation which depends for its application on population unless it's adopted pursuant to, adopted so that it applies to one of the classifications established

by the general law. MS. NONIDLZ:
Yes. Something on that order~ I think, Tim, that's

what we're really trying to get at. I don't know whether

that does it or not. Then also it bears some reasonable

relationship to the population. MS. RYSTROH:

Hell, if you had a good rationale for the classification, it seems to me you probably \'1ouldn' t have to have that other part.

158

THL CHAIRMAN:

Well, if you had a classification that said between,

one of the classes as between 20 and 30,000 and you

can't hunt on Sunday in those counties, you know, is

th~t reasonably related to it?
(~ as. RYSTROH:

No, but at least it would not be tailored to

a stipulation that someone had in nind, and it seems to

me that's really the thing we're objecting to.

1'i THE CHAIRHAN:

!.

Yeah. And it would be less likely to get adopted

l'

if the brackets were broad enough. The legislator

would need to go get somebody else's concurrence.

)i MR. CLARKE:

That's right.

It.' MS. RYSTROH:

Think what fun the Legislature could have in

deciding the brackets. It could be like reapportionment.

\ q THE CHAIRHAN:

2(\

That's right.

HR. HILL:

I would ask that 'va just pass on this one.

MR. CLARK:

.>:

You're talking about setting up the classifications?

,.; THE CHAIRJliAN:

No. MR. HILL:
In the Constitution? No. MR. CLARK:
That vlOuld be -HR. HILL:
That vlould be locking us into something. NR. CLARK:
Yeah. The General Assembly would have this. MR. HENRY:
Could I ask a question? I'm generally not knowledgeable about this. tvhen they did pass that legislation that you were talking about, did they have to say in counties with between 10,255 people and with 11,000 people shall not be able to hunt on Sunday? Was it broad like 10,000 to 50,000?
MR. CLARICE:
No. He narrowed it enough to the fact. I don't know if it was one bill or two bills, but it dealt only with Jones County and Monroe County. MR. HENRY:
So there were two counties involved?
MR. CLARKE:
Yeah. But it \vas done with the specific idea of having those t\vO counties involved. They had bro different

160 brackets, one for Monroe and one for Jones.

MR. HENRY:

Oh, I see. So you can redefine any county by

population without taking another one?

HR. CLARKE:

Sure, unless by coincidence two counties happen to

have the same population. As far as ::r.: knO'v, t.hat hasn't

happened. It could happen.

MS. RYSTROH:

lIO'., about making a rule that the ~rap has to exceed

so many souls? You J:now, Hichael is qet.t.inq to the

question of how close was the top'of the liRe.

,'. )

MR. CLARKE:

Of course the most common of all then is all

counties having a population of more than 600,000, hlah,

blah, blah, blah, and of course that deals with Fulton,

and Fulton only.

THE ClIAI Rf.1AU :

Okay. Paragraph VI. Does sonebody want to argue

about that?

MR. HENRY:

Tim, could I ask --

MR. CL1\RKE:

I don't.

MS. RYSTROM:

\(,).; 161
Step outside into the hall. MR. HENRY:
Could I ask one question about that last one? THE CHAIHHAN:
Sure. MR. HENRY:
h'e decided that no special law relating to private persons be enacted? THE CHAIR11AN:
Right. MR. HENRY:
That's taken from Article I, Section 2, Paragraph 7? THE CijAIRUAN:
Well, yeah. MR. HEURY:
I mean essentially. THE CHAIRl1AN:
Yeah. MR. HENRY:
Did we decide that that, should say "private persons" or "private rights"? In that. paragraph it's stated as "private rights." MS. RYSTROM:
You're in Paragraph V now?

162

MR. HENRY:

I'm in Article I, Section 2, Paragraph 7.

11S. RYSTROH:

On the draft?

THE CHAIRHAN:

I think "..hat we're talking to is a law relating to

an individual.

MR. HENRY:

Okay. So we can tell the Article I Subcommittee

that you haven't touched their

THE CHAIRHAN:

Ho. Except I've left out the provision that they can

c,~- -,

do it by consent. It just says you can't have a law

dealing with a private person.

HR. HElmy:

And that would take care of this "no private. law

effecting private rights"?

THE CHAIRHAN:

Yeah. And unless you want to discuss impeachmp;nts

again, I think we're through.

MR. CLARK:

What are we going to do about VI? We're passing on

that?

THE CHAIRHAN:

VI?

MR. CLARK: The corporate powers.
THE CHAIRHAN: Oh.
MR. CLARK: I think we're going to assign that to you and
Barbara. MS. RYSTROH:
So it can be understood. Georgia Railroad and -THE ClIAI RHl\N :
Does anybody have any problem with paragraph one? NR. CLARK:
Under VI? THE CHAIRHl\N:
Yeah. Section one. HR. CLARK:
I just can't respond to any of this, especially after what Canter said. I don't understand. I buy
your argument of last meeting that this is important and
it needs to be in there because of the reasons that are obscure to most people. I know it's to Georgia Railroad, and yet I heard Canter say today arguments that that could be covered, you kno\'l. I just don't kno\"T how to respond, hmv I feel about this, and I ,..,ould like to see it simplified in simple languaqe.

164

THE CHAIRl1AN:

Hell, on paraerraph one, do you have any problen with

that step by step?

MS. RYSTROH:

I don't understand it. Does that. mean that anyon";

on any effort to incorporate has to meet the regulations

of incorporation?

TIlE CHAIRHAN:

Right.

MR. CLARKE:

Beyond that, what it means, Barbara, is historically

in the old days in order to qet a corporate chartGr,

you caIne up and had a bill, and you call correct me if

I'm ""rong, but I think I' n right. If you came up and had

a bill introduced in the General Assembly, and th(~y

through an act of the Legislature incorporated you, well

years later you got into a provision by general law for

certain procedures to go through in order t.o forn private

corporations, and the thinking is it \voulc1 not be good

.:(.1

to allow some people to use political influence to come

to the General Assembly to qet. themselvas incorporated

with all sorts of special powers and so forth. Is

that about right?

THE CHAIRHAIl:

Yeah. 'J.'hat's right.

j'\i,

165

MR. CLARK:

So that's ,Iith the Secretary of State's office. You

don't qo to the General Assembly?

HR. CLARKE:

That's r iqht. That's \'lhat you do now, but what

you're doing by this provision is insuring that you will continue to use some procedure like that and not allow the General Assembly to come out and grant special

corporation to you or me or anybody else with all sorts

of special powers that other corporations don't have. MS. NOHIDEZ:
Like the Georgia Railroad, which is how that cam~

apout.

NH. CLARK:

I've got no question about paragraph one. THE CHArRliAn:

Okay. On two, I take it the consensus is that it

can be taken out. Do you want to take it out? MS. RYSTROIl:

Or if it could be generalized so that, you know, if

the dates are offensive, I think I was saying -- maybe I

was just thinking before. Can't you say something like
. "No forfeiture of a charter can be renewed wit.hout
acc~pting the stipulations of incorporation that apply"?
MR. CLARKE:

166
\nlether it be one before '45 or not. MS. RYSTROH:
Right. And it would probably make it look a little more constitut.ionalish or aI, and yet it accomplishes the same thing because I don't think I favor removinq it nmv that I understand it. Dy golly, it's got to stay in. HR. CLARKE:
He're going to let you defend that. one. r.1S. RYSTROH:
Allow an hour and a half on each end.
MR. HENRY:
Could I ask one thing on this? The first part says that we cannot remit the forfeiture of a charter. Presuming that we're dealing with two legislatively chartered corporations that were in existence prior to 1877 or something like this first came up in the 1877 Constitution, to remit the forfeiture of those charters would be the impairment of an obliqation of the State on a contract, which is prohibited by another provision. The second part of this has to do if that corporation does remit its charter, then it novates its contract with the State and comes within the existinq corporation laws and, therefore, then we can take away its tax cXGmpt status. Is that right?
MR. CLARKE:

167 Let Tim answer it. That's what I read it to mean.
THE CHAIRMAN:
Yeah. MR. CLARKE:
Of course I'm sure that if that were to take place, I think with this in there that they're not going to dare amend a charter because they don't want to take the chance, because if it were to take place, I'm sure there I would be some litigation, but that would be worth it. MR. HENRY:
Is there any special magical significance about the first part of it that says something different from impairing the obligation of a contract shall not be done?
THE CHAIm-1AN:
Well, it wouldn't be an impairment,to remit the forfeiture. MR. HENRY:
I'm guess I'm kind of confused as to r~~it the forfeiture. I guess I should have been here last Friday. MS. RYSTROf1:
~iou1d you like me to explain it? MS. NONIDEZ:
He's going to have to get Barbara's class notes. MR. HENRY:
I'll take your word for it that to remit a forfeiture:

168 is not the impairment of an obligation and 18t it ero at that. THE CHAIRHAN:
Okay. R~~it means forgive. You could not forGive the forfeiture. That would not be an amendment. MR. CLARKE:
There may be an obligation between the St.ate and Georgia Railroad, but if Georgia Railroad forfeits -MR. HENRY:
We cannot accept it? H.R. CLARKE:
Ho, no. If they forfeit, t.hen t.hat. ohligation is
I' f
gone. Then there is not any impairment of any obligations, if we come along and refuse to forgive a forfeiture tJwt they've committed, and this is just saying we cannot forgive the forfeiture. HR. HENRY:
Okay. 11R. CLARKE:
I think. THE CHAIRHAH:
Yeah. NS. RYSTROH:
There's no question that you're the category of person that. created chaos, you knmv, in that joke ahout

I', Iii

169

what the lawyers did. So are we concluding that we really didn't really do anything? ~10uld you like a

motion?

THE ClIAlr-J1AN:

Yeah. MS. RYSTROI1:
I would like to move that we empower you, if it's

possible, to generalize that.--

THE CHAIR11AN:

Okay. MS. RySTROH:

stipulation so that it would be more acceptable and sOI"i1.ething appropriate to a Constitution and still accomplish the purpose.

THE CHAIRl1AH:
All right. Is there a second?

SEN. BROHN:

Yes.

THE CHAIRHAN:
All in favor? (Showing of hands)
The motion passes. I think w'e have come to the end unless you all \'1ant to go over impeachment provision again. I think that the only change we had last time was in paragraph one.

170
!JIR. CLARK:
It seems to me that it's concis~ ano clear.
HR. CLARICE:
I think that you all have nads very substantial progress on these sections that you've got. THE CHAIRMAN:
Okay. Harold, do you want to t.GIl everybody ""hat our next step is?
HR. CLARIZE:
Yeah. He are planning to have. a draft of a report. from each of the three subcommittees to go to all members of the Article III Committee next week along ahout. Wednesday I guess, r1el, hopefully, ano then on Honday the 29th the following \mek I guess at 10: 00 0' clock, probably if you all \'1ould get. a not.ice to them, the entire Cornmi ttee will meet downst.airs in what. is it? Three
MR. HILL:
337-B.
}1R. CLARICE:
337-B. At that time, I'm going to ask each Subcommittee Chairman to give a report and e.xplanation of what his work product is. Upon that being done, I would then ask the members, all members of the Committee to share with us any suggestions, comments or criticism

they may have, not for the purpose of amending the draft at that meeting, but to give to each Subcommittee in order that it might go back and wrestle with the suggestions and criticisms or comments that might come from other members of the Committee.
Then we would probably meet at least one more time I would guess in subcommittee form and hopefully come out with a sort of finalized subcommittee draft that would then be attacked by the full Committee. Of course, as you will recall, we have been asked to complete our work by December the 7th, and I don't know whether Pearl Harbor Day has any particular significance with that request or not, but perhaps it does.
That's about it. I don't know how many times we'll be meeting in full Committee. It depends on how things
I
go.
MR. CLARK: 10:00 a.m. the 29th?
MR. CLARKE: I suppose.
MR. HILL: 10:00 a.m. on the '29th in 337-B.
r.IR. CLARK: We will not meet, this Subcommittee will not meet
prior to that time?

172

MR. HILL:

There's no need to really. Hhat \"e' 11 do is, you

knmv, there's a number of questions t,hat are still to be;

studied and thought about in the othor Committees, and

I'd say in this one we still have the population

statute, and we've got to try to figur~ out, we've got

the veto worries over another one, and on the draft

that comes from here, just say, "For further study on

those sections that the SubcornInlit.teestill has t.o do,"

but you're 95 percent of the way through here. The

others are about 80 or 90 percent.

MR. CLARKE:

That's right. I was going to say I think you have

made better progress than the others. Now, Bob Hal1ings'

Cornrnittee is meet.ing Honday. So we 111 see how JT\uch

progress.

THE CHAIRHAN:

Hhat we send out won't be in stone as far as \V'6' re

i',:

concerned.

MS. NONIDEZ:

No.

HR. HILL:

No, no.

MS. NOlHDEZ:

We're going to send it out as sort of a progress

,\',1<' 173 report. HR. CLllRKE:
And you will have the opportunity to gf't. back together and exercise your prerogatives and change your minds. HS. RYSTROM:
You think we could set that for getting back together again date now so that we don't have to try to get together on the 29th and do it? THE ClIAIRHAN:
Friday is the 2nd. MS. RYSTROH:
I never have a calendar. MS. NONIDEZ:
What's Friday following this Honday? HR. HILL:
It's Friday, November 2nd. THE CHAIRHAH:
You want to do it again? MS. RYSTROH:
(Shakes head negatively) THE CHAIRUAI1:
No? MS. RYSTROH:
I might have another meeting, and you might ~hink it

174

might 90 a lot faster \'Jithout me, but if you prefer to

go ahead and have that meeting, I will understand. THE CHAlruffiH:
Then we'll just hav t.o come had~ and rehash it.. MS. RYSTROH:

That's true. MR. CLARKE:

lIm., about. is Thursday a bad day? 1'1S. RYSTROH:

Hot for me. THE CHAIRHAN:

The first? That \.,ill be fine with mc. Senator?

.'.f{'"" '

SEN. BROWN:

(Nods affirmatively)

THE CHAIRHAN:

Okay. MR. CLARK:
The afternoon is pref~rablefor I'.1. THE CHAIRMAN:

Okay. HR. CLARK:

Thursday, November 1st? THE CHAImIAN:
Right. You want t.o st.art about 1~:30, about 12:30 on the first? Is that okay?

175 MR. CLARKE:
NO\'l, the one problem that you may have is some you're meeting on Honday. lIell, t.hat will give you time. Some of the people on the full Committee may vrant to write you letters. THE CHAIRHAN:
All right. MR. CLARKE:
And I hope there will be time for those to get to us. HR. HILL:
I would suggest maybe the following week; the week of the 5th might be better. I1R. CLARI( :
What day is that? HR. HILL:
Since we only need one more meeting.with the Subcommittee. MR. CLARK:
Thursday the 8th or Friday the 9th? MS. RYSTROH:
I'm sorry about the 8th. MR. CLl'.IU<E:
I'll be gone both of those days, but it's not that essential that I be here.

17G MR. HILL:
Hhat about Thursday? l'1ednesday? HE!dnesda). Wednesday the 7th.
MR. CLl\H.KE: I \-lOnder this. The Parthemus Committee planned to
meet on the morning of the 6th. Are you all jarm1ed un on that aftornoon? HR. HILL:
No, not yet, if wo get done what, \v(l need to by 12:30. He probably will. I ,"vould think so. Do you want to meet? How about, Tuesday i::hp 6th? THE CHl\IRHAN:
That's fine with me.
SEN. BROm~:
Hhat time? TIlE CHAIRHAll:
12:30. MR. CLARKE:
And I can make two trips at once. MS. RYSTROM:
And that will be eight days beb"C'en those bra meetings. MR. CLARICE:
And they may find all your work is so perfect. MS. RYSTROH:

\ !'.

177

I'll bet that's what will happen, just like we'll

find all their work is perfect.

THE CHAIRMAN:

All right.

(Whereupon, the above-entitled matter was conclud~d.)

-o()o-

C E R T I F I CAT E

GE 0 RGI A

CLARKE COUNTY

I hereby certify that the foregoing transcript was

taken down, as stated in the caption, and the discussion

and statements thereto were reduced to typewriting by me

personally; that the foregoing pages 1 through 177,

inclusive, represent a true, complete and correct

transcript of the statements givan upon, saidproceedirg.

This, the 31st day

DONALD Sf\MUEL LEM11ER

INDEX Committee to Revise Article III Subcommittee Meeting Held on Oct. 19, 1979

SUBCOMMITTEE MEETING ON BROAD POWERS OF THE GENERAL ASSEMBLY 10-19-79
SECTION VI: EXERCISE OF POWERS Paragr~ph I: General powers. pp. 4-5 Paragraph II: Specific powers. pp. 5-29, 117-123 Paragraph III: Powers not to be abridged. pp. 123-136 Paragraph IV: Limitations on special legislation. pp. 140-162 Paragraph V: Specific limitations. pp. 29-67, 136-140, 162-169 Paragraph VI: Gratuities, and Section V, Paragraph XIII: Approval, veto, and override of veto of
bills and resolutions. pp. 67-116

-
BEFORE THE SELECT COMMITTEE ON CONSTITUTIONAL REVIEW STATE OF GEORGIA
In the Matter of: Select Committee on Constitutional Revision of Article III, Sections 9 and 10.

APPFARANCES:
Chairrnarl Walling Vicki Gr.eenburg Kanter Brown Pete Hackney Charlie Tidwell Roy Lambert Mary Doyle Mrs. Brent Harold Clarke Helvin Hill Cindy 1<1onidez

Capitol, State of Georgia Room 40lA Atlanta, Georgia
Monday, October 22, 197'

-000-

BRANDENBURG & HASTY
SCIENTIFIC REPORTING 3715 COLONIAL TRAIL, DOUGLASVILLE, GEORGIA 30135
942-0482 DEPOSITIONS - ARBITRAnONS - CONVENTIONS - CONFERENCES

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

~ -~., -~,

P-R-O-C-E-E-O-I-N-G-S

PAGE ,--2-- - - '1

CHAIRMAN WALLING: Now, Vicki has passed out or

,i

either given to you in the mail several things that you shoulld

1-

have to be helpful in our discussion. Let me outline those

~

major items. And there's some miscellaneous things also.

:

()

We can get swamped in paper, but let's focus on these. That I

7

is the draft of the insurance regulation article which shows

x

the deletions and the new wording, suggested wording. We've

()

got to do some work on that. But it's mostly deletions.

III

And the new wording is very sparce compared to the old. That's

I

<9

.t:

1I -, in keeping with Chairman Harris' instruction to us to get

J' ""' rid of as much unnecessary language as possible. You should

also have a draft of the appropriations' article, again

deletions and additions. Quite a bit of work to do on that

particular in regard to the question of whether or not we

continue with the references to supplemental appropriations.

In that regard you should have a third document, which is

Pete Hackney's draft, assuming that we're going to keep the

provisions in regard to supplemental appropriations. Pete

has language that he suggests for that purpose. And then the

fourth major document that you should have would be Mrs.

Brent's draft or rather Vicki's working on Mrs~ Brent's

suggestions into the two articles or two sections or two

paragraphs that Mrs. Brent is concerned about. Those two

paragraphs happen to be the same ones that Pete Hackney draft

,------
is directed to.

PAGE 3
So we take a look at Mrs. Brent's draft

in connection with Pete Hackney's draft once we decide on

the concept that's involved there; that is, to retain or

not retain supplemental appropriations.

With that background I suggest that we take a look

at the easiest job we've got and that would be the insurance:

regulation, redrafting. We went through several drafts

and now we're down to two paragraphs, which appear on page

two.

,I)

MS. GREENBURG: Does everyone have copies? I'll

pass some around
;".,
CHAIRMAN: As I understand it, in terms of

substance aside from the language we use this committee has

decided to retain as we must the substantive provision of

, '1 C

the Insurance Article. Number one, that the doing of business

in this State by insurance companies will be regulated,

and number two, that those insurance licenses are licensed -~

more precisely licensed to do business in Georgia would be

issued by the Comptroller General. And other than that we

don't need anything. That pulls a lot of material into two

..:,r

short paragraphs and gets rid of about three pages of

Constitutional language.

All right. Taking a look first at paragraph one,

"Regulation of Insurers": Provision shall be made by law.

And, again, that, you eecall we discussed last time whether

,L 4

it's going to be the General Assembly shall or provision

shall be made by law. That's a matter of style. And the

Select Committee itself will make that uniform, whatever it's

.;

going to be, for the requlation and management of insurers

doing business in this State. Now, we can accept that as it

is. Though I think we ought to consider the language of the

1970, if that~s the way we're going with that brief language,

those brief words there. The 1970 draft, rather than using

:1

the word insurers uses the words insurance companies. Number

~(;

one, is that a better phrase, more understandable than the

]]

word insurers? The 1970 draft also says for the regulation

of insurance companies doing business in the State. It does

not use the word management. And it seems to me that the

1,t

word management may really suggest more than the General

_.

1 ;:,.-

Assembly does. It is regulation. That's a traditional

-,

c,

1 i

(;

-;

word. And by striking "and management" it may simplify the

i -; .':".:'".' Constitutional provision and help in terms of meeting the

goal that Robin Harris gave us. So with regard to paragraph

j')

one my suggestion is -- of this Chair would be, strike the

word "insurers", replace it with insurance company and strike

the reference to management.

HR. TUPNER: Ouestion on that? We have no self-

insurers or we would have no need for regulation or law

qoverning them? CHAIRMAN: Self-insurers? Well, we do have -- a

PAGE 5

-----------------1

lot

of

institutions

are

self-insured;

that


1S,

hospitals

!I

j
for example and businesses too. But I think this would be

insurers insurance companies doing business in the State

would be those who sell insurance.

MR. TURNER: Well, what I mean -- what I'm

(,

concerned about is the fact of whether they are a company

or not, whether it might be an individual. If you have no

>\

problem with that, I -- I have none.

CHAIRMAN: Let's turn to Charlie and to Kanter.

lU

That would be the business of insurance, risk management --

-J

Z

,:

private risk management.

Mel?

MR. HII.L: There are independent brokers

,

j'r

insurance brokers in this state -- that have to pay a

l'
j)" license fee to municipalities. I don't know whether they

al so are requlated by the State or not. I think -- PlY

feel inn is the company may not encowoass the individual

, r;

1.}

hroker. And that, you know, anyone doing insurance business

.. ;

in this State, ah, and regulations of persons doing insuranc~

I

business, something like that, I think that would cover it.

But then you're not much better off than just using insurers.,

CHAIRMAN: Well, I would think legally that the

word "insurers" probably means a company in the business of

issuing policies of insurance, Mel. It would not include

brokers who sell for those companies. But Senator Turner

1'\(;; 6

puts his finger on a good point there.

Kanter?

KANTER BROWN: "Insurers" is the word of currency

which is used in the law throughout the insurance code. I that
think you do want to consider the possibility/by mentioning

insurance companies you are prohibiting the General Assembly

from acting with respect to any other type of insurer, if

there are such.

MR. CLARKE: Are you actually doing that, or isn't

this a mandatory -- a mandatory thing insofar as the General

u,.

1\

Assembly is concerned that they shall do this but not

restrictive as to other things they may do. For instance,

if an insurer is defined as being some company or -- or

somebody which issues insurance policies, I don't think that

that would limit the General Assembly from also regulating

insurance sales; would it?

; .,:.

,

.~":

Of course, we get right back to this business

of whether something excludes something else by being

1'i

specific.

20

MR. BROWN: I don't know. I think that's one of

those --

"J

The only purpose of a legal nature that I can

see for a provision like this is to try and put in the
l'
constitution to force the General Assembly to act in this

area. As we were talking in the last meeting, I personally

'1

PAGE 7

- - n--'-----~------"-

-

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

1

i!

don't feel like any of this language is necessary. It

doesn't really add anythin~. Nobody I don't think there

are any courts that are going to force the General Assembly

'I

to pass an insurance code. Clearly no General Assembly in

its right mind is going to repeal the insurance code. Again,

it's one of those instances where if the Constitution serves

as a check or a limitation on the powers of the General

Assembly, you really haven't served any purpose at all

because you're telling them to act in a field they already

have authority to act in.

1i

CHAIRMAN: Well, the purpose -- what is achieved

by this is paragraph 2 which says the Comptroller General

is going to do this. And I think we all have come to the

1,1

conclusion without really much discussion on it that that

meets -- must be retained in there. And it would be odd
~'".
just to float that out all alone. So the other is a -- is
1.
"" a prelude to it. It goes without saying the General

Assembly has that authority. The present Constitution

though uses the word "insurance companies." Are we prepared

to tell the full committee as to why we shift to "insurers"?

Is it just a matter of form or is there substance there?

MR. TURNER: Is there a definition somewhere for

"insurers"?

CHAIRMAN: It's not used in the present

Constitution. They talk about fire insurance companies, all

insurance companies, you know, different kinds of insurance

companies.

MR. TURNER: It just looks to me like the word

"f

"insurers" is a more-far-reaching word. It may not be quite

as understandable by someone picking up and reading the

Constitution, but I like it. I don't see any reason for the

"

word "management" being in there however.

CHAIRMAN: Mrs. Brent has joined us. We're

discussing the insurance regulation, Mrs. Brent.

MR. BRO~~: You do leave a little eit more

Ii - flexibility on the part of the'General Assembly to define

what insurer is.

CHAIRMAN: I'm not sure whether it's insurers

,,'

or insurance companies. Would we as a committee know how to

I)

define it though? And do we go beyond -- I would assume that

Ie

insurers and insurance companies probably means about the

1'i

same thing.

MR. TURNER: Insurers just seems to be a little

19

broader word in my estimation.

CHAIRMAN: All right. In response to Kanter's

-'"''I,'

point my thought would be that rather than define it, unless

we know where we go, the best thing is to pick that word, if

it's going to be insurers, and just travel with it.

MR. BROWN: No, I hadn't -- forgive me if I seemed

to imply that I was suggesting you define it in the

!'AGE 9

constitution. I think by using the one word, you do give

2

the General Assembly a little bit more flexibility in

<

defining it into law as far as its application.

CHAIRMAN: All right. I misunderstood.

Just leave it as it is. That really gives it --

All right. I would withdraw my suggestion that

we substitute the word insurance companies and we'll go with!

the word insurers.

Now, Senator, that is a change from the present

;0

language. So, ah, we'll -- our thought on it is that it's

a more broader term. Now, what that means, ah

MR. TURNER: Is there any reason

CHAIRMAN: -- I'm not sure.

MR. TURNER: I don't know I don't see any

,., 1. ~. .tl Q:
:J
; ::0 1'. 7.
',:"0

reason for the word management being in there, however. CHAIRMAN: Let's focus on that, "and management."

Are we -- do we have a concensus? I want everyone who is

here -- I think collective discussion is good, and then

I')

we'll take a vote. We can do it with committee members.

MR. LAMBERT: Mr. Chairman, my recollection at th~

last meeting was that maybe that was picked up by Senator

)-,

Holloway from -- and Harold Clarke reminded me of this a

minute ago that that word -- those words were used in the

appropriations' section that we were talking about, and we

sort of threw it in. But,I declare, that does worry me a

little bit. I agree with Senator --

MR. CLARKE: The General Assembly does manage

;

the appropriations but it doesn't manage the insurance

MR. TURNER: We don't want to get into

managing individual businesses.

MR. LAMBERT: I think that opens up something

there we might not ever be able to close up.

CHAIRMAN: All right. Is there any objection

then the committee members to striking the words "and

,.;

management" on line 53?

I-

i,

(No audible response.)

CHAIRMAN: If not, we will strike those words.

MR. BROWN: Mr. Chairman, I wanted to suggest

to you that in your review of this you consider whether

you feel you've added anything by using the phrase "doing

I

~,

"

business in this State." I think it's quite possible that

i,.
1-, 1: you may have an insurer who is not doing insurance business

in this State, although their administrative agencies are

here r but in fact are selling their insurance elsewhere. not
It just seems to me, although/very probable but possible, that

21

you're limiting our authority to regulate that type of

"",

insurer.

CHAIRMAN: Uh-huh.

MR. BROWN: And clearly we can't, unless we can

~,

.~.)

find some sort of rational connection between the State of

PAGE 11
regulat~l Georgia and business activity elsewhere, we can't
[
anyway under the Federal Constitution.

CHAI~~: Is that the kind of situation, Kanter,

where the reach of the New York insurance laws is very
5
! broad and even reaches down to Georgia because those insurance

companies are in New York?

MR. BROWN: Yes, sir.
8
CHAIRMAN: All right. If that's a concern, I

think that's a good point. Then the expression, perhaps,
HJ
.',. ought to be "insurers in this State or doing business in
1I .cu,..,: this State." Would. that pick up -- reflect your concern?
,i .. ""( MR. BROWN: Well, I -- I would just suggest the

possibility that really all you'd need is provision shall
1'
be made by law for the regulation of insurers. And then

I think that would give us the full breath of whatever

. I
I

(,

" .,

authority we have under the Federal Constitution to regulate

1-, ""

in the area.

CHAIRMAN: Well, let me ask you this, Kanter.
1'1
The rationale for paragraph one is going to be paragraph

two. In light of that what would you do to paragraph two?
11
It seems to me that paragraph two leaves something

hanging there. And what does the Comptroller General do?

He issues licenses to insurance companies or to insurers who:
.'.j
are doing business in this State. Isn't that what he does?
".

3
4
l
,",
.'
l.
li c. (.. Q

I
"

17;;1
.I".

"1

,<

J7

"1 ~~' )

PACE 12

MR. BROWN: Well, Constitutionally he -- he doesn't do anything else. I think you'd find that in terms of -- of the statutory basis for regulation of the insurance industry he really does have more far-reaching supervision, really day-to-day involvement in the operation of the

insurance industry, promulgation of regulations for fair

business practices and other things. I think the only -and there are some other attorneys around the table that are a lot more experienced than I am, and I want to defer to

them. But it seems to me that the only thing that that paragraph two relates to is the Act of issuing a license, and that ip fact the first paragraph does give the General Assembly broad authority to provide for the regulation of the industry in whatever way it feels appropriate. I think under that language it could provide for somebody other than

the Comptroller General to do that as long as the licenses

themselves are issued by him.

CHAIRMAN: Uh-huh.

M~. BROWN: Consequently I think it's just a

very minor specific exception to the broad leqislative

-- -- authority qranted in the first parag-raph or

or

not

granted, but mandated in the first paragraph.

CHAIRMAN: All right. The proposal then by

Kanter is to strike the words " doing business in this

-- State. " The present

present Constitution I think uses,

PAGE 13

,i

l "insu~ance companies in this State or doing business
therein", which would be equivalent to, "in this State or

I
I
doing business:in this State." And I guess, Kanter, again, I

your thought is that that is limiting, that by striking the

qualifiers altogether, we make it -- make it broader?
+- MR. HILL: Although my feeling about that phrase

Kanter, isn't this the case -- that doing business kind of

is the -- is the long-arm key for us? I mean in order for

us to be able to regulate an insurer, the insurer has to

be doing business in this State?

MR. BROWN: The traditional phrase that was used

in constitutional opinions was always that phrase, "doing

business." But really in about the last 15 years I think

the courts have gone beyond that to an extent, or at least

have not always used that phrase. You know, having a

connection now is the phrase that's used sometimes, having
a bona fide connection with the State. The specific instanc~
. 'J 1(;
that worried me was, again, this possibility of an insurer
'1
not doing any business in the State, as we normally think
~: t I
of the insurance business -- in fact, selling all their

policies somewhere else or being engaged in completely a

different occupation, but still having 50 percent income

from the insurance business, that possibly somehow we might
I
I
be limiting our authority. Now, I just suggest to you thai
I
!
since, again, every word in here is a limitation somehow
----'

PAGE 14

it has to be read as such. That if you if you can

2

eliminate some of those limitations, I think that's

3

adviseable when, in fact, what you're trying to do is

mandate the broadest, possible type of authority to

regulate.

MR. TURNER: You're trying to say that if

they were located in Georgia but not actually selling any

;\

insurance

MR. BROWN: Well, that was just the example that

J /)

came to my mind. Again, I --

MR. TURNER: But they would still be doing

business; their own business would be here.

CHAIRMAN: Yeah. But since --

MR. BROWN: The question is, are they doing an

15, insurance business in Georgia. It just seems to me that

16 ; there's a qualifier in there that you don't really need.

17

It's the Federal Constitution that would limit how far we

18

could reach. And you might want to just eliminate those

limitations from the Georgia Constitution and let us

expand to whatever breath the Federal Constitution provides

). ~l

or permits.

CHAIRMAN: Roy?

MR. LAMBERT: It's too deep for me.

(Laughter. ) MR. LAMBERT: I don't know.

I can't add much

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

PAGE 15

CHAIRMAN: My thought would be that probably

nothing is lost with taking the words, "Doing business in

this State" out. But the courts are going to impose a

4

limitation, which would be a Federal Constitution

)

limitation. And that's Kanter's point. And if somehow

or another these words are something less than that, then

are we not going as far as we want the General Assembly to

\

go. The assumption is that we want to provide as much

regulation at least as a constitutional authority as the

Constitution of Georgia can give. Is that a correct

C'

7-

Ij

assumption? If so, then I think that Kanter's suggestion

is probably one we should -- we should follow, that the

:,1 words are superfluous. All right. Is there any objection

striking the word, committee members, "doing business in

<:

::

i ~,

this State" in line l8?

::>
1e,,-'
C'l l

MR. LAMBERT: I have none.

CHAIRMAN: If not, then we adopt the Kanter

Brown proposal.

(Laughter).

CaAIRMAN: Put a label on that so

MR. BROWN: Name that the Senator Turner
')
proposal.

(Laughter).

CHAIRMAN: All right. Paragraph two, "Issuance

of Licenses." "Insurance lioenses shall be issued." It seems I

PAGE 16

to me that is a matter of style. Maybe licenses to

2

insurers rather than insurance licenses.

MR. BROWN: In a way you may be an insurer. For

1

instance, an agent isn't necessarily an insurer. As a

matter of fact, I think in a lot of instances some of the

~,

independent agents aren't really employees of the

companies; they're independent contractors.

CHAIRMAN: Then, Kanter, are you speaking in

Ct "

favor of the proposal?

10

MR. BROWN: Well, really in all respect speaking

against your suggestion.

CHAIRMAN: All right.

M.R. BROWN: That in fact you're not always

;,., < ;
I -"'
,.;-:
",:0
J 6 2-

t

,

I 1

.~ ;~

just licensing insurers themselves. You're at times licensing independent contractors who are selling insurance as well as employees and agents of insurers.
CHAI~~: All right. Insurance license is a

1Ii

new expression. It has not been used in the constitution.

,, ',j

What does it mean?

_'J

MR. LAMBERT: I think it's pretty broad. It

..

covers everything. I think this would he broader than, say,

licenses of insurers.

MR. CLARKE: Another approach to it could be to

turn the thing around. One problem I have with that
,
paragraph is, ah, to the unitiated who don't perhaps understand

PAGE 17

:i-~-~:~O~~~i:-: reaso~-:::fO~~~i~;a-;~graPhbeing in ther:---~\,

2i "

ah, it sure looks like surplusa~e. And perhaps it might

,,

\ i have a little more reason for its presence if it were turned!

4

around something to this effect: No insurer shall do

5 i business in this State unless it holds a license issued by

S

the Comptroller General as provided by law. Then it becomes

a prohibition on insurers doing business here as opposed to

a qrant of authority to the Comptroller General to do a

certain act.

JO

CHAIRMAN: All right. Then that language is

11 ,o0,-.=

! 2 ".~'

I~~/S'".-fJ<!'

~.

" ..... iI (7(..0.. ;'l\r\\~!!!~'

z
w

\ \,~ '-.

.// // ;

:;:

J.<o
t:
1S ,~,
".(
:'
:: 16 .:C i.:
1'. ~:

,
I"

"No insurance -MR.. CLARKE: I said, "No insurer." But I'm not
married to the words that I have here. CHAIRMAN: Kanter, what do you -MR. BROWN: I'm not really sure what I'm saying
is even rational about that. But is it not possible, in fact, under the Federal Constitution an insurer could incidently do business in Georgia without a license?

MR. CLARKE: You're asking me a question I cannot

2U

answer.

MR. BROWN: As a part of interstate commerce.

11
For instance, mail advertising? And I think what you'd be

,,

.:..)

saying is, for instance, Art Linkletter,when he's on TV, 'he

.'4

is in fact doing insurance business in, Georgia, even though

the program is beamed from New York. And I wonder if we --

i' A( ,l,: 18

if we can really go as far in State requlation as that

statement would imply. There might be some complications

.J

that we're not anticipating from that.

MR. TIDWELL: I don't think any life insurance

policy is offered for sale in this State unless Johnny

Caldwell says it can be.

MR. CLARKE: That was my impression.

g
CHAIRMAN: No matter how it's advertised here.

<,'
MR. TIDWELL: Now, that's my conception of it.

:0

I may be wrong.

I 1 -. 0; {)

MR. CLARKE: If it is, I don't think it ought to

be.

MR. TIDWELL: It certainly ought not --

MR. CLARKE: I don't think the Georg~a public
1:) ,"
:1 ought to be subjected to busineeses as complex as the
:":J
insurance business without some regulation by its government

rather than --
I~
MR. BROWN: What happens though when you have a
19
situation -- again, this may be totally far-fetched. I'm

just trying to think of possible implications. A company

that is not purporting to do business in Georgia, but they

are engaged in national advertising and that advertising

reaches Georgia through television or -- or whatever. And

it seems to me that in point of fact whether they intend to

PAGE 19

-

?

into a company to get insurance information. You know, I

3

don't know.

It

MR. TURNER: This as required by law, wouldn't

5

that cover that. I like the language that the Comptroller

6

General will issue all licenses to insurers as required by

law. I mean that, ah -- if it's not required by law that

he have a license, well, the Comptroller General wouldn't

l'

issue him one.

10

CHAIRMAN: Well, I guess Kanter's concern is

that we are setting up a standard in the Constitution which, !

ah, which would have to be litigated and finally if it does

go beyond what we can do in Georgia, then it would be --

:':; this clause would be limited.

5"

MR. CLARKE: Perhaps under those circumstances

,"f.:)

t..:l
i)

the language that's now printed there may be better.

:,

r;:

".:
::Cl

MR. BROWN: The other thing that comes to mind

is, what -- what if they do insurance without a license.

The only way you can effectively really combat it is

2tJ

some sort of criminal penalty. And, there, we're getting

I!

into that old problem of writing the criminal law into the

Constitution, which, of course, is within the perogative of

the Commission, but I think generally it's in disrepute.

CHAIRMAN: In light of that uncertainty, Harold,

I think maybe backing off. Your's turns it around from

.,
l
,l
.'i
b
'7 I
i\
9
10
~)
!
1] ~
0: Cl "'-

l'AW~ 20
assigning a function to placing a limitation on who can do business in Georgia .
MR. CLARKE: Perhaps we better stay with what you hao.
Cfil.IRHAN: All riGht. Can we focus the;l dgai'1 urJ insurance licenses. That's d new ter~. ;\re Wt~ ~i~J c0wfortable? That means -- it means sowethinq? ~nd if so, what?
I don't know what an insurer is. MR. TIDWELL: I don't believe our records are going to be any help to the Supreme Court on this because if we don't know what it means I don't know. Let them tell us. CHAIRMAN: Well, we do use the word insurers in paragraph one. We don't use it in paragraph two. Is there a rational reason for not using it in paragraph two? MR. BROWN: Again, I think you -- you're having a broader reach anticipating that you will be issuing licenses with respect to insurance regulations, even though they may not necessarily be issued to insurers. They may be issued to their agents or to their employees or independent contractors to sell insurance for them. CHAIRMAN: Is there any -- all right. I think I grasped that. Back to paragraph one. And maybe I really should leave it alone. Is there would there be -- in

1

PAGE 21

light of what Kanter has said, the broadness of paragraph two, saying rather than insurers, the regulation of the

insurance business?
il
>I
What are your thoughts on that, Kanter?

(Pause. )

You just said there's something broader than

insurers the General Assembly will have to concern itself

p,

and the Comptroller General. If that's true, do we need

to build it in paragraph one also?

10

MS. GREENBURG: As an extension of what

'.:J 7-
Jj , ;,;
:)
o. u

Chairman Walling said, would we just limit it to "of

insurance", and there's your the problem of business would

1-'t >.

(~
:x:
1:' ,~

\."\ ,::z.~

~ "

"
;::1

'. <.
~ 7'~

is

19
:,1
20

'"
., ,)

1
-f
.:s

be eleviated?

CHA~RMAN: The regulation of insurance.

MS. GREENBURG: Right.

CHAIRMAN: These are questions that may be asked

when our committee meets together. And it may be our answer

is we really can't say, except we just sense this is the way

to do it. We know it intuitively. And I'll have to accept

as a fact of faith.

"Of the insurance business" or "of insurance"?

MR. TURNER: Insurance covers a broad field.

CHAIRMAN: The regulation of insurance?

Of course, the ARticle is called "Insurance regulation."

__ Regulation of insurance

_ _-_ .

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

I i' 2,
"
-"
4
.')
(.
7 1',
0"
10
'-:J "
11 >--
IS ,~,
~
16 ~
o 'z.
<'
17;
19 2U
22 I
, ,,
24

MR. LAMBERT: Yeah, that gets it all, it looks

to me like.

CHAIRMAN: Kanter, you're kind of our expert

on this. Do you feel comfortable with that?

MR. BRO~~: I don't see a problem with it just

off the top of my head.

CHAIRMAN: All right. Is there any objection

then to s:trikin~ the word "insurers" on line 18 and saying

and replacing it with insurance, so it would read "for the

regulation of insurance"?

And then the -- paragraph two --

Hearing no objection, we'll deem that's adopted.

Then paragraph two would read, "Insurance

licenses." So the two somehow or another do fit together.

So when the court interprets paragraph one, it will of

necessity interpret paragraph two, whatever they interpret,

thinks it is.

(Laughter.)

MR. TURNER: I can't conceive of any necessity

for interpreting either one of them.

MR. LAMBERT: Well, are you going to change the

word "insurance" on line 18 -- insurers then to insurance

also?

CHAIRM~: To insurance

period.

MR. LAMBERT: I think that gets it.

~ o

F
q

10

11
.;,).

/2 .~

/~:,..i9_Y..lt,;,

.~.

/J :/. (.''.1~t,,'(~.!,i:..:..-..."~--\'> .'.\. E'_"""~

'C
,.

'~:.'/

,'

1 ~...

L

,, {;
c
T
, j "I ,.~'
1"

,'

PAGE 23

CHAIRMAN: All right. Then the title -~u~-I

be regulation of insurance, which is consistent with the

I
i

title of the section.

M~. GREENBURG: The committee that's revising

V, Section 3 -- "Other Elected Executive Officers" -- have

asked me to come to you. They're recommending deleting

Comptroller -- they're thinking -- excuse me -- they're

proposing or they're thinking of recommending deletion of

Comptroller General from the Constitution. And they asked

me to ask you whether or not you would consider the deletion:

of paragraph 2 if their proposal was accepted by the

committee.

CHAIRMAN: It seems to me, Vicki, that what we

do is really ministerial then. If they're successful over

there, then this of necessity falls. If they're not, then

this must stay in. So, it's really an editorial

MR. TURNER: Leave that to the overall committee.

CHAIRMAN: We can dodge that then.

MR. BROWN: It has been stated that the reason

for paragraph one is as a lead-in to paragraph two. If they

should delete the Comptroller General from the Constitution

you may want to consider deletion of the entire section on

insurance from the Constitution, rather than just this one

paragraph.

MS. GREENBURG: Uh-huh.

I

'

2

I

G

7

8

9

10

,'.-:,

I J ....

,~;

:..> _c

~

l? ~

~y.~,
((~);~""

~'L

,.~.--....

:>
16 'J:

I",.;
..:..

I.

17

<
k

1;,;

19

20 21
,,

-\.',
24

CHAIRMAN: Or putting it somewhere else. TJ\Tell, again, I think that, would be the -- that's the kind of coordination that will have to be done on up the line, will it not, Harold? All we can do is MR. CLARKF.: I think the decision about transferring to another place might be done up the line or in a cooperative way with another subcommittee -- for instance, Tim Sweeney's subcommittee. The decision as to whether it should be deleted altogether I think is one that would address itself to this committee if paragraph 2 were -- is it two? Whatever it is -- yeah, were taken out. I don't think there's any question that the General Assembly does have the authority to regulate the insurance companies or insurance, regardless of whether or not specific grant of authority is given to him. But whether we feel that there's a public need to leave it in is a matter that would address itself to this committee if paragraph two came out. So maybe that's something that would have to be determined at a later time. CHAIRMAN: In the meantime we need to act on the substance on what we agreed paragraph one and two should be, or rather the insurance regulation article should be and the form of that substance. And we now apparently have it, at least. It seems to me it's in form. We can go ahead and vote this out as a subcommittee if we're ready for that. MR. LAMBERT: I say leave it in and I'll move that

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

PAGE 25 --------------------------------------------,

we adopt paragraph one and paragraph two.

i

2

CHAIRMAN: All right. There is a motion that we

.)

adopt paragraph one and paragraph two as we have reworked

4

it. Any committee members need that to be reread? Do we

S

need to reread it for the record? Let me do that ~or the

"

record:

The motion would be that section IX, the Insurance

I

~

Regulation's Article be adopted as follows:"Paragraph one.

Regulation of Insurance. Provisions shall be made by law fot

the regulation of insurance."

i I ,-"

"Paragraph two: Issuance of Licenses. Insurance

~

~

J~) ~; licenses shall be issued by the Comptroller General as

required by law."

]4

MR. TURNER: I second the motion.

CHAIRMAN: There is a second.

:.:.'
J(J ~
':l 1
~;' '";

Any discussion? (No audible response.)

CHAIRMAN: All those in favor say aye.

:9

VOICES: Aye.

l 'J

CHAIRMAN: And all opposed say no.

2,.

(No audible response.)

CHAIRMAN: And the section is adopted as read.

Now, we can turn to our appropriations paragraph.

And our expert here, Mr. Pete Hackney.

MR. HACKNEY: I don't think there are any experts

(~
7

10

I..:i 7.
1j -
x,

3

L' '"

(\~~~~)~)~)

,~

o

-'
:
J

\ -:-:-YI

t,)

!-.
,

l'

15 "

1tl '2
'.J
~
Z
, ,.- ,:.:
1/

21 22
24

PAt;F 26
on appropriations, Mr. Chairman. (Laughter) CHAIRMAN: We've got to have a scapegoat. If we
get into trouble, we can always turn to our expert. Make sure we have Kanter there when we meet on Monday.
Kanter, that's helpful. Appreciate that. All right. Turninq to, I guess, the working document we start with is what Vicki sent out, the existing appropriations' article with the deletions and the additions. Now, let's go down through. And I think the thing to do is to run over these paragraphs again so we can -- you know, even though we covered them quite quickly, no problem at all. There have been some editorial or stylistic changes made. We need to reread that again. If there is no objection, we'll consider that paragraph adopted until we get to the ones where we do have some serious questions to consider. Paragraph one. Take a moment to read that. Is there any comment that anyone wants to make? Any proposal? Any question to be asked of Pete, staff, Kanter, Cindy, from Frank Edwards' office? MR. HACKNEY: You're changing the "t" to lower case, aren't you, Mr. Chairman? CHAIRMAN: Right. And that's a stylistic change really, which is being done throughout

PAGE 27

MR. BROWN: It's an attempt to bring the
'2
editorial appearance of the Constitution into line with

.,
:'
II
t>
7

I) I)

JO

1I 1'

1-

'o"

"-

'-'.1

J 2 :~

.~~):c.~",t(d,\

l-

1\'':\:~.,~\_:=1:)>)V~'~!C"-' "~: .

H ,.

;'1
<' J:
15 ~

-'
16 '~ ;..;-1
C\ l.

that that has been adopted for the new code of Georgia MR. LAMBERT: No problem with me. CHAIRMAN: All right. Paragraph one, no
objection. Paragraph two which relates to the reporting of
yeas and nays, we recommended last time that be transferred to the procedural sections of the Legislative Article.
MR. CLARKE: Let me ask a question in that connection, Mr. Chairma~. Personally it seems to me that that is one that could be well left out anyway, for this reason: It says that you have to have the yeas and nays upon the passage of the appropriations bill. My experience has been that you never have more than one or two votes against the appropriations bill anyway, on the passage of

it. The key votes are always on the sections and the

amendments. And if that's the case, why is it so important

to have yeas and nays on a bill that ends up being passed by
.20
an overwhelming majority each time?

MR. TURNER: I think the yeas and nays are sort

of inter~retted as heing a recorded vote.

MR. CLftRKE: That's right. That's true. But why

is it any more important on a bill that's always passed by

PAGE 28

which are passed close? And since we're trying to weed out

2

unnecessary, ah, sections in the Cunsti hltion' --

3

4

with the SerIate not cretting it until real late for it to be

~

not passed. And the yea and nay vote might have been very

u

important.

7

MR. HACKNEY: In line with what Senator Turner

8

is sayin~, Mr. Chairman, in the House, Harold, in Sloppy

9

Floyd's last session, he came within six votes of having the'

10

conference committee report on the bill defeated.

MR. CLARKE: Is that a vote on the passage of the

bill or is that a vote on --

MR. TURNER: That's the final vote.

MR. CLARKE: I know. But I mean what is meant

15 ,~

':-):'

:'
16 rAJ 1.. ~,

Ci

I

<'

17

i:;: x'

by upon its passage?
MR. LAMBERT: Well, I think that would be upon
,
the passage of the entire bill. It has changed a little bit:

I;'

in the last few years. It has gotten aht more people to

J,)

MR. TURNER: They had to go outside and caucas

:20

two or three times to get a quorum -- to get a majority vote.,

21

MR. CLARKE: I have no feeling about it. I'm

,..,,..,
just looking for things that we could get out of here.

2J

MR. LAMBERT: Transferring it, of course, to

ARticle 3, section 7, no quarrel about that.

)i

MR. CLARKE: Yeah, is where it ought to be. No

,,-'-""----''''''-- - -
\1

PAGE 29

,I question about that.
"

-
'-

MR. LAMBERT: But I think you're geing to run

3 ,i

" into a lot of trouble if you take the thing out altogether.

4 ,I
'I

MR. HACRNEY: I'm certain from what Senator

I

')
Holloway said last week or two weeks ago at this table tha~

6
he's not going to find that acceptable at all.

'"I
CHAIRMAN: All right. We have punted, Harold.

:1
And I -- how do we --

"f
MR. CLARKE: All right. I didn't know whether

10

~l

1I ;:

o'"

<l. w

1) '"

_. -<

' .. '

'<:,, .//,./ '. /1' :: _~'0~~'-~r;--d,

~:

,'~,\
\! \IJ\.,,'b' ";'J" \I,),r"-..,-.. ''.0

u,~

1

J4 ~

,"

1:

1,I

:.>

'.oJ

,~:

16 'z"" w

Cl 'z,

<

'" I

iL'

~)

"

I I

C)

20

2J
.,,,

you might send it to them with any recommendations, is what I was saying. I hear what you're saying.
CHAIRMAN: All right. I think the concensus is, no recommendation. And how do they receive this? Do they --
MR. CLARKE: They have already received it. CHAIRMAN: They know we've punted, and they caught it. (Laughter. ) CHAIRMAN: All right. Paragraph 3, the changes there, Vicki, Ranter, and Cindy are editorial or stylistic, are they not? It is

,.''.). )

correct, is it not? In the existing Constitution, yes,

there are only

2",

MR. BROl'1N: The one change there on lines -- are

:2 3

4 5
(,

7

8

9

10

"7-
11 -
"(,
"-
VI
12 " .i
~))'''' /~S~\ v<:,
'-'~,

14 ,.I.

t:
,":<r:
15

C:l

'=">

16

,:':1
:z:

Q

z

<

'" 17 CI:':

11)
I;,i
19

20

2l

'))

24

CHAIRMAN: New paragraph two. MR. RROWN: Lines 19, 20, and 21. We have deleted there what was felt to be surplus language -- the language, " operate all the various departments and agencies, and to " So it would just read, ..... funds necessary to meet the expenses of the State for the next fiscal year." CHAIRMAN: All right. Any-MR. BROWN: I don't believe it changes the meaning. I think the other words were just surplus. CHAIRMAN: Editorial changes. All right. Any further comments on old paragraph 3, new paragraph 2? MR. TIDWELL: Mr. Chairman, you've deleted the fiscal year. I think that's of sufficient magnitude that it's right important that it be put in the Constitution so you bring some stability to -CHAIRMAN: All right. Charlie, where are you now? Oh, leave it -- I'm sorry. You're right. MR. TIDWELL: I thought you were ready to call the vote on the whole paragraph. CHAIRMAN: No, I'm sorry. We moved from "A" down to "B". Charlie is right. There are several subparagraphs. All right. Subparagraph "A": it refers to fiscal year, but we don't get to the setting of the fiscal year until we get down further, elimination of it. All right. "A", any prob1~

PAGE 31

or any comments on "A"?

-I.

(No audible response.)

CHAIRMAN: All right. Now we move to "B." Is

that where we do that, Charlie?

MR. TIDWELL: Yes.

CHAIRMAN: And your point is? The setting of the

fiscal year.

MR. TIDWELL: Right.

There might be -- the editorial comment that we

might want to get with the Feds. We might want to get with

anybody, so that -- so that all departments and agencies

know wqat their fiscal year is going to be. I tlilink that i tl,

ought not be left to -- to be -- being subject to being

1S .')

.J
;}'

i6
..I')

<-:

'1

~'

A. J

''':'j

1,

switched back and forth. If there is a good and cogent reason for changing the fiscal year, then then the Constitution could be amended to do that.
CHAIRMAN: Kanter? MR. BROWN: Mr. Chairman, in all respects to

Charlie, we had mentioned at the last meeting that, of

\0

course, the Federal fiscal year is October 1st-September 30th.

.).

.
1

We even have local governments in Georgia, a good number of

1 .~

municipalities and even some counties, who have adopted that

Federal fiscal year due to the impact of federal funding on

the operations of the various divisions of those local

PAGE 32

established in a constitution. I'm sure there are some

2

other ones, although I'm not familiar with any that do,

3

personally. It has been my understanding, and I think a

4

number of others, that one of the goals of the new

5

Constitution was to wherever possible provide the flexibility

6

for statutory change without the need for the very expensive

and complex recourse to a public vote on everything. And

I do think this is a good example of the possibilities of

9

being able to avoid that very expensive and complex process.

10

It is true that you do open up the possibility of some sort

'?

1i _.
'~"

of political issue getting involved with changing the

o

w

0:
fiscal year. But on the other hand, any attempt to do that

would have to pass the General Assembly by constitutional

_. ~ajority and either be approved by the Governor or overridden

'n

<c

1:

15 ~ by a two-third's vote. Now, that's a very serious check

CJ

".,

11

JU -, and balance right there. It's not something that could just

.:i

7.

.., 1I

~
'"

be done by slight-of-hand on the spur of the moment. And I

1k

would suggest to you that it is something that the trend is

19

toward adopting the federal fiscal year in government across

20

the country. We already have local governments in Georgia

21

that are moving towards that trend. And I suspect -- and

"')
I'm not saying in the next year or two -- but in the not too

distant future there may be some serious consideration

given to doing that on a state-wide level. And I think you

could still preserve the appropriate checks and balances and

PAGE 33

'f----------------------

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

---------

j:: yet delete the -- this provision from the Constitution.

II !I

'I 2 :1

CHAIRMAN: And, of course, we don't provide that

II

d
3:

it would -- could be -- could fit the federal year. It

,I
!I
.+ 'i could be whatever whatever the General Assembly in that

:1

)

i
"

particular year might want it to be, which I guess is

"

;1

6

Charlie's concern. Is that somehow or another it could be

-,
I

manipulated. How, I don't know. I know that in private

8

business you can fiscal years that you shift and get tax

'J , advantages as a result of it or the advantages that an

]D

incumbent governor, particularly a General Assembly, could

get by manipulating the fiscal year this year and then the

next governor coming along where the next general assembly

would suffer as a result of that. And I don't know the

1 1 >-

,~ "
<!

I

5I
I

:>

c.,

:'>"
1() '7"-

"a'

7-

17

;)::
,~

answer. It's just a question. MR. BROWN: I don't think that in looking at
other states that you would find that this has amounted to a great problem. The vast amount of money that's being

I
1

,~

dealt with in most circumstances I think makes it practically

I

1\)

impossible to gain an advantage by some sort of easy

20

manipulation of the fiscal thing. It's the type of thing

2~

you have to plan for to be able to do.

...,-~ ,

CHAIRMAN: Pete, do you have any thoughts on this

::'3

point?

::"(

MR. HACKNEY: The state has probably reaped a

.~~;

little benefit from the fact that our fiscal year no longer

lL_"._____. __

PAGE 34

coincides with the Federal in that in years past the

Federal Government would have certain appropriations

3

matching appropriations -- expire on June 30th, which is

when our's did. And although we really didn't anticipate

this when they did it, we now find that if we don't have the

State money on the end of our fiscal year on June 30th to

",,

match Federal money, if the Federal money doesn't expire

for another three months, we've got another year's q I appropriation then and this has made rather impressive sums

]0

of Federal funds available to us, since they've been on

their new fiscal year. Insofar as the manipulation that

Charlie and the Chairman envision here, we, too, can see the

possibility of manipulation. For example, quarterly returns,

by definition, come in after the end of the quarter. And if

J:; ,~, a Governor, for example, were to decide that he wanted to

, ~I

ex:

':1

IfJ

OJ
1

C'"

greatly boost his income for one fiscal year, then perhaps


]7 I"l' getting into recurring expenditures of some sort that help

l ">'

a tax increase on the public or something, the thing to do

19

would be to move it forward just one month because then you

20

have this huge influx of quarterly tax returns that would

21

hit at the tail end of July after the end of our fiscal, so

you get more than a 12th's more money, is what I'm saying.

Now, is any C~vernor going to try to do that? Gee, I don't

know. I don't think the present one would. I doubt if the one before him woudl. I'm not sure about some of the ones

before them.

PAGE 35 -----_._------,

(Laughter. )

3

MR. LAMBERT: How about the one next time?

MR. FmCKNEY: I'm not sure.

(Laughter. )

MR. BROWN: Mr. Chairman, I hadn't meant to

:

suggest that I was endorsing or encouraging change in our

8

fiscal year. I don't think that's the issue that you all

q' ~re faced with. I think the issue is whether it's proper

lU

to completely restrict the normal process of law in changiJ7.g

] 1-
'o"
o.

~

1 -,

.',

j oW

~I

the fiscal year for whatever reasons are determined appropriate.

I would like to point out in response to what
,)
"
14 ~ Pete had to say that the Governor cannot just change fiscal :,~; .( J..
1:) ,~) years. It requires a constitutional majority in each

:J

';0.1
16

house of the General Assembly and the Governor's approval,

C
<.

~
.y. or in the event he disapproves, a vote of two-thirds of the

members elected to each house. The Governor cannot just

switch a month on fiscal years. But as I say, I'm not

i arguing that we should change the fiscal year. What I'm
Ii

2i

suggesting to you is, the appropriate place for it to be

determined is by the General Assembly written into law, and

that in fact there may be legitimate reasons that a

responsible General Assembly could base their decision to

switbh to another fiscal year. And I give by way of example

2

j

I

4
)
6

It)
, , ,,..
.1

14

,~

.I:

S 1
I

~

,'l u:

-"
1 !~ () 1-

1.J L
" I 7 ".,.

1~

i9 i'
2u

21

)<,

PAGE 36
the trend around the country and in Georgia on the part of local governments toward the Federal fiscal year.
COURT REPORTER: Pardon me. I need to change the tape.
(Off the record at the request of the court reporter.) CHAIRMAN: We've heard a good discussion here. MR. HACKNEY: Well, Kanter's original proposal sounded logical to me, but -- I mean I know that you all have had a lot of experience with this thing, and I'd have to give consideration to it. But if the General Assembly continues to set the fiscal year, we could set it just like it is and we'd still have the advantage of this Federal money that you're talking about. It's possible for a C~vernor to have enough influence to change this thing. MR. TIDWELL: The General Assembly and the Governor do not allow~ work to the best interest of the public. Now, this General Assembly and this Governor has. But those of you who were present at the last meeting, Clark stevens, who is the Director of the Office of Planning and Budget, also is concerned about deleting this provision of the Constitution. He feels it brings stability to the appropriation process and everything that goes with it to have a have it. And it's -- it's easy enough to change this, if there's some good reason to do it and it's in

I r - - ~ ~ - ~ - - -,~'

---_.---_._---'

j

H
I.I,

the public interest to do it.

"

'i

)

"
Ii

CHAIRMAN: Any further discussion?

PAGE 37

J

MR. BROWN: If I could just one last thing. I'm

-1

not sure that it's a fair application at all times to raise

:,

this particular question, but I think that since it was

6

such an important part of the genesis of this Constitutional:

:

7

revision effort that you have to think in terms of what a

2- i voter is going to think walking into a voting booth and !I

(j

being asked to vote on whether the State should change its

Ii)

fiscal year. And it's difficult for me to see an average

or even a highly informed voter in the State of Georgia

thinking that that's that he should even be bothered

with that question. It seems to me there are far more

1. ~~ ,.

,:

1:
I c, :>

',~

':">

] '1

",
L

,~

.

"~
q
C(.

I~"

important implications in our appropriations and constitutional processes that are left to the discretion of the General Assembly than the question of a fiscal year.

I;

CHAIRMAN: Kanter, let me ask Charlie this.

Ii

Ii Charlie, do you think if we had the qualifying clause --

'2U

we set it in the Constitution, unless -- the concept would

,i

be, "Unless otherwise changed by law to conform to the

,',
Feeeral fiscal year"? I'm just thinking outloud. I was not,

trying to pressure you one way or another. What's your

_.

~. __ ,

.

..l

4 5
G
7 Ii 8
<) I
10
,
11

~
1:
15 ,~,

<.,< :)

16 '""2:
'a.'

Z
<

]!

."(,
:::

]K

19

20

21

24

PAC; F 38
leaving it to be flipped-flopped from one year to the next for whatever manipulative reason might I can't envision what these manipulations might be. I take it there ought to be some degree of certainty about what the fiscal year is going to be. Your proposal is either going to be July 1 or October 1. And that brings that concept in and allows that to be changed without a constitutional amendment. The only other one I can see would go to January 1, July 1 or whatever the federal is. It seems to be the only reasonable basis of having any change. But just to leave it where we're -- where if the General Assembly and the Governor got together and tried to do just what Pete said, to just keep changing it so we'd keep getting the steam rolling up and the folks not knowing what in the world is happeninq to them.
CHAIRMAN: All right. Well, let's see how we can get at this, naIrow it down a bit. As Chair, I would rule that -- I think the burden since the existing constitution does provide a fiscal year being set, the burden would be on any mO'r(>~'' t.O delete that rather than to delete what is in the draft; that is, if there is a motion to delete any setting of the fiscal year in the constitution, then that motion would have to carry by a majority to be incorporated in our draft. If such a motion is defeated, then we would retain in the draft that we propose

PAGE 39
- - - ----- ---------------1

to the committee, the setting of the fiscal year. And

!

then we can deal with the questions of whether we want to

3

qualify it or not.

,i

Now, is there a motion to delete the setting of

5

the fiscal year in" the draft we propose to the committee?

b

(No audible response.)

CHAIRMAN: All right. Hearing no -- no motion,

;\

then the -- and consistent with the ruling of the Chair,

o

no motion is necessary to retain that. And that effect

10

is that we do retain the setting of the fiscal year. Now,

]j >-
o'"

having it set, is there any -- any desire on the part of the

.>-

'" 1 ')

:l;

committee to qualify it to allow or to have -- to allow it

1-". ~

v.
<: r
is .~

,-,'; :;,

JU

l.J
'1
:...:

Cl
1:

1,.". ,.,,:.:::

, ,O'j

to conform to the federal fiscal year? Or do we prefer to leave it just as it is?
(No audible response.) CHAIRMAN: And, again, the burden would be on any moveant to pass that motion,otherwise it remains as it is.

~ L)

(No audible response.)

CHAIRMAN: All right. Hearing none, then, ah,

:: [

the time being we consider our -- our draft as restoring

lines 29 that is the sentence begins at the end of

line 29, 27 and 28. All right. Right there weill stop.

There's something a little garbled there, isn't there, Vicki

.-. )

and Kanter, Cindy? " by enactment of a general " Oh, I

PACE 40

1

see.

2

MS. GREENBURG: That's added language.

3

CHAIRMAN: Okay. That would not be appropriate

4

then. If we keep in the fiscal year, then by enactment of

.'

the general appropriations Act and amendments to the Act,

6

that --

7 :!

MS. GREENBURG: Right.

8

MR. BROWN: I think all you'd need to do is just

q

move that wording that's underlined up to the words,

]0

"next fiscal year" appearing on line 26.

,-"
7-
11

MS. GREENBURG: Right.

MR. BROWN: And then have the sentence that

delineates the fiscal year to follow that.

CHAIRMAN: All right. Now, aside from the

1~ '" substance of what we're doing then -- that's something we've '.;i ~ :;1

1() ~

got to decide upon, whether we're going to confine it to a

'z"

"" , 7 <: ,",

general appropriations Act or not. Does everyone understand

1;')

how it will read? It would now read "(b) The General Assembly

1:.;

shall annually appropriate the funds necessary to meet the

:0

expenses of the state for the next fiscal year by enactment of

21

a general appropriations Act and amendments to the 'ct. The

2.)

fiscal year of this State shall commence on the first day of

July of each year and terminate on the thirtieth of June

following. " Am I correct in assuming that when we add the words,

PAGE 41

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

-----------1
I

"by enactment of a general appropriations Act and amendments

to the Act", that those are the words by which we make the

decision if adopted to exclude supplemental appropriations

act from the Constitution, or do we face that issue some-

5

where else? I know we face it again, but is that the fi~$t

b

time? Is that -- there are two tied together there.

7

MR. BROWN: That's the first.

CHAIRMAN: All right. Can we -- and this may be

i: the point. Can we defer that portion of "B" until we get

10

on down to -- to the more full -- the sections which discuss

o supplemental appropriations more fully?

"-

w

'2 .~

MR. LAMBERT: I think so because maybe -- may WaIl~

to come back to it.

CFAIRMAN: All right. Subparagraph C, the

J 5 ':>

," changes there are editorial only. Any comment?

.)

JL, ~

'z"".

(No audible response.)

<

(f

I

CHAIRl1AN: All right. If not, we'll move on

down into paragraph -- old paragraph 4, new paragraph 2.

MS. GREENBRUG: New paragraph D.
2U
CHAIRMAN: All right. It would be -- all -right.

Old paragraph 4 becomes new paragraph 0 of new paragraph
,"
2.

MS. GREENBURG: Uh-huh.
";.:
CHAIRMAN: All right. It looks like the only

PAGE 42

take a moment and look at them.

2

MR. BROWN: Actually I think the language that's

3I

deleted on lines 2 through 8 of the second page is more

'i

than just editorial changes, although I don't think that

5

they really change the substance of the law.

6

(Brief pause.)

CHAIRMAN: Isn't that -- all that"fixed by

3

previous laws , the ordinary expenses" just another way of

9i

saying to meet the expenses of the state, which has alre::.lC::Y

10 \z.)
II

been said? ~lP. BROWN: Yes.

CHAIRMAN: All right. Any COmIDEnt in regard

to new subparagraph "D"?

VI
<': To
15 ~" -"

16

n
:z

c
2'

-<:I,

17

,y
"

MR. TIDl~LL: I'm somewhat concerned about deleting that phrase "by previous law" and simply saying "fixed by law." And I'm not sure what causes me to worry would necessarily follow. But now that -- that meaning of

18

that phrase is often invoked for the proposition that you

19

cannot legislate in the appropriation Act. The appropriation

2U I'

Act is simply to appropriate funds. And I think that's

21

clearly what that present provisioh in the Constitution

2::2

says and what it's interpreted by the Attorney General to

23

mean and to say you can't do what sometimes is tried to be

.;.t

done.

25

CHAIRMAN: Well, Charlie --

n~--~ ~- -~~.--
1 I: :1 iJ
2 II
.3 !

PAGE 43
MR. TIDWELL: And if you excuse me. CHAIRMAN: That's all riqht. MR. TIDWELL: And if you just simply say, "

4

except appropriations fixed by law" and that change then

5

can be interpreted to say, well, fixed by law; the appropri-

b

ation Act is a law. And, therefore, you can now, ah, do

7

things other than appropriate in the appropriation bill.

8

And if there's any possibility that that is the constructioni

9

that that change could be made, then -- then I think the

subcommittee very, very seriously has to think about that.

;1

MR. HACKNEY: Could you just put a period after

appropriation?

14_
~
,
r
15
')
'.'!':
::>
! D "?' " ~ ":
1 7 1:1': <XC
I ,

Charlie.

CHAIRMAN: That really makes it -MS. GREENBURG: Uh-huh. CHAIRMAN: That makes it even stronger. MS. GREENBURG: Yes. CHAIRMAN: In the direction you're advocating,

MR. TIDWELL: Shall embrace nothing except the

appropriations

' I

CHAIRMAN: All right. Any objection from members I

of the committee adding a period (.) after the word

:2.1

app+opriations on the second line and striking

MR. BROWN: I'm not sure about this, but, again,

you may want to consider whether by deleting that you have - - _ . ---------~---~--

deleted the requirement that you the affirmative

2

requirement of having a separate law.

3

CHAIRMAN: A program to which that appropriation

4 i is attached, which is a different point than Charlie is

5

talking about.

bi

All right. How about that? Can we --

7

d
"

MR. BROWN: You might want to consider possibly

8

I don't know. I haven't really thought this through --

"shall embrace nothing except appropriations fixed by law other

10

than the appropriations act." Something like that.

CHAIRMAN: Well, in the Federal Government it

would be appropriations authorized by previous law. The

authorization comes along and then the appropriation. Now,

,-
v,
.r<.
1S ~
\~,
:0:1:
Ib III Z ~,
0z. < 17 ",
Il1

ah -- and that may really be what fixed by previous law gets at, Kanter. It seems to me that we're moving back Or appropriations for purposes fixed by previous laws. Is that the concept? Appropriations for the purposes?

18

MR. BROWN: I think that those words are the

19

source of our affirmative requirement that we have a

20

separate act in each instance, specifying the purpose for

21

which the funds are to be spent and how they will be

))
administered. It just seems to me that theoretically you

2.{

could just appropriate the funds and specify in the

24

appropriations act what they're for and not have gone through

25 i that second process. Although I do believe in Georgia there

PAGE 45

has been a great respect for that dual legislative

'2

requirement.

CHAIRMAN: All right. Now, one can argue though

<[

when you say nothing but appropriations that if the

General Assembly tried to set the program up and the

Ii"
i)

appropriations bill itself, that that would be

unconstitutional and the whole thing would fall, which is

k

another way of saying, necessarily the implication by

o

putting the period (.) after appropriations is there must

I

1lJ

be something to whic.h that appropriation attaches, something

which is authorized which has to come before. You can't

appropriate a program that's not in existence and you can't

create the program in the act itself. So that by saying

appropriations, we do that, ah -- accomplish the purpose tha~

1'>" ','i

:>
1''';'1
i 'J 1I~!
(,
,,.

7j

~ ,:!]

we have to accomplish here, Kanter. I'm thinking outloud. I'm not doing very well.
MR. BROWN: I was just saying, I just don't

know.

CHAIRMAN: All right. Pete, what are your

20

thoughts on that? Is appropriations -- when we say

~)j'

appropriations period (.), that means its got to be

22;1 authorized. You can't authorize it in the bill.

MR. HACKNEY: This is my understanding of the way

the Attorney General in his Crooked-River decisions and

others with which I'm sure Charlie and Kanter are both very I

1 ....__ -

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

PAGE 46

i

familiar

CHAIRMAN: That's a bad title.

MR. HACKNEY: Is that the appropriations bill

4

shall contain nothing except the appropriations. And that's

5

why we suggested putting a period where we did.

MR. CLARKE: I'm a little frightened by the

possibility of somebody saying, "Well, you don't need any

~:

prior authorization for it." Maybe I'm unduly frightened.

But I wanted -- even if you went a step further and added

iU

a sentence right after -- put your period after appropriations,

and added a sentence something to this effect: "The bill

shall not include any appropriation unless the purpose of

such appropriation has been authorized by previous law."

14 ,_

MS. DOYLE: Could you not just say, "except

,'. authorized appropriations"? In that same sentence?

:,

: ~1

i(; !.
.:,

MR. CLARKE: Yeah

,'-

,j

Ll'

MS. DOYLE: "Shall embrace nothing except

L'::

authorized appropriations"?

J9

CHAIRMAN: Except we don't quite do what the

~)O

Federal Government does here in Georgia. We have sometimes

2;

where we create the authority and then corne along and fund

:.'

it later long. And that two-step process always take place

1;
in the Federal Government, does it? But it doesn't here,

.1:.,.k!,

does it? We deal with purposes and programs and don't r8all~

get down to --

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

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

MR. CLARKE:

PAGE 47
- -~-~----~-- ------ - - - - - - - - - - - - - - - - - - - - - - - ,
I use the word "purpose" in this. \

-

And, again, I don't know if that's the language you want

I
I

.;

to use. But I worry a little bit about not having a positiv~

4 ii, statement for the necessity for some other act.

:;

CHAIRMAN: How about -- rather than the second

(;

sentence, though, Harold, rather than -- in picking up Mrs.

")'

Brent's idea in using the word "purposes" rather than

!

~-'

authorize, "except appropriation for purposes fixed by

:i
l) I previous law" or something like that? "Except for

purposes " -- what's the language there?

11 0.:

by previous law, fixed by previous law"?

?'

" establishe4
I i

It looks like something was left out in the

original draft when it says, "appropriations fixed by

previous laws." It looks like maybe they really ought to r"
have had the word "purposes" in there. "Except for

;;,
1() Cd purposes fixed by previous law." Any reaction to that
,-j

~,

.y

one way or the other?

MS. DOYLE: Would that not be the same as

19 I! authorization? I don't know.

CHAIRMAN: Well, if I'm right -- and I'm not sure

21

if I am -- the authorization kind of focuses in on a -- you

think of it in terms of specific in the way the federal

process. They authorize, you know, ten million dollars for

'I

Cumberland, but it's nto appropriated until a year or two on i

down the line.

~-- --- ------------------------ - ----,,----------------

----!

PAGE 48

MR. TIDWELL: Read to us again what you think

2

it ought to be?

3

CHAIRMAN: "The general appropriations bill and

,+

any amendment to the bill shall embrace nothing except

"

appropriations for purposes fixed by previous laws."

I)

Charlie, reaction?

MR. TIDWELL: I'm more comfortable with that

8

than just stopping with appropriations period (.).

"

MR. BROWN: Did you say provided by --

CHAIRMAN: No, just just "for purposes fixed

by previous laws."

MR. LAMBERT: Which ties in the two-step proposition.

CHAIRMAN: All right. Members of the committee

1') ,~', :1 .1;
" I r, ,"";1
"
'-I
2:

do we want to wrestle with this some more? Do we feel uneasy? Are we focusing on the suggestion I had given you?

1,

MR. TURNER: I like the suggestion that you

, \.J

made.

MR. CLARKE: I think -- let's think a moment about

..Iun

the difference between the words "fixed" and "authorized."

I don't -- somehow I like the word "authorized" better. I

don't know whether it has a different meaning. MR. BROWN: Could I suggest a reason not to use

"authorized"? MR. CLARKE: Please.

lr------.

PAGE ~9
-~~-~~OWN:---;~~ C~~~~-i-tution its~~;---~~~::-~~::e:-s-l

I'I!

il2;1

the State to s.pend monies for given things. And I think

'I

!I
j :1. technically at that point you already have your authority

i

't

to spend it. I think fixed requires that you have exercised I

!
I
your authority by some previous law, because the constitutioq

(\

I'

I:1'

itself is a law.

i

MR. CLARKE: I was looking for a reason. You

gave me a reason.

(Laughter. )

10

MS. GREENBURG: Is there a distinction between

a purpose fixed by law and an appropriation fixed by law?

MR. CLARKE: Uh-huh.

MS. GREENBURG: So "purpose" would be a safer -.,

CHAIRMAN: That would relate to the program the

General Assembly --

'<~'

;.

i () ~
,".:">

MR. CLARKE: Appropriation is the setting aside

i; :'~-: 0 f the money i tsel f, where the purpose would be the proj ect

i

iH

for which it project or projects for which the money WOUlj

1')

be set aside.

i

20

I
MS. GREENBURG: And laws don I t fix appropriations ,i

2J ! they fix purposes, the previous laws they're speaking of.

Okay.
LJ

CHAIRMAN: All right. Any objection then to

the adoption of subparagraph "0" as I read a moment ago

with the essential word being, "for purposes fixed by

-+ I
()
-I h
10

"....~
1:
15 :.

:1

""' 16

':0
:l.

~,
c

.

, '- ! 7

[.1:

I ov I

19

20

2l I

" I.

previous laws"? (No audible response.) CHAIRMAN: Hearing none we'll move on then to
new paragraph 3, which is old paragraph 5. Let's take a moment. I need some orientation on this. Let me take a moment and -- we can all take a moment to get oriented to this.
(Pause.) CHAIRMAN: All right. This is the provision, is it not, that says the appropriations bill is -- the appropriations Act will be an annual act; that's the thrust of it. It is not the purpose of it. All right. Do we make other than editorial changes here? Members of the staff, members of the committee? MR. BROWN: Could I CHAIRMAN: Kanter? MR. BROWN: -- suggest? I don't know. It just occurred to me sitting here. It's possible that you could boil this entire thing down to the caveat of the first sentence and the substance of the second sentence. "Except as otherwise provided in this Constitution, appropriations remaining unexpended shall lapse upon the expiration of the fiscal year." I don't -- you really don't, I don't believe, necessarily have to have the constitutional authority for it continuing in effect as such, it's when it stops being

PAGE 51
-- ~~------- - - - - - - - - - - - - - - - - - - - - - - - - - - - -----
I
effected that your consitutioftal concerns, in terms of

limiting it to an annual. And I think you might be able

language

-,

to fairly easy work out some / to delete that middle

clause.

CHAIRMAN: You think there's any value to the

(J

to the lay person to say that it is for a year and then

7

expires? And then we say lapse, which is another way of

P

saying that in technical budget language?

MR. CLARKE: I think you're talking about two

10

different animals. The bill -- maybe expires is not a good

l? 7.
word, but the bill ends at that time but the monies lapse.

The effectiveness of the bill ends and then the monies

lapse are two different things, it seems to me.

MR. BROWN: But isn't the meat of it the lapse

15 '~l of the funds?

MR. CLARKE: Yeah.

MR. BROWN: As long as you can't spend the money,

.liS

the bill is really superfluous I think at that point.

MR. TIDWELL: Pete, is there any problem with not

~(l

having that clear statement that federal grants don't

21

lapse?

MR. HACKNEY: Clarke and I discussed that at some

, "..

L.."t

I

length. I think we -- I'm not trying to speak for him, but

I think we

2"

MR. TIDWELL: You have to because he's not here.

PAGF 52

MR. HACKNEY: And that is, as you know at the

L

present time we have a very detailed, lengthy, way-too-long

J

appropriations bill every year -- two of them as a matter

of fact. And certain federal t~nies, particularly since

~

they're on a different fiscal year, are contemplated in the

b

bill that ends June 30th. We've got an appropriations

7

bill ending June 30. And federal money is contemplated in

K

that, but may not in fact be expended or -- which to me means

contractually obligated as well as actually paid out. That

j(J

the office of Planning and Budget has always taken the

-"
11 " position that these federal monies as agency funds could
C,>.
~
be budgeted in so to speak the following fiscal year by them

without any legislative action. We've always supported that

position. But this is one of the reasons we have always

J5 ~, supported that position. For example, if, ah, if the Parks '..!J

""::J

]b ~ ,~

Division of the Department of Natural Resources receives

.::1
,l'

1-; '~ excess revenue collections, more than was anticipated for

them to retain, OPB checks with the Governor and a whole

1':1

bunch of folks, a lot of them in the General Assembly

:.'.0

frequently, as you know, Roy, before they'll authorize the

expenditure of perhaps another $50 or 100,000 dollars in a

given fiscal year, but the federal money so frequently

doesn't get expended, such as in medicaid, and this authorizes

them to carry it over even though technically it's not

obligated or expended in any fashion. After talking with

PAGE 53

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

,

~--------,

Ii Clark about it, I talked to the Legislative Counsel

i
I

I
1 1: previously, I came to the conclusion that I don't see that
:!

it's hurtinq anything being in there. And I sure would

4

hate for us to lose out on a bunch of that good, federal

~

"gheetis" (phonetic), if we don't have to down the road

someplace. It takes, what, three or four words?

7

MR. BROWN: One of the things, though, you have

8

to first of all consider whether or not you want to base

your decisions and what ought to be on the Constitution

10

on the fact that it doesn't hurt anything to be in there.

11 ..~
'.oo".~.

It seems to me it ought to be based on does it help anything!

1.2 :~ that's in there. You do recognize in this language on

lines 10 through 12 there that there are exceptions. And

11

then if you go to the next page, you have specific,

r.

,"

~,

~

1.:1:

;:J

(,

rll
1:"

a

.i

/
':L i'C!

continuing appropriation of all federal funds. MR. HACKNEY: It's left in on the next page? MR. BROWN: Yes. It's inconceivable to me that

j8

that doesn't -- there's no way to get around that language.

llj

MR. HACKNEY: This is just a redundancy then.

20

MR. BROWN: I think so.

21

MR. HACKNEY: Oh, I see. Fine. It's not

limiting

..,...)"

MR. BROWN: No.

MS. MONIDEZ: Well, I don't knww. Pete, maybe --

maybe you should look at subparagraph "C" on the next page.

PAGL 54

I don't know what this number is.

)"

MR. TIDTiELL: That's something different from

3

lapsing. That's why I looked and saw that there. That's

4

why -- why we have to rely on you now, Pete, to say does the

c; ,

fact that continued grants don't lapse. Could that result

b

in something that's happening now, not being able to happen.

I think that's what I'm after.

MR. HACKNEY: I don't think anyone could lapse

federal funds except the federal government. We can't. I'd

1U

love to. We could really swell the cofers of the treasury.

')"

Ii

~'

1"j

"':.

1.:.

I don't think that anyone in state Government, you know, could lapse federal money.

CHAIRMAN: All right. Do we need to state that

though in constitutional language so that -- that the lay

<':
I
15 .~ person, if he's that interested --

''r:

.)

1(,

r!l
Z

~

MR. TIDWELL: But once we get them, they're our

z

17 ex: funds. That's what -- isn't that what it's saying here?

l"l,'

Or is it?

]9

MR. BROWN: So long as we abide by the conditions

20

of the grant.

21

MR. TURNER: It says, "For the purposes

)"
authorized and directed by the Federal Government in making

the grant." So we have to use it accordinq to their

21

instructions.

CHAIRMAN: How about the phrase -- the expression~

n-'--'--'-------
I Ii "not contractually obligated."
I
from unexpended?

PAGE 55
---------------~
I
Is that something different

MR. HACKNEY: In accountant's terminology, Mr.

4

Chairman, but I notice the Constitution does make a

distinction there. At least they -- they use both phrases.

MR. TIDWELL: Well, isn't -- there again, you

don't lapse something if an agency can go out and get it

H

contractually obligated before July the 1st.

i.-}

f

MR. HACKNEY: That's right

.10

MR. TIDWELL: But suppose they do get it

,'-'
z

i

]j ;-
"~)

contractually obligated, but haven't spent it? Are they ge11g

"-

to have to start lapsing them now, if that were to pass?

MR. HACKNEY: We take the position -- and I think

;1

this is pretty uniform among the folks in the bookkeeping

J:

business -- that when funds are contractually obligated, the~

":1

'"

i (; .:!'l i.

are in fact expended. They're no longer available. In

.~

,~)
<:

,!"

other words, an emcumbrance is set up at that time. The

expenditure occurs even though the disbursement may not

occur.

MR. CLARKE: It's an accrual situation as 0PPQsed i
I
to a cash situation?

MR. HACKNEY: Yes, sir.

MR. TIDWELL: And you believe that concept will

carry forward even if this language is deleted?

MR. HACKNEY: I'm not sure that the Attorney
- - - - - - - - ---~

1'1\ CE 56

General is an accountant, Mr. Tidwell.

.2

MR. TIDWELL: Okay. That's why I don't know

3

whether we ought to be taking this stuff out.

4

CHAIRMAN: All right. Committee members, let's

S

react then to Charlie Tidwell's concern . Do you share that

(,

concern?

7"

And do we want to keep the phrase in, "not

Q
,)

,

contractually obligated" in there as well as the word

I

l)

"unexpended"? If so, I think we perhaps ought to consider

10

a little different structure at this point rather than

::rJ
11 0-'

dealing with lapsed funds.

Senator?

MR. TURNER: I don't have any. You all are

14
~;
15 .~l
'",,:
~::)
I ~..1
(,
':.'',
,. '" 17 r'(]
i'
, In i
20

getting above me. CHAIRMAN: Roy? Mrs. Brent? Harold? Kanter, how about that? It looks the words,
"not contractually obligated", do now use as in conjunction with "unexpended" suggesting that to somebody they perhaps meant something differently. Lawyers are prone to use, you know, "to have and to hold." And it meaftS

the same thing. But is that a "to-have-and-to-hold" expression

or is two different thoughts?

It seems to me that it may well -- it may be.

24

MR. CLARKE: It would be easy enough to add all

contractually obligated right after the word unexpended.

., , .'
.,

L.
! I ;:

;.}:

; \~:~,t. "'-t::...--i\.

6".

~

-: i u:

;

-.)

1._

Ut ~ )I-"!'.'!~
\ \ '~//

'~..:

-;.

...~: r.
15 ~

J~

u:

,

:1
i:'J

;h i

::'1 {

, " i

,;;
'~1

I ;I,

~. '; !

.' '-'
~"-'

-.------.------.--------.--. ---------- .--_.----PA-G-E--5-7--l
MR. BROWN: I think I'd recommend that MR. CLARKE: It would ~ive you some double check on it, safety MF. BRO~~:lt's this old situation of having in the Constitution two or three times the same provision. And you say, well, "Fine. That just makes it clear everywhere." Well, a problem comes, and you see it time and! again in the Constitution, where ten years from now somebody' wants to change something. So they amend one of those three mentioned, not thinking that anybody would ever in their right mind write it in three times. And then you have one provision in the Constitution that says something and two others that say exactly the opposite. MR. CLARKE: If you want to just add all contractually obligated right after the word unexpended, would that serve the purpose and remove the doubt? CHAIRMAN: Except we'll have to restructure it, that whole sentence. We're really going back to the -to that old subparagraph "C." MS. BRENT: Which is a much clearer written paragraph. CHAIRMAN: Let me -- let me suggest this. I do think that the point is well-taken here in the draft that this is a derivative. That when we say it goes one year,

,. --_._._--_.._-------- ----'-----

1'.\(;1-; 60

subparagraph "B" refers to supplemental appropriations

2 I' Act, that this can still be only an editorial change. If

3

we decide to keep the supplemental appropriations process,

4

we would still want to keep subparagraph "B" the way it is

in the draft. And, therefore, the changes here are only

6 ii

editorial.

7i

MR. BRO~W: I would like to point out one

3

issue which is not the result of any change here -- that's

9

made here, but which is the source of real conflict. And

10

I want to do without making any recommendation, if I can

.1':

I 1 1-

CHAIRMAN: Now, don't get gun-shy on us.

0'

MR. BROWN: It's a very sensitive area. The

language here on lines -- well, the whole language of "Bit

;.11
"1:
15.:, '!l .x: :1
i6 'z"
c. 1.
<
17 '",~

as it's left in here relates to the limitation on how much funds can be appropriated. The major part of that limitation consists of the budget report and the estimate of revenues contained in the budget report. The language

18

here says, on lines 32 and 33, " as estimated in the budget

19 i report and amendments to the budget report." Well, the

20

Constitution doesn't specify who can amend the budget report.

21

We've had a tremendous controversy very recently concerning

'11

that. And as a part of that the Attorney General reported

--''l'';

to issue an opinion stating that only the Governor could

24

amend that report. There are others who feel this language

is broad enough to encompass an amendment by the General

PAGE 61

Assembly. And in fact at times the General Assembly has

2

amended the budget report. It's an issue which I think you

j

should consider or at least be aware of, even if you don't

4

take action. Unless it's clarified it's going to be a

:)

continuing source of major friction in state government.

b

CHAIRMAN: lWell, I suppose that's -- that's a

7

good point. And, Committee members, we first need to

1\ !i c;lecide, it seems to me, whether we want to deal with that

LJ 'I

issue: and then, secondarily, if so, how.

10

Pete, do you agree it's an ambiguity in the --

! I f-
.'~"
o,.

'" .l i.,

.J"~ '~J

u.

in the existing Constitution or do you say it's MR. HACKNEY: It's an annual ambiguity, Mr
Chairman, as Mr. Brown indicated. It's back with us ev~ry

) 1 ,.
l-

year. And it's not confined to one chamber or the other.

n

~
r

15 ~ Sometime the House wants to raise it. Sometimes the Senate

C)

e:;

wants to raise it. Sometimes they both want to cut it.

Cl

Z

Ii

~;
"

CHAIRMAN: All right. Then why don't we -- we

1H

need the legislators on the committee and Charlie Tidwell.

II! ;I,,. What are the considerations here? Should the Governor be

20

the only one -- this is an opportunity to clear this up,

:' j

if we want to do it. But I guess we as a committee need to

.., , have some collective discussion about it and come to some

kind of collective judgment on it.

Charlie, speaking for the Governor's office?

MR. LAMBERT: It leaves it too loose, it looks to

PAGE 62

me like, to let the legislature change it at the whims of

2

those that may have a special project. And I just think

3

it's -- it makes it awful loose.

4

MR. TIDWELL: It creates if you allow the

<;

General Assembly to do it, you diffuse the responsibility

()

among 236 folks, where right now it's up to the Governor to

7

set that estimate. And if he gets over ambitious about

8
:1

what he thinks is going to be collected, then he bears the

q

brunt of that -- and only he. Whereas when you've got

when you don't feel it so accute1y when you can blame 235

other people, and if you get one faction that wants to spend

$10 mi11ion~ on this and another faction that wants

$10 million on that, and another faction that wants $50

- million on teacher pay raises, then pretty soon you've got
'"<. r
15 .!) enough votes to raise that revenue estimate beyond all

}(, :'!l
~

reasonable expectations of collecting it. And then it's

.'1
17 ,~ .:'1

a devil to pay. Some of those folks might not be coming

lR

back the next time. And they may know they're not corning

19

back the next time, but they're going to fix up whatever

20

they wanted to this time. And it seems to be awfully

21

dangerous to me.

22

MR. LAMBERT: Isn't it true also that fixing

2.~

that estimate is based on so many factors that the average

24

legislator or any legislator, I don't think, can comprehend

all of that. When Doctor Thomason gets up there and goes

!I--~'---1 'I through all his gyrations
:1
(Laughter).

PAGE 63 ..~-.. ~---.---- ..... --. - - - - - - - - - - - - - - - - - - - - - i
I
!

-- he has really done a thorough study of it,

though, and we have to use some economist. And it is a

specialized field.

6

MR. TIDWELL: It's a science.

I
, 7 Ii

MR. LAMBERT:

It is a science.

i
I don't know whetijer

!

.\

it's good or bad. And I don't know whether he knows what

he's talking about or not, but he makes you think he does.

(Laughter. )

-,

.

CHAIRMAN: We may have a concensus here on the

()

.J_

w

,) ,~

::: ',-

part of the committee.

Senator Turner?

MR. TURNER: I agree with them totally.

'~) ,)::
:J
i (, 1,:::1
~
Z
I "~
"

CHAIRMAN: Mrs. Brent? MS. BRENT: I agree with them. CHAIRMAN: All right. Then we -- and I certainly:

go along with that.

MR. BRO~m: Can I take one second of your time to play the dev~l's advocate because I do think that whateve~

you decide, there is an argument on the other side. That if:

you decide to specify that only the Governor can amend it,

I want to point out that personnally that's a far better

position than we've got now in terms of what the Constitution

should do. It ought not to create ambiguities like that.

PACE 64

On the other hand I think that there are some leaders

~

in the General Assembly who would point out that

Constitutionally the appropriation process is an authority

vested in the General ARsembly. It is a legislative function,

'j

not an executive function. It is the function of the

Executive to administer and enforce the laws and the

General Assembly to create or adopt the laws. Clearly, I

think the Constitution makes that point very clear. It can

,)

be argued -- and I think it can be argued that,in fact it

has occurred, that Governors not only can responsibly

L'

11

limit irresponsible spending, but they can arbitrarily

:J

reduce estimates in the budget report so to artificially

constrict responsible spending and thereby frustrate the

appropriations process. I think that if you look back

historically in Georgia to the confrontation between

1(,

Governor Eugene Talmadge and the General Assembly of his

day, you can see that in fact a Governor acting arbitrarily

can very easily frustrate the budget process. Now, that --

their fight was not specifically on this issue. This was

20

all adopted in response to that to a eertain degree. But I

2l

think you give a Governor a tremendous amount of control over

11

the appropriations process, which I think the Constitution

23

contemplated was a legislative function. At least I think

.'4

there are people who will argue that.

25 -'------- _._-------

CHAIRMAN: All right. Kanter, you've said that

PAGE 65

very well. Now, would you turn around and argue the other

side of t he question for us? That's very well done and

:
I'

I

i

those are the arguments we're going to hear. Members of

I

the Committee, are we still of a mind to -- to commit

amendments only by the Governor?

(No audible response.)

7

CHAIRMAN: And I take it the answer is, yes.

If we do then -- Kanter, that's well done. We're:

going to have to be prepared to state the other side, which

]()

Charlie Tidwell did very well for us and Roy. This would

':J Z
11 .>: .::,>. w
11 .:.;
I . '.,'

do it. And let's focus in on this, and maybe there's different ways to do it, but as Kanter was talking it

occurred to me that if we'd go down to line 32 we want

14

to nail this down, "as estimated." The middle of the line

r

';i there. As estimated by the Governor in the Budget Report

~I;

.'

l';".

](,

or in amendments thereto made by the Governor.

1.

MR. BROWN: You may want to notice, on the

1"

previous page you've already said that the Governor would

submit a budget report. And I think you may can get away

pere, if you want to do that, just by saying

2!

CHAIRMAN: Saying only he can amend it?

MR. BROWN: "and amendments" on line 33~ Just

add "by the Governor" there. "and amendments by the

Governor."

CHAIRMAN: The budget report and amendments.

I'AGE 66

Budget report made by the Governor. All right. In the

budget report

MR. BROWN: I think it would be "and amendments

by the Governor to the budget report."

CHAIRMAN: All right. "In an amendment"?

Yeah. "In an amendment."

MR. BROWN: Or and -- it can be more than one.

You really can have a very flexible picture sometimes

based on expected tax receipts and other things. I think if

:Jl

you just said, ah -- so that whole thing said, "as

1i - estimated in the budget report and amendments by the

,,, '

Governor to the bUdget report."

CHAIRMAN: "and in amendments to the budget

report --

.,.
,::r: :>
1':, "
,:.~

MR. BROWN: No. "In amendments by the Governor to the budget report."

CHAIRMAN: All right. " by the Governor to

the budget report."

; ')

Now, Pete, that nails it down, doesn't it?

MR. HACKNEY: Yes, sir. I know there will be

a lot of legislators that's not too happy with that, but, ah,

perhaps a majority will be pleased with it.

CHAIRMAN: All right. That is -- that is the

,,

.'f-

change.

MR. CLARKE: Pete, it will do this: It will draw

a clear issue and a line. MR. HACKNEY: It sure will.

PAGE 67
l
I I
I
I

_\

CHAIRMAN: Now, that is a change. And

"

consistent with -- well, maybe we don't need a motion. You

5

want to make a motion on that, Representative --

MR. LAMBERT: Yeah, I'll make a motion on that,

that we put the words "by the Governor" to the budget

"()

report.

i.

CHAIRMAN: Second?

lU
~.,
z I I :;;
o
a.
'" 12 _.1

Is there a second? MRS. BRENT: Second. CHAIRMAN: Mrs. Brent, second.

Discussion?

(No audible response.)

CHAIRMAN: All those in favor say, aye.

VOICES: Aye.

CHAI~T: And all those opposed say, no.

(No audible response.)

CHAIP~: It's adopted.

,J(I

MR. BROWN: In fairness to the legislators you

may want to show that the Governor appointed the tax

board.

(Laughter. )

MR. LAMBERT: There's nothing wrong with the

legislature coming to the Governor, though, and telling him i
-----!

4

d
'!

!t
5 Ii
Ii
6 II

7 Ii I'
8 'IIIIi

9 I'I

10 Czl
11 ...
o~
a.
@;i

14 ~
".r-
<t 1:
15 .:>
Cl
'"::>
16 III 2. ~ Z
'" 17 o%l

18

19 20

21

23
24
2S

---------------_ ..- - - - - - -
he's made a mistake in his estimate.

PAGE 68
. - - - - ------~
And he can change it,

you know, if he's so enlightened.

MR. HACKNEY: This happens about every other

year.

MR. LAMBERT: That's right.

MR. HACKNEY: Either up or down.
MR. LAMBERT: That's right.

And they have they have a way of putting something into it, I think.
CHAIRMAN: All right. Let's -- now that we have adopted the form on that, let's -- we do have a couple of drafts herel one from Mrs. Brent and one from, ah, Pete

Hackney. Take a look. The substance seems to be the same, except for what we have just done. And there may be

some sharpening of language or other ideas. First, let's take a look at Mrs. Brent's, which is the legal size sheet with the date 10-22-79 in the upper left-hand corner.
All right. What does that do now? "The General Assembly shall not appropriate"?

MS. GREENBURG: That's the prior language. That is the present language.
CHAIRMAN: All right.

Now, we do shift from present language, "The General Assembly shall not appropriate the funds shall not be" -- I guess that's not crucial, is it, Mrs. Brent,

PAGE 69
-------l
whether we say General Assembly? That's stylistic, which

)

the editorial --

MR. BROWN: We spoke about that at the last

meeting. Technically it's not the General Assembly that

has appropriated these funds. It's the General Assembly

in cooperation with the Governor through the exercise of

his veto or approval power.

CHAIRMAN: All right.

MR. BROWN: I think we recommended that in each

instance, wherever possible, the word "by law" be

substituted for General Assembly to make clear that it is

a lawful process.

CHAIRMAN: The active voice is a casualty of

t.j
'.--",

that. But apparently that is consistent with the way it is

<.
1:

~) ")

All right. The first change there would be

1';~,"::::

form, but which in the aggregate. All right. The point

1<

I

:;

then, Mrs. Brent, is that that's just superfluous; it's not

I :) :I needed. Which exceed is, ah, a sum equal to so and so.

I ," :I That really is repetitious, isn't it?

~: )

MR. LAMBERT: Yes.

>l
""

CHAIRMAN: Can we strike the words in the

..-,

-."

aggregate?

(No audible response.)

CHAIRMAN: Any objection?

MR. LAMBERT: No.

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

.. I-' ... _---------~--_

l'A(;E 70

CHAIRMAN: All right. Exceed a sum. And

Mrs. Brent is exceed the total.

COURT REPORTER: Pardon me.

(Off the record at the request of the court

reporter to change tape.)

MR. BROWN: If you do adopt Mrs. Brent's proposal

there, where it says, "which exceed the total unappropriated

,)

surplus"

CHAIRMAN: Uh-huh.

10

MR. BROWN: I think you'd want to say "state

"7.

11

surplus" because technically you might be having a question

there as to whether or not you're talking about any surplus

by local governments or independent state authorities.

CHAIRMAN: ~1e11, why don't we say, "unappropriated

IS
,,;.

surplus in the State treasury"?

.,;

,:1

... 16 ~, :'\

All right. Is there any difference between --

Are we ready?

18

COURT REPORTER: Yes.

,I

!()

CHAIRMAN: Is there any difference between

2d

"expected to have accrued"? Can we strike those words?

21

MR. HACKNEY: Mr. Chairman, there's an Attorney

'11

General's opinion from 19 -- well, the late 60's which

,-) .

deals with that particular term. There is -- that "expected

2-\

to have accrued by the first of the coming fiscal year" in

,).-
essence is what it's saying, beginning of the coming fiscal

PAGE 71

year. Each year there is anywhere from $25 to $35 million
I,
dollars worth of surplus that Mr. Lambert knows is going to

be there. We know it's going to be there. It's the funds

,j

that, try as they will, the agencies can't spend from their

appropriation. And this opinion from the AG attempted to

address this because being in the Executive Branch at the

time, I was trying to spend money. We needed some more

money for Governor Maddox for some of his programs. And the

Attorney General said that that money CQuld not be spent.

In other words, anticipated lapse could not be spent because

it was not unappropriated surplus. He said that it was

appropriated surplus, not unappropriated because it had been

appropriated, you see, and it then lapsed. Now, I -- I'm
,
not trying to say anything bad about the gentleman's opinion.

It's probably a good thing he ruled the way he did. But he's

flaky on his terminology, I guess Clark would say, because

if you made it by the end of the fiscal year, he would be

absolutely right in his opinion. But the first day of the

next fiscal year, which is the be~inning of the fiscal year,

you see, that money is no longer appropriated. It's not

appropriated surplus any longer. It is then approp --

unappropriated surplus. And, of course, Loyce, as you know,

you all could appropriate under that definition.

MR. TURNER: Uh-huh.

MR. HACKNEY: So that's why we had suggested

72

perhaps the inclusion of some language by the end of the

month preceeding the fiscal year, in other words J~ne

30th, whatever the fiscal year -- I didn't know you all

~

were going to throw out the part about the fiscal year

coinciding with the present fiscal year, you see.

CHAIRMAN: "Have accrued in the state Treasury

MR. HACKNEY: That makes it clear that -- that

this anticipated lapse cannot be appropriated, which is

()

what the General Assembly has been living with now for

10

15 years. And I think most people, certainly on the

11

appropriations committee, agree that you shouldn't be

it's sort of like what Charlie was talking about. It's

the sort of thing like revenue estimates that can be

readily inflated if you've got a few little projects that

1S

desperately need funding.

MR. TIDWELL: Uh-huh.

CHAIRMAN: All right. Then Pete is suggesting

that we blend in in that portion -- and that's his change

in his draft with Mrs. Brent's draft. It would be beginning

on 1ine 26. We would combine the two: " exceed the total

~)

of unappropriated surplus expected to have accrued in the

State Treasury by the end of the month preceeding the fiscal

year."

MR. BROWN: I think that if you did adopt that

you need to be saying specify which fiscal year you're

PAGE 73

talking about~ " preceding the ensuing fisGal year" or --I,I
!
CHAIRMAN: The current fiscal year or what?

Is that --

MR. BROWN: Well, it would be the new one you're

talking about there.

CHAIRMAN: End of the month preceding the -- the ~-

what's the right word? That's a good point, Pete.

MR. HACKNEY: I'd probably say "such fiscal

year", but I'm sure that wouldn't be appropriate in the

i:'

Constitution.

,, ,,

(Laughter. )

MR. TIDWELL: Well, I think it's entirely

appnopriate.

CHAIRMAN: "The next fiscal year"?

I'

MR. TIDWELL: It let's us know exactly what

we're talking about.

'.~

;I

:l

MR. BROWN: "Preceding the first day"?

CHAIRMAN: Well, any given fiscal year, end of

the month preceding the fiscal year. Isn't that locked in

there, Kanter? It says, your funds shall not be appropriat~4

by the State in any given fiscal year.

MR. BROWN: Well, again, there is no single

month that precedes a fiscal year to me. There is one that

precedes the first day of the fiscal year.

MR. HACKNEY: Maybe throw the first day in.

CHAIRMAN: "Preceding -- end of the month

preceding the first day of the

MR. HILL: " of the next fiscal year."

CHAIRMAN: Well, Mel, that might be -- see, we

talked about the fiscal year up at the top.

Of the fiscal year.

MS. GREENBURG: Or that.

MR. HACKNEY: We're just trying to move it to

11:59 from 12:01, that's all we're trying to do.

CHAIRMAN: Why don't we just say by the end

of such a date as Pete Hackney may -- may select?

j 0"

"~~

(Laughter. )

MR. HACKNEY: Write that down.

MR. TU~lER: Might have a little trouble getting

that passed, Mr. Chairman.
I,
(Lauqhter. )
17
CHAIRMAN: "End of the month preceding the first

day of the fiscal year." All right. That's some detail,

but you feel that -- it will take that to deal with that

MR. HACKNEY: I believe so.

CHAIRMAN: All right.

All right. " . together with " And Mrs.

Brent says we can put the word together with in an amount

that we can come in and, ah, and say "an anticipated revenue."

ah --

----- --, PAGE 7S ~ ~~'~---'-

---l

I

MR. BROWN: Pete, is this going to remove that

appropriated surplus from the appropriations process?

MR. HACKNEY: No, sir. No, sir.

MR. BROWN: Because it -- in what category then

()

would that appear as an appropriateable fund?

MR. HACKNEY: Well, the State Auditor's report

~

indicates each year -- let's assume, and this has been the

case every year, save one, at the end of the fiscal year

~(j

there has been an amount of revenue or surplus that existed

~:}

l

it

during the session, which during the session was appropriat~4

I.' _.' to the coming fiscal year. Okay? Where we don't use all

the current year's money. Busbee calls it roll-forward, as

you know, Roy.

MR. LAMBERT: Yeah.

MR. HACKNEY: Ah, what this says is, that the

f-,j General Asserohly shall not appropriate money which has not--

what I think the words we've written do, and it can be

easily incorporated with this other language on this sheet,

Mrs. Brent's, ah, ensures that the General Assembly can

appropriate any unappropriated surplus as of June 30th. This

would be any excess revenue collections that are antic~pated

in the Governor's report. It can be any surplus on hand whioh

is unappropriated at the time of the~ssion, but would

e~clude any funds that were already appropriated perhaps to

PACE 76

current fiscal year which we anticipated would lapse on

June 30th, you see. It's still appropriated as of June

30. But on July 1, it's not. As I say, the primary thing

we were trying to get at here was, ah, some clarification

in the Constitution in support of the Attorney General's

opinion of the late 60's, with which we concur. I think

it's good fiscal policy not to try to anticipate this huge

lapse.

MR. BROWN: What concerns me is the possibility

and, of course, this only deals with the total amount that

the State could spend. It's not saying that they can't

appropriate this particular fund. It's just what those

funds together with all the other ones total up to. We can't

spend any more than that. Well, this only leaves you

really two categories to include in determining that, and

I,

1'-'

that's unappropriated surplus as of June 30th. And I think

under the same reason you have to say that that would not

include appropriate surplus as of June 30th. The second

category relates to treasury receipts from existing

revenue sources. Now, I'm afraid that that would be

interpretted to mean fees ,and taxes, which to me leaves a

gap for the amount of appropriated surplus, funds that were

.'

appropriated that are still in effect as of June 30th, but

which have not been spent or going to be spent.

MR. HACKNEY: Yeah, but you don't want to

'\

r ! L"J'. 1.

({.' ,'F~~ ,-
,,'
., .

:r:

PAGE 77
-- --- ------ ------i appropriate those. The only kind you could have would be I
i
funds that are appropriated for a current fiscal year, ah, which will lapse at the end of the year, but you don't know who has them, you see. This is the thing that we've avoided for 15, 16 years. And we feel like it's the thing to do to continue to avoid trying to appropriate in a given session some anticipated lapsed funds. Now, that's the only change that moving this two minutes does.
MR. BROWN: I'm not sure that's true. Say, you come back the following year and your amendment to the general appropriations Act, you still have the same dollar cap. And that was the unappropriated surplus as of June 30th, plus your revenue from taxes, fees, and grants of requests. You still haven't worked that what you actually had in appropriated surplus into the cap anywhere, even though you know dollar-for-dollar what it was.
MR. HACKNEY: In that case we've got the problem now.
CHAIRMAN: Are you fellas talking about what that clause we're just working on or the next clause?
(No audible response.) CHAIRMAN: What we're just working on, right? MR. HACKNEY: I think I know what he's talking ~bout, but I'm not sure what I was talking about, Mr. Chairman.

(Laughter. )

CHAIRMAN: Well, anyway, what both of you are

addressing yourselves to the language that "end of the

month preceding the first day of the fiscal year." That's

what you're talking about, right?

MR. HACKNEY: I believe so.

CHAIRMAN: All right. I think -- I don't under-

stand it, but I know where you are.

Kanter, if you're right, what would you do to

"J.\j

this? You know, so we can get a focus on this. What's

the meaning of all that you're talking about?

I.'

MR. BROWN: Well, if what I'm saying is correct

and I'm not sure it is -- I think you would need --

CHAIRMAN: Would you strike out or add?

MR. BROWN: The only thing that comes to mind is

,"

the sentence to the effect that -- that any appropriation

"

may for a fiscal year after the first day of the fiscal

year, the cap would be increased by the amount of

appropriate surplus that lapsed .

CHAIRMAN: All right. Let me suggest -- that

that really is going te be complicated for us to follow,

except in slow motion. However, would you give some thought

to it and, ah, if you think that we need to work on that,

give us a little memo on that so we can see it in slow

motion, because that's very complicated.

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

PAGE 79

MR. BROWN: If I could just relate this to a

rea} situation rather than just keep -- I'm trying to figure!

out what this means. In 1975 -- wasn't it, Pete, that we

had the big budget crunch? And we had to have a special

sess~. on.?

MR. HACKNEY: We sure had one that year, yes.

MR. BROWN: You appropriate X-dollars. You have

a severe recession that you hadn't anticipated or at least

anticipated in your appropriations process. Your revenues

drop after the beginning of that fiscal year. You have to

call a special session back. Well, I'm afraid we may get

caught there that we could technically have funds on hand

from the previous fiscal year, but we're still trapped by

a limit that doesn't take them into account. We might not

be able to somehow to use those funds to meet our immediate

revenue problem. And as I say, I'm not sure that's what

that would do, but I'm concerned that it might somehow.

CHAIRMAN: By shifting from the --
q
MR. BROWN: They had money on hand and not beino

able to spend it.

'1

CHAIRMAN: As a result of shifting from the

fiscal year to the end of the month preceding the fisyal

year.

MR. BROWN: Because all of it is unappropriated

as of the first day of the fiscal year. It all lapses.

80

MR. HACKNEY: I think the problem is addressed,

Mr. Chairman, when you consider that this says, ah,

expected to have accrued in the State Treasury. Well, that,

4

of course, is the Governor's revenue estimate if you're doing

it before it accrues. After the fact what is anticipated,

well, it's not really anticipated. You're counting the

money out instead. Now, I assume the Governor through his

revenue estimate adjustment or -- the point here is, we're

speaking, at least as I understand it, we're speaking of

I:}
the General Assembly appropriating in its regular session

.,

1:

or perhaps in a special session prior to June 30th for the

corning fiscal year. Now, once the fiscal year is upon us

,.

we know how much money has lapsed and the anticipated

J-'-.

thing wouldn't -- I don't see how that would figure into it

. anymore.
".,
1 ~; r:'
MR. BROWN: The problem is that we're setting up

in here a limit on State spending, the total dollar amount

the State can spend through the year. We've only got two

categories you can put money into to count it toward that

limit; one is either unappropriated surplus with your

amendment as of June 30th or amounts -- total treasury

receipts anticipated to be colle c ted from existing sources.

Now, it's that language traditionally we've counted it.

I think we can consider that language to be -- traditional

revenue sources to be taxes, fees, and grants of requests.

Ii
!
.\

II,
.~

"

':""':1\'11"(,
,,
]2 ~

i ,'\

',I

; ~ l ,.,

'Ii'
:1

PAGE 81 And we haven't had to consider the problem of these funds being counted there because we always counted them as unappropriated surplus as of the fiscal year. I'm just suggesting that throughout the next fiscal year we -- we might never be able to adjust that increase in the budget report because we can't fit that money into either of these two categories.
CHAIRMAN: Well, suppose we said unappropriate surplus as Mrs. Brent's suggestion? What does that do, Pete? Does that get us back into the problem with regard to the Attorney General's opinion? Or does that open the poesibility of coming in and making a redetermination of -on unappropriated surplus during the year in the event that becomes necessary?
MR. HACKNEY: Well, to answer your question specifically, I don't know. But like I say, all I was trying: to do was to get the thing moved by -- I said two minutes. I guess two seconds. You know, one second before midnight instead of one second after midnight, at which point any lapsed funds change their character from appropriated surplus.
MR. BROWN: Mr. Chairman, if I might ask for the Cmrnrnittee's indulgence in postponing any action on this section. I know it's something that my boss has a great deal of sensitivity about and will want to look at. And I
.. ---. - " - , , - - - - - - - ,.,---_.------ -.-,

.,
!.
lS 17
~ ,..~

PAGE 82

know Charlie would like to think about it and Pete,

Clark Stevens and others. Because it is fundamental to

our -- as Charlie said at the last meeting, this is the

life blood of state government right here. And even though

something looks very good, a-couple-of-wordg' change here

miaht --

:J



CHAIRMAN: All richt. Nell, let us go ahea(]

"lith

",J.l+.~' -- 'it' ;;.' "', "He'll come out with a draft of

that languaqe, but subject to we won't be taking any

final action on any of this. So we can always reconsider

or -- we won't take final action I suppose until we've qot

a whole draft, whereupon it will be open for reconsideration.

All right. Can we move on then with that --

realizing that we've got to focus on that again? All right.

The expression then -- Mrs. Brent suggests the next

expression, which begins on line 29 and qoes through 32,

about four lines. Those lines read, " together with an

amount not greater than the total treasury receipts from

existing revenue sources anticipated to be collected in

the fiscal year " What we're really talking about is

anticipated revenue. And she says, " an ticipated revenue." I think it's good. Except we do have the matter of refunds.

If we -- and it seems to me if we talk about anticipated

revenue, that, eh, and omit the words collected, automatically

it's the plus and minuses which the governor takes into

PAGE 83

acoount in his budget report. That we could just say

anticipated revenue, as estimated in the budget report.

Committee members, you go along with that? (No audible response.)

CHAIRMAN: Pete, Kanter? MR. BROWN: We do have a circumstance that now we cannot -- well, as the constitution is presently

written if you levy a new tax to begin in the new fiscal year, we cannot anticipate the revenue from that tax and

appropriate it in the general appropriations act. You can

only appropriate in the supplementary appropriations act.

And generally I think it was understood that you would come

'fl~'~

H

back the next year and appropriate after you already started

-'

"

I!,.'t

collecting it to get a feel for how much.

CHAIRMAN: All right. Anticipated revenue from

existing revenue sources. Would that do it? MR. BROWN: Again, we do get a little more
complicated. If you eliminate supplementary appropriations you're going to need to make some statement then regarding

the later appropriations of funds after you do have some history of collections from a new tax.

CHAIRMAN: Well -- but working within those words

I gave you, though, doesn't -- there's no change at all in

substance, is there? We strike out "together with an amount not greater than the total treasury receipts from . "

PACt; 84

And we strike out the word "collected" and just say

anticipated revenue from existing revenue sources or from existing sources. Isn't that the substance of it, but said in about one-third the number of words?

"

MR. BROWN: I hate to get real conservative on

"

you all. It seems to me the language -- I don't see any

problem in removing in aggregate. And it seems to me it's

better to use just "and" instead of this together with and

amount.

CHAIRMAN: Uh-huh.

MR. BROWN: But the language about "to be

,""'

L .'

collected in the fiscal year", it seems to me is a

definitive statement there. And it does mean something.

It limits, you know, what period of time you can estimate

,.

I J .'

you're oing to get this revenue from. I'd be willing to

J6 l'. argue as a legislator that wanted to spend more money five

;:

, 7 '"-,'

years from now after this is adopted that we could

.,

1 ,)

reasonably estimate that we're going to collect money in the

J9

next two years from so and so, so let's pass a two year

~~\j

budget, but we'll spend two-thirds of it the first year.

~,
It seems to me it would raise problems to delete that.

"

~

CHAIRMAN: Well, I think she would say that

,

."

anticipated revenue means what you anticipate collecting

.::4

and, therefore, collecting is redundant and superfluous.

All right.

,~ )

10
"..
11 ..
. .'o" o. ,~ J.

:' ,I ',. I'

~,\ ".

J! <",.

j,.;

__'

' i'
.J

\_ ~

l.
"

','~-,-. _.- /~

:J ~

r<.:

" }"
~

II

MS. GREENBURG:

PAGE 85
..- ...---....---------.------. ---_..- - - - - - - 1
Well, could that be just

switched around -- "and revenue anticipated to be

collected ih the fiscal year"?

MR. BROWN: Charlie, what do you think?

CHAIRMAN: Well, it could be

MR. TIDWELL: You all have lost me. You've got

too many things running on to me. I have to -- I almost

have to see what you're talking about here before I can

CHAIRMAN: Of course, the expression -- you

could say revenue being collected. But anticipated

~evenue is a good expression, isn't it?

MR. HACKNEY: Yes.

CHAIRMAN: That's been used over and over and

we know what we're talking about. So we want to keep that.

Harold? You're not leaving, are you?

MR. CLARKE: No, I'm just going to get some

coffee. This is putting me asleep.

(Laughter. )

CHAIRMAN: All right. Let's strike then -- try

this and striking"together with an amount not greater than"

and replace that with the word "and." "And the total

treasury receipts from existing sources anticipated to be

collected in the fiscal year, les~ refunds."

MR. BRO~m: As estimated in the budget?

CHAIRVLl\N: As estima.ted in the budget report and

that other we worked out before.

MR. BROWN: I personally would feel n~re

comfortable --

-f

MS. DOYLE: Would you repeat the wording?

MS. GREENBURG: Yes.

MS. BRENT: Yes, that was kind of fast.

-,
r

MS. DOYLE: Would you repeat the wording?

CHAIRMAN: All right. Let me go

let me start

at the top for the record on that one, because we're getting

1G

ready to adopt the whole, if we're pleased with it. Where

;I

does it begin and

line 25. "Funds shall not be

appropriated for the state in any given fiscal year which

exceed the total of unappropriated surplus expected to

have accrued in the state treasury by the end of the month

preceding the first day of the fiscal year. And the total

treasury receipts from existing sources anticipated to be

collected in the fiscal year, less refund."

We've got total in there twice. That -- that's

confusing.

MR. BROWN: When you were adding the language

there, what was the language you used there?

CHAIRMAN: " by the end of the month preceding

the first day of the fiscal year."

MR. BROWN: Could we say "by the last day of the

:>

month."

PAGE 87

CHAIRMAN: If we can say that, we know what the

last day of the month is. It's June the 30th. Why can't

we say that, Pete?

MR. HACKNEY: Well, as I mentioned, Mr. Chairman, was
the only reason we tried to word it the way we did/because
, .;.'.

{,

we felt that you all might recommend taking the established

fiscal year out of the Constitution. CHAIRMAN: All right. Can we say "on June the

30th" then? "Pave accrued in the state treasury on June

the 30th", which take you up I guess to midnight of June

the 30th.

MR. HACKNEY: Sure does.

CHAIRMAN: All right.

MR. HACKNEY: That would be great from my

standpoint. But, Kanter, I don't think that eliminates

the problem you had with my language earlier, does it?

CHAIRMAN: All right.

MR. BRO~~: Again, it just -- I don't see a real problem with that, again, except the problem you may

encounter in the future with the drafting of any amendment

, ,,

to change the fiscal year. And that is what happens if that

language is drafted other than by people who are familiar

with this article, which happens all the time. And those

people do not amend this section. So that you have your

unanticipated surplus as of June 30th with your fiscal

year beginning October the 1st.

CHAI~~~N: Well, they might have good lawyers

over there. They've got them now, Kanter, and t.hey'll

have then.

MR. BRO~m: Well, of course, we can take a

great cleal of prid(~. But I want you aJ]' to understand,

as many of you knO\,7 froID ei ther servine; or havinq served

in the General Assembly, amendments to the Constitution as

well as statutes are not always drafted by legislativp

lawyers or members of the general assembly who have dr,lftin9

and legal experience. And I don't think you can anticipate

that any given amendment or any given statvt' ,,?:ill be

drafted by somebody who necessarily knows what Lhey're

doing. And that is one of the problems we have, in thi s

repetition of things in the Constitution or lnthe statutes.

It's the same problem. And it is possible, I think, fairly

easily to draft so as to minimize the impact of that problem.

;.

CHAIRMAN: On the other side, though, it's so

nice to say "June the 30th" and there's no mistake in what

you're talking about rather than these other words, Kanter.

So, it's, ah -- you know, which way you go?

All right. We could ti.ght.en up a little more on

the -- on the end of that and still keep -- stay within the

confines of "rhat Kanter is concerned about, moving on down

away from June the 30th, and say, ah, with regard to treasury

PACE 89
receipts -- "an anticipated revenue from existing sources 1-.0 he collected in the fiscal year" and get out the words "total treasury receipts."
All right. Let me rearl that now again, picking it up with "exceAd the total" n~ line 26: " exceed the total of unappropriated surplus expected to have accrl!ed
in the state trea~ury on June the 30th of the fiscal year
and anti~ipate8 revenue from existinq sources to be collectef in the fiscal year."
MR. npOl,1f'1: l'rith that langu"'Iqe tlsin<c, June th(.' 3:1t.h, T think t.here you woul('l need to say ;'June:'l'
precedinq fiscal vear" in tIll'> :~ontexL of that
CE~TRMAN: Good point. "0 f the MS. DOYLE: I prefer your. first wonlinq ur no ('late ani) the end of the month, you know, just using the ep(l ()f t.he month. rt's qet.t j nq back r.o the thinu where it'::; jusi- one phrase after another Hntil a pt~rson would a Troost give up before they qot t.o the end 0 f it trying to unnen;;tand it. CHATRMAN~ All right. MR. FRm%T: If it's 'tny consolati.on, a lot of t.he t.h:i nos that people who have wod,eel wi th this article for yt=>ars, <'l Jot of us, roe nnel ot-hArs with more experience hc'\vP nn ieeR what it means. One of thp. problems with that. though

90

is that they do mean somethinq. At sonte poi nt they ha"e

been used for something. An<1 they an~ binding restricthms

on the General Assembly and the Governor to a certain

degree. An~ the proble~ is tryina without a good feel for

exact 11' what t.hey cou] n do, tr~rillg to (1eci/\e what the

elimination or chonae of them ""ill do. It's very complex.

MS. DOYLE: But your first wordino does not

change the legal meaning of that at all. It just -- it just

is one less place to chanae if the change of the date of the

fiscal year is made.

CHAIRM.A.'\I : All right. Yon prefer something other

than June the 30th?

MS. DOYJ..E: Yes.
\
C'HA.IRMA.-r-:s: All right. Is then~ --

MS. DOYLE: The -- T prefer the first wording

that read "state treasury at the end of the month preceding

the first day of th~ fiscal year."

CHAIRMAN: Okay. All right. Let's defer this

, .. \

and get a clean copy typed up with two or three variations

there.

MR. TID~"ELr.: I don't have any ITiore room to

write in and strike out.

(Laughter)

MR. TIDWELL: It's gone.

CHAIRMAN: We'll have a chance to, before we meet --

F'.CE 91 confer again with the subcommittee. ~ut that's a matter of style, it seems to me. The substance, we worked it out. We need to do a little more work on that and we've got to have some clean copy.
MS. DOYLE: Can we say "See the attached handbook"?
(Laughter. ) CHAIRMAN: You surprised me. t thought June the 30th .,.7as so unmistakeable to the lay person. And now you -if you're worried about these lawyers over there, you ain't going to change a thing. MS. DOYLF: The reason I go along with not putting June the 30th is if at some time that June the 30th date is changed, then you'll have to have two amendments, amendments to two different places rather than just the one. MR. CLARKE: Before we get off that subject now, what is June the 30th anyway other than the last day of the fiscal year? And why not just use that? CHAIRMAN: Well, it's the preceding fiscal year. MR. CLARKE: Well, the last day of the preceding fisci'll year. CHAIRMAN: Last day of the preceding fiscal year. MR. CLARKE: Well, if you're going to say June the 30th, you're goqng to say June the 30th of the preceding fisci:ll year. f;o why don't so why not just say last day of

'\
,'J
:: "
c'
......\...;..-.:..\ ~ t<1,
'''':A'' "
t ' l._.!'~r2!!~(1 J:.~:,/ .
.,.
) l'
'_.
1. ~

Pl~C b 92
the preceding fiscal year? CHAIRMAN: "Last day of the preceding fiscal
year. " Now, why d idn 't we do that an hour ago? MR. HILL: Because it's much too easy. (Laughter. ) MR. BROWN: An overview of this, these type of
provisions are not very typical of state constitutions. Georgia for some reason I think is among the most conservative states in terms of constitutional restraints on state spending and the appropriations
MR. CLARKE: Because of Bob Toombs is the reason. It's exactly the reason
MR. BROWN: It goes back to 1877. Although I think that there are instances where it can be shown that this type of thing has served the public interest of Georgia But this is not typical of a state constitution.
MR. CLARKE: Toombs said he'd lock the treasury and throwaway the key.
CHAIRMAN: And also some judges that believe that too. There have been some right restrictive interpretations by the Supreme Court.
All right. Can we go ahead? We'll get some clean copy and we'll have to do a little work on that. And we'll have an opportunity to when we reconvene on -- on Monday or afterwards. Where are we?

All right.

PAGE 93 -- --, --~-----_.
Now down to subparagraph "C". Old

paragraph -- subparagraph C and D deal with lapsing and

federal funds. And the suggestion I had, just a suggestion,

we tak~ those two paragraphs and make a new paragraph since

they kind of -- they can stand alone. They don't have to.

And call them unexpended appropriations of federal funds --

semi-colon (:) federal funds.

MR. CLARKE: Let me suggest this, Mr. Chairman,

I think your thought is good. And why don't. you, Mel,

Kanter and whomever, Vicki, ah, do that and show it for

further study but included in our report.

CH~Iro~N: All rinht. Kanter, what do you

think of that? Vicki? Okay Do you 00 alonq with that?

~1R. !Wm'7N: I think it's safe the kind of

problems we're having now

CHAIRMAN: All right.

MR. BROWN: I would like in that connection to

just for the record to again raise the issue of whether or

not the constitution should mandate the continuing

II

appropriation of federal funds or authorize the continuing

appropriation of federal funds as provided by law. The, ah ,-

there has been some issue over time as to whether or not a

state does have the authority legislatively to appropriate

these funds. The Supreme Court ruled last year i.n a

Pennsylvanaa case that, in fact, there is no restraint

L
t',',
1 ';
,~""i<!\
"\t.\; ' \ _,!.~!lh~C'
.I! il
/ //
,/0.' ,;
11,0

whatsoever on legislative appropriation of these funds. Pennsylvania had gone to that. The trend nationwide, although I don't believe it's yet a majority of the states, althou0h it's probably approaching that, is to have legislative participation in this appropriations process. This provision prohibits the General Assembly from doing that in terms of -- of -- from any position of power. They can do it as long as nobody questions it. If it were an agency, just spend the money. The problem has come, as I mentioned in the last meeting, not with the value of the funds as they're being used but in terms of committing the State without any legislative participation in a continuing program once federal funds are reduced or terminated. You're pretty much bound by what has gone before at that point. Politically you're committed and yet you have prohibited the General Assembly from having any meaningful participation in the State's original commitment to the program. I would, as I say, just raise that issue again.
CHAIRMAN: All right. I have read the Pennsylvania decision and copies of that have been sent to you by Vicki. And it does say, at least that's the federal that's the Pennsylvania court. A Pennsylvania court. It's not a federal court. And not a Georgia Court. But the State officials could not go down there and draw from the state treasury until those federal funds had been run through

PAGE 95

the regular appropriations process.

MR. MONIDEZ: I believe that that case was

presented to the Supreme Court and they held that there was they
no federal question. So/did not review.

MR. BRO~m: It was appealed but they denied

{,

service.

MS. MONIDEZ: That's right.

CHAIRMAN: And whatever the General Assembly

could do -- and I'm not sure what that would be -- if we

changed this, then would have that opportunity. Impose

j'

condi.tions? I don't know how that's done in the

appropriations bill in light of what we are saying here.

M~. BROWN: It would give the General Assembly

"': essentially the authority to prohibit receipt and

expenditure federal funds for different programs. It would

; n '".,,'

have the effect of requiring the General Assembly if it

chose to to --

CHAIRMAN: To refuse to accept them?

MR. BRO~: To refuse to accept or expend in a

Itlay.

CHAIRMAN: That's a big one then. Right now the Governor makes that decision is what it comes down to, isn't it? Or is that overstating it?

MR. BROWN: He certainly has a great deal of

influence. There are some theoretically ind~pende~~~~~~~i~

:'
l, .;
10 :1:,
..,:."

.... 96 p ',' ..~': \,'

../

with Boards that govern them.

CHAIRMAN: Charlie, what are your thoughts on

that?

MR. TIDWELL: Well, I'm not sure I understand

all the implications of it, if we're going to depart

drastically from what's being done now. And if it were

required, the general assembly to in effect, perhaps, wait

15 months before they can -- we can make ourselves

available of some substantial federal grants, then I think

you need to think about that a long time and see. I think

and I have no quarrel with the general assembly exercising

its appropriation powers as a practical nlatter. Generally

the desireable federal funds are welcomed. Those that are

not are refused. Georgia does have a history of refusing

some fU.nds that are not that attractive. They're teasers.

You can tell them when they come and can see what -- you can

see what's going to happen. They're going to give you a

little taste and then they're going to withdraw from it,

and we're going to be left holding the bag to fund an

expensive ()P':-'i.l~(.J'. So it's a two-edged sword to

to

create the sort. of atmosphere where you cannot accept thf~

desireable funds where everybody agrees that it's great an(l

you can't put them to work. I worry very much about that.

MR. BROWN: If I could in response, I hadn't

meant to say by any stretch of the imagination that I don't

PAGE 97

I

I

think it would he found desireable at times to have

continuing appropriations of federal funds. I would point

out -- T hope I'm not incorrect about this. This provision

was put in when the state used to have biennial budgets.

~ou can imagine what problems, in light of what Charlie just

stated, that created when you could have gone two years

without having any legislative impute We are, of course,

now on annual budgets-which is cut down that problem to an

extent. Additionally, the only things that I'm really

'il

suggesting the poesibility are to -- would be making this

continuing appropriation permissive rather than mandating

it. Let the law be written so as to permit the continuing

appropriation of funds under the proper circumstances and

;/1

legislative review under other circumstances. Let it be a

1:;

matter handled by the law, although authorize in the

constitution as opposed to something that is mandated in

,<

r,:.;.:',.

the constitution and leaves no flexibility for -- in the

01 traditional, legislative appropriation oversight. As many

you

read

in

that

Pennsylvania

case,

the

Court

there

makes

--

I
I

makes it a point. By in large there -- this is the type of

provision or the idea the federal funds should just be

expended, ah, by executive agencies was created when they

were very, very minute part of any state's budget. Now,

you're talking about federal funds easily representing a

quarter of the State's revenue -- a quarter of the revenue.

PACE 98

That's the case in Pennsylvania. I'm not sure exactly

,

what it is here, but it's a substantial percent. You can

-'

reasonably expect, I think, to see that percentage grow.

Now, how much of the state's budget should be out of the

,

reach of legislative oversight. You've got a quarter of it

out under this provision now with the anticipation that

that will grow. The question in your mind, should executive

agency heads decide the state's spending policy or the

u

major part of it or should that exercise -- that authority

_;)

be exercised where traditionally it has been exercised in

}'
1j r

the legislature. This language does not give the State

any ability to address that question. It answers the

question before you can even look at the merits of it. It

says, Legislators stay out. The Federal Government gives

l'

us funds. Executive agencies can spend it. And if it

jf.

creates a commitment on a continuing basis on the part of the

,J.

State, that's fine.

CHAIRMAN: All right. There is flexibility there.

J<l

Federal funds are not forced on us. That decision is made

.l;)

but it's not made by the legislators; it's made by the

~!

executive department.

MR. BROWN: That's correct.

CHAIRMAN: So are we going to shift that power

.':

from the executive department to the legislature?

MR. TURNER: I see nothing wrong with giving the

PAGE 99

legislature the authority to enact laws and they can

in turn enact laws to give the executive department that

authority, can't they?

MR. BROWN: Yes, sir. As a matter of fact, that

is the posture that I was recommending, that you just make

this permissive as provided by law.

MR. TURNER: And be not locked in with a

G

constitutional prohibition --

MR. BRo~m: Rather than making it an across-

the-board, positive exclusion of the exercise of legislative
;::
~ control.
oj.

CHAIRMAN: Well, what is the practical effect?

-A'

tI4'J
; ,t. ":

I think we need -- Kanter, we need to know if Sam Caldwell

down there can negotiate -- you know, if you've got a

1:

~l

$50,000 program for something in Georgia, somewhere down on

."I the coast, and it starts out he he starts into this, ah,

saying April or May and he gets it two months later, have we

got to wait , you know, another nine or ten months before

the general assembly comes back in being. Is that -- how

much of that goes on? What are we really talking about,

aside from philosophy?

MR. TURNER: Can you authorize the fiscal

committee to accept funds in an emergency nature? It could

be approached in several different ways if the General

Assembly had that authority.

f'AU 100

MR. BRO't-\"N: For instance, our neighbor to the

south, Florida, has complete legislative involveml'!nt in

~

its federal grant programs, although it does have a

mechanism by \-rhich grants received under cl:"~.rtain c ircume t~anCI;>3

(,

iU
i.:

J

:;

j I-j

,:1~

~

71

I:~

J

ot'

'0
)t

And Florida n~ceives a lot more federal money Uian Georqia does. But Il m suggesting that if the Constitution were permissive so as to authorize legislation in this area, that that legislation is where this should be addressed and the only place where you can have the flexibility to properly address it so as to be able to segregate the need for -- for immediate use of funds as opposed to other type of funds, which can be subjected to review -responsible review.
MR. TIDWELL: What problem has the present language created?
CHAIRMAN: Well, if an agency head wants to go out and negotiate with the federal government to get a federal grant, then he may get it -- he or she may get it. And it's automatically a~propriated, Charlie. Now, whether that's a problem or not
MR. TIDWELL: Well, that's -- I know. I don't -that's -- that in and of itself, but what -- but what evil has been perpetrated?
CHAIRMAN: Well, for example, Arthur Bolton will

101

not accept if your philosophy is you should not accept

federal funds, then Arthur Bolton will not accept federal

funds, as you know. No federal grant has never gone through

cj

is my understanding to any kind of program through the

Attorney General's office. And this would be one way of,

ah, stopping that. Mld that may be -- I think we need to

it seems to me we needr to -- we need a lot more imput on this. Recause Kanter puts his finger here on a major

policy decision.

" '~
\J

MR. TIDWELL: That's what I'm trying to determine;

JI
o,

r i9ht now, Mr. Chairman. t>1hat has been going on specifically

under the present language that needs to be rectified. I

don't know of any.

MR. BROWN: Charlie, I'm not suggesting there has

been any evil. And I really don't -- that's not really a

fair way to characterize the problem. I do think -- and I

think Represen-tative Lambert and Senator Turner will agree

wH:.lJ this -- that then:~ is a sentiment in the General

Assembly to exercise more oversight of the spending of

federal qrants. And it seems to me that you can make a

very logical argwnent that the separation of powers' principle

coupled with the legislative responsibility for appropriations

and supervision of State Government is in complete accord

with that idea. Traditionally the Executive branch has

exercised a very immediate and real influence in almost every

J'A\,.', 102

decision in the General Assembly. That is not so now as

it once was, although the Governor c).ear1y remains very

inf1uencial. The question is, if you're going to have

separation of powers which branch of government ought to be

able to supervise spending? And if all you're talking about

is two or three percent of the state budget, it's not a

problem. When you're talking about 25 percent, it's getting

to be. When you talk about 35 or 40 percent, you're

reaching very quickly the point in which it's the Executive

Department that's making the law for you in terms of the

impact of spending rather than the legislature.

MR. TIDWELL: I'm not arguing about the

philosophy. What I'm saying is, what's wrong with the way

,.

, '

it is right now? What you're saying is that. the state has

1":

been committed to massive spending programs that the

legislature didn't want to fund. Which ones are you talking

about?

, ~.:

MR. BROWN: That's exactly what I'm not saying.

",J 1,'

I'm saying on the other hand that the role of federal funds

in the state budgetary process has drastically increased

over the last 10 to 15 years beyond what anybody ever

anticipated 15 years ago. As a matter of fact, you may

recall that 15 years ago state governments were, in a nun~er

of instances, opposed to federal funds because of the strings

attached to them. Now, we accept them with open arms. The

< _ ~,l'I1 ! .. f.!..

"I

..!

PACE

103
~~-----,

question is, now that it has reached a tremendous percentage

of the state's spendin9 program, shnuld there or should

there not be the flexibility in the constitution to permit

legislative oversight of state government spending. This

conFtitution provision does not permit that.

MR. TIDWEtL: If Joe Tanner can convince the

Feds to give him SIOO million dollars, Joe Tanner ought to

be ahle to go get that $100 ~;11,. n "
rm. TURNER: Not, Char1 ie, if that's someth ing

that's going to get a program out in the middle of the

stream and then they're going to cut the federal funding

off and the state has to pick it up the next year.

MR. TID~ffiLL: I don't agree with that either.

T don't think that ought to be done. But that's what you

folks do.

MR. HACKNEY: That, in essence, is about what

happened, what you're describing, Senator, in 1972. The

federal government decided to pullout part of its 100

percent funding of -- then they weren't that well known

the MR day care centers. It's a huge grant now, as you

know. We've got, what, $28 millions dollars in this year.

Over half of it is State. Now, the general assembly now,

I didn't say it was a worthwhile purpose. Obviously it is.

The qeneral i'lssembly had never appropriated the first nickel

to that program. It was something that had been start.ed with

PAGE 104

100 percent federal money. And you all were deluged with

telegrams from allover the State saying, "Guess what,

fellas, the Feds just pulled out the 'gheetis' and we ne~d

$2.75 million in the supplemental." They got it. And

$7.5 million in the big bill.

MR. TIDWELL: I understand that. But if the

if the constitution had been, as Kanter says, would the

General Assembly not have gone into the day-care business

when there would have been 100 percent finance?

MR. TURNER: What I get from what Kanter -- the

way he has explained this is the general assembly could

act and give this authority to the executive branch of

government in their wisdom to, you know, to go int:o these

:.0'

programs in advance. But if there was a situation to where

the federal money was to be cut off, and it's possible that

we're coming into a phase of that within th.::! next year or

two on a national level, it mi.ght be that the general

assembly would need to sort of have some little voice in

limiting this. This is my thinking on it.

MR. TIDWELL: I don't think anybody quarrels with

that. But -- ~f -- what I'm trying to find out, where has

that happened? Balanced on one end the inability to get

grants and spend it. Joe Tanner if Joe Tanner can't go

to Washington anymore, he ain't going to Washington anymore.

He's not going to try and get some if he has to go through

PAGE 105

the -- if you stop that, where are you going to pick up

on the other side and stop all of these bad things that the

executive agencies have done without having legislative

oversight?

MR. ~URNER: I think that we would probably

pass legislation to authorize them to continue that, but if ~

they abuse that pow~r there might be a point at a later

time when we would like to have the authority to stop it

rather than have to wait to go back to the people with

II)

another vote on it. This was my --

.J
(Off the record at the request of the court

reporter to change tape.)

..

MR. HACKNEY: Charlie, for tWQ or three years

now there's been some language, I'm sure, has no fo~ce and

effect, in the appropriations bill to the extent that you

all make the statement that it's legislative intent that

no programs be started with 100 federal funds which will

have the effect of having to be terminated or use state

:')

funds subsequently to keep it afloat.

MR. TURNER: This goes beyond that. It goes

into your local governments, too . I mean I hear at home

all the time, people talking about the faot that, yes, the

federal government through the APDC started this program.

And now the money is cut off. And so they're coming to the

General Assembly or someone to get additional funding for

,
1
10 :~
-<
~,
1"
,,.
,:::~
ttl
.'.;

106 them. And I'd hate to see it locked into the constitution. I think that we would grant that authority in all likelihood, but I think it's something if we appropriate the funds we should have a voice in.
CHAIRMAN: What's the pleasure of the committee? Is there a motion to delete new subparagraph "C", which is old subparagraph "D"?
MR. BROWN: Mr. Chairman, in -- let me clarify it if, it influences the way you phrased that. I wasn't suggesting to anybody that the language relating to federal appropriations be deleted from the Constitution. The Constitution prohibits continuing appropriations. And I think there are circumstances under which it is very valid and reasonable to have continuing appropriations of certain types of federal funds. What I'm suggestinq is rather than mandating that they shall be received by the executive agencies and spent, make that language permissive that the General Assembly may authorize that as provi.d.~(l ly law.
I'll riaht. V-i1Vlt language '. \'\That ,:::',,11(; you ada tht~n, Kan ter, anCl we' 11 Sf:e if we I ve 'Jot a moti(\il by the committee? But first, give us the language then .
MR. BRO~~: Let me just give you some rough rough response to that within the context of what you had previously decided about wanting to have, ah, us draw up some

PAGE 107

alternative language for you merging those other two provisions. I'd just say something, "as provided by law Federal funds received by the State of Georgia may be continually appropriated." Ah, you may want to add, "The General Assembly may provide a mechanism by which federal funds received during a fiscal year may be utilized by executive agencies for the purposes authorized and directed by the grant." In other words, leaving the clear authority to have a mechanism to avoid the appropriation process if the law so provides.
,.
CHAIRMP,N: Okay. I think we need to think long .' and hard about the exact language on that
MR. BROWN: Oh, yes. CHAIRMAN: But -- how about do we want is it the pleasure of the committee to to we understand I think the debate back and forth. Do we want

to act on this? We have deferred to our next meeting --

.~)
hopefully we'll meet with the big committee or afterwards.

11

Are -- those are kind of ministerial compared to this. This

is a major policy question here. Are we prepared to vote

on it?

MR. TURNER: I don't think so. Not today.

MR. TID~mLL: I , myself, would like to understand

the i~~lications. If i t were to stop Tom Moreland receiving

federal highway funds until they were appropriated, it would

: r - - - - - - - ~---~ --~-~-~---~----~---------

~

I

Ii
i1

i be an absolute disaster to this State, I think.

PAGE lOB
If you --

2
if he would have to wait more than a year in some instances

3
to be able to get federal highway funds and build roads

4
MR. HACKNEY: I would envision a piece of

5
legislation to be enacted to authorize all of this to

6
continue.

7
MR. TIDWELL: Of course, what if it became a

classic confrontation between the Executive and the
9
Legislative and it was a Mexican-Standoff? That no
JO
legislation would pass on it because the Governor would

say, "I am not -- I am going to veto it. And I veto it."

And he keeps it from being overridden. And then the federal

funds just -- they just layout there. And if you're

talking about

15 ,~)

-,

MR. HACKNEY: I could not see -- envision a

16 ~ .~ z.:>
17 ~

governor doing it. But I mean

MR. TIDWELL: Well, it might. You don't know.

J8 ,

CHAIRMAN: Well, Charlie, one way of dealing

19 ,i

with that would be to keep the existing constitutional

20 :1

provision and say, "except as otherwise provided by law";

21

if

so/the general assembly couldn't pull itself together and

:1
I sustain a veto, then we would follow under this provision

here. So there are ways of working it out in fairness;
a point of view which I -- I gather you sense that I don't -r
__~'_~~grea wit_b-t__ :truL\1$:Li_t' s being certgj.nly__artlculated vety

'i
,
.'
'1

~}

I

J;

./' ./

) .~.

1.,' "
'i
.<

PAGE 109
well by Kanter, But -- all right. The committee though. I'll
make sure the Cormnittee now. What is the pleasure of the committee? Is there a motion? Or absent any mot.ion, we defer it until sQme other appropria~e time, which me~ns it stands as it is in the draft since that is an existing provision which is kind of a ground rule we've adopted?
MR~ LAMBERT: That wo~ld be my rec9mmenqation. Let it stand as it is until we get some other language that could be acceptable.
CHAIRMAN: Any objection? MR. BRO~: You may want to qonsider in qddition to that asking Vicki or Mel to -- as I say, Florida right next door to us is very actively involved in this type of legislative participation in federal grant programs. And you may want to ask your staff to contact the appropriate Florida officials and find out what their experience has been, both problems and successes. CHAIRMAN: Harold? It seems to me that's pn up the line. Mel? The main Committee, the whole select coromi t.tee to -MR. HILL: Oh, I think this policy question is for this committee. I mean if you're -~ I think this suggestion is worthwhile to check what Florida is doing. I'm not sure that. i.t' s qoing to change your minds in terms of the

PACE 110

policies.

MR. CLARKE: I think there will be time for
3
excuse me -- a phone call or some correspondence prior to

the next meeti!lg of this subcommi ttee, becam,e

see it

you're probably going to be two weeks off anyway before
!
you meet again.
7
CHAIRMAN: It would be goon if there were a

report somewhere with the pros and cons, so that whatever

we do is not half-baked. And I think we all sense dt --
1()
right now we really don't know, aside from the philosophical
','':'I: posi tion what the practical consequences are. And that

if that is the case, then we do need to proceed very

cautiously.

Well, I'll ask the staff to do what they can.

~:J

i
~

()

'''::.
'2::

r:"
L <.
I7 "

And I guess we'll just have to make a judgment on what we get as to whether we have enough information to make a recommendation to the committee on this.

MR. TIDWELL: Mr. Chairman, I want to make it
1~I
clear that my problems with this is not -- it's not
)11
predicated from the executive giving up something. I just
'1
want the implications of what's done to be fully realized.
),
I don't know what -- what they would be. That's my
,3
reluctance to changing. And I have philosophically no

problem with the General Assembly doing what it wants to do,

PAGE 111
!---~-- ~ ...- ~-~-----~--~-----~-~----------------------------------------------1

process. That's -- that's just universally recognized.

i

2

That's something that you all ought to do. But if -- if i

I

i

I

in trying to get to that goal, we do something that prohibit~

4

utilization of these massive federal grants on a timely

5

basis, then I'd be --then I want to see if that's worth the

(1 i:

price.

I

7

MR. TURNER: I will concur with that philosophy

as well.

MR. BROWN: Mr. Chairman, just one last thing.

with

in

In suspecting that that was part of Charlie's problem/that

: j r0o:

gave rise to my suggestion that you had this information

o

'"

on Florida because these concerns and very similar

language wer~ raised down there. And I think you oan ~~e

from their experienc~ that dire conSeque~ces need not

r

necessarily flow from this legislative participation in

~

~~

::>

j b '..r~~

this program.

1:1

CHAIRMAN: Well, I think in addition to knowing

what's happening in Florida, we need to know what's

19

happening here ~n Georgia. And that's where -- Charlie,

2U

maybe you can be of some help and the department heads can

be of some help. Now, whether we'v~ qot enough time to

pull that together or not, ah, we'll just have to wait and

see.

MR. TIDWELL: I would want to ask Clarke to help

us with this. He -- his folks in his shop get this stuff.

._-_._-------_.._--- ---- ----- - - -- --------_.-. ---- ---_.
You know, just because the Department Head wants something,

it's got to get by OPB. And OPB is almost as rough as

3

Pete over here.

MR. HACKNEY: Oh, they're a lot worse than we

are.

(Laughter. )

,i

MR. TIDWELL: They work them over. They

don't -- you know, they don't -- Department Heads would
9
love to get out and run the world. And they're kept in
10
check by the Executive just as much as they are the

'C".
:1.
~

,I

--

1~

..}

(\"~--)/\. rC-"""'-O_

~
"

',-,'=---./' /

I-l >-

>,-. I-::

I:'

..:l

16

cD
1:

hC:,

<i
17 'c"o

18

19

20

legislature. CHAIRMAN: All right. You'll follow through
on that then for us, Charlie. That would be helpful. Can we move on then to paragraph 4, new
paragraph 4, which is old paragraph 6 MR. MONIDEZ: Mr. Chairman, let me just raise
one question that occurred to Frank Edwards that the committee might want to think about, whether or not you want any language in the constitution to take care of a situation when you don't pass a new general appropriations

b ill. And he wanted to raise this whi.1e Pete was here to

think about that question, noting that, you know, other

states and even in Georgia there's been some effort in more

recent years to try to cover ourselves, so to speak, for

- - ~ - - ~ - - -

PAGE 113
~--_..---._------------ -------~-.-.- ----------.- -'---'---1

~~. HACKNEY: Continuing appropriation in the

!

!i

I

2

event -- like we had prior to 1962.

!

I,

.3

MR. LAMBERT: Uh-h~h.

4

MS. MONIDEZ: Yes, sir.

MR. TURNER: That's dangerous.

MS. MONIDEZ: Just from a standpoint of, you

know, a policy statement.

MR. CLARKE: I want to make one quick telephone

9

call. I'll be right back.

:0

MS. MONIDEZ: For th~ subcommittee to be able to '

say that, "Well, we did consider this. And we decided one 'c"
way or the other."

He just wanted to raise this.

-.

r
l S ". .'J -\~

,::.'
! ~)

.,":-j

.,I I

.}.
~

MR. HACKNEY: There's a lot of suppor~ for this in the House.
MR. TIDWELL: There was a prpposal a year -- in '78. I think it was the '78 session. And, ah, the Governor:

; ,"';;

looked at it and the General Assembly looked at it and

19

that's as far as it got. I believe it was just being

introduced.

MR. CLARKE: This fflay be one of these instances
l)
where you al~Dst come the complete cycle, because that was

one of the great -- looked apon as being one of the great

ills of another time when you had the ability to just put a

little catch-all at the end of an appropriations bill and let

2 3
ii'
4 5
6
7
10

<,
r
1.<' ,~;

..' 1() 2
.7}

,. " 7 1

:.!.:

'~:l

.1 8

1..)

20

22 I

PACE 114
it go on forever. And it did almost until the '61 session. I can see where that could really open the door ... 0 ,"\ device, a ~tand-off, that would j\lst auto:11atical1y left it in somebody's hands to do the job. I think you're better off saying that you're under the gun and you've got to do something, qood or bad.
What do you think, Charlie? MR. TIDWELL: Well, that's kind of -- I think the way it was resolved. It was viewed as a two-edged sword. Sometimes I might CHAIRMAN: Maybe we ought to take a break here for our court reporter. COURT REPORTER: Just two minutes, if you don't mind. CHAIRMAN: All right. I apologize for that, really. We've gone on for COURT REPORTER: Over 2~ hours. CHAIRMAN: Well, two and a half hours. Let's go off the record here if we may. (Brief recess.) CHAIRMAN: On the record. And let's complete the discussion on this point here. And then we'll adjourn and reconvene with the regular committee next week. Charlie, do you remember your point? MR. TIDWELL: I think my conception of what

PAGE 115 -- -------- -'. - .-... ------.- ----.--....--... '-._..'.- ---1
ha~pened to that proposal that those that are affected by !
!
that sort of thing looked at it as a doub1e-edged sword.

Sometimes they could get into -- one one side of it could

get into a favorable situation and that would work to their

advantage; if there were a stalemate, continue the status

(l

quo. And then they could look at it and say, "Ah-oh." But

7

I could see that at another time the other faction might

get into a position where they -- they would have the

')

advantate on a particular issue. And it's -- and the

j "'J

other subcommittee dealing with the 1egis1at~ve process and

'.,:1

1J ,. the deadlines to get things done, it's tQ~ Speaker's idea o o

12 ., that the general assumption -- that the general assembly ,~

funct~ons when they've got to do something. Werve wrest~ed

with the problem on when they have an adjournment, when they

have rea9hed a stalemate. And he feels that just a short

adjournment and then come back, cool off, come back -- at--

1i :;, any longer periods, it doesn't work real well. In other

'I

I"

words, that's the way to get something done, as to say,

;9 I "You -- by this such and such a time, you've got to have it.'!

I think that might apply to this appropriation process. If

the general assembly and the Governor ~pow ~hey've got to

have an appropriations Act, they get one. If either one of

them know that things will continue on, their incentives to

get together and compromise or get one, is not there. And

I think that's kind of why they looked at that proposal and

2i
}
-' 4
7
v
"
9

-. 4
:r
15 '~j
.J
;~
:J
, 16 z'" '.u

, '"" J"1

,:;.)

18

19

20

21

~"t

PACt; 116 and did not pass it or submit it to the people for ratification.
CHAIRMAN: There is another possibility to say the bill is introduced in the House by the Governor's floor leader -- it would become law. But that would settle the impasse.
lI.eughter. ) MR. CLARKE: Well, along that line it seems like that I read at the meeting that I missed that it was discussed about some scheduling. And it was decided that this scheduling between the House and the Senate needed to not be addressed in this committee. Is that correct? I'm speaking specifically of the subject of the Senate getting the appropriations committee into the Senate with very little time, if any, to study it and act, but you're still operating under a deadline. MR. TIDWELL: I think it was pointed out to the subcommittee that that was going to probably be handled by rule. MR. CLARKE: And we would just pass a rule that we will not accept it after such and such a date. MR. TIDWELL: Yeah. MR. CI,ARKF.: But it certainly needs to be addressed because it gets rather unwieldy the way it's operating now. CHAIRMAN: That would throw you over in a special

3

5

7
s

)0
"z
l.l
1'\ U
~

J:, ,>...
'~
:r
15 .~
:.9 .>: ::1
1(' ,n

,~

,,..,

.Y~o

~',l

Ix
i: ~i
!')

20

PAGE
__ ._------~--,_. . - . - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ------
session then.

117

All right. But, again, that's -- that's -- we

have no constitutional proposal regarding that.

All right. If there's nothing further then, we

will, ah

MS. GREENSBURG: I'm sorry.

CHAIRMAN: Vicki?

MS. GREENBURG: Could I take one more second?

Could I just get your concensus on this

subparagraph D. We have recommended deletion. It deals

with general obligation bonds and the 15 percent f ....nancing.

It's the next subparagraph. I spoke with the Attorney

General -- I'm sorry, with the Executive Assistant Attorney

General, Robert Stubbs. And he suggested not deleting

this subsection. That there may be something here that's

not ". ,\"c:I-'" ~ by Article 7, Section 3. But instead he

recommended we might just pass it on to Article 7's

committee on taxation. And, therefore, we could get it out

of our committee, but not delete it in its entirety. Just

recommend giving it. to that committee.

CHAIRMAN: Let's see.

MR. CLARKE: There's one little problem with that.
This -- and correct me if I'm wroog, Charlie -- but as t

under -- Mel -- as I understand it, this article is to be

con~idered this year, where article 7 is not to come up until

PAGE 118

a later time. Now, if we go ahead and submit this ar~icle

and that section is deleted, then the Consti -- and it's

ratified, the Constitution would be 'Lotally without that

section for the time being.

MR. BROh"N: Mr. Chairman, you know, there is one

lucky exception for once. Almost the exact same language

that appears in this provision of Article 3 already appears

in Article 7.

MR. CLARKE: I understand that.

MR. BROWN: Although it relates to the -- ah,
.'.1
_I 'I
" whether tax money could be spent for these types of

contracts, rather than whether they can be appropriated.

MR. CLARKE: I understand that, Kanter. But

I~
what I understood Vicki to be saying is Bob Stubbs felt

1"

j (,

1-':-
~

'w.'

that there might be something in here that would in some way open the door that would not be in Article 7. I don't

! -/

12
~1

know whether there is or not.

MS. GREENBURG: And he's also saying he thinks

that might impair our AAA bonding, ah --

MR. HILL: But, Harold, the way I think this

could be handled is, as it was wi.th the retirement article,

that the amendment of articles 7, which would put that over

there, would be tied on as, you know, to the amendment of

article 3. And then if this were passed, then article 7 would'
25 I t

"--" "---------------P-A-G-E---1-1-9"-l
wquld fail, it's already here. So I think we would still I

cover

MR. CLARKR: I understand that.

I

MR. HILL: And then it puts it allover there. i

And they can look at it more closely and they'll have more

time and get it out of your hands.
CHAIRMAN: All right. So we may move then that -+

what should the motion be then? To achi~ve the result~

you're talking about now.

MR. HILL: To recommend that Article 7 be
"';'J
1J ~ amended to include this provision at the appropriate pointr

And, you know, the staff will just work out the mechanics

of it.

f

'/> -<.;'
t:

1~

~

, ,-',I () L 'r r::I T
i. , r.t: ,"0

CHAIRMAN: All right. MR. HILL: Of moving this subsection "En here
I
over -- as is. We're not going to make any changes. We're just taking it as a whole and putting it over in Article

i ,"\

7.

,
j

CBAIRMroJ: All right. Is there a motion to that

~o

effect with regard to subsection nE"?

0
MR. LAMBERT: Loyce, you make it. I don't know

.~ "I
what they're talking about

.23

MR. TURNER: Well, I'm not sure I do either. But

..,;
if it sounds like it makes sense, I'll make that motion.

"\

CHAIRMAN: There is a motion. Second?

2 J
II
'7 .~
)
:0
.~
1:
1J
<>

r.

:1
,-::':
C' ? .~ ':\

:

1I

I:{

1y I 20 21
)"

PACE 120
MR. LAMBERT: Yes, I'll second it. (Laughter. ) CHAIRMAN: Punch him for us, Charlie. MR. TURNER: If he's going to get me in a trap -MR. TIDWELL: As I understand what you're doing here, you're -- in your revised article you are going to move this to Article 7. You're not just saying, "Take this out. It's not going to be there." Your new -- your revised article will move it to 7. And so the Constitution will always have it. CHAIRMAN: That's the effect -MR. HILL: -- meets and decides what to do with it. MR. TIDWELl.: That's right. Yeah. MR. HILL: And if their article -- the proposed article would fail, it would still stay in Article 3, where it is now. ~m. TURNER: But if they accepted it, it will move to there and take it out of here. CHAIRMAN: Any further discussion? (No audible response.) CHAIRMAN: All right. All those in favor of the motion, aye? VOICES: Aye.

2 3
5 6
8 9
"-'
7
11 ~
J.\
16 'l:l l ., z: <
17 ~ ~J
16
ii
] '! il
20
)'
"

CHAIRMAN:

PAGE 121
- - - - - - - - - - - - - - - - - - - - - - -,
All those opposed?

(No audible response.)

CHAIRMAN: Then the motion is adopted.

Vicki, is there anything else?

MS. GREENBURG: No, that's it.

CHAIRMAN: Anything else from anyone?

MR. CLARKE: Do you want to set a date for your

next meeting now or do you want to wait until you have the

meeting next Monday to do that?

CHAIRMAN: Well, we might. It would probably

h~lp everyone. Our next meeting is on Monday.

MR. HILL: Did you want to meet early that

morning or not?

CHAIRMAN: I think under the way we're talking

about now, we'll make a report which would be a progress

report, an interim report. We've come a long way. But it

will not necessitate meeting prior to the ten o'clock

meetinq.

MR. HILL: How about -- a~l right.

CHAIRMAN: What do you suggest to fit in with

your stafE requirements, Mel, for our next subcommittee

p.H?etinq?

HR. HILL: Tvell, the schedule is pretty free.

There's a meeting on the 31st and then on Tuesday the 6th

there are two meetings scheduled thusfar. The week of the

PAGE 122

5th looks like a qood week on Monday, Hednesday or Thursday

of the week of the 5th.

MR. BROWN: I might point out that Tuesday and

Wednesday is the 6th and the 7th of November. The Tax

Reform Commission will be having the State-wide hearings.

I know Senator Turner is on that. I serve as their counsel

and I'll be gone too. And also the same days for the

followi.ng week.
()
CHAIRMAN: All right. Monday the 5th, November

the 5th?

MR. HILL: That's a good day.

CHAIRMAN: Does that seem to be agreeable with

most people?

MR. CLARKE: And our meeting is this coming

.;J

.L

,

i

1 ; '. .<

~

,~

,l

1'7 L1; :'::1

Monday, the 22nd; is that correct? MR. TURNER: The 29th. MR. CLARKE: The 29th.

CHAIRMAN: Loyce, would it be more convenient
19
for you at ten o'clock in the morning or two in the afternoon?

Roy?

MR. LAMBERT: Either one. ),
CHAI~l: Loyce?

MR. TPRNER: I don't know that it makes much

difference. I'm just going to have to do the best I can.

PAGE 123

MS. BRENT: The morning would be better.

CHAIRMAN: fvtorning? All right. Ten a.m, Monday, I

3

November the 5th. And Vicki will get a memo out letting

everyone know.

MS. BRENT: Is this in the same room, 401A?

MR. HILL: Probably. We'll have to let you

know if it's free.

MR. LAMBERT: What about the 29th meeting?

CHAIRMAN: All right. Where will that take

'J
[I ~.
'C"'
.:J. '.1

place, Harold? MR. CLARKE: It's in -- what's that? 23-MR. HILL: 337

14 "," r'r<
15 '~' ",
J.l:
J ;:1
JlJ l
e"
i7

MR. CLARKE: 337 B, the big room down on the -MS. BRENT: 337B? MR. CLARKE: Uh-huh. MR. HILL: Yes. MR. CLARKE: I was just going to mention, I don't

know whether you and Roy and Charlie possibly had any

reason to go to Julian Webb's tribute on the 5th over at the

Court of Appeals. CHAIRMAN: Yes, that's -- is that on the 5th?

yeah.

MR. CLARKE: That's ten o'clock that morning,

We could maybe meet half hour later or something. I don't imagine that would be too long.

2 3
f 5 6
l) I
10 I: ,..
'".::>:..''
l.
15 "
, ~)
'"~':<
16 zIT.
.~
,:;, 1:
~.
1 7 )-; til
Ik ,Ii

PACE 124
CHAIRMAN: No, I don't think so. Could we make it 10:301 Is that convenient? We do have a former colleague of a number of people in the room who will be retiring from the Court of Appeals. Senator Turner would probably want to be over there. MS. DOYLE: Is there any possibility you could just meet on the Thursday of that week? CHAIRMAN: Thursday, November the 8th? MR. CLARKE: I couldn't. CHAIRMAN: Let's stick with November the 5th then. 10:30 in the morning. MR. CLARKE: I'm going to be in Valdosta on Thursday. CHAIRMAN: Pete, thank you. Join us again. Kanter, you're a tremendous help to us. We appreciate it. We stand adjourned (Whereupon, the proceeding adjourned.)
-000-

2

24 I

C F. R T I F I CAT E GEORGIA, STATE OF ) DF.KALB COUNTY

PAGE 125

I hereby certify that the foregoing is a true, complete, and correct transcript of the proceedings taken by me in the proceedings aforesaid.
This the 5th day of Novernben, 1919.
1y.1~._
David A. McMillan Certifi~d Court Reporter CCR-423
(SEAL)

-000-

i ') "
I
21

INDEX Committee to Revise Article III Subcommi~tee Meeting Held on Oct. 22, 1979

SUBCOMMITTEE MEETING ON SPECIAL POW~RS AND FUNCTION~ 10-22-79
SECTION VIII: INSURANCE REGULATION Paragraph I: Regulation of insurance .. pp. 3-15 Paragraph II: Issuance of licenses. pp. 15-25
SECTIQN IX: APPROPRIAT!ONS Paragraph I; Public money, how drawn. pp. 26-27 Paragraphs II: Preparation, submission, and enactments of gen~ral
appropriations bill, and IIIi Ge~eral appropriations bill. pp. 27-49, 93-112 Paragraph IV: Gene~al appropriations Act. pp. 50-92 Paragraph V: Other or supplementary appropriations. pp. 112-117 Paragraph VI~ Appropri~~ions to be for sp~cific su~s. (~ee transcrip~
of Article VII, meetings held on: Augu~t; 12, 1980. pp. 60-~4 September 5,1980. pp.16-95 September 24, 1980. pp. 6-24, 29-35
ARTICLE VII: TAXATION AND FINANCE SECTION IV: STATE DEBT Paragraph IV: Certain contracts prohibited. pp. 117~1~1

""""-------------------------------.,
STATE OF GEORGIA
COMMITTEE TO REVISE ARTICLE III of the
CONSTITUTION OF GEORGIA

Room 337-B

State Capitol

I

Atlanta, Georgia

Monday, October 29, 1979
10:00 a.m.

I
I

I
" "" - ---------~

! i
I

BH;\NI>ENBlJHG &: HASTY

SCIENTIFIC RFPUR f'!'JC

l~hL\L IRAIL, f)(ill(j"\,,VI:!l. Ch)J'~(;IA \')j)\

1

;

942(J482

I

i

,'!\ 1)1 II< A lIONS CON V H\J liONS

I

I

I
------~ "" -"--"

~ PRESENT WERE:

I:

2 il

COMMITTEE MEMBERS:

:,1

:1 il

HAROLD G. CLARKE, CHAIRMAN

II
4 li
.!

DR. GEORGE PARTHEMOS DR. CHARLES PYLES

:i

MR. ROBERT WALLING

5

"
11

"

SPEAKER THOMAS B. MURPHY

'IIi

MR. GLENN W. ELLARD

MR. HAMILTON MCWHORTER, JR.

SENATOR JAMES TYSINGER

REPRESENTATIVE J. C. DAUGHERTY

MR. DALE CLARK

JUDGE FRANK S. CHEATHAM, JR.

MS. BARBARA RYSTROM

MRS. FLORENCE BRENT

!U

SELECT COMMITTEE STAFF:

MR. MELVIN HILL MR. MICHAEL HENRY MS. VICKIE GREENBERG

OFFICE OF LEGISLATIVE COUNSEL:

DR. CYNTHIA NONIDEZ

15 "
'"ex;
::>
16 ~,.
'l"
<)
J 7 '"

OTHERS:
MR. CHARLES TIDWELL MR. ROBERT GIACOMINI MS. MARY DOYLE

MR. ROBIN HARRIS

1':1 ' 20 :

')1 _;'J.

I

PAGE 2 l
I
I
I
!
I
i

[1------

PAGE 3
p -;~-~ -~ E--~-~-~-~ -S---------------I

1 iI

i:

2 I:!!

CHAIRMAN CLARKE: We'll corne to order and try to get !

I'

I

11

I

'I
3 il, our machinery moving on somewhat this morning.

First, I want i

Ii
-1 ': to say that I appreciate the work all of you have done with
:'"I!

the subcommittees. I am very gratified at the attendance

11 that has been evident in each one of the committees and the

7 interest that all of you have shown.

8

I think everybody knows that the procedure we intend

9 to follow this morning is one of letting the chairmen of each

10 subcommittee give a report on the work that has been done by

his sUbcommittee, and to run through the work product that

has been sent out for each of you.

Now I don't think it would be possible for us to

- attempt to sit here in this full committee this morning and

15 ~ do redrafting of these drafts. What I would like for all of

\~

,<

::>

16

l%l
Z w

you

to

do

is

to

give

your

attention

to

the

explanation

given

a

I

<:

17

c:< l%l

by

the

subcommittee

chairmen,

ask

any

questions

you

might

like

is "I to ask and make any suggestions or criticisms that you might
,
I like to offer as to the work done by that particular sub-

20 committee. Then the various subcommittees will go back to
-),' another meeting in order to consider the suggestions that are

given to them.

23

After that, we'll corne back to the full committee

for a complete reconsideration of all of it and finally for

the completion of a draft. Now after that draft is done, if

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

PAC;E 4

ii time permits, there's one other thing that I would hope we

would be able to do. That is, I would like for us to go

3 through whatever our draft is and say these are the subject

4 matters we have treated, one, two, three, and we've treated

them in this manner. And attempt then to see if all those

SUbject matters are necessary for treatment in the Constitution,

:1 attempt to see if there are others that are necessary or

8 desirable which we have not treated. Then to take those q things and see if the words that we have put rothose subject

JO matters are the right words and if they're in the right place

11

1-.
'o"

so you would have a nice even flow for an Article.

~

~

J2 :

It may be that time will not permit us to do this

~/~" (~)

part of the job. I'll be somewhat disappointed if that's the

14 ~ case, but in any event I appreciate the progress that has



1:

15 ~ been made so far

..':";
:>

3Cll
16

So I think what we need to kick off with at the

cz

]7 ~" beginning of the meeting is George Parthemos' committee which

Ix dealt with the composition, the mechanics and procedures of

i9 the General Assembly, and that should be the first subject :20 matter that we get into this morning. George, will you take 21 it over please?

DR. PARTHEMOS: Thank you, Mr. Chairman.

I think all of you have a copy of the report that I'll 21 put forward in making my report to this committee. This, of

course, is the subcommittee on organization and procedure. We

PAGE 5

["---------------

- ---- ---- ------ ---------------------------1

I i'\i met on four separate occasions. Our meetings have been well !

2 attended, they have generated a lot of good, meaningful,

3 constructive dialogue and some debate. I have been impressed

4 with the dedication and the work of the subcommittee and I

5 should like to commend them at this time for their -- the

6 effort and the work that they have put forth.

The subcommittee has covered every section of Article

8 III that has been assigned to it and I think perhaps the best

9 way to proceed is to sim~ly go through the Article III and the

10 sections that were assigned to this committee and indicate the

I~~V~~,

:.:l

7

11 ~ changes that this committee is proposing in this draft. If

~

1-) -

~"0'; you

have

any

questions

--

Mr.

Chairman,

I

think maybe

if

they

(~I=!)}~~ ~ have any questions I'd like to try to respond to any. I don't

---------

I

14 : know if we will ask questions in the process or wait until

'<
I
15 :~ afterwards or whatever procedure you want.

-"

'::1

!ti ~ '-"

CHAIRMAN CLARKE: I think, George, any way that you

"z

<:

17 'w" would like to handle it as to your presentation, whether you

18 : would like questions as you go along or whether you would like

19 I, to reserve them until the end of your presentation, I will leave

20 " up to you.
~I
DR. PARTHEMOS:

I would like to say that I would

appreciate any suggestions that any members of the committee

may have. My subcommittee reconvenes again next Tuesday,

24 November 6, at which time we are going to consider the remainin~
!

items that we have not resolved, but I would be pleased to have!

,-----------.- - ---- - --- --------------------------

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

PAGE 6
---_._----,
~ any su~gestions that you might wish to make on any of the

2 II items that we have considered.

II

3 II

So I will proceed by beginning with Section I of

4 Article III and moving down and again indicating to you some

5 of the decisions that the subcommittee has made and is

6 II proposing in the draft that you have before you.

II 7 II

Section I of Article III represents no change at a11,1

I,"II

8

I, Ii

it

retains

the

exact wording

of

the

current

Constitution,

so

II

9 II there is nothing there to point out.

"

I

10

Section II of Article III, in format and organiza- I

III Z

I
i

11 Io- tion represents a significant change.

It consolidates current I I

~

0w
12 ~ Sections II and III of the present Constitution.

I
It conso1idat~s

(~~r~~ them into one section. The current Constitution deals in 14 separate Sections with the Senate and with the House of

!;;

<.

l:

15 .:. Representatives, so the proposed Section II then represents

III

:>

16

~
wo

a

consolidation

and

a

rearrangement

of

the

current.

That's

Z

<l

17 : one change. Secondly, the propos.ed draft in Section II,

18 II Paragraph I proposes fixing a specific number for the composi-
Ii 19 II tion of the Senate. It deletes that "no less than S4 nor more

20 Ii than 56" and simply sets the membership of the Senate at 56.

21 I! The same is true in subparagraph (b) of Paragraph I with i'

22 I:I respect to the House, it fixes the membership at 180. The

i 23 Ii subcommittee considered at some length the notion of setting
Ii
I
24 II a range, no less than nor no more than. The final decision t:

25

Ii!'.
ii of

the

subcommittee,

at

least at

the

time

the

draft was

i

LL

----_._--_.

- - - - - - - _ .__..._j

PAGE 7

:1-----

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

i'i completed, was to specify the exact number and not to

, !I incorporate any range for membership in the Constitution.

3 Ii So that represents a change from the present provisions.

II

4 Ii

In Paragraph II of Section II, the provision

':

II

5 :1 concerning apportionment and districting are consolidated in

I"i
6 Ii a single paragraph. They are presently in two separate

7 I'II paragraphs of Section II and Section III, authorizing the
I,
8 II General Assembly to "create, rearrange, and change Senate and
9 I'II House districts as it deems necessary and proper.", but it

10 does. inc ludELprovis i6ns for certain districting standards,

Czl

Ii;::
ex

specifically

that

"Such

districts

shall

be

composed

of

o...

w

(~~~)/I~ ~'3V!i.-.1

12

: ~

compact

and

contiguous

territory."

These are provisions which

ClOT"". are not presently in the Constitution. So that represents a

14 .>.-. change .

'<
J:

15 .:>
Cl

Paragraph III defines the qualifications for

0:

:>

16

~...
oz

membership.

It here again consolidates in one paragraph

17 :<ii your present provisions and it makes qualifications for

i/\ II Senators and Representatives uniform. As you know, there are

19

i
II

different

qualifications

presently,

in

the

Senate

25

years

of

20 I,
I! age. This consolidates into one paragraph and make~ them

I'

'i

21

!i
I

uniform.

As you can see it sets qualifications and makes

:1

22

Ii
Ii

an

age

qualification

of

21,

a

residence qualificatiC?n,

citizen

23 ii of the United States, resident of the state for at least two

Ii

24!

Ii years and a resident of the territory embraced within the

II

!,

25

ilII
l

i

d__is_t_r_ic_t_

_f_o

r_

_o_n_e_y_e_a_r_.

_

_S_o_

_th_

i_s

r-e-d-u-ce-s--th-e--a-ge- and

reduce-s------'

PAGE 8

~ the residency requirement for membership in the General
I'

2 it Assembly and consolidate and makes them uniform.
;\

3 ;1

Paragraph IV of Section II was transferred from

4 Section V of the present Constitution, Section v, Paragraph

5 VII, and it seeks to identify those persons who would be

6 disqualified for membership in the General Assembly. It

represents a significant rewriting of the current provisions,

seeks to clarify and make some changes.

9

The first disqualification, of course, deals with

10 military disqualifications~ the second deals with persons
'.:l I
11 ~., holding any office with emolument under the United States,
0-
12 "~" this state or any other state~ and the third disqualifies
@r~ members of the General Assembly from holding any appointment, 14 >- any other office or appointment having any emolument annexed <f:r 15 <!> thereto during the time for which such person has been elected. :"'>" 16 .~.. It simply prohibits an elected member of the General Assembly Q Z <l 17 ~ from holding an appointed,'office. That section does delete

18 \ from the current Constitution the provision that during the
19 I term for which he was elected, no Senator or Representative
II 20 shall be appointed to any civil office which has been created

21 ' during such term. The members of the subcommittee felt that

this provision was basically not wise and unfair in the sense 23 that it would disqualify forever any member of the General

24 Assembly from holding any office that was created while that

PAGE 9

might have voted for the creation of such office. The

, subcommittee I think felt that this disqualified members who

3 otherwise might have b~en highly q~alified and in some
i
~ instances may disqualify a member even though he may have voted:

against the creation of such office. They particularly noted

t) i that this would disqualify members for positions such as I
7 :1 judgeships and things of this nature, who might possibly be

x the best qualified, or among the most qualified, for such

positions. So the committee in this draft proposes the

10 deletion of that restriction, disqualification of members

.,

z

!!

To repeat, it proposes the deletion of the present

provision to disquali~y a member from forever holdi~g any

office created during that member's term in the Gene~al

, + Assembly. So that is Section II. ;/>

!)

Section III is entitled "Officers of the General

.:)

,''I'':

" Assembly" and that's a change from the current section which
7-

-' is Section IV. This is currently dealt with in Section IV

of the General Assembly. That section specifically, expressly

makes the Lieutenant Governor the presiding officer of the

Senate. The current Constitution does not ~pecify in Section

IV that the Lieutenant Governor pres~de. So ~t does desi~nate

specifically the Lieutenant ~overnor wil~ be the presiding

officer.

Secondly, the provision concerning the election of

a President Pro Tempore is significantly shortened. We feel

,.. _--------_ ._ - - - - - _.._-_. _._ ...-- ----~ --_._--_.-
like we have eliminated and deleted a lot of unnecessary

materials and we have achieved hopefully brevity and clarity

3 in the provision relating to the President Pro Tempore and

4 also the provision relating to the filling of a vacancy in

.c> that office.

The provision, Paragraph II, dealing with the -, Speaker and Speaker Pro Tempore is essentially the same with

some -- with the change in that the Speaker Pro Tempore, who

under the present Constitution is designated as Acting Speaker

JO should he succeed, should a vacancy in the Speakership occur,

,-'

z

Ii t< here the Speaker Pro Tempore would actually become speaker in

,;:,

a.

12 ~"' case of the death, resignation or permanent disability of the

(~~.'_:~?\~E'~"~'.!'. ~~ '<"-';2/; "'

Speaker,

rather

than

Acting

Speaker.

-

14 ~

Paragraph III just simply defines the other officers


r

1 5 '~ of the two houses.

CJ

'1;;

;::l

]6 'z" 'C'"\

Section IV, which embodies most of the provisions

'2

<:

17

t h a t n.
,;':i

are

currently

in

Section V,

deals

with

the

"Organization

l8 and Procedure of the General Assembly". Subparagraph Cal of

19 ii Paragraph I is concerned with, of course, sessions of the

20 General Assembly and it first of all defines the General

-):
.oj

Assembly as a continuous body during the term for which the

*,,,,,
-'-.

members thereof are elected. The present Constitution does not,

~J in these words, define the General Assembly as such a continuous

body. It then provides for the regular sessions which embodies

the current provisions of the Constitution but then it allows

PAGE 11

------------_.-- - ---------------- - - -

--------"

1 ~the General Assembly -- it gives the General AfsemblY autnorit~

2 IIII to convene at some other date, it is authorized to provide by !
I:
3 i law for a different date of convening than the second Monday Ii ,I

4 'i in January of each year. This was done for the purpose of

5 allowing the General Assembly to meet for organizatiqpal

6 purposes earlier than the specified date in the second year

7 if the General Assembly so deemed it desirable to do so. So

x that was the purpose of this, to authorize the General

Y Assembly to convene itself at some other date in those years

10 for purposes of organization.

"z

II ~

The committee spent a good bit of time -- devoted a

o

Q.
w

~~, 12 ~ good bit of time with t~e matter o~ the lenwth of the s~s~ion.

. ."'. . i ("~':).-)=~!)/ I There was some consideration to authorizing a longer session

14 ~ or to removing the 40 day limitation, but after considerable

'-"<l
:r

15 ,~-, discussion, the 40 day limitation was retained.

'"::>

16 ~

In subparagraph (b) of Paragraph I, this was another

a

7-
<
17 ~ subject that invoked considerable discussion and dialogue and

ji:; II debate and that is, the authority of the Governor to adjourn i: i!
19 II the General Assembly when the two houses themselves we~e
I"i
20 i: unable to agree on a dat~ of adjournment. So this ~rovi~iop il
21 j relating to the Governor's power to adjourn represents some

changes in the present provision, seeks to clarify, define a

23 little bit more specifical~y the method, the procedure by which

24 disagreement between the two houses 9n the question will be

25 I determined and what activates the Governor's authority to

~

.

_ ~ _ .

.....J

I
I adjourn in case of disagreement.

PACE 12

Subparagraph (c) represents some little minor

change. It provides that the Senate shall remain in session

41ii in case of an impeachment trial pending at the end of any
5 session, notes that the House, of course, will adjourn. The
:;
(; ;, Senate, of course, would try such a case, the House would
I'
ii
7 \1 indict or adopt motions of impeachment.

Paragraph II, the Oath of Members. It deletes the
,
"
9 !: present oath that is now presently specifically prescribed

!O in the Constitution and simply says that "Each Senator and

Representative, before taking the seat to which elected,

shall take the oath or affirmation prescribed by law." It

simply leaves it up to the General Assembly to prescribe an

appropriate oath for members of the General Assembly.

MR. WALLING: Doctor, just one note that's editorial.

We wrestled with it in our committee, whether to use

"prescribed by law" or "provided by law" and we finally, as we Ix understood were conforming to the editorial standards of the 19 overall committee, the larger committee, so somewhere along .W the line, I think, Mel, we need to decide whether it's going

to be "prescribed" or "provided" so it will be on the sarne

c~ ') I basis throughout.

":3

DR. PARTHEMOS: Appreciate you calling that to our

-,,~ , attention.

The language concerning Quorum, I think it's essentially

"r ~



_

__ . _ .~._.

PAGE 13

the same, there was some minor change. Mel, I don't believe

2 I see it here, but I don't think it was any significant change

.3 in that.

4

Paragraph IV is new c;oncerning "Rules of procedure."

5 We propose the inclusion of a specific authorization for each

6 house t9 det~rmine its rules of procedure. T~is is pretty

7 standard in most Constitutions, it is omitted from the present

8 Constitution. It merely says that "Each house shall determine

9 its rules of procedure."

10

Paragraph V concerning "Vacancies," we sought to

clarify the language in the present Constitution. This

represents what we feel is clarification of language.
Parag~a~h VI and VII are essentialtY the same, as

well as Parag~aph VIII, no changes there.

'":""r

15 .:>

Paragraph IX cQncerning "Privilege of members" of

..:J
.",

::.>
16 .>J the General Assembly is essentially the same except that these a~ Z <:
17 ''"" privileges of members of the General Assembly are extended

18 to committee meetings. This is now expressly stated, we are

1<) putting this in this draft. It is not presently in the

20 present draft. And also we deleted the term "larceny" from

"_I the crimes ~isted there. "Th~ members of both ho~ses ~hall be

I

.,

22 free from arrest during sessions of the General Assembly, or

23 committee meetings thereof, and in going thereto or returning

24 therefrom, except for treason, felony, or breach of peace."

',:: We changed the wording there and deleted the term "li;\rcE\ny" in

1 4 T j \ ( ' E '
.I: L J '.

1

j: !i

that paragraph.

I

2

Then the provisions on the viva voce or viva voce,

3 whichever you prefer, were clarified in Paragraph X.

4

Section V concerning "Enactment of Laws", Paragraph

5 I represents a consolidation of your current paragraphs I

6 and II concerning the journals and publication of acts of the

7 General Assembly. We made we thought adequate provisions

8 for that in briefer language and in one less paragraph and

9 achieved some reduction in the content at that point.

10

Paragraph II of Section V concerns the -- " bills

11 ",z. for raising revenue shall originate in the House " That

represents some minor changes. It deleted the wording in the

present provision where it is stated " but the Senate may

propose, or concur in amendments, as in other bills." That

was dropped as simply being unnecessary in that provision.

u:

:J

16 ~ "o"

Paragraph III concerning the matter of restricting

z

<;

17 ~ bills to one subject matter is still under consideration.

18 This is a proposed draft that we have considered and tentatively

19 adopted, but that will be given further consideration, as will

20 Paragraph IV concerning Statutes and Sections of the Code.

21 I think those two are to be taken together under consideration.

Paragraph V, the provision requiring a Constitutional

majority to pass bills, we sought to clarify the language of 24 the present Constitution and we proposed a statement such as

25

IL:L

indicated
._. .

here, "No bill shall become.law unless
.~_. ----- .-,---------~-. -----.---- -- -.-----'----.-- --..- ---.

it

shall

receive

PAGE 15

~. e~ch .------
I a majority of the votes of all the members to which

house

2 II is entitled under the Constitution, and such vote ~hall so

II
3 [ appear on the journal qf ~ach hous~." We think that this

4 II[I is better language and clarifies th~ present prOV1. S1: 0n concern1. pi g

ii

I

5 II the requirement of a majority of the total membersllip of the I

6 II house to pass bills.

!

7 Ii :1

P~X'agraph VI represents a restatep1ent of the

I

8 IIii present provision regarding roll-call votes and re<;Jardinlf1 the

"
9 i:1i recording of yeas and nays. All these are consolidated and

10 changed to allow the presiding offioer to order a rOll qall

"z

11 I- vote at any time and to al~ow each house by rule~ require

o

"-

~

(~~J)r" ; 1~(ftY!:(l

12

~


roll

oall

vote~

upon

the

request

of

le~s

than

ope~fifth of

its members, that is by rule. So under tpis each presiding

14 .,... officer may order roll 9all or at ~h~ de~~~e of one~fifth ot
".,";
:x:
15 ~ the members present or a lesser numbeX' if provided by the c>: :::>
16 ~ rules of either hou~e, a roll call vote on any question shall :z: <
17 ',"" be:, taken. It goes on to try to clarify uhe recording of

iF; yeas and nays.

19

Paragraph VII in this draft, which concerns the

20 reading of bills, specifies, of cours~, liThe title of every

2i bill and every resplution intended to have the effect of

law shall be read three times (by title) and on three 23 separate days, but the third reading of general bills and 24 resolutions shall be in their entirety when prdered by the ::5 presiding officer or when d~sired by one-fourtp of the

1.-' A. (">"1', 16

membership in either house." This is designed to expedite the

consideration of legislation.

3

Paragraph VIII represents an effort to deal with

4 the question of having local legislation. This paragraph was

5 added to permit the General Assembly to provide by law for a

6 calendar to consider local legislation.

7

Paragraph IX represents a significant change in the

8 I present provision in the sense that it deletes all of the I.) iII present rather detailed requirements concerning intention to

10 introduce local legislation and simply authorizes the General

i

11 ~ Assembly by law to provide for the advertisement of notice to

::>

0-

~

~r: ---12 ~ introduce local bills.

~ ~ ~~, (;1,, 0.--;;-;-:")

<10"''',.
u
"'

MR. HARRIS:

Doctor?

14 >.

DR. PARTHEMOS: Yes?

15 ,~

MR. HARRIS: Could I ask you one question, going

<:)

:'>"

16

~
w

back

to

the

local

calendar?

Cl

z:

<:

1'1 a.;

l'

:I.J

DR. PARTHEMOS: Yes, sir.

MR. HARRIS: Did the subcommittee consider allowing

19 each body to prescribe by rule for a calendar to handle local

20 ii legislation in each body?

!I

21 I

DR. PARTHEMOS: I think the subcommittee considered --

I'm trying to recall exactly how much consideration was given,

we did consider generally whether or not provisions were more 24 appropriate to, let's say, be placed in the rules or placed in

2S i' the Constitution. I think the general -- if I might, I don't
~~.-._~---~-_._~~-~----- ------ -- -- - - - - - - - - - - - - _.._------ -- --- -------- -----_ ..

rr--~----------~ -------------~

PAGE
--------~----------

11--,

1 I! know if I'm expressing my own opinion, but at least the way I

II

I

I

2 ! I read the consensus was that we felt that those matters

3 concerning procedure which were of such fundamental importance

4 should be incorporated in t~e Constitution, but those which

5 were not so fundamental should be left up to the rules. So I

6 would rather think that the feeling of the subcommi~t~e was

7 that this was of such importance as to be expressly provided

8 for in the Constitution.

Speaker Murphy might wish to speak to thi~ point.

lU

SPEAKER MURPHY: I think the reason for it, providing

L? Z
11 i t by law, Robi~, was ~o it cQuld b~ ~~sen~ially unito~ in

both houses. r personally fee~ like it ought to be uniform

in both house~ s~ the Senate would know wha~ our way wa~ and

we would know what their way was.
~

Now we do not have that r

r

. 'i .:,

DR. PARTHEMOS: Yes, Ham?

\!)

'":::>

J6 ~ 'v

MR. MCWHORTER: Mr. Chairman, I'm going to propose

-:'.:

Z

.~

1~1 ~ when we go back that we change this wording to read -- a,nd

18 i I'm not wedded to the wording -- "The General Asseml:jlly roay 1'J , provide by law for the procedure for passing local legislation.

That would give us the right to leave -- limiting, rather

21 than \lse the word "calendar", that might not be conclusive

enough to allow changing the whole thing. That would be

"~.) subject to discussion.

24

DR. PARTHEMOS: Okay. Does anyone else have any

comment on that? I'm sure this matter will come up for further

PAGE: 18

review by the subcommittee. Ham has already indicated he's

2 going to propose some change in the present draft.

3

SPEAKER MURPHY: All I want to do is be sure we

4 get rid of that auctioneering method of passing local bills,

5 that's all I want to do.

6

DR. PARTHEMOS: Okay.

SPEAKER MURPHY: I get tired of being made the

guinea pig on all these television stations and things that

Q show that stuff.

DR. PARTHEMOS: Okay. I think the idea is that the

1: ~ intent here to -- notice of intention to introduce local o Q. ~
legislation still is required but then the procedure to be

defined by law on the handling of local legislation.

In Paragraph X and XII the provisions relating to

15 :~ "Acts signed" and "Rejected bills" were put in separate

~

16

~ ow

paragraphs

as

relating

to

separate

--

different

subjects,

so

L

17 !'"Z they were separated out of the present as they are consolidated

18 now in the same paragraph, we have separated them.

19

Then finally the subcommittee has wrestled during

20 its last I suppose two sessions with the subject of the veto.

21 So it is presently in the process of considering, and this 22 is going to be the principal item on the agenda at our next .'3 meeting a week from today. The present language, of course,

24 is found in Article V, Section II, Paragraph VI and VII and

it was suggested that the provisions concerning the veto power

PAGE 19

1

~~- th~

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

-~----~~-'----I

Governor be transferred to this section of the

I

"' II Constitution dealing with, of course, enactment of laws. It;.
II
.l l,1: was felt this was the logical place to include proyisfons

4 concerning the v~to. So we have simply now -- we still have
il
5 ,I this unde;r- consideration and this is for further study. Thi~ IIII
b Ii does not represent our final recommendation on the matter of

7 III the veto, ~h~ provi~~on in th~s pre~ent d~aft. So nQ action Ii
8 iil has been taken by the subcommittee on that. We simply put

9

II
Ii

thiE;;

in

here

as

representing

the

--

what

we

ar~

pr~sently

10 considering and no final decision on that.

11 ...
o'"
"w-

Mr. Ghairman, that copclude~ at least mx form~l

12 : report. If there are any questions or comments, as I say,
(~~?.~IJ)..1!ZC-1",To"'. ~ I should be plea~ed to have any suggestions concern~n9 any of

',------/',. .

---

14 ~ the matt~r~ that are ~der cQnsiderat~on of this subcowmitt:ee

':<r

15 .:> and I will assure you that whatever suggestions you have I will

"'":::>

16

'z"
.~

bring

up

for

consideration

by

the

subcommittee

and

I

am

sure

0

-.'Z.

17

"-
'0

it

will

receive

the

full

attention

of

the

subcommittee.

18

CHAIRMAN CLA~: Thank you, Doctor. Let me thank

19 you for doing a fine job for us this morning.

20

What questions or suggestions or co~ents do we

21 hear from the committee? Let me say this too, it'~ not a J") forever hold your peace situation as of this morning. If any 23 of you would like to communicate with any subco~itt~e by

telephone or in writing after this meeting, you may certainly

feel free to do ~o. We'r~ not t;r-ying to have a s~atute of

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

PAGE 20

limitations to be clamped on you, but does anybody have any

comments, suggestions or criticisms?

Barbara?

4

MS. RYSTROM: I wondered if the subcommittee has

5 considered the possibility of writing into the Constitution

(, a requirement for open meetings of the houses and committees,

7 something that has been proposed.

8

DR. PARTHEMOS: I don't think the subject has

9 actually come up, I don't recall that the subject has come up.

10

MS. RYSTROM: I'd like to propose it, the courts

'z-'

11

...
o"'.".-.

have decided that

it must be

in the Constitution if

it

is

S@ ;)~'12 : to apply to one session after another, so the only way we could have the kind of open meetings that I think generally

14 :.~.:..; people approve of -- a requirement for this so that it can

J:

15 ~ never be -- I mean we may have open meetings always without

'".~

16

~
oz

a

Constitutional

amendment,

but

the

one

way

we

can be

certain

<

17 ~ that we will always have them is to have it in the Constitution..

18 And I think there is a large constituency for that approach,

19 to have it in the Constitution.

20

CHAIRMAN CLARKE: So this is a suggestion then that

21 will be considered by the subcommittee at its next meeting.
:

"

22

DR. PARTHEMOS: I'll see to it.

23 Ii

CHAIRMAN CLARKE: Any other comments?

25

lL.

_

MR. CLARK: Mr. Chairman? CHAIRMAN CLARKE: Yes, Dale?

PAGE 2:1-

[T-------------------------------.-.-------- --

I \~

MR. CLARK: I gathered from the comments that there

,I

2 1\ had been great discussion or extended discussi~n about the

II
3 I membership of the House and the Senate and I would just offer

4 the idea that putting it in without the range locks u~ in and

5 " there is interest in the size of the General Assembly, $.t

6 comes up t~me and again. It seems to me that giving a range

7 I leaving it at 180, because this has to go through the
Ii
II
8 1 General Assembly and I think any reduct.;ion at this time would
!,
9 ,I ~ot fly, but at the same time locking it at 180 and ~6 f~xes

10 a thing -- fixes a limitation that restricts when we're looking,

,~

7-

1\ ~ for not a restriction but a flexible Constitution.

o

>.

'u

12 :

MR. HARRIS: Mr. Chairman?

\I~~~~~'\) cu"'... ~

GHAI~N CLARKE: Y~sl

'--

14 ~ t;

MR. HARRIS: I'm not a member of the committee but .--;,

<

T

L; '0

CHAIRMAN CLARKE: You're a member of any committee

:'':"">

16 g dealing with anything about the Con~titution.

z'Ol

-0:

i 7 ;;;

MR. HARRIS: My concern on fixing the number is a

little bit different that Mr. Clark's. Going back to wnen we

19 first reapportioned, as you recall, we reduced the number from

20 205 to 195 because that was the figure that qivided into the

population of the state and gave a better distribut~on of

districts, ability on the part of the General Assembly to

district, and then when that was thrown out and we reappor~ioned

~4 ,again, it was reduced to 180 because that was the figure that

was divisible into the popu1atDn, that Came out wit:n:cont;f,guous,

r------~------~---------
1 II districts and created less problems.

PAGE 22 My concern is not with

2 [i reducing the number so much as leaving flexibility that if after

3 i! the 1980 census it was determined that 179 was the figure that
I: !I
4 Ii divided into the population to give the best representation,
!i
iI
5 !1 that the General Assembly ought to have at least that
I!
II
6 i flexibility to come up with properly apportioned districts I'

7 Ii without, you know, doing too much damage to county lines.

I
'I

8 II

SPEAKER MURPHY: You can't destroy them any worse

il

Ii

9 than we have already destroyed them.

10

MR. HARRIS: That would be my -- and I'm sure the

"2

11

~ committee must have
o

discussed

that at

length.

"-

@ . _- ~12 '~"

CHAIRMAN CLARKE: There was, of course, considerable

discussion. But any subject matters that are mentioned by

14 ~ members of the committee or the Chairman this morning will

:<
1:

15 ~ certainly be again discussed by any subcommittee.

:'>"
16 ~ 'C"
2
< 17 ~

Any other comments or suggestions? (No response.)

18 !I

Well, George, to you and the members of your

I 19 sUbcommittee I again want to say thank you. You're making

20 II great progress and we'll look forward to getting the final

21 Ii product.

Ii:1
22
Ii

Oh, one thing I might just mention, and we can talk

23 Iii' about it at the subcommittee meeting. Paragraph VI is also

24 I'Ii treated in the draft of the committee on broad powers and we

lII
25 l' might very

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

. --

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

... _---. ..

PAGE 23

m~tter of where it is place~~
Ti~ Sweeney was not able to be with us this morning
r
Tim and all of the members of his committee have been working

equally as hard as Geor~e's co~ittee and th~y have come UP with what I think is a very progressive draft. We're fortunate;
i
to have Or. Chuck Pyles as a member of the comm~tt~e a~d he's going to sUbstitute for Tim and take charge of giving an

explanation of their draft.

OR. PYLES: Thank you, Mr. Chairman. I doubt that I

1!J could do the kind of a job that Mr. Sweeney wpuld do because

ne of ~y tnat~entiveness to the kind of detail that

wo~ld ~av~

brought to the deliberations this morning. I am pleased to
see the members of our subcommittee here thi~ morni~g. we too'

have had, I believe, four meetings in which we have gone

15 ~ into some detail on this part of the Co~stitutionr

.>:

~

I

16 ~

At the outset our charge was to deal with the

z <
I: ~ Sections VI, VIII, XI and XII of Article ~II. We wanted to

Ii emphasize t;.o you too that we felt that the State Const;i.tution ! ') should be a power limiting document document rather than a
':0 I power granting document, as is the case in the Federal
:1
)1 Constitution.
)',
We ~hought too that the nec~ssary and pro~~r clause
that was contained in Article II, Section VIII, Paragraphs I '.1 and Paragraph I of this draft is an essential provision i~
any State Constitution and provided us with a start~ng point

PAGE 24

] I from which all of our discussion would proceed.

2

The powers granted to the General Assembly in

3 Paragraphs II and III, eminent domain and police power were

~ felt to be inherent in the necessary and proper clause. They

5 are historical powers which have always been reserved to the

6 State government and we felt the necessity of including them

in the Constitution would be redundant to enumerate these

g powers again. Therefore, we deleted Paragraph II and III,

9 not with the intent of effectuating a substantive change, but

10 to avoid saying what we felt was the obvious.

"z

1\ ~

Consistent with the desire of this subcommittee to

change Article III, Section VIII structurally, Paragraph II

is now entitled "Specific Powers" and there were some powers

that we felt should be specifically provided for.

Subparagraph 1. under paragraph II was taken without

CJ

'":::>

1(j

o<:1
Z

change

from

the

present

Sectbn

VIII,

Paragraph

IlIA of

the

x.

<

[7 ~ present provision. It was felt this specific power was needed

to remain in the Constitution in the light of the legislature's

delegation of the zoning power to local governments and the

courts' construction of that delegation.

Moving on to subparagraph 2., the article dealing

21 i with the militia, we felt it was important to retain the
I
23 ':. portion dealing with the courts-martial and non-judicial

punishment of members of the militia, particularly when these

25

upeople

were.

n o. _,t_,_i,n_.

the
~ ,_,~

F._e_d._.era._l'- _.

s.er. vice.-

and

.s h o u l d b e i n -'.------0.. -.' -------- - - - -....-----------

[1---------------------- ------.-----.--------.

P_--\.GE 2?

__. __ .

_ _ ~---L.

~._---:

1 I: accordance with the laws and dir~ctiveSi of th,a Governor in
1i
2 II his capacity as Commander-in-Chief. Note that the General

3

'I
I'

Assembly we

still

felt

had

the

power

to

create

the

militia

and

Ii

4 Ii we thought that the specific power to do so should be retained

5

I:1I
Ii

for

historical

reasons

but we wanted to drop some of

t~e

ii

6 II excess verbage that was present in the present Constitution.
IIIi

7'

Subparagraph 3. of Paragraph II ~s a broad grant

;1

II

8 i'l to the legislature to exercise its power to th~ ext~nt

,
9 I: necessary to comply with federal law. Now we changed that,

10 we've got another -- it should be on the back sheet h~re of

"7. 11 g one of there --

"'-

!~

"' :

.\/"\<I\r~L":~-::,::':,;=.~~.:._,~Y/\, \Jlr.'..'~~

~
u
I

MR. HENRY: It was just passed o~t. DR. PYLES: Oh, was it passed out? All right, what

14 ~. we wanted to do was to add into that ~he -- to ta~e into

<J.
r
15 ~ acco~t and provide for the participation ~ot only of the state

I>:
::>
16 'o~" but of political subdivisions and instrumen, talities of the z
17 ~ state, was added to be in compliance with federal programs.

:H I And I think you will notice in the Constitution itself that

19 there is almost ad infinitum d~scussion about tvyi~g to I,
2U comply with the federal laws and we just felt that was totally

21 unnecessary to put into the present Constitut~on, or the
n revision.

Paragraph 4. deals with the question of the ~"""' , continuity of state government in the event of an emergency,

particularly with respect to a national emergency deal~n~ with

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

~.--~----~-.

1 I"i anything that would result from enemy attack.

PACE 26 We felt that it

Ii
2 II was not necessary to put in earthquake, atomic disaster or

3 I"I whatever. This, we believe, does restate the emergency power
i;
II
II
4 of the state legislature in the event of enemy attack and " " "[1

) as we know -- as we should know already -- the legislature has

6 already provided for much of this by statute.

7

Paragraph III dealing with the "Powers not to be

8 abridged", we modified it from two existing provisions

9 without mentioning the specific powers of police and eminent

lU domain, we felt that the concept of a prohibition against the

General Assembly of bridging its own inherent powers as well

as the concept of the prohibition against a judicial

construction which would abrogate those powers should be

stated. This statement does allow the judiciary more latitute

15 ~ with respect to the interpretation of any attempt to bridge
'::">
16 ~ any inherent power with the further prohibition against the
oz <
17 '~" construction of any inherent power so as to prevent its

18 ! exercise by the General Assembly.

i

19 II
i'

Paragraph IV, "Limitations on special legislation",

"

20 this provision is in effect no substantive change, some

21 editorial changes. It is a provision that does belong in

the legislative Article and it would also take care of several

of the limitations that were contained in Article III, VIII,

Paragraph V.

25

On Paragraph V, "Specific limitations", this just

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

PAGE 27

fI--~---- - - - - - - - - - - - - ~~-----~- -

- -~ . . . .

- - - . . ~

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

,I deals direct],y with the specific 1imi~ations op ~h$

i

i

2 legislative power.

3

Subparagraph 1. prohibits the General ~ssemq1y from

4 granting corporate charters and manda~es that it provide

5 incorporation legislation. This is taken directly frqm

Section VIII, Paragraph V of the present provi,ion and is

intended to take care of that part of Section VIII, Paragraph

V not dealt with in the proposed Paragraph IV. ~ot~ that

I'

we 9 'I ,I

did

feel that we had to r~tain this specific d~te,

10 August 13, 1945, in the present draft.

'.:I

Z

11

Suparagraph 2 of Paragraph V is a ~est~tem~~t Q~

'>J,

~

12 ,~:

I\/(~;~_"\d\f~ ~'J'- Secti~:m VI~I, Paragraph VI of the present prClvi~io~t This

~~~ I \,>-

'I prohibits the General Assembly frOm forgiving an aqt of a

14 : corporation granted a charter prior to the ~nactmeftt of the

.~

is

I
~

general

incorporation

legislation,

which woul~ Qtp~rwis~

'" 16 '~" work a forfeiture of their charter except upon the conqition

z
<:
\7 ~ that a corporation de novo or novate its charter under the

lK current incorporation statute.

19

~ubparagraph 3 of Paragraph V is just a restatement

of Section VI~I, Paragraph VIII pf the present provision 2\ with no substantive change.

Subparagraph 4 of Paragraph V, we have already
!
23 i alluded to, dealing with the change of a11owanges a~d

ii compensation of members of the General Assembly, and I guess
I;
2S , we'll talk about which section it ought to belong in at a .'-------------------,------- - - -

PACE 28

", later time.

.~

Subparagraph 5 of Paragraph V is a statement of

the prohibition which presently is at the end of Section VIII,

Paragraph IX, a statement on the limitation of the power of

" the General Assembly to regulate locally owned public utilities.

(,

The section that caused us most of the problem was

7 Ii the section dealing with gratuities, rather extensive treatment

in the present Constitution, and we felt that there were

three possible alternatives to resolving the problem and one

was to leave the present language in there as it was, which

requires a Constitutional amendment to be brought in every

possible exception and it has to be voted on in a general

election. The second possibility was to provide the General

Assembly that they could make, by legislative enactment,

exceptions to the gratuities prohibition, but subject that

legislation to special -- or to popular referendum. The

third alternative was the one that we finally adopted, was that

18 iiil requiring some kind of extraordinary majority to -- for the

I

19 I"I legislature to be able to provide some exceptions to the

II

20

Ii
I

no

gratuities

rule

and

we

settled

on

three-fourths

of

the

21 I'!I!i elected members of the General Assembly to provide for this

22 I gratuity.

-l-''

MR. HILL: Plus the Governor's signature.

24

DR. PYLES: Plus the Governor's signature, right,

25 " wi thin thirty days. We wanted to be sure that was in there. I~_.

PAGE 29

rr---~-- ------------

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

--------,

1 Ii Our intent was to try to get ri~ of the e~tr~ora~nary length II

2 \1 of the ballot in the case of referendum eVery two years. On I
II
I:
., the other hand, we had some debate as to whether or not to

4 i leave this to the discretion of the General Assembly but again

5 by upping the requirement to three-fourths we felt that thi~

6 : would aid in any i~pact that it might have on the voting
I,
populous as well as in the legislature before it is presented.

b,

The section dealing with Impeachment, we wanted to

9

II I

be

specific

that

impeachment

would

be

provided

onfY

in

the

cases

"

I

Ii) of executive and judicial officers of the st~te. We looked

czo;

11 ~ at the concept of separation qf powers and wanted to be very

.oQ...

sv

12 ~ clear that there were adequate provisions within the peneral

/~'j_y~\

~

~S:~~~~~ ~Assembly itself for the censure and handli~g any improprieties

14 ~ on the part of its own members as well a~ the vO'l:e of th~ peoPl~

~

!

15 ~ at a subsequent election.

4:

J

16 :.r...

We did make one oth~r important change I ~hink and

i
i

o

I

;

i

!

that is we were concerned with the possibility of an i,mpeachment.

i

Ps being brought by the House and then the trial of the Sena~e

I

]9 in the Senate, it was a question of how long would tre Senate

20 'I remain in session without some concurrence on the part of the
'I
21 . House. We felt that this was not one that would cause that

22 : kind of problem. In addition we changed the wording to add 23 that any person who was convicted of an impeachable offense

would be disqualified from drawing their retirement provision

and we alsq deleted the words "wl1o shall have been in office",

which would preclude going back to someone who had subsequently

2 left office and obviated the need for an impeachment proceedin~.

3

Mr. Chairman, this report, brief somewhat, not by

4 any means complete nor in the detail that Mr. Sweeney would

have given it, but it does provide for what we have done

() to this point, we have worked hard and I think there is still '7 some cleaning up to do.

CHAIRMAN CLARKE: Very good, Chuck. Let me open it

up again for questions, recommendations, criticisms or ](1 comments.

(No response.)

Don't tell me that I don't hear any. Well, again,

the statute of limitations has not run so you may comment or

question or criticize --

,I C" '::

':J

'" ,

::> m

, ":~ '2.

"C'1"

.':
.., 'iX:

SENATOR TYSINGER: Mr. Chairman -CHAIRMAN CLARKE: Yes? SENATOR TYSINGER: Could I ask one questiOn?

CHAIRMAN CLARKE: Sure.

SENATOR TYSINGER: Up in Paragraph I, they use the 2U . word "not repugnant to the Constitution" and that's not the ".,1 language -- the repugnant is, it's "in violation of" and I

just wondered -- that word just grates on you.

CHAIRMAN CLARKE: Repugnant is a word that is more

frequently used as a word of art in the legal field and I

think it's a little broader than "in violation". ~---~-_._~--~---_._- ------_._---,-~.~.

PAGE ~l

f!---'--'--- . -... - - - - - - - - - - - - - - - - ---------.- .--- -------- -----.----------.------- --------------1

I Ii

MS. RYSTROM: It is what we have in the p~esent

:1
2 !iI Constitution, Paragraph I of Section VIII in A+,ticle III.

II,I

3 II

CHAIRMAN CLARKE: lIm not sure, I had pot looked

Ii
4 i back, but

!i

it )"

"

SENATOR TYSINGER: Apparently we use ~i~ferent

Ii

6

I,
!i

language

in ano~her Article that's

sayin~ the

sa~e thing.

II

II

7

!i I

CHAIRMAN CLARKE: Any other conunents? Yes, $ir?

8

SPEAKER MURPHY: In reference to what he said

<) il about the Senate staying in session, we have worked on that

10 in ours and we jus~ provided that they will Ftay in session

until completed, so it may very well need to be transferred

to their section, I don't know.

C;:HAIRMAN CLARKE: Well nq no~ $Ull'e what the most
appropDiate spot for it would pe, I'm a little inclined

however to think that the length of the session is more

":'"J

16

~
w

appropriate

in

your

procedural

sections

rathe~ than

in

this

C

Z

<
J 7 ~ one but we can discuss that and work it out because I don't

think there's any conflict between the two, it's just a

question of placement.

20

Any others?

').
.. I

MR. HILL: Mr. Chairman, I'd like to point out that

" from the standpoint of the subconunittee drafting this, I think

23 the most significant change is Paragraph II, Subparagraph ~, 24 which gives this broad grant to the General Assembly to provide

for the participation in federal programs and compliance therewith.

PAGE 32

Now there's three or four other places in the Constitution

2 that has specific requirements about participating in federal

~ highway aid programs, Highway Beautification Act programs. It

4 really covers more than it might appear to. This is a very,

very important provision, this subsection 3, intending to give

the General Assembly all of the power that it needs to comply

7 with federal law. I just thought that should be pointed out

X I, specifically because it does remove from other places, not just

in your Article but elsewhere, much of the language that we

10 find there now.

11 i-
o'"
"w
12 ~
(~r""" ~

CHAIRMAN CLARKE: Anything further? (No response.)
CHAIRMAN CLARKE: If not, letts go on to the final

14

,. ."

subcommittee

chaired

by

Bob Walling,

dealing

with

such matters

/

:l.

1" i)

~

as

insurance

and

appropriations.

Bob, if you'll just take it

'"::>

J6

~ ow

over

and

go

from

there.

I

<:

i7 ~

MR. WALLING: Mr. Chairman, our two sections were re-

viewed by the committee in two different sessions which

lasted longer than they should. We dealt with both matters of

substance and form and I'm not sure whether we spent more on

form or on substance, but we did find out Chairman Harris that

one person's junk is not necessarily junk to someone else.

Be that as it may, we did we feel like make a

substantial contribution to the insurance section in getting _'5 rid of a lot of verbage that had developed over the years. I'll

----------- PAGE 33 rr~~--------------

---------~---------------------------------l

I !I get into the details of that in just a moment.. We had good

I,
2 IiII help from Vickie Greenberg on the staff and we appreciate

3 IIIi that, Vickie.

!I

4 II

I think maybe the !;>est way to get at it wQuld be

!i

5

i!
ii

to

just

give

you

an

overview

of

the

existing

insurance

section

(1 IIIi and then get down to particulars. When you take a look at it

7 II,I!' you can see why we were able to eliminate -- at least suggest Ii 1i
1\ I', to you that we eliminate a lot ot word~ in the present

9 Constitution.

10

Take a look at Section IX. We have crossed out

11 ~ the words that have been eliminated and in Section IX we're

o

"w-

(~~1V"".". ~ w~ ~~ ~,J ,j

I~' :'~=" left with about -- we started off with about two and a half pages and end up with about six ov seven lines. That's

14 ~ after about the eighth or ninth draft that the committee had
r<
15 ~ gone through after it had agreed on substance of what we were
ct: :::>
]6 c~o going to do but still had to discuss the form. If you take
z
<
17 a ~'L look at th~ insurance regulation section which is in ~he

]0 ji Legislative Article, the first paragraph deals only with
i
!9 [, particulars of fire insurance companies. It says that f~re

20 ' insurance companies have t9 deposit reasonable securities and

:':.1 we very quickly recognized that the key to that is reasonable,

that's not defined in the Constitution so it ~eally depended 23 , on what the General Assembly did. So Paragraph I doesn't s~y 24 very much in terms of substantive standards.

Paragraph II is just like Paragraph I. It says

rnl'"-"\d"'., 3 4

- - - ------- --- - rr---------------~

1 !iI insurance companies will file annual reports but there are

I!
:i

2

I'
'I

no

standards

as

to

what

those

annual

reports

should

be.

And

II:I

3 I"i;i that is something that is dealt with in detail in statutes Ii

!

4 :i by the General Assembly and by regulation of the Comptroller

I

I"i

5

il
I'

General

and there's where

the real

action

is,

what

the

General

II

6

II
II

Assembly does,

what

the

Comptroller General does under their

I

7

(i
I, broad powers

but not

in the

Constitutional

standard.

I

!

In Paragraph III, another particular section which

deals with life insurance companies, the same concept there,

10 they will deposit reasonable securities for the protection of

"z

..:. i ~

11 ~ the people of the state. o 0w In ~aragraPh IV, ~aragraPh IV is probably the real

~~- ~ heart of the 1nsurance sect10n. We keep the concept and in

14 ~ form it has been whittled down to about two lines. We'll get :<

:I:

15 ~ to that in a moment. But Paragraph IV says that insurance

0:
::>

16 ~CIl licenses will be issued by the Comptroller General. What

z

17

<

a:
CIl

Paragraph

IV

really

does

here

is

gives

the

powers

to

the

18 Comptroller General that he has and names that office as

19 having those in the Constitution.

20

Paragraph V is like one of the other paragraphs

21 dealing with fire insurance companies and life insurance companies

22 that security deposits have to be deposited, the same thing

~eing repeated, the same concept being repeated a third time

24 but applied to a particular kind of insurance company.

25
Ll--

Then if you will skip down right at the bottom of
--- ----- ------------ -----

r-~age - - - ---------_.- ---------

._---~-

2 the Subsequent Injury,

PAGE 35
-------- -----------~_._--------.
!
Workmen's Compensation Trust,

Iil'
? II Fund, that's good language and it needs to stay in the

IiI
3 IIii Constitution but it is an allocation, an automatic allocatiQp,

II
-Ii and our recommendation is that it be transferred over to tlle

ii

'I

5 'I appropriations section so that insurance regulations will

deal only with the question of the General Assembly may

7 regulate and the Comptroller General would issue insuranc~

8 licenses.

9

So with that overview, if you will take a look on

10 page 2, Paragraph I and Paragraph II, that is new Paragraph!

and n~w Paragraph II down at lines 25 through 29. The~e are

five lines that we recommend replace the existing two and a

half page~. Paragraph I would be "Provisbn sha:!,.l be made by

law for the regulation of insurance." We Wl;'estl~d with the

is ~ question of whether it should be a more active or passive '"::>
J6 ~u-,~ voice. The active voice "The General Assembly shall provide
Z
<0:
17 '"<Xl by law for the regulation of insurance." That reads better

11-: but the Governor has something to say on that too, so w~ came

] ') back to "Provision shall be made by law for the regulation of

20 insurance. ,. Recognizing that really as an e~Ut.orial matter,

21 Mr. Chairman, somewhere along the line whoever has the

))
! resP9nsibility for the editorial form would make that cor$ist,ent

23 with what is being done elsewhere. So Paragraph I, broad

24

I
:! provision,

"Provision shall be made by law for th~ regulation

of insurance. 1I And then the General Assembly decides to what

extent it is going to deal with annual reports and to what

2 extent it's going to be left with the Comptroller General, to

3 what extent security deposits have to be put up and so forth.

4

Paragraph II, "Insurance licenses shall be issued

5 by the Comptroller General as required by law." So we do

6 retain the concept that it is the Office of Comptroller General

7 which is Constitutionally assigned the responsibility for

8 regulation of insurance and to what extent we have in this

9 state and he will issue those licenses.

10

Our working rule -- we have had differences of

1]

"z
~'opinion and

our

working

rule -has

been

that

the

burden

of

.;)

o

.~

It ~change was on the proponents. That is if the existing pro-

~!"""1 ~~,

~:
vision -- if the proposal is to change the staff draft that

14 twas presented to the committee, the draft that was suggested

15 ~by Comptroller General Caldwell, the draft that I had suggested, (~ '":;>
16 ~the burden would be on whoever makes that motion which o z
17 ~constitutes a change from the existing language of the

i8 Constitution, has the burden of carrying that motion and once

lYor twice that did make some difference on some substantive

20 ,changes such as whether or not the Comptroller General is

21 going to be named as such in the Constitution, whether or not

22 that power would be Constitutionally allocated. So that's the

~} insurance section which was easier to deal with than the

24 lone on appropriations.

Any questions?

u,-..





~--------

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

- - -----~--

-- - - -

r------ PAGE 37

1

SP~~;~ M~RPHY~~;-;~~~;~--~~~;i~;-~r ~re~~~y ,~;---

,I
2 IIII that's all you're looking for, why don't you just add

3

II
'Ii

"Provisions

shall

be made

by

law for

the

regulation of

II

4

i I

insurance which shall

include

the issuance of

licenses." And

Ii

5

II
I"i

be

done

with

it

if

you're

looking

for

brevity

only,

that

wQuld

6

I'ii
Ii

appear

to

handle

it.

,I

Ii

7

MR. WALLING: That was proposed to the Comptroll~r

General and he very vigorously resisted and his resistance

foun~ a majority vote on the committee, Mr. Speaker, but ~hat's

10 a possibility that was considered but it did not pass. It

II

"z
~.

doe~

m~~e

a

change,

wr~~h

is

not

ap

insigpificapt

qp~qge,

qS

'o"

w'"-

~~~II ; '" I'm sure we all recognize. That's a possibility but neverth~~ less, that's as the draft now stands insofar as the cqmmi~tee

---- J4! is concerned. We will have to meet another time and may -T ~ (~

:I:
J5 ,:, that may be reopened but my

Mrs. Brent, Judge Cheatham, Y04

JI> l may have some thoughts on this too, but my guess will be the az <;
17 ~ committee will vote to go with the language we've got here.

11\

SPEAKER MURPHY: I will say to you withou~ reservq-

19 I tion or equivocation that your recommendation is going to have

20 a lot of problem in the General Assembly, a lot of problems.

21

JUDGE CHEATHAM: What did you say, Mr. Speaker, I

2? i couldn't hear you.

23

SPEAKER MURPHY: I can say -- I think I can say with-

24 out reservation or equivocation that his recommendation on this

particular section is going to have a lot Qf problems in the

f!-----------.----'---.-.----~.-----

iIi General Assembly.

II

2 !I Ii

JUDGE CHEATHAM:

ii

3 Ii

SPEAKER MURPHY:

1I1:

i

4 1:
uII

JUDGE CHEATHAM:

I'

SPEAKER MURPHY:

PAGF 38
-_.~-
You mean reserving that -No, not that, this brevity business. Oh, brevity. Wouldn't you agree with that, Jake?

REPRESENTATIVE DAUGHERTY: Right.

MR. WALLING: In our judgment, what we propose here

8 :1 is nothing but a change of form, fewer words, a change in form,
il
ii
9 :i no change in substance.

10
..,

SPEAKER MURPHY: The change in substance would come

z

~

i11

...
'oQ."...

when

the

General Assembly passed the

law,

which they could

12 change every other session if they wanted to.

(~ ~)~~~I

MR. WALLING: Well in our judgment that's exactly

14 ..>.. what the General Assembly could do under the existing rather

'<"l

1:

15

.!l
":'>"

lengthy

verbage

which

is

set

out

in

two

and

a

half

pages.

16 ~ 'Q"

SPEAKER MURPHY: I agree with you there ought to be

Z

<l

17 :; brevity but if you get it to the extent where you can alter

18 provisions as meaty as this to meet certain circumstances that

19 might exist this year and not next year, you're in a heap of

20 trouble.

21

MR. WALLING: Again, our judgment is we have made no

22 change, Tom, in that respect, that nothing has been added and

I nothing has been taken away insofar as the powers of the

24
General Assembly is concerned in the insurance regulation.

25

JUDGE CHEATHAM: By the way, i~~_~y__~ecollec_~_:i:?n that

-----

r----~~---~---~-----------------

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

PAt;E
._---_.,. -_._-----------------_.~

39

I; this brief wording is very similar to the wording that's in

:1
2 :i the 1971 or '72 version that did pass the House put didn't

3 , pass the general election. But I know what you're talking i
I
I
4 about.

5

SPEAKER MURPHY: Well all I can say to you, Jude,

o there's some of them a whole lot more conversant with these

7 things now than they were back in them days.

8

JUDGE CHEATHAM: That's about right.

9

MR. WALLING: Well I guess I'm at a loss, Tom, to

10 really understand what the changes other than form. We have
Cl Z
that same problem over with regard to appropriations and to

that extent I think that unless we, you know, intelligenuly

know what we're ~oing it's dang~rQus to make any ch~n~es, ~

~ay need ~ome help in pointing out what those changes ar~.

The same problem comes up on appropriations, we have not been

able to understand -- as least in my judgment as chairman of

the committee -- what certain language does and does not do,

18 depending on whether it is retained or not retained.

19

Shall we move on to appropriations, which is

20 considerably more complex? I think I'd like to do the s~e
"
I
21' thing there, give you an overview of the substantive q~estions

22 :: that were dealt with and how those substantive questions were

resolved and then move back to the particular paragraphs and

24 matters of form.

25

'L____________ First,

one

question

the

committee dealt
~-----~----~------

_w~~.-.i-t-h--~--w~--a--s

the

;

I , ,'"\'d~'"e 40

rl---'-------~-'

~

!i fiscal year, whether the fiscal year -- we should continue to

ii 2 11 retain that in the Constitution or not, and as you will see
i:1'
II
3 :( there on the draft, the committee did vote to retain the I

I'
4 Ii setting of the fiscal year in the Constitution. It was a

5 concern on the part of the committee, also expressed by Charlie

Tidwell from the Governor's Office that if it was not set by

7 the Constitution and set by the General Assembly there may be

some advantages as some states have found with regard to the

9 federal fiscal year, but at the same time it might be subject

10 to manipulation in ways that we weren't certain about and
Cl Z
therefore, the committee, I think, took the cautious route and

voted to retain the fiscal year language as it appears in the

existing Constitution.

The next matter we dealt with of substance was the

15 ~ budget report, the question of whether or not the budget report '";)
16 3'" would be amended by anyone other than the Governor. You will Q z <
17 ~ recall that came up during the last session and the Attorney

1~ , General's interpretation was that while the Constitution did

19 not explicitly say the budget report may be submitted only by

20 the Governor, that in his opinion that is implicit in the
I
21 :' Constitution. And what the committee suggests in this draft

22 is that be made explicit. Therefore we view this -- if you 23 accept the Attorney General's opinion -- as being a correct 24 interpretation, if you accept that as being correct, then the 25 need here is to make that what is implicit explicit and therefore

PAGE ~l

lr---:~-~~~-;~~~:;i~- th:~~n~:~tution.-_._-_ -- -_. .. --_.- _-----~---_.-

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

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

1

So that has been added.

2 11

The next question dealt with by the Committee, but

il
3 il no change being made with regard to federal funds. Should

i
4 federal funds -- under the present Constitut~on federal f~nds

5 now are automatically appropriated, which means the General

6 !' Assembly does not have a role to play in those appropriations.
i
7 il Other states do it in other ways. Florida, for example,
8 I:iI, provides that no federal funds may be expended unless they ar~
9 IilI appropriated by the General Assembly. That, of courser peqlit;.s
10 the General Assembly to have a say over all federal programs,

all federal funds. That is not ~n the present Cpnstitut~on an4

we had considerable discussion about that, took a vote and tre

v?te of the committee is to retain the existing ~rovision, w~~~

regard to automatic appropriation of federal funds.

15 .,

The next major item -- and I'll corne back and we

<:J

ir-

::J

1, J \)

'Z"
.~

can

look

at

these

in

particular.

It's like what Cynth~a and I

0

i.

..,;

]7

c<
'"

were

talking

about

a

moment

ago.

There's a little uncertainty

18 as to what the existing language provides for. This is in the

19 notion that we'll have a general appropriations act and

20 amendments to it and then supplemental appropriations act.

Now, by way of background reminding all of us what I think most

of us know, that what is called the supplemental approp~iations 23 bill which comes up after the general appropr~ations bill in 24 the first part of the session is not really a supplemental

appropriations bill in the Constitutional sense. It's an

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

PAGE 42

i\ amendment to the general appropriations act even though it's

.,
.c:..

q
:! called supplement.

So we're not talking about that thing

IiI'

3 IIii that comes up every year, the supplemental appropriations bill,'

4 which is really an amendment to the general appropriations bill,

5 we're talking about something technically separate and apart

6 insofar as we can determine. As I recall -- and Cindy, check

7

III, i':I

me

on

this,

and

Charlie

and Mrs.

Brent

and

Ms.

Doyle

and

Ii

!Ij, Judge Cheatham -- that the only time a supplemental appropria-
il

9 tions act has been used is with regard to the Legislative Towers

10 over here. That was by a separate supplemental appropriations

act. The recommendation of the committee is the same as was

made in the 1970 draft, that we proceed only by a general

appropriations bill and amendments to that, which means that

the amendments will have -- every amendment would have to

r

15

.:>
CJ

relate

to

the

general

appropriations

bill.

No appropriations

'::">

16

zco 'c"

could

stand

up

separate

and

apart.

The difficulty is that --

z

<

17

IX
'"

I'm

not

sure

you

joined

in

that,

Charlie.

Pete Hackney, the

18 Legislative Budget Analyst; Hoyt Stevens from OPB and I

believe Bob Stubbs, Executive Assistant to the Attorney

General, I believe feel that we ought to keep that. We asked

for a memorandum from them to put it in writing so we could

22 see in slow motion what it is the supplemental appropriations

23 ! act technically does, separate and apart, what it would

24 : permit the General Assembly to do that cannot be done by an

25 :' amendment to a general appropriations act. We do have a

1~1_ .

._ _ .. _ _ ._.__.._ . . .

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

PAGE 43
1 lr~e;~;~~~~-fr-~:-~~~~~:c~~:; and I must confess I cannot

2 IIII understand it. We don't have one yet from Mr. Stevens or Mr.

II

3 \!1i Stubbs. That is still hanging. It may be that, particul~rly

II

4 ,I members of the General Assembly here could be of some

ii

I

,I

5 !j help to us in understanding that.

:,1

II

6

i!
i!

If we do make a change or if there is something that

Ii

7 II'I,i shouldn't be changed, obviously we need to know what it is so

I" ,

8

',I
ii

we

can

intelligently make

a

decision one way

or

the

other.

Ii

il

9 II I think the feeling of the committee by and large is to proqe~q

'I

10 very cautiously and the burden of change is on the proponrrt

of qhrnge. We don't want to make changes -- certainly we dqa'ir

want to make it unwittingly, but we cannot really under~tand

w~y th~t was in there and why it cannot be done by simple

amendment. The feeling is, the consensus of the committee,

which carried over -- the brevity, whenever it's possiple

without making substantive changes, that that's what the

people of the state need if they're going to have a Constitution

which can be understood at least up to a reasonable point. 19 This is not the federal Constitution but there is a lot of 20 , language in here that the lay person simply gives up and 21 cannot understand what's being done. To the extent we can have 22 shorter paragraphs and still not sacrifice something, we ought 23 to do so. But this area we're really not sure what it is we're 24 dealing with and we're not getting confident we have any kind

of written material that we can see in slow motion to e~p+ain to

'L

.__

_ ,,

.. __

I T - - ~ - - - - ~ - - - - - - - ~ - - - - - -~---.------

I II us why this ought to be kept.

11

II

2[

Robin, do you have any -- we have taken the approach

'I

I,

il3 of the 1970 draft which proceeded only by amendments and by

.1

4 general appropriations bill.

I

5 ii;

The other major item on our agenda, which we have

I:

6 !! not yet come to, we will I suppose at our next meeting, is

7 i~i! the allocation of motor fuel taxes. Now you do have included iI

in your package -- and I'll point that out particularly -- some

changes. Those are merely -- merely is not the right word

10 those are proposals of the staff and they have not been

<z:>

11

....
.."o....

considered

in

form or

in

substance and

that will

be

on

the

~ 12 ~ agenda at the next meeting.

~r~

So with that background, let me take you by the hand

14 .~... if I may on the Section IX and show you how these five areas

'<

'I:

15

<!> <:>

fit

into

the

draft

you have

in

front

of

you.

"::>

16 ~...
oz

Paragraph I, there is no change in substance there .

17 ~ You can see that the staff is conforming to the editorial

18 changes of the overall committee, lower case on treasury rather,
II 19 II than capitalizing.

20 !I
Ii

Paragraph II deals with the yeas and nays and our

21 :1 recommendation there, Mr. Chairman, is that that be carried

22 !'i\ over to the procedural section of the Legislative Article. I

I'
it
23 I'Ii gather that has not yet been done

24 i!

CHAIRMAN CLARKE: Yes, it appeared in there.

MR. WALLING: Paragraph II, no changes there except
- - - - - - - - - - - - - - - _....

PAGE 45
~- ~ ~.~------_. -~~ ~ ~---------~-----------~
I
f:n form insofar as we understand in getting rid p some of
2 II the capitalization and making it lower case conforming to the

3 Ii overall editorial rules as we understand them. That is new

II

4 Ii Paragraph II Ca).

II

II

5 Ii

Paragraph II Cb), the only thing of substance there{

ther~, 6 II that's the reference to the fiscal year. We retain

II
7 IIII in our proposal to this committee that the ;fiscal year be

,I
continued to be stated in the Constitution, the new

Constitution new proposal as it is in the existing

10 Constitution.

"z

1 1 >-
'o"

Moving on over to page 5, subsection (c) to

0-

"'

(~:3))F" I12 '" Paragraph. II at the top, again no change.

~~"JJ; I

~oving on down to subsection Cd) again no change

14

~ >-

except

again

getting

rid

of

a

lot

of

what

was

felt

uo

be

'r<

15 16

-:>
3":':">

exces on in

s

t

words, he sta

t

words e for

which which

describe different things funds may be appropriated

that gp and w~

z.Ol

..:

17 ~ pick up the language "expenses of the state", something like

18 that. Again, this follows the 1970 proposed draft of the

19 Constitution.

20

Moving on down to new Paragraph III. That provides

21 for the appropriation bill to be in effect fro~ year to year

22 I and no changes, in our judgment, except -- of any substance

there, simply changes of form.

24

Subparagraph Cb) at the bottom of page 5, the

25

i
i

prohibition

against

any

deficit

financing

in

the

state,

L

~

- ~~~_. ._~--

-~~

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

PACE 46
ri-------.------.----~----
I Obviously that's one that there was no sentiment at all for
11

2 changing that, the changes there are editorial.

3 IIi'

SPEAKER MURPHY: In that new Paragraph III, did y'al!

4 discuss the question of the prohibition of continuing over to

5 the next year one that was not passed? We came awful close

() to that situation this year.

7

!I
,;1
"

MR. WALLING: We did as a matter of fact.

That was

8 a substantive matter we did discuss and as I recall, members

9 of the committee, we had considerable discussion and I don't

10 recall whether there was a motion to make any change there

but if there was not then in effect it was action of the

committee since inaction of the committee would leave the

situation as it was, but I think the consensus was that the

~ that's a responsibility that ought to be discharged on a

'n <;

:I:

15 .:> year-by-year basis and it does have its risks when you get to

<!)

'":::>

16

al
.Z..

the

kind

of

stalemate

we

had

last

time,

but

knowing

that we

C.l

1:

-0:

17

a:
,OJ

come

to

that

kind

of

stalemate

and

what

the

expectations

of

18 the voters would be, that's the best assurance in the world

19 that somehow the House and the Senate would get together and

20 pass a bill. So Mr. Speaker, we did consider it, took no

21 I action which I think could be taken as a vote that it be

22 , retained as the existing arrangement.

_, .''

Let me add that to my list of substantive matters.

24 I'm just curious, what is your reaction on that, Tom?

25

SPEAKER MURPHY: I think we made a mistake when we

PAGE 47

--.------~---------------------l

~hanged it myself because -- how long did we go this year,

II

II
2 'II: Jack?
II
3 'I'!
4 il I'

II
I
MR. ELLARD: The ninth of March I believe.
SPEAKER MURPHY: If you have a long y~ar and you

5

I
I

can't get one passed and you come back in special

s~, ssion

6 Ii to the same situation again, then July first the state g~inds

7 I to a halt. It's a safeguard that we really ought to consid~r

II

8 'I! putting back in there.

il

I'
9 I!
Ii

CHAIRMAN CLARKE:

By any type appropriation --

10

SPEAKER MURPHY: No, I just think it ought at least

"z
11 ~ to be in there that if we don't get an appropria~~on th~ .o0..-
rY~ ~ 12 ~ state can continue to operate under the previous year's li~e
((~--.,,:,,V- cum... ~ we used to before we changed it.

\ "-,
-~

I'J>

14 ~

CHAIRMAN CLARKE: That was before 1962.

'<":
r

15 ~

MR. WALLING: As the Speaker points out, that's the

"'"::>

J6

'z".
,~

way

it

used

to

be

and,

of

course,

at

that

time

there

was

az

<:

17

ex
'"

considerable

criticism

and

obviously

that

prompted

the

change.

III That co~es at a price too.

19 I

SPEAKER MURPHY: Back in that year we were sort of

':

20 trial and error, this is when everybody was flexing their

"_"1)' muscles if you'll recall and nobody really knew which was ~-

this is a safeguard that ought to be considered putting back in~

MR. WALLING: On that subsection (b), that is the :t I subsection where we do make the change or do add the cla~ificar

tion with regard to the budget report and amendments only b

PAGl<; 48

the Governor. If you take a look at page 6, line 5, the

'1 underlined words have been added, they are new words and it

3 does make it explicit the budget report may be amended only

4 by the Governor. There is an earlier section that says the
,
Ii
:) , budget report is proposed by the Governor, the General

6 Assembly and there on page 6, line 5, it may be amended only

7 the the Governor, making explicit what the Attorney General

R has said is implicit in the Constitution. other than that

9 it's a matter of form.

10

Subparagraph (cl dealing with lapsed funds. If you

"z
11 ~ are reading the committee report -- it's hard to read all this o "w'-
12 ~ and keep up with it if it's not a section you're working on
~/e~a'\T>~~ ~ you'll see a reference to moving that around. There is nothing,

14 ~ of any consequence there, substantive consequence, we had it
To
15 ~ over higher in the section and then decided to consider moving '",;J
16 '~" it down here simply because we're getting too many thoughts in Q z <
17 w'" a single subparagraph which adds to the confusion in reading

, the Constitution. Perhaps lapsing there in subsection (c)

19 and federal funds could be dealt with as a separate paragraph 20 headed something like lapsed funds and federal funds just to 21 keep from having too many thoughts, even though they are related, 22 bunched up up under a given single subparagraph of the section.

Subparagraph (d), that's the paragraph on federal 24 funds. What you have before you is, except for the editorial

changes, exactly as it appears in the present Constitution.

PAGE 4~

w------- --

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

...

-----+--------.. - - - - - . - - - - - - - - - - - - - - - - - 1

Ii SUbparagra~h (9) deals with a tecnnical matter, and :I; have

-~ I!I'II', lost my focus a little bit on that, Vick~e, maybe you could

J I,,I help me This deals with authority tinancing and the sarne

,

I

4 i:1i provision apparently is repeated elsewhere in the Constitution.

II

5

'Ii
]1

Our

initial

recommendation was

that

this

be

stricken

here

as

being superfluous and I believe that thought was supported by

what Mr. Hackney had indicated he thought was desirable.

However, Mr. Stubbs, who is Executive Assistant to the Attorn~Yi

General, is concerned that taking it out here somehow or 10 another will adversely affect the Triple A bond rating of the

state and he recommends that it be retained. if that is ~h~

case, then obviously we would want to keep it here. Exactly

how he comes to that conclusion is again one of those t-hinC,ls

I don't understand, but the burden is on anyone ~aking the

changes to understand it, if you can't understa~d it, why

keep it the way it is.

Have I missed anything on that Vickie, members of

18 iI the commi t tee?

:1

19

MS. GREE;NBERG;

The idea was to transfer it to

20 Article VII and later on make any necessary revisions to

21 conform with that Article so that it would not be lost and it

~ater could be revised, and abbreviated.

23
MR. WALLING: As you can see in the committee report

24
though, there was some proposal that may have an adverse e~fect

25

i
li

on

the

bond

rating.

_

PAGE 50

j'
I Ii

MS. GREENBERG: Not the transfer. If you transfer

II

~!

2 I;I1i! there is no problem as long as it is maintained in the

3 Constitution.

4

MR. WALLING: All right. Moving on to Supplementary

5 appropriations, Paragraph IV. This is the

SPEAKER MURPHY: Let me ask you a question before you

7 .iI go too f are It's hard for me, I'm sort of having to read and

8 catch up and I can't comprehend as fast as you are talking
i!
9 I unfortunately. I assume -- I gather from what you said that

10 y'all, the committee -- the subcommittee came to the decision "z that nobody should fix the revenue estimate but the Governor.

MR. WALLING: I think that's -- yes.

SPEAKER MURPHY: Give me some logic on that please.

MR. WALLING: Well committee members, can I have

15 ~ your help there?

:':"> 16 o~
z 17 :ii

JUDGE CHEATHAM: I couldn't hear him. MR. WALLING: Well the question is why did the

18 committee vote to provide that only the Governor may fix the

19 revenue estimate, was that the effect of saying the budget 20 report proposed by the Governor may be amended only by the

21 Governor. One thing, of course, is the Attorney General's

22 . opinion.
,,
_.'

SPEAKER MURPHY:

We don't need to discuss that.

24

MR. WALLING: Well to this extent, at least it needs

'2) : to be clarified, it needs to be dealt with. Do you agree it

PAGE 51

on the yea+ and which side you're on that year.

MR. WALLING: I would agree with you if we were

sitting over in the House or the Senate, but we're not now.

SP~ER MURPHY: That thing has got to pass the

House and the Senate, you know.

MR. WALLING: Well that's what Mr. Clarke and Mr. 10 Harris will be working on, all we can do is reflect the

Ii o~ best thinking of the committee.

"'-

~,

~;~~12.~

Committee members, I've been doin~ a lot of talkipg

(~~/""~. ~ he.e. Ms. Doyle. you may have s01\Ie thought yo,! sat as all

'.

14 ~ aide to Mrs. Brent.

15 ...~.,

MS. DOYLE: I don't remember the rationale we used

:':">

16

~
cz

for

that,

but

I

do

remember

we

felt

it

was

important

to

defi~e

i

-

17 :ii it.

J S !. :i

MR. WALLING: To clarify it one way or another.

19

MS. DOYLE: Right.

20

SPEAKER MURPHY: This year it was great because we

was on the Governor's side in the House but I remember one year 22. I when it wasn't great.

MR. WALLING: Charlie?

MR. TIDWELL: Part of the discussion that went on

when I was ther~ present is that --

PACt, 52

J T - - - - - - - - - - -~- -- ~--------

Ii

MR. WALLING: I remember that you

,I

MR. TIDWELL:

when you fix the responsibility you

3 fix it to one man, whereas if the General Assembly has it with

4 the Governor not -- when he fixes the revenue estimate, locks

5 in that that revenue estimate has to be met, if it is not met

b and there isn't a special session, he's the one that cuts it

7 across the board of all departments, whereas if the General

8 Assembly fixes it, there is a diffusion of responsibility

9 among 236 members and this had something to do, I think, with

10 the committee's --

\)

z 1] ~

SPEAKER MURPHY: The other side of that coin,

"'"
0-
w

12 ~ Charlie, is and I would hasten to say I would never have

,~~ ~~ ~~~ ~ ~ any fear about our present Governor in doing what I am fixing i

14 ~ to say -- but I have served under some that I would have lots

.i..

]5 .:> of fear that they wouldn't hesitate to do it, if they didn I t

'"'":;)

16 '~" want a certain program to be in there, they just would not

Cl

-:!:

<:
17 ~ give the revenue estimate to do it and leave the money laying

:8 1\ there. Now I have seen that happen as a matter of fact, so

!9 II it's a two-edged sword. I would have no hesitancy in saying

i":

20

i1
i,I

that

the

General

Assembly

last

year,

especially

on

the

Senate

21 side, did not agree with the Attorney General's opinion. I

22 would have no hesitancy in saying that the revenue estimate -.:,,-...' ought not to be raised except by a separate resolution of

both bodies where the money was appropriated by either body, I

25 have no problem with that, where the Governor could veto it.

__ l~_. ~ .

~ .__.

- . ---------J

There's got to be some way

PAGE 5~
l, the General Assembly's g9t to !

have some way to get input into the budget estimate, the

3 revenue estimate.

MR. WALLING: I was trying to remember, Tom, who

5 was so eloquent and persuasive before the committee, and I
II
h '! remember now it was Charlie Tidwell.

7

SPEAKER MURPHY: Well he's looking after the

K Governor's Office, and I wouldn't have much use for him if he

9 I, didn't.

10

MR. TIDWELL: I think another factor that the

'.? Z
subcommittee considered also, Mr. Speaker, was that in lean

years there is just so much money to go around and you g~nera111Y

~ave to take care of the statewide priorities first ~nd that

leaves ~~giona1, sub-regional priorities last and when you

l) ~ have lean years, it's very crucial to get to the individual
<Yo :J
II, ~.r- members of the legislature to get your regional and subz
regional priorities taken care of and when you don't, whep

l'i ii you have a ceiling placed on it, it's pretty easy to take the
i
1'J ceiling off and try and go around and gather enough sup~ort,
20 you help me get my hospital in my a~ea and I'll help you get
21 your park in your area and the first thing you know, the
,',
revenue estimate is out of hand.

SPEAKER MURPHY: I've never seen it happen, I've 24 been here since we've had one and I've never seen the revenue

estimate raised to get out of hand yet but I've seen on one
'----------- ------, -,--- ---------------------------------------

PAGE 54

occasion it was reduced -- I mean it was held where something

2 couldn't be done. I'm telling you as a practical matter that

3 I don't believe the General Assembly would agree with this, 4 do you, J.e.?

REPRESENTATIVE DAUGHERTY: No, not being -- I mean

6 being a member of the House, a member of the General Assembly, 7 I would think that the approach --

SPEAKER MURPHY: Do you, Senator?

SENATOR TYSINGER: There'd be some questions because
10 we did have that little problem last year. <,
Z
MR. WALLING: Well we had that some kind of

discussion before our committee, so that's a clear cut issue

which in due course I suppose we --

~

SPEAKER MURPHY: I would say as a practical matter

',".(

l:

15

">
.'.".

there

ought

to

be

some

commission set

up,

somebody

from

the

:>

16

IX!
7-

General

Assembly,

both

bodies,

to

work with the

Governor

on

0

Z

<l

17 '""" this, but I just don't think this is going to pass the

18 General Assembly like this because I know we had --

JI)

MR. CLARK: Let me speak from ignorance and ask if

20 the revenue estimate doesn't fall to a fiscal officer of some

2i kind rather than this body's estimate and this body's estimate,

it's based on a projection of professional judgment. We're

going to get different judgments but could or should the 1.4 Constitution simply establish some kind of fiscal officer .:5 rather than tying it either to the Executive Branch or the
- - - _ ------- .. .. .. - -._------~_ - ----_._---------- ---_._-------._-_.-.----

PAGE 55

L~gislative Branch, but an independent or some source servipg

2 both and I acknowledge I am speaking from ignorance he+e and

3 not any experience in this matter, but it seems to me we're

4 talking about dollars, how much dollars youre going to have

5

,!
I

available

and

it

isn't

a matter of

raising

this

so

you can

6 take care of a budget but how much money is going to be
..,
I available.

SPEAKER MURPHY: As a matter of fact, the House has

never exceeded the revenue estimate as recommended by the
10 Governor's revenue estimate at all. J.e., you've been there

11 r with me all the time, we've never exceeded it, have W$? But

,J.

j2
\{1\(~~/~v'~'1\,/\J-c'-",,-,,,.

:~
'~:
:;:

as

a

matter

of

fact,

the

Senate has done it, this year they we were very happy with the ~ttorpQY

~::,.=...--r

14 .>.-. General's report this year, as a matter of fact, those of Us

."
<: r

15

,~)
~

in

the

House,

but

I

thought

it was

wrong

at

the

time

and

said

so. j '~, ''7"": ~, Cl

Z

<

'" 1 .. ."

REPRESENTATIVE DAUGHERTY: I think, Tom, that's

I ,'5 essentially because the House gets ahold of the m.tter fir~t.

)<.)

SPEAKER MURPHY: J.e., if you'll recall, usually the

20 first thing done in joint appropriations committee is that

21 they fix a revenue estimate, they agree on it, both apprQpriations
,~
~- they've always agreed with the Governor. This year it got

23 to the Senate and they raised it $25 million over what

~-j.
REPRESENTATIVE DAUGHERTY: The problem comes though

2S

PAGE 56

to do and then it's sent to the Senate. The Senate then finds

2 it sometimes necessary to do things that it might not otherwise

1 do if it had the first bite at the apple, just from a practical

4 standpoint now.

5

SPEAKER MURPHY: All I'm saying is there ought to be

somebody to fix the revenue estimate other than the Governor--

7

REPRESENTATIVE DAUGHERTY: My view would be some-

8 thing similar, from a professional and objective standpoint,

9 whatever is done ought to be done in the interest of the people

10 of the State of Georgia.

i'.

11 ;;;

MR. HARRIS: The only problem with that as I see it

'J

0-

w

12
\/~(J6~j))dlr~

~
~~

is If

that it's

somebody has got to be responsible for revenue estimates. low or if it's high, there's not enough revenue to

" '---.--/ 'I

'--

14 :,., support the budget then one of two things has got to happen,

,n

<i

r

15

'0 t.:J

either

the

General

Assembly

has

to

pass

a

law

raising

taxes

:':">

16

~~
,~
,-,

to

meet

the

budget

or

it

has

got

to

do

as

was

done

in

July

"t.

17 ~ of '75, come back and cut the budget. One of those two things

]8 1 has got to happen in order to make it conform to the Constituti~n

]9 I that says you can't appropriate more than the surplus and what

20 you expect to get. Now if you make it some OPB or somebody

else, then both the Governor and the General Assembly can wash

their hands of the responsibility of being the one to raise

,,
,l the taxes or cut the budget.

.;

. . '-l

SPEAKER MURPHY: When you say the OPB, you've sa id

the Governor.

CHAIRMAN CLARKE:

PAGE 57
~
When you put it i~ the hands of

some third party there's another problem, it depends on who

3 is naming the third party and it is a subjective questiqn and

4 not an objective question, as those of us who have dealt with

5 tpe phrases know there are phrases and them are phrases.

6

MR. HARRIS: I'm not arguing in favor of what is

7 I"i pJ;oposed or something different but it has got: to be fixed

8 either with the Governor or the General Assembly or a

9 , combination of the two.

i

10
c,

REPRESENTATIVE DAUGHERTY: We're talkipg about t~ying\ ,i

z

It ,- t~ get a doqument that not only will be accepted by the ~eqple

but will pass the muster of the General Assembly and ~ am

inclined towards Tom's view that resolution by bqth the House

and the Senate with some power in the Governor to veto that

15

b e .:>
'L'J

mig~t

a

better

solution.

This gives all parties some input

:'"J

16

z<Xl
'-' <:>

into

the

process.

That's kind of a compromise, I think.

7

l'1

,<,,i
'0

SENATOR TYSINGER: Mr. Chairman, I was inclined to

18 agree with what Robin just said, there has to be an elec~ed

19 party to whom the people can get to about the budget e~tima~e, I

20 it can't~be a third party that the peqie can't touch, a

21 bureaucrat of any type, and therefore I think it has to be

22 some elected person who has to make that decision.

-,.'"

"."l

MR. WALLING: What if we made it the Governor and

~>.+
tne House, how about that?

F';; i
SENATOR TYSINGER: We might Qbject to that.

PAGE 58 - - - - r - - - - - - - - - - - - ~ - - ----~------------
I
MR. WALLING: Well to close this out, I guess the

2 thinking of the committee as reflected here is it is not
I
3 I really a matter of p~litical philosophy, it's a practical

4 ' matter, it's a very sensitive question obviously as reflected

5 in the discussion we have had, one of the most sensitive to 6 ; be faced in the discussion, and it ought to be made in ways

7 that are very visible and very accountable and whether or not

8 a commission would be appointed, there happens to be one

9 person who has been elected by the people of the State and

10 that's the kind of high priority political duty and political

"z

11

>-
'o.C".>..

in the best

sense of

the word,

it ought to

be

done

by

that

~);I ~/

man, the Governor of the State, and I think that is what is
reflected by the feeling of the committee. But I gather,
,

14:. ;;;

Mr.

Chairman,

we'll

come

back

and

there

will

be

specific

~

1:

IS ~ proposals somewhere along the line once we meet lat~and

~
:>

16

~
o

we'll

get

back

into

this.

z

.~

17 ~

SPEAKER MURPHY: All I would say to you, as a

18 I practical matter, the way it's drafted now it ain't got no

19 chance of passing both houses. I don't know what the people

20 would do, but it ain't got no chance of passing both houses.

21

MR. TIDWELL: How about leaving it like it is, Mr.

22 Speaker? I'm just asking for your judgment.

23

SPEAKER MURPHY: Charlie, if you leave it like it is,

::'4 I
then of course you're asking for a law suit, you're just asking

25 ': for a law suit. You know we debated the issue very strongly

PAGE 59
l '1 la-s-t year, some people who ar~~nO-Wledge~ble -:;~-~:-~~:-:----not

'1 il myself, very readily agreed with the Attorney General, sopta WhO\
Iili
':;,': very readily disagreed with him. You're askinc;J for a law suit

4

I" i ii

and

the

law suit

ought

to

be

eliminated

by this

constitution

II

" "
5 i'l if you can do that.

6

M~. WALLING: Shall I proceed, Mr. Chairman?

7

CHAIRMAN CLARKE: Yes, go ahead. I think this is

I,
8 ,i one of the matters that the subcommittee certainlY ought to l'
9 I"i take back up and discuss at its next meeting and. whateve~

10 conclusion is reached by the subcommittee then should come

II ~'z" back to the full committee for determination.

o

Q.

w

12 ~

SPEAKER MURPHY: Let me say one other thing. I'm

" ~~'Y)t4
I\;'~ <,I \
~0)))/cj..,~ ~ \\~

~
,:
not
OJ>

sayillg

~hat my

opinion

would

have

any

effect

on

it,

b\lt

;J;

" _._-' / /

I

, - ' 14 ~ thipk I can pretty well judge what the majority of that 17~

'<
T.
15 '~l other members feel about this if they couldn't have any input <.:> -"',-
16 ~c into the revenue estimate, they wouldn't like that at all, z <!
i7 ~ because if he makes it high and it don't make it they're going

IX ii to get the blame for it. I don't care what you folks and
Ii
lY experts say, I know who is going to get the blame becaus~

20 II we're the jokers that appropriated the money and if it ain't I~ "I
21 ii enough and we don't do something we're going to get the blame. "
" I Th~t' s ju~t the way it is. Most of us accept that respons,iIi
",-5 bility but we ain't going to accept it unless we have some

24 input into it. ,I

ij!l
25 ::
L,

MR. MCWHORTER: ,

Mr. ChaLt;man, it looks like we're

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

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

PAG]..'; 6.0
rgOing to have ~~~~~ppr:;riate on -~~;;~:~iO~~-;:ar '-:-i:co~:~-----'
,I
"
SENATOR TYSINGER: I'm for that.

MR. WALLING: Moving on down to the end. The

Paragraph IV on page 7 beginning at line 17, this is where

the supplemental appropriations are dealt with and this is

6 supplemental appropriations again I may remind you not in the

7 sense that we have that automatic bill coming up every year,

8 but this is a separate independent act, doesn't relate to the

9 general appropriations bill. The key to it is down beginning

10 on line 22, at least the key to beginning to get some under-

z~'

11 ~ standing of it, beginning, "provided " These are the

o

Q _..~ ~ 5V

12 ''~"" standards for supplemental appropriations act, " provided

no"such llupplemental appropriation shall be available unless

14 ~ there is an unappropriated surplus or the revenue II and

J:
15 ~ there is no difference there than the general appropriations c= :oJ
16 r~n bill, no deficit financing. Then there is a third standard
z
17 ~ there, or II the revenue necessary to pay such appropriation
18 shall have been provided by a tax laid for such purpose and

19 collected into the general fund " Now what does that mean

20 and if it means anything is it of any value. If the General

21 Assembly could somehow create a special tax and appropriate

how that's going to be spent, the word II co llected" suggests

23 , that it has already got to be in the treasury. What purpose

2.:~

"
!

does

that

serve

as

a

practical

matter

and

what

can

be

done

25

using
u~_

this

kind

of

device

that

couldn't be done
__ ------_. .. _~.

by

an amendment i _ - _.------_... .. _--_. --_._--_...

PAGE 61

n - - ~ ~ ~ - - ~ ~ ~ - ~ - - ~ - - - - - - - ~ - - ~ - - - ~ ~ - - - ~ ~ ~ ~ - - ~
II to the gen~ral appropriations act.

------.,

I don't know wpat the

I
I

an~wer 'I

2 1\

to the question is. Maybe those who are not ~embers of

ii

3 \1 our c9rnrnittee may have some thoughts on that and could be of II
4 IIII some guidance to us. We are going to be meeting again and

5 dealing with the question as to whether this whole section

should be stricken or not. Our thinking is, consistent with

the 1970 draft, that proceeded only with general appropriations]

bill and amendments to that bill on a year-by-year basis, th~t

that's the approach we ought to take, but there is opposition i
i
10 to it. And as I said several times, we don't really understand:

11 "z~ what we are dealing with here. We really need your help now(

o

Q.

12 "~' Tom. J. C., we need your help on this one. Yo~'re not

(((;tJ))!fC~ ~ ~\

~
very persuasive on the other one, we want you to b~ persua~ive

\;-. __.---'~/

~

~~~--

14 ~ on thi~ ~me. !;;

J:

15 .0

All right, well, we'll work on that ~nd weill try

~J

16

3:'>"
to

bring

to

you

as

much

material

as

we

can,

but

we're

no~

oz <
17 ; at all confident we're going to have much on that.

18

MS. RYSTROM: I don't understand at all, is the

1':/ point supposed to be this is a special tax, the receipts from

20 ! which will be earmarked for a purpose?

21

MR. WALLING: It reads that way.

22

MS. RYSTROM: Has it ever worked that way?

23

MR. TIDWELL: No.

24

MR. WALLING: It doesn't have to necessarily work

25 , that way, the legislative towers, they were just a separate

l-l-,.__ ,.

._ __ ____ _

~ .~._.

__--------- -" -

-

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

.'--.-...-..- _._. --- .... - - ----

rr------.------ .------.-------.-.

r, ... (" xI",' 62

:: appropriation, didn't deal with any --
I,

2 II

MR. MCWHORTER: We've had some others, like prisons

3 IIIi and so forth.

4 II

MR. WALLING: The requirement that one of these

5 II things can't get through under the general appropriations bill
Ii
() Ii and signed by the Governor anyway the same as an amendment to

I'

7 ,:1I the appropriations bill.

:,

I!

8 1I.I1

SPEAKER MURPHY:

We passed a supplemental appropria-

9 ;IiI tions bill last year or year before last, Charlie, just for

10

MR TIDWELL: It has been used a limited number of

C)

z

11

....
0o<

times

in

the past.

.Q....

@r~1p

MS. RYSTROM: But they weren't tied to a special tax,

they came out of the general fund.

14 .~...

SPEAKER MURPHY: Came out of the surplus .

':<c

15 ..:.>,

CHAIRMAN CLARKE: Mr. Speaker, what was the reason

:'"J

16 .o~... for it being a supplemental rather than an amendment?

Z

<t

17 ~

SPEAKER MURPHY: Because we wanted to get it

Ii 18 through in a hurry in order to get the Governor to sign it
'I
19 II and get the money allocated and get the prison on the drawing
I
i 20 boards and get it built.

21 il

MR. WALLING: And I guess our question would be, he

Ii

22 I: couldn't sign that until he signed the general appropriations

,!

I'

23 I!i: b~ll, and what --

ii

24

SPEAKER MURPKY: We built it out of surplus in this

I

Ii

25 iI year, we had the money there and we wanted to get it done and

l L__. _ _ _

--.

._______________________

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

PAGE 63
~gO ahead fnd get it off the ground and get in the air.

2 II

MR. MCWHORTER: He did sign it before.

3I

SPEAKER MURPHY, Oh, yeah, he signed it way before.

4 II As a matter of fact, it was signed at the end of the first

5 week as I recall.

6

MR. WALLING: Couldn't you have done it by amendment

to the appropriation bill?

SENATOR TYSINGER: Time was of the essence I think

that was it.

10

SPEAKER MURPHY: I think it could have been done.

Cz1

11 ~
o'"

MR. WALLING: Well Tom is saying it could be don~

<>.

. ,,-!12
~ /~"

~ ~

either way and that's
th~r~ is n9thing that

our feeling that it could be done-- that
I
can't be done with an amendm~nt tha~ cann~t

14

.~..
~r

be

done

with

a

supplemental

appropriation

bill.

This seems

I
I I

15

~
C1

to

be

the

thinking

--

I

keep pointing to Mr.

Harris over here,

I
i

'"::>

I

16

~...
Q

he

was

I

believe

Chairman

of

that

effort

which

was

aborted

--

'I

17

Z
~ that

nothing

could

be

done

with

this

animal

that

can't

be

done

I
!

18

I

with the other one, why keep it in here?

19
SPEAKER MURPHY: I'm inclined to agree -with you.

20
MR. MCWHORTER: Is there a possibility you would

21
, have ~ supplement on something that's not even mentioned in

22
the a~propriation bill, that'd be a supplement, would i~ not

rather than an amendment?

:!

24 'i"!~

ii

MR,. WALLING: Well I think the answer is np to that, I

25

ii l! Ham,

but

r

won 't

say no

to

you on

a

ques:tion !~~~_thai:_"__~I

PAGE 64 SENATOR TYSINGER: Doesn't this limit it to one

2 subject matter when you put it in like that rather than opening

- it up to a lot of other things? If you just had a general

'T amendment you could open it up to a lot of other things.

::; I

SPEAKER MURPHY: It'd be the same subject matter in

6 the amendment.

7 ,'I

MR. WALLING: Could you not in the sense of the

is I appropriation -- well that's right, the amendment would have

to have a single subject matter.

10

SPEAKER MURPHY: You must remember either one of

CzJ
11 ... them, the sUbject matter is going to be the general appropria-
'o"
"-
;"..!
@~i tions bill. MR. WALLING; That's right.

11 ~

MR. TIDWELL: Bob, there's a good bit of discussion

I-

<V>

"I:

15 ~ that is going to be prepared to be presented to you at the

';"-;"'l

16 3 next meeting on this one item, you may get a little more

o

z

<

17 ~ enlightened at that time than you are now. I think there's

lis II going to be some evidence that it's probably a pretty good idea
II
19 :' to leave it in here. It would deny some options.

20

,I,'

21

I: I:

Charlie.

MR. WALLING:

I hope it's understandable evidence,

MR. TIDWELL: It will be, Pete's not going to talk

23 i about it.

24

SPEAKER MURPHY: All I can say to you about that, Bob r

25 is if Pete says it ought to be in here, there ain't nobody in i

L!Ii

---------- ---- --- - -I

PAGE (is

- - - - - - _ ~-------

..

....- . -. ---.-.-"------~----~-.------------.-----.-------

---.---~--.------'--.---------__r

I

I II Georgia that knows as much about the appropriations prqc~$s as !

.2

:!
i:

Pete

Hackney.

If Pete thinks he ought to be in here, it ought

i,

Ii

J I'I; to be in here.

'.:1,
MR. TIDWELL: I believe he does feel that way.

5

MR. WALLING: That's fine. All I ask, Mr. Cpairman,

D is when we meet, when the time comes, you know, what's your
Ii ii
7 Ii reason for it, let's have Mr. Hackney here so he can tell us. Ii

8

SPEAKER MURPHY: You want me to tell you how to get.

him to tell you, when he starts talking say, now Pete get dowp (

in languag~ I can understand, that's all you got to say. I've

sa~d it to him many times.

MR. TIDWELL: Mr. Speaker, he spoke to us for about

fifteen ~inutes and everything he said made all -- you couldn't I
di~~~ree with him and when he got through we all said well

;) :~ what did he say.

:':">
Jr, ~ ./"~
Z

CHAIRMAN CLARKE:

It sounded good though.

MR, TIDWELL: He's pretty --

IS

SPEAKER MURPHY: I'll tell you he knew what he was

lSi saying.

20

MR. WALLING: I tell you, if I had closed my eres,

21 I would have thought it was one of the legislators speaking to

us. Vickie?

MS. GREENBERG: I did receive an informal opinion

from the Assistant Executive Attorney General, Robert Stubbs,

and he suggested that in interpreting the language there was a

PAGE 66

Ii

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

,! distinction and the one distinction between the general bill

"
i!
2 Ii'IIl and the supplementary bill was that the general bill and

J amendments to it can only be on appropriations, whereas, the

4 supplementary bill can be on only one subject and that means

5 that you cannot create a department and appropriate for that

6 department in one supplementary bill.

-
I

SPEAKER MURPHY: That's a bunch of junk.

R

MS. GREENBERG: This is what

9

MR. WALLING: If that is the case, is that good

10 government to do it that way? Right now it says you've got ..,
11 .z~- to appropriate for purposes fixed by prior law, which means o 0w
12 ~ there's got to be some kind of organization. If that's what
~!~-~ ~ it means, then as a matter of good Constitutional policy we

14 ~ want to keep it in here.

x

IS '3

Well, we'll come back to you with something on that.

<.:J

'="''

]A ~

Moving over to the next page and the last page,

o

7.

1'7 ~~ Paragraph V subsection (a) there dealing with each appropriation.L

18

I, :1

for

a

specific

sum of

money,

no

proceeds

of

tax,

that's

the

II

19

il
;:

existing

language

and

the

changes

there

are

only

editorial.

II:,

20 i':!

In subsection (b) , it deals with allocation of motor

21 l:1i fuel tax and as I said we have not wrestled with that but

22 i whether we're going to wrestle with it in the first place we'll
I
i
~3 I have to wait until the committee meets. We do have a draft

24 here which is editorial suggestions made by the staff, keeping

25 : the substance, as I understand it, of subsection (b) dealing

IL-

_

PAGE 67

r~~~h-~~~~~---~~~~ tax.

~ -, --- - --" ,----,--- ,-'-1

Those suggestions hav1r0t yet been

I

iI

,

2 :1 acted upon by the committee so I don't think it would be

;1
3 :1 appropriate, Mr. Chairman, to say more than that regar9-ing

I.
4 ,i subsection (b). Obviously that's a very difficult section I

5 and we'll just have to wait and find out what the thoughts of

6 II the committee are with regard to that section.
:: JUDGE CHEATHAM: Tom, would you want to comment on

8 'II the political realities of taking that out?
II
SPEAKER MURPHY: What, the Constitutional alloca~ion?!

10

JUDGE CHEATHAM: Yes, motor vehicle.

..,

z

11 ~, O~

SPE~KER MURPHY: The political realities are you

(>

Q.

12 :"" ~in't going to be able to take it out.

(~r"''''~

JUDGE CHEATHAM: That's what I thought.

'---

14'
:-
'A

SPEAKER MURPHY: You ain't going to be able to P~,.

. IS ~ it without it in there and I am one of those folks who say '.:1

::,

16

'L"
"a"

that

I

do

not

believe

in

Constitutional

allocation~ mYsel~ as

.-,
1

~
f)~ ")

far

as

Georgia

is

concerned,

we've

got

Constitutional

boards

IX I and Constitutionally allocated funds but you ain't going to

I') never be able to take it out and pass it in the General
!I
~() i Assembly.

),

-"1

MR. WALLING: Then the last subparagraph, subparagraph

(c), that's the trust fund section on workmen's compensation. "L ..I You will recall our recommendation in connection with .'4 workmen's compensation in the insurance section was that that

provision be moved from the insurance section over to the

PAC1', 68
: ! " - - - - - - - - - - - - _... _-_._-_._ ..._. ------_._-------_._- --~.-
I'
appropriations section because it was appropriately a matter

~ for appropriations. That was done at the recommendation of

~ the Comptroller General. The changes there are only really

form and place, not substance.

That concludes the report.

CHAIRMAN CLARKE: Thank you, Bob. Any other

questions, comments, suggestions, criticisms or whatever?

(No response.)

9

If not, I would -- I heard a little story this past

10 weekend that sort of brought to mind something about what we're

doing here about trying to make things shorter. Somebody

said that one of the old pharaohs in Egypt called all of his

wise men in and people with great knowledge and told them he

wanted them to reduce all of the wisdom and all of the knowledge

15 .:'':>""' of the world into the shortest, most concise possible form.

16

."
.2..:

After

some

period

of

time

they

came

back

in

with

a

volume

0

7.

<i.

17 ''"" about so thick, very proud of the work they had done, worked

13 i on it for three years. And he said well I'm not even going to

19

I I:

look

at

that,

it's

too

long,

I

want

it

short.

They worked a

!1

20 couple more years and came back with one chapter and he said

well I'm not going to read that, that's too long. So they

went back and worked a couple more years and came back with
,,
--' one paragraph and he said that's too long. So finally after

about the twelfth year, they walked in with one sentence and

he said well this looks like it ought to be just what I want an~

PAGE 69
__ ---------------------_. .. - - - - - - - - - - - - - - - - - - - - - ---- - - - - - - - - - - - - - -

he opened it up and read it and it said "There ain't no f;t:'~e

,
L

lunch." So maybe that's what we're learning about Constitutio~al

revision, when you get down to trying to make it too short,

4 th~re just simply ain't no free lunch.

I thank all of y'all. I think each one of the

b subcommittees have scheduled another meeting. I assume that

7 it would not be wise to attempt right now to schedule a

8 meeting of the full committee until we see how those su~'} ~I committees proceed. Yes', Bob?

\0

MR. WALLING: May I ask the members of my subco~itte~

"z
11 ~ th~t ~r~ present, November 5th, we had set that as the next

0,

(~.'.c.~

," 1_

v"c:' ~

date

for

our meeting,

but we

have

a

conflict

there.

The Tax

~,t~-.L.c")'.J')\\r-,-..-.,"-'0 :~3 Reform Commission is meeting that date and we have staft and

'.~., ..'--.------" . , / I

j ,~ >~.- other people who want to participate in our meeting who are
-<
1:
15 ~ not going to be there as well as some committee members,

=-">
16 ~ Senator Holloway for example. The proposal now is NovemQer 7th:

at 10:00 in the morning. That is available to some of the 18 other members that we canvassed who are not here, Judge 19 Cheatham, Mrs. Brent, is that convenient?

JUDGE CHEATHAM: I think it is.

MR. WALLING: All right, we'll confirm that in a

notice to you then. Thank you, Mr. Chairman.

CHAIRMAN CLARKE: What time is your meeting?

MR. WALLING: November 7, 10:00 on the morning.

DR. PARTHEMOS: Mr. Chairman, I should like to remind

Pc\CE 70

members of our subcommittee that we meet next Tuesday at

2 ' 9:30. I think on the report there it indicates November 5th,

3 it's November 6th, a week from today.

4

CHAIRMAN CLARKE: Any other announcements?

"_J

Those of you who might not know, Tim Sweeney's

6 committee is scheduled to meet at 12:30 on the 6th,that's

~
I

Tuesday.

Hearing no other announcements-, we stand adjourned.

9 Thank all of you.

;0

(Whereupon, the meeting was adjourned at 12:02 p.m.)

18 19 20 21
24 i
25

PAGE

"..----------- ------------_._-----------------
:1
\i
II I!
Ii
II
2 Ii

:ii

.\ :1

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

71
------, I

4 hereby certify that the foregoing 70 pages of transcript

repres~nt a true and accurate record of the events which (, transpired at the time and place set out above.

/1 . .() pe~~rrenZ,JrfCYV.RN-CnM./, CCR A-17~I

10
t,;)
7.

t,;)
:':">
j () ;~..'.
()
< Ii ~
Ix 1')
20
22
,. ',

INDEX Committee to Revise Article III Full Committee Meeting Held on Oct. 29, 1979

FULL COMMITTEE MEETING 10-29-79 SUBCOMMITTEE REPORTS
1, SUBCOMMITTEE ON ORGANIZATION, STRUCTURE, AND PROCEDURE OF THE GENERAL ASSEMBLY SECTION I: LEGISLATIVE POWER. p. 6 SECTION II: COMPOSITION OF GENERAL ASSEMBLY (consolidation of Sections II and III of 1976 Constitution). pp. 6~9 SECTIO~ III; OFFICERS OF THE GENERAL ASSEMBLY. pp. 9-10 SECTION IV; ORGA~IZATION AND PROCEDURE OF THE GENERAL ASSEMBLY. pp. 10-14 SECTION V; ENACTMENT OF LAWS. pp. 14-19 Comments on the report. pp. 19-23

~, SUBCOMMITTEE ON THE BROAD POWERS OF THE GENERAL ASSEMBLY SECTION VI; EXERCISE OF POWERS. pp. 23-29 SECTIQN VlI: IHr~ACHMENTS. pp. 29-30 Comments OQ the ~eport. pp. 30-32

3. SUBCOMMITTEE ON SPECIAL POWERS

SECTION VIII: INSURANCE REGULATION. pp. 32-39

IXf SECTION

APPROPRIATIONS. pp. 39-6&

BEFORE THE "BROAD POWERS" SUBCOMMITTEE OF ARTICLE III LEGISLATIVE COMMITTEE
SELE~T CO~1ISSION TO REVISE CONSTITUTION STATE OF GEORGIA
The transcript of the proceedings heard before MR. TIMOTHY SlmENY, Subcommittee Chairman, commencing at 12:30 o'clock p.m., Tuesday, November 6, 1979, at Room 402, State Capitol Building, Atlanta, C~orgia.
-000-

BRANDENBURG & HASTY
SCIENTIFIC REPORTING 3715 COLONIAL TRAIL, ))OUGLASVILLE, GEORGIA 30115
942-0482 DEPOSITIONS - ARHITRATIONS - CONVENTIONS - CONFERENCES

L...-

._.

.

_._----_!I

I
j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j
J

APPEARANCES SUBCOl1MITTEI:.: HEl-mERS:
nn. TH10TUY SWEENEY, Chairman SEN. t1 PARKS BRmm 11R. DALE CLARK DR. CIU\RLES PYLES MS. BARBARA RYSTROM
OTUI:.:RS F3.ESEHT: HR. HAROLD CLARKE, Conunittee Chainnan HR. llICHAEL HENRY MR. HELVIU HILL 11S. CYNTHIA NONIDEZ
-000-

3
PRO C E E DIN G S CHAIRMAN SWEENEY:
Okay. \'Jhere are we? Does everybody have this attached to what Mike sent out, the language relating to participation in federal programs and compliance? That was attached. Did you send this out to everybody? MR. HENRY:
That would be -HR. HILL:
I don't have one. MR. HENRY:
I passed it out last time. We put it on the computer, but before we could get started, let's just X that out because I determined it doesn't take care of the problem I was ''It,tempting to take care of anyway. TIlE CHAIlU1AN:
Hhich is? ~1R. HENRY:
The relocation assis~ance. That.' s a gratuity, and I'nl not prepared to say that the court would interpret this to t~e care of that. So the original version is --
\..,
MS. RYSTROM: . I didn't receive anything. Did you send something
in the mail? HR. HENRY:

4
Okay. At the full committee meeting, along with the progress report, I passed out -- well, actually I just attached these to Dr. Pyles' and Tim's, but I passed out a computer print-out which contains the changed language. DR. PYLES:
You're saying now you don't -- you have problems with it you think?
M.R. HENRY:
Yeah. ~le would have problems. I think the other committee is going to have to deal with somewhere. Haybe we can try to slip it in under tho gratuities provision that we're working on in this subcommittee, but as far as this right here, I don't think it goes far enough. THE CHAIRMAN:
Okay. I like your language better than what we had. MR. HENRY:
uh, yeah. That's on the print-out that you received
last time. M~ <'. RYSTROM:
Do you have any extra one of that? I don't think I received it last time. You mean in the full committee meeting? MR. HENRY:
Yeah. ~lS. RYSTROM:

I don't think I received it, period. MR. HENRY:
Well, I passed one out to everyone at the full committee meeting.
MS. RYSTRm1:
That I've got, but -THE CHAIRMAN:
I haven't got one of those. MR. HILL:
That language has been incorporated in here.
MS. RYSTROM:
Okay. THE CHAIRI1AN:
We ought to adjourn and come back.
HR. Ch"\Rl( :
Let's work on the same papers. I'm lost. THE CHAIRMAN:
Can we get a copy of this made?
MS. RYSTROH:
Well, I can read off of this one. HR. HENRY:
You like the language in there, even though part of it can be struck1 THE CHAIRMAN:
Yes. The language in there is better than what we're

6
talking about. Mike came up with some language in paragraph II, subparagraph 3, came up with a substitute for that. MR. HENRY:
And what I'm saying now, you can begin by striking the words "and politicial subdivisions and instrwnentalities of the State. II
14R. CLARK:
Strike what now? MR. HILL:
Now, I'm not sure we want to do that. THE CHAIRMAN:
No. MR. HENRY:
You want to make it as broad as possible even though I'm saying it won't take care of the problem? THE CHAIRMAN:
Yes. MR. HENRY:
Okay. THE CHAIRMAU:
I mean somebody may come along and say that takes care of the problem, and I think the language that you drafted is broader and more to what \'1e want to say the language we have in paragraph II, subparagraph 3.

Except I would make two editorial suggestions. One is to strike the words "The General Assembly shall have the powers" and to make it consistent with the format, just to begin "To provide for the participation by the State and political subdivisions and instrumentalities of the State in federal programs and the compliance" and strike the words "by the State with laws relating thereto," so it reads "and the compliance with laws relating thereto." MS. RYSTROH:
There's an "of" missing in the next to last line before "powers." THE CHAIRMAN:
Yeah. MR. HILL:
Hell, now is it the last line of this draft here? MS. RYSTROM:
Huh? MR. HILL:
The last line of this? MS. RYSTROM:
The next to last. "Of the powers." MR. HILL:
I see. MR. CLARK:
Isn't that exactly the way this one reads?

8 MR. HENRY:
Yes.
THE CHAIRMAN:
Yeah.
MS. RYSTROM:
We're considering this sort of a vacuum then. It's not addressing the question we wanted it to, but you think it's good anyway?
THE CHAIRMAN:
Well, the question we were trying to address here is to the extent we can, we want to say that if the federal government establishes a program, that the General Assembly can autilorize the State to participate in that program and do everything necessary to effect that participation, and I think the language that's in the computer print-out of the section we're dealing with, but not in the last typed draft, which is on this little piece of paper that was just handed out, is much more effective, saying that
:,1
then what we originally had. MR. CLARKE:
You think this is more effective?
THE CHAImw~:
Yeah.
MS. RYSTROM:
It's y~ul:_co!1~n~!_()!!L_~_;~~' that youc}idn' t think it

all? MR. HENRY:
It does. THE CHAIRMAN:
It comes as close as anything we're going to get in simple language, and I think we ought to leave it in for that purpose. HR. HENRY:
There were four other provisions of the Constitution which I thought perhaps we could try and take care of by this. I've since found out that at least one of those four cannot ,be taken care of by this, but perhaps that the other three can, and the fourth one is going to be taken care of in another way. HR. HILL:
Now, these other things we're taJkinq about are not in Article III, the problems we've had in other places relating to the power of the General Assembly, that this one provision is going to cover as far as we can tell. MR. CLARK:
It takes care of the junkyards and the billboards? THE CHAIRHAN:
Yeah. HR. HILL:
Yes.

10 THE CHAIRHAN:
That's what we're trying to get it to accomplish. Whether it does or not, I think the question was put to me as if Tom H:oreland looks you in the eye and says, "Will I lose 20 million dollars if we adopt this language and drop the other language? Or will you guarantee that this language preserves it, you know?" Nobody can make that guarantee, but I think as long as we're dealing with the concept that the General Assembly ought to have the power to do whatever is necessary to participate in a federal program, then if that's our concept, we ought to state it and maybe sometime down the road the courts will say that this gives you everything you need, and we can then eliminate the other language. MR. HILL:
Now, just so we can, you know, be clear about ~hat we're doing, I think we should be working from this particular draft. Okay. It says at the top, "Article III Subcommittee on the Exercise of Power." It was handed out at the last meeting. Okay. THE CHAIRMAN:
Do you have an extra copy of that? MR. HILL:
This is on the computer, and this is what we're going to make our changes from. So if everybody has this, I

, .\: t

11

think we can do some, just incorporate into this what

wo just talked about here, because it was already put on the computer in more or less the same \lay you have it on

t.his sheet here. So let's just look at. number throe, and

if you Nill make the changes on your sheet so we're all together wherG \ve are, okay, on th.at subsection three on lines 22 to 23, "Ly the Stat~," will be struck. Okay. And then down on line 25 after "participation," add t.he words "and compliance" comma, and after "taxation" put

a cor;una, strike "and," and so it ".;rill just read "taxation,

minent domain, and ~oning." That would be the language.

.:~

DR. PYLES:

Back up on line 22, did not someone say that 22 and

23, strike "by the State"?

!-IR. HILL:
Yes. Yos. Okay. So that when it's finished~ it

will be "To provide for the participation by the state

a1~d political subdivisions and instrumentalities of the State in federal programs and for the compliance with

the la,'1s relatinq th~reto, including but not limited to the e>:arcisoto the extant and in the rnannr necessary to effect such participat.ion l).nd compliance \'lith the pmvers of taxation, eminent domain and zoning." That's hm.., that will read.

MH.. HENRY:

12 Tim, let me get this straight, what you just said. I think it's good, but we're not guaranteeing that this is taking care of it. THB CHAIRMAN: Yeah. And, you know, whoever is dealing with the other sections --
MR. HENRY:
Yeah. THE CHAIRMAN:
-- has to make that judgment and has to make that guarantee. My errors and admissions coverage is just not going on the line for 20 million dollars.
MR. HENRY:
Wo should leave those in the Constitution until such time as the court deems that this is necessary to cover that~and then have Cindy come in and strike it in an editorial revision. MR. HILL:
Now, this is a very, very big problem, you know. We are trying to get out of the Constitution junkyards and all of elis other kind of thing.
MR. CLARKE:
Yeah, but suppose the recital, well, suppose paragraph I was in some way made even grander, that the authority of the General Assembly is limited only to the extent as

, 13 provided for herein? Now, that may be too grand, but I'm trying to say that the legislative incent or whatever is just clearly expressed, that the General Assembly does have the right to enact laws in those areas except where there is an expressed limitation upon that authority. Is there any way to do that? I look to you wiser heads. MR. HENRY:
Well, there is limitations that we have to cover by this. N.R. CLARKE:
I understand that. MS. NONIDEZ:
Right. MR. CLARKE:
I don't know whether it would help ,at all or not, but if there was any place to even in some way have an expression of the intent that the General Assembly be limited in its authority only to the specifics, again just trying to give the breadth to this provision that would get it by the recital about the junkyards. MR. CLARK:
Why is this not clear? MR. HILL:
It's because of the traditional fear that the Supreme Court has had of powers of the General Assembly. They

14 allao~t have a Dillon's Rule attitude even toward the State
of Georgia. Dillon's Rule is th<:'t rule that says when you're looking at a city or a county, they cannot do anything unless it's expressly provided. Now, they haven't used that pri~ciple exactly, but their attitude has been traditionally in this State that they're very restrictive in their interpretation of the powers given to the General Assembly and they like to see specific authorizat.i6ns, y,m know 1 it makes them a lot happier. It makes them feel safer if they can see a specific authorization. They know they're not getting out on a limb. So that's our problem. We have r,lorat or less --
MR. CLARKE:
Of course all of that has been interpretation of previous Constitutions.
MR. I-iILL:
Right. That's right. That's right.
MR. CLARKE:
So if we could do this Constitution in such a way that we could MS. NONIDEZ:
lwstate that.
MR. CLARKE:
change their thinking, fine, but I think our problem is that none of us are in a position to guarantee

the agencies who are getting money because of these provisions that they will continue to get the money. MR. CLARK:
Well, I guess if this is adopted as part of the Constitution and it says "Without limitation, 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," then where is the limitation? How could the court -MR. CLARKE:
I don't see it, but there are a lot of times where I have ,urged positions where I didn't see how they could do otherwise and found them to do so. THE CHAI Rl1AN :
Let me give you an example of how ~he court might look at this provision. Assume you're participating i.n a federal highway program and the federal government says as a condition to participation in this program you must condemn all billboards within a thousand feet of the rightof-way or you must provide so many feet within so many miles of highway for rest areas for travellers~ All right. The court looks at this language and says, "This language is essentially redundant of principles that are already there." The court would say, "The General Assembly has al\Jays had the power to participate in federal programs

16 and comply with the laws relating to federal programs, and the Constitution establishes the power of taxation, eminent domain and zoning." All right. And the court says, "Under the Georgia Constitution the power of eminent domain does not include the power to take private property for the purpose of establishing a rest area for tourists, nor does it include the power to take existing billboards or to zone future billboards away from the highway." \'1hat they're saying is the existing State Constitution does not, those powers of eminent domain do not include the necessary, are not broad enough to take rest areas or
\
existing billboards or to zone away billboards that might be erected in the future. Mue' . RYSTROM:
Harold, do you think Tim is bucking for your place on the Court, since he's done such a wonderful job? MR. CLARKE:
I don't know anything about that. I don't have any place for him to buck for. THE ClIAIRl1AN:
My sympathies go out to Harold if he's going to take that position.
There's an old case that says when the \~neral Assembly condemns land for highway purposes, they can take only that land which is normally taken to build what

",\,;[.: 17
is normally built in connection with a road. Now, if that case had been decided in 1860, you know, how does the concept grow or expand, you know? 1860 highways wouldn't possibly encompass interstate highways or the necessities.
MR. CLARKE:
Question, Tim. I do not like the idea of referencing extraneous documents to the new document, but suppose there was a provision that at the ~nd of this paragraph II, it just says that nothing in Section whatever it is we're talking about here shall have the effect of removing from the General Assembly authority to do those things it could do as of such and such a date, going back to wha~ has already been granted in the present Constitution by amendment, but not having it all in the~e. I recognize this makes for a real problem for lawyers and judges because when they start litigating, they've got to go back and look at all these others, and that's the reason I don't like referencing extraneous documents.
MR. CLARK:
In other words, make reference to what's in the current Constitution?
MR. CLARKE:
No, don't make a reference. Just say "Nothing contained herein shall in any way diminish the authority of

the General Assembly to do such things or enact such laws as it can as of today." TIlE CHAIRMAN:
We're not taking anything away in the Constitution. MS. RYS'I'ROM:
That won't solve the problem either, will it? TIm CHAIRMAN:

Junkyards and billboards.

THE CtfAIRMAN:

It would solve junkyards, billboards and relocation

assistance.

,I' ;' MR. CLARKE:

My biggest problem with leaving that in there is

that we have left the courts the same reason for requiring

ill

specificity on everything that we do in the future.

)1'. TIlE CHAIRMAN:

Yeah.

MR. CLARKE:

I'm not near as worried about being in there now,

but is that going to cost just an accumulation of

amendments on down the road?

MR. CLAIm: So they would say later on if they meant to put it
in there, they should have put it in there like they did this other7 be specific.
MR. CLARKE:
And of course -- and let me apologize for being late in getting here, but I think the thing that Tim and Mel probably had some conversations on that I have not, we all need to recognize that whatever we do is going to be running through anybody's office where it's effect will be felt, and certainly anything that deals with this kind of money is going to run over the desk of the Commissioner of Transportation, and he's going to run it over the desk of Marion Gordon or somebody over in the Attorney General's office, and the easy.thing for them always to do is to say, "Leave it alone. We know it's all right. " MR. HENRY:
Yeah. That's true.
MR. CLARKE:
And of course I'm guilty of saying the same thing to my clients occasionally, "Why mess up something? 'It's all right to begin with. Leave it broke. Don't fix it." TIlE CHAIRMAN:
That' s right. That sounds like a good approach to mel.

20 It really does. HR. CLARKE:
If we did that, then how could they complain? "Well, we said, we specifically said you've got all the authority you have today." HR. HILL:
It sure would be a big help to us in terms of getting the thing through the General Assembly, because anybody that comes up with it, we can say, "Hell, you know -MR. CLARKE:
"ou've got overy bit of authority that you have on whatever day it is, whatever day you want to put. MR. HILL:
And it's not as bad as it could be. We haven't referenced highway beautification.
MR. CLARKE:
No. We're just saying we haven't diminished the authority or whatever words you might want to use. MR. HILL:
That might be an appropriate answer.
MR. HENRY:
Well, let me point out this pitfall.
MR. CLARKE:
There's always one.
loiR. HENRY:

21 The way I understand it, and as Tim so aptly explained it, tho court is more than likely and has held that unless you have that specific power, unless you have that specific provision, pursuant to which you can enact this legislation, if we don't see it in there, then this legislation is unconst~tutional, and can we grandfather that in by reference to something?
l\1R. CLARKE:
Well, wouldn't the court have to go back then and say well, let's say today. It would be November 5, 1979. \'louldn't they have to go back and say, "Hell, what authority would the General Assembly have had on November 5, 1979?" And I guess the only way they could find that, and I hate to do this. The only way they would find that out is ~!O back to the 1945 Constitution, as amended, and say, "\'1ell, they had the authority to do this and such," and as I say, that's a bad device. HR. HENRY:
Do ''Ie alleviate the problems? I mean we're taking care of it up until our place in time.
MR. CLARKE:
You may not.
THE CHAlIUWJ:
Well, if you had this language in here, then if the situation comes up again, the court will have to construe

22 it and say adversn:1.y, they would have to corn.... up with something broader. MR. HENRY:
Nlother thing I was thinking about, putting t.hat in there and' leaving the other two in there, to be later stricken at the time that we can determine that this takes care of everything. I don't think we'rG ever goinq to have the broad litigation that we're talking abou~, which would ever allow us to take those out. HR. CLARKE:
As long.as you've got them in there, there's no reason for the litigation. THE CHAIRHAN:
Hhat Harold is saying, by reference back to the existing Constitution, it preserves those existing powers. MR. HENRY:
It's kind of like the Tidewater Titles thing. MR. HILL:
nut it's better, because it doesn't say Tidewater Titles is confirmed or it doesn't specify any act or anything, you know. It just carrie$ forward the authority they had.
HR. HENRY:
I think it would take care of the inunediate problem. I'm not sure that it would take care of future problems,

23 and I think we would have to amend the Constitution with the language that we have now. MR. CLARKE:
Unless this turned out to be adequate. MR. HILL:
Yes. MR. HENRY:
I see what you're talking about. MR. CLARKE:
But what I'm getting over is right now our immediate problem is selling what we are doing right here to the Attorney General's office and not having it, not doctored up when we get to the Select Committee and what not, and by doing this, at least we can get over that hurdle. Then on future things, perhaps they could travel on this, and if they can't, then we're no worse off than we were to begin with anyhow, as I see it. MS. NONIDE:!.:
Havo we got any input from the Attorney General about this language? MR. HENRY:
Well, no official input, but I worked with them, and like you said earlier, they say, "It's worked. Why mess with it1" NR. CLl\.HKE:

24
I have not talked to any of them, but I was assuming that's what they would say. aRe HENRY:
, That's not their official line either. That's just
when I attempt to work out a way to solve these problems. They say, "Hell, many, many hours were put into coming up with the provisions, and many, many hours were put into coming up with the legislation pursuant to this provision, and if you can guarantee us that nothing is going to happen THE CHAIRMAN:
Fine. But we can't. MR. CLARK:
Are they taking the position then that we should leave the junkyard-billboard paragraphs in the State Constitution? MR. CLARKE:
We don't know that. lie're saying there's a danger they would. MR. HENRY:
Yeah. They're not taking that official position .HR. CLARKE:
nut I think the argument on the other side of that would b6, "lvell, if that's the case, the 1945 Constitution, as amended, works. So why monkey with it at all? Why not

25
just leave the whole thing and forget it1 tl
us. RYSTROl-l:
Wolve been wasting a lot of time, haven't we, with that rationale?
MR. CLARK:
It seems to me that we've moved, come full circle on what our responsibility supposedly is against what the past dictates. I don't know what the Attorney General's office or Tom Horeland' s attorneys and e'lerybody else is going to say. MS. NONIDEZ:
Harold, I like your idea of somehow trying to work in in paragraph I this whole inherent powers and trying to really just say that.
MS. RYSTROM:
But isn't that what it says right now?
MS. NONIDEZ:
Well, it does, but I guess we're all working with this inherent.
MR. CLARKE:
I don't know. I started scribbling something down, and I think I omitted a sentence. Everything you put in begins to be redundant.
US. RYSTRQl.l:
When I was thinking after our big meeting last time

26
more about this question of what are we supposed to do and how idealistic should ~..le be and so on, I was remembering afte~/ards and talked to some of you about it. I think as we talk about this, \V'o tend to get to the point where we're acting as if we're going to propose something that will either fail or succeed and forgetting how very amandaole it is. If we take a position that's fairly strong in the idealistic mode, it doesn't mean for a minute that the Select Committee and then the General Assembly itself can't de-idealize it: they can t.hrow back in what we have taken out and so on. Hhat will we have accomplished really if we do all the compromising now and, you know, present what we think should pass the General Assembly?
MR. CLARKE:
I agree with you. If there is sonething we can do, however, that will avoid --
MS. RYSTROM:
I agree.
11R. CLARKE:
those changes being made, like perhaps broaden the inherent power provision or doing some sort of veiled grandfatller type approach, then we've done a little better job.
MS. RYSTROM:

27
I agree with that. I don't see how I guess we can broaden the inherent provision, but if we can state it 17 times or, you know, just he so clear about it that. it. would be impossible to construe it otherwise, I would be all in favor of that, but that of course is a reason for not, as we've all said, for not specifying powers that in fact would be inherent, because you sure as heck have undermined the whole concept every time you do that.
HR. CLARKE:
Well, suppose I know we don't -- I don't think wo've got anything in this Constitution that expresses public policy as suche I mean it does, but it uoes it in an indirect way. Suppose that the general powers paragraph in "lumber I could be broadened to say that, "It is hereby declared to be the public policy of this State that the authority of the General Assembly shall be construed in a liberal manner." MR. HILL:
To be as broad as is possible. HR. CLARKE:
Yeah. To be restricted only be the limitations stated herein. HS. NONIDEZ:
Yeah.
!41{. CL.i\RKE :

28 That might then give a dictate to the courts to change its manner of construction, because the people would have spoken then in ratifying the Constitution.
HR. HENRY:
Can you limit the judicial interpretation?
11R. CLARKE:
No, you can't, but it might help. It might be an aid of one, but not a limitation on it~
MR. HENRY:
It's the same argwnent you get. Hell, \ie could sit here and scream into that reporting machine all day long what our intent was in doing this.
MR. CLARKE:
I understand.
l.ffi. HENRY:
nut whether they're going to look at it and use our intent or your or the Committeo's intent is a different question.
MR. CLARKE:
But if you wanted to do something like that, even maybe plus the grandfather type thing, then it would seem to me it would be awfully hard for somebody else to come and say this Constitution doesn't allow us to levy taxes or to exercise the right of eminent domain as to junkyards and billboards.

29 MR. CLARK:
So between those two points, it's about airt.ight. it's going to lengthen it a bit.
MR. CLAmm:
Yeah. Yeah.
MS. RYSTRQt.1:
But when you lengthen the general language, you haven't sinned in any degree 'the same way as when you 30011 out a lot of specific stuff in it. , MR. CLARKE:
You know what Abraham r..incoln said when sOMebody asked him how long legs ought to be, "Long enough to reach the ground."
HS. RYSTROM:
Cindy, did you write stuff down? MS. NONIDEZ:
Well, I was just looking further down at the second sentence in Paragraph III. I know we put that in there for another point, but I was beginning to wonder if maybe we couldn't take that sentence and work it back up into Paragraph I, maybe saying something to the effect that the exercise by the General Assembly of its powers shall not be construed as to limit the pO\verfl.
MR. CLARKE:
Not only the exercise of them, but the granting of

30
the powers by this document shall not be construed. HS. NONIDEZ:
Except as provided herein. Is there some way to work that notion up in the first paragraph? MR. HENRY:
Hell, do you think we might could possibly grandfather in the relocation assistance?
MR. CLARKE:
Vie11 MR. HENRY:
I'm not. sure. Just perhaps we could do that, if we're going to say that the powers that they have prior to January 1, 1982 or whatever. Would the powers that we grandfather in be limited to the powers stated in Paragraph III or Section 3 of Paragraph II?
MR. CLARKE:
I didn't mean for you to get us into all that detail now. MR. HILL:
No. I think he was implying that there should be a separate paragraph stating that nothing in this section shall be construed to lirdt the power of the General Assembly existing on the effective date of this document.
TilE CHAlm-mU:
Okay. You know, perhaps a new Paragraph III, making

31 the existing Paragraph III Paragraph IV. "The General Assembly shall have all the powers existing on the date of the adoption of this Article, and enumeration of the powers herein shall not be construed as limiting such powers." DR. PYLES:
Make it Subparagraph V or Section -- Paragraph II, Section 4 or 5. THE CHAIRMAN:
Yeah. 5.
MR. CLARK:
What were you saying again,, Tim? THE CHAIRMAN:
"The General Assembly shall have all the powers existing on' the date of the adoption of this Article, and the enumeration of powers herein shall not be construed to limit such powers." DR. PYLES:
~lould that carry the weight as if it were actually under Paragraph I? TUE ClIAIHHAN:
Yeah. It all carries the same weight. DR. PYLES:
Location doesn't -MD I" . RYS'l'ROM:

32
Still just rhetorically might it be better to move that stuff up and list specific powers later and take your new Paragraph III, make that Paragraph II, and the present Paragraph II could be Paragraph III, so that all the stuff about inherent powers and the effect would be at the beginning? I think just logically you should state the generalities first. THE CHAIRMAN:
All right. A new Paragraph II and the existing Paragraph II becomes Paragraph III. MS. RYSTROM:
Well, I was picturing then that the existing Paragraph III would still be III and then the existing Paragraph II could be IV, and IV move on down. In other words, everything that was general, that was really general would come first. The specific powers, in other words, would come after what is now Paragraph I. what we're proposing.
MR. CLARKE:
Well, we've got to give some thought to something. If we make it an entirely separate paragraph -- and Mel, help me here -- is there anything else in any of the other sections in Article III that have the effect of somewhat limiting the authority t.hat the. Genoral '\sv2IUbly has right now? If there is, then "Ie may be about to contradict ourselves. I can't recall anything, but it seems

33
to me tllat it might ought to be a part of Paragraph II or else you might run the risk of having it in direct conflict with some other free-standing provision. Can you tllink of anything?
r-m. HILL:
Well, on the appropriations there were a number of changes that may be made. So we get into the prohlem of trying to decide whether or not this is more restrictive or, you know, what exactly have we done. I think I felt that that provision about nothing contained herein is to be construed to limit the powers of the General Assembly on the effective date of this Article applies to this section only. HR. CLARKE:
Yeah. MH. HILL:
And I didn't mean for it to go over to appropriations or something. MR. CLARKE:
I agree with that too because that's a difficulty in dealing with different subcommittees dealing with different sections. You have to be careful that you're not running of.f in opposite directions. MR. HENRY;
I thought what we were trying to grandfather in was

34
this compliance with federal programs, and I think if you could limit, in fact I think you would have to limit it t.o that extent to take care of those, if we were going to try to grandfather in those powers, and that would probably solve the appropriations problem, because they don't appropriate in compliance with federal law. MR. CLARKE:
Well, that's the only one that I know tilat we're really trying to save. MS. RYSTROl1:
That's true.
HR. C ':..ARKE :
And so it seems to me that we would run into a lot less danger if we made it part of Paragraph II of this section. Maybe somebody has got a better idea. THE CHAIRMAN:
No. I think you're right. MR. HILL:
Okay. Hell, are you going so far as to say you think it should be right at the end of this subparagraph III and actually limit it to that one? MR. CLARKE:
Well, I don't have strong feelinq about that. HR. HILL:
The good thing about that is the only language back

35 t]lere that would be n~cessary would be federal programs. MR. CLARKE:
That's right. MR. HILL:
And fgderal compliance.
MR. CLARKE:
Is there anything else we're trying to say? J.1R. HILL:
No, no. THE CHAIRf.1AN:
If that's the case, why shouldn't we do that? MR. HILL:
mlY should we force everybody under all these other provisions to have to go back and check, you know, so maybe that is where it belongs, right there at the end of III.
MR. CLARKE:
Chuck did point out that lie did almost the same thing on gratuities also, where we say those by a specific sentence on that section. DR. PYLES:
Under D, the last sentence, the last few lines, 15, 16, 17 and 10, 13, 14 and 15 -MR. HENRY:
So in this grandfather provision, do you think we

36 should ~aka specific reference to the federal compliance? MR. CLARKE:
Halll MR. HILL:
I think we're going to add it on the end of this Number III. MR. CLARKE:
Just leave III as it is here and add that to the end . of it. MR. llILL:
As part of III? DR. PYLES:
Really where you say, "Implement the provisions of Subparagraphs 3 through 9," now we're talking about 3 already. MR. HENRY:
No. That was -HR. HILL:
No. That was the old Constitution. Those are the spacific exceptions in the old Constitution. DR. PYLES:
All right. I see. THE CHAIHMAN:
Just take tllat lapguage and enumerate the specific powers we want to preserve out of the existing Constitution.

37
Is that what you're talking about? Just: i:ak the eOllcept W~ used ~n the gratuities instance and use similar language to deal with the specific powers?
~1R. HILL:
Hell, no. I felt -- you mean by sp~cificall:! referancing highways?
TIlE CIIAIHMlJ:l:
Yeah. HR. HILL:
And do it. specifically as t.o that?
THE ellAI I{l1t"\N :
\"'611, with reference to 1\1~t.ic19, Section and Paragraph nuubcr. I think \-Te are only dealing with three of tht>r.l.
un.. lILllHY:
I think if you did, you curtni.nly \'lonldn' t leave any roou. for a miscomrc.ruction of ,,'hat \<tu in\:end.
HR. HILL:
I don't know. I kind of like Harold'z idua. It's bj,:'oadcr and a littlo b\oltt'i.lr. l'n not .surtl that ,.,e wouldn'o:. confuso everybody thlln.
'j,'1m CllAIIUU\u:
I think it liould be confusing to try to preserve the existing pO\iOrS, because to ~ome extant we're changing
them.

313 MR. CLARY~:
Sure. MR. HILL:
Yeah. Just make specific reference to all those things we had trouble with. THE CllAI RMAU :
Right. MR. HILL:
And there's only three of them I guess. THE CHAIRMAN:
Yeah. MR. HILL:
And that would be a separate paragraph then. If we're going to mention specifically what we're talking about, we could have that at -DR. PYLES:
It could be V then instead of adding it to I. MR. HILL:
Uh-huh. MR. CLARKE:
That does mean that the poor old lawyors have got to go back through two Constitutions. TUg CHAIRMAN:
That's true. MR. HILL:

What's fun is when they get back there and see that it's reforring to the amendments of 1877. MR. CLARKE:
Yeah. And also by that time we will have our ner;l code which will not contain a copy of the 1945 Constitution. so lawyers \~i1l have to keep in their library an additional volume.
HH.. HElmy:
But only if you are attacking the constitutionality of the legislation, because the legislation is going to be on the books anyway.
r-m. CLARKE:
Well, any time you've got a client whose billboard gets condemned or \jhose junkyard gets condemned, you're going to attack everything you can.
HR. HENRY:
Yeah. TIlE ClIAIRHAN:
Does everybody concur with that?
HS. RYSTROH:
. I just don't like it, but I guess I'm the only one. I just foe1, you know, that Mike was saying that wouldn't leave any room for misconstruing, but what it sure would do is strengthen the notion that if it isn't in here, it isn't a power, and I would think that the Supreme Court

might reasonably cite something like that as evidence of that, that this constitution was written to list the powers. TIlE CHAIRHAN:
Our comments will be published I assume. lwiS. RYSTROH:
Yes. I'm sure they will.
MR. HILL:
Not necessarily. Not necessarily. I mean I think we've got fairly good language, stronger language here than we have in our present Constitution, and maybe a different group of people hearing the question, you know, when it comes up later -- and r'm not sure just by preserving this we're necessarily going to prevent them from reading it broadly.
HS. RYSTROM:
I didn't mean to say I was sure we would prevent them from it, but it would just be wonderful evidencE:, if you were looking for evidence at allY rate, that this really is a list of powers rather than a list of exc:1usions of powers, if you did see it there. I'll tell you what. I'll just vote no to add a little spice to this operation, but you can go ahead. THE CHAIRHAU:
Is everybody else in favor?

(Showing of hands) Four to one. Adopted. The next change -MR. CLARK: Excuse me. Is it being added to Number III? THE CHAIIDmN: Adding a new Subparagraph. It will be a new Paragraph 5 to Paragraph II, Subparagraph 5 to Paragraph II. MR. HILL: And it will say something to the effect, "Nothing contained in this Paragraph shall be construed to limit the authority of the C~neral Assembly with respect to federal programs in existence on the effective date of this Article," something to that effect. THE ClIAIRl1AN: Well, my preference would just be to say, "The General Assembly shall have the nower to implement the provisions of -MR. HENRY: Article IV, Section 8, Paragraphs 2 and 3. THE CHAIRMAN: Yeah. "And all laws adopted thereunder shall continue in force and effect until modified or rO!"iealed."
MR. CLAlUffi:
viell,,. that \olOuld be so explicit. THr~ CHAIRMAN:

42 They couldn't really quarrel with it. HR. HENRY: Well, with this one, I perhaps -- if we get -- if we have something like that, we might could somehow could work in the relocation assistance again, and we might be able to put that back in there. I'm not sure. THE CHAIRNAN: \~ell, that's my thought. MS. RYS'l'ROM: That's the one you referred to as you tilought not fixed by this? MR. HENRY: Right. THE CHAIRMAN: I think 'the three we I re talking about are Article I, Section 3, Paragraph :, SUbparagraph 2. MR. HENRY: Uh-huh. THE CHAIRl-iAN:
And Article IV, Section a, Paragraphs II and III.
And just say, "The General Assembly shall have the power to implement those." MR. HENRY:
I think we might need -- we should even maybe think about putt.iny relocation assistance into the gratuities

43 exceptions if we can, because that's what it is, although it could come within the powers of taxation. We might could stick it in here or grandfather it in through this, but if not, perhaps we could grandfather it in through the gratuities exceptions. THE CHAIRMAN:
Except! really don't think it's a gratuity. That's the implication we're giving if we stick it.: in there.
MR. HENRY:
Well, it's a grant of money, which is comprised of both federal and state funds, and they shall have the power l;o tax to get those funds, but I haven't determined whether taxing includes taxing and spending or just taxing. I haven't done much research on that, but it's still kind of vague to me, that when you're talking about taxing and spending, if you're spending for something other than a public purpose, then you're making a gratuity.
r-1S. RYSTROl1:
Uith spending for other than a public purpose? THE CHAIRMAN:
That's part of the problem. t4S. RYSTROH:
Surely it could be -- one way to look at it would be that it was for a public purpose.

,I~ .-~
MR. CLARKE:
Well, is relocation assistance more a public purpose than saying aid to dependent children or something of that sort? If there's a need there, than aren't you just meeting the need in a public way? MR. HENRY:
Well, they determined it's not part of it, just an adequate compensation. I know that. I don't know where welfare fits in. MS. RYSTROlo1:
If we could get the courts to be as generous in construing the inherent powers as they are in the meaning of gratuities, we would be all right, wouldn't we, because we have just got the whole argument turned on its face, and apparently they think everything is a gratuity and nothing is an inherent power. So if someone could just get on that, fix it all up, we would be all set. THE CHAIRHAN:
Okay. The next change relates to what is existing Paragraph II, Subparagraph 4, on the emergency powers, and it has been suggested by the Conunittee dealing with appropriations that the language in that section be transferred over to emergency powers, and that language deals with motor fuel taxes, which are by the Constitution appropriated to the Highway Department, and at the end of

45

the existing language, it says, "In the event of invasion

of the State by land, sea or air or in the case of a major

catastrophe so proclaimed by the C,overnor, the motor fuel

tax funds may be utilized for defense or relief purposes on the executive order of the Governor. II It seems to' me to be so narrow a focus that we ought to shift it back

over to them.

M.":>. RYSTROH: Going \lith the allocation of funds, I guess that was
pretty clear at the general meeting that they were not

going to have any -- I mean they were going to have to continue earmarked funds.

HR. CLARKE:

They haven't made a firm decision, but if I had

to speculate, I would speculate they \V'ou1d continue it.

t-1S. RYSTROH:
That's something we'll all be making a decision on.

MR. CLARKE:

Oh, yes. Certainly. Everybody \'Ii11 have an

opportunity to make such motions and arguments.

MI' i.J.

RYS '1'ROn :

It seems to me that no one but the Highway Department ought to be in favor of earmarked funds. I realize when you say the Highway Department, you say quite a lot,. Maybe we could kill two birds with one stone by this.

4G

And of cuurse the 01<1 phi1osop~lY 1.:00 ,.,as at one time that motorL:t.B had an inten.~5t in .it,. You travel in an dutomobill.l and they ought: to US~J f;hat fl10nHy 'i:o nake the trav~l ~asier nnd Rafe~.
!18. HYSTROH:
.,. llIld9rstallU tJ10 rationale.
1m. CLARKE: You can say that about Hlany othor:' things. Alcohol

MS. RYSTROI1 :

Su.ro. Wu;re is thE law]uag no\., ~(.hat t.h';y re wanting?

l1R. hILL:

Page 23. 'rhe middle of tIl.;; page, last, senl:enc-e of

Subparagraph

-.,
1,

<M1-,,'-(">' RYS'.cnm1:

Uh-huh.

MR. HILL:

~1~11 !!ov, is this a pov!er that, you know

putting

asid~:tha question of 'HheLher \'Ie want it or not, is

this a po'tmr of the Gtmeral Assar.1bly ~Je want to give

th~:'T:? III other words, do 'iC vJant to say that in pm:iods

o f ~.lc;.rgoncy the General Assembly could provide for the

uti1izatiOIl of th~B.n funds for othur than pt'.blic road

purposes?

47 Nn. CLARKI.:::
Let me ask a question. Hhat is a constitutional legislative rule? Does that mean a provision of the Constitution? -11<. HILL:
Uh-huh.
rm. CLARY-.f;:
Hell, if that's the case, haven't you done it anyway by suspunding all constitutional legislative rules, one
or tiuch being that the appropriation of gas tax must be
utilized for road purposes? I'm asking the question because I don't know.
Il'IIE CliAIHHAH:
Well, my concern with the legislative rules would not encompass limitation on spending. HH. CLAHKB:
I understand the legislatiVe rule, but 1; don't know what a constitutional legislative rule is. I understand what legislative provisions in the Constitutional relating to the J..egislature is, but I don't know what a rule is in the Constitution. I thought the rules of the General li.ssembly \.,rere separate and apart.
'l'llL ChAI m1AN :
Well, my understanding was that a rule is something dealing \lith their procedure, you know, procedure for

48 adoption of laws.
HH. CL.i\RKE:
Yeah.
THE CHAIRH1\.H:
And it wouldn't relate to substantive limitations.
HS. RYS'I'UOH:
It would be a good idea though, wouldn't it, to sort of reservo the word "rule" for things that are nonconstitutional, Hhich is turninq around what you had said?
HR. CLARKB:
I don't know.
1.'18. l{Y~TRUM:
He see tile word "rule, II and we don't. think in terms of stipulations with the force of the Constitution.
l-1R. CLARKE:
I think what they're talking about, it seems like what does it take to have a quorum. MS. NONIDEZ:
Constitutional majority.
Mi(J' . RYSTROM:
I don't know if that is what they meant, but just for future analysis, of this, just rules would be something other than that. Hhat' s in here nm1 seems to include catastrophes other than enemy attack.

49 THE CHAIRNAN:
Yeah. HS. RYSTROM:
So I suppose that could be regarded as something we wouldn't have taken care of, but if we would get earmarked funds, we wouldn't have this problem at all. MR. HILL:
I don't think we could assume --
?om. RYSTROH:
No. I know we can't. I'm just hoping to trump up support for it, for the next general meeting. THE CHAIRMAN:
~1y thought was it deals with the specific subject matter that's already got to be in the Constitution anyhow, just to leave it there. MR. HILL:
Just keep it in their area? 'rilE CHAIRMAN:
Yeah. HR. CLARKE:
I don't see that it's at all inconsistent with their section. THE CHAIRMAN:
Ho. Moe' . RYS'l'R0l1:

50 It's inter~sting because it's all going the other way. PeoplE; vlant to siva something m..ay. !-iR. HILL: So the recommendation is to send it back?
THE CHAIRHIJ.~:
Yeah. Punt.
HR. lULL:
'fhanks, bu"c no i.hallks.
THE erIAl RMAN :
If we are going to uevalop a concept of during an emergency either by enemy attack or resulting from a major catastropll~, whatever that is, you ought to suspend all limitations on appropriations. Then we can include it in here rationally, but it deals solely with that one sourcs of funds.
MR. HILL:
Yeah. Is th"u:e t>ome fueling that we should change this? Is there a better 'lrlay to state constitutional legislativ9 rules?
I-m. CL1'.IU<1.;:
Ho. ':L'hat.'s fine. Or you could say constitutional --
uO YOU v.ant to say I'rules and procedures "?
MR. CLARKE;
Or you could say "legis'lative rules as provided in the

51 Con~titUl:ion," but that's getting more words. I think what you'vo got is -- I don't know. HS. 11'iS'l'HOH:
Hell, I ,.,as going to nit-pick right along with you, because I liked what you said about provisions or l:3omething like that. "Rules" is a \'lord that we use to distinguish. l<ie talk about the rules of the General Assembly, and we do that. t'le say these things are more ephemeral for one thing, and they could be changed by legislation, and that's not true with the Constitution. DR. PYLL;b:
I'm surprised that thing is in there anyway. They
suspend the rules every day. MR. CLARKE:
Not constitutional rules. DR. PYLES:
Well, that would be true. I guess I'm picking up '/].lere Barbara is, the way she uses that word. NR. CLAIU\E:
rrhe rules of the House and the rules of the Senat.e, yes, but not -THE CliAIRMAlJ:
Okay. Everybody agree to punt it back? HR. CLAnK:
(Nods affirmatively)

SEU. BROlVN: (Nods affirmativaly)
'fEE CHAIRUlzm:
Okay. I guess logically the n:vxt. pl:'o?osed change r~lat~s tc thG ;~pulation bills. HR. HILI.:
Yoah. This is anothc:::" stab. I' In not real sure what \'le want to do. I think that '.'las part of 'the trouble. I wasn' t rual 5urc of ,,,hat \'It: agreed to in t~rm5 of what '.'1S want to say about these things. MS. RYSTRO.M:
\;h611 I read it, Hel, I inserted words, thinking that was Vlh~lt you moant;, but not being certain. At the end of the third line, I lr,:; not necGssarily proposing th6 ;,lord
no there, but just to be sure I unders'cand, is it that
"such law applies only to political subdivisions of less than a specified population, or only applie,s to -- of more than. II Is that ".Nhat you meant? You're saying put a cailingor a cap, but not: both, or am I misinterpreting altogothor:' HH. HILL:
YUti. I think "only" is what I probably did intend. DR. PYLES:
~lheru do you propose puttinq that? Under Paragraph IV?

53 MR. HILL:
Ull-huh. Right. It gOGS to tho whole issue 0 f l,JeH\jral lc"\w v~rsus local law. Again, as I pointed out. last tiine, the reason for t.his last provision is to allow thu C~nOl:al Assembly to classify cities. This is not some-chinq they can do now. I'm not sure it's something the General Assenu..ly wants 'to de. It might create political problems ,but you know, in oUwr states this is a very popular way of dGalin~j with cities, to ha":i three or four different classes of cities. So presently, you, k'.iOW, you have to draft a la\,,, relating t.o a city to apply to tlvery cit.y in thCi Stat.e or a county, and there's no opportunity for disti1l9uishing between thOI~ on reasonablu 'j"row1ds, so th.at \taG onG of tll~ reasons for -chis proposed languagb, and Il m not sure.
H~. RYSTROH:
Doosn't the first part of it n:ak::.o~ thlo; second pa.rt: illlpOstiil.>le, espldcially if you had the '~onlys" an I said? liut if you didn't, I don't knm'i what thut ~lOuld do. Are you precluding -cha Gun~ral .Assambly ~rom sotting up a
classification l:2yst~m that is basud on population \l7ith
Doth ceiling and a cap? If they did it in an orderly way, you wouldn't object Lo the idea of cities of jO,OOO or 100,000. MR. HILL:

Ho, no, :l1O. I don't object to that.
ML'.>. RYSTROH~
But you s~e, doesn't the first part of that say you can't do chat?
!.1l{. HILL:
H~ll, tho first: two parts are to 'take ~are of Atlanta .:tnd to taka Car~ -- raally to take care of Atlanta. That's really the only reason that's in there, so that you can say that all citi~s of less tlllin 10n,000 vopulation, because I think Atlanta itself is unique as t.he capital city and, you know, the largest cit.y and all the rest of it, and I 'Chink that there probably should be a way to have a law that would apply to them, but you could throw them into this classification system r~aybe, and you know, have them become a class. MS. RiSTROM:
I wasn't arguing with your idea, which I like. I was just afraid tha'C this language precluded it in that we say that you can't create a class solely in terms of population.
MH. lULL:
Well, I guess "only" didn't apply, Barbara, but that's how you read it?
MLt'). lfiS'!'HOH:
Hell, I don't know \'1hat i t racans if it doesn't say

55

that then. If you can't put in "only," then I don't

understand it. If you can't put in "only," then it looks

to me at any rate that the bottom part is precluded, but

maybe that's just a notion I got when I first read it,

and I haven't been able to shake that, if it doesn't say

"only."

MR. HILL:

Well, this language comes right out of the

constitution right now.

SElie BROHN:

It's the way we've got it right now.

MR. HILL:

Right now \'1e have this in Article IX, not relating

to the same topic. It is more limited, but anyway I

used it because I understood what it me~nt, you know. It

r;;~:.."!.ns that all cities of over 300, 000 or over 400,000 or

all citie~ over 20,000, it's applied to all of them. It's
"\
one way you can use population, or you could use it the

other way, all of them less than, or you can use population

as a basis if it's part of a classification systram.

MS. RYSTROH:

But right now the way we have it, can't we have --

don't w~ set a base and a ceiling? Don't we say counties

HR. HiLL:

\

That's the problem with the legislation.

56
RYSTROM: Coum:..ies over such and such and under such and such.
That's what we're trying to preclude in the future, right? MR. HILL:
Uh-huh. t1S. RYSTROM:
But we're doing it \Iiith this language? I didn't really roalize that this is in the Constitution right now. The kind of population act we're all opposed to is not because MR. HILL:
That's not legal gent,"irally. speaking if the range is so small that it only applies to one. It would have to be able to find now a reasonable relationship betwe~n size and the -MR. CLARKE:
Subject matter. MR. HILL:
and the subject matter and, you know, if it only relates to one, they can't really find it. If it's the City of Atlant,:t,you know, they can usually find a ~eason for those or for these that encompass more than one subdivision, they can usually find it, but this language I think allows three different options for population, less than one, more than another one, and

57
the third would be a classification syst.e:J1 where you could use population as lonq as it. applieR. H11at is my intent, you know -- more work maybe needs to be done, but as long as it applies to classifications that could be found throughout the State or form of government. All city manager forms of governm~nt may be, no matter the size.
MoCJ' o RYSTROM:
Well, are you suggesting that this wouldn't be anything that different from the way the law is now? MR. HILL:
Oh, it would be quite different from the way the law is now because presently they can't do this latter thing we're talking about. Presently they can't classify cities on the basis of population. I think they would have a hard time.
MS. RYS7ROH:
Those exnmples that someone gave us about two different laws for two different counties that someone introduced, that would no longer be possible? I mean right now it's not possible right now? NR. CLARKE:
I don't think it is.
1'lS. RYSTR01'l:
See, that's what my impression was, that we were

SB
currently in the situation where something like only one political subdivision qualified and it could still be regarded as acceptable. MR. HILL:
Well, it's done, and it's not challenged. MS. RYSTROM:
I see. MR. HILL:
And so it's a law, but if it was challenged, it would probably wouldn't be upheld in most cases. In all fairness, I really haven't had a chance to talk with Legislative Counsel about this. There's somebody in that office, Harvey Findley, who probably will be able to help us with this even more. I guess I'm just wondering if I'm right in the concept that I'm trying to develop. How does the Cowaittee feel? MR. CLARKE:
~~ybe what you ought to do is just take a poll of the Committee members and see if they agree wit.h t.he concept.' --
rm. HILL:
with the concept. MR. CLARKE:
expressed here. THE CHAIRMAN:
Let me ask you a question though before we poll on

59
the third possibility, relating to certain classes or of a certain class or classes or form of government. Do you anticipate that those classifications would be established in the bill which is enacted or would it be established by a pre-existing general law and then the population bill would apply to the previously established classification?
MR. HILL:
I guess that in th~ :,ystem I'm thinking of it ~"ould be a pre-existing bill that sets the classification, and then you could have a law relating to all cities of the first class, second class, third class.
MR. HENRY:
Could you -- under this you have apparently three separate variables here, which could mean a possible -you could corabine these three separate variables to make nine separate classifications, if I remember my arithmetic right. Could you have any onu with a town manager form of government \'lith a population of loss than X amount or with not more than or not-l~s,," ttlan two separate amotmts? I moan it seems like yo~, could do exactly what they're doing right now.
HR. HILL:
If you were clever enough.
Muc' . HYSTROH:

60
In months with an R in it, at any rate.
MR. CLARKE:
Couldn't you even now enact. a sta't.ute that said all municipal corporations having a city manager form of government blah, ~lah, blah? Would there be any restriction upon the General Assembly in doing that? MS. NONIDl:;~:
I don't think so.
MH.. CLARKE:
Even in the absence of this?
I-IS. NONIDEZ:
Right. MR. HILL:
probably not. Probably no limitation. That may be okay.
MR. CLARKE:
Because that would apply, that would be a general bill that would apply equally to ev~ry city that happened to fall into that. I don't have any raal -- I'm just not real sure that the provision is necess<>.ry. MR. HILL:
rlell, certainly the office of Legislative Counsel -=_6ls there should be something, some something done about population bills now, you know. Maybe we should just say population shall not be used as a basis of classification

for the applicability of any general law to any political subdivision, period.
MS. NONIDEZ:
But that would have all sorts of problems. There's salary bills.
MR. CLARKE:
Unless the population in some manner bears a relationship to the bill and it does on minimum salary bills because it has to do with the ability to pay and the breadth of the duties performed by the public officer because of the size of the population. HR. CLARK:
Well, isn't our targ~ not shall not, but shall? That we want population on general legislation to apply to classes of cities over 50,000, over 100,000, because the traffic courts or whatever the need might be. Are we trying to do a positive rather than a negative point here? THE CHAIRHAH:
What I was going to suggest was turn it around a little bit and say something along the lines of "The General Assembly shall be general law classify the political subdivisions of the st.ate by population, the population shall not be used as a classification for the applicability of any general la,.., except in accordance

62 with the classification established by general law. 1I That's get circular, or "unless it applies to political subdivisions of less than a specific population or more than a specific population" and make the first part mandatory tllat they adopt a classification and the second part is ussentially what you have. I agree with '>That you have about the form of goverhffient. MR. CLARKE:
You have pre-established brackets.
'rim CliAIR1'JAN:
Right. I'm. HILL:
Well, what if we just said, tiThe General Assembly may provide by law for the classification of cities," just. to let them do it?
TIlE CHAIRl1AH:
All right. HR. HILL:
And then prohibit thorn from enacting another one from that system, and if they wanted to set it up, they could.
'l'lIB CHAIRMAN:
Right, or, you know, I don't have any special problem with say~ng that they can pass a la\'l relating to cities over a specified population or under a specified

63 population, but just they can't classify except by general law, and then they can legislate in reference to those classifications. MR. HILL:
That would take care of my problem. I don't know how the Committee feels really. ~fuat's the thinking of the Committee? Is this a change that we should recommend? They don't do it this way now. DR. PYLES:
Excuse me. They don't do it this way now'l You said this is right out of the Constitution. MR. HILL:
Well, some of it is, that about more than and less than is. MS. lJONIDEZ:
What the problem is that gave rise to this really came principally -- well, the Speaker was interested in trying to have some mechanism and language in the Constitution that would prohibit the enactment of population acts which would only effect Richmond County. I just use that as an example, but they do a lot of things that way. I know a lot of other instances it's to get ovor the local advertisoIll:i.:mt, the notice ,,,hen the time has run out, and so how do you accomplish what you wanted to do? Hell, you do it by a population act, and.

64
it's those that's the onerous group of population acts that they would like to try to prohibit.
1-1R. CLARKE:
Let me stop you. I agree with you right there. I think they ought to be prohibited. MS. NONIDEZ:
Yeah, but to accomplish that without impairing the ability of the General Assembly to use population as a valid basis for classifying local govermnont entities and enacting, you know, general law on that basis, you know. The fact that obviously the needs of localities of different sizes are very real and very different.
MS. RYSTROM:
Well, to just answer the question about the feeling at least of one member of the Committee, I definitely like the idea. I'm still \-lorried from the proposals that we've had whether or not we really would be accomplishing anything. If we have a situation now where a lot of legislat~on is going unchallenged as to its constitutionality~ it's probably not the case that fixing the Constitution is what needs to be done. I mean under a new Constitution there can be unchallenged instances also, but to the extant that it can be fixed and that we can come up with something so that the legislation '.vould never get through, since it would be patently unconstitutional, I think that

65 would be great.
MH. HILL:'
IImv do you feel about Tim's proposals?
MS. RYS'I'ROIvl:
Yes. It seems to me essentially the same thing, but as he said, reversed. In effect it does set up the catagories, and that makes good sense. I think we surely, you know, if we imagine the future, we can picture a heck of a lot of playing around with those classifications. I want my city into II instead of III, and all I have to do is get the rules for classification changed, but I doubt if we could ever get to the point where we eliminate finagling with categories. TIlE CHAIRlWI:
You can't eliminate politics from politics
.MS. RYSTROH:
Who would even want to? So I think, you knm'1, the effort in trying to come up with something -THE CHAIRMAN:
I'm in favor of it, you know.
MR. CLARKE:
And another serious problem \'1e'va <Jot is every ten years you've got to go back and straigthen it out because the census changes. THE CIIAIRHAN:

66 Right. MR. CLARKE: And I don't like the principle of 'l~ having a constitutional provision that says that local acts must follow a notice of intention to introduce and then have a way to circumvent that. MR. HILL: Right. MR. CLARKE: I think that.'s wrong.
MR. RYSTROM:
I was just wondering in terms if you regarded all the population acts that are now in effect as parts of a giant classification scheme and how many categories there are in the classification scheme would be a good job for some political science graduate student, but I bet it's a tremendous number because they refer to very different sets of numbers.
MR. CLARKE:
Well, \<lhat I'm. hearing -from the Committee is tli.at everybody is in favor of doing something about it. Really it's a question of -TIlE CHAIRr-mN:
Leaving it up to Mel. MR. HILL:

, ."','!

67

You did that last tiNe.

MR. CIJUUlli #
And the fact that the provision would be that you can't, you know, any longer have a narrow population brac;ket as the basis for the applieat.ion of an act, and

the Co~nittee needs to decide whether we want a preexisting set of brackets or whether you want to wait until one comes along. As I understood what you were

saying, Tim, you were thinking in terms of the brackets

being established by general law and then any --

'lIIff.: CHAIRMAN:

Legislation.

MH. CLARKI:::
any popUlation legislation that came along would

have to be within those fixed brackets.

THE CHAIRMAN:

Right. I don't know if that's a workable concept.

l-1H. CLARKE:
I don't know either. It might be a problem. 'I'lIB CHAIRMAN:
Yeah.

J.VlR. CLARKE:

Because what might be a good bracket system for the pay scale for sheriffs might not be a good bracket system for some others. I believe sheriffs are all on a pay

68 scale bascO. on population brackets. DR. FYLES:
Could no'c t.he Ganeral Assembly, hO\v~ver, altar those classifications schemes for a specific purpose like pay or soma school formula'?
HS. HYSTROH:..
Houldn I t that st.art to defeat the purpose then? VIe would be back to multiplicity.
TIm ClIAIPJll~N:
\'lull, you raally wouldn' t. You \...oultl be back to a complex SySt.Wll, but you would give an opallill<j for the populution bill problo1Uthat exists now.
HS. RY[.>TF..OH.:
I .....a:.> tl.inking that ass1.ll(ling that. we Caine up and th~y came up \lith a classification sch~na, there might be factors or variablen th.:n: we're not even including; the r~lationlihip of population and square miles might be meaningful, you know, dansity of population or all kinds of things, and it's even conceivable that there could be a schemu wh~re cities d.ecided which category they wanted to b~ in. If there were characteristic~, t.here would n;;;c~ssarily have to be an analysis, but if you once start.;;;d allo-wing lit,tlu sun-categories or multiple grids to irepoE:!-u on all of thasG, thEm I feel like you \"ould get t.o a si'cuation \vhcrG you might welcome the good old days

-

when we had population acts and only one variable was

-

involved.

.\ MS. NONIDEZ:

-

Well, maybe we can get Tim and Harvey Findley to

work on that language some

) Ml~. HILL:

7

Yeah. We'll talk to Legislative Counsel. I

S

understand the feeling of the group.

') i i THE CHAIRMAN:

II

-

u

They I re the folks who have dealt with it over and

,.;

L

! I '--

over again for years and years . "

oo.

~

oJ MR. HILL:

Right.

'I'HE CHAIRlW~:

Okay. That takes care of that, and I don't know that

we have any more problems. Did you say we had a problem?

MR. CLAIUm:

Dh. The only other thing is Paragraph V, Sub D.

They want to take that whole thing and put it in the

section that deals with the structure of the General

21

Assembly, and they still want to maintain an affirmative

-

I
grant qf authority to provide for their own compensation.

23 THE CHAIRMAN:

24

Okay.

_.'1';"

MR. CLARKE:

_._.

.-----J

70
Hithin the limitation that they can't change it during their term. So they want to take that away from you. TIlE CHAIRMAlI:
I don't have any problem with that. Anybody? SEN. BROWN:
No. THE CHAIRMAN:
So our V now becomes IV. MS. RYSTR0l1:
Where are we going to put it?
MR. CLARKl~:
Let roe see. I've got it right here.
HR. CLARK:
D goes out? THE CHAIRl'1AN:
Yes. Does anybody else have any concerns with what we've done? ML c' l. RYSTROM:
Tim, could I take this opportunity just to say that I went this morning to the Parthenes Subcommittee, and they did discuss the question of the 'possibility of
\
having something in here about open meetings, and it didn't seem tOLe met with tremendous enthusiasm there, and if it were possible for us to discuss it here, I

71 thought maybe since the issue will obviously t.hen have to go to the whole Committee. THE CHAlillWl:
I represented the General Assembly in the famous fight over it, and I'm not about to change. I think they ought to be able to meet in secret if they want to. MR. RYSTROM:
Oh, goodness: Well, disregarding the Chairman of the Subcommittee, okay, I have a feeling that that action will have to get to the third Subcommittee. TIlE CHAIHMAU:
No. We can bring it up and talk about it. I don't know if it's within our jurisdiction. rm. CLARlm:
Let me say this. Every member of t~e overall Committee certainly has jurisdiction to talk about any issue that's involved anywhere in Article III, in either an open or closed meeting. I1H. CLAHK:
Does the Constitution have reference to this at 'all? MS. RYSTROM:
No. THE CHAlillWI:
'I The \vhole theory i the case that was litigated was
about the Sunshine Law and whether the Sunshine Law applied

72
to the <3eneral Assembly, and the theory ,'>'as that t.he Sunshine Law didn't apply and couldn't apply because each house of the General Assembly has the power to establish its own rules and in a sense, the Sunshine Law is a rule, and you can't -- the General Assembly couldn't adopt a rule this session bindinq the next session of the Ganaral Assembly because that session determines its own rules, and it didn't really deal \'lith whether or not it's ..,is~ or unwise to have closed meetings, but that's the whol~ principlo. MS. RYSTROH:
And as it stands right now, any General Assembly could make ril1~s THE CHAIRHAU:
'l'hat's right.
r1S. RYS'l'ROH:
that all their meetings be closed. Now, I know they wouldn't do that, but they can.
MR. CLARKE:
And tilat's the case also --
SEN. BROWN:
PriIllarily it's not going to pass out anyway, so you're just wasting your time.
I
THE CHAIRHi\N: That's right. Time to be practical.

73 SEN. BROWN:
Tell it like it is.
MR. CLAHKE:
That's the case of the law school dictum that sort of indicated the rules of each house were superior to the Constitution itself.
MR. CLARK:
I have another question. I think I have the same feeling that she does in a formal 'discussion, but an issue of the size of the legislature, which came up and they locked it in at 180, and I guess that's going to prevail. I don't know. MR. CLARKE:
Don't assume anything because it's up to the merabers of the Committee.
HR. CLAIUC:
Well, it is an issue that the General Assembly is one of the largest in the nation, and the question is as to Fhet.h.:'.l-:' it's unwieldy, and it's poorly paid and poorly staffed and whether it is an issue on the size of our Legislature, whether it,is an issue of the efficiency and effectiveness of the Legislature, and there is a study committee, a citizens committee back in late-60's or 70's, a Ggorgia citizens committee that made a strong recOlumendation. It was a reputable group state-wide that

74
worked many, many months that carne up and proposed a maximW'l House of no more than 150 and a Senate of 50 I think and was disregarded, although the House was reduced down to 180, and my feeling on this is it's not going to be changed because anything we propose has to be adopted by the General Assembly, and the Assembly is not going to reduce its own membership, and at the same time I feel that since this is a history-making assignment of revising a Constitution and even knowing that it's not going to go, I think feeling as I do that we ought to open the door to a smaller Gener;'1 Assembly, and I don't want to be ,.:mtbarassing or don't \'1ant to ernbarass Iilysel f or anybody else by proposing ~his.
MR. CLARKE:
(~ ahoad and then I'll make a comment.
MH. CLARK:
I just want the sense, you know, in this informal conversation. Does anybody else have any feeling?
SBN. BROWN:
"hen Harold was in there, we had 205. He reduced it from 205 to 160. Then I went from the House to the Senat~ of 56/memhars~ and you don't need it too small because you get a club. It's tho difforence in t,he Houso and the Senate right now. because I won't vote against your bill if you don't vote against me. If you get it too

75
small, you get a club.
MR. CLARKE:
Well, let me say this though. Don't feel that you would aniliarass the Committee or yourself by making any motion as to any changes in any provision of the draft that comes before' Ub, and on this particular one I think there is a division of feeling. One of the reasons for
. some division of feeling is th~s, ....as a practical one,
getting away from the siz6, but in dealing ~itil the question of re-apportionment, and you've got to ra,..apportion every
",
;,,,,:n seal::s regardless. Sometimes you will find the State to Lave reached a certain population position where it is not easily divisihle by 180. MR. CLARK:'
That was a point.
MR. CLARKE:
Yes. Somebody brought that up at the meeting the other day.
MR. CLAIUZ:
Robin Harris.
MR. CLARKI: :
So again this is anothe"r of the issu~;)S that can be talked about. I think that,that's a matter that the full Committee ought to take a look at or make a determination on. I dont know what might happen when we get back to

76
the House and the Senate. Of course they have a bite at the apple long after we've turned loose, and we'll be reading about it. in the newspaper and hCiaring about it on ~harmal ~ \"hen it does.
1"1:;. Rysrl'RON.:
Dale,r can guarantee you a second to the motion to make it smaller. MR. CLARK:
Well, I don't know really if that's the way we ought to go or to just simply keep it from being locked in.
MS. RYSTRO~'1:
Right now it's in a tiny, ... tight range, isn't it?
i"lR. HILL:
There's no range at all. That's the point. They've locked it in. toW. RYS'ROH:
No, I meant in the present Constitut.ion, 'che real short rangd, just two or three positions, something like ~hat, and ~he difference between 178 and 180 isn't going to make much difference.
i.iH. PYLES:
How did they arrive at that range?
V.LR. CLAJ{l{l:.;:
The present range? DR. PYLhS:

77
Yeah. Did that corne out of some study that they had done over at Athens? I'm. HILL:
The Senate is from 54 to 56, but in the House it's just apportioned districts. NR. CLARKE:
No size. MR. HILL:
There's no size stated otherwise.
HR. CLARlill:
Yeah. In the present Constitution there is no size written. MR. CLARK:
What determines that? MR. CLARKE:
By statute. 'rUE CHAI RMAN :
By law. MR. CLARKE:
The General I~ssembly just passes a statute fixing the number and apportions it.
lilR. CLAIUC:
I think that's better than trying to lock it in with a fixed number. At least it leav(.'!s" you know, some flexibility.

78 MS. RYSTROM:
They could increase it to 500 though.
MR. CLARK:
They could.
SEN. BROHN:
Hell, we've done it two different. times, from 205 down. We've done it twice.
1m. CLARK:
Reduced it?
SEN. BROWN:
Reduced it. We've done it two different times. THE CHAIRMAN:
Around re-apportionment.
SEN. llROHN:
Yeah. MR. CLARK.:
I think it would be just as erroneous or illogical maybe to dictate a size, as it would to fix, lock this in it. In other words, it seems to me that the best thing we could do on the bnsis of the reality, practical reality is to keep an open door. MS. RYSTROH:
You lost your second.
I'iR. CLARK:
\'1ell, you know it's Hot going to fly, but to appease

79
your conscience or your feGliags.
I Just don't think Wt;l should Lio all our compromising beforoe this -thing gets t.o the bargaining tabla. I ft:!dr that's what ,,,e've done time and again. He're not the bargaining conunit.ta.a, 0ut the full Committee is and the General h,3sembly is, but you know, if we don't f?resent if we ~ould say, u\lhat are they going to do? Let's do i t before they get a chance" every t.ime, then I don't think ".ri;J've accOiaplishad very, 1wh. Unfortunately I've go~ sorae othur i3sues I fael this way about too. I mean I faol t.hat:. th~ single member districts should be required Ly the Constitution. I don' ~t.hiIlk it. should he possible to i.<1Ve multiple I;lumber districts. I know that couldn't possibly ~jetthrough t:.h~ Gene;r:al Assembly and optin meetings couldn't get t.hrough, Lut it Saell\S to lile tilat this is- a tiue for us 'i.o se~ the kiH<.i of things that we r~g(1rd as 9000. govbrnmellt in the Constitution and put the onus on thostil who ,.rant to change it. That's my own feeling anyway. HR. CLARK:
~':;<d have il <.loCUIl1ent., a good scudy t.o fall od<.:k on, an :l.hl}Jr"'6sivCi study by reputable people, recommending 150 and 50. MR. lIILL~

"0-.(1, Vlell, you could say no\: raoro than 180. 'l'hat was COl1sidored in the conunitt.ee, but, see, they didn I t want to say -- the Sp6aker said, "I'd say not less than 180, but I \'lon It go with "not. more than. "" So, you know, tllat s \-lhere it died, and th6 roasoll. that the numbers got put into the House is because there's numbers in the Senate, and they wanted it to be consistent, ,mu they thought about a range for the House as well as tho Senate, and the mora tIlay talkGd, the more t:-hey th(.;tght, "l\w, "Iell" MR. CLARKE: fJ.'hara >vas a mention -- I think. I was wrong when I made so~e r~~ark about this earlier, and maybe I've got myself straightened out right, and you correct me if I'm wrong. Thb Fed6ral Constitution does specify the numbers of 'C.ho I:lombers of ,thu S~::na'l:.e and not the House. Ist.hat co rr.c;c 'C.? DR. PYLES: Only t.wo f01: each state. The House is not specified, but they have set it. at 435 by statute. HR. CLARKE: nut specified for how many fo:' each state, but the House. ha3 been apportioned 435 since way, way back a h~Ildrud yuars or whatevdr. So there is at least some other placa they, had tho O!1C specified and the other one not.

01
THE ClIAIR11.Al1:
Hell, Harold, wllat I s our schedule.
HR. CLARKE:
Hell, our sch~dul~ is that w~'ll IIlQEtt next week on what is it, the 15th, and at that time I think \-olE; ought t.o come with t.lia id~a. of maybe being here all day long, becausi: \olt3'll start at tht:i beginning and go through.
HR. CLAn.::.~:
Nuxt week?
HR. CLARKI:::
Yus. HR. HILL:
Thursday, 337-B, 10:uO a.m.
AlHi try and stay all day?
HE. CI.l~lliili:
I don I t know. '~e 're go ing to hava to see what hal?pens. I think after that we probably want to give other people on the outside the opportunity to express themselves to us. That may sort of get us down toward the shank of it.
lIT, CLllRl~ :
i'vull, it seems, YOu knml, looking -- I feel like we've taken sOlne junk words and clarified some things and there's some sections in here I still don't understand

B2
that I voted for, like the corporations, the novature or whatever, novation. MS. RYSTROM:
I meant to ask you about that one. Haven't \.,e left it the last time we met as a Subcommittee -- I almost remember that I made a motion that that language be altered so that it was generalized in some way. If it was done, I didn't detect it. TIlE CHAIRHAN:
I made the attempt and couldn't.
1-m. RYSTROH:
You just couldn't do that. MR. CLARK:
But I i.hought the Conunittee would road it because they presented the present Constitution and just struck all those lines. That was impressive, and it saems t.o me I would bUy that, but the Speaker said you're going to have trouble with it when it came to insurance primarily. MR. CLARKE:
I think the Speaker was wrong about that. I don't believu -- in the first place, it did not change anything, just to take a lot of words out of the Constitution. It simply says that the General Assembly will regulate the insurance industry, and I don't believe that the members of the Legislature are going to be upset with making

83
that change. I think he spoke without really adequate reflection on it.
, MR. CLARK:
It looked good, didn't it? I mean this is what we're shooting at. MR. CLARKE:
Because even though it provided in ?. very '.yordy way that there would be regulation and the reports would be made, it didn't say what sort of reports or what form, and all that has got to be done by statute anyway.
THE CHAIIU-1AN:
That was his concern, that all of the language --
MR. CLARKE:
I never did get exactly what his concern was.
THE CHAIRHAH:
Dr. Pyles suggested it was the fact that it was, the language was retained, anything was retained.
11R. CLARKE:
Ho, no. He wanted the full business.
THE ClIAIRMAlJ:
Oh, he did?
HR. CLAIUm:
Yes. l-1S. NONIDEZ:
I think he became very nervous about whether or not

84
the General l\ssembly had the power that it currently has, once you deleted all that language. He was worried about that.
r1R. CLARKE:
I think that \vill work itself out.
MR. CLARK:
l~w do you feel about our junkyards? Do you think that's going to go out?
MR. CLARKE:
I think we're dea ling v.dth other people now. Don't you, Tim?
TIlE CHAIRr-1AN:
Yeah. We're repeating it~ but it's just going to be much simpler.
MR. CLARKE:
'rho only big problem I see is going to be on the part of down the road \vith lawyers and judges, if they have to deal with that sUbject matter, but already having -- it's been litigated, I assume, and having already been litigated over, you've got cases you can go back to. So I don't know that they'll attack the constitutionality of that particular issue again, and wo've tied it to that issue. I don't knmv. What do you think, Cindy?
MS. NONIDEZ:

85
I would just like to try to get Tim and Harvey to look at that, that 'area as well as this population thing, try to talk a little bit more about it, this general problem.
'fIlE CHAIRUAN:
Okay.
H1<. CLARK :
Population to~e lay person, it seems like it would be a su~ple declaration that the Legislature can pass laws and apply 1t to certain classes of cities by population, cities or counties, because it seems like a logical way to govern, and yet, the difficulty we have in trying to put that into lar:guage is just baffling. HR. CLAH.KE:
\~ell, the reason it's difficult is they've taken that and used it in a way that we don't want them to use it. So what you're trying to do is prevent the other and accomplish that at the same time.
'i'BE CiiAIRI1AN:
):ou want to prevent the popUlation bill that applies only to Riclunond County
.tvll<.. CLARKE:
',ehe classic uxarnple is the one that applied only well, two bills. One applied only to Monroe, and one applied only to Jones, which would have prevented hunting

qr
01)
on Sunday in t:.host:l two counties. 1'1m CHAlRilAH:
Right.
SBlJ. BRm'lH:
And you live in one of thel'!\.
And I live in one. and 1'111 not d hunter, and it didn't:. make any difference to me, but it did to imnters.
THB CilAIRNi\.N:
Okay.
HR. CLARla;:
1\nc1 I naver did suo what our pupulation a.ct llid,. (Whereupon, the a'vove-entith:,,(i matter wab cO~lCluded.)
-000-
C E R T I FIe ATE
GEOHGIA) )
CLARKE COUi:J'i'Y )
I hereoy cartify that the foregoin9 transcript was taken down, as stated in the caption, and t:he sc.at,~'l~n(.s and discussion thHreto weru r~duced t() typmvritinq by me personally; that:. the foregoing pages, 1 through 86, inclusive, reprilsent a t.cUll, correct and complete transcription of the discussion 9 i vun at said htmring
This, the 17th day

INDEX Committee to Revise Article III Subcommittee Meeting Held on Nov. 6, 1979

SUBCOMMITTEE ON BROAD POWERS OF THE GENERAL ASSEMBLY 11-6-79

SECTION II: COMPOSITION OF GENERAL ASSEMBLY Paragraph I(b): Composition of the House of Representatives.

pp. 73-80

SECTION IV: ORGANIZATION AND PROCEDURE -OF-TH-E GENERAL ASSEMBLY
Paragraph XI: Open meetings. pp. 70-73

SECTION VI: EXERCISE OF POWERS Paragraph II: Specific powers. pp. 3-52 Paragraph IV: Limitations on special legislation. pp. 52-69, 85-86

SECTION VIII: INSURANCE REGULATION Paragraphs I: Regulation of insurance, and
II: Issuance of licenses. pp. 81-84

j
j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j

5

6

-

7

8

q

JO

c,

z

11 ;::

,L

o

/,y:2;Y~~\

.1'"\ ..:.

",
.Yo
~

.,!,"i~\,,,:;;_~;.~J

/')

),_~~;_~l!
!!

~~
V

\~' '. --~,'~;'//

'~

l:i

1S ,.
,:
j b '~

j'J

PAGE 1
STATE OF GEORGIA COMMITTEE TO REVISE ARTICLE III
OF THE CONSTITUTION OF GEORGIA
SUBCOMMITTEE ON SPECIAL POWERS AND FUNCTIONS, ARTICLE III, SECTIONS IX & X OF THE GEORGIA CONSTITUTION.
Room 40l-A, State Capitol Building Atlanta, Georgia Wednesday, November 7, 1979 10:00 a.m.

-i

1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1

l'AGE 2

PRESENT:

COMMITTEE MEMBERS:

CHAIRMAN ROBERT WALLING

HAROLD G. CLARKE

"

MRS. FLORENCE BRENT

JUDGE FRANK S. CHEATHAM

SENATOR AL HOLLOWAY
-~PRESENTATIVE HERBERT JONES

REPRESENTATIVE E. ROY LAMBERT
'-)

OTHERS PRESENT:

MELVIN HILL, Director of Staff

!,"

VICKIE GREENBERG, Staff Attorney

I"~

~

J:
\5 ~,.l,

CHARLES TIDWELL, Office of the Governor

~

! 6 'l"

CANTER BROWN, Legislative Counsel's Office

,~

Cl

l

, '7 I

:l)

JAMES McGEE, Department of Transportation

:--;

1 1 1 1 1
1 1 1
~1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1

PRO C E E DIN G S

CHAIRMAN WALLING: Let's go ahead and convene.

I will call the roll first.

Representative Jones will be back in a moment and

join us.

I am Bob Walling here as Chairman.

Mrs. Brent, does anyone know whether she will be

here this morning?

)
Judge Cheatham is here;

iu

Senator Holloway is here;

!' ,

Representative Jones is here;

")

Represenative Lambert is not here; and Senator

Turner is not here.

Vickie Greenberg, our staff person, is here with us.

We have an agenda this morning that is a continua-

tion of our last meeting at which we discussed all items
'7 ;1
except one; that one we did not discuss was motor fuel tax

allocation.

That may take more time since we have not had a
,,
discussion, so I would like to put that at the top of the

-",

agenda.

In addition to those items we discussed, the motor

fuel taxation, I have heard from the Attorney General's

office, and they do have some minor concern about some of the

language that was omitted from some of the other sections,

PAGE 4

and I'll come back to that at the end of the agenda when we decide what we're going to do with that as a committee.

Now, there are a number of materials you should have

4

in front of you in addition to current draft of the two

sections we are working on, Insurance Regulation and

Appropriations, in addition to that.

If anybody doesn't have it, Vickie has additional

copies. You should have the statement that has been prepared

by the Department of Transportation and will be covered by

""

Mr. McGee in a few moments;

You should have a list of constitutional provisions

dealing with appropriation sections from other states, the

first one being Alabama. That relates to the question of

whether or not we go into using the device of supplemental

: I...:

~

appropriations bills, or whether we go into exclude that.

Another item you should have would be the -- a

memorandum to members of this committee from Vickie

Greenberg, subject Legislative Control of Federal Funds.

And then you should have some material again

relating to motor fuel tax allocation, and the budget as to

,:"1

general funds which is made by DOT.

For the benefit of the court reporter, we will ask

if anyone who is not at the table speaks to identify them-

selves so that he can make a record. He has a diagram which will work for those at the table, but along the wall is not

quite so convenient.

Representative Lambert has come in who is down at

the end of the table.

REPRESENTATIVE LAMBERT: I'm sorry I'm late, Mr.

Chairman.

CHAIRMAN WALLING: Thank you. We have got a quorum

now.

Is there any objection, then, that we turn to

paragraph 4-- correction, Paragraph 5, Subsection (b) --

iO

that is the new numbering, Paragraph 5, Subsection (b)

,)

1

...

,1

C

" I:.

relating to motor fuel taxation. If there is no objection,

I think it might be well for the committee to hear from

Mr. McGee first with regard to the memorandum he has prepared

for us, and anything else he might have.

Mr. McGee, who is Director of Operations for the

Department of Transportation.

17 r:,'

MR. McGEE: Thank you, Mr. Chairman.

I appreciate the opportunity to stop by this

i'J

morning and make a few comments regarding the proposal which

20

would affect the motor fuel tax.

2l

Of course, we in the Department of Transportation

,) are very concerned about this proposal, and I have passed out

to each of you a little handout which explains some of the

principles and some facts in the matter that we would

appreciate you reviewing and taking into consideration.

PAC;; 6

I will speak very briefly because I, of course,

speak from that. I won't try to repeat it, but let me just

if I may summarize the handout that I have given to you.

Motor fuel tax, of course, is derived from users of

roads and bridges. The constitution presently says that that

money, all of those moneys must go back into roads and

bridges. We think that is a fair taxation and a fair way to

utilize the funds.

Another consideration is that we do not think

really it is a feasible or nlausible time to think in terms

of spreading the usage of a fund which at the present time

J-

is going downward in its total income and spreading that out

into more usage, particularly where we do not have sufficient

funds at this time that meet all of our road and bridge needs.

The other types of transportation needs that might .l{1 ~ be included in the proposed other transportation funds, of

course, have been addressed by the General Assembly in past

years, and the appropriate appropriationsas they have

)'-/

determined have been made to these other types of transporta-

tion purposes.

We are aware of some other states that have gone in

this direction, and in those other states there has been a
-''';
tendency for the funding to gradually shift more and more to

other types of transportation, in mass transit, aviation,

,.>

et cetera.

I'Ala:: 7

~I
I!
j(J
'.'J
-~, ~
;9';\1.[(;: \
til \i.. \ \ ~;~ .. H.-e
i' I
.',
: .I
-" ,

One other point I just might bring out is -- and of course I'm sure you are aware of this -- this started out that there would be an additional collection from some of the other transportation modes to add to this general tax for its distribution, and as I understand it that has already been discarded, and so we're talking about strictly the motor fuel tax which, as I mentioned earlier, is paid for by the road and bridge users, and we just think the fair way of handling this is still using that on roads and bridges.
Thank you , sir. CHAlffi1AN WALLING: Thank you , Mr. McGee. Any questions from members of the committee to Mr. McGee? JUDGE CrlliATHAM: Mr. McGee , do you percieve enough from this source to totally maintain the roads and bridges, or do you have to have other appropriations? MR. McGEE: Judge Cheatham, for the past three years the General Assembly has appropriated funds out of the general fund to subsidize the motor fuel tax because there has not been sufficient funds to meet all of our needs. At this past session a change was made in the appropriations and in the law to provide for the sales tax on gasoline to now be a part of the dedicated funds as motor fuel tax, and this amount from my best projection will

PAC L; 8

approximately equate the amount that the General Assembly

has for the last couple of years appropriated out of the

general fund> so with the dedicated funds now we are

approxunate1y at the same level that we have been with both

dedicated and general fund money for the last two years.

I might add> if I may, Mr. Chairman> that in the

little handout I gave you some data that shows that the motor

fuel of seven and a half cents per gallon tax has been going

downward for some time> and I have shown some figures in the

, 1\,

handout I gave to you regarding the data for July> August

and September, and since this handout was made the October

information is out> and for the month of October as compared

to October of last year the collections were 6.2 percent

down, and again for a $1.3 million reduction from last year,

so for the first quarter of this fiscal year the motor fuel

!\.'

tax collections are down a little over $4 million.

CHAIRMAN WALLING: Mr. McGee> the draft prepared by

the staff follows the existing language of the constitutional

provisions for allocation of motor fuel taxes except for

editorial changes, and except for striking the words "public

roads and bridges" and replacing that with "transportation.1!

As I understand it> you're speaking in opposition to

that change. MR. McGEE: Opposition to that change. We would
like to see it stating the roads and bridges as it is in the

[r--~~~~-~-~~:t-io-n-a-t

---
the

---
pre

---
sent

-----
time,

_.-
yes,

----
sir.

-

2 IIIi

CHAIRMAN WALLING: Thank you.

PAGE 9 --------1

3 II

Mrs. Brent has come in. Mrs. Brent, join us at the:

!iI,
,~ ii committee table if you would, please.

-

5

I did not recognize Mr. Mel Hill who is our

6

Director of Staff, the most important person in this room.

Representative Jones?

REPRESENTATIVE JONES: My question is, Mr. McGee,

C)

Mr. Chairman, to ask him to define for us what the Department

10

of Transportation presently considers as transportation, and

what areas they deal with and in so that we might know where

these funds would be divided if they were in fact required

to appropriate funds to all modes of transportation that the

Department deals with.

::c
c.!.oJ,
16 ,.1 C
T
, 7 >: I:;;.

MR. McGee; Mr. Jones, of course we are a Department of Transportation, and we deal with all modes we deal with water, with aviation, with mass transit, as well

as highway transit or highway transportation, so we deal with!

all modes.

2Cl

As I mentioned a few minutes ago, you members of the

2)

General Assembly have appropriated funds for the modes other

than the highway mode out of the general fund, has funded

~hose modes of transportation in the last few years.

REPRESENTATIVE JONES; Mr. Chairman, if I may, I

just came from the Appropriations Committee meeting where the

PAGE 10

Commissioner was presenting the budget, and what I wanted

2

this group to know that they are even dealing in such things

as bicycle trails, certainly rural transportation, mass

i

transportation in rural areas, airports, water transportation.

s Ii

I think the committee should know that anything

(,

that is considered transportation would then possibly be

funded out of these funds.

CHAIRMAN WALLING: Any other members of the

committee?

Canter Brown, Legislative Counsel's Office.

1j -
~

MR. BROWN: Yes, sir. I am here in a second

~:

w.

: 2 ::t:

,~, capacity on this particular point, as I also serve as

~

counsel to the Georgia Tax Reform Commission.

Senator Jimmy Lester, who as many of you know is 15 .:. the chairman of that Commission, and Representative Marcus

Cox, who is vice-chairman, have asked me to mention to you

that although the Commission as a whole has not taken -- has !

18

yet to take any position on this question, a task force of

19

the Commission has recommended that the language of this

20 i'
I

constitutional provision ,be changed to permit transportation

21

purposes generally rather than limiting motor fuel tax

22
proceeds to roads and bridges.

23

The reason for that, or for that recommendation

_"'-t
stems from the second motor fuel tax which was levied by thisl

past session of of the General Assembly. The second motor

_ _ rr--- __ __ ....... -_. ..

._-----_... ..-

_ _._-_ -

PAGE 11
_ .. - - _ . _ - - - - - - ,

II fuel tax is essentially the sales tax that we previously had !

I

on motor fuel, although it does expand that charge to require I

3

local governments to pay the second motor fuel tax which was

4

not required previously.

5

As a sales tax on gasoline, that tax also applies

to aviation gasoline and diesel and other fuels used off the

road for farm purposes. Previously only the one-cent tax,

first motor fuel tax, was levied on aviation gasoline. Now

there is a four-cent tax, so in fact although the original

10

purpose of this was to have road users pay for the roads

11 -
'".:;)
O.

1 ,)

'l:

.:. ...~ U

I~Y~~\



r.\(g~j)! CUT'.... ~

J4 )-

!;

1:
) <; '~l

~,

,;).~

16

.=">
L

u,

cz>.



I 7 ,Y. ,iJ

l~ !I
19

20
j
21 ,I

"1;

23
~:4

through the motor fuel tax, the fact that taxes that are now collected are for more than simply road users -- as I mentioned, the two largest classifications being aviation gasoline and off-the-road use for farm purposes.
JUDGE CHEATHAM: How much does that amount to in percentages or dollars of the total?
MR. BROWN: I don't have that information. I do know that the additional amount from the entire second motor fuel tax is approximately $110 million this year, and I think! that you should bear in mind that when Mr. McGee mentioned that motor fuel tax budget was down he's referring only to the first motor fuel tax.
The Department has in addition to that two major sources of dedicated revenue. That is the second motor fuel

tax which is going to be about $110 million this year, and

12

in addition the 1979 General Assembly also dedicated the

interest earned off motor fuel tax proceeds to the Department;

of Transportation, so they have two new major sources of

funding this year which have never been counted in terms of

reviewing the appropriations process for the Department of

Transportation.

A portion of both those second sources and a small

portion of the first, the one penny first motor fuel tax on

'.)

avaiation gasoline, is from off-the-road users, aIld the task

1'J

force felt like in recognition of the fact that the concept

-..)

?

11

has been that road users should get some benefit originally

through the roads, that it should also be permitted that the

General Assembly could expand that use to take account of the [-1 , fact that certain nonroad users are in fact paying that tax,
"
particularly as it relates to aviation facilities.

I might mention that the present constitutional "1.
~
17' provision as you will notice authorizes the General Assembly

to say how these motor fuel tax funds are spent, although it

does limit it to simply road and bridge purposes, but the

20

General Assembly clearly has the authority to say which road

and bridge pur.poses and where.

All the proposed change that has been recommended by
"
the task force of the Tax Reform Commission and which you

have before you would say is the General Assembly might if it

found it desirable permit a portion of those funds to be

PAGE 13

used for other transportation purposes.

!

It would still require the enactment of a law and

.i
):i the approval of the Governor, or overriding his veto, to

permit that use. It doesn' t mandate it, it. just authorizes

it.

CHAIRMAN WALLING: Representative Jones?

'7

REPRESENTATIVE JONES: Question.

Canter, do taxes other than sales taxes on aviation

',:

fuel go to the Department of Transportation?

iO

MR. BROWN: They essentially have three major

sources of dedicated funds, as I said; the first motor fuel

tax which is the traditional seven-and-a-half-cent motor

fuel tax, a penny of that applies to aviation gasoline, you

I "~

charge a cent on aviation 'gasoline.

-1:

"l

'~

We have the new second motor fuel tax which is an

:":t'

; ,.0 () ,"

expanded version of the old sales tax for motor fuel. As I

Z.

,I

<
rJ~
t

say, it applies to governmental entities and certain other

~

types of agencies, hospital authorities) that type of thing

1(}

as was not previously the case.

20

In addition, the General Assembly last year by

1I

amen~~ent to a bill included the interest drawn from the

State's investment of motor fuel tax proceeds as dedicated

funds) so there are three major sources of dedicated funds,

only one of which was the case prior to this year, prior to

_._ July 1st of th__is ye_ar. , .._--.._--_.__ _-_..

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

._._-,_.- .-

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

PAGE 14

I'

REPRESENTATIVE JONES; Mr. Chairman, if I might,

::

I agree with Mr. Brown that we felt last year when we did

, -'

this that there would be approximately a hundred to $110

4

million dedicated to the Department, but from the experience

that has been gained and the latest figures that were given

us downstairs at 9:30 for the month of July when this became

effective, a little less than $6 million I believe was

h i actually collected from the sales tax on motor fuel, and for

August I believe that figure was less than seven million, so

10

if you put the two together, instead of running to a hundred

to $110 million in the proposal, it would appear like welre

more like seventy to $75 million.

For the same period of time we were down maybe some

$3 million from motor fuel taxes in the less sales of the

1'1 fuels, so we had a net increase for that period of time

.c ;,

16 '"
",:;>

maybe of something like $9 million, and if the nine million

1':

)

'"(;I.:
:)."

were projected over the period of a year you could see that

1~

that would be a four and a half million per year, so you see

19

it would be even further down due to the collections that are:

20

anticipated.

CHAIRMAN WALLING: Mr. McGee .
.., ....,
MR. McGEE: Mr. Chairman, if I may clarify one

point for the committee, on farm equipment these two -- or

these comments were made here about whether the fuel tax,

where it goes on farm equipment. There is three percent tax

PAGE 15

collected on diesel fuel which goes to the general fund 7 none

of which goes into the motor fuel tax fund.

On gasoline on farm equipment, the seven and a half'

.,

cents per gallon plus the three percent is all collected 7 but

is all refunded to the farmer 7 all but one cent of this 7 and

this stays with the Department, but it does not go back to

them, and it amounts to about $12,000 a year. That is a

collection fee.

Rail, there is a three-percent collection of tax on

](1
1
I.
....
c. ,',
l ! "~'
.,.

fuel 7 it all goes to the general fund. No tax on any rail uses go to the motor fuel tax .
Avaiation gasoline and aviation 7 three percent

collection goes to t he general fund, one cent -- as was

?lentioned 7 one cent goes to motor fuel tax; this amounts to

J:,', approximately $126 7 000 per year.

,

:>
I,

l {)

On jet fuel used in aviation, three percent

,,
'.' collection on that all goes to the general fund, none to the

motor fuel tax.

I just wanted to clarify those points, please, sir.

"_.il

MR. BROWN: Mr. Chairman, I would like to disagree

._" I

with his statement that the three percent collections which

represent the second motor fuel tax do not go into the

general fund. Those are the funds that were dedicated to

the Department of Transportation under this constitutional
",
provision as a motor fuel tax this year which became

PAGE 16

effective July 1st.

CHAIRMAN WALLING: Representative Lambert.

.i

REPRESENTATIVE LAMBERT; Mr. Chairman, I missed

4

maybe one meeting I think, but when we changed this from pUbli9

5

roads and bridges to transportation, did we go into this sort

6

of discussion about what was going to happen to these funds?

My understanding was it really was simply an

~

editorial change, that we were trying to be all-encompassing,

9

but frankly I didn't know it reached quite this far.

CHAIRMAN WALLING: It has not, Roy. What you have

1J

in front of you is a tentative draft prepared by the staff

which has not been acted on by the committee, indeed not

considered by the committee until this morning.

REPRESENTATIVE LAMBERT: I've got you.
, n,~'

:t:

5i

:J

CHAIRMAN WALLING: Under our ground rules the

")

"'~,

I l'

11:}
,',2"",

proponents of change have the burden of making a motion and

, ,. , f "

I

;11

carrying that motion, so in the context of this discussion

18

the proponents of adopting the language of the staff draft

19

that is replacing the words "public roads and bridges" by the

20

word "transportation" would have the burden of having a motion

21

made by the committee and seconded and carried. Otherwise,

the language which appears in the present constitution would

23

remain as it is.

REPRESENTATIVE LAMBERT: All right.

CHAIRMAN WALLING: Are we ready as a committee,

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

PAGE

17
~-,

then, do decide what we're going to do regarding this
I
question? If we can deal just with the concept of transpor- I

tation, public roads and bridges, find out what we're going tp!

do on that question, then we can come back and take a look

and satisfy ourselves that the other changes are editorial

changes.

As you know, sometimes we have thought at first

they were and it turns out they were of more substance. We

will take a look at other provisions after we deal with this

10

question.

REPRESENTATIVE LAMBERT: We have found that some of,

these words in here are very delicate I think in other parts

of the things we have been through, so I think we do need to I

be careful about what we do.

.'

JUDGE CHEATHAM: May I make an observation?

i.l:

:>

1f) 'z"'
awz

CHAIRMAN WALLING: Judge Cheatham.

11 r<r. ,1l

JUDGE CHEATHAM: I'm in the judicial branch of

to , ! I,

government, I'm not involved in politics, but I want to make

,I

19

a --

20

REPRESENTATIVE LAMBERT: You have to run, don't

21

you?

)-1
JUDGE CHEATHAM: Yes, but having been in the

23

General Assembly before it would appear to me that this

24
present wording removes these funds from political,

appropriation for political purposes.

PAGE 18

,'i

I can visualize if we change to the word

2

"transportation" that there would be a polarization in the

1

General Assembly between the big cities, especially Atlanta,

4

its environs, and the rest of the state of what we're going

"

to do with this money.

6

At present that is not a problem I don't believe

oJ I,I' ~i

from what I have observed because it's fixed in the

b

constitution.

9

Another observation, and this is just an emperical

10
<'l Z
11 ;-. eYo o. ,~
. _. i12 ~
(~)
\~/ I 14 .~... < 1: 15 .:> l.:J '"::> 16 ,~.. zo 17 ~

observation, and this may not be the reason for it, but we
have the best roads, road system now that we have ever had,
and whether this is the reason for it I don't know, but I
sure can remember when I would go over dirt roads to get to --
i
I.
REPRESENTATIVE LAMBERT: It always hasn't been that!
way.
JUDGE CHEATHAM: No, it hasn't.
Now, theoretically if you want to be a purist about

18

it, it ought not be in here. If you want to be pragmatic

19

about it, I'm inclined to think we ought to leave it as it

20

is, and I don't think the General Assembly would change it

21

anyhow.

CHAIRMAN WALLING: Are we puritans or pragmatists?

23

All right. Is Vicke first?

MS. GREENBERG: Two observations, please.

In the letter to Representative Roy Lambert from

PAGE 19

Joe Frank Harris who is the Appropriations Chairman of the

House he even suggested that he would like to see a broader

use of revenue from motor fuel taxes, and would like to

change the appropriation public roads and bridges to any

5

transportation activity, and in the memo that was prepared by

John Keys from the Tax Reform Commission that I mailed to you;

7

several weeks ago therewas an Attorney General opinion on

the use of motor fuel taxes, and it says that DOT can use

motor fuel tax revenues for purchase of litter bags to

J(}

distribute to the public, such use would be incident to the

tz.:.'

II? provision of maintenance and provision for an adequate system'

of public roads and bridges in this state.

So if you want to talk about keeping politics out

,A

l-t

)o_

r'
h
<
T

] 51 ,;,

.~)

:t.

:,-:J,
J6 L
.::

T.

.,

]

1~;
,"

]p

of -JUDGE CHEATHAM; You'll never keep all the politics,
out of it, but I think we can keep it to a minimum. That's just an observation that may not be accurate, and there's nothing wrong with politics, but I personally would hate to

19

see a polarization between the larger urban areas fighting

2Ll
ii

over funds for other than roads and bridges, and the more

21

rural areas wanting funds for roads and bridges, and I think

))

'J ~

that is what it would resolve down to, and I'm from -- I

y~

~-'

don't know whether I'm from at large urban area or not

24
compared to Atlanta I'm not compared to Ellersie I am,

and Forsyth, but we have the Georgia Ports Authority in

PAC;" 20

Savannah that I'm interested in, but it was just an observa-

tion on my part, and I do have in my own mind what I want to

.3

do when I'm going to vote, but I just want to get that on the

floor.

Cl~IRMAN WALLING; Before we hear from Canter

(.

Brown again, let me remind the members of the committee that

our procedural situation is this; We are having discussions

~

even though there's no motion. That seems to make good

')

sense since we're working from a constitution and we need

some discussion first to decide whether or not any action is
,',
appropriate, and I will when we conclude this find out whether

or not there is a motion, but any member of the committee at

any time if they desire to make a motion certainly is free

to do so.

1C,

."

Representative Lambert?

J(-

,.;. 7

REPRESENTATIVE LAMBERT: Before Canter comes on

,:\

2.

.~

7j

11;'

again let me mention this to you since you brought that up.

If you will recall our first meeting, I think I

19

was designated to contact both the chairman of the House

20 ' Appropriations Committee and the Chairman of the Senate

Appropriations Committee, and we got a letter earlier from

Chairman Harris. I have subsequently gotten a letter from

Mr. Paul Broun, and with your permission, it's short, I

would like to read that and give you a copy.

"It seems that every year there is a controversy

PAGE
---------------- -----------
regarding some interpretation of a portion of the

21
"I I

section of the Constitution dealing with appropria-

tions. In our most recent session, for example,

the Senate decided (despite my objections) that it

could raise the Governor's revenue estimate. The

Attorney General then provided the Governor with

an opinion to the contrary, which settled the

issue for the time being.

<.I

"Whereas it would be desirable for the

Constitution to be so clear that anyone could

::.J

1

understand its precise meaning, I am apprehensive

of any changes which would not actually improve

the appropriations process. I am not opposed to

14 ,-,..

the elimination of redundancies and other

unnecessary verbiage, but there should be agree-

ment among the people who work with budgetary,

fiscal and appropriations matters as to just what

is redundant and unncessary.

"The existing appropriations section is

cumbersome in places and not always too clear, but

it operates pretty well for us, all things

considered. I am of the opinion that most of the

shortcomings of our appropriations process can be

acconmodated by amending our general statutes

rather than revising our Constitution."

PACL: 22

I will just leave that for the record, since we

had the other letter from Mr. Harris.

.,,

JUDGE CHEATHAM: I would like to place a motion on

4

the floor for whatever it's worth.

CHAIRMAN WALLING: Judge Cheatham, keep in mind the

"

ground rules that the proponents of change have the burden of

making the motion and carrying it. JUDGE CHEATHAM: Okay. Then I will not place a

motion on the floor.

10

CHAIRMAN WALLING: Canter Brown, before we --

MR. BROWN: I just wanted to very briefly respond

to Judge Cheatham's comment.

I think that to a degree the judge is correct, that

this has tended to keep the appropriation of these funds out

I'

of the larger political context. I don't think that was

'6

necessarily the reason it was put in there. I think that

had more to do with the requirements in the 1930's of the

bond lawyers than anything else, that the Georgia

Constitution particularly after 1945 was very particular about what funds could be earmarked, and we were bonding quite heavily in certain ways to payoff roads, but bear in

mind, ladies and gentlemen on the committee, that these funds

are still subject to legislative appropriation now.

,,

,- ~j

I have heard some concern expressed that maybe

after reapportionment the balance of power in the General

PACE 23
-- ---------_._---_._--:\
Assembly would change and they will use these funds for other

~ , transportation purposes, but I would like to call your

3 attention to the fact that right now under the present

"~ constitution the General Assembly, or after reapportionment a

~ new General Assembly could say that not a dime of these funds

6 j could be used anywhere outside of a metropolitan statistical

area having a million or mote people, and if you want to get :\ into some serious political ramifications they're right there

\1 and you can do it under the present constitution, so I think

10

'-J Z
11 ;--

"
o".-.

/..;j-,~"!l(<1 ,

!' .~~

ii -~','.

z

f l.-f: __ " t \ \ f_~!.:~C' UJ

" \tl/~-.;..J ) /;

'.1

\~--:<//

"

it is to an extent misleading to think that you're keeping these funds out of the political arena by not changing the constitution.
JUDGE CHEATHAM: I'll make that observation because it has. You're being theoretical, I'm stating the facts.

~,

In the years that this has been in the constitution

:r:

~o

~~) ~ :... 1

it has not been a big political football.

What you're proposing

C

"1.

-<

"'':t.' is a jumpball situation, and it's theoretical.

MR. BROWN: Yes, sir. I believe, though, that a

careful look at the legislative history of this exemption will

show that it has been a political football.

For instance, we have gone back and for in allowing

use of the sales tax proceeds as motor fuel tax, we have gone

back and forth on the question of whether the interest can be .4 used. Practically every administration that comes in in some

way or another tries to have a different usage of this

PAGE 24

provision, and I'm just suggesting that the fact that it's

written the way it is has not stopped that, and that in fact

even though there has been no serious attempt to restrict

these funds to any particular geographical or population

center in the state, that under the present writing it could

(, be done.

If you feel like the reason for not changing it is

because this prohibits it, I'm just suggesting to you it in

fact does not.

:0

CHAIRMAN WALLING; Representative Jones.

REPRESENTATIVE JONES; I think the observation that

I should make is that the fear is not so much of using it as

its intended purpose for roads and bridges which can help
l.-; everybody in the state, but the fear is it can be used as
15 ~I Judge Cheatham says in Savannah, Georgia in the Port of ,>: :>
16 .~ Savannah at the detriment of Albany, Georgia that might need ,<. l.:c- roads and bridges.

Mass transportation is a great fear of many people
1.1
in the state. We're talking again in terms of rural transpor-

tation. That can be done, but I think that we can find one or

two or several small, or several systems that could use up the

entire appropriations dollar, and that is the fear of the

people throughout the state.

MR. BROWN; Just one last point. The State of

Georgia is raising a little under $3 billion a year in state

PAGE 25

tax money every year right now. Except for these funds that

2 are a very, very small fund out of the insurance premium tax

-' that goes to firemen's pension nobody seems to be greatly 4 concerned about the elected members of the General Assembly

S deciding how $2.2 billion worth of tax money is to be spent.

() It is only on this particular provision there seems to be any
I,:
" concern, and yet the amount of money that is subject to that

Ii discretion is five times greater and there doesn't seem to be

\, ' any problem at all about that.

CHAIRMAN WALLING: Are we ready as a committee to
1. j " decide what we're going to do with regard to this question?

Senator Holloway?

SENATOR HOLLOWAY: We had a public hearing in the

Tax Commission yesterday, and by way of just observation there

\5,~ were I would guess at least five county representatives who

:> n
J.~) ~,; were very much disturbed concerning this very same thing in the I co

17

'"
,Xl

Tax

Reform

Commission.

The testimony on at least five or more

occasions specifically referred to this, the plea to leave it
'I
as it is.

20

I voted for the dedicated funds last year, for the

.'_)!' sales tax going into it. The reason I did it was trying to get

the Highway Department out of the general funds.

JUDGE CHEATHAM: Out of the what?

REPRESENTATIVE HOLLOWAY; Out of the general funds.

If I was an administrator in welfare or education

PAGE 26

or whatnot, I'd damn well sure want them out of it because

they've got more clout than most people have got, they're

going to get their share. I would want them dedicated to

get them out of the revenue, of the balance because they

could be swmnped for obvious reasons.

I would be inclined to leave the situation as it is

myself for many good and sufficient reasons. I don't know

whether it would affect our bonding capacity.

REPRESENTATIVE JONES: I really don't think it would.

CHAIRMAN WALLING: Are we ready as a committee, then,
'. ,
" to decide what we're going to do with regard to this question?

;'>'/id' i i __ -';4\\'
1\(,~\~~";))i"l''''-'''' ','
-.-/

Keep in mind that if there is no motion, then the language remains as it is in the present constitution. If there is a motion and that motion fails, the language remains

as it is in the present constitution. If there is a motion

and that motion carries, then the decision of this committee
17 ,-;:
will be whatever the substance of that motion is.

Is there any motion with regard to the question of

iO

I

whether or not "public roads and bridges I II those words will be

stricken and replaced by the word "transportation"?

.:1

All right. There being none, then the decision of

the committee is retain the present language which appears in

Subsection (b), Paragraph 5 as renumbered in the tentative

draft.

Mel?

PAGE 27

MR. HILL; Mr. Chairman, is that to say that all of

1 Subsection (b) will stay as originally written, or just this one phrase "Roads and bridges" will be retained?

CHAIRMAN WALLING: I think we need some staff help :; now. If the words "public roads and bridges" are retained, () are the other changes just editorial, or are they more than

7 editorial?

8

I think you can give us some guidance on that and

o we'll need to decide for ourselves. That mayor may not be

to the case.

Vickie, could you help us on that?

1,

/~"'-'V<I?I'
./ri-,-t. /\.(~(~~;~\~I

.
r ... ,.'" "'

.t :

MS. GREENBERG: I think that if we just retain the language on roads and bridges, the rest I believe would be editorial except possibly lines 27 and 28 on page 8.

15 ~1
.'
",
10 L .,-'~

CHAIRMAN WALLING: and 28 on page 8 .

Let's take a look at lines 27

MR. CLARKE: There is a substitution there "for

transportation purposes" for authorizing road construction

and maintenance.

CHAIRMAN WALLING: All right. Of necessity, Vickie, in connection with the decision of the committee to retain the
., present language, wouldn't w~ have to go back to the old

language authorizing road construction and maintenance? MS. GREENBERG: I believe we could put that language,

back in without any substantive change, and --

PAGE 28

CHAIRMAN WALLING: All right. We will consider I

, then, if there is no objection, consistent with the decision

of the conunittee we will retain the language which is

.j stricken at least in the tentative draft in lines 27 and 28 .

All right. The same thing carries over on page 9

(, in line 3, again the word "transportation" would be removed

and we go back to the word "such," but it seems to me these

are editorial changes, and we will rework this and it will be

submitted to the committee members before we have our next

meeting of the overall committee so we will have an oppor-

tunity to take a look and be sure it is consistent with the

decision of the committee.

All right. Now we need to focus on lines 10 through

16 in terms of whether that's editorial or not. That's the

provision that provides, a part that provides that in the

:" " event of invasion of the state the Governor may use those

, funds for relief or defense purposes.

The draft prepared by the staff suggests that

1'/ sentence be stricken.

2~.

Do you have any comments on that, Mr. McGee 1 one way

or the other?

MR. McGEE: No, sir.

MR. HILL: I think you should know the committee

working on emergency powers was asked to include this in its

section, and it decided that it really was more appropriate

PAGE 29
---------~-------------------------
to leave it in here, so it's not going to be over in the

~ emergency powers section. If it's going to appear, it has to I

3 I be put back in here again.

CHAIRMAN WALLING: What were the conside~ations of

) the staff in striking that?

MS. GREENBERG: We had thought it would be

transferred.

MR. CLARK: The only consideration, Mr. Chairman,

was the fact that the other committee has a section on

10

_J
,11 >
oY,--
" ! .. :};

(rlr..=.J-) ) /~,/'--:,y\lt-\l \

~"
,

r~~'~~ ;,

__ / / \, '.,.-...-..---.. .-~'

1..

emergency powers dealing with enemy attacks, and there was some thought that this might fit compatibly in that section, and after taking a look at that section and this, the other subcommittee decided it would like for you to keep it.
CHAIRMAN WALLING: All right. If there is no

motion from the committee with regard to any change, it remains
.:-:
as it is in the present constitution.
1_
SENATOR HOLLOWAY; It seems to me that's the proper

;:; place for it. Why did they decide --

'.I

MR. CLARKE: That was just the decision of that

_~u subcormnittee. I don't know what their reason was.

JUDGE CHEATHAM: We will all be wiped out anyhow in

the next attack, we won't have to worry about transferring

funds.

MR. CLARKE: I think I recall some comment by some

committee member that since this dealt with a specific tax

as opposed to the broad business of setting down emergency

powers for the succession to office and the waiving of

constitutional and legislative rules in the event of emergency

attack that perhaps this ought to be in the section that dealt

with that specific tax, but no strong feeling one way or the

other.

CHAIRMAN WALLING: All right. The other changes

appear to be editorial, and subject to getting a clean draft

and taking a look at that and having an opportunity to review

it, can we move on then to other matters on our agenda?

,, Vickie?

MS. GREENBERG: The other question in that paragraph

was on page 9, lines 5, 6 and 7, and we questioned whether

this was surplus language.

CHAIRMAN WALLING: All right. Shall we take a look

at that?

MS. GREENBERG: "The expenditure of such funds shall

be subject to all the rules, regulations and restrictions , ' imposed ~ law on the expenditure of appropriations."

"

CHAIRMAN WALLING: I suppose the staff's point there

:, is "by law" means by law, wherever it comes from, the

constitution or statutory provisions, and all of those

particular references to the consitution and laws of the state

are redundant since it says imposed by law in the preceding

line. Is that your thinking, Vickie?

PAGE 31

MS. GREENBERG: "By law," that 1 s the new language.

CHAIRMAN WALLING: All right. Those are two words

which replace all those words on lines --

MS. GREENBERG: Lines 5, 6 and 7, page 9.

JUDGE CHEATHAM: What is new, "by law"? Excuse me.

CHAIR}~N WALLING: The intent is to make no substan-

tive change there, "by law" would just replace the meaning of

all those words on lines 7, 8, 9 and 10 which have been

'.I stricken.

MS. GREENBERG: Right. That new sentence with the

addition of "by law" is now questioned whether or not that is

, necessary.

.. '(

CHAIID1AN WALLING: The entire sentence?

MS. GREENBERG: Right.

CHAIR}~N WALLING: Fir s t, is there any obj ec tion,

c, assuming the sentence i.s going to be retained, to us ing the

I :n expression "by lawll to replace those three or four lines which

are stricken below?

If not --

JUDGE CHEATHAM: On lines 7, 3 and 9?

MS. GREENBERG: by 11 provisions of the constitution

and laws of this state, ... "

CHAIRHP.N WALLING: " ... unless such provis ions are in

conflict ... " What the staff is saying is adding "by law"

does the same thing as all those words do.

One of the things that Robin Harris wants to get rid of a lot of unnecessary words, and it seems to me it does accomplish that purpose.
If there is no objection, then, and no motion, we will assume that is the decision of the comnittee with regard to the form of that sentence.
Now let's take a look at the sentence itself. Wnat's the point there, Vickie? That is the sentence which begins on line 5, liThe expenditure of such funds ... n The point there is " that that applies anyway, it's not needed in the constitution?
MS. GREENBERG: That's right, it's implicit and it's not necessary language.
JUDGE CHEATHAM; I have found in government that redundancy never hurts. I don't see anything wrong with
I.
leaving it, although I agree with you on the legal issue. CHAIRl1AN WALLING: One of the charges is, Judge,
, from our chairman is to get rid of as much superflous language ::, as we can. We lawyers have a natural reluctance I think to do
so. JUDGE CHEATI~: We want to keep that with which we
! are comfortable and has survived. How long has this section survived? When was this enacted? CHAIRMAN WALLING: This has been reworked. JUDGE CHEATHAM; It's the '45 provision I guess, at least.

PAGE 33

CHAIRMAN WALLING; Vickie, can you tell us what was

in the 1970 draft of the constitution? Was that sentence

retained or not?

That's the draft that was worked out behind closed

doors, or green doors.

Give us just a moment to locate that.

In the 1970 draft, surprise of surprises, that entire
,.
j section appears as it does in the existing consti.tution .

MS. GREENBERG: Thank you.

CHAI~~ WALLING; What is the pleasure of the

,.
li

.-

committee with regard to that superflous sentence?

<)

We are pragmatists again. All ri.ght. If there is

' '".:,'; ,

(f .. t" I~O
"

no motion, then the decision of the committee is that it

!t !~; remains as it is.
/

Does that complete our work now on Subsection (b) of
~,
n
~I Paragraph 51

JUDGE CHEATHAM: You're going to leave the invasion

part in there; is that the idea?

MRS. BRENT: You're going to leave the whole thing

in there, the entire -~

21

CHAIRMAN WALLING: Unless the committee decides

otherwise by appropriate motion.

By land, sea or air. We have visions of Paul

Revere.
'j
JUDGE CHEATHAM: Or atomic bomb. We might add that.

PAGE 34

I guess that's air.

MS. GREENBERG: Lines 12 through 16 will stay in.

MRS. BRENT: Lines 12 through 16 will stay in, but

not the previous ones?

SENATOR HOLLOWAY: You're going to leave land, sea

and air in there?

JUDGE CHEATHAM: Do you want to shorten it and say

Ilby any means"?

MR. CLARKE: You can just say invasion of the state.

lO

CHAIRMAN WALLING: That is the only poetry in this

J I '- whole section.

(Laughter.)

JUDGE CHEATHAM: It doesn't say by what or whom.

11 It might be fire ants for all we know.

CHAIRMAN WALLING; All right. Is there

16 ~

MS. GREENBERG: Chairman Walling, may I read what we,

have so far accepted on page 97

11-;

"The expenditure of such funds shall be subject to

1'-"1 all the rules, regulations and restrictions imposed by law on

:} the expenditure of appropriations."

"In the event of invasion of this state by land, sea

or air, or in case of a major catastrophe so proclaimed by the

Governor, said funds may be utilized for defense or relief

purposes on the executive order of the Governor."

CHAIRMAN WALLING; We do have another sentence

there.

PAGE 35

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

~-

----------------~----l

SENATOR HOLLOWAY: What's that you are reading from?,

I

MS. GREENBERG; That is our working draft.

CHAIRMAN WALLING: All right. Committee members,

take a look at lines 10, 11 and 12, the sentence "And

provided, however, that the proceeds of the tax hereby

appropriated shall not be subject to budgetary reduction."

I had thought we were keeping that, Vickie, but
",
apparently I have overlooked --

iO

All right. We will keep that, though. That

"

2:

c sentence will remain unless there is some motion from the

committee to strike that sentence or to modify it.

Is there such a motion?

All right. There being no motion, the decision of

the comnittee is to retain that sentence.

Does that complete our work, then, on Subparagraph

(b) of Paragraph 5?

Hearing no objection, let's turn then to another
1c)
item on our agenda .
. 'l)
Before I do that, Roy, just as an aside I want to
refer to Senator Broun's letter to you, and he mentions the

controversy with regard to the revenue estimate and the

Attorney General's opinion. We did at the last session adopt

a provision which said the revenue estimates would be amended

or modified only by the Governor, so that is incorporating

PAGE 36

into the proposal we're making the opinion of the Attorney

General.

Can we now turn to the use of federal funds which is

also an allocation question and involves some of the same

policy considerations that we have just been discussing, but

() in a different way.

Take a look at page 6, Subparagraph (c) of new

Paragraph III appearing on page 6, lines 15 through 18.

Now, the tentative draft prepared by the staff has

1,,1 no changes from the present language. We have discussed this
.J
at some length both with the staff and members of the committee,
\~. ...:
we have heard from Canter, heard from Charlie Tidwell from.

the Governor's office, have -- very good memos have been made

I, available to us by legislative counsel's office.

j :',

Is there any further discussion before we decide what

1(;
,
,~:l

the decision of the committee is with regard to whether or not

federal funds will be automatically appropriated or whether

they have to first be appropriated by the General Assembly

before expenditure.

Vickie?

MS. GREENBERG: This morning I handed out a memo which

briefly summarized the points of Canter Brown's memo to you,

all the subcommittee members, and the second page is a

proposed amendment suggested by the Advisory Commission on

Intergovernmental Relations, and that gives legislative

PACE 37

oversight during the entire year, not just during legislative

session, but also during the interim when they're not in

J session. JUDGE CHEATHAM: By a committee or --?

MS. GREENBERG: It's by a committee. If I may just

o read it over,

"The General Assembly may establish, by law, a

joint committee composed of members of both the

Senate and the House of Representatives, the rnember-

1U

ship to be fixed by law, to approve expenditures of

'.,:.J

Ii

available federal moneys and to appropriate

I "'i

necessary state matching moneys when the General

Assembly is not in session. Such a committee shall

act only in instances where new or additional

federal moneys are made available at such a time as

to preclude the possibility of their inclusion in

I.

; I :~;

the budget approved by the General Assembly. The

General Assembly may establish procedures for, and

exemptions from, this review and appropriation

2u

process."

2l

JUDGE CHEATHAM: This is the suggested model?

MS. GREENBERG: Correct, right. This is the same

amendment that was in the memo from Canter Brown.

REPRESENTATIVE JONES: Could I ask one question?

CHAIRHAN WALLING: Representative Jones.

PAGE 38

MR. CLARKE: Let me say a word or two about that.

One great concern I have of an oversight committee

of that sort which has tremendous authority to review and

approve or disapprove or whatever the expenditure of funds

is the fact that it would be a committee appointed by who we

know not right at the moment because the law authorizing it

has not been enacted, and would be a committee composed of

people who are elected by a constituency from limited areas

as I understand it, not by anybody who's elected over the

state as a whole, and I'm wondering if you're going to have

"j ~ )

that day to day supervision in between sessions of the General

Assembly if you're not going to have more responsive government
,
2.
by having it in the hands, or responsibility being placed with

somebody who is elected by all the people such as the

~ ;-
,. :> Governor, for instance.

., . ~

REPRESENTATIVE JONES:

There seems to be no criticism of

the present way --

MR. CLARKE: That's the other thing I was going to

say. As far as I know, the present situation is working well.

Our job I think is to keep the constitution as simple as we

can, and if we find a situation where it does not need change,

then don't look for change. If it ain't broke, don't fix it.

SENATOR HOLLOWAY: We have now, as most of you are

aware, the Fiscal Affairs Committee. It's appointed by House

leadership, Senate leadership and the Governor's office, it

r ------------------------------ ------

PAGE 39

II meets in the interim period, and to me that is an excellent

!j

2 'I watchdog cormnittee, and certainly in the federal range would

i

bt.

3 certainly ~ observed by that cormnittee, and it's a pretty

powerful cormnittee.

:,

I just see no reason for another committee. I would

want to know a heap about who was going to be on the

committee, who appoints the cormnittee, and a lot of other

'i things about it. I think the situation is working fine like

9 ! it is.

""

,;
~:
11 ;Q: ~

I" .'.

"",.\~0"\'-,li.',"1',

"~,
,:

\ , ( \ _ -'

r ~, ~" ~ \,\'.....L\..~I/ii..'!''''''.!'. u

\\

/ /.t

' ,..._--:~~., /

;,I'"

'1 "

",

CHAIRMAN WALLING: Representative Jones? REPRESENTATIVE JONES: My concern was pretty much as' Senator Holloway's. I have grave concern that the executive as I read this would be eliminated from any part of the appropriations process of funds between sessions, and I would like an interpretation of the membership to be fixed by law.

!>.~
'.'

Does that mean that we would have to have statutes naming the

persons or positions, or would that be broad enough to allow

the appointive process by the Speaker or Lieutenant Governor?

presiding officers of the two bodies. . - - - - - _ .__.._- _._--,..----_.-,

REPRESENTATIVE JONES;

PAGE 40
.- ._-_._------- ---------._--.---------------,
I would accept that, but it

says membership to be fixed by law. To me a literal

3 interpretation of that is that the law would say that this

either person or position, and this one, and this one. To me

it doesn't say that the law could give somebody the authority

to appoint.

CHAIRMAN WALLING: Is that a question, Representative >3 Jones, or not?

REPRESENTATIVE JONES: It's a question that's a
Ii! concern of mine.
;1
CHAIRMAN WALLING; All right. I've got Canter

muzzled over here. He's a very strong proponent and he's very;
1
eloquently and persuasively made an argument in support of this
14 ,.
1,:1 last time, but we've got him muzzled this time because we

J wanted the committee to discuss this and go ahead and vote on

::.'

";)

16 .,1":1

,.U
:...1

it, but that is the question.

I:

t

l;

~
,n

Canter, could you helpus out on the question that

, () , Representative Jones has?

j9

,
I

MR. BROWN: I would want to point out that the

20
language that you have in front of you solely represents a

21
recommendation of the Advisory Commission on Intergovernment

2'2
Relations in Washington. That language is not suggested
.,.
necessarily as the language you might choose to use, but is

provided by way of example, that in fact other states have

confronted this issue, and fairly influential interstate

,

-----_._-----

_._ _.. _

__ - . ._._,._ _-- ..

-

..

PAGE 41

governmental bodies have done the same and have made proposals

2 in this area.

.l

The fact that this particular language limits itself:

to simply legislators, for instance, is not necessarily typical

5 of what is happening around the country.

By way of example, I would like to point out that in
1
., "' Florida, that Florida has a very similar scheme for super-

vision of federal funds, but permits this supervision between 9 1 sessions, or the allocation of funds to be subject to the

10 approval of the governor and cabinet, so I think it would be

11

1--
';"1

misleading to feel like that you were being presented with a

draft of some language which you either had to approve or

disapprove and that settle the issue.

'".,. ~.

I think the issue is broader, and that is whether or

]) ~ not you feel the General Assembly should rightfully be ...: .~
lG ,.,r)"l involved in the supervision of appropriation of federal grant (,1 2
1 r ,<:r.:
! I lO funds given proper mechanisms for mid-year allocations of new
,",\.) funds, or whether you don't feel they should.

I have pointed out to you before that I think as part
20 of your decision you should consider the increasing amounts and
_,)'
percentages of state funds which are in fact federal funds.

When this provision was put in the constitution, a

very small percentage of our funds in state government were

from federal sources. Now we are approaching about 25 percent,

and I think in one way or another perhaps not the same form

PAGE 42

we have now, but in one way or another that's likely to grow,

2 and I think the issue with which you are presented is whether

3 or not the elected members of the General Assembly should have

constitutional authority to supervise and appropriate those

funds, given proper mechanisms for special circumstances.

CHAIfu~ WALLING; Before we come back to the

conunittee, Charlie Tidwell, do you stand on your remarks of

last time and the recollection of the members of this committee,

'-I
or do you have anything to add?

10

MR. TIDWELL: Yes, sir, I stand on what I had to say

1 i. o

~

1) ':.l:

!.

~'jY1id

J

'Ii
.

(\-(~:'::_;J~J\1./_~':!.'~O

,,-
"t

\<-~~~~':~~//

about it, and any serious consideration of change of the way it is here, we're ready to make a comprehensive presentation on how federal funds are now handled.

I don't know whether that's necessary. The man

i~J

'j

:> that's going to do that is at the present time preoccupied

-"
i6 ~
,.\.1 elsewhere for about another 45 minutes.

CHAIRMAN WALLING: Let's see if we have a motion.
,-.
,i ,~
Clark Stevens from OPB is available if in fact there

is a motion.

MR. TIDWELL: I promised I would have him here, and

"- I

he isn't ready.

")
CHAIRMAN WALLING: Let's see if it's necessary.

23
Senator Holloway?

SENATOR HOLLOWAY: It concerns me that moving the

legislature into the administrative branch of government to

PAGE 43

Ii--
I,II a great degree) and primarily because the legislature is a

2 II part-time job.

;I.i

Now) for $7200 a year I'm not going to come up here

-' 'I

II

,1 three times a month to figure out how we're going to spend

5 federal money. We have got OPB who are doing an excellent

'.) job) we've got the Fiscal Affairs Committee overlooking it,

7 I and I think we've got enough protection in this area. I ,I

!

x il

When we get the legislature into the administrative

:;1:

" ;'
.1 ':

branch of government) and that's what we're doing) in the

I

]() daily administration of it, I just am opposed to that.

'z,:1 !1
:~
J .J..

CHAIRMAN WALLING; Vickie?

MS. GREENBERG; There was another recommendation by

this same association that we have a joint executive-legislative

committee) so you would have representation from the executive

1",

1

~

:>

! '.)

.T. ~~

,:0
7.
11 ',~"

branch and the legislative branches, and I think the fear that was spelled out in most of the things, the position papers I have read was that once federal moneys) and what happens to th~

people involved in these. programs) and that would mean that i , either the state has to continue to program or these people

20 are out of jobs, and this would be a better oversight, possibly
.n a better control of those moneys.

CHAIRMAN WALLING: Are we ready to decide as a

. j committee with regard to Subparagraph Cd) on page 6 as to

.'-1

federal funds?

Again) if there is no motion the language remains as

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

---- .

._---- ---- -_._---- - -------------

PAGE 44

it is in the staff draft, since that is in the present

2 constitution.

3

If there is a motion and it fails, it remains the

4 same as it is.

If there is a motion that carries, then the decision

of the committee will be whatever the motion is.

Is there a motion?

All right. Hearing none, then, the Chair deems the

<) decision of the committee is to retain Subparagraph Cd) in

1IJ the present form as it appears in the staff draft, and as it

1i appears in the present constitution.

Let's turn to the next item on our agenda which

appears on page 7, Paragraph IV.

14 ;
'I'
"-
1S .,:I:

I~

;:>

16

IL L

w

C\
z

, "7

~.
l.:t:

1

l'"i:"'

I am correct, am I not, Vickie, that new Paragraph IV is the same as the existing paragraph in the present constitution except for editorial changes we'll take a close look at in a moment?

,8

MS. GREENBERG: That's correct.

lei

CHAIRMAN WALLING: The question here which we have

20 discussed before is whether or not we retain this mechanism

) I of supplementary appropriations in addition to the general )2 appropriations and amendment to the general appropriations

_ _ _~1

act.

',-'

Just by way of background summary, the 1970

'< constitution eliminated this. You have a memorandum from

PAGB: 45

the staff prepared by Vickie from a number of states, the

first of which is Alabama.

-'

The effect of that memo, as I understand it, Vickie,

-! is that other states do not use this mechanism.

This is one of the most difficult things we have

() I been struggling with in terms of fine points and not really

knowing what it's all ab out.

As I sense it, though, the feeling of the members of

the General Assembly, some members of the General Assembly at

10 least, Pete Hackney and the Attorney General's office is by

1' .1

?

use of the supplemental appropriations act -- that is

12 ):

~~Y~1

~: technically and precisely that, not the amendment to the

(&J_:)))!'-'~~'!~~: general appropriations bill we call that, but by use of this

'.:~ ;//

.

]4 ""

. constitutional device it is possible to have a procedural

,(

;.~

- advantage to come up with a bill which deals with appropriatio~s

:::1

I6

m <c

C't

for only a single, specific, targeted subject matter, and for

<
17 ''"" that reason it should be retained.

II)
We made our report to the overall corrrmittee last week
J ') I
I believe it was. Speaker Murphy suggested that it should be

stricken. One of the few things I think he strongly supported
21 that seems to be a change in the appropriations section of
.)
the constitution, but he's certainly in a minority there

insofar as the people we have heard from other than members

of the committee and other than the staff with regard to this

paragraph.

PAGE 46

Discussion?

JUDGE CllliATHAM; Apparently the only thing to be

3 gained is brevity by taking it out. It shortens the document

f: to take out this provision.

CHAIRMAN WALLING: In other words, leaving it in

(, " here, does it do any harm?

7

SENATOR HOLLOWAY: Taking it out, does it do any

il harm?

CHAIRMAN WALLING: Well, some say you lose the

10 procedural advantage of the one-shot --

MR. TIDWELL: It destroys a valuable mechanism.
"
SENATOR HOLLOWAY; To have a popoff valve sometimes

l': -"

MR. TIDWELL: As I see it, the legislative budget

J

1,

1:i ., officer is advising this subcommittee to leave that supple-

.,'

i l) """~". mental appropriation intact. It's the strong position of OPB
,.(.,)
,
1 i ,;;1 that it be left intact. The Attorney General is advising the

1b subcommittee to leave it intact, and for whatever benefit it

.1 'I is this lawyer is advising to leave it intact, and I don't

20 know where the suggestion came from that it be taken out.

21

CHAIRMAN WALLING: It was taken out of the 1970

" ., <...... draft, Charlie, and it doesn't appear in other states, so

3 apparent ly --

SENATOR HOLLOWAY: That '70 draft you're talking

about, is that Robin's?

PAGE 47

n--"--"-""--""----~--"----"------"-"-"

1 iii'

CHAIRMAN WALLING; That's Robin Harris' draft, the

i

2 closed-door draft, which got out of the House but not out of I'I

-' the Senate I believe.

Vickie?

MS. GREENBERG: I understand from my phone conversa- '

() tions and speaking with Pete Hackney and Clark Stevens and

7 yourself, Mr. Tidwell, that it is an important tool,

strategically and politically it's nice to have.

I'm wondering whether or not it could be provided

10 for statutorily rather than put in the constitution, and that
'J Z
ll. would still possibly please the General Assembly members who

use it. I understand many of them do not use it, they don't

even know what it is, they don't know how to use it, but it

14

>" r"

would not be creating bulk in the constitution.

-'

JUDGE CHEATHAM: If you only allow for a general

J

16 '~ ~.)

appropriations bill in the constitution,

I wonder how you

L

" <,

L!

1!1

could by a general act have a supplementary appropriations

bill. At least it's a kind of thing that could be attacked,

''1 it seems to me in court.

2U

MS. GREENBERG: That language would have to be

21 changed. ", ,
CHAIRMAN WALLING: What language?

MS. GREENBERG: The language that we can only provide

for it by general appropriations bill.

CHAIRMAN WALLING: That would take some restructuring,

PAGE 48

Vickie, to make that possible.

All right. Are we ready as a conrrnittee to decide

3 what we're going to do with regard to Paragraph IV?

4

This is the most puzzling one we really had. It's

difficult, it's l~ke a pillow fight, it's like punching a

pillow, it's really hard to know what it's all about.

7

Is there a motion with regard to Paragraph IV

as presently numbered?

Hearing none, the Chair deems that the decision of

10 the committee is to retain the mechanism of supplementary

1,

..
:c:

appropriations.

"

That being the decision of the committee, Vickie,

are there other than editorial changes in that paragraph?

MS. GREENBERG: We have transferred the last

15 ~ sentence of the working draft, Paragraph IV on page 8, that ,~ t:>
16 was transferred from the original paragraph V(b) . We decided -::l i <'
17 .~ to put all the --

CHAIRMAN WALLING: That is the underlined sentence

IY which begins on page 7, line 33, and carries over to the top

20 of page 8, is it not?

21

MS. GREENBERG: It's just transferred so we have

everything on supplementary appropriations in one place.

23

CHAIRMAN WALLING: That language did appear over

where the reference was to general appropriations bill; the

staff has moved it over for clarity.

PAGE 49
- ...-._-_.-_.._._---- _."._------_._--
Let's just take a look ati-~-~~d~~~~---~~~~--~-~---i~~1----1

comfortable with it there.

.?'

REPRESENTATIVE LAMBERT: It seems this is the way

i it ought to be to me.

CHAIRMAN WALLING: All right. Since that is not a

h change of substance, can we handle this by saying if there is

no objection we will deem that the decision of the committee?

8

Is there any objection to that transfer of the

l) sentence without any change in the text?

IU

Hearing none, that is the decision of the committee. i

, ,'';1 i

Does that conclude the -- all the items on the

agenda except the minor items the Attorney General wants to

convey to this cOlnrnittee?

MS. GREENBERG: That's correct.
1":
CHAI~~ WALLING; All right.
1'-' ;~
First, if you will turn to page 4, and what I'm

about to report with regard to several points comes from the lR Attorney General's office by the way of Tim Sweeney who is a

former assistant attorney general, now in the private practice
20 of law in Georgia, but he did work with the division of the
i(
Revenue Department which concerns itself with appropriations.
-,_.,
Tim is chairman of one of the other subcommittees and called

me last night with regard to several matters.

First on page 4, Subparagraph (b) of Paragraph II,

lines 26 and 27 and this same point appears in several

PACE 50 places -- we ~lave stricken" ... operate all the various

departments and agencies, and ... I!, those lines which appear

3 on 26 and 27, and we have included what seems to be a simple

thing that all that was necessary to say was "The General

Assembly shall appropriate funds necessary to meet the

expenses of the state."

The Attorney General's concern is that the legis la-

ture may not appropriate for a particular department, and it

needs to be told very precisely and explicitly in several

lU places that departments and agencies must have funds

;,;)
z

!!

~.
t,

appropriated necessary to operate that department and agency,

,~

~

(?~/dJ)(~"'!'~ -~ SV~~ I ~ 'so their suggestion is the language deleted which has been stricken and which we had approved earlier I that be restored

'~- //

-_.--'

14 ~
,.~

to our draft.

'<":

1:

~"; :J
1/\ 1:l
2~

believe.

JUDGE CHEATHAM:

That's lines 20 and 21 also, I

CHAIRMAN WALLING: That's correct, Lines 20 and 21 on

1()
page 4, lines 26 and 27 on page 4; also the same problem

.'1 appears in a little different context on page 8, lines 10 and

20
>' 11.

21

In Paragraph V, Subparagraph (A), we struck

2:: " ... each appropriation for each department, officer, bureau,

:"
board, commission, agency or institution for which appropria-

..:4
tion is made ... " We struck those words so that the specific

"

reference doesn't refer -- that is, the reference to a

PAGE 51

specific sum of money doesn't refer to those departments,

2 officers and bureaus.

3

Here the concern is a derivative of an earlier

concern I stated to you, here the concern is that the General

Assembly -- I can't imagine the General Assembly doing this,

but legislators, you know, they're different from people

sometimes -- but their concern is, for example, that the

(' ,)

General Assembly may come in and appropriate for all divisions

q '! of the law department except the revenue department, and to

10 keep that from happening they want specific lump sums coming

:J 2:
1] ~

()

1: .~"

/~;'llt.l,

~

(\~~)J~~'= ,~1

"~=-'// /

i -+ I
,
,
,:

15 ,~

to each department and not going in and tampering with the

appropriation for each division or risk a particular 'division

being left out because the General Assembly for some reason is

piqued with, what that particular division or that department

was doing. This seems --

t'>-.'

'I) ""
,"

SENATOR HOLLOWAY: They've done that under this.

/. "

CHAIRMAN WALLING: Now we're smoking them out.

SENATOR HOLLOWAY: The Indian Affairs went last year, 1'1 didn't they? I can think of one or two others.

CHAIRMAN WALLING: Well, whatever it is he's trying

to do --

SENATOR HOLLOWAY; Maybe they weren't doing it.

JUDGE CHEATHAl1: The Attorney General called me

yesterday and authorized me to quote him or to speak his

sentiments -- I cannot auote him, but he is deeply concerned

PAGE 52

about this wording, not mildly, and I think also he feels this

is compromise language that arose out of the changes that

occurred in the first part of the sixties I believe, I'm not ..r,,. sure, but it's comfortable, people know what it says, he knows

'> what it means now, his interpretations have been upheld not by

the courts because it's never been tested, but no one has ever

7 challenged the Attorney General's interpretations up to this

point, so they have a history of what, sixteen, seventeen

years of his interpretations, that to change it would put it

iCJ in an uncertain category, and he is dead set against it.

1i
,:..J i :1 '~
!~...
@)r~'~

I am inclined to agree with him after looking at it. To me it was an editorial change before that, I had not looked at it in any other way, but I haven't found the Attorney

14. General to be bothered by matters unless he feels they might

<;

T

1S
,'';'

in some way change the intent of the law unintentionally.

I

:J

!() :: believe that's what he thinks in this case, though I can't o i:

quote him on that.

10

CHAIRMAN WALLING: Okay. Let's see if we can handle

this without a formal motion and reconsidering a new motion.

20

In light of the concern expressed by the Attorney

,),
~l General, is there any objection to restoring the stricken

22 language in the three places that I have referred to?

First Charlie, and then Cindy.

MR. TIDWELL: Mr. Chairman, if I may be permitted to'

expand the concerns that have been voiced by the Attorney

PAGE 53

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

- -------------..,.

General, they are not just confined to those particular areas !

I

:2 'I that have been pointed out.

I have spent a good many hours with the Attorney

_I General since you last met, I had asked him to review this

draft because, as all of you know, I got extremely nervous when'

we started, when I looked at the first draft. This is the mostl

7 " sensitive provision of the entire constitution, and while we

i, are charged with trying to make some economies of words, the

c,' price that you pay on that and if we don't know what we're

lIJ doing here would be catastrophic, and I have not seen the

i,,'l
11 :: Attorney General get upset about anything in the twenty years

~

" l' "

;\~;~l /( "

'.l.

: ' j'\ "'\ :'-kll~'"

\, I-. "'"" ~- -:~;.,.,'J I;---------- '."'I

that I have known him, because he does not understand the in~lications of all the changes, and neither did I, and that's

1-; ). why I asked him to look at it, and his staff that he asked to

I , be , quote, experts in this area also -- he stands not alone in
"
(, ".-:.-::;' his concern, and neither do I, but our staffs that handle these

matters.

I might say that Clark Stevens with OPB is equally as

nervous as I am, and the bottom line of what all of those

20 individuals are asking this subcommittee is to leave intact

2) without not a single word changed the entire provision of the

)"; present constitution as it deals with the appropriations.

This has stood for seventeen years without change.

At the time it was proposed it struck a very delicate balance

between the legislative and executive functions insofar as

appropriating state funds. As you all know, prior to that it was entirely up to
the Governor, he had complete control, The Attorney General says that in those seventeen
years he has spent trying to understand it, he believes now that he does understand it, and he doesn't have another seventeen years to try and unravel it.
He authorized me to speak for him on this, his strong recommendation to the subcorr~ittee which I concur in "'.} and which Clark Stevens concurs in, and if Clark and I have any influence with the Governor, would be to leave this alone with the exception of -- I think there is some shift of - language from one place to another. There was even a little bit of concern about that, but I was able to resolve that.
We would like to see it left just like it is because it works and we know --
There has been some acquiesence even on my part of letting a change go in here that I thought was merely editorial which I did not recognize the implications until later on, that it has profound implications.
One of the examples is the one that's just been presented, and so we are talking about awfully high stakes here, a big gamble. The payoff if you are correct is that you save a few words in the constitution; if you lose, we have a catastrophe perhaps of trying to straighten out our

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

!'AGE 55 ---- ,. --------'-- . --_~--------I

appropriations process that there's nothing wrong with that we 1

are aware of at this present time.

CHAIRMAN HALLING: Hell

MR. TIDWELL: So rather than deal with --

CHAIRMAN WALLING: Charlie, it would have been well

" for me to have heard that a couple of weeks ago, a month ago.

A lot of time has been spent, but I think it has to be taken

very seriously.

MR. TIDVJELL: If you recall, there was nothing -L~.,) as soon as this subcommittee looked like it was going the way

J. it was going the Attorney General got this, because I asked

, him to look at it, and I thought I was doing a half way job of

watching what was going on, but I failed, and that's what I'm

saying, we do not really understand the implications of the

change, and because it is so sensitive -- Pete Hackney would
" (j
have to speak for himself on this, but I'm led to believe that
j l he wants it left exactly as it would be --

CHAIRMAN WALLING: How about the clarifications made-

with regard to the budget report being permitted only by the

Governor? Would he prefer to leave the present --7

MR. TID~~LL: That's something we would really like

to see, and consistent with what I'm saying, let's just leave

it exactly like it is.presently. That avoids the confrontation

that I know is going :::0 come in the full cormnittee if it's

changed other than that. We got a:1 inc.ication of that at the

PAGE 56

las t full courrllittee meeting ..

2

Yes, sir, all of us want to leave it just as it is,

the Attorney General included on the point, even though it

sustains what he says the constitution means that only the

Governor can do it. We don't even want that changed.

CHAIRMAN WALLING: What is the response of the

7 cOTIrroittee to that proposal?

,\

We can bring our work to a quick conclusion if --

q

JUDGE CHEATHAM: I would like to say this. This is

lU probably the most sensitive section of the constitution where
,,j
11 government is concerned,. the working of government is

concerned. It has to do with the appropriation of money that

goes to all three branches of government.

1
.;.'"'t

I can understand his concern. I would have no

objection to leaving it like it is, although it could be

tidied up.

\! "

You know, I have been looking through it as Charlie

:,', ~. ( was talking. We really haven't suggested many substantive

changes, we didn't intend to when we previously talked about

this change, but I believe the only substantive changes that we ";...i have dealt with really have been probably the supplementary

appropriations bill and the possibility of the gasoline tax,

and maybe an insurance section which seems appropriate.

CHAIRMAN WALLING: I gather the remarks are not

directed to the insurance section, are they, Charlie?

PAGE 57

MR. TIDWELL; Not to the totality of the application.,

, ~I We're talking about 'the appropriations, how you go about

appropriating absent motor fuel allocations.

JUDGE CHEATHAM; I really don't feel that the

Attorney General would object to realigning some of these

(, sections or paragraphs without changing the wording, or would '0,' he object to the --

;,")

MR. TIDWELL; There was some concern by members of

.) the staff that by taking it out of context that it perhaps
,
I (I had some -- it helped the court interpretation, but I think
ti L
j ~ the final bottom line when we discussed this late into last " ""' _. evening is that the shifting of the exact language he is not ,
/.is'~''!.'''' ',' that concerned about as we have shifted some here. I think

there is a proposal to take this bond language and put it in

! '", Article VII. As long as it's retained it's all right, hut

\J

(

that "bothered hirn just a little bit) but I think he finally

receded OIl that, and where you take a paragraph and maybe add

it to a more logical place, that's all right. He doesn't, and I I I don't, and Clark doesn't want one word changed if we can

help it, because we don't know what it would do.

CHAIRMAN WALLING; All right. The staff is anxious
, .~
to speak on this, but it seems to me this is somewhat awkward

and we as a committee need to decide whether we need any more

staff input on this.

The proposal from the Attorney General has got to be

~PAGE 58

taken seriously by the committee.

Are we ready to decide what we want to do with regard to

that, or do we want to hear from, or do we need to hear from

the staff?

MRS. BRENT: I would like some clarification.

CHAIRMAN WALLING: Let's start with Canter, and then

Vickie.

('
"

MR. BROWN: Mr. Edwards, my boss, has just asked me

to speak to you on this issue. He feels that, of course, your

1ti deliberations should proceed with the utmost caution because

1: this is an area of the constitution that as Charlie has

,':;'Vll, l: described that is the lifeblood of state government, and in
1 , /,\;,,;0-'
(((..kd) )/.~!,,, , fact in reality the lifeblood of many individual people who
,<~.:~=::/,,/
, are assisting or employed or whatever through funds appropriated

by the state.

On the other hand, he feels that that there are

1 7 :;: opportunities for very real and important clarifications,

reorganizations and modernizations in the appropriations

section.

21";

He feels that one of the problems that has caused

ii some alarm on the part of some people is due more to the fact

'1 of not having the time to carefully examine the recommendations

than with any problem with the recommendations themselves, and
,,
: he has asked me to remind each of you there is no lawful

compulsion to submit an appropriations section or a legislative

PAGE 59

article to tIle next session of the General Assembly, and he

has asked me to reco~~end to you that in furtherance of your

responsibility as members of the task force that you recommend

delay in submission of this article until 1982, and that you

undertake a thorough study and examination of not only the

appropriations section but the rest of this article when the

Attorney General, when the Governor's office and all others

concerned can take the time to carefully examine what changes

are being proposed, and together with them you can recommend If1 a modernized and clarified and a more appropriate article, , 1 particularly as it relates to the appropriations for the state

of Georgia and its constitution.

CP~IRMAN WALLING: Harold, can you be of any help
'-- .

in responding to that proposal? You're chairman.

:j"

;I.:

I';;

MR. CLARKE: All I can say there is I guess two

things.

1~

... I

'Ii

First we have been requested by the appointing

"..:.(') authority, being the Select Committee, to complete our work by

December 7th. Obviously we are under no legal mandate to do

that, we're not going to be locked up until we do it.

I would like very much to do it if we can. My

experience as a lawyer for a long period of years is that if

you're given five years to do something, it's the last six
.:1
months that it gets done anyway. I suspect if we had another
,.(
two years to work on it that we probably would do a lot of

60 I;,

muddling around for one and a half of those years and then get

down during the latter part of the period to get the work done.

3

As relates to what Charlie has been saying, it has

") been a good many years since I sat on the Appropriations

Committee, and I don't know whether anything is badly wrong

t with the procedures that are followed now. I would say this, that if they're working well that

g maybe we ought to leave them alone. The last thing in the

world I would want to have to bear the responsibility for

III would be to mess up all the appropriating process of the State

,1
Z
] 1 ," of Georgia. We would feel like going to Mexico if we did that -)

0U}
5 V!:t4 12 I'm sure, but there is no direction I can give you in this

.- \,\

l-

I.,

.,w,"J, ,.,.,.,::'\ \

V\-"-~!".!'.
I

~.~

regard .

"'. ,//
..../

14 :

I would like very much for us to be able to complete

~

:1"

IS ~ our work in the assigned time if we possibly can.

e>:

::>

J6 ~ I.. ,

As to what we're doing on, what is it, Section X,

.z.

j r, I.X .1 00

I think we ought to take a look at whether the changes we have

18 made really accomplished anything. If they didn't, then why

make them anyhow, why not go ahead with what's already under-

zo stood to mean whatever it means.

,) ,

~J

That's about what I can say, which really doesn't add

)~
much light to the situation.

,,

....... "l

CHAIRMAN WALLING: I would say for the committee it

seems to the staff, Harold, that the only change of substance that was made was to clarify the question of who could amend

PAGE 61

the budget report. The others are changes of form I but we had:

a very strong charge from the chairman of the Select Committee,

to review this with that question in mind. I think the

con~ittee has made a serious effort to do so, and if it has

made changes in substance other than the one I have outlined

I think they are unintentionally made.

-,

MR. CLARKE: Well, you know, the old saying once

used about the legislature which could very well apply to a

committee like this I suppose is it's kind of like a cock,.roach,

it ain't so much what it eats up and totes off that makes a
)
<:
! ~ difference as it is what it falls into and messes up, so we

could possibly be gUilty of some of that, I don't know.

CHAIRMAN WALLING: Mel?

ii

MR. HILL: I wanted to say on behalf of the other

subcommittees that have been working so hard, I think you, this

subcon~ittee has had the hardest charge of all because of the
j"; ,y
;. I :':1 nature of this subject. I mean this is very difficult to
:.'j understand, even for the people who have been involved with it

for a long time, it's very difficult, and you may feel you're

not making very much progress because you spent all this time

Inaybe coming back to what we have, but on behalf of the other

subcommittees I feel I should say that I think they have made

tremendous progress, they have put in a lot of hours and

really made very good -- what I consider to be very good, very

constructive changes so far in their recomrnendations, and I

would hate to see the entire effort of the Article III

committee die as a result of the frustration over not really

being able to move or go anywhere with what we have in this

~ particular section. I mean the other comnittees have more or

less completed their work.

I understand what Frank Edwards is saying, that the

staff, all of the staff, also the staff of the Attorney General

S and our staff would like more time to be able to do research

into what ramifications these changes will have. You know, if

we had two years we could spend two years looking at possible
'..j
1I ramifications, and I feel we have made tremendous progress in
,
I. the other subcommittees, and I really would hate to see it just

come to a halt.

14

MR. CLARKE: Let me say just one other thing about

1~.:, that too.

When we complete our work, whenever it is, whether
.
17 .." it's December the 7th of 1979 or two years hence, nothing we do

is going to be written in stone. All in the world we're going 1'1 to do is take what our work product is and turn it over to the

Select Committee, and it could very well happen they may look

at what we did and say it's a bunch of junk, we don't like it, ,,
they could kick it back to us or they could rewrite it them-

selves, so this is not the last filtering process really. I

think we ought to consider that and not duck our responsibility

as to doing the very best job we can, but at the same time we

PAGE 63

won't be caught with this being the very end of it, so somebody! i
! else will have a final opportunity to take a look. That's the

I next step, then the people have got to have a look at it too.

.+

CHAIRMAN WALLING: Can you be explicit as to what

your recommendation is, Harold?

MR. CLARKE: My own personal feeling is I would like

to see us go ahead and get through with our work.
(.
CHAIRMAN WALLING: I think we can conclude very

quickly here once the committee is ready to decide. Do we

go ahead with the one or two remaining \vhat are new editorial
J1 i changes except for the clarification with regard to the budget
.c
, - ,"
1 "' report and adopt the section as it has been perfected, or do we

go back to our starting point and have a motion to make no j1 change at all in Section X?

We can do that very quickly either way. I think it ttl ., \von' t take more than just a few minutes to get appropriate
),
Inotions and those motions acted upon, so we are going to finish

, one way or another here in just a few minutes I think.

Vickie?

MS. GREENBERG: If the committee would be more

comfortable in right now going through the changes we have
),
made and possibly looking at them -- I know we are not the

Attorney General's office, but we certainly have a tremendous

legal staff behind us -- if there is any feeling that these
",;
are substantive changes rather than just editorial changes we

PAGE 64

could probably

CHAIP~N WALLING: We have spent considerable time,

3 and I think each committee member will have to make a judgment

i for themselves on that. We have spent sufficient time I think

so that we know what we have done and what we haven't done.

(I

JUDGE CHEATHAM; I would like to move, then, that we

7 ;: leave it like it is except for those changes which shift

8 paragraphs to other areas intact, and which -- I don't know

} how to put this -- you know, a change from capitalized to

lC' lower case words throughout the document making it more

':J

11 :,; grammatically correct. t.

l2

CHAIRMAN WALLING: All right. Those are changes that

can be made I think, Judge, up the line. Those really are

J4 ~ changes in form that we don't really need to spend any time on

15 ,. at all.

Ie

JUDGE CHEATHAM: All right. Leave that out of my

;: <
motion, and just that we adopt it as it is except for those

sections which have been shifted to other areas intact.

REPRESENTATIVE LAMBERT; I second that motion.

2U

CHAIRMAN WALLING: All right. Then the motion would

be to make no change in Section X of the present constitution,

that is Section X designated appropriations. That would be the

motion and there is a second.

Any discussion?

All those in favor say aye.

(Ayes.)

P

__AGE
-. .-.-

--

-6--5---_.,

!

CHAIRMAN WALLING: Any opposed?

MRS. BRENT: No.

vote?

CHAI~1 WALLING: Do you want to be recorded on this

It is not unanimous, but the motion passes, so

Section X remains as it is in the present constitution.

Is there a motion with regard to Section IX,

insurance regulation, so we can close out the work of our ;() committee?

1 1 ~. u' ~

,:

'._,

,I

~,~t \
) Jr-':'"''''
'j
/

We have all gone over that, and it's down to a very few lines. As I recall, it's the judgment of the committee these changes are in form, not of substance.
REPRESENTATIVE LAMBERT: I move we adopt Section IX

.~, as has finally been drafted by this committee . CHAIRMAN WALLING: Is there a second?

JUDGE CHEATHAM: I will second it.

CHAIRMAN WALLING: Any discussion?

All right. All those in favor of the motion say aye;

:u

(Ayes.)

CHAI~~ WALLING: All opposed no.

(No response.)
,;
CHAIR."1AN WALLING: The motion is adopted, and
.'_1
Section IX as prepared in the working draft is adopted by the

con~ittee as its recommendation, the subcommittee as its

PAGE 66

recommendation to the connnittee.

MR. BROWN: Mr. Chairman, I might mention to you

3 you have transferred from Section IX to Section X language

, authorizing the subsequent entry of workers' compensation

trust fund, and you may want to note for your records that in

(, adopting Section X as it is now you are including that

additional paragraph in Section X.

CHAIRMAN WALLING: Is there any objection, then, to

considering that part of the motion, that Section IX is

1,) adopted as in the present constitution except for the shift of

I '. the trust fund relating to unemployment compensation or

!,

i.'

U

disability compensation, other than that shift as it appears

".

in the present constitution?

11

MR. HILL: And also the shift of this other part

)'i" about __

i :J , .
.!
':1

17

I'}. i.i.\

CHAIRMAN WALLING: \-Je' re doing a lot of shifting here. MR. HILL: The provision about the bonding of the

IS state, Subparagraph (e). Was that being shifted to Paragraph

7, I mean Article VII, or shall we leave that in there too?

-u

CHAIRMAN WALLING: I'm not focused in on that one .

.2 \

JUDGE CHEATHAM: It's on page 6, at the bottom of

page 6. Is that right? Is that what you're talking about?
,
CHAIRMAN WALLING: On page 6?
.J
MR. HILL: That's right, the bottom of page 6.

JUDGE CHEATHAM: Line 26.

PAGE 67

CHAIRMAN WALLING: Unless there is -MR. HILL: We recommend that be transferred to

3 Article VIi. It would stay in the constitution, but not appear in Article III, and then be worked on as part of Article VII's

5 revision.

(I

I

CHAIRMAl"i WALLING: We did have an obj ection from the

Attorney General's office on that, though, did we not, that the;

transfer should be retained here, that the other language is

q I not exactly the same?

REPRESENTATIVE LAMBERT: He acquiesced.

'''':'i

]:

f-

CHAIRMAN WALLING: All right. Is there any objection,

then, to that being part of the action of the committee, that

that section appearing on page 6, line 26 be transferred to

i4 .,. wherever appropriate elsewhere in the constitution?
<.
MS. GREENBERG: Also in Section IX, insurance
;, '~ regulation, the name of the Comptroller General was recommended "
l! ,,\- to be changed to the Commissioner of Insurance by the Article
,,,
I' V conmlittee, the full committee, so that if that is accord with

'.) this conmittee we will change --

20

CliAIRMAN WALLING: Let me suggest to the committee

that is a change not just of form, it's one of substance; we

have spent considerable time on that. There is a contradic-

tion here, and it could well be that the commitee we're reporting "J._'. to, the Select Committee, would have the responsibility for

deciding which way it's going to go, so we don't necessarily

have to act. This again is not the final word; it can be

conformed elsewhere.

In light of those remarks, any motion from members of

4 the committee with regard to that matter?

Hearing none, we will leave it as it is in the draft

that was adopted.

Anything else, Vickie?

No?

Anything from members of the corrrmittee?

1:J

If not, that concludes our work a~ a subcommittee.

!1

Harold, the staff will prepare the draft as we

adopted it, we'll have an opportunity to review it to make sure

it does conform to what our understanding is, and that completes

" the agenda.

j, 'j
."

On behalf of Harold as chairman of the committee and

f.

C'

16

~ ."

myself as

chairman of

the

subcommittee,

I

want

to

thank all

of

t;

'i:

..'
, you, and particularly the members of the staff. They have been

j .....; very diligent and very eloquent and persuasive, and some of the

things they thought should be done have been done, but not all,

but that's the way it is. We do thank each of you.

MR. CLARKE: That's the process that's required in

order to reach the end product. It may be at least a tentative

concensus.

CHAIRMAN WALLING: Jim McGee, thank you for being

here and appearing with us this morning, and Charlie Tidwell

from the Governor's office,

PAGE 69

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

---------~.

-~-__---------l

I

:.'

If there is nothing else, we stand adjourned.

(Whereupon, at 11;55 a,m, the subcommittee meeting

was adj ourned. )

+++ ++
+

'I
tD

tr~.!~!!.'.!P- ",

Ij

;:

.//,/

11 ~
)_.
".', <f

INDEX Committee to Revise Article III Subcommittee Meeting Held on Nov. 7, 1979

j
j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j

SUBCOMMITTEE MEETING, 11-7-79

SECTION VIII: INSURANCE REGULATION. pp. 67-78

SECTION IX: APPROPRIATIONS

Paragraph II:

Preparation, submission, and enactment of general appropriation bill (appropriation of federal funds). pp. 36-44

Paragraph V: Other or supplementary appropriations. pp. 44-49

Paragraph VI: Appropriations to be for specific sums. pp. 5-35, 49-66

(Motor fuel taxes. pp. 5-35)

(Workers'compensation trust fund. pp. 66-67)

IT-______ ----.----. _-~_-~-------__--~

-.--.~-.--

Ii

PAGE 1

11
1I

STATE OF GEORGIA

3

COMMITTEE TO REVISE ARTICLE III (LEGISLATIVE BRANCH)

Cf

OF THE

)

CONSTITUTION OF GEORGIA

9 ,,

J4

'-
<,".

J:=' ~,

J'

,, (,

c.; Z

c'

iI

f:l'
".

i :-'

2]
') ;
.\1

Room 337-B, State Capitol Building Atlanta, Georgia Thursday, November 15, 1979 10:00 a.m.
+++ ++ +

PRESENT:

2

COMMITTEE MEMBERS:

3

HAROLD G. CLARKE, Chairman.

SENATOR M. PARKS BROWN

MR. DALE CLARK

MR. GLENN ELLARD

REPRESENTATIVE HERBERT JONES

MR. HAMILTON McWHORTER

6

DR. GEORGE PARTHEMOS

DR. CHARLES PYLES

MS. BARBARA RYSTROM

SENATOR JAMES TYSINGER

MR. ROBERT WALLING

<)

to

OTHERS PRESENT:

MELVIN B. HILL, JR. FRANK H. EDWARDS, CHARLES TIDWELL
VICKIE GREENBERG CYNTHIA NONIDEZ J. ROBIN HARRIS MICHAEL HENRY
<:
I
jS ~

,:J
j (\ 2

0

7

1'r

,",'
'"

1i1

'I

::'U

2i
_, .

.3
~-l

PAGE 2

j
j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j

PRO C E E DIN G S CHAIRMAN CLARKE; Welcome everybody. We may be a little short of people, but in the interest of getting started and getting underway and hopefully getting through -MR. McWHORTER: The Lieutenant Governor said he would be here, he might be a little late. CHAI&~ CLARKE: All right, sir. Do you think he will be here soon? MR. McWHORTER: He said don't wait on him, he would try to get here. CHAIRMAN CLARKE: Let's go mead and crank up. This is, of course, the third time we have had the opportunity for the full committee to get together. Since we had an explanation of the working drafts atthe last full meeting of the committee from each subcommittee, it occurs to me that would be sort of a waste of time now because I think all of you folks have a fair idea or a good idea of what's in each one of the new sections, so it's ,l my suggestion we start at the beginning, the first part of - I Article III having been worked on by George Parthemos' subcommittee, and that we begin by having a motion for the adoption of each full section. After this motionis made and if it is seconded, and I hope it will be because we've got to get it on the floor

'\ 4

some sort of way, then the Chair will entertain any questions,

comments or whatever in connection with each section, and will

also entertain motions for amendments to the section.

,l

Of course, Section I, if you will look in your

working draft dated November 15, it includes only one

(, paragraph, so at this point I will entertain a motion to

adopt Section I as it appears in the draft. I believe you

already have a copy of it.

L;

MR. PARTHEMOS: Mr. Chairman, I move approval of

'z,'
I:

c u.
~ ') c:

',/ ';d'\\z ",,?Yl1..-1

1" .~J:

,{.. i ,f;C:\)'\J~er..-n:-~,-"'-() ~

--'-' ".I

r".

Section I of Article III. CHAIRMAN CLARKE: There is a motion for its adoption
and approval, and there I s a second I believe from Dr. Pyles. Now, are there any questions, or is there any debate
concerning Section I? Hearing none, are you ready to vote on Section I?

As many as favor the adoption and approval of

Section I as it is in the draft will signify by raising your

right hand.

(A show of hands.)

CHAIRMAN CLARKE: Those opposed?

I believe the vote on this issue is unanimous. That's

a good start for the morning.

Now, as to Section II, is there a motion for its

approval and adoption?

MR. PARTHEMOS: I move approval of Section II of

5

Article III, Mr. Chairman.

CHAIRMAN CLARKE: There is a motion for its

approval. Is there a second?

MR. SWEENEY; I'll second it.

CHAIRMAN CLARKE; Seconded by Mr. Sweeney.

Now, is there any discussion, questions or otherwise

concerning Section II?

MR. SWEENEY: I have a question.

CHAIRMAN CLARKE: Yes.

i,1

MR. SWEENEY: What is the rationale in Paragraph 1

'.')

1! of fixing the membership, number of members of both the
:..

.J Senate and the House of Representatives?

CHAIRMAN CLARKE: Doctor, would you like to answer

that question?

MR. PARHEMOS: I suppose this was one of the items

:,

" I I.' l.
'ou

that the committee devoted as much time to as any other item,

T.

that is on whether or not a specific number should be put in

1"1 (~ the constitution, or the composition.

The committee considered putting a range of member-

ship, no less than a certain number, nor no more, and after

considerable debate this was simply the consensusof the

subcommittee that the number should be specified, that a

specific number should be set i~ the constitution.

I think the general feeling was that the size should

not be less than the numberspecified here, and the general

, '.

6

feeling was that considering the population of the state and

the anticipated population growth that this should be the

size of the General Assembly to have a representative -- an

adequately represented representative body which would entail

sizes of this kind in both houses, so there was some division

of opinion on the matter, but this was the general consensus.

I don't know that there was any other rationale

than simply that they felt that this should be an adequate

" size and it should not be less than this size nor more than

this size.

'Ii

CHAIRMAN CLARKE; Any other comments or ques tions

with regard to Section II?

Dr. Pyles, did you have --

,

MR. PYLES: That was precisely my question, the

r

rationale.

CHAIRMAN CLARKE: Any further debate or discussion

as to Section II?

Yes?

MS. RYSTROM: I had felt that those numbers were much

too large, and I'm not one who objects to having numbers

specified, but I just wish that they were smaller, and we

haven't had a chance to really discuss this, so I don't know

whether that's sort of an individual feeling that's not shared
,,
" by anyone else or whether other people on this committee as

students of Georgia government in the past have, feel that

both houses are too large, but particularly the House of

Representatives.

I thought maybe we could get some expression of

'I opinion without necessarily just going around the table, but

maybe some other people would express --

(,

MR. PARTHEMOS; Let me add one other item. One

other item that came out in the discussion on this was the

fact that the membership of the House had been reduced from

the I suppose 205 to 180, and so they felt that after such

reduction they simply felt that this was a logical number for
',J
the size of the General Assembly for the state, for a state

._""'.'r1

:~

1/ ..(\\-

; \::\.:;-) )r----, ..

..; \ <;;11"'.'10

'-, .....

/' /,/

1

,I

l

"':.1

U
'""
'" I lJ 1:

C\ J

i

":~'

the size of Georgia. Personally, size is not that much of a problem in
my own opinion, I don't feel very strongly personally about specifying any exact number, nor do I feel that size per se, assuming a reasonable size for a state legislative body, and I think this is a reasonable size, I don't feel that it really

;..;
poses that great of a problem.

"

I think the important thing is to have size

,,
':',) sufficient to assure an adequately representative body for

,
- 1 today.

,

MR. WALLING; Mr. Chairman, I would move that we

add the words, quote, not more than preceding the figure in
-'.+
subparagraph (a) -- subparagraph (b).

CHAIRMAN CLARKE; All right. There is a motion

8

to amend, and I assume this is really a motion to amend the

original motion.

MR. WALLING: Yes.

CHAIRMAN CLARKE; By adding the words "not more

than" immediately preceding the number 56 in paragraph, in

Subparagraph --

MR. WALLING: Not more than 56, and not more than

180.

CHAIRMAN CLARKE: The words "not more than" before

each of those.
]1
Is there any -- When we proceed to vote, we will

vote first on that amendment and then on the main question,

but we will have further discussion.

1J

Yes?

I

15

MR. WALLING: Let me say, Mr. Chairman, I do

If, z
"to" support another proposal, and this motion to amend is made in
Z
< 1'7 :;
conjunction with my support of another proposal. There is

another proposal made to this committee to provide for four-

year terms for the House and the Senate; I do support that, :0
I do think that the rationale for that proposal, that we have " altered the balance of power between the legislature and the

Governor by giving the Governor the right to succeed himself,

and I think that may well have consequences out in the future

somewhere where we get beyond this Governor who's a very able,

very good Governor who the state may not like, so I like that
f)

l'\e), 9

idea, but I do think that part and parcel of that is the size.

I would, disagree with the doctor, I think there is

some direct connection to the size afthe General Assembly

and the kind of job that it can do. I'm not sure what the

size ought to be, but I would like to see us structure this

(j regarding term, with regard to duration of the session, with

regard to compensation, all of those things I think do need

serious consideration, and the State Legislators are underpaid

in the state, and to get more pay I think the House and the

!O Senate too is probably going to have to be reduced somewhat

.:J '2:
11 ...
oc:,:-
~
L~~ :~
~.

in size out there somewhere, and I would like to see us come out of this with a structure that does not require a

constitutional change, but all of these things, size,

compensation, term, duration of the session can be dealt

15 ,~

':J ;.;:::

,OnJ I () Z

"',".'

1~

':J::

l.l

with without going back to a constitutional amendment; therefore, I do make this motion in conjunction with my feeling about these other proposals .

I ,..

CHAIRMAN CLARKE: Yes, Mr. Clark.

t I

')

MR. CLARK: Mr. Chairman, I would like to refer to a

21)
study by the Citizens Committee on the Georgia General

.1 1 Assembly, it is a 24-member committee of distinguished

.)- .. Georgians, it submitted its report in January of 1970 listing

113 recommendations to strengthen the legislative branch of

state government, and one of its original recommendations

called for a reduction in the size of the legislature, of the

PAl, 10

House to no more than 150 members and the Senate to no more 2 than fifty.

In a follow-up report to the people in 1973 it was 4 stated, and this is a quote from that cOTIIDlittee, "The 5 cOTIIDlittee viewed the large membership of the General Assembly

as unnecessarily cumbersome and recommends a reduction in the '7 size of the legislature. The recent reapportionment reduced
the House from 195 to 180, but the General Assembly remains

the fourth largest state legislature in the nation," closed lU quote.

I think it is pertinent to note that states much

larger in size and population conduct their legislative business with fewer members compared to Georgia's 236 members.

Ohio has 132, Florida 160, North Carolina, comparable in size

15 .,.~, but much larger in population has 170, and Texas which as we

:'">

16 ~ ~ C

all know is vast in size and in populatiOn has 181.

We have

I

<.

I '7 0

1i

.l:'l

236.

lk

I would not invade today's schedule of our committee

19
to read the list of citizens who made the study and recommenda-

20 tions nearly ten years ago, itwas a distinguished group from

21 all sections of the state, and invoking their credibility,
),
Mr. Chairman, I submit the following motion:

That Section II, Paragraph I be amended to read

"The Senate shall consist of no more than fifty Senators who

shall be elected from single-member districts," and that

Paragraph (b) of Paragraph I be amended to read "The House

of Representatives shall consist of no more than 150

3 representatives apportioned among the representative

districts of the state."

CHAIRMAN CLARKE: All right. Now, the posture

() i under the ground rules -- and I'm just going to take it upon

~
I

myself to establish, will be this: That we will vote on

motions to amend the original motion in the reverse order I) in which they are made.

10

For instance, if there are later motions made, we

will vote on the last on~ first, and if the motions happen to

be in conflict with one another, the first one to be passed

would then cancel out the necessity for voting on any other.

Is there any further discussion or any further

r
1S '_b' motions? Senator Tysinger.

":'1

1() '~ w

SENATOR TYSINGER; Mr. Chairman, in deference to

I <.
[7 ~ some of our members who are not here from the legislature,

let me just first qualify and say I have voted for reduction i'i in both houses before, but I think a valid argument has been
..'()
made as we go back to our founding fathers in our Constitution 21 of the United States, the principles on which they based some

" of their thoughts, and that is that we do have constitutionally

provided counties in this state, and the thought was and has

been expressed that those counties need some type of

representation that's identified with them and, therefore,

PAGE 12
n~--------~-----_-
j.
1 i! the house needs to be large enough to accommodate as near as

possible this provision.

The second thing is, as we pointed out in other

4 states and the reduction in the size of their General Assembly,

and I will submit that is true, but I think Georgia may have

6 a unique situation in that our population's density is such

7 that we have some very sparsely populated areas of the state,

8 and if these people are to have representation they can get

l) hold of it needs to be identified with them, and we do need a

10 larger number. LZ' I say these are not necessarily my thoughts, I just

express this as a thought that came out of our committee and

bore on this decision.

MR. McWHORTER: Mr. Chairman.

15 ,""'

CHAIRMAN CLARKE: Yes, sir.

3'"::>
16

MR. McWHORTER: Is it not true that if we set a

Cz.l

<:

j7 :f; limit not more or more than, then by statute the General

. Assembly in their wisdom at the time they see fit can reduce

19 the General Assembly?

20

CHAIRMAN CLARKE: That is correct. If the

21 constitution says not more than, it could not increase it

beyond that point, but it could be decreased by statute.

Senator Brown?

SENATOR BROWN: I would like to make one comment.

Having served in the House and the Senate, if you get the

Senate too small, I see a lot of difference now, but if you

get it too small you get a club, and I don't think it's a

good thing to get too small, not less than fifty anyway.

CHAIRMAN CLARKE: Any further discussion?

REPRESENTATIVE JONES; Mr. Chairman, having lived in

b a rural area and representing a metropolitan area, it's just

7 an unfair situation to expect a person to offer themselves

k for an office who has to cover hundreds of square miles

') versus a person who has to cover a very few blocks in a

to

'Z"

11 I-

o0:

0,

w

12 ~

<\ .;,.svJi ,,;0-'

...
l-

\i"i\'.-.~"_--\Y:\.Ji\) r~ z~

'-._~_.-

14 :>-

"<..
r
15 ..')

'"IX:
::I r.,;.',
Ii! Z ,~ o

! -, ;;,

metropolitan area. While I think I could say I disagree with the one-
man-one-vote principle imposed on the states and not on the nation, in Georgia we value our natural resources and I would like to say that property has a right to be represented also because of the value of it, because of the necessity to protect it and so forth, and it's almost an impossible task to expect a part-time legislator to cover a district of

hundreds of miles when you've got others who are only covering

[9 blocks, and the more that you cut the General Assembly down ::0 the more you go into that unfair and unprotected situation,

21 and I would oppose cutting either the House or the Senate

) ) constitutionally.

23 I

CHAIRMAN CLARKE; Any further --7

,:.\

MR. PYLES: Mr. Chairman, may I address a question

to Dr. Parthemos7

1'1\CE 14

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

. . .. _--~

I

Is --;~--~ot true that the original constitution as

i

Ii
2 :1

written contemplated representation of each 30,000, that is

3 one representative for each 30,000 to get -- to start the --

4

MR. PARTHEMOS; Which constitution are you referring

5 to, Charlie?

MR. PYLES: The 1787.

MR. PARTHEMOS; Yes, that's right, no less than that.

H I. It specified originally the 30,000.

MR. PYLES: May I follow up with another question?

10

You have indicated that future population growth

was taken somewhere in the debate, and I notice here that if I

divide four and a half million by 180 I come o~t with 25,000.

Now, do you anticipate a growth that would -- What

wouldit have to take, six million, seven million? Do you

'4";
::c

15 ,.:,>, anticipate growth that would --

'";J

j()

r<l
1:

w

MR. PARTHEMOS; I think that was one of the points

~

Z.

<

17 '",:0 that was raised. I think the general feeling of the sub-

11< committee was that this was not an unwieldy number, the 180, 1I) it is an arbitrary kind ofa number, it's not an unwieldly

20 number, that it would provide for sufficient, for a 21 sufficiently representative body representing the diverse
" areas and segments of the state, so I think that in terms of
-,,'' the apportion I think I had calculated it ran roughly one ::4 representative to some 25,000, sort of roughly like that. 2:'1 That number would increase I would anticipate in the years

PAGE 15

ahead, I think that's true, but I don't know if this is

') essentially -MR. PYLES; May I follow up with another question?

Is there any multi-county representative district

in the lower house?

()

CHAIRMAN CLARKE: Yes, sir.

7

MR. PYLES: There is.

MR. PARTHEMOS: Let me

I think that as far as

9 the U.S. Constitution is concerned, Chuck, the constitution

10 does not specify any numbers of the House, it leaves it up to

the Congress to determine the size of the House, but under the

original consitution no less than one representative for every

30,000. That's true to start with, yes, that's right.

MR. WALLING: Mr. Chairman, I would like to ask Dr.

Parthemos a question.

Isn't it true that your proposal with regard to

subsection (b) changes the present consitution?

Ix "

MR. PARTHEMOS: Yes.

19

MR. WALLING: It does not consitutionally fix the

2U number?

__) 'J

MR. PARTHEMOS: It represents a change in the current

))
constitution, yes. I think we pointed that out at the last

2.\ meeting of the committee, the full committee, that this changes

.'4 it.

Let me say this is the subcommittee's proposal.

r-----------

.------',.--- -

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

CHAIRMAN CLARKE: Any further discussion?

2I

Hearing none, are you ready to proceed to vote on

~ the amendments to the original motion?

-l

Let me see if I can put us where we are. We will

5 vote first on Mr. Clarks amendment and, as I understand Mr.

Clarks amendment it would provide no more than 150 members

"1 for the House, and no more than fifty members for the Senate,

so this would require an immediate reduction in membership

lJ upon the ratification of the new constitution should it be

!O
.!)
z II
~
..".:-,' 12 ~
('(~~r";:

ratified in this form . Am I correct on that? MR. CLARK: Right. CHAIRMAN CLARKE: As many as favor the adoption of

14 >-
>-
'<
'J:

15 .:>

,.!)

'"::>

16 ~

,~

C

:L

<:.

; -,

I)'

l'

i1..

this amendment to the original motion will signify by raising their right hand.
CAshow of hands.) CHAIRMAN CLARKE: All right. Those opposed.

CA show of hands.)

19

CHAIRMAN CLARKE: So that amendment is defeated.

20

Now, next to be voted upon will be Mr. Wallings

21 motion which would simply insert the words "not more than"

immediately before the number 56 and immediately before the

number 180. Is that correct, Bob?

MR. WALLING: A point of inquiry, Mr. Chairman .

...... ".

,,--'

If this motion is adopted, would it not be in effect

the same as the present constitution, no change would be made

2 by adopting this?

,1

MR. PYLES: Would you repeat that question?

4

CHAIRMAN CLARKE; It wouldn't be exactly the same

5 ! in that as I understand it the present constitution has no

() provision for the House, and the House could be increased as

7 i, well as decreased under the present constitution by statute.

"'J

I think I am correct. Now, if I'm wrong --

() Ii
I

MR. McWHORTER: That's correct. The Senate is 56.

10

CHAIRMAN CLARKE: Instead of having a range as you

"z

1I

l-
oe>:

have in

the Senate,

you would have just a

cap.

a.

1~,S,-V.r'<J,'1\

12 '~"
~,

Are you ready to vote on this amendment to the

~~I~-?J); mm,~, ~ original motion?

'---

14 >-

,-

MR. CLARK: Will you restate the meaning of this,

~,


r

15

.:>
,""

no more

than 180

in the House and no more than 56

in the

:':">

,Xl

16 z: ~, :>

Senate?

{

,:'

CHAIRMAN CLARKE: That is correct. That is the

Ii-, ! motion, so that the sense of it would be to put a cap but not

19 a floor.

20

MS. RYSTROM; Did you want some additional discussion,

21 or did you want --

])
CHAIRMAN CLARKE: I think if you have a point of
, ,-
order or something like that

MS. RYSTROM: No.

MR. TIDWELL: If you will announce the vote and get

PACE 18
rr---------------- --------------------------- - - - - - - - - - -- ----
I Ii it in the record, it will be of benefit of the Select
2 dIIII Committee to know how strongly this committee voted one way

1

':'

1;.1

or the other on an issue.

,I
I!

4 !'

CHAIRMAN CLARKE:

Thank you.

I appreciate your

) making mention of that.

tJ

Let me go back to the other vote, I remember there

7 I' were four votes for Mr. Clark's motion. Would those of you

8 who voted against the motion raise your hands again because

9 I don't remember?

I()

Seven. Am I counting correctly?

Would you raise your hands again? Maybe we have a

different count.

Seven. All right, there are four for and seven

~gainst on the Clark amendment.

15 0

v ,-'

::J

16 'z"

w

W

7

<

]7

,:t: n

Now, as many as favor the Walling amendment will raise your hand, please.
(A show of hands.)

l ',)

CHAIRMAN CLARKE: Eight. Eight for.

I -}

Those opposed, please raise your hand.

20

(A show of hands.)

21

CHAIRMAN CLARKE: Two, and one abstention, so the

,
Walling amendment is adopted, and now we will proceed to vote

-- on the motion for the approval of Section II as amended and as -,., otherwise appears in the draft dated November 15th.
...~
As many as favor this motion will raise your right

hand, please.

(A show of hands.)

3

CHAIRMAN CLARKE ; Those opposed. I believe that

!l
4

is unanimous.

s"

Now we will move to Section III dealing with officers

6 of the General Assembly.

7

Is there a motion for the approval of Section III?

~

MR. PARTHEMOS: Mr. Chairman, I move approval of

<) I"i Section III.

J()

CI~I~~ CLARKE: Is there a second?

cz>
SENATOR TYSINGER: Seconded.

CHAIRMAN CLARKE: There is a second.

The motion was by Dr. Parthemos, and Senator Tysinger

seconded it.

Now the floor is open for discussion. Yes?
,:;

:':">

]()

III
Z

w

MR. HENRY: Just as a point of information, I believe

Cl

Z

<

]7 ''"" in Article V the Lieutenant Governor as presiding officer of

Ib the Senate has been deleted.

,':

19

CHAIRMAN CLARKE: We understand that.

20

MR. HENRY: Okay.

II

2\

CHAIRMAN CLARKE: We might just mention that for

.

) everybody's information, that the committee working on

-..:...._.), Article V of the constitution has, or at least seems to indi-

24 cate that it plans to continue to provide for a Lieutenant

2) Governor, but not to designate him as the presiding officer

,,------ ---------.- ------ .'._-- ------_._---_._--- ---_.
of the state Senate.

PAGE 20

2

This question was considered, discussed by Dr.

~ Parthemos' subcommittee, and he might want to address himself

4 to that. I believe it was the sense of that subconrrnittee that

5 ihe remain as the presiding officer of the Senate.

o

That being the case, should this conrrnittee go a~ong

7 ,!with the sub~ommittee, then Mr. Harris and the Select
I!
x Committee would have the task of resolving the differences

9 I that might occur between the two committees working on

10 separate articles of the constitution, so the floor is open for
;,:J
Z
11 fdiscussion of Section III including that particular issue.

~~ ~want j 2 "~'

MR. McWHORTER: Mr. Chairman, I don't know how you

to proceed, but I'll move that we strike line 23, page 2

14 ~ from the third word "the", from the third word in the line
<:
1:
j 5 ~" the Lieutenant Governor who shall be," and that be subj ect
:>
lG ~"' to whether it's the agreement with Article V or not, but we
z
l~ ~would need to strike those words if Article V stays as it is

ih 'inow.

1'1 I

CHAIRMAN CLARKE: As I understand it you're moving

that the previous motion by Dr. Parthemos be amended by 21 striking the words "Who shall be" as they appear on line 23
1 .~
of page 2. Is that --

MR. McWHORTER: I believe it starts out on the third

.A 'word which is "the," strike from there throu the last "be,"

so "the Li~utenant Governor who shall be" then would read

"The presiding officer of the Senate shall be styled the

2 President of the Senate," or any new phrase.

-'

MR. PARTHEMOS: I think that is the present present

provision.

CHAIRMAN CLARKE: So again let me see if can state

it correctly, and you correct me if I'm wrong.

Your motion would have the effect of changing para-

graph I, subparagraph (a) of Section III to read in this

9 " manner, if I understand it correctly:

10

"The presiding officer of the Senate shall be styled

"7-

[I ~ the President of the Senate." Would that be the effect of your

.;>

0-

W

5 12
~/'~/'.L<'j''V;>j)-~r''\ !'!"-

~a:
,':.:

mot1.0? n.

MR. McWHORTER: It would.

~--~/j

.~

---

14,~

I-

CHAIRMAN CLARKE: Does everybody understand the

.:

T-

15 ~ motion that has just been made by Mr. McWhorter?

':">

16 c~

MR. SWEENEY: Shall be styed President of the Senate

z

<i.

17 '""' who shall be elected by the Senate from among its members?

l~

MR. PARTHEMOS: Mr. Chairman, this was also the point

19 :' I was raising, because the present constitution does provide 20 the Lieutenant Governor shall preside in another section, so 21 you do have to make some provision as to how

MR. McWHORTER: Agree with that.

MR. PARTHEMOS: You will have to make some provision
,_..,.,.
as to show the presiding officer shall be selected.

MR. McWHORTER: The same phraseology is used.

I' - - - - - - - . -.....- -..... -

... - - - - .

CHAIRMAN CLARKE:

PAGE 22 Is there any further discussion

2 with regard to Section III?

3

Yes, Mr. McWhorter.

MR. McWHORTER: I don't feel strongly about it, but

5 the old language on that is either by voice or by vote. I

(, don't know if you want to take that into consideration or

; leave it open.

R

I don't have any strong feeling about it, but if we

9 ;: go back to the original provision it's provided how. I don't

10 think it's necessary, but I just want to call attention to it.

"z

1 i ;-
'o"

CHAIRMAN CLARKE: You're talking about the election

"w-

@))~12 ~ of the president pro tem? MR. McWHORTER: That's right.

14 ,.
~.

CHAIRMAN CLARKE: I believe this section is silent

'<

I:

15 ~ as to the manner of his selection, and the old constitution

:':">

16 'o~z" provided by voice or by vote.

17 :<ii

MR. McWHORTER: That's right.

18

MR. WALLING: Mr. Chairman, the motion to amend, is

19 that a motion in form only, not substance? Is it simply to

20 go back to the present language and leave it to the other

21 subcommittee to deal with what happens to the Lieutenant

Governor, where he goes, or is this a substantive change?

.".'

There are two parts to it. If you get him out

MR. McWHORTER: I understand, but I don't know if I

have the answer to it.

-I
MR. WALLING: I would like to get him out, but where

do you put him? How do you deal with that?

MR. McWHORTER: I think somebody or Mel could tell

4 you what they're doing in Article V. I have seen the draft,

5 and maybe they would be better --

6

CHAIRMAN CLARKE: Mel or Mike?

MR. HILL: It is a proposal by the committee, and

8 they haven't made their final decision, but unless something

9

I
i

changes

the

Lieutenant

Governor will

no

longer

be

the

10 presiding officer of the Senate under their recommendation,

1"':).Y.!4,

"z 11 ~ so that this committee may want to make its own independent
o
"-
~
12 ~ judgment about that issue and then conform this language to

(~ "\~ ~ {\~,\---~.- ~I)r<-""-""-0 u~ wha t they th;....nk.

~--

14;.
0-
~
<
J:

I think this committee is free to decide itself how

15 ~ it feels about that issue, and if you would disagree the

'":::>
16 ~ Select Committee will have to make a decision, but if you think

17 i<ii the Lieutenant Governor should not be the presiding officer,

!~ Ii that the Senate should select its own, then I suggest you make

J,) I that change, make it clear and it will be consistent with

20 what's happening in Article V.

_l1' I

CHAIR}Uill CLARKE: Perhaps we should depart from

)1
formality for a moment and just have a central question,
23 ~ do you think the Lieutenant Governor should be the presiding
.'t ! officer of the Senate, and it may be a departure from

formality and an approach to that question might be appropriate.

1 Ii

As I understood it, Dr. Parthemos' subcommittee felt

2 that he should, apparently so by reason of the inclusion of

3 i that language in Section III, Paragraph I.

4

MR. WALLING: Mr. Chairman, it seems to me that is a

5 serious question and the subcommittee I gather had extensive

(, debate on that, and they have come to the conclusion on it,

7 and I would move that we defer any action with regard to the

R j' motion to amend until the decision is made with regard to the

9 motion as to whether or not there will be an office of

10 Lieutenant Governor or not, and if there is one where the

l.~

I! ~Z office will be placed .

.;)

Q.

];' "~'

Really almost as a point of order we cannot act here

) (\9~~' ~ ~\

~,-/,,,/ <r.,,,...

without
I

knowing

what

the

substantive

provision

is

going

to

be

14

I
::

dealing

with

the

office

of

Lieutenant

Governor.

;"
<

:I:

1S .:> .-,

CHAIRMAN CLARKE: You're speaking in Article V? I

,,,;

:::J
16 3 believe it's V.

cz

-<:

17 ~

MR. WALLING: Wherever it is.

IV.

MR. PARTHEMOS: Mr. Chairman, I think the general

)9 assumption is that the Lieutenant Governor is not a legislative

20 officer but an executive official. Here, of course, we are

2i only concerned with the legislative branch and its officers,

and there was considerable debate as to whether or not the

Senate should select its own presiding officer or, if you were

going to have a Lieutenant Governor the only function he does

serve is to preside over the Senate, and that's the only

PACE 25

constitutional function I think the Lieutenant Governor has.

2

I think if you remove him -- I'm not arguing for

3 retaining him, but if you do as I think the Article V sub-

4 committee has decided to remove him from the position of
i
I
5 presiding officer of the Senate I really see no reason in even

b having the office.

7

I do think there is a basic decision to be made as to

~ whether or not the office is to be retained or is to be

9 abolished, and I'm inclined to agree with my colleague Mr.

10 Walling here as to perhaps the decision on that should be

"7.

11 ~ deferred until a decision is made as to whether or not the

o

"-

~

12 ~ office is going to be retained or abolished.

(/~~~~W~_)~~)r~~~ ~~

CHAIRMAN CLARKE: Mr. Tidwell?

"-;:::::::/,

[4 ,.
f-

MR. TIDWELL: For the benefit of the committee, some

15 of '!, the thinking of the other committee, they felt the

Lieutenant Governor should be retained principally for one

reasoIl, and that was to succeed to the Governor in the event

that there should be a death or resignation. That I imagine I') went into ninety percent of their thinking on why the .:U Lieutenant Governor's office should be retained, but they went 21 further than that and t~e'y don't have him just sitting there

waiting. They have a substantive provision that says the

Lieutenant Governor will perform such functions as are assigned

to him by Governor and by the General Assembly which are not

inconsistent with the Governor's powers, so that's how that

I
',L~

. .__.._

PAGE 26

other committee dealt with this issue that you are now dealing 2 with.

J

CHAIRMAN CLARKE: Of course another possibility that

4 this committee could consider is this, that the decision --

since the Lieutenant Governor is a member of the executive

6 branch, that the decision as to his functions, as to whether

7 he should be -- perhaps you might want to say could be made by '. I
8 the committee dealing with the executive article, and if
9 i that's the case perhaps Mr. McWhorter's motion could accomplish

10 that and just leave that article silent as to whether or not the

"z
11 ~ Lieutenant Governor presides, and then that could be dealt with

.?,

@.SV

J2

~ ~

in

the

other

article.

0~/' \~~. rC- IA"''~ '. .

Now if I may step aside a little bit from what the

I

J4

;
I-

Chair

usually

does,

I

would say

that

that worries me

a

little

'<

1:

~ :) ~ bit in that then you have the executive article making a

:':">
16 ~~ provision for what happens in the legislative branch.

I

<l

1 '"7 a'

J

;'0

MR. PARTHEMOS: That's right.

PI

CHAIRMAN CLARKE: I would sort of like for us to

19 make that provision since we are charged with the duty of

iO writing the legislative article .

.....

MR. McWHORTER: Mr. Chairman, I have no objection to

delaying this to a later time as far as that's concerned, but

I didn't know if you wanted to complete it now or not.

CHAIRMAN CLARKE: That may be fine if there is a

reason for delaying it. If there's not, then I would like for

P:\(~F' 27

us to go ahead and resolve it.

2

Yes, Barbara.

MS. RYSTROM: I really wanted to reiterate what

4 you're saying. I think it's very important for us to make the

5 recommendation about the legislative function that is now a

(, I matter for the Lieutenant Governor. The Article V committee

can worry about what a Lieutenant Governor ought to do if we
"
"
have one, but it's certainly appropriate for us to be con-

9 cerned about whether or not he has a legislative function.

10

CHAIRMAN CLARKE: And it's for us to determine

z"
11 ~ perhaps who presides over each of the legislative bodies. o Q. w

11 :

r--- /1};j'1~~ I", ~IJiI.:'"-' .

".",,,. ~~

\:,.~=:/ /

;

MR. PARTHEMOS: That's exactly right. MS. RYSTROM: That's the way I should have said it.

14 >1-

MR. PARTHEMOS: To go further a little bit on that

'4

I

15 ~ point, I think it's important that the constitution specify

0:-1'

16 10 the principal officers of both legislative bodies, and not just u L <
I. ::; leave them dangling, and not only to specify who they should

IX I be but what their powers also should be, so I think here I

)9 would not argue for retaining the Lieutenant Governor as the

.:0 presiding officer, but I would argue that Article III should
),
,1 itself expressly provide for the office of the presiding

officer of the Senate, who he shall be and how he shall be

selected.

CHAIRMAN CLARKE: Mr. Walling.

MR. WALLING: May I make a motion to amend the

PAGE 28

1I-------~---- - - -------------------------
Ii motion. This will get the question that I think I'm concerned

Ii"ii

2 11 about and I think maybe others too.

i!

i.i
.5 ilI

My concern is if we have a Lieutenant Governor it

il seems to me he ought to have something to do and not just be

5 an appendage on the Governor's office, it will give him

(; something to do -- traditionally he's been president of the

7 Senate. I think the Lieutenant Governor has worked well this

time, but in past terms it has not the Lieutenant Governor

being in the Senate.

l()

I would move, though -- the effect of the motion I

make, if we have a Lieutenant Governor he stays in the Senate.

If he's abolished, then well and good, so I would move the

motion to amend to provide that the motion to amend take

effect only if the office of Lieutenant Governor is abolished

15 ~ in the State of Georgia.

,,,,,' :;;

16 c~;

MR. PARTHEMOS:

2 <:
17 :~ Chairman.

I would second that motion, Mr.

CHAIRMAN CLARKE: If I understand what this motion

1')

,
i

does

it's

this,

that

it makes Mr.

McWhorter's motion

a

20 contingent motion. Is that about what it does?

_1

MR. WALLING: That's a good lawyer-like word.

CHAIRMAN CLARKE: Because it's not to be written -"-' into this document, but it gives this committee an alternative

report to make to the Select Committee that in the event the

Lieutenant Governor's office continues to exist that the

PAGE 29

Section III as to Paragraph I, subparagraph (a) would remain

as reported out by Dr. Parthemos' subcommittee; in the event the office of Lieutenant Governor is abolished, then that 4 particular subparagraph would be amended by striking the ! language referred to by Mr. McWhorter so as to makeit read

b as follows:

"7

"The presiding officer of the Senate shall be styled

the President of the Senate," but he is moving to adopt Mr.

McWhorter's motion contingent upon the committee dealing with

10 Article V abolishing the office of Lieutenant Governor.

I believe Mr. Jones was first.

REPRESENTATIVE JONES: Mr. Chairman, is there any

reason that Paragraph I(a) and (b) should not be just a simple

Paragraph I if we adopt the second portion that you are saying, combine them identical to Paragraph II just changing the proper terms?

CHAIRMAN CLARKE: I think it could very well be done.:

IK I think that perhaps that

19 !

Let me ask Mel. Is there any thought as to when we

might know what the committee dealing with Article V will take

21 action?

MR. HILL: I think you know, I think you can

operate on the assumption that that is the deciSbn of that

24 committee. They have already approved it.

''.

When I say it's still subject to change it means

1','.{;L 30

they have another meeting, there's going to be a vote for

reconsideration, they can change their mind.

3

I feel there was a very strong feeling after much

4 discussion in that committee that the Lieutenant Governor will

5 continue to be an officer who is an executive officer with such

6 powers as given him by the Governor or by the General Assembly ~ I not inconsistent with the powers of the Governor and who would

8, not preside in the Senate, and that is the decision of the

9 other committee that you can operate on.

10

MR. McWHORTER: Can I ask Mel a question?

CHAIRMAN CLARKE: I believe Mr. Clark had

MR. CLARK: My question is simply if we adopt this as you explained it it would not specify how the president of the

Senate shall be selected. A minor point perhaps, but I think

it ought to be in there.

MR. McWHORTER: I want to ask Mel a question.

1'1

C'
'"

Mel, didn't they vote twice? They voted one time,

1\") then they reconfirmed it? They confirmed it one time?

jq

MR. HILL: At the same meeting?

,'U

MR. McWHORTER: Not at the same meeting, a different

'1'
-1 meeting, maybe a subcommittee .
.., -,
MR. HILL: I think the subcommittee originally --

MR. McWHORTER: Then did not the whole committee vote

for it then, and then in a second meeting they confirmed it a

second time?

rr---------- .-- -----.- --- .-.-- --. - -----.--
MR. HILL: Both meetings approved it.

!' \;,i' 31

2

MR. TIDWELL: It's a strong vote and they knew what

.J this subconrrnittee was doing. They're not going to change it.

4

MR. HARRIS: They addressed the issue direct, shall

S we retain the Lieutenant Governor's office, and there was a
"
b heavy vote in support of retention of the office.

7 !,

They then addressed the question of what shall he do,

! and there was a heavy vote and a strong feeling that he, should
l!
') ! become totally a part of the executive branch of government.

10
z"
l' I--

CHAIRMAN CLARKE: Dr. Parthemos? MR. PARTHEMOS: May I ask a question?

MR. HARRIS: I think they settled that issue insofar

as that Article is concerned.

CHAIRMAN CLARKE: That could very well render Mr.

Walling's motion pretty well moot if that's

MR. PARTHEMOS: May I ask a question?

,"1 ~l

,:
al

CHAIRMAN CLARKE: Yes.

IS

MR. PARTHEMOS: Do they leave provisions for

il) succession to the Governor's office as they presently are,

20 that the Lieutenant Governor succeeds not as Governor but as

21 ! acting Governor until the next general election?

1)
MR. McWHORTER: Yes.

MR. PARTHEMOS: They leave it that way? :..1
MR. HILL: No, they have changed ~t.

MR. PARTHEMOS: They say the Lieutenant Governor

PACE 32

and he serves for the entire unexpired term?

MR. HILL: Yes.

3

MR. McWHORTER: That's where there's a permanent

4 disability resolution, not where it's a temporary -- it

, differentiates.

h

MR. PARTHEMOS: They removed the provision for

I election at the next general election, in other words? MR. HILL: That's right. He becomes Governor for

9 the unexpired term.

10

CHAIRMAN CLARKE: Mr. Tys inger .

SENATOR TYSINGER: Since the question we are

addressi~g is the presiding officer of the Senate, and speaking

as a minority' member of that body and from a minority party

.

,\

I would object to taking the Lieutenant Governor out as

~ presiding officer of the Senate on the thesis, one, that from

.J:

::J

16

w~

an historical

perspective

the

\
presiding officers

in

the

z

p

-
~<>: Senate, and l' think about half of them now have always been

the Lieutenant Governor, I think that we need at least one of

19 those presiding officers who is answerable to all the people

20 in Georgia, 'and that would be in this case the Lieutenant

2l Governor.

22,

If we let the Senate -- and I have changed my

position on this since I've come to the Senate because I was 2\ at one time in favor of letting the Senate select its own
I'
leader, but I have seen that power abused in the Senate, and

PAGE 33

I would not like to see the Senate change its present

procedure and elect an individual who represents some 83 or

3 85,000 people who would have such a direct influence on the

4 total policy of the State. I think it should be a statewide

5 office, that we're preserving the rights as I say again of the

6 minority party in having that to be an officer who presides

7 in the Senate.

s'

CHAIRMAN CLARKE: Mr. McWhorter?

,

9i !

MR. McWHORTER: Mr. Chairman, I feel like a weqge

10 between a Senator and a former Senate from DeKalb who would

"z

11 ~ be more convincing than I am, although I feel very different.

o

"w-

(~~))~~ ~ '2-SYlz-1"
\,------'//

12 ~
~

Number one, I think they're making a good argument

I' for electing the Speaker by the people of the .State of Georgia

'----

14 ~ also.

<-

r

15 ,~

Number two, let me say this. Only one state during

"'=">

16

~
,:>

these

modern

times

has

abolished

the

office

of' Lieutenant

z

<:

J7 ~ Governor. Eight states in recent years, in the last seven or

lk , eight, have taken the Lieutenant Governor the presiding officer, 19 of the Senate. The trend through the country is to have 20 :1' expertise in the office. I think we could use a prudent 21 analogy of going out on the street to get somebody to do an

appendectomy or open heart surgery, that you can select a 23 I Lieutenant Governor from people who have no expertise in 24 presiding, and that has been true in the State of Georgia.

Historically this state had a president of the Senate until

i'\ [ 34

1945, and late in that commission's life I believe they

2 decided to create the office and right at the last they put

3 him in the Senate, they didn't know what else to do with him.

4 Many other states were doing that, but they're changing it

5 very rapidly.

i

6i I

Most every national seminar on what to do with the

7 Lieutenant Governor takes him out, puts him in the executive.

8

It seems that the people of Georgia want the person

9 who succeeds to the Governor's office elected by the people.

10 If so, he should be in the executive.

<.'l

7-

!l l-
e:

We've got a situation where he's half fish and half

o

~ @_ ,~ ' "w12 ~ fowl. we put him on the executive board and we put him in the General Assembly. I feel very strongly to have a viable

14 ~ Senate they've got to select the person with expertise, and

'<
1:
15 ~ I'm not referring to the present Lieutenant Governor, he's

0:
=>
16 ~'" been great, he's done lots of things for the Senate, but we

z.

<

7
1

~ have had presiding officers

of

the

Senate

since

1945 with no

18 I expertise whatsoever, and I think in order to have a viable

19

i
i

body

it's

necessary

they

have

the

right

like

the

House

has

to

20 i select a person who they think has the expertise to guide that

21 body and preside over it, and that is set as a trend through-

22 out the country everywhere.

23

CHAIRMAN CLARKE: Mr. Walling.

24

MR. WALLING: Mr. Chairman, in response to what he

25 had to say , my concern is not the Senate. The greater concern

I think is the state of Georgia.

::

If the Lieutenant Governor becomes a part of the

3 executive departmen~ and succeeds, being elected in that way, 4 it's going to be a different process than what we now have.

~

By process now the Lieutenant Governor is independently

6 selected, and by and large most of the time he's going to be a

7. IIIi very strong individual. If he goes and begins to run on a

x ticket with the Governor he's going to be part of the political

Q

i
I

process,

and I don't want to say any more than that, by which

10 the Governor is elected, and I think the result over the long

II "~z run is going to be that that individual is going to be much

o

Q.

~

. ,

12 ~ less strong, much less capable, much less in a position to

~t~;\'?Y'.!tv..-:t"." ~~ represent the people as an entirety than under the present

"

.'

I
14 ~ process.

"l:

15

A good illustration is in some of the other states

~~

::>

16

o in ~l
z

the

country

and

the

ridiculous

thing

out

in

California

7'

! 7 <~ where Brown and Kerr are from oppos i te part ies out there, it IS

a comic thing at the expense of the people of the state. It

\9 makes for poor government, plus it's a very expensive office.

20

If we are going to have a Lieutenant Governor, I

21 think the present system now with a strong person running with

some dignity and some power there which makes it worthwhile is

much better than they are proposing.

MR. McWHORTER: I feel very strongly -- I'm not against

" :' the office of Lieutenant Governor, I'm all for it, but I feel

1'1\<:1' 36
1 ( - - - - - - - - - - - - - . - - - .. -~------~---,---.-
I,
in order to have a viable Senate that man ought to, instead of

2 organizing the Senate, what's best for the people and for the

Senate, we always organize the Senate since 1947 based on the

4 previously run Lieutenant Governor's campaign, and therefore

5 I'm saying if you just eliminate the Senate in order to provide

6 another office that's one thing, but if you're trying to make

"i' ! two strong independent houses you'll never have a viable Senate

8 as long as he's selected from the populace with no expertise

in presiding over a legislative body.

10

CHAIRMAN CLARKE: Any further discussion?

MR. CLARK: I have a question. How was the

presiding officer selected before '45?

MR. McWHORTER: He was selected from the membership

exactly the way the speaker is now, and that was true through

"r<
J5 .~ many constitutions previously; in fact since 1789 until '45,

'":;:>

16

zIX>
0

and

eight

states

who

have

Lieutenant

Governors

have

moved

him

z

<

17 ,"cr; out of the state in the last seven years, eight years.

IX

CHAIRMAN CLARKE: Yes.

19

MS. RYSTROM: I don't want to complicate this beyond

20 the point where I can follow it, but Mr. McWhorter's motion to
"' '1 amend which did not specify how he would be elected, the
-, ,
president of the Senate, I wonder if he would rather than
,,
1 + . amending an amended amendment, I wonder if he would accept as

:.'4 a friendly amendment or an additional one or whatever that

language is --

I'\(;}<: 37

MR. McWHORTER: I will withdraw mine so you can
.,,
~ " restate it. I would be glad to.

.1

MS. RYSTROM: I was going to propose the same one,

4 but to use the same language we are using in the House of

) Representatives, shallbe elected by the Senate from among its

h : members so that we really are addressing the question rather

"7 than sort of finessing it which is the way I see the Walling

>\ amendment

MR. McWHORTER: Mr. Chairman. I feel very strongly

10 she's right, that those two paragraphs should be the same. but

Ii '~" I would suggest to put in there by voice or else we could

.o
.;

.

I.' ,:: allow secret ballot. and I don't know if the people would want

(~~f~)JY)4\:r~'~!E-
'~;!)/

~"=
i

that.

]4 )-

MS. RYSTROM: That would be fine with me.

What we can do is you're accepting the change to

,'I

.,;
:,

1(~ ~;;~:\ your amendment

is that legal?

t:I

7.

<

l l ,~;

CHAIRMAN CLARKE: Is that a restatement of your

motion?

MR. McWHORTER: I will be glad to withdraw it so you

20 can restate the whole thing. I think the one on the speaker

21 and the one on the president of the Senate should be identical.



CHAIRMAN CLARKE: So your motion is to --

MR. McWHORTER: I'll word it exactly if you would

like for me to.

CHAIRMAN CLARKE: All right, fine. If you will do

,,--------------- ----------------------
that -- I suppose somebody is taking this down.

L\C; ; 38

2

MR. McWHORTER: I suggest you all listen because I

3 might miss something.

4

I suggest that the wording be the presiding officer

5 of the Senate shall be styled the president of the Senate,

and shall be elected by voice from among its members.

7

I'm not wedded to that, but that's generally

MS. RYSTROM: That's exactly what I would like.

9

CHAIRMAN CLARKE: As we stand right now this is the

10 motion that Mr. McWhorter has made. Mr. Walling's motion is

l?

Z

J1 ~ that the adoption of that change be contingent upon the

o

Q.

~-,.~ ~ sv

12 '~" Article V committee abolishing the office of Lieutenant

Governor; otherwise it would stay as is written in this draft.

14 ~

Yes, Mike.

V>
<

l:

15 -..=:..>.,.

MR. HENRY: Mr. Chairman, as a point of information

16 ~al there is presently a position paper out of the office of the

z <

17 ~ Lieutenant Governor which I read and I can report from, but I

18 :i don't purport to speak for the Lieutenant Governor himself, in 19 ! which he points out the fact that he has in effect -- well, he 20 has given up several of the powers which are characteristic

of a Lieutenant Governor, of a legislative Lieutenant Governor

such as the power to -- he shares the power to appoint
,,
.:. ' committees, the power to assign bills to committees, he's

given up his place on the Legislative Services Committee but 25 still retains the power to have someone sit in there for

ir-:------------ -- -------------------- -------~---------- - -

PACE 39 -------------- - --------~------- ------ ----- -

!i him, and he has also I believe by Senate rule given up his
!

I
, :i power to break tie votes.

I'

3 !i

There is also a recorrrrnendation from the National

4 Council of State Legislatures that the Lieutenant Governor be

) taken out of the legislative process.

CHAIRMAN' CLARKE: All right. Yes, Senator Brown.

7

SENATOR BROWN: Could you tell me what our schedule

8 is? Are we going to break for lunch?

CHAIRMAN CLARKE: It depends on where we are. If we

10 begin to move sort of quickly we may go straight through, and

I'll be at the corrrrnittee's disposal in that connection.

There is a possibility that once we get over a few

of these knotty problems we may move right quickly. I have no

preconceived notion as to where we will be.

15 '~l

Any further discussion as to this particular issue?

-':;'1
16 o~ Any further motions? z
Are you ready to vote, then?

The first vote will be

Ii) ii on the Walling motion which would make Mr. McWhorter's motion
'I
19 I: to amend contingent upon the abolition of the office of
2;J I Lieutenant Governor.

As many as favor Mr. Walling's motion -- Does

everybody understand what it would be?

23

MR. CLARK: Mr. Chairman, I'm confused as to the

conflict between these two.

CHAIRMAN CLARKE: Let me start back. In the order

PAGE 40

they were made, the first motion was to approve Section III in

') its entirety;

Then a motion was made by Mr. McWhorter to provide

4 that the presiding officer of the Senate would be styled the
i:
5 :! president of the Senate and elected by its membership;

Then the motion was made by Mr. Walling to make the

7 adoption of Mr. Mc~borter's motion, if it's adopted to make it

8 effective only if the committee dealing with Article V votes to

9 I abolish the office of Lieutenant Governor altogether.

10

Are there~any other questions about the motion?

Czl

11 ...
.oa:
0..

MS. RYSTROM: I just want to make sure -- are we

...12 ~
~~ ._~~

agreed that if Mr. Walling's amendment passes this is taking no position whatsoever on whether or not

committee it stays --

-

14

~
f-

it

does

stay

like

it

is,

so we're not

saying that

the

'r<

15 ~ president

All right.

Ca:l

::>

16 ~
z<:.:

If Mr. Walling's motion passes, in effect the

<

17 iti committee has said they would like to have the president of the;

Senate be the Lieutenant Governor?

!LJ

CHAIRMAN CLARKE: If there is a Lieutenant Governor.

?O I:

MR. PARTHEMOS: If the office is continued.

21

MS. RYSTROM: You couldn't have one if there weren't.

27

CHAIRMAN CLARKE: As many as favor --

23

SENATOR TYSINGER: Let me just inquire as to a point.

24

The effect, will it not, sir, be that if this passes

.~
and they do not abolish the Lieutenant Governor this stays

PAGE 41

like it is?

CHAIRMAJ~ CLARKE,: It stays like it is, right here.

SENATOR TYSINGER: We're saying in this paragraph

4 then the Lieutenant Governor shall be the presiding officer?

5

CHAIRMAN CLARKE: That's right.

SENATOR TYSINGER: They might say he won't, so we will

have two in conflict.

CHAIRMAN CLARKE: That's right, then the Select

9 ; Committee will have to resolve that conflict.

10

As many as favor the motion of Mr. Walling will

by raising their right hand.

(A show of hands.)

CHAIRMAN CLARKE: One, two, three, four, five. Five. :

Those opposed.

(A show of hands.)

CHAIRMAN CLARKE: One, two, three, four, five, six.

was very close and the motion is lost.

IX ,

Now we have before us the motion of Mr. McWhorter

19 : which would change subparagraph (a) of Paragraph I to the 20 effect that the president of the Senate would be the presiding 21 officer and he would be elected by voice vote I think a

voice vote would be appropriate 23 of the Senate.

by voice vote of the members

As many as favor the adoption of this motion will

raise your right hand, please.

PAGE 42

,I

(A show of hands.)

!

CHAIRMAN CLARKE: One, two, three, four, five, six,

3 seven, eight, nine, ten.

4

Those opposed.

5

(A hand.)

()

CHAIRMAN CLARKE: The motion is adopted by a vote of

7 ten to one if my eyesight is correct.

",)

Now the motion is on the approval of Section III in

9 its entirety.

10

MR. HILL: Let me ask one question. Mr. McWhorter,

"z II .... did you want the viva voce vote also for the speaker of the

House or not?

MR. McWHORTER: I did, but I'm not prepared to speak

for the members of the House. I think maybe that's what they

15 "'" want , but I'm not sure.

:'.">

16 'i

That was what I really intended, Mel.

CHAIRMAN CLARKE: Do you have a comment in that

connection?

19

MR. EDWARDS: I would like to have the voice vote.

20

CHAIRMAN CLARKE: Can we by common consent make those

two consistent? Is there objection to doing so?
.),
Hearing none, the Chair will just declare that the
,,
.' two be reported as consistent.

Now the vote is on the adoption of Section III in its

entirety.

PAGE 43

------' ---,---"

,,,,------- ----------------l

As many as favor the adoption of Section III as

I

2 amended will signify by raising your right hand.

:1

(A show of hands.)

CHAIRMAN CLARKE: Those opposed.

The vote is unanimous.

SENATOR TYSINGER: No, sir.

CHAIRMAN CLARKE: I'm sorry, Senator Tysinger.

Let's vote again wo we get the exact count.

9

Those in favor will vote aye, please.

10

(A show of hands.)

CHAIRMAN CLARKE: One, two, three, four, five, six,

seven, eight, nine. I'm sorry I missed you over here.

Those opposed.

(A hand.)

',"

CHAIRMAN CLARKE: All right.

u;

II '~"

Now we will move to Seeton IV, the organization and

l.
17 :"1 procedure of the General Assembly.

Is there a motion for the approval of Section IV?

\9

MR. PARTHEMOS: I move approval of Section IV of

20 Article III, Mr. Chairman.

),
second?

CHAIRMAN CLARKE: Dr. Parthemos moves. Is there a

~. McWHORTER: I second it.

CHAIRMAN CLARKE: Seconded by Mr. McWhorter.

Now questions or discussion?

PAGE 44

MS. RYSTROM: I want to ask you first of all to
) continue passing around the papers that are right up there
::
3 at your right hand. They got to you, and you were otherwise
.. engaged.

CHAIRMAN CLARKE: I didn't know they were here.
,
MS. RYSTROM: I know you didn't, you were very busy.

"I'

What this is is a list of the open meetings

provisions that occurred in all of the constitutions that I

could find them with the actual language.

10

If in order to discuss this you need ,me to make a

;;,:;
11 Z'Z motion, I will do so, otherwise I thought maybe we could just o "" address the question in discussion.

I would like to propose that we insert a provision

CHAIRMAN CLARKE: Why don't you go ahead and make a

1, ~ motion and we will know what we're talking about.

-".

=>

16 ~~

MS. RYSTROM: I move that we amend the motion on the

L :i; floor to insert let us say between present Paragraph IV and

present Paragraph V the wording that appears on the sheet in 1'1 front of you under the Montanta constitution, although it's the

20 point that I want to make and I don't know that that language

21 is essential. That is the third one down on the sheet that 22 you have in front of you.

MR. HILL: Do you know where you would recommend it ,'4 be placed?

MS. RYSTROM: I was saying between Paragraphs IV and

PAGE 45

V, only I'm not I certainly defer to someone who has an

opinion about that being the wrong place. The rules of

~ procedure it just seems to me --

MR. PARTHEMOS: It seems to me that would be the

appropriate place, either a new paragraph or possibly

incorporation in the paragraph.

MR. McWHORTER: It needn't be a conflict.

CHAIRMAN CLARKE: We have a motion by Ms. Rys trom to

insert a new paragraph to be I suppose a new Paragraph V
],) immediately following the present Paragraph IV, and I suppose ."
1
the remaining paragraphs would be renumbered appropriately.

Any further discussion or motions or questions?

First, is there a second to the motion?

MR. CLARK: I second it.

~

~L
J:, ..') .'
;'(
":1

CHAIRMAN CLARKE: A second from Mr. Clark .

,:'1
; (, Z
'~ C.l

Any further questions or motions?

J:

'"...

'('

Hearing none, as many as favor the adoption of --

,\

"

MR. McWHORTER: Mr. Chairman, state the exact wording

of it again, please.

CHAIRMAN CLARKE: As I understand it, it's the "_J i Montana provision; is that correct?

MS. RYSTROM: Yes, only without that typo that I just

noticed in there. ,. ~
CHAIRMAN CLARKE: Does everybody have a copy of it?

Any further discussion?

PACE 46

MR. McWHORTER: I would like to ask a question, make

a statement.

.?.

CHAIRMAN CLARKE: Yes, sir.

4

MR. McWHORTER: When you said all hearing, all

~ committee meetings are open to the public, would that include

() committee meetings where you discuss the purchase of property

; i! or personnel?

I believe it would under that broad language.

<) I

MS. RYSTROM: That's my understanding.

10

CHAIRMAN CLARKE: My understanding is all means all.

cz?

JI ~

MS. RYSTROM: If the people will be willing to take a

o

Q.

w

12 ~ minute and look over this list, the Florida one excludes the

@ ) ' ~J~ ~ Senate considering appointments and removal from office. which

14 ~ perhaps takes care of some of the sensitivity about personnel.

<

1:

15 ~

From my own point of view I would just like all those

co:

:>

16 ~00 meetings to be open, period, but the -- I've forgotten now,

o

z

<

17

0:
,i

maybe

it

was

Senator

Tysinger

expressed

obj ection

to

that.

SENATOR TYSINGER: Mr. Chairman, if in effect this

19 'i passes, and it's happened already in the Senate, the approval

20 of the Governor's appointment by the Senate is meaningless; it

)! .. 1

would just be a rubber stamp body because no one in my

experience is going to get up and discuss people and personnel

in an open meeting. Not that we have done a lot of that; we 21 have at times rejected some appointments, but if there's any

meaning in law that the Senate shall approve, then I think we

PACE 47

should have the right to go into personalities and the reasons

2 for objections, and I don't think we can do that in a public

; forum.

4

Further I raise the question as this has been applied

5 I in some areas, it does talk legislative committees in

() restricting those open meetings. We have in the Senate, and I

think we have followed that very religously, but in some areas

as I understand reading the news media there's even questions

about some of the public groups when legislators maybe on the

\0 same committee have gotten together on lunch some time and it c,
z

]] ~ hasn't been a called meeting, maybe it hasn't been formalized o .'~

SV~ ]2 ~ in any way, but they start discussing that, that's been

I'-- t~}~~! ~-_..._-_/....../.. /

challenged as in fact a meeting of the committee. and there' s
,
'

]4 ~ a question in my mind will it not then limit the freedom of

<
I

15 ~ the members of the General Assembly to reach a consensus in any

0: :>
16 ~ way. If you do this in a public forum when you vote, you wi.ll

z

do it in a public debate when you vote, but I would hate the

fact that another member of the committee and I discussed 19 something over the telephone and I'm at home and he's at his 20 I home, that that could be brought up at some time that we were 21 meeting and discussing some legislative matters in the public's

interest.

These things have not worked their way through the
),
--+ courts so we know exactly what this really means, and I'm
25 , concerned about it.

,-c----------------------- ------- -- ------------------- ---- - --
CHAIRMAN CLARKE: Ms. Rys trom.

PAGE 48

2

MS. RYSTROM: I don't think a telephone conversation

3 anyone would probably conclude between two members of a larger

committee -- now, a two-member committee could certainly have

a telephone 'conversation that constituted a meeting, but I
(~

It seems to me that the public's business being

<)
conducted in the public is just such a basic principle of the

10 system of government that we believe in that it would almost be
LzJ
1I ~. impossible not to support the notion that that is the way it >.
"'
,@12 ."ShOU1dbedone.
(~V) -"-~ 1~ It does make it more diffi cult. there's no question.

~

14 i

Anyone that's served on any kind of legislative body will

r
1'; ,~~ certainly, or even in a committee meeting like this it wou1d'be

.::J

16

~I
L
::: easier

to have

conversations

in here,

to

say

things

if we

didn't

z

17

'"
co

know

that

the

press were

present,

for

example,

but

that's

such

a small price to pay for the benefits that come to having all
19
of the public's business conducted in the presence of the
20
press and anyone else that wants to be there. It just seems
21
to me those are appropriate risks to take, and it's appropriate

to have this in the constitution rather than subject to the

rules of the houses of the legislature.
24
There has been a considerable change under the

present president of the Senate about open meetings. The

PAGE 49
r----
I next president of the Senate whether he's the Lieutenant

Governor or elected by the members of the Senate may have very

.3 different ideas, and I think it's important that the 4 constitution require that the meetings and the committee

~ I meetings be open.

()

-- CHAIRMAN CLARKE: Any further discussion?

Yes, Mr. Walling.

MR. WALLING: I'm in sympathy, Mr. Chairman, with the

9 motion, but I also think Senator Tysinger makes a good point.

10 I don't know how we can deal with it here; I think it does havei

IJ

"z
...

to

be

dealt

with.

0'

(\

),

~

12 'I

As a preliminary way of getting at it I would move

(\-".iY'(,'(i-;f<jd~~)\~~ ~~'~ the main motion be amended by adding after the word public,

'-/ 14 ~ changing the period to a semicolon, and add except when the

I~

"1:
~

General

Assembly

provides

otherwise.

'j ~
~)

16 ~

The purpose of the motion would then be --

CI
z:
! 7 -~<

' (Laughter. )

MR. CLARK: You may as well drop the whole thing.

MR. WALLING: It would have to be done in the open,

20 and they would have to do it positively. I think it changes it

21 I from what we now have, and they've gpt to take a positive vote

1 , rather than now drifting into it, so I would so move, Mr.

, ')
)

Chairman.

21

CHAIRMAN CLARKE: What we have now is a motion to

25 i amend the motion to amend, and I believe everybody understands

-,---_._------
:! the language and the meaning.

PAGE 50

Any further discussion on the motion?

3 !!

MR.. McWHORTER: Mr. Chairman, could we vote for the

4 : motion to amend and then vote against the main motion?

5i

CHAIRMAN CLARKE: I assume so. I assume everybody on

() this committee has the perfect right to vote his own conscience.

7

MS. RYSTROM: I'm sure Mr. McWhorter meant vote on

8 the main motion rather than against the main motion.

9

CHAIRMAN CLARKE: Any further discussion on the

10 motion or any of the amendments?

11 ;:: .:..::

Yes,' sir.

MR. WALLING: Mr. Chairman, may I refine my motion?

CHAIRMAN CLARKE: Yes.

MR.. WALLING: Except when the General Assembly

15 ~ provides otherwise with regard to appointments to or removal

=~,

16 '~" from public office.

z.



17 ~

It probably would include also some property

IX transfers, and I would add that to --

19

May I rephrase it?

20

CHAIRMAN CLARKE: Yes.

21

MR.. WALLING: To add the following: I move to amend

22 to add the following, quote, "Except when the General Assembly

provides otherwise with regard to property transactions or

appointments to or removal from public office:' unquote.
,C
CHAIRMAN CLARKE: Any further discussion or amendments?

PACE 51

Are you ready to vote?

The first vote will be on the Walling motion to

.l I amend the amendment to the main motion, and as many as favor

1 the adoption of Mr. Walling's motion will signify by raising

5 your right hand.

6

(A show of hands.)

7

CHAIRMAN CLARKE: One, two, three, four, five, six.

, Am I counting correctly? '

')

Let me get it again, please. One, two, three, four,

10 five, six, seven. That's correct.

~zJ. II ~:
acr.
o.

Now, those opposed to the Walling motion.

]2 ~
(\~t;:~~~~~/\/~=~ ~~

(A show of hands.) CHAIRMAN CLARKE: One, two, three, four. So the

,A
1'. ~ Walling motion is adopted, and there is an amendment to the <: T
15 ~ motion to amend, so now we will vote on the motion to amend as 0: ~)
16 '~
w, amended, which would be Ms. Rystrom's motion as amended by Mr.
<
17 '""0 Walling's motion.

1K
As many as favor the motion will raise your right

1(1
hand, please.
20
(A show of hands.)
21
CHAIRMAN CLARKE: One, two, three, four, five, six.

Am I counting correctly?
, .,
All right. Those opposed.

(A show of hands.)

CHAIRMAN CLARKE: One, two, three, four, five.

PAGE 52

I Ii

So the main motion is amended by the Rystrom motion

ii Ii

21 as amended by the Walling Motion.

:1

3

As many as favor the motion of Dr. Pathemos to

4 approve Section IV will signify by raising your right hand,

please.

6
'i

(A show of hands.)

'7

MR. McWHORTER: Excuse me. Does this preclude it

k from any other amendment on the floor?

')

CHAIRMAN CLARKE: If you ~ave another -- Do you

10 have another amendment?

,z-'

11 ;-
.Y.
~

MR. McWHORTER: I have two questions, not amendments.

"w-

~~r~~~12 :
I?~\ :~

CHAIRMAN CLARKE: All right, we will go ahead and

take them.

14 ~ I-

MR. McWHORTER: I'm sorry.

"-

I

15 ...~,

CHAIRMAN CLARKE: That's all right. We don't want to

,~

,:'

16

~
oz

close

anybody

off.

-<:

17 ~

MR. McWHORTER:

On page 4, Paragraph VI under line 15,

18 we look at that, then turn to page 12, line 26 (d), is there a

19 ' need for both?

20

MR. SWEENEY: The one on page 12 has been stricken.

21

MR. HILL: We have an amendment on that .

,. )
MR. McWHORTER: I'll withdraw that and I'll ask one

more question, then, Mr. Chairman.

The following Paragraph VII we're talking about

election returns and so forth, and the last two lines, by a vote

PAGE 53
-------;
of two-thirds of the house to which such member belongs.

, , Is that restrictive enough? What does it mean? Do you mean

, two-thirds of a quorum or two-thirds of those elected? If

-+ that's so I should we use the same wording where it says

two-thirds of which it's entitled. I think we've got a little

h ambiguity.

CHAIRMAN CLARKE: Would you like to make a motion in

) that connection?

9

MR. McWHORTER: Mel l what do you think about that?

MR. HILL: I think we should conform it and say
u,.
t 1 ~ to which each house is entitled under the constitution. o
MR. McWHORTER: That would be two-thirds of

everybody?

MR. HILL: Yes.

"

MR. PARTHEMOS: As presently being construed I think

,c?, it means two-thirds of a quorum, the way it's written now.

7

" 17 ,~.

MR. McWHORTER: I agree with you.

CHAIRMAN CLARKE: Would you like to make a motion to

1\) that effect?

20

MR. Mcv."HORTER: I don't know how the committee feels

about it.
)'
CHAIRMAN CLARKE: We have to have a motion l then we can find out how the committee feels about it if somebody has

any feeling one way or the other.

MS. RYSTROM: I agree with Mr. McWhorter. If he

PAGE 54

isn't making the motion, I would be happy to, to move that we

2 change this language to conform to that that we have used

3 ',elseWhere, and I think the language we have been using was

4 to which the house is entitled.

CHAIRMAN CLARKE: Under this constitution, or some-

() i: thing to that effect.

" 'i I

MR. PYLES: Seconded.

II

CHAIRMAN CLARKE: The motion has been made by Ms.

9 Rystrom and seconded by Mr. Pyles.

10

Is there any further discussion on this?

...,

z

11 I-
'o"

Hearing none, are you ready to vote on it?

.>.

'@ Q)r-~ --I') '"

The members favoring the motion will signify by

(~~ m"'''. ~ raising your right hand. One, two, three, four, five, six,

.I"', ~I seven. All right. We have seven for.

~
1:
J~ .~
u
:':">
it. ~ ~ Cl Z
17 :<ii assume.

Those opposed. All right. Seven to zero, with some abstentions I

Okay. Are there any other motions to amend?

l,l

Hearing none, as many as favor the motion of Dr.

2d Parthemos to approve Section IV as amended will signify by

raising your right hand.

"

(A show of hands.)

CHAIRMAN CLARKE: One, two, three, four, five, six,

seven, eight, nine, ten, eleven. That is unanimous.

Now we will move on to Section V, Enactment of Laws.

-- - - . - - - r,--~'--~ ~

._~-~--

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

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

PAGE 54

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

-

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

Is there a motion to approve it as it is in the draft of the

) subcommittee?

MR. PARTHEMOS: Mr. Chairman, I move approval of

4 Section V, Article III.

5

CHAIRMAN CLARKE: Dr. Parthemos moves. Is there a

(1 second?

7

MR. WALLING: I second it.

8

CHAIRMAN CLARKE: Seconded by Mr. Walling.

9

Is there discussion, or are there motions to amend?

10

MR. McWHORTER: I'm talking too much.

'z"

11 ,c:

CHAIRMAN CLARKE: That's all right.

o

0_

If---- -- C" .~ \'\ /"-,,'.~-,v-R<.!,
("\ I\I. -_.,,,t,,-,-,_,..:~)},/' I

12 co."..'o

:; ""
_,
U

I've

been

MR. McWHORTER: a party to it,

I \,,',

~ I'

I ought not to be saying this because and we changed it twice, and maybe

14 s: Dr. Parthemos' speaker needs to be here. Wha t we have done is,


I
15 :~ Paragraph VIII

'-"-'

16 '~ "Q'

CHAIRMAN CLARKE: May I interrupt you just one moment,

2:



!'i ~ before you start on it, Matt?

One thing that I need to annOilllce to the committee, !ll Paragraphs III and IV are paragraphs that yet need to be

redrafted, so whatever we do with this section today will not 2j be final insofar as those two paragraphs are concerned.
1"
For those of you who are not on Dr. Parthemos' sub23 committee, the reason for this is, and the main reason is the

General Assembly is now in the process of working on a
.,.:;,;
complete new code, and in so doing it needs to have some

1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1
I

__ __ ---"-_._----------- - - - - _ . _ - - - - - - - - - - _ .. __.. _-----._ .. . _ - - - _ . .~, I
change where it can be enacted as a body without having to be

~ restrained on the idea of one subject matter per statute, per

bill.

Also the repealing issue comes into play because you

need to be able to repeal by reference to code sections rather

than subject matter.

I understand the Office of Legislative Counsel is

working on some language for two new sections to deal with this

9 'matter. Cindy, do you know how that's coming along?

\0

MS. NONIDEZ: No, sir. Mr. Frank Evans could not be

",:
1\ ~ here today due to a family emergency, but we are working on the

.)

o.

w

\',

: ~ language here and we're trying to --

..~;:L~lr<1...

~:-

((~'j:;:;.z)y)r='!~ ~

CHAIRMAN CLARKE: We will have one more meeting, and

,,~ "

.- / "

1./'1

i4 1_ perhaps at that time we can address this particular or these
<
r
is \.,~ two paragraphs, so whatever we adopt as to Section V should be
:'":;
\6 g done with the understanding that those two paragraphs are still c'
.r~
17 '{ open for action at a later time.

\1-;

I apologize for interrupting you, but I thought that

1c) announcement ought to be made.

MR. McWHORTER: D~. Parthemos, correct me where I'm

':Ii in error, the committee was worried about the procees by which

you pass local legislation, particularly the speaker was, and '.' they adopted finally largely the language I suggested, and I

want to state I did a poor job I think.

If you all will look at Paragraph VII and Paragraph

! VIII, I'm wondering if we shouldn't make Paragraph VIII a part

of VII rather than a separate paragraph with a slight change of

, wording. You're saying what you do with a bill, then you come

l and say what you do with a local bill; therefore, I could see

~ a possibility of conflict. I can see some wisdom in asking

h some help from the committee, knocking out Paragraph VIII and

, making another sentence under VII that says something like

"However, the General Assembly may provide by law for the

<) procedure for the passage of local legislation," rather than

10 put it separately, letting you know you're making an exception
'.J Z.
] 1 ~ to it, if you all understand what I'm rather crudely saying. o o. w ~ George, do you see what I mean?

MR. PARTHEMOS: I see. Let me just --

Paragraph VII does specify three readings of general

l~ ~ bills and resolutions, so in order to differentiate them from
c<
=J
i ~_, ~ local, so I think you do have something -:~
MR. McWHORTER: It says the title of every bill and

resolution intended to have the effect of law ... " A local

bill has the effect of law. Is that right, Robin?

MR. HARRIS: Yes.

?,

MR. McWHORTER: We 'could end up with a conflict.

MR. PARTHEMOS: The third reading of general bills

and resolutions, of course, it does provide

Here again, Hamp, I dont know I understand quite the

problem that you have.

PACE 57

MR. HARRIS: I think maybe what he is saying is that

if it's kept separate that the General Assembly could provide

by law for the handling of local legislation in a manner

.J different by not having to read it three times on three

:, separate occasions, they could have a free hand.

MR. MCWHORTER: That's possible. I think if you put

it in there --

MR. HARRIS: He's saying if you put Paragraph VIII as

'I a proviso to Paragraph VII it would eliminate that possibility

10 that by a statute the General Assembly could say with respect

1) ~c to local legislation you don't have to read it but one date.

MR. McWHORTER: You see what we're talking about?

MR. WALLING: We probably add the word "different"

i, there too because it tells us everything else applies, and

is,, this just applies to everything else. [.~)

11)
c.

MR. PARTHEMOS: I see no problem either way actually.

0'

J

MR. McWHORTER: If you see no problem, I'll withdraw

MR. PARTHEMOS: I don't object to it being 20 consolidated, making it kind of an exception the procedure for

" local legislation.

"

MR. McWHORTER: I will withdraw it.

MR. CLARK: What you want to say as I understand it

is there should be a different procedure for local legislation.

In just simplicity why couldn't it be attached to the

i Paragraph VII and just say the General Assembly may provide by

: law for, and I think for clarity it should say for a different
!i
procedure for considering local legislation.

4

MR. McWHORTER: I don't think you want to necessarily

do away with the two readings of something. I agree that that

(' : would probably accomplish it.

MR. CLARK: A different procedure simply gives the

Assembly the power to whatever readings it want~ to make.

"

MR. McWHORTER: That's what I had in mind.

MR. CLARK: I think the word "different" --

11

MR. HILL: What if we added "not inconsistent' with

MR. CLARK: If it's not inconsistent, we're not

: getting at the --

MR. PARTHEMOS: You can't make the exceptions from it.

~,

MR. CLARK: That's right. As I understand, you're

L

Z

trying to simplify and speed up the handling of local

legislation.

19

MR. McWHORTER: I don't want to be too particular,

20 but with this in the constitution if we pass local legislation

less than provided we might have an attack on those individual

bills.

MR. SWEENEY: I agree with Mr. Clark. I second it.

I think he's making a motion.

MR. CLARK: I will. I was just clarifying--

CHAIRMAN CLARKE: Would you state your motion,

please? I'm sorry, I was doing something else.

MR. CLARK: I move for a five-minute break.

4

CHAIRMAN CLARKE: The motion is adopted by

') acclamation.

h

(A brief recess.)

7

CHAIRMAN CLARKE: Let's see if we can continue.

We were discussing the dealing with the local

legislation here in Paragraph V. Is that correct?

10

MR. PARTHEMOS: Section V, Paragraphs VII and VIII,

CHAIRMAN CLARKE: And I believe that Mr. Clark was

Is that where we were?

MR. CLARK: You're burdening my memory because it's

1.' ~ been ten minutes.

:'">

16 ~

I think the motion was to amend Paragraph VII so that

the following sentence will be added: "The General Assembly

lb i may provide by law for a different procedure for considering
I () I local legislation, 'I and that would eliminate Paragraph VIII.

CHAIRMAN CLARKE: Mr. McWhorter, do you accept that?

MR. McWHORTER: I'm not sure, maybe we should use the
)--,
word "passage" instead of "considering." I don't know what

"considering" means.

,I

,- .. ~

MR. SWEENEY: I think if you just said a different

procedure for local legislation, if you just said at the end

: of Paragraph VII --

PACt: 60

MR. McWHORTER: I agree with that.

CHAIRMAN CLARKE: All right. Is that

,1

MR. PARTHEMOS: Mr. Chairman.

CHAIRMAN CLARKE: Yes, sir.

MR. PARTHEMOS: I just want to point out that, of

7 course, Paragraph VII deals only with one legislative procedure

and that is the reading of bills, and if you put them in there

together, and I don't feel strongly about that, you're really

10 dealing with two different aspects of the procedure in the same

\z:l

11 ~ paragraph. It seems to me that that might create some

o

"~

(\I"~~-~<~-~-):-':p \:~r>/~~~'/!.!1'2.

.~~
~;:
if
!

confusion and I think this '
separate paragraph, because

is as

the reason why it was put in a I say in the paragraph you're

J4 ; dealing with only one aspect of the procedure and that is the

<r
15 :~ reading of bills and not the total procedure for the enactment
x ,J
16 '~ of legislation, and by putting it in there I think that that z <.
1'7 :; might possibly create some little confusion.

MS. RYSTROM: . Perhaps it should go the other way 19 and it's really Paragraph IX that Paragraph VIII should be 20 paired with.

MR. PARTHEMOS: They both deal with local legislation.

One deals with the advertisement.

MS. RYSTROM: But what we want to do is make a whole
' "
,.-1 different routine for local legislation, and perhaps that --

MR. PARTHEMOS: You want to differentiate between

1'\(;1', 61

the two. I don't know if you want it in Paragraph VII or

) simply expressly state that that refers to general bills and

3 resolutions and make the distinction there.

,I

MR. McWHORTER: Just in the way of discussion, I

~ agree with some things being said, and I can see if you made

!J VIII broad enough and left it you could exclude IX, it could

7 i include IX.

8

CHAIRMAN CLARKE: Mr. Tidwell.

')

MR. TIDWELL: I was present at all of these

10 discussions that you had on this, and it seems to me clear

1,.,')
z
Jl ~ from the record that you created that what you're talking about

"".~

J ; :~ here is just the procedure, and I don't see what's wrong with

,~'2JY-~I.

~

((('~:.:.~))t~"-'~ ~ what you've got right there just exactly the way it is, and

J4 ~ I think the record is replete that you're not talking about
..-
I.
15 :~ having exceptions to anything other than just what you used,
.L',
!: '3 to call a local calendar, that that's what you're talking about.

I think unless any member of the committee would

.,
J'

disagree with that --

MR. McWHORTER: Would you agree to the word "passage"

20 I instead of "consideration" or not?

21

MR. TIDWELL: I thought that the passage and

consideration had been debated and it was found that considera-

tion was better than passage.

MR. PARTHEMOS: That's my general recollection.

MR. TIDWELL: That it made clear that you're not

!'AGF 62

talking about -- that the word consideration made it clear

2 that you're not talking about different votes or readings and

j things like that, but just a different procedural matter of

4 how you handle that bill.

<;

CHAIRMAN CLARKE: Ms. Rys trom.

I)

MS. RYSTROM: I'm now confused. If you read this the

'7 way it's presented to us you would believe that local legis la-

.1...:, tion also requires three readings, is that correct, because

') it's not excluded in Paragraph VII?

lO

CHAIRMAN CLARKE: That is correct.

1I ,"

MS. RYSTROM: And you're supporting that.

MR. WALLING: What Charlie is saying is the procedure

from the ground up, and how about this language, Charlie:

"The General Assembly shall provide for procedures for con-

(

1:

1~~ .:0 sidering local legislation"?

.<,;'

;;)

1(, L" '.JJ

Does that get closer to the implication without having

::1

z

..,

]

'y.
'"

to

spell

out

a

lot

of

details?

1,1,.:

MR. TIDWELL: That seems to me to be the same thing

j q you've said right here, Bob. I don't see any difference. It's

21) , just a matter of semantics.

""1-: ':.1

MR. SWEENEY: I was confused. I thought Mr. Clark

and I had the concept that Paragraph VIII was intended to except

from the requirements of Paragraph VII the three readings on

".:.'+ local legislation.

'"_ .. 1

MR. PARTHEMOS: No. You see,they deal with different


l',\GE 63

subjects.

.2

MR.. McWHORTER: Mr. Chairman, I might concur with

3 what Tinl just said, I've got to agree with him.

4

The speaker was real interested in this procedure

) if you recall, and he wanted to shorten it on the third reading,

6 and we had said that if we do this we still require.reading

I the title on the third reading, and that's a cumbersome thing 8 and I thought the speaker wanted to do away with it. Reading

the titles of these bills would be time consuming.

10

CHAIRMAN CLARKE: I think also as my recollection

'.'}

<-

11 ~ was that the speaker was concerned about the fact that as a

o,.

~

~J),~ i ,~T

12 ~ matter of practice that this would provide a method by which

the General Assembly could authorize the passage in an honest

lA ~ way without any fictitious votes.

<.
J:
15 ,"
,,'r.~J
:";
16 ~ 'c"
7.

MR.. PYLES: Mr. Chairman, am I in error? It appears to me that this is a highly convoluted

kind of thing. I hate to see all of this in the constitution,

Ii) II specif ying the procedures for each house to go through.

CHAIRMAN CLARKE: I can understand your feeling

20 I about this. At tne same time most of these things deal very

distinctly with protections to the public in the actions of the

General Assembly in that they really put restraints on the 23 General Assembly as to how fast or how far it can go in its 24 actions, but that's a matter that addresses itself otherwise

to the committee as a whole.

PAW': 64

Yes, Herb.

REPRESENTATIVE JONES: My question will be almost

3 through you to Jack who is the greatest expert that we have

~

I I

on

house

rules.

5

Does that by law almost usurp the rules that we have

h in the past used ourselves to pass local legislation, the

7 number of local signatures or signatures of the delegation

8 and so forth?

q

Would we would not then have to in fact write into

10 the law the number of signatures from a delegation that would
'z.:J
11 ~ have to be there instead of by rule that has happened in the
?
past?

MR. McWHORTER: I think it would be just the opposite.

I think it would allow you to do something I think by law

15 ~ you could set up some procedure either yes or no.

,~

:':">

16 ~

MR. PARTHEMOS: I think this would not partic~larly

c

l.

<

17 ~ affect the rules because it simply says the General Assembly

Iii may provide by law, and it may actually see fit to keep what it

has in the rules, to leave them there.

20

MR. WALLING: Each house, Herb, now sets up its own

21 independent procedure as I recall, and this would require that 22 the procedures be jointly by the House and the Senate, so Herb

has a point.

REPRESENTATIVE JONES: Are you saying that the House

or Senate can pass laws to give itself the authority to

PAGE 65

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

-- '.

~-------_.

perfect any kind of rule it wants, or that you would have to

2 pass a law to give the House the authority to perfect its own

3 rules?

4

MR. McWHORTER: The speaker said very emphatically

s he didn't want it rule by rule and law by law. Didn't you

6 I make the point? He was adamant.

7

MR. WALLING: I see.

8 I:i

MR. McWHORTER: He wanted it to be by both houses.

'!

9

CHAIRMAN CLARKE: Is there any further discussion as

10 to Paragraph VII and VIII? Yes, Ma'am.

"z

MS. RYSTROM: I think that our discussion is

centering in one area on the question of whether or not there

should be a different procedure for local legislation, and the

other question is what does it say, and I'm getting confused

~
<C :t:
1S .0 be tween the two .

,r.......1

:.l

I () ~

Are we agreed as a committee that we want a different

~,

"z.

17 :"ii procedure for local legislation, or are we -- I don't feel

P; like we have completely addressed that question.

19

CHAIRMAN CLARKE: Let me just say this to you. There

20 is a very distinctly different procedure for it now, but it's

21 not absolutely clear that it's authorized by the constitution

22 or by law, so what we're talking about here is making -- giving 23 to the General Assembly the 'authority to do what they have 24 done as far as I know for the last hundred years.

25

MS. RYSTROM: One of the things we're not giving

, t',-\! ,', 66

them the authority to do is to forego three readings for even

2 local legislation if we adopt it as it is right before us?

3

CHAIRMAN CLARKE: I think that is correct. That

4 would be my impression of it.

5

MS. RYSTROM: I'm all set.

6 :!

MR. McWHORTER: I'm sorry I started all the discussion.

7

CHAIRMAN CLARKE: All right.

8

Now let me mention one other thing before we vote

9 on any amendment to Section V. I also would like to exercise

10 the prerogative of the Chair and defer consideration of

z"

Ii ~ Sections XI through XIV for the reason that these are sections

o

"-

~ ~ ~sv

12 '~" in which the speaker and several other members of the committee

.._- have great interest, and they're not present today. We are

14 ~ going to have to have at least one other meeting anyway, and


T-
IS ~ these are the ones which deal, of course, with the veto and

'::">
16 ~ the overriding of the veto.

z



1 7 ""

I,

'"

MS. RYSTROM: You mean one other meeting of this

11'1 i who le commi t tee?

19

CHAIRMAN CLARKE: Yes.

20

So if we may, whatever we adopt in connection with

Section V will not deal with paragraphs III, IV, XI, XII, XIII

or XIV. Those we will consider separately at a later meeting.

Now, the only motion we have before us exceptthe

overall motion is a motion with regard to Paragraphs VII and

VIII. Do you understand what that motion is? I believe it was

~ M~~-Clar~~-;-U:ot~o~~----

j'AGE 67
--I -~ -.------~----.
,
i

iil
2

MR. CLARK: Mr. Chairman, it was my motion and simply

3 :1 to implement what I thought was the consensus to simplify and
,I
4 clarify the handling of local legislation.

5

The conversation and questions raised since I intro-

6 duced that motion even clouds my own mind about it. I under-

7 :""i stood what we were tryd.ng to do was to give the General R Assembly clear authority to enact laws for the handling of

9 I local legislation in a more simplified procedure than general

10 legislation, specifically getting away from the necessity of

11 cz~.' three days, three readings because we know what happens now

o

"w-

12 ~ and moving it into Paragraph VIII, and Paragraph VII seemed

(ta0r~!'.!'. ~ c.,v!l

~

to be a more orderly simplified way of doing it.

\",- ) /'

-_ --..

... "

"

~: /

"-'

14 ~

Now the question has been raised that we're dealing

'~
I
15 ~ with different things, and that really is not good structure.

<:l

""::J

16 ~ That's an area I'm not that familiar with, so I am not bound

oz

17

"-
:;

by

--

I

am

not

speaking

in

behalf

of

my

amendment,

but

I

am

1~ i speaking in behalf of whatever will simplify and clarify this,

19 whether it's in Paragraph VII or Paragraph VIII. I still think,

~u there is a need for clarification and simplification, and I

21 still like the word different" because I think it is clarifying.

"

CHAIRMAN CLARKE: We haven't heard anything from the

-.-"' clerk of the House who deals with this frequently also.

. 24 Jack, would you like to make a statement?

MR. ELLARD: I like the word "different." I think

p--_._---_._-- ----_ . _.__._._-- .__.__ __ ._~-it adds to it considerably.

2

Other than that, I think either way is all right;

3 leave it in VII or leave it in VIII, use the words "different 4 'procedure."

MR. CLARK: Mr. Chairman, the subconnnittee raised a

6 strong point I think of keeping this as a separate paragraph,

7 '1 and if there is a strong constitutional, substantive reason

for that I want to be in harmony with it. I certainly am not

9 trying to raise a conflict, but rather remove any.

10

MR. PARTHEMOS: I think the word "different" or

Czl

11 ~ "special" might actually add to a clarification, I would think

o

"-

~~ ...,~ i SV

l'~ ~"""' so, but I think I would retain it in Paragraph VIII because I

do think it deals with a separate subj ect.

14 ~

MR. PYLES: Would the word "alternative", an

I'"

1~ ~ alternative procedure --

,<

.:>

.. 16 ~, c

MR. PARTHEMOS: I would say "Special" or "differene'

2,..

17 :~ perhaps would be a better word, Chuck.

MR. SWEENEY: May I make a comment?

!9

Paragraph VIII is not supposed to be an exception to

Paragraph VII.

MR. HILL: It's not supposed to be. The committee 22 definitely wanted the three readings preserved, but only in

their entirety if they're general on the third reading at the 24 order of two-thirds of the house or the presiding officer.

MR. CLARK: General legislation, but not local

PAGE 69

legislation.

MR. SWEENEY: All legislation you have to have three

3 I readings, and Paragraph VIII is not supposed to be an exception to Paragraph VII in that regard.

'j

MR. CLARK: That was not my understanding.

MR. TIDWELL: Perhaps to put it in proper perspective, 7 I think the way that everybody is talking about here is that

by the special procedure for local legislation you're not by

l) any stretch of the imagination trying to say that whatever

]0 language is adopted that the General Assembly would be at

Cl

Z

11 ~ liberty to say they could have less than a constitutional

()

c.

w

:~.f.'YJtd'.

1) .-

~'"


maJ

or~ ty

to

pass

~ t.

You don't intend that, you would only

(( ~~~' Y-"~ -"!.\!'!'!'!. ~~ intend to be able to pass a local bill in one day, it still

- 14 ~~ takes three days in each house; that's what you're talking
<
J:
15 ~ about, and you're not saying a local bill doesn't have to be 16 I'~""n advertised as the next paragraph says, and I think it is those
z
<l
17 :~ type things you are not trying to provide any exceptions to.

CHAIRMAN CLARKE: What you're trying to do is

19 I authorize the General Assembly to find a simpler way of doing

20 I the constitutional things required to pass a local act.

21

MR. TIDWELL: That's right.

22

MR. PARTHEMOS: I see no problems with the present

23 ' wording of the provision myself. I would go along with the

word "different" or "special," but I see no problem. The

third reading does not in Paragraph VII applies to general

bills anyway, not local legislation.

2

I see no problem with it, Charlie.

MR. TIDWELL: I don't either, but I think it would be

4 helpful if the court ever reads this there be a general

) consensus that that's what you mean by this. Those three

Ii ,things that I just said, you're not authorizing a different

7 procedure, that has to be preserved.

8

MR. PARTHEMOS: It doesn't alter the requirement of

9 a constitutional majority, it doesn't alter the requirement of

10 readings, it just simply allows them to --

~~

"z

11 ...
0:

MR. TIDWELL: The bills have to be signed just like

f.

1'-) "~'"' all the others and all that sort of thing.

~r~ ~

t:lIAIRMAN CLARKE, It simply authorizes the General

14 i: Assembly to find a simpler means of doing what the constitution

r<

15 ~ requires them to do in order to pass a local act.

0>:
=>
16 o~

MR. PARTHEMOS: A more expeditious procedure for the

z

1'7

<

c:
00

enactment

of

local

legislation

is

what

it

allows

for.

Ii'

MR. HILL: I think adding the word "different" here

19 throws these other points into some question because -- you

20 know, I think it is either better to leave it out or maybe a
.')
special procedure.
11
CHAIRMAN CLARKE: Let's go ahead and try to get it. 23 I think we're down to the point we need to vote on this in 24 one fashion or the other.

We do have still the amendment which would place this

L~.

,_.

.

._. __, .,__, ~.

..

.

PAGE 71

~ back in~o Paragraph ~~~-~~~~~at~~~;~on still s~~~d~:--Is~ th~~-~l

i
2 :1 correct1

I:

3 11

MR. CLARK: Yes, sir.

4 IIII

CHAIRMAN CLARKE: All right. As many as favor that

:1
s II motion will signify by raising your right hand.

I

Ii

(A show of hands.)

CHAIRMAN CLARKE: All right. Those opposed.

Let's see. We had one for. Let's see the opposed

again.

10

(A show of hands.)

CHAIRMAN CLARKE: One, two, three, four, five, six,

seven, eight. Eight opposed.

Are there any other motions on Section V other than

Paragraphs III, IV, XI, XII, XIII and XIV?

15 ~

Hearing none, we will vote on the approval of

\9

<X ::>

16

l%I
:Z:;

Section

V with

the

exception

of

those

paragraphs.

As many as

Z

17

<>:
co

favor

its

approval

will

signify

by

raising

your

right

hand.

Jil

(A show of hands.)

19

CHAIRMAN CLARKE: Eleven.

20

Those opposed. None. Eleven to zero.

21

Let's go over then to

I think we now have a

22 revised draft for the next two sections. You will find they

23 i are unnumbered, and they were also unnumbered in the draft we

sent to you earlier. I'm not sure at the moment what the

revision is, but perhaps Mel can tell us in just a moment.

'.'

72

The new working draft is dated November 15, and for

the purpose of simplicity we will call this Section VI.

1'

MR. McWHORTER: Is that on page 11 where you are, Mr.

4 Chairman?

MR. HILL: Yes, that's right. It has been replaced

(, by this that's coming around to you. That is new.

7

MR. McWHORTER: I see.

CHAIRMAN CLARKE: We will call it Section VI and

9 Section VII just to have a label for it, and I think we

10 probably ought to start by having Mel explain to us what is
.,....
z
11 ~ different in the one that's being passed out and the one he
o,

,

12: mailed to us earlier.

@r,,j

MR. HILL: Yes. There really aren't too many changes

14 >;;;

The counsels staff and our staff and Tim Sweeney

:<x:
15 ~ were able to get together to really refine the language

:'";:'l

16

m
Z.
,~

somewhat

in

the

proposal

that was

sent

out

to

you,

and we

0z

<:

17

~ .xl

didn't

get

it

finished

in

time

to

send

it,

so

this

is

basically

I" just another revision to try to clarify, not to really change

19 substantively any of the language we sent to you earlier.

20

There is one addition, one substantive addition on

21 page 2 of this new draft relating to population acts and the

)' attempt by this subcommittee to deal with knotty problem of

,
..

_,'

population statutes, and this is one proposal, and this is

24 probably not in the form it's going to finally be approved,

25 it's our efforts to come to grips with this problem so far,

PAGE 73

and so I think we can probably just go through this, Mr.

') Chairman, one paragraph at a time.

CHAIRMAN CLARKE: In view of the fact there has been

.1 a new draft passed out to us this morning, I have some

hesitancy for us just to attempt to do it without some

explanations.

Ii 7 :i I,

Tim, you I assume were involved in the redrafting of

;.; this, so if you will, let me ask you to take it sort of

<) paragraph by paragraph, then we will come back and make our

10 motions.

lO

Z

11 ....
e:

MR. SWEENEY: There has been no change in Paragraph I.

oa.

u,

(~1Eo-1)\(=,~ i ,"

12 ~

In Paragraph II, in the leadin provision the change

'':::--~

~ was made from the language ''Without limitation of the powers

---

14 ~ granted under Paragraph I, the General Assembly shall have


1:

15

t h e .0
~l

powers,"

and

then

there

was

a

listing

of

specific

powers.

:':">

16 ~ u;

That has been changed to "The General Assembly shall

Cz>

17 :ii have the power to provide by law for," and then a similar

listing follows. The reason for that change in the leadin was 19 to make clear that what we were attempting to say is the

General Assembly did not directly have to implement restric-

21 tions upon land use but simply could establish the procedures

11
by law by which the restrictions could be imposed.

2.1

For example, it could establish the criteria for

24 imposing restrictions and authorize the Board of Natural

Resources, for example, to implement those procedures with

Ii respect to any particular piece of property, and that was the

2 same concept followed on all of the particular specifications

3 t; of the powers that follow that leadin paragraph.

,

i;

~

In terms of the specific powers listed, there was no

5 change in Subparagraph (1), there was no change in Subparagraph

6 (2) .

7

There is a change in Paragraph (3), it's designed

8 primary to enhance the concept there. That change begins on

9 line 23 of the existing draft. Line 23 of the existing draft

10 provides that the General Assembly in provid~ng for the
[I "~z participation in federal programs exercise to the extent and o Q. .~
@". . . i12 ~ manner necessary to effect such participation the powers of taxation and eminent domain and the zoning of property.

14 ~

For purposes of clarity and emphasis that was changed

:<
:I:
15 ~ to read that the General Assembly had the powers which may be

'"'";;;> 1() ~ exercised to the extent and in the manner necessary to effect
c, z: <
17 :ii such participation and compliance, to tax, to expend public

,
IX money, to condemn property, and to zone property. That was

19 for emphasis and not a substantive change.

20
t

Then there was no change in Paragraph (4).

Ii

21 !

There was an editorial change in Paragraph III in

11 the second sentence. I think they mean the same thing, but

23 the change was for the purpose of making it better reading.

24

In Paragraph IV, the last sentence of the existing

Paragraph IV was moved to a Subsection (c), and it was changed

,.

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

.... _.. -

!).\(j, 75

to read: "No special law relating to the rights or status of

2 private persons shall be enacted." That was designed essen-

tially to avoid any conflict with what are called compensation

4 resolutions adopted by the General Assembly.

5

Then a new Subparagraph (b) was added dealing with

11 i!~opulation bills.

In Paragraph V there is no change in Subparagraph (a).

8

There was a change in Subparagraph (b) which was

editorial in nature, just designed to make it read better.

lU

There were no other changes.

'.:J

Z

1!
"o"

CHAIRMAN CLARKE: Tim, let me ask you a question

:>.

w

,,,~~.,yl~i 12 ~'": before we move on. Let me look again, I'm not sure, I probably

(~))~~ ~ overlooked it -- I had understood that under the specific

'.- .'.. .-"/

14

~ powers in dealing with the question of zoning, et cetera, that

<
:I:

15 :~ we were going to have some language that would be a saver for ..r,.

J(,

~ aw

legislation

adopted

under

the

current

constitution.

l

<

i~.l :~

MR. SWEENEY: When we got into the session with Harry

I~ Finley we grew enamoured with our language and decided it wasn't

) ')
needed, but since I have drafted some language to preserve
20
those existing powers which is passed out in this sheet here.

21 I think that needs further study.

I' I

CHAIRMAN CLARKE: Well, I assume, then, you would

I

23
want to make a motion as to Section VI, but reserving certain

24
items in Section VI for additional study by your subcommittee;

is that correct?

,.

'r------~-----~---"~ --..'--------.------.-.-.--.-----------
II
MR. SWEENEY: That's correct.

2

CHAIRMAN CLARKE: Would you like to make a motion at

3 this time?

4

MR. SWEENEY: The motion is that Section VI be

5 approved subject to further study on the necessity for adding

6 language relating to the existing powers under Subparagraph

7 (2) of Article I, Section III, Paragraph I, and Paragraphs II

and III of Article IV, Section VIII as they now read.

The first deals with the power of the General

10 Assembly to provide for relocation assistance in connection

~

"z II ~with federally funded programs where private property is taken;
o
"-
~
12 ~ the next two deal with the regulation of billboards and the

~ ~ .._- power to zone property along federally aided highways. and

14 ; also deals with the power of the General Assembly to provide

'r<

15 ~ for the State's participation in intermodal transportation

"'x:

:;;J

IlJ

m
~ programs

of

the

federal

government.

C1

z

-

17

a: m

That language which has been reserved for further

18 ,study has been passed out on a separate sheet.

19

I also wish to reserve for further study Paragraph

20 IV(b) relating to population legislation, and Paragraph VI

21 relating to gratuities.

Y)

CHAIRMAN CLARKE: What's the problem with the

23 gratuities section that you feel needs additional study?

24

MR. SWEENEY: Essentially it's not with Subparagraph

2~ '(a) because I think the committee, the subcommittee was fairly
,
. <....----_._--.-------~~

PAGE 77

determined that that's the procedure that ought to be followed ) in dealing with exceptions to the gratuities prohibition.

~

The concern is with Subparagraph (b) and whether or

~ not that ought to be included where it is or in that language,

c.l

that sort of thing. It's a technical problem.

CHAIRMAN CLARKE: Again it's a saver provision is

7 ' what it amounts to.

8

MR. SWEENEY: It's a technical problem and not a

substantive problem.

I think the committee voted that all the existing

\j

z

11y

exceptions

to

the

gratuities

provision

ought

to

be

reserved.

.~)

"-

w

I:~ ~ The committee voted to utilize a new procedure in Paragraph

VI(a) to provide for future exceptions to the gratuities

provision, and my only reservation is to insure that

15 ,~ Subparagraph (b) does in fact preserve the existing exceptions.

;,.
~
11 j '.~,
'"
<
] 7 ,"' now.

CHAIRMAN CLARKE: All right, let's open the floor You have made your motion; is that correct?

Is there a second to the motion?

SENATOR BROWN: Seconded.

2U

CHAIRMAN CLARKE: There is a second. Let's open the

floor for discussion of Section VI. Of course it's an
,'
unnumbered section, I'm just calling it Section VI for a matter

of convenience. We can have questions or possible motions to

amend.

MR. McWHORTER: I have a question, Mr. Sweeney, if I

rr

II

I

i'
l

may.

PACE 78

Tim, under gratuities the word "corporation" is left

3 out. Do you construe a private person to include a 4 corporation?

MR. SWEENEY: Yes, sir.

MR. McWHORTER: A further question. What about '7 j political entities such as counties and cities?

MR. SWEENEY: This would not deal with that.

MR. McWHORTER: You could still make a gift, the

10 State could make a gift to a county or a city?

11 ;:
'o"

MR. SWEENEY: That's correct.

"-

12 :
(~~ (/(;~~ r~ ~I persons.

CHAIRMAN CLARKE:

This prohibits only to private

14 ;
>-

MR. McWHORTER: I understand it.

':J

r

"':-";'

CHAIRMAN CLARKE: Any other discussion or questions

It)

~ :,,~

or

motions?

L

<

17 "

Some of these issues, of course, will be referred back

to the subcommittee to be brought back at the next meeting of

19 the full committee.

20

Well. hearing no further comments, are you ready to

21 vote?

As many as favor the adoption of, approval of

Section VI with the certain provisions reserved for further 24 study will signify by raising your right hand.

MR. TIDWELL: Harold. does that include the adoption

of that Subparagraph (a) of Paragraph VI, gratuities?

.)

MR. SWEENEY: Yes .

,l

MR. TIDWELL: You're all satisfied that that's a good

4 public policy?

5

CHAIRMAN CLARKE: I think there is a very firm

h ! feeling in the subcommittee in that connection.

7

MR. TIDWELL: If you will indulge this private

individual, this private person a comment.

')

CHAIRMAN CLARKE: This private person may comment.

10

MR. TIDWELL: Not as executive counsel.

"z

11 ~'
'o"

I assume that's going to be adopted because the

,)

"
)~

(~:-~)~~. ~ V

l~:'. subcommittee feels very strongly about it, but it's been my

observation in the years that I've been here that the

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

I

J4: prohibition against gratuities has well served the State, and

<

15 ~ I am very frightened that you're going to unlock the door to

.1

16

'~
let

the

General

Assembly

and

the

Governor

give

something

away,

l

and I see that you have written in the strongest safeguard

.'1',;) you can, a three-fourths vote, absolute veto power, but I

have seen a General Assembly and a Governor that would bow to

unbelievable pressures to do something for somebody, and you 21 have given that mechanism right here, and I think this full

committee ought to think about that.

I know that there are other folks that are observing
.'-1
what's being done here who are equally upset, and I'm not

talking about my boss, he doesn't know anything about it, but

f~I';,' 80

folks that have sat and tried to not create the situation where

under what seems to be popular at the moment you set a

, precedent for granting gratuities, however deserving they

4 , might be, and that is just a private comment from this citizen.

5

CHAIRMAN CLARKE: Okay. Are there any other comments

in that connection?

Ms. Rystrom?

MS. RYSTROM: This doesn't address the point just

l) made, but I note in looking at it we did not use that language

1(1 we have otherwise used consistently about the members to which

CJ I.
1i ~ each house is entitled, we said elected. We might want to make

,~J;Y.!4,

..\..
~
J ,"
:. this conform.

,i\(<.'L~.W~/"')\\If-cm--,,-,,.

~
'7:

CHAIRMAN CLARKE: I think that is a matter of confir-

"'"------_"./1

J4 7 rr~tion in style, and we can authorize Mel and his staff to take

1<; ,~, care of that for us. " MR. McWHORTER: Mr. Chairman, there's a lot of things

I like about this. I'm worried if a three-fourths vote

wouldn't preclude a pork barrel, if you vote for mine I'll vote
]')
for yours, we'll make thirty, forty donations to counties, ::0 cities and so forth.
_!_ 1J
I mean I've seen the process, you know, you get right
22 buddy-buddy sometimes, and you get back to what happens in

Congress.

CHAIRMAN CLARKE: I might mention this. I think the
).
subcommittee's feeling was as a part of the mandate of the

PAGE 81

committee was to come out with an organic document as opposed

! to a statutory type document, and I think the subcommittee

~ felt that unless some mechanism was established allowing

1 somebody to put the little specific items in by statute rather

than add them all into the constitution that you're going

o '. right back to where you were with just a proliferation of

/ amendments, and~me being adopted and some ratified and some

~ not being ratified, and those that are ratified just adding to

<) the number of pages, the number of words you've got in the

111 constitution, so it seems to me the issue the committee ought

:""J

]J ~ to decide is whether or not it's necessary to provide additional

o

0w

_.

1Z ~ protection to the point of possibly endangering the consistency

I~~'Y~'

~

((-'.'. \)r=.!.". \ \~J~:~;',\~./ J . ~~ of what our mandate is really.

'" '':.. __.'';." /

J

1--1 ,..

MR. SWEENEY: If I could make a comment to clarify

~

~

<:

I:

15

"."
.L

that

.

Privately I agree with Mr. Tidwell whose comments I

:J

ill ~ think are well taken.

o,.

<

17 ::;

The committee's concern I think was not so much with

IX the prohibition which they all thought was appropriate, the

19 I committee's concern was that this provision has generated so
i
20 : much on the ballot, that that was one of the reasons for the

21 ! mandate, to eliminate the requirement for that on the ballot.

One of the alternatives considered -- well, there _'3 were three alternatives considered -- keep the existing

provision, eliminate it entirely or use some mechanism which

would permit it, and of the mechanism which would permit it

--- _- ...

.~----

PAGE 82

one was this one on statute adopted by three-fourths of the

General Assembly; the other was to provide for adoption by

3 the General Assembly subject to a referendum by the people,

4 and the committee felt if you were simply going to go to a

referendum by the people you were not changing our existing

provision, and the result was this paragraph .

..,

I

MR. HARRIS: Isn't this really stronger or more

R [, protection to a certain degree than exists now from amendments

which have come about in that it is a three-fourths vote and

10 subject to an absolute veto by the Governor, whereas a

lJ ~,. proposed constitutional amendment the Governor has no say-so.

'.'
'~sv~ 12 ~~

MR. SWEENEY: I might mention that because of that

((~~~r~~ ~ you could have a gratuities proposal that would not satisfy

\

\'. :- ~-

/'

-

/

/

j

"

-- 14 ';: this but would obtain the sufficient maj ority to go to a

1:

15

'"
'-!J

constitutional

amenpment

and be

ratified.

'"::J

.4"1

ll) Z a~

MR. TIDWELL: Mr. Chairman, I just want to point out

z

17 :~ again the magnitude of some of the things we're talking about

lK , here.

19

All of you will remember last session we were trying

20 I to find, the General Assembly and the Governor, a an acceptable

and legal way to send $75 million back to property owners, and
.., )
the gratuities section prohibited some irresponsible proposals

that werebeing considered.

If it had not beenfDr the gratuities section, I 2'5 guarantee you that that 75 million would have been sent back

PAGE 83

in a way different from the way it was, so we're not talking

about a few dollars, and there will be other proposals in the

future that exceed $75 million, but we're talking about a lot

~ of money right here and the mechanism to give it away. That's ,!
5 what a gratuity is, is giving it away.

I)

CHAIRMAN CLARKE: Any further discussion?

MR. WALLING: Charlie is speaking to the merits, and

x Tim is talking procedure. Can you speak to the merits with () some concrete situations, Tim?

10

MR. SWEENEY: I think the Senator pointed out while

uz
]] ~:we were studying this that the gratuities section has in o <>.
!.2 ,w~,. essence saved the State a lot of money every session.

In terms of the merits, I agree one hundred percent
i
;: with Mr. Tidwell. I do not agree with the committee proposal,

1~ :~ but that is the committee proposal and I think it's in a sense

\6 ~"" a good compromise. I think three-fourths is going to be hard
z <
\' :; to get, and I think the joint requirement of three-fourths

!K plus the approval of the Governor is going to be doubly hard.

1" !

CHAIRMAN CLARKE: Ms. Rystrom.

MS. RYSTROM: I also disagree with the recommendation ". 1 of the subcommittee, but I was fairly convinced by people
11
saying it would be awfully hard to get 135 votes in the house

and 42 votes in the Senate for something that would be --

Senator Tysinger is shaking his head.

Those of us on the subcommittee who were opposed to

-. ---. ----- 'r-~---- -,-----,,--~.-~--

PACE 84

1 lithe recommendation are delighted probably to have this issue i!

2 reopened if the rest of the committee agrees with that minority

.3 of the subcommittee .

4

CHAIRMAN CLARKE: Mr. Edwards.

MR. EDWARDS: Let me ask Tim a question if I might

b on the way this is worded. It says the General Assembly shall

7 not do this except pursuant to law of general application

serving the public interest adopted by the General Assembly.

You're talking there, Tim, about the general law which is

.1...."\) adopted saying how you do gratuities, or are you talking about
oz
11 ~ a general law on each specific gratuity?

MR. SWEENEY: No, a general law.

MR. EDWARDS: A general law doing what now, saying

1S ~J

MR. SWEENEY: Saying how you do it.

"a'

MR. EDWARDS: You wouldn't have a separate law on

Z.

<:

17 :i: each individual gratuity situation, you adopt a general law and

that would set up the procedure about how you granted a

19 gratuity; is that what you're talking about?

20

MR. S~~ENEY: Well, each concept of a gratuity.

For example, it's not contemplated the General Assembly would

authorize or adopt a statute which would simply authorize

gratuities, it would have to adopt a concept, adopt a general

bill, for example, providing for tax relief, and the general

bill would establish the conditions upon which that tax relief

1)..\GE 85

would be given.

2

And if there were another concept, for example,

3 additional retirement benefits for persons already retired from

public service, the bill would require a three-fourths vote

and then the general bill would establish the conditions upon

6 , which the additional retirement benefits would be granted, you

7 see what I mean.

MR. EDWARDS: So you're not talking about adopting one

9 : general law?

lO

MR. SWEENEY: No.

MR. EDWARDS: You're talking about separa~e situations
c
each so-called gratuity? .

MR. SWEENEY: That's correct.

SENATOR TYSINGER: There's no barrier from it, from

1.~ ~ adopting a general law.

:'">

I() '~
,"
(,

MR. SWEENEY: I'm sorry.

z

SENATOR TYSINGER: I don't see any barrier in here

that would prevent you from adopting a general law that takes

I' care of gratuities from now on .

.20

MR. McWHORTER: In other words, just an enabling act.

",':'.1.

MR. EDWARDS: That's right.

MS. RYSTROM: That sure isn't the way the committee
23
thought about it.
,"
_.~
CHAIRMAN CLARKE: Yes, Mr. Clark.

MR. CLARK: It seems to me what we were talking about

was the assignment of this whole committee to simplify this

constitution and simplify the ballot, and as I recall our

discussion and argument was we put our faith in the General

4 Assembly, the people who are elected by the people of the

state on these matters, and we created the three-fourths and

(-, the veto, we had to put our faith somewhere or just clutter

..,
!

the ballot, and I think that's what we are faced with in making

8 I the cecis ion here.

i)

CHAIRMAN CLARKE: I think that's the decision we have

l\l to make, which is the more important of the two issues.

~)

L

1I _.

MR. WALLING: Mr. Chairman, we do have a conflict in

interpretation here which has not been resolved as to whether a

general law would be passed once and then after that there

could be passed subsequent gratuities by a majority vote, or
<:
Ie
15 '~whether it takes a three-fourths vote on every gratuity, and 'D
OJ
!, :~ Mr. Sweeney I think has said one thing, and I think he moved
L
17 ~ back, but he does say a law of general application rather than

MR. SWEENEY: It also requires the General Assembly

1'J make a public interest determination in that particular context,

20 and I think the courts could construe this language to require 21 the establishment of -- the enactment of a general bill which

for a particular purpose the General Assembly makes the

determination of public interest, and we're not simply

permitting the General Assembly to say "Here's how we're going

to authorize gratuities henceforth." There would be no public

PAGE 87

interest determination in that context. MR. WALLING: It would take a three-fourths vote for

3 both of those? I take it it would take a three-fourths vote

both on the enabling act and the specific act?

MR. SWEENEY: There would be -- The concept I think

6 expressed by the provision is that there will be a general law

~ which establishes the mechanism for, for example, granting

K additional retirement benefits to persons already retired from

,) state government. The mechanism for doing that would be

10 established by a general law, funds would be appropriated to

'z" 11 ~ do that; the general law establishing the mechanism would

':J
.j.

,...~

~~~R J~ ~ require a three-fourths vote, the appropriations process would

I\/I\VIS"~_=~. ~=,-~/~)C-"-,-n-.,l-fD

;::
?;

not

requl re

a

three-fourths

vote,

and

the

determination of

....-.-.---./''

I
l~ "~ which individual satisfies that would not be made by the

'r.
!5~: General Assembly but would be made by the persons administering

>

.'

1()

..;x\
z, the

retirement

system .

2

<

! 7 :;

MS. RYSTROM: Tim, the way you described that, do you

Ix :' mean anything applied to additional benefits for retired

19 persons would be covered by that one bill, because I wasn't

20 picturing that way when we dealt with it in the committee.

21

I was assuming that school teachers, for example, in

1 '~,
the amendment that we passed before, that that would be one,

if retired firemen or I don't know what else came in, that would

be another, that there would be nothing that even resembled

anything likemabling legislation except that, of course, the

PACE 88 appropriations process would be different, be separate, that , that would be part of the budget procedure, and we weren't 3 saying that the budget would suddenly become subject to this , three-quarters majority, but anything short of that I thought ) would be dealt with individually.
MR. SWEENEY: I think you would have, to deal with the ; statutory authorization, you could not combine all the retireK mentsystems into one bill; you would have to deal with the '} Teachers Retirement System, the State Employees Retirement 10 System, and each of those would have to be dealt with

MS. RYSTROM: Perhaps it would be possible to alter

this paragraph so that it's perfectly clear. That's a question

we didn't deal with at all.

15 "
<"::1

CHAIRMAN CLARK: Herb.

::>

II) ~

REPRESENTATIVE JONES: Are you in fact saying that one

a

'[

<.;

1'7 ~ general law would then authorize you to possibly deal with the

Teachers Retirement System every year without coming back to Jt) any other general law; one general law would allow you to do

anything then satutori1y, would it not?

"

MR. SWEENEY: No, the statute cannot be amended

except upon following this procedure. In other words, getting

it down to a specific situation, suppose the General Assembly

wanted to provide for an increase of ten percent in the

retirement benefits of the persons who had already retired und~r

PACE 89

the Teachers Retirement System. They would have to adopt a

general law authorizing that specific gratuity; the law would

-' be implemented by the persons administering the retirement

,
-+

system.

If the General Assembly wanted thereafter to increase it to twenty percent, then this procedure would come back into

7 play again. REPRESENTATIVE JONES: You would have to go back
9 through a new general law?

MR. SWEENEY: That's correct.

II -

MS. RYSTROM: This problem about the general

/,),,::2.. ~>. ~.\

application, is it a problem with those words? If we

;: i II r!l:,,o.::\~b--'='~ d. omitted the words "a law of general application" in line 13

J+ ~; so that it says "except pursuant to serving the public
<:
1:
, interest --" Well, you would have to put something else in
;;)
;c, '~"' there-- When we ended up with that law of general application z <
7;: we didn't intend the meaning that's being read into it I don't

believe, and I wasn't trying to change it, and it occurred to

me perhaps it could just be omitted except I can't complete

the sentence. Someone else might be able to.

2J

MR. HARRIS: I believe the words "general application"

in that phrase as it's used in lawsof general application is to

prohibit a private bill for the benefit of Harold Clarke.

MR. EDWARDS: I just want to take what Robin said

one step further. Suppose we got a bunch of Georgia people in

PA(~E 90 the General Assembly who decided they wanted to have a

~ gratuity to the athletic association to help recruit some good

3 football players.

A VOICE: We need that.

5

MR. EDWARDS: That would be all right, but I don't

6 know how far we could carry this thing or what you call

general application. That's always been a little puzzle to me,

but I think you could say all athletic programs in the

'i university system could certainly be considered a law of

!O general application.

! l l,y

Is that the sort of stuff we're talking about, or

.,:>

~

MR. SWEENEY: That would be -MR. EDWARDS: You could do that, right? CHAIRMAN CLARKE: I think we probably ought to think
:";1;
about right where we are in our discussion too. As far as I
i:l 'Z:
<
J7 ~ can see, we're just talking about it in general terms, we don't have any motions pending. SENATOR TYSINGER: Mr. Chairman, I move this be sent
20, back to the cOlImlittee for further study.
CHAIRMAN CLARKE: We do have a motion. Is there a second to the motion?
MR. PARTHEMOS: I second the motion, Mr. Chairman. I understood in the first place this matter was to
be given further study.

PAGE 91

I .I.

CHAIRMAN CLARKE: That was a second.

All right, there is a motion. Yes?

MS. RYSTROM: I think the subcommittee needs to know,

4 assuming that this motion passes, what its responsibility is. 5 Is it to rethink entirely, should this be a matter for amend:1 'ment of the constitution, or should it be done some other way?

7

CHAIRMAN CLARKE: I was going to ask for a straw vote

on something that might be of some help to the subcommittee () in its deliberations.

It seems to me, if you remember a little earlier Tim "7. 11 ~ outlined there were several alternatives available to us.
(l

((,~";~))!-=."~ ~ /~-1

J.: ~

One would be to follow some procedure of this sort,



another just to turn the General Assembly loose' and allow them

" .......... _. _,..... I

!

i4 ;~ to make gratuities, another would have the same restraints that

<

T

is =:.~., we have in the present constitution .

if) ~
aw

I think it might be well to get -- I don't think

.z<

17 :; anybody here is in favor of just being silent, turning them

loose altogether, so lets talk about the other two. Those

19 I were the three you mentioned?

20

MR. SWEENEY: Well, leaving it like it is, something

along this concept, ahigher majority or a referendum.

CHAIRMAN CLARKE; Le t me perhap s see jus t as a 23 preliminary show of hands, and this would not be for the

purpose of binding anybody, nor would it be for the purpose of

writing anything into the draft, but as a guide to the General

PACE 92

: Assembly as to the sentiments with regard to going back to the

provision as it is in the present constitution which prohibits

gratuities and then requires a constitutional amendment for

,I each gratuity that comes along.

s

How many of you would prefer to do it that way?

SENATOR TYSINGER: To retain it?

CHAIRMAN CLARKE: To retain it as it is in the

~ present constitution.

')

REPRESENTATIVE JONES: When a gratuity comes up, you

1{j put it to the people is what you're saying.

.J Z
It >-. ::r;
:) l.
~

CHAIRMAN CLARKE: That's right. One, two, three, four, five.

MR. PARTHEMOS: I did want to ask one question, Mr.

Chairman. The constitution does contain provisions presently

'<":
1:
J5 L~ for granting of certain kinds of gratuities, does it not, (9

"J 1{) .~ except in
(.I
7.

17 ~

Is there not another alternative where you can simply

specify the nature of the gratuities that can be --7

19

CHAIRMAN CLARKE: Under the present constitution, and

=0 some of you experts correct me where I may be wrong, as I

21 understand it there is a prohibition as to the granting of

gratuities, and in order to grant one it is necessary to amend
,,
_.\ the constitution.

~,.l

MS. RYSTROM: But there are a list of exceptions

after that.

CHAIRMAN CLARKE: But those exceptions are simply

2 amendments which have come through the years.

MR. PARTHEMOS: It's not possible, in other words, to

t list the nature of the gratuities that should be authorized?

I'm looking for another alternative there where you expressly

put into the constitution the general types of gratuities that

7 caIl be.

CHAIRMAN CLARKE: We have explored that and mainly

through the idea of perhaps coming up with a new definition of

the word gratuity, saying that only these things fit and,

,)
7.
! I ~: frankly, we were not successful in our attempt to do that. ;-,

12 ~" Is that correct?

,<7v Tl';,

"

'/,\\\

\~~'L-'ii)r--- ~ 1\ i. "" ...

Z. 1 \ 1;IIII1IHra

MR. SWEENEY: It 's b impossl i e.

\".',:~--~-=~.:,>/,)

},] ''.0-

CHAIRMAN CLARKE: If some other group would like to

<:

15 ~ take a shot at it, we would welcome that .

.:>

!u ~

The present constitution just says you cannot have

1";: them, then it lists exceptions, and those exceptions have come

through the years as amendments to the constitution.

MR. WALLING: Another possibility, Mr. Chairman,

would be a referendum which would require the input of the 21 Governor and would not clutter the constitution and still

require that the people --

CHAIRMAN CLARKE: Let me mention that I think Mr.

Sweeney's idea and the thing that he favored was to provide
',.;:
that any bill providing for a gratuity would have to be

J I submitted to the people at a general election and ratified by

2 a vote of the people, but it would not become part of the

constitution, but it would require ratification at a general

4 election. That's another alternative.

5

Now, how many of you would favor that approach?

MR. SWEENEY: The concern -- Let me just present

7 this. The concern with that concept was that unless the vote

K ' required to adopt such a bill were increased to at least

') two-thirds that in essence the ballot would be flooded by those

1(1 types of bills.

11 -

MR. TIDWELL: That's the easiest way to abdicate your

..:;::)"

Q.

w

(I(~~~Y~~Vr\'~'!J 2'

~. responsibility
:~ to pass a bill

is to pass a bill and let and let the Governor veto

the it.

people

decide,

or

'~~I

14 ,>--

If you don't think that goes on, I'll tell you about

15 .tl Snow White and the Seven Dwarfs.

~..:)

::.t.

::>

j,/) ~
I~

MR. McWHORTER: Mr. Chairman, further to what he

Cl

7:

<l

t'7 ~ says, I think Jack might agree -- Herb, listen -- it's much

Ii) easier to pass a constitutional amendment through the General

19 Assembly than it is to pass a bill contingent upon the majority

20 vote for this reason, let the people decide it, let the people

21 decide it. It's just like mothers, if you just vote for them

you're for them.

MR. WALLING: Mr. Chairman, when we're talking about

the Governor having a role to play it is not in a constitutional

amendment. I don't think now is the time to debate it, but I

PAGE 95

don't think by silence we would want to acquiesce in everything

from what Charlie has said, that the referendum is an abdica-

tion of responsibility. I think it depends --

MR. TIDWELL: I say it's an easy way.

MR. WALLING: It depends on the people. It may be a

(-, ,very responsible device, it depends on how it's used. I

i would like to see the subcommittee explore that.

Ct~IRMAN CLARKE: Perhaps instead of taking straw

') ,votes, after I have listened around, what I'm going to ask all

10 of you members of the COmIT!ittee to do is to communicate your

vz

I t ~ sentiments to Tim or the other members of the subcommittee in
o,.

w ., .::t.
/~'i-~~(/~ J ~ ~ order to let them come back with something else that hopefully

/ j - - j 1 /
(\(~.-i=".~.

c<""".::~!-- ~w~ 11 sat~. sf y t h em as well as. the members of the full committee.

'...... ~""

14 r
l~

I think it would be a mistake for them to just go off

-<

T

15 :~ and come back with something not knowing what you folks really

'::.r~.

::;

:::.'

16 ;; would like to see in there.

"z

<'

1"] :~;

MR. CLARK: Mr. Chairman, just to underscore it, the

I.> bottom line issue it seems to me is whether it shall go to the

I') people, every expenditure that isn't legislatively approved,

or shall we look to the General Assembly to do this.

It's a ballot issue. This is the question whether

we're going to put everyone of these expenditures on the

ballot, whether it's general, whether it's not a constitutional

issue but is still a ballot issue and we're saying the people

have the wisdom rather than the General Assembly. It seems to

me that's the guidance that we need.

PAGE 96

2

MR. SWEENEY: That's the issue.

.'

MR. HILL: The committee can't hardly proceed without

.+ knowing how this committee feels on that issue.

5

CHAIRMAN CLARKE: That's right. Perhaps we can take

a straw vote to this extent: As many of you as favor some sort

of vote by the people on all gratuities will raise your right

hand.

q

I'm not seeing what I have been hearing.

lU

(Laughter.)

<:!

.11 ~ o0:

CHAIRMAN CLARKE: Let's turn it around and go the

w

~r3'\ C"T~ ~12 : other way. As many of you as favor the idea of allowing the
~-j)) '~: passage of bills granting gratuities without any vote by the -,,/'

i4 ;.. people raise your right hand. ~ <: :z:

,"

(A show of hands.)

0:

j

16 ~
wa

CHAIRMAN CLARKE: All right. We have two.

Z

Now let's reverse that proposition and say that as

IX many of you as favor, would oppose -- as many of you as would

oppose the passage of bills granting gratuities without the

vote of the people, would you please raise your hand.

'I

21

(A show of hands.)

CHAIRMAN CLARKE: One, two, three, four, five, six,

seven, eight. We seem to have eight who favor some vote by

the people. We seem to only have two who oppose some vote by

the people.

I'AI;E 97

Barbara?

MS. RYSTROM: That sounded so logical, but it doesn't, J ' quite get at it because the real thing was the three a1terna-
tives really didn't address the problem.

5

For example, I do not favor allowing the legislature

!) to do it, but if my choice is only between the referendum

!I routine and allowing the legislature with a large majority

~ I'll choose the legislature.

CHAIRMAN CLARKE: Nothing we have done here has bound

10 anybody on the committee; it's advisory only to the subcommitte~.

MS. RYSTROM: As a member of the subcommittee I'm

J.~ ~"~' still not sure I know how we can do the will of this committee.

, Ie, ",',',i\!f')\,~~,~~ ~

"\ \1. l.~~,) /

~

/1

"'

CHAIRMAN CLARKE: I can only ask that you find an

14

>-
,~ ,,

opportunity

to

discuss

it with

the

other

people

here

because

15 ~ it's a complex issue and I doubt we can take enough votes to

"'::1

]() ~ really get an absolute guidance to have a draft.

Cl

L

<

II ~

Now, the motion was it be sent back to the sub-

committee for further study. It seems to me there really is

not even any necessity for a vote on that because I believe we

have pretty much agreed among ourselves that is a necessity.

21

Now we have a motion to adopt Section VI except for

,,
those things which will require some additional study.

Is there any further discussion on that motion?

All right. Hearing none, as many as favor the approval of Section VI with the exception of those paragraphs

PAGE 98

raise your right hand.

One, two, three, four, five, six, seven, eight,

3 nine, ten, eleven. It is unanimous.

4

It is 12:30. Perhaps we should break for lunch.

C"
"

Would an hour suit everybody all right?

We will come back at 1:30, and perhaps we can move '7 on right quickly after that.

(Whereupon, at 12:30 p.m. the meeting was recessed,

9 to reconvene at 1:30 p.m. in the same place.)

10

AFTERNOON SESSION

,z-'

Ii;::

CHAIRMAN CLARKE: Ladies and gentlemen, let's see if

,:)

.,:,..

~::: we can't get back at it, and I believe we may be able to

Sfinish right quickly this afternoon.

As I recall, we had completed the section which

1<, ~ deals with Section VI, and we would now go to the section which

':":,
!b has ~Ifl no number but which I have designated as Section VII and

7

17

"
:;

deals

with

impeachments.

is

As I also recall, there have been no changes in this

J9 since the last full committee meeting. Is that right, Tim?

20

MR. SWEENEY: Thats correct.

21

CHAIRMAN CLARKE: Would you like to make a motion as

to Section VII?

.....,

_. __'1

MR. SWEENEY: I would make a'motion that Section VII,

as it appears be adopted.

( Motion seconded.)

PAGE 99

CHAIRMAN CLARKE: There is a motion and a second for the approval of Section VII of the Sweeney draft.

3

Any discussion, questions or motions?

1

MS. RYSTROM: You're going to love this. Did we

.5 decide we wanted it two-thirds of the members present at the

b bottom of page 13, or is this one we just failed to go back to

I the type of description of which you needed so many?

Could that one, for example, be two-thirds of the

q members of the --

iO

MR. McWHORTER: That's a question I had too.

"z

II ~ u:

CHAIRMAN CLARKE: I think that is a very real

difference, and it's a difference that addresses itself to

the committee as to whether they want -- this would be really

two-thirds of a quorum or the members present.

1:

[5 .~

MR. McWHORTER: That's the way it is now.

l!) ~.
,~
'z"
<.
:"7 ,2 correct?

CHAIRMAN CLARKE:

That's the present law; is that

MS. RYSTROM; I believe we discused it at the sub-

committee, and I don't remember -- did we actually decide this? MR. HENRY: You decided I believe you didn't want to

allow someone to have a kind of a back door veto by not showing

up.
,, .'

CHAIRMAN CLARKE: I remember that discussion, yes.

MS. RYSTROM: I know I didn't, but I think the subcommittee did.

PAGE 100

Perhaps what I should just be doing is calling that 2 to everyone's attention l then 1 that it's two-thirds of a ~ quorum or those present.

CHAIRMAN CLARKE: Of those present 1 right.

Any other discussion regarding the section?

Are you ready to vote?

We had a motion. Was there a second? I believe there

was.

MR. PYLES: Seconded.

10

Cl~IRMAN CLARKE: Dr. Pyles seconded. As many as

favor the approval of Section VII will raise your right hand.

(A show of hands.)

CHAIRMAN CLARKE: Eight voted aye. It is unanimous

of those present.

Thank you l Tim.

:::J

j (l ~ w a

We will now move over into what is listed on your

Z

<:

!;; ~ draft as being Section IX. Of course you understand all of

these will be numbered appropriately when we complete our work. 19 This deals with insurance regulation.

This was a subject matter dealt with by the sub-
1<
committee chaired by Bob Walling. Bob l do you have a motion
in connection with Section IX?

MR. WALLING: Yes. I so move .
.'1
CHAIRMAN CLARKE: There is a motion that it be
approved. Is there a second?

PAGE 101

(Motion seconded.)

CHAIRMAN CLARKE: I have a second.

Are there any questions, motions or discussion?

MR. McWHORTER: Are we changing Comptroller General

5 to Insurance Commissioner or not?

MR. HILL: The committee on Article V is recommending

that position not be elected, an elected executive officer and

that their recommendation the name should be changed to

Commissioner of Insurance, so really the other committee's

10 recommendation to you is that the name be changed to Commission~r
i
of Insurance.

12 .J

",,~?V~!.

,_

//U'" ",." 'r--'- I, I J',-", .. 'I' \ C'I""~lfO_ Z
\ \",' / i,
<_._ /1

CI~IRMAN CLARKE: You have heard the comment. Let's see, Paragraph II. provides "Issuance of

licenses. Insurance licenses shall be issued by the Comptroller

15 ) General as required by law."

There has been a suggestion that that be changed to

1

-/ !

Commissioner of Insurance.

is
What is the pleasure of the committee?
I 1I
MR. TIDWELL: Mr. Chairman, I might point out that ifi

the other committee's recommendation holds, that is he will not
21
be an elected constitutional officer, they would effectuate

that by just deleting, so this will be the only place that his

name does appear.

CHAIRMAN CLARKE: So to be consistent with what they

may do you would really be as well off not to have the

-. -..--.--..--.----.--.. r--------.-.~---
11 paragraph at all; is that correct?

PAGE 102

2j

MR. TIDWELL: No. That would still be permissible

I because he will be a statutory officer; he just won't be a

4 constitutional officer.

CHAIRMAN CLARKE: You could say "Insurance licenses

6 I shall be issued as required by law," without saying exactly who

7 it was. That would be a possibility. I'm not suggesting that

8 : necessarily.

MR. TIDWELL: There's a reason for it to be in here

10 like it is.

11 ...
o0;

CHAIRMAN CLARKE: I understand that. It might be well

I.e

f.@)~~ ~.'12 "~' to have some explanation.

r---' \ IC1G:J I e,""",. 2

MR. WALLING: Well, I covered it last time.

This is

....- 1/

14 :: a curio, there are a lot of curios in the Georgia Constitution.

1:
15 ~ This deals with legislative powers, and if it's reduced to what .,;
.:J
II, ~ we're talking about it probably ought to be put back over in
l'
<
J! ';; the legislative powers section, but right now it deals not only

lis with legislative powers, it also deals with a constitutional

19 officer and establishes his power. That's the reason. It's a

20 curio.

21

MR. TIDWELL: The point I was making, if you concur

that Insurance Commissioner is more descriptive of what the

Comptroller General presently does, then you probably ought to

change it here. If you don't, just leave it Comptroller

General.

-, PAGE 103
.. " .. _-----._-
MR. SWEENEY: Isn't it bad drafting form to refer to I i i
~ a statutory officer or department in the constitution?

MR. HILL: Probably so. This was written --

MR. TIDWELL: There are political considerations why

this is in here at all so, you know, I think that Bob did tell

6 you why. I think everybody understands.

7

CHAIRMAN CLARKE: Let me ask Mr. Harris a question.

Is this not a matter that if the other committee

determines to make the other change and takes the Comptroller

10 General out of the constitution, and if that were to be

'.".
lJ ~ approved by the Select Committee, couldn't they very easily o .a....

/,Z~\,~~,'il.E-:",\:\~JVi\~'

I::
r,-..-"-"-

:
.;:
g,:;

j

u

s

t

make

these two compatible MR. HARRIS: Yes.

with

one

another?

\"

/

'~l

','~--~~;", / . i

14 ....

CHAIRMAN CLARKE: I think we can do it either way.

;1",
<:

1.' The .,~\ only thing it's going to --

~

.:0

16 2'"

HR. HARRIS: They may leave the office as a

constitutionally elected office but change it to Commissioner

of Insurance. In that event this would appropriately be

changed to reflect that situation.

CHAIRMAN CLARKE: What is the pleasure of the

committee? Is there a motion?

If there is none, of course, it just stays as is.

Hearing none, is there any other discussion about

any other partof this particular section, Section IX?

Are you ready to vote, then? As many as favor the

,-,-------------- ---- ---.. ---- --- ---------- ----- ---------

I'A_GE

approval of Section IX as it appears in the draft of the

104

Walling subcommittee signify by raising your right hand.

3

(A show of hands.)

CHAIRMAN CLARKE: One, two, three, four, five, six,

5 seven. Seven.

MR. SWEENEY: Seven-one.

7

CHAI~~ CLARKE: I'm sorry. Those opposed? One.

,~ Seven-one.

All right. Then that moves us on to Section X. I

think there is a necessity for some explanation in connection

z~

II ~ with this section because it is different from the manner in

o

;>.

~~I

(~(~ <._'. ~ c.v ~'" d
~~

12 :o_ -! which it was reported to you at the last meeting of the full :': committee. I

14 >-

Mr. Walling, would you please do the honors?

<

J:

15 ~.}

MR. WALLING: We did spend considerable time

~

::>

1() "L' explaining what had been done with regard to Section IX and

C

Z

17

,<'":
OJ

the

questions

which

were

still

before

the

committee.

Our

J~ explanation dealt with the form and also the substance.

19

For example. the budget report. The proposal we

20 presented to you last time provided the budget report. that is

~ 1 the revenue estimate be amended only by the Governor and not
,1
the General Assembly. We went on through and had another

-)-'' meeting following our last meeting of this committee, and

24 during the course of that meeting the Attorney General

conveyed to us as forcibly as could be conveyed that in his

PAGE 105

opinion it would be most unwise to make any change at all,

and that included even changes of form, and that was very

emphatically stated by him.
As a matter of fact, there was nothing else that
seemed to concern him as much with regard to what the
I'
(; Ii constitutional revision committees are doing as much as 7 Section X, appropriations. That's where the money is, that's
what most of it is about I suppose, and that being the case

it's understandable his feeling, but his judgment being what it

)1) is, and even though some may have some doubt about the

it ~: correctness of it, nevertheless, I think out of respect for
,.;;:~
1.~ ; his office and his judgment we deferred to that, and the

~ decision of the committee was to make no change in Secoon X 1,~~ ~ as it presently appears in the constitution, with one exception

IS .~ and that's the paragraph dealing with bonds which was removed

:-:: :>
1"~I '~~~ from the appropriations section to elsewhere.

1,

i 7 '.

MR. PYLES: Do I understand, then, that all of this

lS I material that has been stricken will not now be stricken?

MR. HILL: In the draft you have the only thing

of the subcommittee was to do nothing, so the capitalizations are still in there, the periods, and there's probably an ambiguity in there or a misprint in there, and that's still in

PAGE 106

here.

2

We have done nothing, that was the decision of the

3 committee, and I don't know that any motion is necessary .

.! I suppose it is to

CHAIRMAN CLARKE: I think whatever we do ought to be

i> ' approved one way or the other by the full committee.

MR. WALLING: To get it before this body I would move

3 that the Section X, Appropriations, as it exists in the

o present constitution be retained without change.

JO

CHAIRMAN CLARKE: Yes, sir.

''':')

Z

Ii
,:)~

MR. EDWARDS: What did you say first, who said what

:)

@~0 i thiS~~O::::NG' ~ ~ It~)/<0r,:,/:. > about

The Attorney General

Well, Charlie

'-.._.-" ,

i

\4 ; Tidwell can speak to this. He talked to the folks on the

"-

I:

1<; '~committee concerned -- I'm correct, am I not, Charlie -- he

'.'}

':0">

16 ~ was more concerned about changes here than elsewhere. He

oz

17

< ~~,knows

this

language,

it's

been

litigated,

it , s

been

tested,

l~ he felt like it would be most unwise to tamper with it at all.

\9

CHAIRMAN CLARKE: ~1hat we've got is just retaining

.:() all of the language in the present constitution with regard to

appropriations, except the paragraph which deals with bonds,

and I believe it goes to the public revenue section. Is that

where it goes?

MR. HILL: Article IX.

CHAIRMAN CLARKE: To Article IX, so otherwise it is

PAGE 107

just like it has always been. MR. EDWARDS: With all due respect, and I don't have

any suggestions right now, but wouldn't that apply to every

"! other provision of the constitution? Don't we know what's done

on those?

CHAIRMAN CLARKE: It might very well.

MR. EDWARDS: I'm just commenting for what it's worth~

I wasn't here, I'm sorry, at that meeting, but I'm not sure I

follow that reasoning particularly.

J()

REPRESENTATIVE JONES: Let me help our subcommittee

U'~7

, ;-'. \ .",' ,\')\

".;c...;..)!.

'-"

.~.,/ 1 / '

:} ';' chairman out some. It was not only that, because other areas
."
L: ~ were quite vocally debated, and they were then defeated, or the :l~ motions for change were defeated, so it wasn't just a matter of
~. taking his own general overall thing, but individual sections

1" '.:; such as the gasoline tax was considered separately, an over-

11,) ,~ view of federal funds was discussed rather at length, and it ,'.~, wasn't just a matter that the Attorney General as I understand

it, and Charlie and Bob both will agree I think, that he just

said leave it alone.

We didn't do that just because he said so, but lots

of things were considered separate from what he said, and when

those things were defeated you had in all technicality the same

thing, and then it was left alone, if that's helpful.

MS. GREENBERG: I think a distiction should be made

between the substantive changes like the supplementary

1'.\(, I 108

appropriations act, the federal funding and bonds and the

) ,editorial changes, and the result of the last subcommittee

~ meeting was that nothing should be changed and there was no

4 distinction made between substantive changes and strictly

) editorial changes. In the last draft that was submitted to

the full committee there were both editorial changes and

substantive changes, but this is a clean, you know, as is at

k : present in the constitution; this is the exact language.

9

CHAIRMAN CLARKE: Any further discussion with regard

10 to Section X?

"1:
1] .>;:
'"()

MS. RYSTROM: Is it unbearable for everyone that we

(~~))r'!E ~ ~~y~

].2

"'
~~0: go

through

this

and

that

the whole

committee

deal

with

this

ques tion?

~~/

11 .~

CHAIRMAN CLARKE: You have a right to go to any

15 ~ discussion you want.

c:

.:>

16 ~ ,~

MS. RYSTROM: I don't want to do it if I'm the only

I:')

z.

,;

17 '; one that feels that way. Rather I'll make a motion and see

whether it gets seconded if that's all right.

I would think it would be useful for us to do that, 20 to go through it all, even though I realize it would be time

consuming and rather wearing. If there is any support for that

suggestion I would love to hear it.

MR. CLARK: My only comment is either way I voted

here would be absolutely from ignorance, just traveling on

the comments that the Attorney General said leave it alone

PAGE 109
and we buy that, and I don't really feel qualified to vote
one way or the other.
MR. TIDWELL: Harold, I think it might be helpful for'
the other members of the committee, it was not simply the
opinion of the Attorney General standing alone, it was a very strong opinion of Clark Stevens who is the Director of Office 7 of Planning and Budget, and while we could not speak for him Pete Hackney had some grave reservations about any changes ! that might be made in it. I don't think he voiced the opinion
10 that not one word should be changed, but the Attorney General
11 ; did, the Director of Office of Planning and Budget, Clark
."~.
.--.,'::\f{j, L) ~ Stevens who deals with it, who is the executive budget officer;
(,:~;\c')~fc.,"..~ .~ I share that very strong opinion because this is the most
1,1 ~ sensitive area in my judgment in the entire constitution, that
"r
15 .,'-~ there is some understanding by the executive and the legis la-
,.e;
i (f Z tive as toWhat it means, the Attorney General felt that it ~> < .~ had been intact for seventeen years without being changed, that he had just now learned what it meant, and for the sake
lli of cleaning up a few words, you know, to make some editorial 20 revision that the danger of making some after it had stood for
seventeen years and it had an interpretation by him -- not
")-,
the courts, because I don't think the courts ever had an
occasion to interpret this -- but that opinion was also shared by his staff who he asked to look at it, who deal with appropriations matters, and some of the less sensitive areas

i'AG[ 110

that I participated in in acquiescing to changes appeared to be -, innocent to me, but they were extremely dangerous when viewed

.3 by somebody else, so I think it was the consensus that really

nothing was wrong, that something was going on that was not

bad, that we just simply leave it alone and we know exactly

where we stand.

!I

CHAIRMAN CLARKE: I think the question has also been

raised is any hardship being worked on state government by

(I I the provisions we have in this particular section, and if

10 , things work well this way, then it was expressed there would

L

11 ~ be a possible danger to making some changes that might not

o

"-

-"

,1 1.

J work as well.

~

Whether they are all working well or not is something

.11 v; that somebody other than I would have to answer.

T

':)

Yes.

.x:

OJ

II> ',"_

MR. McWHORTER: Did they define what the word

I

;'1 1i

'"1:1:
W

supplementary

means

in

his

deliberations?

CHAIRMAN CLARKE: I would rather let the chairman

19

MR. WALLING: Not really, though it seems to come

.'0 down to -- the feeling was, and Tim Sweeney shares this, that

21 as a procedural advantage a supplementary act, a truly

.."
supplementary act and not the supplement to the general

appropriation bill can box in one subject matter and insulate 24 it from any other changes in the general appropriations act,

anything else in the general appropriations act.

Georgia is the only state in the country that has

anything like that, and surely the problem is not unique to

Georgia, but anyway that seemed to be -- again, though, we

aren't sure that is the case. It's a murky area.

MR. McWHORTER: Mr. Chairman, if we end up with an

(, appropriations bill and give it to a Philadelphia lawyer and

the best accountant in the United States and they don't know

what it says, the only way you can find out about it is to go

ask the people who wrote it what they intend. I don't know

,J whether the courts have ever interpreted it.

,,-.

CHAIRMAN CLARKE: Would a change in the appropriations

: section of the article help that?

MR. McWHORTER: I don't know.

i,i

CHAIRMAN CLARKE: Is that a problem with the bill

rather than the article? I just don't know.

MR. McWHORTER: I don't know either.

Yes.

MS. RYSTROM: There's still some question about what
!,)
the terminology in this tried-and-true-let's-keep-it-because.'(j it's-working-all-right system is. It seems to me that under,21 i mines the argument we are in great shape now and that we don't

need to make any changes.

If people who I would expect to be able to define
,I
these things cannot do so
I.:",
Also while I'm arguing it sounds like the arguments

PAGE 112

, against making change are so compelling that those, of you who

~ represent them would have no trouble in convincing the rest of

j us quite rapidly, if we could go through it sort of item by "~ item.

5

Also I would like to back up what Dale was saying.

o We said earlier on that the entire committee would be 7 responsible for all sections of the article, and that we broke

6 into subcommittees simply for the logistics of it.

')

CHAIRMAN CLARKE: We certainly will allow ample

ld discussion of each and every line for that matter, so don't
<zJ
11 ~~ have any hesitation at all. G ;:;~ MS. RYSTROM: I think perhaps what I need to do is

7-
~to move that we proceed through this section sort of section by

.'-"._--~

I

14 C section and discuss it.

"'"
1:

15~,

CHAIRMAN CLARKE:

I don't think that even takes a

11, ~i:..1 motion. I think we are open for discussion right now. There a z <:
; 7 '~is a motion to adopt the section, so every single word of the

section is open for discussion, and I assume what you're asking

for is some explanation of each paragraph.

2()

Bob, are you in a position to tackle that chore?

),
MR. HARRIS: Let me ask Mr. Tidwell, do you think

i ...
they can't handle the changing of the capitalized word to the " , uncapitalized word treasurer?

MR. TIDWELL: No, certainly not, but there was an

insertion of one word "general" that as I told the

PAGE 113

subcommittee I have never seen the Attorney General so

concerned with what was being done 1 and by that same analogy neither am 1.
When we started dealing with this I got extremely

nervous, and I don't know of anyone that would welcome the charge to take that appropriations section and clean it up

editorially and not make a substantive change. I would not

accept that challenge, the Attorney General said he would not.

Frank Edwards has been doing it for thirty years, I don't

1/; know whether he would be willing to do it or not.
u

:! ;,:...:-: c,
o
"~'
~ it.

MR. EDWARDS: I would be willing to take a crack at

;_.
Z
".!..~!~l_~ .....
~

MR. TIDWELL: You could probably do it, but you

ii ~. wouldn't do it at a committee meeting, would you, Frank?

,.',

MR. EDWARDS: I wouldn't talk across the table like

a:
i C ,~1. we , re talking now and make any changes, to tell you the truth.

<.

)

(Yo

~ You would have to be by yourself a while to work on something

like this.
I:
The reason I said what I did while ago is because

unless he's changed his mind, Pete Hackney told me some time ago, in fact right after we met in his office for the first time, that he had a couple of suggestions for changes. Now, whether he's changed his mind I don't know.
MR. WALLING: He changed his mind.

MR. EDWARDS: He did? Okay.

MR. WALLING: Barbara, we can do the same thing we

2 did last time, take a look at the draft we considered and

3 finally rejected at the last moment, and you can see what

4 changes are there, but that's redoing what we did last time.

The only thing, for example, wrinkles like this.

We had appropriate for expenses of state government. The

7 ,! Attorney General said that in his opinion that if we adopted

that kind of language the General Assembly could come in and

9 could cut out a division of a department or a department. It

10 may be unhappy about the revenue division within the law
z-'
11 ~ department, and they could come in and not appropriate that
'-
'"
'''~ 12 '~" parti eu1ar d~'v"~s>on, and I don' t t h~' nk any 0 f us on t h e
(\r~:--~: \ ~c,.")..,. ~: cotmnittee really knew how to respond to that, and if the

14 t Attorney General of Georgia feels that there is a chance that 1:
15 ~; that can be done under this language and that risk is there, .>: ;;,
16 ~~ then I think we felt, did we not, Herb, as a committee we z: <
17 :; didn't want to take over that burden.

IH

REPRESENTATIVE JONES: This is what I was trying to

19 'i convey before. We did discuss those sensitive areas of motor

20 fuel funds, and that was defeated as an individual item.

21

We did discuss the overview of federal funds, and

that was discussed.

_,.

,
'

Then we went into a long discussion on supplemental

appropriations, and it was not something -- and I would frankly

like to have done something about that one, I would have liked

to have done something about the overview on the federal funds, but the proposal was that the legislature take it over

and excludethe executive) and as I understand it now it's

almost the executive to the exclusion of the General Assembly.

Those sensitive things were discussed separate from the part

(; that the Attorney General addressed.

MS. RYSTROM: Perhaps it's those sensitive things

I'm saying I would like to hear more about.

For example, the earmarking of funds, that's a

11 question

CHAIRMAN CLARKE: Those are not the issues that the

Attorney General was tackling. He was tackling the style and

:: that sort of thing) he said "Well) let's just leave it as it

is."

Now, the issues like the allocation of motor fuel

tax to the Highway Department, I don't think he expressed any
'':1
., ,
opinion one way or the other on that as far as --

MR. TIDWELL: In fact he made some changes on that,

some quote editorial changes .

.20

CHAIRMAN CLARKE: Certainly if you have any motions

to make on any of those, we would be happy to consider them

and let the committee act.

MR. WALLING: Let me remind you what the sensitive

areas are) the substantive areas are. They would be the

budget report, who may amend the budget report, the Governor

1'-".(;;: 116

alone or should it be the Governor and the General Assembly.

1 We discussed that last time. I recall the speaker addressed

3 himself on that. The committee draft which was rejected

4 again was drawn so that only the Governor could make that

~ amendment. That's number one.

Number two is federal funds. The present

constitution provides that federal funds be automatically

appropriated without going through the appropriating process. q We made no recommendation on that. As Representative Jones

indicated, we had a long discussion on that and there's a lot
"z
of material in our files on that the staff got for us, what's

,~, 12 ~ happening in other states, but after hearing from Clark

\\(d))r~~'~ ~ Stevens, from Charlie Tidwell and others the committee voted

" " ' ' ' - - // / ,

'"

'---..-/ '

II

,_
c-

to

make

no

change

in

the

present

provision

there.

<

Ie

. ~J

The direct allocation of motor fuel taxes was

.::":l:

I (\

~
,~

discussed.

That was voted by the committee there would be no

l
<

1'7 ;; change.

The technical area which is very difficult, and I 19 think we could come to no conclusion, and that does reflect

caution on the part of the committee with regard to the use of
21 the supplementary appropriations act. We couldn't really find
))
out what it does to our satisfaction I think, and we just

didn't know how to deal with it, so that kind of fell too

toward the end along with the Attorney General's concern with

regard to formal changes.

So those are the four areas, Barbara, that are

2 sensitive or substantive.

MS. RYSTROM: I cannot remember what happened when

J the full connnittee met last on this subject of the motor fuel

:) allocation.

MR. WALLING: We did not discuss that. We reported

: that had not been taken up by the subcommittee, so the report

c,now would be that the subcommittee has acted.

MS. RYSTROM: Let's discuss that now.

10

CHAIRMAN CLARKE: Would you like to make a motion?

"

1i -

MS. RYSTROM: I can't even find it in here. I guess

~

1 ' ,~~ it's paragraph --

;~'j;.YJ1.~h

(~(:o~J\)(~'''" ~

MR. TIDWELL:

-

'~~/

!l ,

MS. RYSTROM:

It's on page 4. Let me instead of trying to figure that

:t
IS ",: out come up with some right words.

J

l!

~'..:;:~

I am opposed to the earmarking of funds from the

1
-(
~;motor fuel tax for roads and bridges -- is that what it is

l:..: highways or something like that.

I believe that those funds should go into the general

,'0 fund. That is the position, by the way, that the League of

"_l Women Voters has had for many years and has fought for, and

j."'\ while I'm not in a position right now to propose language if

---' we could discuss that perhaps we could come up with something.

'\

My understanding about this before -- at any rate I

guess my assumption was that this was the way the Department

J'\t:L 118

of Transportation wanted it, which is no surprise at all.

That doesn't sound to me like a compelling reason.

CHAIRMAN CLARKE: I assume what you would be talking

4 about, Barbara, would be Paragraph V on page 21, Subparagraph

(b) .

()

MR. WALLING: It would precisely be Paragraph VII of

7 the existing constitution.

;-~.

CHAIRMAN CLARKE: Yes.

q

MR. WALLING: It would be directed toward that, and

10 not toward this draft.

<.:J

Z
11

MS. RYSTROM: I guess what I would want to say would

.1:

0

0-

~

12 :; be to strike the whole thing, wouldn't it, because if the whole

/~;,vlt:t

.

((~~))\~!.!.!,,'!." ~ thing were s truck then the

~>/i
-

l.f ~.

CHAIRMAN CLARKE: What you're asking is to strike

.,.


r

J:' ." Subparagraph (b).

",:=::=,

16 .~..

MS. RYSTROM: Right .

.,

CHAIRMAN CLARKE: Is that your motion?

lP Je'

MS. RYSTROM: Yes.

CHAIRMAN CLARKE: So a motion has been made that

20 Subparagraph (b) of original Paragraph VII as it appears on

page 21 and continues over onto page 22 be stricken. Is there

a second to the motion?

MR. CLARK: I'll second it.

CHAIRMAN CLARKE: There is a second to the motion.

:.::: Now we will open the floor for discussion on this motion

119

-i

which would have the effect of doing away with the gasoline I

i

tax allocation altogether.

i

Yes 1 Mr. Jones?

REPRESENTATIVE JONES: I don't know what our rules

~ are, but House rules don't allow me to say what went on in the

G committee meeting.

7

CHAIRMAN CLARKE: I think we must operate more

:', informally than that.

<)

REPRESENTATIVE JONES: You must be aware that it was

10 debated at length, and I particularly expressed some grave

It;: doubts about this because in today' s area of transportation o c,
" 'J that includes everything from bicycles to airplanes to ships :....
of the sea,which would help my area of Savannah, and also

i~

._
I-

addresses

itself

to

concentrations

of population.

</>:

r.

The present method as I understand it by the

,i':J

Department of Transportation is that seventy percent of these
,(.j

, funds are allocated equally to the districts within the state,

and thirty percent is held to be handled by that group more or

less on a basis of need.

Judge Cheatham of Savannah -- and those of you who

were there correct me if I am wrong in trying to say what I

think he said, with the General Assembly doing the appropriating

then you also run the risk of polarization I believe was the

term he used of those people that are doing the appropriating,

and let me tell you from an area other than a metropolitan

" ,1' 120

area, there are those of us that are afraid that the funds

1 could be all used in rapid transit at the expense of

3 maintaining the highways, or the funds could be used to take

-, care of some airports politically that maybe don't need to be

taken care of, and I think to wrap it all up, when we got

through we heard the old cliche that we hear so much that that

department of government happens to be in most people's

opinion the best run in this time, and if it ain't broke don't

') fix it, and I believe it was

10

Bob, what was the vote of the subcommittee? I'm

"z

I' :,: not sure a motion was even made.

o

u.

~

(',__'?:>_.~~_~/d/)~r]!"2~ ~~u~
~_~I!.

MR. WALLING: Four-one. It was a pretty strong vote. MR. CLARK: Isn't the issue here not how the

Department of Transportation shall spend its money, but how

15 ~ much money the General Assembly shall appropriate for the

a. .:;,

16

purpose rXI
Z:.,l.!
0

of

operating

the

Department

of Transportation,

and

'z.

<;

17

et.
'"

this

locks

in

the

appropriation

of

the

motor

fuel

tax,

an

JS allocation of tax rather than administration of public funds

I) by the General Assembly. Isn't that the issue?

20

CHAIRMAN CLARKE: As I understand the motion the

21 entire provision which requires an allocation of motor fuel

11
tax to roads and bridges would be deleted, and that then would

-"-' leave to the General Assembly the responsibility for making
,.(
such appropriation as it deems necessary for the operation

.~;>
of the Department of Transportation.

PAGE 121 MR. CLARK: The would submit the same as the Department of Education or the Department of Human Resources submits their budget and which the General Assembly yeas or , nays. CHAIRMAN CLARKE: That would be the nature of the " motion as I understand it. SENATOR TYSINGER: If I recall when this issue was first presented to the people as a constitutional amendment .) I believe it was overwhelmingly voted by the people of the JO state because they were concerned that moneys that would go for their gasoline tax dollars might go in some other areas,
~~
y
and I share this concern that these moneys are spent by the
, ;.
1.
the people voted on, and I think we would be going contrary to a large number of the people of Georgia were we to take this
~j out.
MS. RYSTROM: When did that occur, the vote you're I') referring to?
MR. TIDWELL: 1962. MS. RYSTROM: A lot has happened in those years. We can expect a lot of changes in our whole transportation system in the future, and it seems to me that the risk of inappropriate allocations to rapid transit is -- it may be inappropriate but it probably will be -- or mass transit I should say rather

122

than rapid -- it may be inappropnate, but probably I would

-, judge it to be inappropriate because they were inadequate,

~ and that's very much in terms of what the world situation is,

"j things that are happening right now for all we know while we

, were out at lunch, the terms of the fuel situation have

I' escalated. This is not a time to be making certain that every

fuel tax dollar goes to build another road or another bridge,

it's a time to be thinking about where can we most appropriately

spend money for transportation with the future of the country

perhaps at stake.

\,'.1

~I It

--

REPRESENTATIVE JONES: I'm confused, because if you

,..

i": strike and the committee took this up, would the funds be

Sgoing to transportation?
'/\
CHAIRMAN CLARKE: Her motion is to strike the

I'" allocation altogether.

;5

.l'

e;,

::J ] I' ;

REPRESENTATIVE JONES: Is that what we're talking

~1

1

C
1-'1 ~ about J taking motor fuel tax and putting it in hospitals or

;" schools?

!J

MS. RYSTROM: I think we're talking abou~utting the

. ~, motor fuel tax in the general fund, and I trust the General

Assembly to make reasonable allocations of all of the funds ., .~ that are available to it, and that moneys that are directed

toward transportation might exceed the motor fuel tax

collections, they might be less than that.

REPRESENTATIVE JONES: That is in fact a different

; ; ~.~ ,,)

PAGE 123 proposal than what she said.
CHAIRMAN CLARKE: At the risk of sounding as if the chair is expressing an opinion, and I'm not, I just want to l make one point that needs to be brought to the committee's attention, and that's this, that there is no more powerful tool in the legislative process than either the promise of roads or the threat of not building or fixing roads, so some people have looked upon this as being as much of a restraint (j upon the Department of Transportation and its source of revenue as they have upon a guarantee to them of a certain 1: ;; amount, and there have been some who said to me that they were l' ,~; fearful that if the allocation lv-ere removed that then there ~ would be great numbers of visits from Department of , Transportation people to people like Mr. Jones and Senator ':: Tysinger and others saying "All right, if you want this done in your countY,or your district, then you'd better vote for !' so much," and they would have a heavier hammer to swing than most other folks.
1\,
I don't say that to try to convince anybody of how to vote except to relay to you all some of the feelings that I have heard expressed to me from some other people.
MR. CLARK: Mr. Chairman, this does not limit the appropriations to the amount of the gas tax.
CHAIRMAN CLARKE: It does not. MR. CLARK: It seems to ~e that the pressure can

stillbe there, and I remember

CHAIRMAN CLARKE: The pressure could still be there.

It is sort of a suggestion, though, that there is something

of a limitation; at least they're not over there with the

necessity of having every day to be urging the General Assembly

( to do something for them and using as their urging influence

the promise of a road in say Hart County for Senator Brown,

or DeKalb County for Senator Tysinger, or Chatham County for

" Mr. Jones.

"J

SENATOR TYSINGER: Mr. Chairman, one other thing that

), ;, I believe bears on this. If we look to the gasoline tax to ",.
~,
i.: ) support the roads and we're not getting enough funds, then

it's reasonable to draw the conclusion then we'd better raise

the gasoline tax or we don't continue to build roads. Other-

wise we might let the gasoline tax stay where it is and not be

having sufficient revenue that we might produce for really the

maintenance of our roads. It's just a pressure point. We're

feeling that now, they're wanting to raise the gasoline tax.

CHAIRMAN CLARKE: Is there any further discussion on

the issue of the gas tax allocation?

MR. HENRY: Yes, sir. Mr. Chairman, I don't know if

it's my place to speak but in the proposal they had for an

adequate system of transportation, and the present provision

has public roads and bridges.

To kind of carry forward what Ms. Rystrom says, it

126

appears to me that in the years to come with the situation developing the way it is the need for public transportation, that you may even have to have a constitutional amendment to 4 change this in the years to come, but at least remove that stumbling block of limiting them from this type of building of I) or maintaining public transportation by just limiting it to public roads and bridges, and I could foresee a constitutional

amendment from some of the work I've done in this area and see

how the language restricts someone so that you can't change

these, and by no means would it force the Department of
z
Transportation to immediately go out and start in this area,

i' O' but it would at least allow them in the future

~ce,-V-}>-~<h

0'

\ \'t -u::..:.J / ,1-- '. t ,f',-t'

'~', \ '\ c ..., II' ,~"

l.
.l.J

,1

CHAIRMAN CLARKE: The motion that's on the floor at

-".//
l;i ~ the present time would simply remove the paragraph entirely

r:
15 ,') and then, of course, that would be no problem at all under ~:' ;:t:
It> '~ those circumstances.

ii

MS. RYSTROM: Assuming the motion is going to fail,

which I think I can probably assume, I don't know what the

logistics would be of introducing an alternate from the maker

2U of the first motion.

l'

CHAIRMAN CLARKE: I would not rule that out of order.

You would be in order. MS. RYSTROM: Or rather that would be done after we

deal with this. CHAIRMAN CLARKE: Let's act on one at a time just as

['ACE 127

a matter of simplification.

Any further discussion as to Ms. Rystrom's motion?

All right. As many as favor the adoption of Ms.

-, Rystrom' s motion, the effect of which is to remove the gas ta.x

allocation for roads and bridges signify by raising your right hand.

"

(A show 0 f hands.)

CHAIRMAN CLARKE: One, two.

()

All right. Those opposed.

!( 1

(A show of hands.)

'.J

;:

I -. ,)'

CHAIRMAN CLP.RKE: One, two, three, four, five, six,

/~-~ft~1'

1 1

so it fails by a vote of two to six.

v

1/ ,,\,)

I

,\ </ 1,I,n,.::-,..') r-'!"-"'''o c'

MR. PYLES: One abstention.

j;

CHAIRMAN CLARKE: I believe you said you might have

another motion.

MS. RYSTROM: I do think that I would be much more

~ satisfied with this if rather

I guess in effect it goes

back to the previous proposal from the subcommittee.
,)
At any rate, instead of saying public roads and

bridges on lines 3 and 4, page 22, an adequate system of public

transportation, or of transportation even, so I guess I want to

remove the amendment to the section.

,'

1

CHAI~~ CLARKE: Is there a second to the motion?

MR. CLARK: I second it.

CHAIR}~N CLARKE: Seconded. What discussion do we

have on this motion?

MS. RYSTROM: Just more of the same. It seems to me

3 that this is very much like what Mike said, in the years to

't come the General Assembly members might be asked how come they

funded all of those roads and bridges which are not very

(, useful because we can't get fuel to run our vehicles on them,

and some of them may be saying "Where were you, why weren't

x you developing alternate modes of transportation with state

funds?" This would at least not preclude them from using these

Hi funds for alternate forms of transportation.

j 1 ,.

CHAIRMAN CLARKE: Any further discussion?

,~f'y~, J2

MR. CLARK: I don't think we're going to pick up any

((~~j))i~""D~, votes, but I think basically what we have already voted down

\"--.///

,_/ ;4, is the concept of public administration of public funds,

\, ~; earmarking versus General Assembly. We have already voted that
,
i \ down.

Now we are at the issue of allocating this earmarked

money for a broad problem of transportation rather than ear19 marking it specifically, and so I again endorse the motion.

CHAIRMAN CLARKE: Any further discussion?

"A~ 1

As many as favor the motion signify by raising your

right hand.
, '.,

(A show of hands.)

CHAIRMAN CLARKE: One, two, three, four, five.

Those opposed.

PAGE 129

(A show of hands.)

CHAIRMAN CLARKE: One, two, three, four. The motion

is carried and public transportation -- is that correct? -- a

system of public transportatbn will be inserted in lieu of

roads and bridges or whatever it is.

All right. Is there any other discussion or amend-

ments to be offered insofar as Section X is concerned?

MR. SWEENEY: I think Ms. Rystrom probably needs to

give some thought to the lines 6 and 7 of page 22 dealing with 1:! grants to counties for road construction and maintenance. I

;i ;.>: don't know whether you intended to insert public transportation

~ there or not.

MR. RYSTROM: Thank you for calling that to my

attention. I think just to be consistent in the changes we

are making in that section that would be appropriate.

,

'l,J

"

There is something somewhere about -- what was that,

.,
~ Tim, about county railroad systems or something like that?

We aren't going to run into something where we conflict with
I I)
that, are we?

It really need not say as it does on line 6
~:
authorizing road construction and maintenance. If it just

said grants for counties --

CHAIRMAN CLARKE: I think this really is a little

different subject matter from the other one and should be

treated as a different one.

130

One has to do with the money being spent for public -, transportation and grants to counties for roads. The other
one would be whether or not you're going to be also be willing .1 to give grants to counties for public transportation as well as

roads, so I would rule it to be a different issue and we need

consideration by the committee of your suggestion as to what

you want to do.

MS. RYSTROM: If that's so, I would say that this

section about grants to counties should also authorize grants

10 for public transportation.

J

I'
JI

CHAIRMAN CLARKE:

Is that your motion?

MS. RYSTROM: Yes. CHAIRMAN CLARKE: That it be appropriately redrafted to include for the purpose of public transportation. All right. Is there a second to the motion? MR. CLARK: I second it. CHAIRMAN CLARKE: Is there discussion?

SENATOR TYSINGER: Mr. Chairman, I have some reservations about that concept. I believe that each service of 2() government insofar as it is able should pay its own way. I 21 think then you have strict accountability, you don't have somebody building empires out here.
For example, I personally believe that MARTA should '.j have to pay more out of the fare box than they're doing, I

don't think it should be a social program.

l'Ae I~ 131

In our counties when we pay our water and sewer bill,

I think those sums should go for water and sewerage. That's

just my personal philosophy.

Consequently, I would oppose this. I think that the

people that are using the highways are paying the taxes, and if

we want public transportation we in Atlanta and DeKalb County

and Fulton County have paid theway; they can pay a local option

sales tax and do their own.

I think these funds should be used for the uses where

they are taxed. That's just a philosophy of mine.

!:

MS. RYSTROM: I think you could easily argue that

every citizen of a community or a state benefits from everybody

who is not driving their car because they're taking the train

or the bus or whatever, and that in fact transportation is
,-
something that should be regarded as a service provided for by

government, and not for selfish reasons because it is to

everyone's benefit to have environmentally sound and fuel

economic measures taken.

SENATOR TYSINGER: I don't argue with that point. I

say let that particular transportation service pay for itself.

REPRESENTATIVE JONES: I'll just observe I think you

are going to run the great risk of the one percent sales tax,

or legislation being introduced to take the one percent sales

tax off because that's an allocation for a specific purpose in

transportation, and if we're consistent I believe we're goil1g...

l'

132

to have to support that position. We're not allocating funds

1 here, and we are there, so be aware of the fact that that

could be a part of this total.

MR. RYSTROM: Are you talking about the present tax

) that supports MARTA?

REPRESENTATIVE JONES: Yes.

MS. RYSTROM: It isn't a state tax, is it? It's a

,', tax on those localities.

REPRESENTATIVE JONES: Authorized by state

legislation. It's provided by the people of the state, they

II; passed it.

CHAIRMAN CLARKE: Any other discussion in connection

::~ with the grants to the counties?

MR. CLARK: My only comment was this proposed

!" o.::! amendment does not restrict road construction, it doesn't ; ~1
i (, eliminate road construction and maintenance, it simply

I. 7

r:'
'"

broadens

it

to

include

public

transportation as well

as

road

construction.

CHAIRMAN CLARKE: That's correct. That's what the :':0 amendment would do, would broaden it to include public

transportation as well as road construction.

Yes, Ms. Greenberg.

MS. GREENBERG: Is the amendment reading public

transportation or strictly transportation? I think there is '" a problem if you call it public transportation. That's

l':\CE 133

earmarking it strictly for --

Is that a term of art, " public transportation" which

may preempt it being used for public roads and bridges?

Public transportation may signify MARTA or buses or mass

\ transit, I don't know. Is there a problem?

CHAIRMAN CLARKE: There may be a problem; I don't

"1 recognize it.

Does anybody else see any problem with that?

'I

MS. GREENBERG: If a change is going to be made,

II) could we just adopt the language of the working draft of

I; October 29th which limits it to transportation?

1) ~,

MS. RYSTRON: That does not preclude expenditures for

MS. GREENBERG: The word transportation? MR. RYSTROM: If we used transportation unmodified Actually I wavered back and forth when I made that I :; motion, I had used public transportation once and -MR. HILL: As it stands now it says a system, an '\ adequate system of public transportation. I think that would 'I, encompass very broadly, and I would say that the other amendment if it said for public transportation purposes that would -- if you just said for public transportation it might sound like MARTA, but if it says for public transportation purposes 'l I believe that would cover it. MS. RYSTROM: That would suit me best to retain the

134

word public, but make it clear that you don't mean just a

segment of what we're referring to, if that would be clear

3 to everyone.

CHAIRMAN CLARKE: We're back to whether we would

, include public transportation as a purpose for which grants

(, can be made to counties.

Is there any further discussion on that issue?

( ;.)

Hearing none, we will proceed to vote. As many as

<) favor the motion by Ms. Rystrom will raise your right hand,

II' please.
u
j I r' ':";",)~

(A show of hands.) CHAIR~Jili CLARKE: One, two, three, four, five.

Those opposed.

(A show of hands.)

"

I-

i S ,~

CHAIRMAN CLARKE: One, two, three, four.

] (, ~ "~'

So by a vote of five to four it is adopted, the

I'

17 ~; change is made.

Now are there any other items to be discussed with !) regard to Section X?

All right. Are you ready to vote, then, on the 21 approval of the section as amended?

Yes, Vickie.

MS. GREENBERG: A minor change. The last paragraph

in Section X, "Appropriations void, when." I fail to see the

necessity for that provision, and I would like to --

PA.eE: 135

CHAIRMAN CLARKE: Does anybody have any comments about

that? It simply says "Any appropriation made in conflict with

any of the foregoing provisions shall be void."

MR. EDWARDS: We had talked about it one time, and I

agreed with Vickie, and this will not change anything else.

We may as well let the whole thing go. I don't worry about it

any more.

MR. WALLING: Vickie is right, but she can't make

') a motion.

IU

CHAIRMAN CLARKE: Any further discussion?

II

MR. TIDWELL: It always helps with lawyers when they

1;",>'; jLl \

go into court to challenge something to be able to say that

{\(-,!~-j) !r-"!~"~~'o ~ that's a violation of article so and so, paragraph so and so.

~-- -~.-;/.'

If you take it out, you withdraw that heavy ammunition.

CHAIRMAN CLARKE: Remind me to tell you a war story

J( o~: about that when the meeting is over. l~ < 0
1 ';; record.

I won't repeat it for the

Any further discussion on Article X?
! 'j
Shall we proceed to a vote?

As many as favor the approval of Article X as amended

signify by raising your right hand.

(A show of hands.)

CHAIRMAN CLARKE: One, two, three, four, five .
.' +
Those opposed.

(A show of hands.)

136

CHAIRMAN CLARKE: One, two, three, four, so by a 2 vote of five to four it is approved.

I suppose we have completed what we can do today.

4

The next thing we need to consider is a schedule for

s getting back to bring our work to a conclusion.

I believe that Mr. Sweeney's committee is thinking in

terms of meeting on Thanksgiving morning --

(Laughter.)

CHAIRMAN CLARKE: -- and the rest of us will meet at J(I another time, but seriously I think they are looking toward a 1I ~-: meeting of one day next week.

I had thought in terms of this full committee coming

two weeks from today, but realizing the problems of next

for most people, I've got some court hearings to take care

I.
1:' :;: of part of the week and some business Thanksgiving day.

"

..fl.:
, \..1 I. ,

I understood another committee is maybe going to be

J .., ,>:
," meeting on two weeks from yesterday, and that their work might

extend into Thursday morning.

19

That being the case, I sort of think we ought to meet

at one o'clock two weeks from today, that we might bemle to

finish our work that afternoon, and I would like to hear the

ideas of the committee members and staff, the people who are

here.

MR. CLARK: What is that date, please?
",
CHAIRMAN CLARKE: The 29th at one o'clock.

f':\CE 137

MR. CLARK; November 29th?

2

CHAIRMAN CLARKE; Yes.

REPRESENTATIVE JONES; I can't be here. That might

be a pleasure to the rest of you.

CHAIRMAN CLARKE; We would like to be ab le to

accommodate everybody we can.

I think that week is pretty well open as far as I'm

concerned. I think Mel and his staff have some problems with

') , other committees on certain days of that week, and I believe

III .., that Tim has got to be in court the early part of that week .

L

11

Does anybody else have any thoughts or suggestions

for the time, or problems with any particular date?

MR. TIDWELL: I'll make this observation, Mr.

14 - Chairman.

r.

J5"

As many of you as can be there, be there. When the

_..

l{l

~ ~

Select

Committee

looks

at

these

rather

far

reaching

proposals

z.

~

and they pass by a five to four vote of a 2l-member committee

J:-;
they don't have any clear consensus of what has really happened

I\}
i here or how strongly it's been ~- you know, this is one vote.

20
If you want to carry your day with the Select
."__, j
Committee, you need to get your troops here.

")
CHAIRMAN CLARKE: I would urge all of you whenever

we meet to attempt to be here. All of you who are here now

have been very faithful in attendance of our meetings, and I

appreciate that very much.

Herb, in the absence of running into another time we

2 may just

3

REPRESENTATIVE JONES: That's perfectly all right.

4 I may ditch the Chamber of Commerce.

5

CHAIRMAN CLARKE: Mel, if we can let's maybe send out

a notice of that date, and you and I get together and point out

7 to the committee members the items that are to be considered

at that time, and then let's maybe try to check -- if there are

9 a number of people who can't be here, then perhaps we might try

10 to start looking toward making a change, but tentatively we'll

-::to

l i 7: talk about one 0' clock on Thursday afternoon.

()

'"-
~

~t'"' ~ I~~~

Is it the feeling of the committee we can do what we need to do to finish up by starting at one and perhaps working

14 .~ a little late if necessary?

<I,

15 ~

MS. RYSTROM: I was wondering -- you haven't mentioned

'C;

. '",;:)

16

cr-
,:z.,.

the

following

day.

I think we would be far better off if we

D

?

<

I

,')'
t~, started in the morning and maybe wonderfully get through at

1x lunch time, but not be in a situation where we're not finished.

19 ,

CHAIRMAN CLARKE: On Friday?

20

MR. HILL: The full committee of Article I is

21 meeting on Friday, so we're kind of stuck with that day.

CHAIRMAN CLARKE: Mel has got a real problem, he's

got all these folks heading down the final chute and we're

all trying to

Well, let's give it a shot and we'll see what we can

l'ACE 139
-----------,
do. Thank all of you; we appreciAte the good work you arel
doing. (Whereupon, at 2:30 p.m. the committee meeting
was adj ourned . )
+++ ++
+
o Jo 11 ,I -
1,\ -"
,
'u

INDEX Committee to Revise Article III Full Committee Meeting Held on Nov. 15, 1979

FULL COMMITTEE MEETING 11-15-79 SUBCOMMITTEE REPORTS

SECTION l: LEGISLATIVE POWER
Paragraph I: Power vested in General Assembly. p. 4

SECTION II: COMPOSITION OF GENERAL ASSEMBLY. pp. 4-19

SECTION III: Paragraph I:

- - - OFFICERS OF THE GENERAL ASSEMBLY
President and President Pro Tempore of the Senate (and adoption of Section III). pp. 19-43

SECTION IV: ORGANIZATION AND PROCEDURE OF THE GENERAL ASSEMBLY pp. 43-54

SECTION V: ENACTMENT OF LAWS. pp. 54-71 (less paragraphs III, IV, XI-XIV)

SECTION VI: EXERCISE OF POWERS Paragraph I: General powers. p. 73 Paragraph II: Specific powers. pp. 73-74 Paragraph III: Powers not to be abridged. p . 74 Paragraph IV: Limitations on special legislation. Paragraph V: Specific limitations. pp. 75-76 Paragraph VI: Gratuities. pp. 76-98

pp. 74-75

SECTION VII: IMPEACHMENTS. pp. 98-100

SECTION VIII: INSURANCE REGULATION. pp. 100-104

SECTION IX: APPROPRIATIONS. pp. 104-136 (motor fuel taxes extensively discussed)

STATE OF GEORGIA SUBCOMMITTEE TO REVISE ARTICLE III, SECTION VI
OF THE CONSTITUTION OF GEORGIA
Room 401-A, State Capitol Building Atlanta, Georgia Tuesday, November 20, 1979 9:00 a.m.
+++ ++ +

PRESENT: COMMITTEE MEMBERS: TIMOTHY SWEENEY, Chairman SENATOR M. PARKS BROWN MR. DALE CLARK DR. CHARLES PYLES MS. BARBARA RYSTROM
OTHERS PRESENT: MELVIN B. HILL, Jr. MICHAEL HENRY CYNTHIA NONIDEZ

PAG!~ 3

PRO C E E DIN G S

CHAIRMAN SWEENEY; The meeting is called to order.

Why don't we discuss gratuities.

You all keep talking. Specifically we're talking

s about--

MR. PYLES: Query. Alternative 3, Paragraph (a),

I want an interpretation of the sixth line "in two successive

K sessions." Does that mean two years of the same legislative

body, or does that mean one year in one legislative body, an

iU election and a succeeding legislative body; is that the second

11 - time that it passes?

1)

MR. HILL: The way it's drafted now it's intended to

/T~(:---\-\'l ~I-t '<~\

-

i (riL.;.,)) )j-:"2"'~ ,~ mean it would have to be two entirely different legislatures

\' ',,- "

./

/
,,

/,
/'

11

because a session is considered continuous from the time it

j' ~ starts until the two years are up, so each session would be a

two-year session, so you have to --

Now, that isn't all that much more different than it

is now, because you can only propose constitutional amendments

in even numbered years, or you can only vote on them in even

numbered years, so you're kind of locked into, if you want to

.2l get it, you know, it may take you three years to be able to

get your gratuities exception even under the present system,

sothis isn't all that much more stringent than it would be,

than it is now.
.', ,
MR. PYLES: Well, then, directly though the people,

4

the voters get an opportunity to vote for or against a

? legislator who may have come out in the first session for or

\ against with several other issues, but he'll have the oppor-

4 tunity to say "How did you vote on the gratuity to Mel Hill?" ~ "1 voted for it." "I'll get you for that."

MR. HILL: That's a possibility.

7

MR. PYLES: You know, if you're going to have an

election in the meantime, which you will have on a two-year

9 term, because according to the wording of this right now if

lu this had been in place, if a gratuity had been voted in

11 ~.-, January of 1979 then we would have to wait until January of

.>.

w

<c'~) ! ~ ~ 1981 to vote on it again; it would have had to have been

(,r-: <\~ ~.)v.rl...-1
\((tJ)Ii

CU"".'~

,:.
~,

approved

by

the

Governor,

come up

in January 1981,

another

\ ,'",,.::~.~,. /I '/ ,

14 ~three-fourts vote, another approval by the Governor, then it

<

l' would have been in place. I like that, that's tough.

'"

::>

::;..

16 ""-,

MR. HILL: If you think it's too tough, we could make

r.:>

1:.

<'

17 ~ it successive years so, you know, you do have an option.

1x

This is as tough as it could be I think without just

having a referendum and leaving it the way it is. This may be

tougher than what we've got.

~.l

MS. RYSTROM: That's what I would worry about is that

we would be shunting this right back into the constitutional

amendment.

Someone reminded us that nothing that was written 2S here means that the constitution cannot be amended, assuming

PAGE 5

i this were adopted just as say you would have it here.

,

MR. PYLES: The legislature could still duck

3

MS. RYSTROM: They could still go the constitutional

4 amendment route, and if we make this so hard to do as a statute

then we might in effect be encouraging the constitutional

h ,amendment route.

I forgot who it was that said, one of the legislators

~ the other day, that it was a heck of a lot easier to get the

1J i greater majority on a ballot amendment than it was to pass it
to as a simple majority. I think that sounded like it was
uz
11 ~ undoubtedly true since it throws the hot potato to the ? electorate.

It would really be ironic if in our effort to

~ preclude excessive amending of the constitution we encouraged
."'
1:
" it. JS '~'i

t ,.

:'
,1.:

Also from what you were just saying, you"re thinking

~,

7<;

I";;) that you require the signature of the Governor twice?

MR. HILL: Yes.

You know, this is a proposal. You can do --

MS. RYSTROM: Is there any precedent for anything ?i like that in other states or --?

"

MR. HILL: Well, Cindy had said -- she will be here

shortly I think -- she had said that in some states they .. "t require this successive session approval for constitutional

amendments themselves, and so it's not unprecedented to

}'A;,L 6

require two different legislative bodies to approve something

like this.

3

Well, the fact is we didn't really think about this

4 successive legislatures, you know, successive approval when

we were forming this originally, so maybe there are some things

in here maybe if it's going to be approved by two-thirds of

7 [ the people in the session, maybe it wouldn't even have to have

the Governor have an absolute veto on it, maybe you could make q it subject to override if you want to if it's going to be

10 necessary to have a majority twice.

z"

J1

There could be different variations of this you could

consider.

MS. RYSTROM: I would rather have the absolute veto

."" and not the successive sessions .
.;

1.

J:' "

SENATOR BROWN: You're right, it's easier to pass a

~)
1() ."~ constitutional amendment in the General Assembly than it is a
L
b i l l . 17 .::.: .:<

!8

MS. RYSTROM: The thing is, one of the clumsy things

1" now is how long it takes to do something and, you know, we

20 would be if anything extending the period.

21

One of the things I had thought was unattractive

about the constitutional amendment routine was the delay.
, ,.
MR. HILL: I do think, though, the committee more or
less spoke about their feelings and they really said
referendum. Now, this idea about successive sessions, that

PAGE 7

: may not apply to them, but I think as a subcommittee your

charge -- you have to go back either with referendum in there

or something like this to try to indicate you have thought

about it and this would be better than a referendum.

MS. RYSTROM: Our psychology was probably bad. We

I.) should have come back with two-thirds majority, even a simple

majority and then compromised on an extraordinary majority.

If you think you know what the whole committee

wanted you're way ahead of me, because I sure didn't.

!O

MR. PYLES: It depended on how the question was put,

~'0VI1....-1'

J
r
i i .... because he said he wasn't seeing what he was hearing or wasn't (~ "~
1) 'l:
:: hearing what he was seeing.

,/'
,{

t, ,~\j\')\)("'~:'o

Z~

CHAI~~ Sw~ENEY: Mel, the language that's in

\ - ..... /~ / I

'-'l

'''-

/

14 " Article III, Section V, Paragraph IlIon page 13, all business

, <~

,

0::

1 ;~ pending in the Senate or the House of Representatives at the ,r.

::>

! J.-,

I_~
Q

time

of

adjournment

of

any

regular

session may

considered

in

7-

<:.

1'-1

Ct.

J.. I ,:;u the regular session of any General Assembly as if there had

been no adjournment. Is that language carried forward? What

was the thought on that?

MR. HILL: It's not carried forward that way. The

restatement is the General Assembly should be considered a

continuous body from the time it meets.

MS. RYSTROM: And still have a carryover.

CHAIRMAN SWEENEY: That's the continuous body is

supposed to carry

PACE 8

MR. CLARK: Mel, do you have the feeling the committee

J as a whole preferred the referendum?

MR. HILL: I think Barbara is right. I mean there

4 were not that many people there when we were trying to decide

) where to go, what to do, and a few people spoke up, arld I think

h it's very much up in the air. They kicked it back here because

'7 they really didn't know what they wanted to do, so you kind of

have an open field, but I have a feeling that the consensus of

those that were there was that they kind of wanted a

10 referendum. We even voted on that, got a straw poll, and they

11

f e l t l-
I>'

the referendum in some way was necessary,

but they didn't

':>

o.

~'Vd

12 '~" have this idea in front of them about the two successive ;;:

(I\.(0..-.~"~'/)\)! "OT""O

~
;;

sessions,

and

Charlie

Tidwell

who

had

a

lot

to

do

with

the

..........-

/

I

14

; t;;

feeling

of

the

people

that

a

referendum was

necessary

when

he



:L

15 ~ spoke up and said "Gee, I've been there long enough, and

.,;

~1

16

~ Q

they're

going

to

give

away

the

shop

if

we're

not

careful."

z:



17 :; He said the successive sessions thing would satisfy him.

lK

MR. HENRY: I think the vote was much closer like

Jll six-five on the referendum; it wasn't like a consensus.

20

MR. HILL: That was on the earmarking. I think that

21 was on transportation.

MR. HENRY: I think it was on that also because he _.".' said "I'm not seeing what I have been hearing."

MS. RYSTROM: I thought it was awfully muddled.

I thought maybe -- this may not be very helpful, but

PAGE 9

-- -------- -- - .-- ----.~----------

~--i

I thought maybe we would end up having to consider at least !
I

two alternatives to bring back to the full committee, you know,i

to sharpen up our two, maybe strengthen the one that doesn't

4 require a referendum and try to find a way to facilitate it if

5 ' it does, possibly the solution you have come up with rather

6 than the constitutional amendment, and let the whole connnittee ,

do it, because otherwise --

.Well, I think that's what is going to happen anyway,

9 I think that the discussion is going to have to be repeated

10 if more of the big guns on the committee are present at its

-,
11 ~ final session.
..j
"-

L' J

I would almost rather we do that than that we come up'

~ with an alternative which is rejected and then the full

.1 ,- committee gets into the business of attempting to draft another

]5 alternative or farming it out again.

";:J

l '> ~l

MR. CLARK: I keep having the feeling that one of the

':
L

]7 .;; overriding purposes of the whole project was to improve the

constitution so it would eliminate so many, many proposed

actions being taken by the people on the ballot, and giving

20 away money of course is a serious matter, but the implication

is that the people have the wisdom and that the General

")-,' Assembly can be bought, and I just don't think either of these

is valid.

The people don't have the wisdom, they certainly

don't have the information about an issue, a gratuity or

I --

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

_-_.~--_

...

...

.... .. ~

-~--_

-_._._._.

':

!I whatever, and I don't think

the

General

Assembly

PAf,F' 10 especially

if they have to vote on it twice -- they could be lobbied and

.' pressured maybe under the push of time or something, but if

4' you have two successive, even if it's the same group even

within the same two-year term it seems to me that enough

information, if there's some malfeasance or some big question

about this is a giveaway, that information about this should

surface enough so that by the next vote there would be a

backing off of it, "I made a mistake, I'm not going to vote

JU for it."

1j loe<

You know, I heard Tidwell, what he said, and I've

"w-

",--_/>/J12 ~ been over there and he said "Dale, they'll Just give away the 0 : (/(~(S~j-~V-j<~)1 ) e..m,~. ~ shop," you know and "The veterans have gotten everything they

-------"
14 >- have ever wanted," so I don't know where you put your faith, ~

r"

IS

.~
,-'

you

come

into

a

quandry.

~

::>

16 ~a

I still feel we ought to keep these things off the

z

<:

17 ~ ballot, a lot of them, and go with the General Assembly as far

as we can with a three-fourths vote, the signature of the

1'1 Governor.

MR. HILL: Senator, do you think that this provision

21 about successive years or terms, or whichever, do you think

22 that that would defeat the purpose because it would be harder

to do that than it would just to get an amendment?

SENATOR BROWN: I like this all right, the second

25 , time. It suits me fine.

MR. HILL: Without a referendum?

PAGE 11
------1

SENATOR BROWN: Yes.

MR. HILL: Have the General Assembly vote twice.

SENATOR BROWN: Yes.

I'm like Dale, a lot of people vote on a constitu-

tional amendment and they don't know what they're voting on

anyway, many of them do.

MR. CLARK: The problem is this doesn't preclude

going by the amendment route, though. If the legislature

decided "Well, let the people decide this," they can still do

ii ~ it that way.

,-

1 -, "

MR. HILL: Except I think they would be less likely

to if this mechanism was put into the constitution and this

was the way it became established procedure to do this. I

~ think,you know, it would be some deterrent to that.

i. (J

-~:".\

::.,

MS. RYSTROM: That should be a good argument actually

to fill in the legislature that it is in effect subverting the:

l .~_: whole effort of cleaning up the constitution.

J ';

I mean now you can't say that, all you can say is

what's one more block in that.

MR. HILL: There's no other way to do it, you have
I'
to have an amendment in order to get around the gratuity

prohibition.

MR. PYLES: There is one element in Alternative 2

that might obviate some of the objections, in addition to the

i)AGE 12

fact that we were thinking in terms of alternatives where

you're having two runs at it, and that is provision Number 2

3 .i for publication of -- I think it's what, four weeks, four

publications in the weekly papers around the state in the case 5 of constitutional amendments, which I don't know how important

h that is in terms of people being informed as to what's going to

be on the ballot, but I could see if it were a whole handful

8i of gratuities, i.e., privat~ bills of some kind or other that

9 they might very well get through real easily, almost unanimous

10 consent or nobody objects to them, the Governor signs them

II o~ two succeeding years, and nobody really knows what all these

0w

~ 'F ~I~ ~v~ .

12 :.~ bills are for these private people because it hasn't been
~;::
publicized.

-...:::-~,

i

--

14 ~

Now, I'm not arguing against Number 3, I'm just trying

<

I

is ~ to say that Alternative 2 does have one feature here that

.>:

:oJ

1(l ~QJ requires notification of the people, and this might cause

z

<:

17 '~" legislators to pause a little bit longer which might answer

18 the Tidwell objection that "Well, they'll just come in and

19 pressure everybody, the public may not even know."

20

MR. HENRY: They couldn't pass a private bill, they

21 could only pass a bill of general application. I mean I know

you can narrow that dawn.

MR. PYLES: That's true, we do have that in there.

MR. HENRY: But by putting that extra requirement on

::~
; there wouldn't you even give them more incentive to amend this

l _ '_._ ..

....

.

. __ .__ ..

. --------

PAGE 13

constitutional provision?

MR. PYLES: Does the amendment process now currently

call for two-thirds of both houses to get it on the ballot; is

4 that correct? MS. RYSTROM: Yes, because that was the point of

6 saying it was easier to get that larger majority for an amendment.

is

MR. HILL: You could certainly put a notificational

') requirement in here. If you're going to have two successive

i
lO sessions you could have this in there, you know, the requirement

(:J
11 z~ that any such bill shall be published or notice of such shall

o

':>.

",

L: ~" be published after it has been passed and prior to the next

(((Jc3 .' /,"~'''

"'d~\
m

i

~

~.:::

session

of

the

legislature,

and

then

that would

take

care

of

\'"'''::=:// /I

VI I

]4 ~; your notice issue.

-:f

T.

15 ".,

MR. PYLES: I believe if the veterans as an

,~)

'".l:

=>

10 ~ organization came before the General Assembly the media would

C1

z:

<

17 ~ pick up on that, and maybe that would be sufficient notice

J~ , taking sides one way or the other.

1'1

MR. HILL: Well, I think the press will, and I think

-)[) " that is the maj or feature about having it in two sessions.

I mean the press is going to look at this carefully, and I

think that's going to be a tremendous --

...,_. Ii

MR. PYLES: Or if it dealt with teachers retirement

as a group, not as an individual, the legislature in its wisdom:

felt it was important to raise the retirement benefits by ten

14 percent or whatever, I believe the media would pick it up. As far as I'm concerned, that would meet the notice requirement.
MR. CLARK: Legal notices, of course, are never read by the general public. The only protection there is that it does keep them from slipping anything by, but I come back to the basic premise. I think an amendment of this nature is not going to be slipped by anyway.
If it's a bill of general application, it's going to be of some substance, and especially in a period of two years somebody is going to -- it seems to me this will surface.
MS. RYSTROM: I'm getting convinced about the two years. I was remembering those newspaper backups at the end of the session that they would obviously give some special attention to what was done in Session A or Year A that required further action the following year, although I wouldn't object to legal advertising either.
What do you all think about what I was saying, though, about -- Do you think that we are safe in assuming that if we come back with a beefed up recommendation like the one we started out with that we can kind of unprepared on another front in case the non-referendum approach is rejected?
MR. HILL: You see, we have that written anyway, we have it ready. I think if the committee can come to an agreement among itself after discussing it that a particular

15 option is better than the other ones, then it's helpful.
I mean if you present all these options to the committee, then they're lost. I mean I think they would appreciate having a recommendation. If they don't like it, they can vote it down, and we have these other alternatives ready.
MR. PYLES: Let's see if we can agree maybe on Number 3 if that's our will. If it's turned down out there, or if someone doesn't like it, then the alternative is indeed to amend the constitution which we're trying to forestall, we're trying to preclude that, but that's always a fall-back to this one. If the General Assembly wants to refer things back to the people, there's nothing we can do to stop that.
MS. RYSTROM: I was sort of thinking that what we might -- maybe this is not so, but it might be valuable for us, assuming we still ~upport Alternative 3, as a fall-back position would be the referendum, not in a generic sense, but the constitutional approach we never really dealt with between those two. If you have to go to the people, should you go to the people for a constitutional amendment, or should you go for this.
MS. NONIDEZ: I think if you're going to ask the voters by a referendum method which is, of course, involved in our ratification process for amendments, that the voter then ought to be able to go to the constitution, they ought

16 to be able te -- if it's important enough that you're asking them to come and respond to this 1 then I think that sort of issue 1 those kinds of matters are different from lawi they shouldn't just be put in the Code 1 they should be in the constitution.
You're telling them, your message is "This is so important that we have to have the voters' participation in this," and that's a different kind of issue, you know, than a local referendum on whether or not you'll go from dry to wet and sell alcoholic beverages, those kinds of more parochial issues.
If you're asking for the state electorate at large to respond to a question, a ballot question of this nature, I think it ought to be in the constitution.
MS. RYSTROM: I don't quite agree with that, but I think I don't like the solution anyway just because it seems to me it has most of the disadvantages of the amendment route and not enough the only advantage it has over the amendment route is that it doesn't clutter the constitution, but otherwise you're dealing with it as if it were a constitutional amendment, and I don't quite like that.
I'm not sure we could -- maybe we can't even reach a consensus on setting aside Alternative 3 between land 2. I don't know, but I would sort of hate for us to be in total disarray if we find that Alternative 3 is not acceptable.

CHAIRMAN SWEENEY; I have a suggestion for your

consideration of this problem.

Alternative 1, recognizing that is probably not what

we're going to come up with, but in the event the full

committee says "What else have you got?", we can say "Well,

here's Alternative las we have determined it ought to be in

the event that you disagree with our other recommendations,"

and Alternative 1 is the existing constitution in essence

restated.

Essentially does anybody have any problem with any

of the exceptions that are in there now?

I have a problem with two of them, primarily because

,,

i "t .. ~

I don't know they are meaningful at all, and that's the oil

well provision and also the one dealing with grants to

counties in which the state owns at least 20,000 acres.

MR. HENRY; You don't see them as gratuities?

CHAIRMAN SWEENEY: I do; they're clearly gratuities,

but I don't know if they have any real world significance.

MR. HENRY; I'm sure some of the counties getting

this money --

CHAIRMAN SWEENEY; Do you know what that refers to,

Senator?

MR. HENRY: There is a coun~that's getting the

money.

CHAIRMAN SWEENEY; There's one, at least one?

18

MR. HENRY: There is at least one,yes.

CHAIRMAN Sl\1EENEY: Then that does have real world

significance.

MR. HENRY: Then the 250,000 -- you know that guy that's plugging up wells up there in Dade County right now

CHAIRMAN SWEENEY: This won't be effective until

1980.

MR. CLARK: I agree on that. I think it just

burdens the constitution. $250,000 when it was written, you

know, was an attractive motivating force, it is nothing now.

It's almost a funny thing in the constitution, it's ludicrous.

If anybody's serious about it, it ought to be $50

million rather than $250,000, and really it makes us all look

stupid. I really think it does.

MR. HENRY: You know more about this -- could the

state effectively revoke an offer, I mean just like that?

CHAIRMAN SWEENEY: If it's been accepted, it can't,

but --

MR. HENRY: Is there any other requirement placed

upon a state? I know a private contracting party can revoke
.,"
an offer.
CHAIRMAN SWEENEY: To me that's why it ought not be

in the constitution. I don't think anybody is doing that, I

mean I don't think anybody is drilling an oil well for

$250,000, but my theory is to let them litigate it, if they're

19 out there relying on this provision and we repeal it, let them litigate it.
MR. HENRY: They might not be relying on it, but certainly it's no small sum. I'm sure they would like to have it.
CHAIRMAN SWEENEY: We're only talking about one $250,000.
MR. CLARK: To oil men that's a paltry sum; it has no affect whatsoever.
MS. RYSTROM: Except that it says a producing commercial oil well. It doesn't say on that would be -It seems to me all you've got to do is take some oil out of the ground with a well to qualify for this, and it may be that it would be one that would not be commercially feasible. It says commercial, but it doesn't say feasible. You know, you can find not very much oil I would think, in effect do the test drilling, find that something is not worth bothering with --
CHAIRMAN SWEENEY: The present constitution talks about all the limitations on it, at least a hundred barrels a day, and --
MS. RYSTROM: I couldn't evaluate those figures at all.
MR. HILL: Anyway, it says the General Assembly is authorized to provide this payment. I don't see how anybody

20 could rely on that. It just allows them, should someone do this, to make such a payment without it being considered a gratuity, but I don't think that this could be considered an offer; it's too tentative based on the General Assembly's action.
MS. RYSTROM: I've been dealing with it as if it were guaranteed that the first producer rather than
MR. HILL: Is there a statute that --? MR. HENRY: I would think that there is. MR. HILL: We don't know. We'll have to check that. CHAIRMAN SwEENEY: There is the code reference. Do you want to look it up? MS. NONIDEZ: It's locked up. CHAIRMAN SWEENEY: That's the way all laws ought to be.
(Laughter. ) MS. RYSTROM: Tim, how does the Board of Regents justify waiver of tuition for some graduate students and some foreign students in their rules and not calling it a gratuity? Do you know? CHAIRMAN SWEENEY: Do they get anything in return? They have authority to grant scholarships. MS. RYSTROM: It's not a scholarship, it's a waiver of tuition is the expression they use. MR. PYLES: The way I understand it, if a person is

, \, ,I:

21

employed as a graduate teaching assistant or a gradua~e

research assistant, then out of state is waived. Is that

what you're talking about?

MS. RYSTROM: I'm talking about out of state. I

didn't say that I'll bet, did I? I mean it sounded like the

whole tUition.

MR. PYLES: What you meant was out of state.

MS. RYSTROM: Right, for some graduate students,

but I didn't think I read in the regulations --

CHAIRMAN SWEENEY: That would be part of their

compensation. In other words, the state is not giving anything

away without getting something in return.

MS. RYSTROM: I don't think it said anything, though,

about getting anything in return. Before our next meeting

I'll copy that and you can answer the question better, but

what I'm wondering, the reason I bring it up is I wonder if

it's the case that there is a fairly erratic judgment about

what would be a gratuity and what wouldn't. There are lots

of things now that a real hard-nosed approach to this would

say it's at least as much of a gratuity as these.

CHAIRMAN SWEENEY: I don'tthink there is a hard-

nosed approach, I think it's fairly consistent. Essentially

when you're talking about the General Assembly, they have the

authority to contract, and as long as they get something in

exchange for what they're giving they can give it, but if

22 they just decide they're going to waive tuition for people with red hair one day, it's not going to fly, it's a gratuity, they're not getting something in returB except a lot more red-haired students.
MR. HILL: It could be a scholarship fund. CHAIRMM~ SWEENEY: There are other exceptions, there are scholarship exceptions contained in a different article, but the consistent underlyinr, theory is prospectively if an agency of the state or the state is going to get something in exchange for what it's giving up, then that's not a gratuity. Retroactively, the state cannot have already received an agreed upon performance and then give something in addition to that. MR. CLARK: Under Alternative 1, Section (d), that's not in the current constitution, is it? MR. SWEENEY: It is in Subsection 6; subsection 6 as it now reads deals directly with the Department of Industry and Trade. MR. CLARK: I thought we were discussing this earlier some time back, that this was one of the problems they were having, and they were precluded from picking up -MR. HILL: Another department that wanted to have the same exception -- the Department of Industry and Trade has it because of this, and the Department of Agriculture

\li'

23

or Department of -- some other department wants to be able to do the same thing, and they canlt unless they get their own amendment speaking to their department.
MR. SWEENEY: This will be to some extent a broadening of this provision, because if you consider what the Department of Agriculture does in the location or develppment of new business, industry or tourism, then the General Assembly could authorize the Agriculture to do the same thing that the Industry and Trade does. The constitution now speaks only to Industry and Trade.
MR. CLARK: This is a broadening? CHAI~~ SWEENEY: Yes, to some extent. MS. RYSTROM: I was looking harder at the language in Alternative 1, and I can go back and check it as it is now, but assuming that Paragraph (c) under Paragraph 6 is pretty much like the way it is currently, that is remarkably openended. I mean we the people have apparently authorized the legislature to make decisions about innocent victims of crime, of whom there are many, many thousands every year, and obviously without limitation up to a certain amount we say compensation, but I presume that compensation would be vast hundreds of thousands of dollars for damages. I think you could say if the people have done that , in an amendment it's not that different from giving the legislature the right to identify another such situation like

24

that. Do you see what I mean? clearly.

I don't think I've said it

Apparently we the people are not quite as anxious to watch every move the legislature makes with regard to gratuities as we have sort of indicated to one another we are, or we wouldn't have put 'in such a wide open exception, which I would think would be an argument back for the Alternative 3.
MR. PYLES: Mr. Chairman, may I ask a question with respect to Alternative 3, Paragraph (b)?

The last clause there, or phrase, " ... and all laws heretofore adopted thereunder shall continue in force

and effect until modified or repealed." All right, modified or repealed.

If they were modified, if they increased this

$250,000 to two and a half million, does that require a twothirds vote of the process in Paragraph (a), or a simple

majority? CHAIRMAN SWEENEY: It would require you to go through
Paragraph (a) because (b) preserves only the existing language

which is $250,000 maximum. MR. PYLES: Okay. That would have been de novo.

Or repealed, may it be repealed by a simple majority?

CHAIRMAN SWEENEY: Yes. MR. HILL: Should we say "as herein provided" so that we know until modified or repealed in the manner provided

-. \,

25

in (a) that's what we intend. Right? CHAIRMAN SWEENEY: To the extent they have -MR. HILL: Existing powers? CHAIRMAN SWEENEY: What (b) does is preserve the
existing powers; it doesn't expand them, doesn't limit them. Anything ~hey can do under the existing constitution they can continue to do.
MR. HILL: Okay. MR. PYLES: Mr. Chairman, was it your thought that what we wanted to do was to line these up in some kind of order so when we go in before the full committee we say "All right, this is it"? And our fall-back position will be Number 1 or 2; is that your strategy? CHAIRMAN S~~ENEY: Yes, because I thought it might be simpler to take the existing language, the attempt just to make the existing language simpler first, and then go to the rest of them. MR. PYLES: Are you in order for a motion? CHAIRMAN SWEENEY: Yes. MR. PYLES: I don't want to make a contingent motion. Maybe what we ought to do is -- I'm going to move, sir, that we adopt Alternative 3. MR. CLARK: Second. CHAIRMAN SWEENEY: Let me rule your motion out of order for just a moment.

What I want to do is take Alternative 1 so that we go back in, and when we reach Alternative 1 we'll say "The committee has studied Alternative 1, and here is our decision on Alternative 1 if you decide to adopt it. That's not our recommendation, our recommendation is Alternative 3, and that's the one we want to talk about first."
MR. PYLES: Is 37 CHAI~~ SWEENEY: Is 3, but right now I want to talk about Alternative 1, because I thought that would be the easiest to get out of the way. MR. PYLES: Okay. What are you saying? How do you want to proceed? CHAIRMAN SWEENEY: A motion to adopt Alternative 1 as is, not in terms of our preference, but just in terms of language. MR. PYLES: Mr. Chairman, I move we adopt Alternative
1.
CHAIRMAN SWEENEY: Is there a second to the motion? MR. CLARK: I'm not clear, Tim. We are not approving, we are not accepting it, we're just simply -CHAIRMAN SWEENEY: What I want to be in a position to do is when we go back to the full committee is say to the full committee that our subcommittee recommends Alternative 3 as we eventually come down to Alternative 3, let that be voted, and if it's knocked down, then we say "Well, here are

I"
I

1,1;!

27

two other alternatives you can consider, either the existing

constitution or the referendum approach, and we have studied

both of those, and if you decide to go with the existing

constitution, here's the way we think it ought to be reworded."

MR. PYLES: What you would like to do then is have approval of all three, and then go back to --
CHAIRMAN SWEENEY: Go back to the committee with our recommendation as to which one we would

MR. CLARK: Are we in order to do that, then? Are we in a position to make some alterations in Alternative l?

I just cannot swallow (b), paragraph (b),.

CHAIRMAN SWEENEY: The way I'll treat that is, Dr.

Pyles' motion on Alternative 1 has been seconded, and you have made a subsequent motion to strike Subparagraph (b)?

MR. CLARK: Thank you.

CHAIRMAN SWEENEY: Is there a second to that motion? (Motion seconded.)
CHAIRMAN SWEENEY: All right. All in favor of

striking Subparagraph (b) -that?

Is there any discussion of

All in favor of striking subparagraph (b) signify

by raising your right hand. (A show of hands.)

CHAIRMAN SWEENEY: The vote is five. All opposed.

It is unanimous.

28
MS. RYSTROM; It would be a great idea if prior to this meeting we knew whether there was any legislation pursuant to this section. I mean if there isn't, that would be a pretty good indication that it's hollow filler.
MR. HENRY: I'll go check the oil wells up in Cherokee County.
MS. NONIDEZ; Tim, I note that (g), that is designed to affect Ware County. Whether or not -- certainly we need to look into that. I know that that's the county that that's designed to affect.
CHAIRMAN SWEENEY; The appropriation of that would go to Natural Resources?
MS. NONIDEZ; I'm not sure. CHAIRMAN SWEENEY; What's the land used for? MR. HENRY; A state park. MS. NONIDEZ; Yes. CHAIRMAN SWEENEY; It was probably Natural Resources. I guess that would be the easiest way to check. Okay. On Alternative 1 as amended, is there a motion to approve it? MS. RYSTROM; I've got another question. Excuse me. On (h), I have probably looked at this many times before, but not I'm reading it more carefully, "No grant to any county or municipality pursuant to general law not

"\;:E 29 otherwise inconsistent with this constitution shall be prohibited by this paragraph. "
In other words, such grants are allowed unless they are otherwise prohibited? Is that it?
CHAIRMAN SWEENEY; There are two problems. Any time you deal with gratuities there are essentially two problems. One is the prohibition against gratuities, and the other is even if it were not a gratuity are you spending the state's money for something that the constitution says it can be spent for.
There has been some confusion, witness Subparagraph (g), about whether a grant to a political subdivision of. the state is a gratuity or not. Tome it's not properly a gratuity, I just want to clarify that, so that if it's otherwise authorized by the constitution the General Assembly wants to do it, they can. Without saying it's otherwise authorized by the constitution, we're not authorizing them to do it, we're saying it doesn't have anything to do with this paragraph.
Okay. All in favor of Alternative 1 as amended signify by raising your right hand.
(A show of hands.) CHAIRMAN SWEENEY: The vote is again unanimous. MR. PYLES: Mr. Chairman, I move the adoption of Alternative 2.

30 CHAIRMAN SWEENEY: Is there a second? MS. RYSTROM: Seconded. MR. CLARK: We're doing this for the mechanics? CHAIRMAN SWEENEY: Right, just for the mechanics, just to get the wording down, to tell the full committee we have discussed each one of these alternatives. MR. HIL~: Is it your intention that if the redommendation of the committee should die that you're going to bring these up, these alternatives up together, that we have two other options, and go ahead and "Here they are" so we don't have to worry about_which is preferable, just let the committee vote? CHAIRMAN SWEENEY: So we don't come back for another meeting, so we can say we've done all we're going to do. MS. RYSTROM: I think Mel meant between the two remaining alternatives, assuming that our first choice is knocked down. Do we want to say that this is our second choice, or are we going to say these are the other two remaining? I don't know what the will of this committee is. CHAIRMAN SWEENEY: Alternative 2 has been moved and seconded. I have a proposed change at the end of the first sentence "Two-thirds of the membership in each house," I would like to add the following words: "In two successive meetings in regular sessinn, which shall upon final adoption

PACE 31
i
be subject to revision by the Governor in the manner provided

for other laws."

MR. CLARK: Revision by the Governor?

CHAIRMAN SWEENEY: That's the word the

constitution uses defining his veto power.

MR. PYLES: All right. You say in two successive

meetings in regular session

What else?

CHAIRMAN SWEENEY: Which upon final adoption -- I

guess upon final adoption by the General Assembly be subject

to revision by the Governor in the manner provided for other

laws.

MR. PYLES: Provided -- what was that, by other

laws?

CHAIRMAN SWEENEY: -- provided for other laws.

MS. RYSTROM: Can successive meetin~occur one day

after the other one?

CHAIRMAN SWEENEY: No. As I understand the new

concept in the way the constitution is being amended now, is

that you have one General Assembly in continuous session,

which consists of two meetings, one in one year, one in the

next year. Is that right? And then an extraordinary session

if it's called?

MS. NONIDEZ: Right.

CHAIRM)~ SWEENEY: So this would not say two

consecutive days, this would mean two --

32
MS. NONIDEZ: Two successive regular sessions. When you talk about successive regular sessions, a session is any annual meeting of the General Assembly. MS. RYSTROM: That's what I thought, but before when when we talked about it, when we talked about -- I can't find it any more we were dealing with the sessions, if that referred to the two-year period, the full life of a given legislature. MR. HILL: That's how I interpreted it, but if somebody knows more about this than me, maybe the regular session means a year. MS. RYSTROM: In the federal government we definitely us; the word "session," don't we, to mean a year, if it I s the first session or the second session, an act of the Congress, and that's compatible with what Cindy said. At any rate, just for the concept you mean -CHAIRMAN S~~ENEY: Concept. It would be in two successive regular sessions; not in two successive meetings ".) of a regular session, but in two successive regular sessions. MS. RYSTROM: Then those two sessions could be, whatever session means, part of the same General Assembly, or two separate ones? CHAI~~ SWEENEY: Well, no, I'm not sure about that. MS. RYSTROM: The last half of one, and the first half of another?

i :\CE 33 MS. NONIDEZ: I think you have to say of the same General Assembly. I think it already carries that weight, unless you overcame that. You know, a General Assembly has two regular sessions; the General Assembly exists for a twoyear period. MS. RYSTROM: And you're wanting, Tim, to say that we cannot go from one General Assembly to the next? CHAIRMAN SWEENEY: I don't really have any problem with doing it or not doing it. MS. RYSTROM: If you don't do it, if you say they have to be in the same one, then in a second year of a given General Assembly it's three years until you can complete this procedure. Well, more than three years because we're still talking about going to the people, but you couldn't do it in that second year of the legislature. How would you want to do that? Is that too terrible a question? It introduces this whole additional problem, we're still going to the people. CHAIRMAN SWEENEY: My concept in Alternative 2 is to do the same thing that's now required. MR. PYLES: To dress up the language. CHAIRMAN SWEENEY: To do the same thing in practice that's now required; in other words, a constitutional amendment, a vote by the people. The concern was that it would take it out of the constitution. There's an aura about

34

amending the constitution, it shows things down in the General

Assembly, and since we're taking that away, to throw a procedural block so that it can't fly through and the ballot won't be flooded every two years. The procedural block would be two successive sessions and approval by the Governor.

MS. RYSTROM: I wish we had heard what the clerks

of the two houses think about it. You know, we didn't even

tryout the two successive things; we thought about that at

lunch I think.

I~I

I wonder in terms of the mechanics of the hous'es if

that looks like an incredible stumbling block, or if it would

be nothing at all.

MR. PYLES: Do I understand'the present law, Tim,

J;

to suggest that the Governor may revise and alter what has

been proposed to him? CHAIRMAN SWEENEY: No. The "revision" I think in

this context simply means review. He can review the bill,

and it can become law without his signature, or he can veto

it. MR. PYLES: I hear what you're saying. MS. RYSTROM: You could substitute the word "veto"

where you say "revision" and mean the same thing? You're

not saying it's an absolute veto right as we did in

Alternative 3? It's a veto that could be overriden? CHAIRMAN SWEENEY: Right .

MS. RYSTROM: Assuming that we go with your language, if the word "veto" would do the same thing, it would sure be a heck of a lot clearer because this really does sound like the Governor is changing the capitalization on some of the words.
MR. HILL: This is definitely a case where a constitutional amendment would be easier than this, because the Governor can't veto a constitutional amendment, so I think this would assure that they're not going to have a problem.
I mean I think if we would allow the Governor to veto this, which you can't do with an amendment, they're just going to go the amendment route, and the heck with the Governor.
I mean I don't think this is a realistic proposal under the circumstances.
CHAIRMAN SWEENEY: Well, the way it's worded now without the language I've been talking about, it still requires his approval.
The only block I'm th~owing up, and the only think I'm trying to do is to require two successive approvals, and to clarify the fact that it's only upon final adoption that the Governor has the opportunity to approve or reject the bill.
MS. RYSTROM: As Alternative 2 stands now, the

36 Governor can veto, but it can be overruled without your addition; right?
CHAIRMAN SWEENEY: No. Well, the only thing my language -- the language we have been talking about right now under the existing language, without the language I was talking about, the General Assembly is required to adopt it upon two-thirds vote, and the Governor has the power of veto, and the General Assembly has the power to override his veto. And all I was trying to do was to throw up the additional procedural block for two successive sessions, and to clarify the fact the Governor's right to veto or whatever don't come I' into play until it has been adopted the second time around.
MR. HENRY: Tim, what happens here is like a general law is passed in the legislature, it goes to the Governor who can either veto it or not veto it; then it goes on the referendum, and after it is approved, then it becomes effective. Does the Governor then have to declare it again, or it's law at that point?
CHAIRMAN SWEENEY: Yes. MR. HILL: I would want to know if you feel this is worthy of a recommendation to the committee. This is something we have developed here as kind of a fall-back position in the event that the referendum was necessary, but I tend to agree with Cindy. If you're going to make them go through all that rigmarole they have to go through now to get an

!
amendment, then this seems like so much extra effort. We're giving the impression by making the recommendation that it's a help, that it some way it improves things, when in fact it doesn't really help very much, and I don't know if it's even worthy of recommendation.
SENATOR BROWN: One thing I've been meaning to ask. You can only override the Governor's veto the first ten days of the session. If we pass a law next year and he vetos the bill after we return, we have a new General Assembly elected, so there's no way you can override the veto.
CHAIRMAN SWEENEY: That f s what the committee is dealing with on veto.
MS. NONIDEZ: They are overcoming that. That is one of their thoughts, what the mechanism will be, the procedural aspects of it. They're not really refined, but ~-
MR. CLARK: It seems to me the only value of this is it keeps from cluttering the constitution, but the effect is the same thing. The people don't care if they're voting on an amendment or a law, they don't even know the difference. I mean they might, but generally speaking they don't, so we trying to avoid swallowing all this constitutional amendment, just let them vote on the law, and I don't think we are doing much. I don't think we are really adding great protection in the people's mind by saying you can vote on this as a law but not as a constitutional amendment; they're getting at the

38 same ultimate goal. Alternative 2 has a lot of questions it seems. The two successive approvals I think is a good barrier, a good way, "Let's wait and think about this another year," which is in Alternative 3, but I don't see in Alternative 2 real great validity in what we're trying to do. It's just one more step that duplicates 3 pretty much between a law and an amendment. That's really the basic difference.
CHAIRMAN SWEENEY: Okay. Just so we get on record without regard to the language I've been talking about, the two successive regular sessions, is it the consensus of the committee that Alternative 2 really doesn't accomplish anything, really doesn't accomplish what we're trying to accomplish, we'd be better just to leave it as is and go to Alternative 3?
MS. RYSTROM: That's certainly my opinion, with an expression of admiration for, the creativity that was used in developing it.
CHAIRMAN SWEENEY: I'll tale the blame. MS. RYSTROM: I think it was a good idea, it just didn't work out. MR. HILL: Then I'll take it. MR. CLARK: I think I was picking up on Mel's thoughts while ago. I thought you had offered that yourself. CHAIRMAN SWEENEY: I'm not taking credit for it. MS. RYSTROM: Or blame?

',' 'I

39

CHAIRMAN SWEENEY: Or blame. MR. HILL: We're still friends.
(Laughter.) CHAIRMAN SWEENEY: Let's take a vote. All those in favor of Alternative 2 raise your hand. All opposed?
(A show of hands.) CHAIRMAN SWEENEY: The vote is four to one against Alternative 2. All right. Let's go to Alternative 3. MR. PYLES: Mr. Chairman, I move the adoption of Alternative 3. MR. CLARK: Seconded. CHAIRMAN SWEENEY: Lots of seconds. I have a suggestion on the wording. Once before we got into changing it from the words "a general law" to "a law of general application." I don't know there is any special meaning to "a law of general application." "A general law" has a meaning in the constitution, and just for the purposes of consistency I think we ought to use the term "a general law. " MR. CLARK: It sounds better to me. MR. PYLES: Say "then except pursuant to a general law. "

CHAIRMAN SWEENEY: A general law.

MR. HILL: Do you want to say "in two successive

regular sessions"? In other words, I'm not sure what you

want, but if we say "two successive regular sessions," based

on what Cindy said it sounds like that means two years. It

might or might not be the same group, and so

CHAIRMAN SWEENEY: I think the problem with the words

is when you say "adopted by the General Assembly," that means

one General Assembly.

MR. HENRY: Isn't the term "law of general applica-

tion," or "general law", isn't that a term of art? I believe

Mr. Edwards explained that at one point that there is a

\ \'\..

difference, a very subtle difference.

CHAIRMAN SWEENEY: I have looked for it, and I can't

find it.

MS. NONIDEZ: I'll check with him on that. I'll

have him look at this.

MR. HENRY: I thought it might even perhaps solve

the question brought up at the full committee about it, and

I think you satisfied yourself that it couldn't happen that

they could legislate a type of vehicle by this extraordinary

majority to grant gratuities and then just plug the

gratuities into it by a simple majority.

You don't think there's any problem?

CHAIRMAN SWEENEY: No .

MR. HENRY: I know you stated what your intentions are.
CHAIRMAN SWEENEY: To me it's -- Well, maybe you have to go to other provisions of the constitution, but to me it's clear what you're trying to do is by general law define the purpose for which you are making the donation or giving the gratuity, or forgiving a debt, the mechanisms by which it's done. It would require that a general law can't simply say the General Assembly can give gratuities without regard to ~pecifying what it is.
MS. RYSTROM: That was the most important point that was made on this topic the other day I thought, and regardless of whether you're satisfied or not, I don't think that that would satisfy the whole committee, and I'm not sure it would me any more because that was really sort of alarming.
Maybe a parallel, maybe not, is the thing I was pointing out about the way now the General Assembly is authorized sort of with a blank check to reimburse the innocent victims of crime, and I never thought of that until I guess it was Mr. Edwards brought it up, but once he did I don't see why it couldn't be interpreted that way, and I also don't see how to prevent it. That's the trickier thing, I think, but if we could introduce some additional language there that clarifies what you're saying so that the people who are looking at it with such sharp eyes would see that it

42
was precluded. In fact, I real~y think that that was maybe what was
wrong with Alternative 3 from the point of view of the full committee, and not so much that you weren't going back to the peo~le, but it looked like a real open door.
CHAIRMAN SWEENEY: It is a real open door. MS. RYSTROM: I mean a door more open that we intended. MR. HILL: Because of the public interest or --? MS. RYSTROM: Because of the possibility of it in effect creating this -CHAIRMAN SWEENEY: The concern is that the General Assembly could adopt a law saying that the General Assembly
---- ,-
can give gratuities, period, just say it's in the public interest that the General Assembly be able to give gratuities by three-fourths vote and, therefore, they could appropriate the world away without coming back for this three-fourths vote.
MR. HILL: What if we said "grant any particular donation or gratuity"? Or "anyone donation or gratuity" to sort of lock it down that each time there's a separate --
MS. RYSTROM: Could you add another section that says something like "such law" or "general law," something like the language that's under discussion for limiting the subject matter of a bill to one topic?

MR. HENRY: It would still be one topic. MS. RYSTROM: It's the law that we want to particularize~ not the gratuity. I mean it's the link between the two. MR. HILL: You're right. MR. HENRY: Do you think if you put some kind of qualification in like it could not appropriate the money except pursuant to -If they did that~ if they enacted enabling legislation by this three-quarters majority to grant gratuities because gratuities are in the public interest~ and then yoU put the further requirement in there that they had to appropriate it at the same time~ .and they had to appropriate for that at the same time~ they would then have to come in later if they wanted to and say pursuant -- you know~ by simple majority they wanted to use this enabling legislation to give it to all the Georgia football players~ then they would have to furhter appropriate by three-quarters~ or they would have to re-enact in order to appropriate for that purpose. CHAIRMAN SWEENEY: I don't think we want to complicate the appropriations process any more than it's already complicated. MR. HILL: Let's not change one comma. MS. NONIDEZ: It's so clear as it is.

44

(laughter. )

MS. RYSTROM: It's not the word "general" that's a

problem. I mean if we omitted the word "general,1l we would

have exactly the same problem.

MR. HILL: How about "pursuant to a general law of

;Limited application"?

(Laughter. )

MR. HENRY: We could do like they do in the statutes,

in paragraph (c) give a definition of what we mean.

I.

CHAIRMAN SWEENEY: To me

,I

MR. HILL: Oh, how about this? Excuse me.

CHAIRMAN SWEENEY: Go ahead.

MR. HILL: "Pursuant to a general law for each such

donation or gratuity." How about that? "Pursuant to a general

law for each such donation or gratuity"?

'(

MS. RYSTROM: The only thing I was thinking along

these lines before, wondering did that mean if two people

were going to get them it requires two laws? If it clearly ,, . wouldn't, then why couldn't it also be a tremendous class of

gratuities? It could just be anything short of everyone I

suppose.

MR. CLARK: I think we're swallowing gnats rather

than elephants. Again maybe I'm pleading indeally for faith

in the General Assembly that shouldn't exist, but a

constitution is trying to lay down broad principles and

; i'.

45

purposes, and here again I can't see trying to draw lines and

restrictions and details that should not really be a

constitutional burden. To me it's clear that you don't want

the General Assembly to give away money except for general

purposes in the public interest, and it has to have three-

fourths vote, and I see maybe we're again getting back to the

quibbling point. This is what has been the problem all along.

I don't see how a court, if thi$ came to a question how the

judge could read this any other way than that it was in the

public interest and passed by three-fourths vote, it was for

a purpose -- it had two sessions, I think we ought to clarify

that, whether we're talking about two years or two different

General Assemblies voting on it.

MS. RYSTROM: The theory is they would only have to

do that once, and that having done it once that everything

that they could do afterwards could be described as every-

thing they do is of a general purpose, so that's not any help

at all.

MR. CLARK: Each gratuity or donation I don't think

could be covered by a general law. I think Mel's "for each

such 'donation or gratuity", that's about as fine tuned as you

can get.

CHAIRMAN SWEENEY: How about "pursuant to a general

law for a particular purpose serving the public interest"?

To me that means they've got to tie a particular purpose to

-".1

46

the public interest. MR. CLARK: Or for each such . .CHAIRMAN SWEENEY: For a single purpose serving the
public interest.

MS. RYSTROM: That would be really just a little bit more -- pretty much what Mel said, a little more -- language

a little more typical of the constitution.

I wish I knew what the people who had seen -- what

Mr. Edwards would think about that.

1.

MR. HILL: For a single purpose; maybe the purpose

J
is to provide for gratuities. I think "purpose'l is a broader

use of the term.

What if we just said any individual donation or ( : gratuity, or any separate, or try to have some modifying
word for donation or gratuity, as well as the locking it into that particular, any particular donation. Maybe that would work.
MS. RYST~OM: Except I think if what you're modifying

is the donation rather than the law -- you know, it's the

law we're trying to control. Now about something like "authorizing a particular

gratuity" or something like that where we would get away from "purpose'l and stick with gratuity? A law authorizing a

particular gratuity serving the public interest. MS. NONIDEZ: I think you picked up on something,

,'f

47

Barbara. "Authorizing a particular II MR. HILL: Pursuant to a general law authorizing
a particular gratuity serving the public interest adopted by the General Assembly. Is that what it would be, authorizing a particular donation or gratuity? Do we want to repeat ourselves?
MS. RYSTROM: If you don't and what someone wants to do becomes a donation, then you have it prohibited.
MR. HILL: Which serves the public interest. Wait a minute. Then that's going to change the rest of the sentence.
CHAIRMAN SWEENEY: I think the language on the General Assembly, it says adopted by the same or succeeding General Assembly in two successive regular sessions.
MR. PYLES: Could you say by_the General Assemblies in two successive regular sessions? Is this the idea you want, is to have two separate
MR. CLARK: I think that's what we need to clarify. MR. PYLES: That's another statement once we've gotten over the first one. MS. RYSTROM: A separate issue. CHAIRMAN SWEENEY: Which way should it go, the same General Assembly in two successive sessions of the same General Assembly, or two different -- do you want an election in between?

48

MS. RYSTROM: Or a third possibility would be either

one, two years, any two.

MR. CLARK: My quandry or viewpoint on it is that

if there's any question about it, if you had two different

General Assemblies involved you're getting even another

protection, you know, that you've not had the same group, they

voted it once and they still stick with it. But the other side

of this is it's another encumbrance in time, and the government

is so molasses slow sometimes anyway that it just makes

]11 things, it burdens the effective operation of government, so

I have two feelings on it, you know, both ways. There ought

tobe two different General Assemblies, or that's a burden

, that just again weights the whole operation down, or it ought

to be two votes in successive years either by the same one or

15

I guess it couldn't be, though.

All I'm doing is expressing my own confusion.

!'

MS. RYSTROM: I hadn't thought about that. There

would be no way really under the present procedure to take it j') up in the same General Assembly the second year, except we

would be creating a procedure, wouldn't we? I mean if we
"I
wrote that into the constitution, wouldn't that override the

procedures that prevent that now.

SENATOR BROWN: If you have to do it in the same

session, you couldn't do it in the first year would only be

one year.

i',\GF 49 CHAIRMAN SWEENEY: You would have to say something long the lines about the same or succeeding General Assembly, two successive regular sessions. You've got to override the fact that the General Assembly, upon the election of a succeeding General Assembly, nothing that the prior Assembly has done carries forward to the new General Assembly. MS. RYSTROM: But we could do it, we could fix The solution I would like best would be two successive years, and I wouldn't care whether they were the same General Assembly or not. I mean there would be advantages and disadvantages either way. Also that would be, it seems to me, simpler to describe. It would be easier probably if I wanted to get one of these things through, and I were a legislator, to do it in the first year because I would be talking to the same folks when I got the validation the second year. SENATOR BROWN: If something came up that needed to be dpne, you couldn't do it in the second unless you carried it over, say any two years. MS. RYSTROM: That's what I meant. I like the any two years. They would probably choose the other way most of the time. MR. PYLES: What you're suggesting is just add the word "any" between "in" and "two"? MR. HILL: By, the same or two successive General

50 Assemblies, two successive regular sessions would lock it in. If we say adopted by the same or two successive General Assemblies. Wasn't that the language?
CHAIRMAN SWEENEY: The same or the succeeding. MR. HENRY: Even if you didn't extend it to to separate General Assemblies and just said in two successive years, you still get a shot at half of them, half the legislators, wouldn't you? MS. NONIDEZ: You may be able, Tim, to get around ~ '. ! it this way, by saying something like adopted in any two successive regular sessions. MS. RYSTROM: Just leave the words "General Assembly" out? MS. NONIDEZ: Yes. In other words, if we understand what you would like to do here is not tie it to the same General Assembly. MS. RYSTROM: How about the words "The General Assembly" in the first part of that sentence? Would that lock it in to a single General Assembly? MS. NONIDEZ: Adopted in any two. MS. RYSTROM: I was talking about right after the (a), "Except as otherwise provided in this constitution, the General Assembly ... " It was that instance or that expression I was wondering about. MS. NONIDEZ: I don't think that's a problem up

there. MR. CLARK: Cindy, how did your proposal read? MS. NONIDEZ: Pursuant to a general law authorizing
a particular donation or gratuity which serves -- serving the public interest adopted in any two successive regular sessions by the required votes.
MR. HILL: Let me ask you this. If we would decide to go this route, is the three-fourths -- you know, that was put in there to try to help get more -- is that an overkill, would two-thirds be enough?
I don't know of any place else we have the threefourths, and I'm not sure that the difference is much, and again, it might be easier to amend the constitution since you only have two-thirds requirement than this. We don't want to encourage them to do that, so maybe a twm-thirds would be a better figure to use here.
MR. CLARK: To prevent them from throwing it back to the amendment.
MS. RYSTROM: I think that's probably a good idea. I was astonished that nobody objected to the three-quarters at the full meeting. I thought that they were so busy shooting at other aspects of it that nobody got around to that.
MR. CLARK: Senator, how do you feel about that? What's the difference between a two-thirds and three-fourths?
SENATOR BROWN: I think you can get three-fourths

52
in the Senate all right. Idon't know about the House. I think two-thirds would be adequate, better than three-fourths.
MR. CLARK: Could you go to the amendment by the two-thirds vote?
MR. HILL: Yes. MS .. RYSTROM: We still are saying membership of each house, and this is what we wanted to change. Didn't we do that conforming language, the members to which --? MR. HILL: We've had a problem because now we've not locked in the number. We said before, it used to say the membership of each house to which the house is entitled under the new constitution. MS. RYSTROM: It didn't say under the constitution,
\
though, it just said to which each is entitled. They would be entitled to a number by statute.
MR. HILL: I was thinking it was still okay as long as we drop "under the constitution."
MS. RYSTROM: For example, I would feel a whole lot better about two-thirds if I were certain it could never be interpreted as two-thirds of anything less than the membership to which it's entitled by statute.
Somehow I thought this even when we were deciding it, that there was something rather jarring about suddenly introducing a whole new proportion that you haven't seen anywhere else in the constitution, and I didn't stop to figure

i"

53

it out, but we're not talking about very many votes, at least in the Senate.
MR. HILL: Obviously the protection that this offers is not the extraordinary majority, it's the two successive years and the fact that the press and anybody that's interested, would get in there and look at this and raise some objection if they have one, so I don't really see the difference is enough to warrant change.
MS. RYSTROM: You still have the absolute veto of the Governor.
MR. HILL: Yes. MR. PYLES: Mr. Chairman, I move changing threefourths to two-thirds. My rationale is that I do indeed believe that we have substantially strenghened the fact that we are not going to have quite t~.many gratuities I think by going to the two sessions, so I think three-fourths has been somewhat obviated and I think two-thirds is satisfactory. I don't want to get it so weak, though, that we go back to the people. I do move, sir, that we reduce that to two-thirds. CHAIRMAN SWEENEY: Okay. All in favor of two-thirds. raise your hand.
(A show of hands.) CHAIRMAN SWEENEY: Unanimous. Can we have somebody read it? MR. HILL: Yes. "Except as otherwise provided in

54

this constitution, the General Assembly shall not have the power to grant any donation or gratuity in favor of, or to

forgive any debt or obliation owing to the public from, any

private person except pursuant to a general law authorizing

a particular donation or gratuity serving the public interest

adopted in any two successive succ-eS"sive" regular sessions

upon the affirmative votes of two-thirds of the membership to

which each house is entitled, and approved by the Governor within thirty days after it has been presented to the

Governor in each such session. Any such law may be repealed

in the same manner as other laws."

MR. PYLES: You say the members to which each house

is --?

MR. HILL: Is entitled.

MR. PYLES: And approved by the Governor.

t"

CHAIRMAN SWEENEY: Is there any further discussion?

MR. PYLES: Did we decide Paragraph (b) following

repeal -- did someone add a couple of words, or did we just

sort of

Did it sort of just die?

MR. HILL: Oh, my question was whether we should add that, but then I realized we intend to preserve the

existing authority as is. MS. RYSTROM: I wasn't clear, though, about

modifying. What would the General Assembly be able to do

about changing the gratuities that it is now allowed to make

I'ACE 55 because of the constitution?
You know, it says modified, and there was some discussion about that. To me I never knew what the conclusion was.
MR. PYLES: As I understand it, it starts over. MS, RYSTROM: Any change, it would be as if a new gratuity --? MR. PYLES: The old one stays in effect until it has been changed. CHAIRMAN SWEENEY: Let me give you two examples that might clarify that. One, suppose the General Assembly has adopted as it's authorized to under the existing constitution a law providing for $250,000 for an oil well. Okay. If the General Assembly wants to repeal that, it can repeal it. If it wants to increase the $250,000, then because the constitution limits it to $250,000 it would have to go through the process under (a). Okay. But innocent victims of crime, suppose if say every innocent victim of crime is entitled to $10,000, the constitution doesn't contain a limit, so that if the General Assembly wanted to jump that to $20,000 for each victim, then they could by a simple majority. MS. RYSTROM: I wa-sn 1 t having troub Ie with our intention, but whether or not it says until modified, it

,\;., 56
makes it clear that they could or couldn't do that. MR. HILL: Would there be any problem with saying
until amended or repealed as provided above? Why would there be a problem since you're preserving all the laws that are on the books now that have been enacted pursuant to that authority; then if they wanted to amend them or modify them, why would there be a problem in requiring them to go back and follow this procedure?
MS. RYSTROM: You wouldn't want to do that for the repeal procedure, but you would for the modification procedure, wouldn't you?
MR. HILL: It would say the same as other laws, so there is no reason they couldn't repeal.
MS. RYSTROM: I think that would answer the thing , that was worrying me and not change our intention at all.
What were the words you said, Mel? MR. HILL: Until modified or repealed in the manner
hereinabove provided. MR. HENRY: It looks to me like you're placing these
things in a twilight zone now because you're carrying them forward as statutes, but you're --
MR. HILL: No, no. You're carrying them forward as an authority that they have, and all laws that have been enacted pursuant to that authority are preserved until those laws are changed, and then if they're going to be changed

I' \! ;:,

57

they have to be changed in the method provided above .. MS. RYSTROM; What are they, though? They're not
constitutional provisions. MR. CLARK: The laws aren't, but the authority is. MR. HILL: You'lEsaying if there's a case where
there hasn't been a general law enacted, then that's our problem area if we haven't enacted a statute with regard to these then we've thrown them back?
CHAIRMAN SWEENEY: I think by referring them back up to (a) it creates some technical problems.
MR. HENRY: I think another thing, and I guess Cindy has decided it's not a question, but when you kind of engrave them in stone here anyway by saying the provisions of subparagraphs 3 through 9 of Article III, Section VIII, Paragraph XII of this constitution -- I know when we were doing the constitutional boards I had suggested putting a reference specifically to them, and you said no because you would be engraving them in stone there and they'll still be
MS. NONIDEZ: Yes. I'm not real happy with having to put the sentence back to the old document in a new document.
CHAIRMAN SWEENEY: Let's go back to Article I and just list them, or Alternative 1, and just provide the specific exceptions.
MS. RYSTROM: The hideous thing about that is that

58
it would encourage the amendment route in the future despite what we would have appended to it, don't you think? Isn't it even conceivable that the courts would say if you want to get a gratuity you'd better do it that way rather than --
MS. NONIDEZ: I think the other thing that came up, Tim, we were talking about this at some point, is that where we currently by amendment we authorize the General Assembly to grant a donation or a gratuity, and the General Assembly hasn't implemented that donation or gratuity -- okay? -- then wouldn't you be in a position to say the General Assembly has decided it wasn't wise to act in this area, could you not then following that sort of thinking say say "Okay, let's take that authorization out, let's only authorize what has come in through amendment authorizing the General Assembly to act, and where the General Assembly has in fact implemented that authorization," preserve those as statutory laws, and then create this new mechanism, everything else is out. That's just one thought about this.
MS. RYSTROM: I wonder how many of them are MS. NONIDEZ: That's what we really need to check on. We're not in a position -MR. HILL: What this would do is carry forward all that are there, and it would depend whether we wanted to refer back to (a), but it could say they haven't enacted yet with respect to these that are on there. Then if they want

,'\} , 59
to act in the future they have to follow the same procedures they would if they had a whole new gratuity exception.
MS. NONIDEZ: If they have to do that, then why carry them forward?
MS. RYSTROM: Then they would be where they started. MR. CLARK: Because of each of these amendments has been voted by the people, approved by the people. MS. NONIDEZ: Right. MR. CLARK: It would be a committee action pretty much overriding the will expressed by all the people, uninformed as they may have been. I kind of shy away from that. MS. NONIDEZ: All I'm saying is I think many times the voter when confronted with the question on the ballot relative to the granting of compensation to the innocent victims of crime, I'm sure that many, many voters thought they were somehow in voting yes implementing something -they obviously knew they didn't have everything right in front of them, but I'm certain they do not understand the technical area of authorization and in other words, amendments which were self-executing and those in which enabling legislation is required. MR. HILL: Between the two options we were listing as we did in Alternative 1, all of the exceptions that we had or this very succinct reference back where we had certainly

\.!

60

it doesn't jump out of the page at you,and it's not

We have had to do this, you know, we have given up trying to

make the perfect constitution -- we had 'to do this with the

other thing we want to look at in here about the specific

r~ference back as to the powers to implement some federal

law provisions, you know. We wanted to have just a general

statement, we ~ere worried about what the courts were going

to do, so we ended up having a reference back, so this won't

be the only reference back we have.

MS. NONIDEZ: You just have to keep lour current

copy of the constitution from here on out because at no

other future point in time will you be able to identify what

you're describing.

MR. CLARK: We're not just starting on square one,

you know, you're not just starting with a clean sheet.

r-,

I think Paragraph (b~, if it isn't entangled and

isn't unfair is a lot better than listing all of them.

MR. HENRY: What about either the reenactment of

all the legislation enacted pursuant to this? That would be

our first test of this to see if we could get everybody

together to do that.

MS. RYSTROM: You couldn't do that until you had the

new constitution.

CHAIRMAN SWEENEY: There's no way you can reenact

I mean if you were going to have a general provision

i'AGE

61

authorizing all of the existing exceptions, you could take it out of the constitution and put it in a statute, but you're not having any general constitutional authority which would authorize all the existing exceptions, and the only way those existing exceptions can be preserved is either by some statement in the constitution" that they are preserved or by adopting them pursuant to a two-thirds vote in the successive sessions requirement.
MR. HENRY: It just appears you're creating some type of super-legislation that can't be really dealt with.
CHAIRMAN SWEENEY: I don't think so. It just says -- well, Subparagraph (b) deals with two things. It says the
~ .,.,
existing constitutional authority is preserved, the General Assembly has the authority to implement that constitutional provision, those constitutional provisions without regard to Subparagraph (a), and then it says that if any law has already been adopted under those articles, that law continues in effect until it's modified or repealed.
MS. RYSTROM: What's the status of the provisions that haven't had any laws enacted pursuant to them?
CHAIRMAN SWEENEY: They would be preserved there. They haven't been implemented, and they would be preserved.
MR. HILL: That's a good question. Now let's assume in the case of the oil wells there has been no general law passed -- would the General Assembly be allowed pursuant

62

to normal procedures to adopt a general law implementing that

oil well provision, assuming they don't go beyond the bounds

of the subject and jurisdiction? They wouldn't have to follow

this special procedure now, they would be able to implement

pursuant to the normal procedures?

CHAIRMAN SWEENEY: "The General Assembly shall have

the power to implement the provisions of subparagraphs 3

through 9 of Article III, Section VIII ...without regard to

the provisions of this paragraph ... "

MR. HILL: Okay.

MS. RYSTROM: This is a question I should have asked

a long time ago. Why does it say this constitution, inforce

and effect on December 31st, when you're referring back --

CHAIRMAN SWEENEY: Of course, what we're doing is

trying to amend this constitution, this document right here.

MR. HILL: That's what it will be, the whole effort

will be revision of the constitution of '76.

J:

MS. RYSTROM: I knew that, I just forgot it, and it

will always be the constitution of '76 assuming this happens;

)1 1

right?

MR. HILL: Until we do another one in the year 2000,

but this is a new idea -- I assume the committee won't mind,

but we're thinking of making the effective date of the new

articles July 1, 1981, to give us the next session of the

legislature to pass any laws that we have to fill in holes

and change things. We thought we would have to do that by this session, but the more we thought about it the more we thought it might be smarter to just make it effective as of July 1st, 1981, and give us that session to handle the statutory work we have to do, so in which case I would suggest this would be June 30, 1981, the day before the new one goes into effect. I would assume you really don't care.
MS. RYSTROM: I just don't see how -- this thing will be reprinted, it will not contain the paragraphs we're talking about, and it will say -- I mean people will think that we're crazy, wouldn't they, that this paragraph will say that subparagraph such and such, and you'll look up there and it won't be there.
MR. HILL: That's one way to get rid of it. (Laughter.)
MS. RYSTROM: You know, I guess I must have tuned out before because this
CHAIRMAN SWEENEY: Just say "Oh, it's too complicated, don't worry about it."
(Laughter. ) MS. RYSTROM: I don't see how that can be, I honestly don't. MR. PYLES: Write your Congressman, hire a lawyer.
(Laughter. ) MS. RYSTROM: I would assume it was a typographical

64

error if I got hold of this little booklet in that condition

five years from now.

Furthermore, I can't believe it would ever get all

the way through that way, which makes --

MR. HILL: We could just strike out "of this

constitution." I mean the fact is that Article III, Section VIII, Paragraph 12, on June 30, 1981, will look this way right

here, and so --

Is k mainly just that reference to this

consitution that creates a problem?

MS. RYSTROM: No, it.'s the fact it won't be there.

I mean the concept of taking things from the constitution as

it is now and putting them into some sort of as yet undefined

category doesn't bother me so much, but to have a constitu-

tion that refers you to paragraphs that are not there to be seen Bounds wierd. I mean, you know, an appended list of

things, something, some category, but I just don't see how

it can be

MR. HILL: There's two options. You can go back to

listing them, or -MR. CLARK: Could you say -- it's not legal
language, but subparagraphs 3 through 9 of Article III,

Section VIII, paragraph 12 of the constitution which was in

force and effect on December 31, or July 1st of 1980, of the

constitution which was in force and effect? That to the lay

reader would refer them back.

MS. RYSTROM:

}'\.(;;<;

65

- -I

Except it's all the same constitution.

Of this constitution as it existed perhaps.

I'm beginning to like better the idea of putting

together a real hybrid which would be paragraph (a) as we

like it now and all of the things that we're grandfathering

in effect.

MR. CLARK: That just burdens it to put all that

stuff back in.

MR. HILL: We're going to have the same problem,

Barbara, with all these other references, because we've got

the exact same problem about intermodal transportation funds

and all this. The general public -- let's face it, the

:":

general public .is not going to be that concerned with those

provisions; the people who have to implement those sections

have to know that the authority is still there, and we're

trying to let them know it's still there.

MS. RYSTROM: The concept doesn't bother me, it just

strikes me as inconceivable -- Cindy has been saying this,

and I wasn't catching it before, I guess I thought I under-

stood what you were saying, and now I realize I didn't --

that' there is -- well, it would almost be like a secret

constitution. It wouldn't be a secret in that you could

find it out, but you would have to do what wouid amount to

historical research in order to determine the provisions that

we're citing right there.

I think what I'm saying is let's go back to the

; first square, but this is a terrible time to be saying that.

3

MR. HENRY: Tell me if this would work: You put a

self-destruct sentence on this, you go in and you modify all

the legislation just technically so that it brings it under

() the new procedure, and then once all that legislation has

been modified technically, then this sentence could self-

:--:

destruct and you wouldn't need that, would you?

CHAIRMAN SWEENEY: How could you modify it

10 technically?

MR. HENRY: I don't know what a technical modifica-

s~
/\(~(",;'~";1j>;.c"~""'" i
\,2' ,>,_._-,"'

tion of the legislation would be. I mean I envision changing the word "a" to "the" or something like that. I don't know.
CHAIRMAN SWEENEY: I think what you're talking about

is the satisfactory procedure where you have a constitutional

amendment establishing a state medical scholarship board, 1'" and the constitutional provision in essense is a statute,

contains everything you need to have in the statute in the

constitution, and you want to take that out, and you want to

say the General Assembly shall have the power to establish a

state medical scholarship board and provide for its powers

and duties. Yo~ can take everything that's in the constitution

and adopt a statute, and you've got authority for it in the

constitution when the new constitution is adopted.

The problem here is you have constitutional

authority which you're taking out in statutes adopted under the constitutional authority, and you're taking out the constitutional authority and the new constitution won't have any constitutional authority for it.
Say, for example, if the General Assembly has adopted legislation authorizing a $250,000 payment for the first oil well. All right. You repeal that constitutional authority, you've got a statute without any constitutional authority.
MR. HENRY: You wouldn't need constitutional authority if you went through this procedure. This is in lieu of any authority that the former constitution gave you.
CHAIRMAN SWEENEY: There's no way to go through this authority prior to the time the constitution becomes effective.
MR. HENRY: Well, yeah. That's what I say, have a self-destruct sentence that when all this legislation has been so modified as to bring it within this procedure, or after it's been modified by this procedure, then you're creating this stuff anew almost and this sentence could selfdestruct.
MR. HILL: We can't assume they would be brought forward under this. The fact is maybe two or three of them would never come forward, so they would just die.
MR. HENRY: The ones where there hasn't been

68

legislation enacted?

MR. HILL: Yes.

CHAIRMAN SWEENEY: Maybe that's the solution, just i instead of trying to preserve the authority is just to
preserve -- have a sentence preserving the legislation

previously adopted. If there's no legislation, it all goes

out the window.

MS. NONIDEZ: Can you make the assumption the General Assembly had the authority, and the General Assembly

in its wisdom chose not to implement it?

I"'

I think that's a fair assumption to make.

MS. RYSTROM: I do too.

MS. NONIDEZ: If there's been something the voters

indeed have ratified, and we know that there are probably at

least two or three of these that are in there - that's what we

need to check.

MS. RYSTROM: Would that not solve the problem

everywhere? We would be saying in effect that we would be

grandfathering the legislation

that's what you said, the

provisions in the constitution, that would solve the junkyard

and billboards problem, wouldn't it, and everything else, and

you would not be referring to a ghost because you would be

referring to legislation that exists, and you could wipe away

the authorization, and then that legislation -- would that be

in effect constitutionalizing statutes? Is that what that

would amount to doing? CHAIRMAN SWEENEY: I don't think so, but you're
still going to have a ghost provision. MR. CLARK: Except for the vagueness that Barbara
cited earlier by saying of this constitution, they pick it up and can't find it in this constitution, it seems to be (b) does what needs to be done.
MR. HILL: Although the suggested change would be something to the effect that all laws heretofore adopted under the previously existing authority with respect to gratuities or something like that shall continue in force and effect until modified or repealed as hereinabove provided, ., , and then just go ahead and put in this new procedure.
MS. RYSTROM: I think that would infinitely be preferable. There isn't any legislation, is there, I mean any statutes that we want to eliminate in this procedure that we're going through, or that any of the other COmID.ittees do.
MR. HILL: You see, we can't assume with respect to gratuities -- we may be talking about something that's not going to be too dangerous, but I don't think we can use this philosophy on the Board of Transportation and all; we're talking about millions of dollars that would be depending on the statute. Over here it may be a viable option; I don't think it's going to be generally helpful.
It would be good to know which statutes we do have,

\ . 70

so we have to do some research on all of these gratuities to

see which ones in fact are addressed. If all of them are

addressed. then our problem is really solved because we're

4 preserving them all. bringing them forward. and I don't think

anybody would object in that case.

MS. RYSTROM: You think the problem ones would be the

ones that have not been -- there has not been any legislation.

Even if that were so. one of the possibilities about constitutional amendments is that they especially because the legislature might throw the ball to the people.

and it's quite conceivable that the people would vote for one

that the legislature meant to exorcise. and what benefit

would there be in preserving that forever? We aren't just

trying to revise this constitution slightly. we're trying to

1 ,~

make a drastic revisio~ or a radical one.

MS. NONIDEZ: Are you saying. Tim. in (b) we would j 7 just speak to all the laws heretofore adopted under this

provision that we've cited shall continue in force and effect?

In other words. you're not preserving the first part of that

sentence. "The General Assembly shall have the power to

"

implement ... ". just pick up and preserve the laws that have

been in fact. that are in force and effect?

CHAIRMAN SWEENEY: I think something along the line

of "all laws heretofore adopted under Article III. Seeton

VIII. Paragraph XII of this constitution in force and effect

71

on December 31, 1980, shall continue in force and effect until modified or repealed ;in accordance with subparagraph (a)." My preference would be to add something in there "until 1985 when they shall expire unless they have been otherwise adopted," in subparagraph (a).
MR. HILL: Well, you mean you would require them to go back as to each of the ones that have been carried forward a.nd reenact them?
Well, they can repeal these other laws; the repeal

is easy, so --

MR. HENRY: They can modify these other laws too.

MR. HILL: Not now, not under the new language.

CHAIRMAN SWEENEY: Modified or repealed in

accordance with paragraph (a).

MS. RYSTROM: What would we have? Is anybody

capable of dictating paragraph (b), the things that have just

been said?

CHAIRMAN SWEENEY: I can take an attempt at it.

1.\

All laws heretofore adopted under Article III,

Section VIII, paragraph XII of the constitution in force and

effect on December 31, 1980

MR. HILL: June 30, 1981.

CHAIRMAN SWEENEY: -- June 30, 1981, shall continue

in force and effect until modified or repealed in the manner

provided hereinabove.

MS. RYSTROM: Now, by looking at all of our

recommendations and they're accepted by the people, and I'm

3 looking at the new printing of the constitution I still cannot

1 find the paragraph to which you're referring.

MS. NONIDEZ: But you can go to the laws and

( identify exactly what is being preserved here.

CHAIRMAN SWEENEY: You would have to go a couple of

,; places.

MS. NONIDEZ: That's true.

LI

CHAIRMAN SWEENEY: You have to go back to the

constitution, and you would have to go to the laws and have

to determine whether the laws were consistent with the

constitution, and then you'd probably have to go to court.

MS. RYSTROM: Is it not possible to do all this

!~ without the reference to the nonexistent paragraph?

11;

CHAIRMAN SWEENEY: I don't think so.

MS. RYSTROM: Unless there is some reference to

j.

gratuities, I don't know what.

CHAIRMAN SWEENEY: You're going to have to have

1 somewhere what you call a ghost reference.

MR. HILL: It wouldn't be fair otherwise. You

could just say heretofore adopted and otherwise valid at the

time of enactment, something like that, but then for a person

who's got to try to find out what does this mean, he has to

do a search so see where you can start, and I think it's

PACE 73

important to the person trying to see if he has the authority 1:

to do what he's trying to do to know where to go, how to do

his search back.

I'd hate to just have it like we considered this

over in the other one too not to specifically mention what

we're talking about, but we know exactly what we're talking

about here, and so to make a reference back --

Cindy, do you think this is more helpful?

MS. NONIDEZ: Yes, it is, definitely.

MR. CLARK: After June 30th, 1981, what was your --?:

CHAIRMAN SWEENEY: Shall continue in force and

effect until modified or repealed in the manner

,,

MR. CLARK: What about 1985?

CHAIRMAN SWEENEY: I was going to suggest something

about --

MR. CLARK: Is that in or not?

CHAIRMAN SWEENEY: No, it's not.

MR. CLARK: Okay.

MR. PYLES: Don't you want to put it in there?

MR. CLARK: No, I don't want to put it in there.

I think leaving it out is good.

CHAIRMAN SWEENEY: I think we have finally agreed

upon Alternative 3.

MR. HILl: Could we call this Alternative 1?

MR. PYLES: It's Alternative 2 now.

74

CHAIRMAN SWEENEY; It's really the only alternative.

All in favor signify by raising your right hand.

(A show of hands.)

CHAIRMAN SWEENEY; All opposed.

Four to one in favor of the alternative.

I,

MS. RYSTROM: If it came to this -- I was just

thinking 'We could be ready if it came to this, how would

the rest of the committee feel about paragraph (a) and the

restatement of all of the existing exceptions to the

:1.1 prohibition against gratuities? In other words, if they don't

like (b), but they buy (a), how would the committee feel

about that hybrid?

MR. HENRY; You could present that as another

alternative.

MS. RYSTROM: I don't know if we want to multiply

the alternatives, but I was picturing that that was quite

likely to be a sticking point. I think we have a real

commitment to paragraph (a).

CHAIRMAN SWEENEY: I think (b) expresses the sense ..''l:' of the committee that we want to preserve laws implementing

prior constitutional authority. In terms of whether it should

be in the form we've just talked about or the form of

repetition, we have again expressed our desire that it ought

to be as simple as possible, but I think that might be a

drafting problem and the Select Committee will say let's

I',\{~E

75

repeat it, I think that's primarily a drafting problem. MS. RYSTROM: I agree with you, but I think what I
meant, is our commitment to (a) such that we would want to draft (a) onto the existing language? It would be for me. I think I said something rather different before, but now I would be willing to do that.
I think that to say 'okay, we'll take the ones we've got now, but we don't want any more, we're going to give you this alternate way to accomplish the same thing. I didn't mean we should necessarily take the position, but if we kind of knew what we thought if it came to that, we might be better off.
MR. CLARK: Tim, I don't want to prolong this, but just for my own elucidation, why did you vote no? Have you got some information about it?
CHAIRMAN SWEENEY: I just think it ought to go to the people.
MR. CLARK: All of them? CHAIRMAN SWEENEY: Yes, all of them every time. I like voting on all those amendments. I understand them. MS. RYSTROM: You're probably very influential because people ask you "What the heck does this one mean?" CHAIRMAN SWEENEY: I'll give you an example. My mother-in-law, there was a constitutional amendment which was proposed about two or three times authorizing the

76

Secretary of State to grant or revoke corporate charters,

which is in essense what the law is now, except back then

it had to go through the process of going to the Fulton

County Superior Court if you were going to form a corporation

in Fulton County, go through a long rigmarole that really

didn't have any substantive effect. My mother-in-law voted

7 against that because she thought it concentrated too much

power in one man.

MS. RYSTROM: You offer this as evidence for why

I

people should vote?

CHAIRMAN SWEENEY: Why people don't come to me.

MS. RYSTROM: I see.

CHAIRMAN SWEENEY: Not even my mother-in-law comes

to me.

(Laughter.)

CHAIRMAN SWEENEY: And they vote for the most

irrational reasons.

MS. RYSTROM: It doesn't sound like a real good

reason to go to the people with these amendments, though.

CHAIRMAN SWEENEY: I trust we have --

MR. HILL: I think we really do owe a debt of

thanks to the Chairman for helping us out when he's totally

opposed to everything we've been doing.

MR. CLARK: Amen.

MS. RYSTROM: A. true lawyer.

\.GE 77

CHAIRMAN SWEENEY: We have one more bit of business,

and that's the population bill that Mel has handed out.

Did you hand that out to everybody, Mel?

MR. HILL: Yes. Everybody should have it.

They don't also have the change we made over in the

other sections.

CHAIRMAN SWEENEY: We got together last week, Mel

and Cindy and" Harvey Finley from the legislative counsel's

office, we decided that since there was an immediate problem

of dealing with what everybody perceived to be an ~vil, and

that was a population bill dealing with a single county or

municipality, and what you see in front of you is something

,,

that hopefully will prevent that evil in the future.

MS. RYSTROM: The second sentence of the first

section of it is designed -- you mean it doesn't apply 'if all

you do with this classification is say those below, or all you

do with this classification is say those above; right?

Couldn't you read it

I know that's your

intention -- could you not read this to say that it has both

a ceiling and a floor? Is that the thing we talked about

before?

It seems to me that without at least some additional

words --

MR. HILL:. I think you might be right, Barbara. I

think we should repeat ourselves, even though it may sound

redundant the first time you read it, but to say having a

population above a specified population or having a population

below a specified population, then it's clear.

MR. CLARK: Have we had instances where legislation

was introduced not so narrowly to apply just to .a single

county or municipality, but just two or three which still

operates against the general idea of classification? In

other words, what I'm asking is, is the word single county or

municipality too narrow? And I don't know how it could b.e

broadened without getting into conflict with the general

classification, and maybe that it's pertinent, but somebody

said there were two counties in -- what is it, Sunday hunting

or whatever it was, there were just two counties that fell

into that Sunday hunting classification.

J5

MS. NONIDEZ: Those are done by separate population

"

acts.

MR. CLARK: The two counties came und separate acts?

MS. NONIDEZ: Right.

MR. CLARK: I see.

MR. HILL: And Charlie Tidwell said that this is

eighty or ninety percent of the problem right here, this is

it. It's an attempt to get around the notice requirement of

local legislation in those cases, and --

CHAIRMAN SWEENEY: We decided to take care of the

immediate problem by this language,and then empower the General

I,,:,;r: 79
Assembly to take care of what may be a broader problem by changing it. You have the draft of Article III.
Anyhow, at page 6 there is a provision which says the General Assembly may provide by law for -- I've got the wrong draft.
MR. HILL: It says the General Assembly may provide for procedures concerning local legislation. That's what it says right this minute.
The proposed change would be to add for considering local legislation and legislation classifying political subdivisions on the basis of population to allow -- and then also in the advertisement requirement it says the General Assembly shall provide by law for the advertisement of notice of intention to introduce local bills, and the proposed addition would say may provide by law for the notice of intention to introduce bills classifying political subdivisions on the basis of population to require that.
It's to open the door for the general assembly addressing thispopulation bill issue more directly, number one, by defining what a political subdivision is as it applies to these requirements, and so --
MS. RYSTROM: That whole business about the General Assembly may provide for procedures for adopting local legislation was there to facilitate the passage of such legislation, because we got into that discussion of should it

or should it not, should they or should they not be allowed to

waive the third reading and all of that. Wasn't that the

purpose of that?

CHAIRMAN SWEENEY: That's not clear to me.

MR. HILL: We're not really clear.

CHAIRMAN SWEENEY: I ,think Mr. Clark and I both

understood it to be an attempt to eliminate the requirement

of a third reading, but Charlie Tidwell wondered if that was

not the intent. If that was not the intent, I don't know

1(;

what the intent was.

MS. RYSTROM: I thought as it got further discussed

that Dale took back his motion or something, didn't you, and

we accepted the notion that it was at least the intention of

the subcommittee that the third reading was not -- was to be

handled the same way fur all legislation, whether it was local

or not, so that that was the way that rested. Now, I must

admit I don't know what the thing that you just read then

refers to, except I suppose more advertising is n.ot required

for general acts .
.)
MR. CLARK: I understood the whole purpose was that

legitimate local legislation that has been advertised that

doesn't just involve the population deviousness, misuse of

the populadbn, which is local legislation, to expedite the

handling of it within the General Assembly after it's gone

through the regular procedures andawoiding this third reading

"

81

was one of these because the guy's standing up there and it sounds like he's at a tobacco auction, and the kids up in the

gallery, you know "This is a heck of a way to run a government," they don't know what's going on, and it's meaningless, and this is what I thought we were doing with that amendment, but when we got through with it I don't know.
MS. RYSTROM: I would say when we got through with it that isn't what we were doing. I mean it might be the issue would come up again that we want to insist upon that, but I would say the way it stood when we left that room was that that section had nothing to do with the readings, and that since it had nothing to do with it there was no way to not go through the whole reading procedure for local legislation, so we kept it in separate paragraphs.
MR. CLARK: I think I stopped recording at that moment.
(Laughter.) MS. RYSTROM: How did we get into this? There was something troubling me, and you were attaching to that provision something that was going to ~lean up a problem about the population acts, which was the classifying, bills classifying by population -MR. HILL: Could also be considered ~10ca1 legislation if they should decide to, and they can provide for the advertisement of intention to introduce local

legislation. Harvey Findley felt that these two authorizations

2 here would open the door to the General Assembly themselves

getting a handle on the handling of local legislation, it

would take care of the other problem they had, and right now

it would make the thing as one subdivision, so--

(,

MS. RYSTROM: We wouldn't be talking about bills

'7 which classify just for the purpose of classification, we

).' would still be talking about bills that outlawed hunting or

authorized something or other, and that involve a classifica-

.\'1 '

tion of counties or cities by population. Is that -- Do we

'I do that by local legislation, because in effect what we would

be saying is no more local legislation masquerading as general

laws for classes defined by population. That would be local

legislation too; is that right?

15

MR. CLARK: We don't have control over the other.

That's not before our committee, the other local legislation.

CHAIRMAN SWEENEY: It's related to what we've been

trying to do with the population bill.

19

MR. CLARK: Isn't this population revision before us

20 now? Doesn't it get at what we've been trying to get at?

MR. HILL: Yes, it really does in effect, the vast

majo~ity of the problem.

MS. RYSTROM: The Supreme Court you all said had --

'-,

I believe it was Haro~d Clarke -- anyway,that it needs to be,

there's supposed to be a relationship between using population

i'\CE 83
and subj ect matter. I don't know any more what constitutional! provision they used to establish that. I'm getting confused, but assuming it's there in the constitution as it stands now, are we removing it, or is it not really there in the constitution?
CHAIRMAN SWEENEY: It's there now. It says laws of a general nature shall have uniform application throughout the state, no special law --
That would still apply to any population classification.
MR. CLARK: Was something added to this, was something added proposed above or below? I thought we had that in there.
MR. PYLES: I thought we had population, the third line from the bottom, "or having a population." I thought someone had suggested that. I thought that might clarify it.
You're saying having a population above or having a:
population below should be put MR. CLARK: Instead of above, just say below? MR. PYLES: Having a populatd.on above, or insert
again having a population below. Someone thought saying above and below would create some confusion.
Would that bother the people who drafted this? MR. HILL: Oh, no. The people that drafted this are just Tim and staff trying to come up with a solution.

i

84

That's a good suggestion.

We felt that Article IX when it repeated itself it

3 ' seemed a little redundant, but when we see what they had to do

what they did this-is a helpful change.

MR. HENRY: May I ask a question?

You say this prohibition, no bill classified on the

basis of populationwhich, if enacted, would apply to a single

county or municipality. What if you did a population thing

where it only affected two municipalities within a single

10 county? I mean is that --

CHAIRMAN SWEENEY: That's what we're going to let

the General Assembly fool with.

MR. CLARK: That should be local legislation.

iI

MR. HENRY: I mean it wouldn't be prohibited by

this, though.

CHAIRMAN SWEENEY: No, but that's something -- the

J, changes to the other two provisions were designed to let the

General Assembly deal with that problem. The single county

or municipality is the problem.

MR. CLARK: Thatwas the question I raised while ago.

'!

I didn't know whether you did, but that was the point, that

two cities within a county wouldn't be prohibited by this.

MR. HILL: You see, that's not how they come up.

That's the reason. I don't know if ever that's been a true

situation.

i'}
.
t. ,n'
~ I.,

MS. RYSTROM: I feel pretty good about this, but I'm still worrying about the business about relating it to the local legislation. I mean I don't know whether we can straighten that out, because in a way the question is what does the rest of the committee think.
MR. HILL: What do you think? This committee might as well address that issue, it is kind of controversial, and should or shouldn't the General Assembly have to read any bill three times.
MS. RYSTROM: That's easy for me, but it's clearly not -- you know, I wouldrlt feel like most of the committee
MS. NONIDEZ: As we were talking about this the other day, our recollection was that Hamilton McWhorter brought up this issue because he would like to be able to establish what on the federal level is now a consent calendar for local legislation, and I think that he basically was saying that you wouldn't have a third reading of every local bill. To do otherwise you're not overcoming anything, your situation right now in the constitution, and so that's how we got into the thinking that was at the back of adding this new paragraph which came in from that committee dealing with or authorizing the General Assembly to provide for procedure for considering local legislation with that thought in mind, and so I was really sort of very confused when Charlie said "Well, that's not what you're trying to do here." We need to talk

86
with Hamilton and with Charlie about that. MR. HILL: We could clear this problem up very
simply from the standpoint of the language if we would just say that the title of every general bill or everyone that has the effect of local law shall be read three times, and h have this paragraph refer strictly to general bills, and then have a separate procedure for local, and then it's clear what we mean.
As Cindy said, we'll have to check with the people that are really interested in this provision to find out what they intend and what they think would be the best procedure to follow.
MS. RYSTROM: When I was bringing the question up again, I really didn't mean the question of reading, I meant the question of, if I got you right, about population and it's being dealt with as if it were local legislation, and
I
then my question was, especially since I didn't have it written down so I can't repeat it, did what you describe in ) c' addition to that procedure for considering local legislation accomplish that purpose if that was indeed the purpose?
MS. NONIDEZ: Population acts really are local legislation. I mean that's what has happened here, okay. You're dealing with one problem, you're saying okay you can't have population acts which affect a single county or municipality, then you're saying, okay, now as to the other

I ./
PAGE 87 uses of population acts to deal with certain mid-size
counties or what have you, then you're authorizing the
General Assembly to establish a procedure whereby it can by
I
law define better the guidelines that it's going to use to
say "Population acts of this type are okay," and they will
be handled a certain ~ay procedurally, and you're just trying , -
to say we don't want to deal with all that in the constitutio~, but the General Assembly needs constitutionally to have the
authority to sort of bind itself if you will to establish a procedure for dealing with this kind of legislation which
1s basically local in nature. That's what you're trying to
overcome with this language that Mel has read. MS. RYSTROM: What'we want about the population
acts that refer to more than one county or municipality is
that if they are not going to be treated as general legisl~tion that they be subject to advertising. We don't want to run the risk I should think of having them treated as
a special category of general law that has even fewer safe-
,
guards. Don't we run the risk of creating a third category that is awfully easy to do, that doesn't require the
-
\ advertising on the one hand, and it doesn't require what ,general laws do on the other, or maybe I'm just confused
because I really feel very confused about it all. SENATOR BROWN: It wouldn't be advertised, a popula-!
tion bill, just like she says.

MR. CLARK: It seems to me that the basic purpose

behind this again is recognition that there are some problems

3 that need attention of the General Assembly, action by the

General Assembly in accordance with population. It isn't

general law that appli~s statewide, but would apply where this

,', gives them that kind of authority as contrasted with a general

law that would apply everywhere.,

SENATOR BROWN: Some of the membersof the General

'-I Assembly don't advertise in the paper, a lot of people maybe

don't know about it, and they introduce a population bill

which would have the same affect.

L'

MR. CLARK: If you put a population classification,

wouldn't you get around that?

SENATOR BROWN: You would get around it.

L;

MR. CLARK: It wouldn't be advertising. What I'm

1i~'J saying is, would it be punitive or unpopular legislation?

17

SENATOR BROWN: It could be, or controversial.

MR. CLARK: Or controversial legislation.

19

" CHAIRMAN SWEENEY: Raising a county officer's

salary and they don't want anybody to know about it.

MR. CLARK: But say it would be in maybe 35 counties.

SENATOR BROWN: It could just be in one.

MR. CLARK: No, it couldn't, according to this.

That's what we're --

MS. NONIDEZ: That's correct.

MR. CLARK: That's the barrier we're putting up.

MS. NONIDEZ: That's correct.

MR. CLARK: That was the question I asked while ago,

could it be in two possibly, but realistically not likely.

Isn't that the

SENATOR BROWN: According to this it says populatiod

above or below, it's all in one county

MS. NONIDEZ: Yes, it could affect Fulton County

or Echols County, or the City of Atlanta, but not a small

:

town. But that's the best we could come up with. You have

to allow this exception, because Article IX has a mechanism

relative to affecting certain powers that are really sort of

home rule powers granted to counties and municipalities, so

we had to sort of -- the second sentence had to be there

given another provision of the constitution that deals with

the whole mechanism of local government and home rule

where the General Assembly can speak about population over

there.

In subparagraph (b) you would have taken care of

about probably eighty percent of the use of population acts

as you just described where an individual legislator or the

local governing authority has expressed to the legislator

"Look, I want this treated in a certain fashion," or it

could be just that the time has run out for advertising.

Particular problems come up.

.,(; I' 90

MS. RYSTROM: The proposal we have before us now, if it's accepted, it would be possible for the General

Assembly to write a law which says that the advertising of

'" local legislation need only occur for one day at one place

somewhere in the state. We have eliminated from the

constitution the stipulation, so really we're relinquishing

constitutional control. We may be making it extremely

meaningless to do the advertising.

MS. NONIDEZ: It is meaningless. That's part of

the problem.

MS. RYSTROM: Because nobody looks at it you mean?

It's allowed in funny places even now, isn't it?

MS. NONIDEZ: What it does actually is create this
<
If very problem that now we're trying to address over here

because the advertising requirements when they're not met,

then the only way you can deal with a problem of Clarke

County is to come in by population act, so it's a very --

, :'

it doesn't accomplish what was originally intended which was

the whole notion of letting your constituency be aware of

what was going on that affected them locally. Your legal

organs are not what most constituents read. I mean they
-, ,
are in smaller coupties or jurisdictions, but where the

Athens Observer is the legal organ now of Clarke County,

certainly it's not for Fulton, the commercial papers, et

cetera, so that's what we're speaking to.

---."",,
MR. HILL: Frankly, I think our discussions with

Harvey -- Harvey's thought about this was that the General

Assembly has to address this problem, while we're dealing

with the bulk of it, the General Assembly itself has to get

down and address the other problems and develop some

consistent procedure for dealing with these population

bills, so his thought if we added these two additional

authorizations in here that that would encourage the General

Assembly to do something about them and to address the'

,-

problem, but he didn't feel we could get into the particula~s

of it ourselves at this time, and so really this was to take

care of prospectively -- you know, encourage them to deal

with this in the future, so maybe we have opened the door

to something we don't want to do.

I think Barbara is right, over here all of a sudden

maybe we'll have a lot of legislation classifying a political

subdivision on the basis of population that goes through some

expedited passage procedure, procedure for passage, and before

we know it we don't have -- it's gotten out of control, so

I don't mow. That's one danger in this kind of change.

That wasn't the intention, that wasn't what Harvey

had in mind, but --

MS. RYSTROM: The other thing that worries me is

related to what we had the confusion about, and that is

maybe it would just be saying the same thing another way.

- :\,)

92

What characteristics of the way general laws have to be passed can be eliminated from the passage of local legislation? Are we going to leave it constitutionally, assuming this is adopted, are we -- it seemed to be the consensus the other day, or anyway I thought it was, that the readings were not subject to alteration for local legislation, certainly the majority of the members to pass a bill and things like that
MR. HILL: That would still be the same. MS. RYSTROM: What is alterable for local legislation? I don't think I understand. CHAIRMAN SWEENEY: That was my question. I don't know, it's something we need to bring back up before the committee. MS. RYSTROM: I'm not sure I understand the present practice well enough. I think that's -- right now local legislation that has been advertised, has met the advertising requirements -- I was reading in here and it didn't help me at all -- it then is treated, like you said, like a consent calendar, in effect you have to vote against it in order to -- you have voted for it unless you make the effort to vote against it. Is that what it boils down to? MS. NONIDEZ: Right. If there's debate about it, then it becomes treated like a general bill; otherwise it's treated like you would a consent calendar, a measure that's on a consent calendar.

-, !
MS. RYSTROM: It won't be debated unless it's thought to affect jurisdictions other than the one
MS. NONIDEZ: Unless there is some division in the delgation once the local legislation originates on the calendar.
SENATOR BROWN: It kind of goes through automatically.
MS. RYSTROM: That's really not supported in the present constitution by any constitutional measure, and it won't be in the proposed revision of the constitution either?
MS. NONIDEZ: That's the question. MS. RYSTROM: As it stands right now, it wouldn't be, would it? It probably doesn't need to be because it's really just a decision on the part of the individual legislators collectively that "I'll let you have your local
legislation if you'll let me have mine. 'I
But the advertising now is required by the constitution, and assuming this revision passes it won't be required except to say -- so it could be the most minimal sort of advertising, and it could be anywhere. I wonder is the legislature likely to make it even easier to pass local legislation?
MS. NONIDEZ: It's already in the law, the specifics of the notice and advertising relative to local legislation is in the code.

MS. 'RYSTROM: It's in the code because it's

required by the constitution, and if it's no longer required

3 by the constitution

MR. HILL: You see, even with the requirements

you're reading there, the stringent requirements, they don't

seem to do the job. The feeling is there is somewhat of a

false protection in the way they're put and how they're

looked at, so the feeling of the people that worked on this

section was that the General Assembly should be able to use

1(OJ

some other procedure than the one they have.

MS. RYSTROM: If we make it easy enough to pass

local legislatbn, we don't need to worry about population

acts because there won't be any incentive to go the popula-

tion act route.

If the advertising requirements that the legislature

sets up pursuant to the revised constitution are so easy to

meet, it doesn't get around agreement of the delegation, but

I.':.

it would get -- they can easily get around the advertising

problem with a new law, assuming this revision is accepted.

Correct?

MR. CLARK: The population mechanism is broader

than local legislation, it's meeting a problem within

the state that affects a lot of people within the state

in a lot of political jurisdictions, but it's not a particular

problem within anyone county or maybe three orfour counties,

",\,;1<: 95 but is a broad problem affecting a lot of people, and yet it isn't general law that affects the whole of the state, and this is the mechanism -- I see it in a positive way rather than a restrictive way. The strictly local1egislation to me is a different thing than the population.
MS. RYSTROM: Is there any evidence that there are population acts where that's the purpose, it's not to just get around the --
MR. CLARK: Of course, traffic courts in Albany, Savannah, Atlanta, Augusta, some other cities of a certain size, I don't know what the law is on this, but maybe traffic problems they would have. I could perceive some parts afthe state maybe having some water or agricultural or other problems that would be fairly general in nature but not
MS. RYSTROM: I can imagine them. I was just wondering whether there were. I mean we're addressing the topic really because the problem was -- and I don't mean to disagree with you, I just thought perhaps there wasn't any such evidence and that we really are just talking about a way to get around the habits, the current habits and ways of dealing with local legislation.
MR. CLARK: The local legislation is a problem, and this population bill as I still understand it eliminates the use of population as a bypass on strictly local legislation and, therefore, that's one positive aspect.

The other seems to m~ the classification is helpful

in just general legislation, even though it isn't generally

applied as a broad classification, therefore --

SENATOR BROWN: I think it's better than what we've

got.

MR. CLARK: It's an instrument of government.

Local legislation, whether the constitution should tell the

General Assembly to do about its rules regarding local

legislation and advertising and all, that seems to me would

I;' be a different problem. Even though it's involved with it

I,

somewhat, it's really a different problem.

J)

MS. RYSTROM: On this different problem, and this

gets back to maybe what you had said the other day, Tim,
,
,', is if we're not spelling it out why do we want anything about

local legislation in the constitution at all?

I mean did someone say that? I feel like someone

did.

What if we omitted those two segments, the one

you're wanting to attach the population act thing to, and the

one about the procedure for local legislation and advertising

of local legislation. What would be different if those
.,
weren't there?

CHAIRMAN SWEENEY: A statute requiring local

advertising might not be valid; a bill passed without local

advertising the General Assembly mandated might be invalid.

t):\ ~.-_; l~

97

MR.. HENRY: You mean the General Assembly couldn't

on their own initiative absent any constitutional provision --I

CHAIRMAN SWEENEY; Sure, they could provide a rule

that says you have to advertise, but if they passed a statute

in violation of that rule there would be nothing to strike

down the statute. There would be no authority, constitutional

authority to strike down the statute.

MS. RYSTROM: Adopting the statute in violation of

the rules is not sufficient grounds to strike it down?

CHAIRMAN SWEENEY: No .

MS. RYSTROM: Are you ready for a motion on the

population act?

I move that we incorporate the paragraph as we have

discussed it.

MR. PYLES: Seconded.

CHAIRMAN SWEENEY: All in favor signify by rasing

your right hand.

(A show of hands.)

CHAIRMAN SWEENEY: All cpposed. There are none; it' Sl

unanimous.

I think that concludes our business.

MR. HILL: In other words, we're just no~ going to

take a stand on this other thing over here because we're still

too unclear about what exactly it means?

CHAIRMAN SWEENEY: That's my feeling.

MR. HILL: Are we going to put it intothe draft

we're going to send out to the committee based on the

3 discussions we've had so we can discuss it at the next meeting.

i at the full committee meeting?

MS. RYSTROM: I don't think we could go to that next

meeting. though. with anything that we could have done among

ourselves not done. because remember. even when the committee

got very small it was extremely difficult to work anything

out.

Is there nothing more to say on the subject of --

1, !

MR. HILL: Our problem is we don't have the people

; ....

here who understand it. We don't have Mr. McWhorter. we don't

have Jack. we just have to have the people. We're all in the

dark about this. so it's kind of useless for us to talk about

I')

it without these people here.

Ii',

MS. RYSTROM: The kind of question I was thinking

J'

that might be addressed was why might it be a good idea to

attach population acts to the stipulations for local

legislation. We should at least have an answer for that.

should we not?

CHAIRMAN SWEENEY: On advertising. if we've got a
".
population bill that legitimately affects -- Assume a

population bill that affects only three counties of the state.

it would seem to me you would want to authorize the General

Assembly to say '~e won't consider that unless you advertise

, ;".1-
"'!\ \
.'. ";; ':. 'I ,- " -.. -') ,
I,

it in those three counties.

!'AGE 99
-- - ------ ---------,
I I

MS. RYSTROM: In other words, make that kind of

thing harder to do than it is either way now within the --

CHAIRMAN SWEENEY: The General Assemb ly wouldn't

have to mandate local advertising on a population basis, but

it could if it wanted to; if it felt that was a problem it

could mandate advertising on a population basis. That's a

hypothetical.

What the old provision means I don't know.

(Whereupon, at 11:45 a.m. the committee meeting

was mj oumed. )

+++ ++ +

INDEX Committee to Revise Article III Subcommittee Meeting Held on Nov. 20, 1979

SUBCOMMITTEE MEETING ON BROAD POWERS OF THE GENERAL ASSEMBLY 11-20-79
SECTION VI: EXERCISE OF POWERS Paragraph IV(b): Population bill. pp. 77-99 Paragraph VI: Gratuities. pp. 3-75

STATE OF GEORGIA
COMMITTEE TO REVISE ARTICLE III of the
CONSTITUTION OF GEORGIA

'-

Room 337-B

State Capitol

Atlanta, Georgia

Thursday, November 29, 1979 1:00 p.m.

..

BRANDENBURG & HASTY

SCIENTIFIC REPORTING

3715 COLONIAL TRAIL, DOUGLASVILLE, GEORGIA 30135

942-0482

DEPOSITIONS - ARBITRATIONS - CONVENTIONS - CONFERENCES

-----"--"------- - - - - - - "---~-------------
PRESENT WERE:

COMMITTEE MEMBERS:

3l

MR. HAROLD G. CLARKE, CHAIRMAN

MR. ROBERT WALLING

4

LIEUTENANT GOVERNOR ZELL MILLER

MR. HAMILTON MCWHORTER

MR. GLENN ELLARD

REPRESENTATIVE E. ROY LAMBERT

DR. CHARLES PYLES

MS. BARBARA RYSTROM

7

REPRESENTATIVE BOB HOLMES

MR. DALE CLARK

REPRESENTATIVE HERBERT JONES

SENATOR JAMES TYSINGER

9

SENATOR M. PARKS BROWN

SENATOR LOYCE TURNER
10

SELECT COMMITTEE STAFF:

MR. MELVIN HILL MS. VICKIE GREENBERG MR. MICHAEL HENRY

OFFICE OF LEGISLATIVE COUNSEL:

,

"r:

MR. FRANK EDWARDS

MS. CYNTHIA NONIDEZ

In ~
a~'
"Z
1',' t),;
1:-~

OTHERS:
MR. ROBIN HARRIS MR. CHARLES TIDWELL MR. ROBERT GIACOMINI

2U

PAGE 2
----------"--------,

PAGE 3

PRO C E E DIN G S

CHAIRMAN CLARKE: Ladies and gentlemen, if you will, .

3 let's come to order and we'll proceed with what hopefully

4 will be our last meeting.

I think all of you received notice from Mel's office 6 which set out several of the matters that will be necessary

to treat this afternoon. There may be one or two others

there will be one or two others that we will need to get into.

It occurs to me that perhaps the appropriate way II) for us to act is to first take those matters which have not

been acted on at all by the full committee, and for us to act

on those in one way or another. Once we have done that,

then we will have had some sort of action, as far as I know,

14 >-
:~

on all aspects of Article III.

I think before we leave there

1"

15 ,~
,"~)
-,

should be a motion to approve the entire Article for

.. lh ~,' Cl

submission to the Select Committee.

If, after we have acted

t_.

<

J7 ~~: on the specific sections and paragraphs which stand now

I~ .
unacted upon, if there are any motions for reconsideration,

1"
we would not take them up until we have already acted on

20
everything else.

21
I would say this to you that I suppose the best

,)
approach would be to treat motions to reconsider the same

way that they are, as I recall, in the House and Senate,
.',1
which is the motion itself would not be debatable, but that

the -- after, if reconsideration is voted, then I'll ask you,

fl;\l' i, 4

Jack and Ham if that's not right, after it is voted then you

2 do have an opportunity to debate, but not the motion to

5 reconsider itself.

MR. MCWHORTER: You're correct.

5

CHAIRMAN CLARKE: I think we ought to go through

everything that is not acted on first. Let's begin -- I have

an agenda here, I don't know whether all of you have copies

or not -- that Mel has been kind enough to prepare for us.

9

The first two things on the agenda are on Section

10
'.:J
, , 7-
1 .l /-0.
'o"
'.
~
12 ~
(@)r,j

V and deal with Paragraphs III and IV. This, as you know,
is a purely technical provision that is necessary to be acted
upon because of the fact -LT. GOVERNOR MILLER: That doesn't mean we're passing

~---

1.4 .:.

.;<-".t over II and III, we can come back to those?

:I:

15 ':>
'":->"

CHAIRMAN CLARKE: Yes, we can come back to those

I6

~ a~

on

a

reconsideration motion.

z

17 :<ii

19
itself. They deal also with the repeal of statutes by
20
reference to Code sections, et cetera. These are purely
21
technical. My understanding is that the Office of Legislative
Counsel is still working on getting us a draft that will
accomplish what we are needing to accomplish, but I believe
24
it has not yet been fully prepared. Is that right, Frank?
MR. EDWARDS: Terry McKenzie handed me something

1-- -..-
yesterday, Harold.

I asked Terry to do it.

PAGE 5
The main reason

I we wanted to consider these things is because they're doing

Code revision.

CHAIRMAN CLARKE: I understand.

MR. EDWARDS: Since Terry is in overall charge of

that, I asked him to prepare something, and he has, and I

frankly only had an opportunity to look at it last night and

he and I agree that it needs smoothing out, maybe it's too

broad or something. I'll be glad to read it to you if you 10 would like --

"

CHAIRMAN CLARKE: Would you mind reading it to us

and then my suggestion is this, we can do one of two things.

We can either leave it as it is in the present Constitution

J,I , with the understanding that a group would polish this up

<,

1:

1< '~;
',c.

for presentation to the Select Committee since it does not

1(\ ~~ ~ Cl

deal with any substantive matter whatever,

it deals only

Z

I', -,<,'

with the method of adopting Codes, or we could adopt what

Frank is about to read, and I have not read 'it at all, with

the thought that it could be polished up and approved by the

technical people.

Frank, would you mind just reading it for us please?

MR. EDWARDS: What Terry proposes is to add this

as a new paragraph and keep the two that are in there now,

just make this a separate paragraph. "The General Assembly

is hereby authorized to compile, codify, revise, publish, amend,

6

redesignate and repeal the laws of this state and a Code

containing such laws and other materials as the General Assembly

considers to be appropriate. The General Assembly may

4 delegate such powers as it deems appropriate in connection

with this codification or revision of laws. The provisions

of Article III, Section VII, Paragraph IV and Article III, .i Section VII, Paragraph XII shall not apply to the enactment,

rearrangement, revision or repeal of such Code or part thereof
<) ;
of any class of laws to be included or excluded from any re-

codification of laws."

ozJ.

1.1

You see, it's sort of hard to follow that with me

just reading it like that. I don't know whether you want

to adopt that now I frankly sort of advise against

adopting it to be perfectly honest with you, because it's

15

""
.",

pretty rough at the present

time .

x

OJ

1() .~
~ -,

CHAIRMAN CLARKE: Well in view of that, is there

?

<

'"
W

a

motion

that we

adopt

the

two

present

sections

as

they

Ix appear in the present Constitution with the thought that some

j') action could be taken to straighten those out at a later time.

20 ,

MR. WALLING: I so move.

CHAIRMAN CLARKE: There is a motion from Mr. Halling,

is there a second to that motion?

MS. RYSTROM: I second it.

24

CHAIRMAN CLARKE: There is a second. Now is there

25 any discussion as to the adoption of Paragraphs III and IV of

PAGE 7

Section V as they appear in the present Constitution?

With the understanding that some possible change may take

J place in order to allow the Code revision program that is

now under way.

(No response.)

CHAI~~N CLARKE: Hearing no discussion, as many

as favor the motion, signify by raising your right hand please~

(A show of hands.)

CHAIRMAN CLARKE: Are there any votes in opposition?

(No response.)

.?

l.

1j

CHAIRMAN CLARKE: There are none, so it unanimously

is approved.

The next sections to be considered -- or Paragraphs

I
11 >.
,-j.'
\.I;
1:
15 '0'

to be considered are part of Section V and they deal with the matter of veto and overriding veto and I think we can take

I tl ";r' Paragraphs XI, XII, XIII and XIV as a group perhaps, because ':1

., i 'i

-~~

it would be a little difficult to take anyone of those

ir sections without considering all of them.

1

Dr. Parthemos is -- come in, Senator is chairman

2tl of the subcommittee which considered these measures. He is , i not with us today. I assume all of you have looked at these

sections since they have been in the drafts that you have

had for some time, and I would first open the floor for a

motion to adopt those Paragraphs, being Paragraphs XI, XII,

XIII and XIV of Section V. Is there such a motion?

8

MR. WALLING: I so move.

2'
3 i~, second?

CHAIRMAN CLARKE: There is a motion. Is there a

4

SENATOR TYSINGER: Second.

5

CHAIRMAN CLARKE: There is a second from Senator

Tysinger.

Now, is there any discussion or are there any

amendments to be offered to the motion?

REPRESENTATIVE LAMBERT: Yes.

i.:.)
1.
1I >0: ()

CHAIRMAN CLARKE: Representative Lambert. REPRESENTATIVE LAMBERT: On subsectbn (e), Mr.

Chairman. This is the one sUbsection that I'd like to make

a motion to take out and I'll tell you why.

It appears to me that under subsection (d) in

'A

r<l

15

~
'!...':

Paragraph

XIII,

while

the

General

Assembly

is

in~ssion, they

HI

~ ':">

have

a

method

shown

there

whereby

they

can

veto

anything

that

1.

17 ~ they can override the Governor's veto while we are in session.

It;

Subsection (e) gives the right to have a special

19 session and that's the part I think that needs to come out,

.20 and the reason I say that, we had, I ,believe, either two years

.1;.1' ago or a year ago, such a resolution was submitted to the

22 people and it was defeated 315,000 against and 144,000 for.
_,.'' And I believe that was offered at the time by Senator Culver
,,
~-t
Kidd. It has been before the people and defeated right heavily

25
i in my opinion.

PAGE 9

I think that this subsection (d) gives the

legislature every opportunity that they need to override the

Governor's veto, and for that reason I'd like to make a motion

that we approve Paragraph XIII as it is, leaving out subsection

(e) and ren~~ering the subsections accordingly.

CHAIRMAN CLARKE: All right, now as I -- perhaps I

ought to say something about these various paragraphs, and

if I am incorrect in my statement, somebody please correct me.

The main change as I understand these provisions is that at

the present time the General Assembly is not able under its

(, ',; present practice to send a bill to the Governor until the

. v ,~

~-,

Governor calls for it. This subparagraph (d) does provide

(((,r:S)//-"c;"" ~; a mechanism if there is a two-thirds vote of the members of

"lT the General Assembly to send the bill to the Governor

.~ whether he calls for it or not, so he would have to act on

,l:

;:>

"
1

it

during

the

time

the

General

Assembly

is

in

session.

::.1.

The amendment that you are offering, as I understand,:

would then delete subsection (e), which would provide for

the possibility of a special session for the purpose of

overriding vetoes.

REPRESENTATIVE LAMBERT: That's right.

CHAIRMAN CLARKE: So as we now stand, we have a
,;
motion to adopt the three paragraphs and then a motion to ..'.\ amend by deleting subsection (e) of Paragraph -- subparagraph

(e) of Paragraph XIII. Is that correct?

REPRESENTATIVE LAMBERT: Yes, sir.

CHAIRMAN CLARKE: All right. Any further discussion

3 on this?

4

Yes?

5

MS. RYSTROM: I take it the rationale is that the

legislature is always going to know in advance what measures

the Governor is likely to veto, that1s why you think the

8 ability to send it to him takes care of the problem.

9

REPRESENTATIVE LAMBERT: They won't necessarily

10 always know, but itrs a pretty good grapevine around some-
~,
<.
11 ~ times what they think -- if it's that controversial, it might

~ ,L..~..Jo:~E...V";"Jd, \

12
ro-m-',-,,.-

'J
:
-::,,'

be vetoed. sessl.'on. I

They just

have ample time to do that during the think that werre going to inundate the

C/ ~

14 ~ people with extra sessions. I frankly donrt think that we

j <; ~, have had too many veto-happy Governors in the last few years,

,:.;

;!'

".;:-
,",

and

usually

it's

a

bill

that maybe

has

some

special

interests

l' :: or something. If it1s a bill of real magnitude, it's very

seldom vetoed. I just think just because somebody gets mad ll) because their bill is vetoed, the Governor ought not to have

to keep corning back in special session

.'1

CHAIRMAN CLARKE: Any further discussion or

questions?

Yes, sir, Mr. Edwards.

MR. EDWARDS: Mr. Chairman, -- I take it Roy,

you are talking about striking out the whole subsection (e)?

REPRESENTATIVE LAMBERT: Yes, sir.

l'ACE 11

MR. EDWARDS: That means then that anything that the

Governor vetoed after the session, the General Assembly would

4 never had an opportunity to override.

REPRESENTATIVE LAMBERT: That's right.

MR. HARRIS: He would at the next session.

MR. EDWARDS: Where does it say that? It says that

in that paragraph (e), doesn't it?

REPRESENTATIVE LAMBERT: No. Let me see --

10

SENATOR TYSINGER: Yes it does, on page 9, line 6 .

..

,.1

REPRESENTATIVE LAMBERT: " .. the General Assembly

c' for such purpose, such vetoed bills and resolutions may be

considered within the first ten days of the next regular

I' session of the General Assembly for the purpose of overriding

:.:; the veto in the manner hereinabove provided in subsection (d). II

1h ~ ~, '.
I

Does it not give that same provision a little later

over here?

MR. EDWARDS: No, not that I can see.
(,
REPRESENTATIVE LAMBERT: It may not.

MR. EDWARDS: If you knocked that whole section out, ,. ~, anything vetoed after that, the General Assembly would never

have the opportunity to override it.

REPRESENTATIVE LAMBERT: Well apparently so, yes.

SENATOR TYRNER: That's not your intent? Mr.

Chairman, if we intend to have that privilege, then we need to

12 leave that part in it, don't we?

2

CHAIRMAN CLARKE: Well I guess it's up to the maker

3 of the motion.

4

REPRESENTATIVE LAMBERT: Well let's go back and

5 talk about how we do it now if you want to override the

6 Governor's veto.

7

MR. EDWARDS: You take it up the first ten days of

s the next session.

9

REPRESENTATIVE L~1BERT: Right.

CHAIRMAN CLARKE: It would seem to me that you might

;,.1

z

11 ~ be able to accomplish that by simply leaving in subparagraph

9"-,, i..""' 12)

(e)

but begin it with the word

"vetoed" on line

6 of page

9.

That would seem to be a possibility, I haven't looked at it

14 , very carefully. We'll have to take a look at it and see.

'<

1:
15 ..')

REPRESENTATIVE LAMBERT: Well my purpose in making

'':"":>

r,::

16

z
wa

the motion was

to

prevent

the

recalling of

extra

sessions

)~

17

0:
~")

all

during

the

year.

I have no objection to leaving that in

18 and frankly I thought it was in somewhere else, leaving it

19 as it presently is to override the veto.

20

CHAIRMAN CLARKE: Well then are you changing your

21 motion?

?2

REPRESENTATIVE LAMBERT: Well, why not let's rewrite

.~3 section (e) would be the best way to do it, it seems to me,

24 leave section (e) in there with that provision but as section

,~ (e) now stands, my motion is to do away with it.

PAGE 13

CHAIRMAN CLARKE: Suppose section (e) were to just

simply read "Vetoed bills and resolutions may be considered

within the next ten days of the next regular session of the

., General Assembly for the purpose of overriding the veto in

the manner hereinabove provided in subsection (d)."

MR. MCWHORTER: Mr. Chairman, shouldn't it probably

go up in (d) itself though?

CHAn~!<1AN CLARKE: Could be.

Il

REPRESENTATIVE LAMBERT: Could be, Ham.

Starting on line 6, why couldn't we use this,

:,

Z

l!

1-
0:

"Vetoed bills

(after the word.such)

and resolutions voted

after adjournment may be considered within the first ten

days of the next regular session of the General Assembly for

; the purpose of overriding the veto in the manner hereinabove

provided in subsection (d)."

In

CHAIRMAN CLARK: It would be vetoed after adjournment,

I; would it not, instead of voted?

l;-.'

REPRESENTATIVE LAMBERT: Vetoed, yes.

MR. WALLINGS: Bills and resolutions vetoed to keep

it from being redundant. Bills and resolutions vetoed after

adjournment ... "

CHAIRMAN CLARKE: Right.

REPRESENTATIVE LAMBERT: Yes, leave off the word --
),
...>-+ start with "bills".

MR. MCWHORTER: Mr. Chairman, could I suggest just a

;', ,\(;1< 14

thought'?

CHAIRMAN CLARKE: Yes, sir.

MR. MCWHORTER: Go back after the first sentence

.,

in Cd) and consider putting it in there and not referring to

Cd). I'm not sure that's right but it looks like it would fall

in order to give the mode of how to do it before you say lOU

can, so to speak.

REPRESENTATIVE LAMBERT: Put it where, Ham?
MR. MCWHORTER: I'm not sure that's right, but r can
10 see the possibility of putting it after the first sentence
z
in (d). Then you couldn't have to refer to Cd), you coule

put it all in (d).

CHAIRMAN CLARKE: Or you could put it just before

-- '"o- the last sentence in (d) , might be more
r

,

MR. MCWHORTER: That'd be good.

:':J

1(. "1".
:,

CHAIRMAN CLARKE: Have better continuity. Right

i:

~
I' ''"" after you make the provision for bills being sent down

MR. MCWHORTER: Oh, yes, I agree with you.
1'1
CHAIRMAN CLARKE: I think that would be perhaps a
20
better place.
)1
Roy, would you like to perhaps restate your motion

and let's see just where we stand?

REPRESENTATIVE LAMBERT: All right. My motion is

to eliminate subsection (e) from Paragraph XIII and rewrite

section Cd) with this language -- I have no pride in this -- but
------ --_._- - ---.------- ------------------ ---- -- - ---- - ----

PAGE 15

with language such as, before the last sentence in subsection

(d), "Bills and resolutuions vetoed after adjournment may be

3 considered within the first ten days of the next regular

4 session of the General Assembly for the purpose of overriding 5 the veto in the manner hereinabove provided in subsection -6 well, we wouldn't need that hereinabove provided in subsection I

(d), would you?

8

CHAIRMAN CLARKE: No.

MR. HARRIS: Just hereinabove provided.

Hi

'J 7.
1j .

C>

I: ":'":

IrV}~1'

..

\~~~1))/'~~"~ ~

" '.. -~'.' ,/ .-

1~~ ,..~.

'J'}
.../

MR. MCWHORTER: Now Roy, when you said "after U , suppose one was vetoed on the last day or something like that. You see what I mean by that? Should it be all inclusive? Suppose a bill was vetoed the last day.
MR. HARRIS: Then you'd have to send it back up

._.., to be reconsidered .

:)

... 1!J

't~

0z

MR. MCWHORTER: Or else you wouldn't get it next

<

1 ! ,'" year, that's right. If that's what you want it's okay with

1.~

me.

MR. HARRIS: It's his obligation to send it back.
20 I believe that's right.
...',j MR. MCWHORTER: After one is vetoed like the last

of the General Assembly, I mean minutes or hours, there would

not be an opportunity ever to override it. If that's what you want it's okay with me.

REPRESENTATIVE LAMBERT: Well what are you

suggesting, Ham?

2

MR. MCWHORTER: I'm not suggesting, but if you say

3 vetoed after the session, if that's what you want that's fine,

4 but we do know there's a possibility of vetoing the bill right

5 at the last when the time element would not allow you to ever

6 have a chance to override it.

7

REPRESENTATIVE JONES: Is there any vehicle to

S transmit the bill back to the house of origin if it's vetoed ~ ! in the middle of the session?

10
"z
11 ~.
"'""-
~,
12 ~
@r='~

right at

REPRESENTATIVE LAMBERT: Yes. MR. MCWHORTER: But the time frame allows it but the last the time frame might not allow it. MS. RYSTROM: What is the present situation for

14 ,.. last day vetoes. Is there a provision now that allows vetoed

v...~

1:

15

~
"0:
::>

measures to be brought up in the first

ten days of the next

16 ~ ~, o

session, does it say vetoed after adjournment?

z

-<.

17 ;;

CHAIRMAN CLARKE: No, but there is no provision in

18 the present constitution that allows the General Assemblyb

19 send bills to the Governor, they have to wait for the Governor

20 to call for them.

21

Any further discussion?

22

SENATOR TYSINGER: ltd like to ask a question.

,~

.:.J

CHAIRMAN CLARKE: Yes, sir.

2-1

SENATOR TYSINGER: The way it is written now, there

is a proviso that only a joint call of the Speaker and the

I
;

PAGE 17

Lieutenant Governor can call for that special session. It

doesn't mean that you're just going to have these things

willy-nilly. It looks like to me you've got a provision in

,I there to protect from just having arbitrary sessions. I'm

speaking this is the intent of I think many members of the

b ,! Senate that they would like to have an opportunity to respond

to the Governor's veto rather than wait until the next year.

You might have a whole new General Assembly or a new Governor.

REPRESENTATIVE LAMBERT: Well of course that's also

10 putting a pretty heavy burden on those two presiding officers.

<.1 L
1 j ... 0'
':J '-

SENATOR TYSINGER: That's why we give them so much

(~~)r'~' ~J '\ ',' money for a salary. CHAI~1AN CLARKE:

Is there any further discussion or

, ,./

II

l ~t ," further questions? ~ <:

1:

1.~ ,,::,
:'-:":">

Yes, sir, Frank?

1,

,~.
:l

~

MR. EDWARDS: This is just for the sake of under-

C'

I

,; -,

,~
"'

standing

this.

The point was raised under the present

! ;~ Constitution that you can't send a bill down until the Governor

I I calls for it. That can be argued pro and con. I think you

20 can. If the General Assembly passes a bill, I think they can

go down and give it to the Governor. There has always been

this argument whether he's going to accept it or not and

then that'd be a matter of proof. But I don't think we are .24 giving the General Assembly something here that they never had

before. In fact, we might be taking a little something away

18 because we're requiring a two-thirds vote for them to send

it down. I'm just speaking now from the viewpoint of the

General Assembly so they'll understand what we're doing.

CHAIRMAN CLARKE: Perhaps I should have said

according to the practice under the current Constitution.

MR. EDWARDS: I agree with Roy, we haven't had any

veto-happy Governors, everybody has gotten along. I don't

know that we have ever overriden a veto except maybe some

local bills. I don't think it really means that much one 1(1 way or the other. But! think if we do do something, we

11,. ought to understand what we're doing. That's the point I was

\!",,~\ L ~ making.

".")'\,j\ )r~~E'- 7-
-~ .' I
, /,

CHAIRMAN CLARKE: Yes, Barbara?

MS. RYSTROM: A questbn. Assuming that the
'.
t
1)',l measure stayed in, this is one reconvening and it would take

1(,
'.

up any vetoed bills or resolutions that what, that who decided,

e-

)
I:!. the Lieutenant Governor and the Speaker of the House decided
,~ which measures are subject?

j I)'

CHAIRMAN CLARKE: Who would like to answer that

~o question? I'm afraid I might not be --

,: i

MR. TIDWELL: It would be all of them.

2':

MS. RYSTROM: Everything that had been vetoed period,

they would just have to decide whether to have a veto override .>+ session or not.

REPRESENTATIVE LAMBERT~ But no other bills could be

19

introduced or considered.

MS. RYSTROM: But everything that had been vetoed.

CHAIRMAN CLARKE: Yeah. Any bills and resolutions

vetoed by the Governor and transmitted to the proper presiding

officer: so it would be any vetoed bill, but nothing else.

, -'

Any further discussion?

(No response.)

All right, hearing none, are you ready to vote first

on Mr. Lambert's amendment.

]1

MR. CLARK: It just seems to me we're trying to

clarify here and that point that Mr. McWhorter raised about

that last day ought to be cleared up. If we're going to

establish this right of the Assembly to veto within ten days

;' of the next assembly, we ought not to leave that little

loophole in there if we're trying to revise this thing. That

ought to be taken care of in this amendment.

MR. HILL: As a matter of fact, it's not as little

a loophole as it may appear because under the way it is ) , written now, the Governor has six days in order to act once

the bill is transmitted to him. Then it has to be transmitted
),
back to the presiding officer of the house within three days

from the date of the veto. So altogether there is nine days

there that he has, so these are.the nine days that Hamilton

is talking about toward the end of the session. I would think

you would probably want to say that any vetoed bills or

, " " \

20

resolutions could be considered in the first ten days of the

next session.

MR. MCWHORTER: I agree with what Mel says. The
'. way it is worded here is fine, but Roy -- maybe inadvertently
<, he said "after the session" and that's the language that I

I' didn't exactly object to but questioned.

REPRESENTATIVE LAMBERT: I'm not trying to change

that part.

9

MR. MCWHORTER: I didn't think you were.

1' \

REPRESENTATIVE LAMBERT: Of the way it now stands.

11 " '~J;

MR. MCWHORTER: Maybe Charlie has looked into that.

D

0,

\~'W /(,1,:\

12 ."~~'

MR. TIDWELL: I think everybody knows what you're

(((~?))r~~'~ ~ trying to do. Nobody wants to preclude an opportunity to

'- ..... _.~~ , / '

override but you don't want to have two opportunities to

I) ,~ override.

,'".,

16 ~

MR. MCWHORTER: That's exactly right.

z.

.1'/1 :~ Xl

MR. TIDWELL: If you try to override during the

I;., session and then carryover a second time, you ought not to

keep coming back. That little gap there I think could be 2U worked out technically. If we don't have the precise language

now, it could be sent to the committee
1"
MR. HARRIS: Couldn't you do it, Charlie, by saying , ,,
in some way that vetoed bills and resolutions not transmitted
2-+ , to the originating house prior to the end of the session?

MR. TIDWELL: I think that would do it.

I'AGE 21

MR. HP.RRIS: And all other vetoed bills and

resolutions can be considered in the first ten days of the

next session. REPRESENTATIVE LAMBER'l': That would be all right. MR. HARRIS: Clean that up a little bit, but
basically that idea, so that they always get one shot at it.

CHAIIDiAN CLARKE: Well are you suggesting that your motion be changed to include language of that sort to be

cleaned up? REPRESENTATIVE LAMBERT: Yes. I think we get the
I, ', sense of the thing and I'm not whatever language that the

d staff can come up with to give that purpose is all I'm trying

r t o g e t a t . f .""_1'~'!!.' ) > CHAIRMAN CLARKE:

All right.

Taking that into

)S ,-', account then, are you ready to vote on Mr. Lambert's amendment?

:0

As many as favor the adoption of the amendment by

Mr. La~bert, signify by raising your right hand.

(A show of hands.)

CHAIRMAN CLARKE: Eleven. Those opposed? (A show of hands.)

CHAIRMAN CLARKE: Eleven to one and it is adopted. Now the vote is on the motion to approve Paragraphs XI, XII, XIII and XIV of Section V.

Is there any further discussion on those paragraphs? Yes, Hel?

22

MR. HILL: Mr. Chair.man, I think we should point

2 out that this is a substantial change and I would assmne that

j everyone has read this, but before you vote, I think you

should look at it carefully. This provision on the vetoing

of local amendments to the Constitution, and that is in

Paragraph XIV. This proposal was approved by the subcommittee

because of the fear that some of these local amendments are

8 some day going to create havoc in state government because

l} a number of them are not clearly understood beforehand. In

10 any event, this was just put in here as a safety valve

11 precaution and that's the reason the subcommittee approved it,

.,:,.SVl~~. ]2 ;~.;: but it is a substantial change from what is presently in the

(I~.~.:V.(-:(:-:~:~1J:\>//):~!!."~

~-
,VI

Constitution .

1~~ ,-.

CHAIRMAN CLARKE: Well I think there are probably

] 5 ) two strong reasons for having it included. One is that

sometimes an amendment that starts out and appears to be
z <

extend beyond localities. Another that I heard expressed I') during some of the discussions in the subcommittee was that 20 there are times when the authors of the resolution itself may 21 find that there is some reason that they would prefer for it
") "
not to go forward at that time and rather than have to have
it go on the ballot and seek to have his constituents defeat 24 it, he would prefer to be able to go to the Governor and say
would you please just veto this and let us come back and take a

23
look at it another time. I heard those sentiments expressed.

Yes, Barbara.

MS. RYSTROM: These are the materials that we have

" not gone over in a meeting of this committee at all as far as

I can tell. I know the hour is late and we have a lot to do,

i, but I just think we should go over it bit by bit so that those

of us who were not in that subco~~ittee --

CHAIRMAN CLARKE: The floor is open for any dis-

cussion you want to have

.l d"

MS. RYSTROM: Dr. Parthemos is not here but perhaps

'; someone else from that committee could lead US through the
'.:)
section and explain.

CHAIRMAN CLARKE: Perhaps we can do that. I was

hoping -- we have had these sections before us for several
,.
J< .;: weeks, and I was hoping everybody would have taken l;~ J
MS. RYSTROM: It's not a question of reading it,

i it's a question of hearing what the rationales are for things

as we did on almost every other section.

CHAIRMAN CLARKE: Is there anybody here from that

subcommittee who would like to undertake the task of doing it?

(No response.)

Well I did not realize that Dr. Parthemos was not

going to be here until the last minute. Of course I will

attempt to do so, I'm not sure that I can do so very well.

MR. MCWHORTER: Charlie, could you work with him on it?

24

MR. TIDWELL: Yes, sir. I'm not a member of the

subcommittee though.

3

CHAIRMAN CLARKE: Charlie, perhaps either you or

Mel or perhaps jointly, y'all might be able to go through

the technical aspects of these four paragraphs better than I

would. I'll be glad to add any comments that might occur to

me as you go along.

We're starting with Paragraph XI.

MR. TIDWELL: I think that is just as it now

.. appears in the Constitution. There's no change .

Ii

The first change comes on this mechanism to send,

during the session, a bill to the Governor to be vetoed. Now

my recollection --

14 )-

MS. RYSTROM:

I would be content if you go on to

the part that you had named

1(1 '~:
,<
(
17 ,,;

MR. TIDWELL: The local resolutions? MS. RYSTROM: Those things were implied in the

11:\
discussion we just went through for the veto power.

19
MR. TIDWELL: All right. I think the genesis of

that idea for a right of the Governor to veto local resolutions

occurred or the experience occurred during the last session

of the General Assembly which focused very closely the

Governor's attention and then it was subsequently brought to
24
the attention of the subcommittee. There were a series of

local amendments that would have provided for five or six

P.-\CE 25 counties the right to have a referendum election prior to a hazardous waste disposal site being located in that county. This was a very -- a lot of you will remember -- a very hot issue back with some of these counties. Those resolutions had been introduced in the House, they had passed the house, they were in the Senate and were on the calendar to be considered by the Senate before it was realized that those local amendments -- and they truly were local amendments, they applied to only those specifically named counties -- but the impact of that would have been that that would have directly violated Federal legislation which says that if states want to regulate hazardous waste disposal, it is a state regulated level, the local -- a local community cannot have the veto power over it. It was in direct contravention with the federal legislation, which would have had the effect that the federal authorities then would have ~- a state program, if the Constitution had been amended, the state program could not comply with the federal legislation and the federal authorities would have regulated hazardous waste disposal, which would have been something that would have been art absolute and complete disaster to the state, for this reason. We now don't have the federal regulating any environmental protection laws, they are all done by state environmental divisbns and it is a great tool to att~act industry. We are the only state in the nation where that is done. So that is

26

the type of an amendment that frightened the Governor and I 2 I think it frightened the General Assenlbly, that they were about

J to pass these measures which appeared to be strictly local

4 but had very bad statewide implications.

5

So the Governor felt that it would be wise if he

(, could have the authority in those sorts of instances to

'7 exercise the veto power. Now to argue against it is the fear

8 that the Governor would arbitrarily veto matters which are

0

strictly of a local nature~ He has that authority now wi~

10 local bills. He does not exercise that authority. It's
"..:
I I >- strictly local. If the local delegation wants it, regardless

of the fact that perhaps the local authorities back horne do

not want it, he will not supplant his judgment for the local

delegation. That sort of intercourse and dialogue back and

forth.

Ib

I think the subcommittee felt that it was a

!7 permissible power to give to the Governor for him to -- with

the understanding that only would he exercise that power on

local bills when it was a matter which affected the state.

Those amendments, if they had passed the General Assembly,

there is no question that they would have been approved by the

people, they would have gone into the constitution and they

could not have been removed for two years.
_'-f
That is the rationale for that sort of power. All

of us who are familiar with the General Assembly know that a

:f .")\ ,

lot of the local amendments are very, very long amendments, they do not get that much scrutiny. There was that danger too that unbeknownst, there could be buried in one of these amendments something very disastrous to the entire state and inadvertently where someone would like to have had it vetoed. Now you realize that an amendment that passed in the odd numbered years can be repealed by the even numbered General Assembly but if it passed in the even numbered General Assembly, that's it, it's going to the voters. If we realize ,I) we have made a mistake we still can't do anything about it.
Mel, does that kind of get the pros and cons? Members of that subcolmaittee were the Speaker, the Lieutenant ~ Governor -- I don't believe the Lieutenant Governor was there at that meeting that we discussed that -- Mr. McWhorter was there, Mr. Ellard is on that committee, Mr. Tysinger was on it, and I believe that's it.
CHAIR!'1AN CLARKE: Are there any other questions about -- yes, sir?
REPRESENTATIVE JONES: Not that particular section, but section (b), what was the rationale for striking the Governor and the Secretary of State from considering amendments to determine if they are local in nature, as I read that.
MR. TIDWELL: There was an amendment last year that
,.
took the Governor off and put the Legislative Counsel in place of it. We're glad to get rid of that. It was the

i":, 28

Governor, the Attorney General and the Secretary of State REPRESENTATIVE JONES: Doesn't it say Secretary of
the Senate now?

MR. TIDWELL: I believe that's a misprint. MR. MCWHORTER: That is clearly a misprint.

CHAIRMAN CLARKE: May we by unanimous consent

I ., correct that typographical error. Herb, thank you for calling
x that to our attention -- make it Secretary of State on line

9 26, page 9. Any objectbn to making that correction?

jO

(No response.)

d

Z
JJ ~ ,:' ~

CHAIRMAN CLARKE: Hearing none, we'll make it. Any

1..., 1::
,- V other questions in connection with that particular issue?

".

~; Yes, sir?

MR. EDWARDS: It looks like I'm going to be the

r

IS ~ devil's advocate all afternoon.

\.:J

':">

n

it> :.

CHAIRMAN CLARKE: Fine.

"z

<

17 ~ devil himself it's all right.

As long as you're not the

MR. EDWARDS: I'm beginning to think I'm that too.

I realize exactly what Charlie is talking about. It's got a lot of merit to it. I suppose I've been in the legislative I branch so long that I'm sort of looking at everything from that point of view. I think philosophically I'm opposed to

allowing the Governor to veto any proposed Constitutional

amendment, local, general or otherwise. I have

certainly

know that George Busbee would never do anything to hurt that

", ... _-- / . /

29 relationship but we might have a Governor that might.
But that's not the main reason that concerns me about putting this in the Constitution, it's the fact that that's one of the whole purposes of having Constitutional revision, to revise the Constitution so we wouldn't have to have any local amendments. I think that's maybe the prime movement in the whole thing. If we put this in the Constitution, we're sort of giving Constitutional credence to local amendments. If we, hopefully, revise the Constitution so we won't have any local amendments, we won't have any need to have this in here. If we do like we did in '64 and '69 and my recollection is Bob Smalley was the prime mover .~ in that, put a provision in the latter part of the Constitution . where we would have no local amendments, only have amendments " of statewide implication. If we do that in this one, which theoretically, if we revise the Constitution properly, we would have no need for local amendments. If you put that in, this would have no meaning at all.
So I guess I'm opposed to it for two or three reasons. I agree with what Charlie said, there could be times when we might need to have that. I think frankly I'd have to put some of the blame for local amendments on the General Assembly. We pass local amendments -- in fact we pass all Constitutional amendments just too haphazardly. I think everybody agrees with that, we pass local amendments just wing-ding-ding and

30

the General Assembly and our office, probably, we don't pay

enough attention to them and I think we should.

,

"

CHAIRMAN CLARKE: Frank, what would be the

~ appropriate spot in the Constitution for a provision similar

to the one you spoke of just prohibiting local amendments?

MR. EDWARDS: It'd be over in Article XI, XII or

XIII, those three Articles that we have no standing committees

on at the present time. I don't remember the number.

CHAIRMAN CLARKE: What you could do, at the time lU they were -- when they are being studied, propose that that

11 be put in and this could be taken out at that time, I would

-' assume.

MR. EDWARDS: Well I guess you could, assuming that

14 " this Article is going to get presented at this session and
<, I:
the others won't be until 1982.

iG

n L

c'
1

'/ " ,~.

CHAIRMAN CLARKE: That would be my MR. EDWARDS: In any event, I just wanted to throw

that out for what it's worth.

1')

CHAIRMAN CLARKE: Any further discussion? Yes,

.?U Charlie?

MR. TIDWELL: To follow up on what Frank is saying.

There is no Article committee working on those three Articles.

" Those are miscellaneous Articles and the Select Committee

'-. itself will revise those Articles. They are not going to do

"

that until the rest of the work is completed so that they can

- -- , --

_. -

--,

--

PAGE 31

see what they need to do. If the local govern..rnent article

and taxation article all fall into place and it looks like

it's a durable thing, there would be a serious move to try and

+ do away with local Constitutional amendments, but we don't

know whether we can get into that posture.

MS. RYSTROM: Isn't Georgia the only state that has

any such thing as local Constitutional amendments? I think I

" read that.

CHAIRMAN CLARKE: Who can answer that question? I do

not know.

MR. TIDWELL: One of the few, if not the only one.

HR. EDNARDS: ~le have more than any other, that's ""':'" 1. for sure.

!I

MR. CLARK: Is there any mechanism in this govern-

mental procedure that we could adopt this, if it seems to be

necessary under the -- to remove the obstacle that has just

been explained, but information to the Select Committee that

it is the will of this committee that local amendments be I',' taken out. We can't do it with this, but do we have the

mechanism at least -- advisory.

CHAIRMAN CLARKE: Well we have the Executive

Director and the Assistant Executive Director of the Select

Committee here with us this afternoon, and I am certain we

could express our sentiments to them. Would you like for us

to do that in writing or would the fact that we have put it on

32

the record be adequate? It may very well be that after we

have acted on this motion, that you might want to make a

motion to express our sentiments in that connection and let

the committee vote on it.

MR. CLARK: If it's not necessary, let's don't

clutter it up, but if it takes that, I t.hink we ought to ~Tet

it in the record.

MR. HARRIS: I've got a fairly good memory and My

basic sentiments are exactly in that direction.

1,)

CHAIRMAN CLARKE: I thought they were. Are there

any further comments regarding the veto provision?

(No response.)

CHAIRMAN CLARKE: Are you ready to vote? Let's go

ahead since we have discussed -- is there any objection to

15 ~ voting on all these paragraphs jointly? Hearing none, we :":>"
] () m~ will. z <
As many as favor the approval of Paragraphs XI, XII,

Ib ! XIII and XIV of Section V, signify by raising your right hand --

L' as amended, incidentarry

.:0

(A show of hands.)

~J

CHAIRMAN CLARKE: Those opposed?

(A show of hands.)

CHAIRMAN CLARKE: Eleven to one is the vote.

At the last meeting, we approved Paragraph VII of

Section V dealing with the special procedure for the enactment

of local legislation. I believe Paragraph VII deals with the

reading of bills and Paragraph VIII is Procedure for

considering local legislation.

The staff of the committee has found that there are

some technical problems, really with respect to what our

actual desires were and whether we accomplished those desires.

And they have suggested that perhaps we might want to take

another look at what we have done on that. Mel is handing

o I,'
out to us a proposal, which frankly I have not seen yet

Iii myself, so when we get it we can take a look and perhaps Mel

'.') Z
I' ~ can tell us the import of it.
.L.

I'

(Mr. Hill distributed a document to the

committee members.)
1.1
MR. HILL: This was not put on the draft because

the coromittee really hasn't approved this, and I'm not sure

this is the way you want to go, but there was a misunderstanding

last time about what the effect of these two provision was

supposed to be. There was some misunderstanding with respect

to the reading of bills, whether the three readings require-
",.
ment was to apply to both general and local bills or only to

general bills and then what kind of requirement should there

be for local bills if they're going to be different. In any

case, the relationship between Paragraphs VII and VIII was

very unclear. Now in the draft that I have prepared, and I

talked to Hamilton McWhorter about this, Mr. Ellard about this,

34 1 I this is just for your consideration. The draft as written

2 here separates the questions, Paragraph VII has the provision

3 relating to the reading of general bills and that is

4 essentially what we have already approved. With respect to

S local bills in Paragraph VIII, it says the General Assembly

h can provide a procedure for considering local bills

7 provided that there has to be at least one reading and

8 provided that no bill can be voted on prior to the third day

9 following its introduction. When I spoke with Hamilton, our

tu thinking was that there had to be some limitation of that

'z"".
]1 ~, kind on local legislation so it couldn't be passed the same

>'

l~.') ~.:t" day it was introduced. So this is merely for --

, \/~~Vst~~,'''~ ~'

CIIAIRMAN CLARKE: As I understand it, what this would

'-.~_..-'"
avoid is the necessity of reading the caption on two of the

Je; days, but you would have to wait at least three days to actually

.:;

1tJ

"J.:"
7-
'~

vote

on it,

is

that

right?

'l,

I7

<,
, ,,~.
....

Is there any question or discussion? First, in order

Iii to get our parliamentary situation structured properly, is

19 there a motion to adopt Paragraphs VII and VIII of Section V

as passed out, just to get it on the floor?

21

MS. RYSTROM: I so move.

')

DR. PYLES: I second.

CHAIRMAN CLARKE: We have a second. Now, Ham?

MR. MCWHORTER: I have talked too much about this.

25 I agreed with Cindy and Melon some wording and now I want to

PAGE 35
back down on it. If you'll look at Paragraph VIII, on the fourth
sentence, I believe the words "local law" would be better than "local legislation" to conform with Paragraph VII plus I think we're talking about final enactment rather than what could happen. I don't think it's important but I think it's a better word.
Then I'd like to ask a question, and ttl like to ask Frank Edwards if this Paragraph VIII is broad enough to J': include providing how you would advertise.
MR. HARRIS: There's still another paragraph that's not changed, Paragraph IX still has the requirements for advertisement.
CHAIRMAN CLARKE: That's right. MS. RYSTROM: But it doesn't specify it. MR. MC~vHORTER: Is it necessary or should i t be there? Do you see what I mean? MR. EDWARDS: I'm not sure I do. MR. MC~VHORTER: We changed the way to pass local legislation and one thing was to by law provide for the advertisement rather than putting in the Constitution. I wanted you to see if VIII and IX could be written together or do you see any conflict, do you think it's broad enough to take care of it? MR. EDWARDS: I don't think it bothers the point about

.\ \:~ 36

advertising, is that your question?

MR. MCWHORTER: Well I still say I want to know if

c' you think that under the provision that by law you can do

anything necessary on advertising.

MR. EDWARDS: Oh.

I,

MR. ManiORTER: The original point was not to lock

it into the Constitution.

MR. EDWARDS: On Paragraph IX, the one dealing with

'! advertisement

MR. MCWHORTER: You would leave it just like that

1! and there would be no conflict with VIII?

j :'.

MR. EDWARDS: Yeah, I don't see any problem.

MR. MCWHORTER: I agree with you. I would move to f'; amend it to strike the word "legislation" and put "laws" for

two reasons. I think that's the final act, number one, and

1I~~, ,:: number two, to make i t conform more with VII.
\,
any objection to that?

Do you see

MR. HILL: The fourth line?

t c!'

CHAIRMAN CLARKE: The fourth line of Paragraph VIII,

:u your motion is to amend it by striking the word IIl eg islatbn fi

and inserting in lieu thereof the word "law". Is there any

further discussion?

Yes, sir, Frank.

MR. EDWARDS: I'm not a member of the committee, but

I have a few little minor language --

P\CE 37
CHAIRMAN CLARKE: We need your help. MR. EDWARDS: It might not be right, but Paragraph VII says "The title of every ... ", and then insert "general" "The title of every general bill. .. " Then in the second line " and of . ", differentiate between a general bill and a resolution. "The title of every general bill and of every resolution intended to have the effect of general law or . strike. out "intended" and keep on going until you get to the next to the last line. This is just as a matter of choice, I'~ but I strtlck out the words "when desired lt " when ordered by the presiding officer or by one-fourth of the membership in either house." to get rid of just a litt.le language, I don't ~ know if it'll improve it.
n
CHAIRMAN CLARKE: If I understand it, with those , changes it would read this way, "The title of every general
bill and of every resolution intended to have the effect of general law or to amend this Constitution or to propose a new Constitution shall be read three times and on three separate days in each house before such bill or resolution shall be voted upon, and the third reading of such bills and resolutions shall be in their entirety when ordered by the presiding officer or by one-fourth of the membership in either house. "
MR. EDWARDS: Right. MR. MCHHORTER: Mr. Chairman, I want to raise the

38 point, I don't feel strongly either way, but when you do

put one-fourth, you could allow a filibuster. I think the

President of the Senate well knows if they make you read the

appropriations bill or one like that, one-fourth could cause

a filibuster. I don't anticipate one but you are putting in

the possibility.

CHAIRMAN CLARKE: You're suggesting that by having

the one-fourth they could order a reading of the entire bill

and thereby stretch the business out in the body, is that

right?

MR. MCWHORTER: That's a question I'm raising

although I don't feel strongly either way.

CHAIRMAN CLARKE: Well before we get into that,

14 " does somebody want to make a motion to amend Paragraph VIr

:-> ,J along the lines suggested by Mr. Edwards?

.J

,. ;

1(

.~

MR. MCWHORTER: I so move.

CHAIRMAN CLARKE: There is a motion. At this point

we have two motions, one is to Paragraph VIII and one is to

Paragraph VII. Is there any further discussion or motions

to amend.

MR. EDWARDS: I've got a little more stuff on

Paragraph VIII.

CHAIRMAN CLARKE: All right.

...1 -~'

MR. EDWARDS: Paragraph VIII says "'l'he General

Assembly may provide by law {you can leave in 'for' or take it

out) the procedure for considering local legislation." The

purpose of what I'm doing here is just to get rid of these

proviso things. Put a period after "legislation" and strike

"provided that". Start with a capital "T", "The title of

every (then insert) local bill and every resolution intended

to have the effect of local (and I have done the same Ham

had done, I put law instead of legislation) law shall be read

at least once before such bill or resolution shall be voted

upon, and (strike out provided further that) no such bill or

resolution shall be voted upon prior to the third day "
'~
CHAIRMAN CLARKE: Let me just ask you this. These
I: two changes that Mr. Edwards has suggested. I see them as

editorial changes rather than anything else. Are there any

objections to those being adopted?

,',

(No response.)

CRAIRMAN CLARKE: Hearing none, we'll just declare

those as part of the draft unless somebody objects to doing

so.

MR. EDWARDS: I had just one question on the last

part, ". no such bill or resolution shall be voted upon

prior to the third day following its introduction." As I

understand -- I was looking at something else when you were

explaining that -- does that mean that the bill won't be read

on three days, is that what the purpose of that is, can't be

voted on until later on but

'\" " 40

CHAIRM1\N CLARKE: It's got to be read only one day,

but it can't be voted on until the passage of three.

MR. EDWARDS: Okay.

.:+

CHAIRMl\N CLARKE: Yes, Charlie?

DR. PYLES: Would someone interpret at the bottom of

~ Paragraph VII "in either house"? Does that mean physically in

the house that day at that moment, or elected?

CHAI~~N CLARKE: Who would like to address that q question?

MR. EDWARDS: We've been putting in here "membership
,.,
y entitled in the Constitution", I don't know

DR. PYLES: That's what I want to know.

CHAIRMAN CLARKE: That's a good point.

:4 >'-

MR. MCWHORTER: It ought to have better wording even

r

J:) ,~ if you wanted to keep it. :.:'

X

.~

j {, "'

MS. RYSTROM: Is it the case that the Constitution

2,

j1

11~ ..:;:';

presently'doesn't have

that because all

I

find

in the present

Constitution Article III, Section VII, Bills to be read, it

10 , just says " . first and second reading of each local bill,

shall consist of the reading of the title oruy, unless said 21 bill is ordered to be engrossed." We're not now reading the

whole bill on the third day?

..:...)

CHAIRMAN CLARKE: Yes, on the third day you read

the whole bill and if it's that thick (indicating) you read

the whole thing.

PAGE 41 MR. MCi'lHORTER: Except local bills. CHAIRMAN CLARKE: Except local bills, and so that's .' the intent of this, to avoid that except under these .1 particular circumstances, if the committee desires to do so . MR. MCWHORTER: I personally feel that maybe it's (,. enough for the presiding officer -- I don't feel it too '7 strongly -- if they demand a bill be read, I think the presiding officer ought to take care of the will of the members as to being enlightened on what's before them and to put the onelU fourth in there could be a mechanism to allow 25 or 30% of
.>
the body to in effect use dilatory methods to defeat a bill late in the session.
I think maybe the Lieutenant Governor knows more than I do about that.
CHAI~1AN CLARKE: Governor, you have any comments on that?
LT. GOVERNOR MILLER: Not on that one, I'm saving mine.
MS. RYSTROM: What possible reason is there for reading a bill in its entirety on the third day?
CHAIRMAN CLARKE: The only reason I know is the Constitution says you've got to do that.
MS. RYSTROM: What good reason is there? None of those are good reasons I would think.
CHAIRMAN CLARKE: Ham, do you want to make a motion

42

to delete the last portion of it?

MR. MCWHORTER: Just to get it before the body, I

-' will.

-I

CHAIRMAN CLARKE: Let me go back now and see if we

5 can reconstruct where we are. We have first a motion to

adopt these two paragraphs. Then we had certain editorial

changes suggested first by Ham changing the word "legislation"

to "law" and then certain editorial changes suggested by 9 Frank and later made as a motion by Ham. What I would like to 1~) do is ask again if there is any objection to those editorial

!1 0 changes. If I hear none, we will just make those without

necessity of adopting the motion.

There is a substantive change moved by Mr. McWhorter
11 " which would put a period after the word "officer" on the
T
IS .," next to the last line of Paragraph VII and delete the ,_.~ ::'
16 '_f remaining portion of that paragraph, is that correct?

DR. PYLES: I'll second that.

CHAIffi'ffiN CLARKE: There is a second to that motion.
19
We'll go ahead and just act on that motion to amend, even

though this may not be the most proper parliamentary way to

do it.

REPRESENTATIVE JONES: One questbn. Does that
,_ _ ''I
then leave the prerogative of the membership without a method
"." of calling for the reading if the presiding officer doesn't

ask for it?

MR. MCWHORTER: That's correct.

i'AGr: 43

CHAIRMAN CLARKE: That is right, and it's up to

j the con~ittee as to whether they want it that way or they

want to have the right for the members of the body to, by some

method, call for it. If there is any discussion on that

" issue, we certainly want to hear from anybody on the

committee.

Yes, sir?

cl

MR. MCWHORTER: I could see the merit in changing

it to "majority" from "one-fourili' rather than deleting it

.'

7-

11

REPRESENTATIVEHOLMES: I personally feel we're

talking about theoretical possibility of what Mr. McWhorter

indicated, a filibuster, by stringing out the amount of

i I time it takes.

<

1

1:; .~

I have only been here five years but I can't recall

:'l

1r,

~'
~

this ever being a problem.

Gentlemen who have been here

'0J

j ..
longer perhaps know whether in fact when the clerk mumbles

,\
something and doesn't read the entire bill, whether in fact

it has had any effect in terms of the length of time that it

takes to dispose of a measure. I just don't know of any

reason to change it, but I'm willing to defer to the judgment

of my senior colleagues.

SENATOR TYSINGER: Mr. Chairman, I'm for leaving it

in there because frequently in legislation you need that

time to consult with some other people. You get a railroad

train started, sometimes it's real difficult to stop unless

2' you have some mechanism that you can slow it down just a

;1 little bit.
-' 'I

4

MR. MCWHORTER:

I'll withdraw it then.

REPRESENTATIVE JONES: Tell me still, does this

6 say that the third reading shall not be done unless --

in its entirety unless --

"C'

CHAIRMAN CLARKE: That's right. This particular

paragraph, as written, would do away with the third reading

10 of the bill in its entirety unless ordered by the presiding

Ii

'"".
~:

officer

or

by one-fourth of

the membership of either house.

~;:

REPRESENTATIVE JONES: Mr. Chairman, if that is the

intent, I'd like to make a substitute motion that a period

be placed after the word "entirety".

"l:

15 ,..~

CHAIRMAN CLARKE: The effect of that \llOuld be to

16 f.(l keep it as it is at the present time, is that right?

REPRESENTATIVE JONES: And if I could address myself

18 to it, every person that has been here during a session of the

19 General Assembly knows that any individual can be called out

20 at any time for any purpose. A number can be flashed on the

21 board and a vote can be called when nobody has the opportunity

really, if you're not reading the bill there's a good

opportunity that you're not going to discuss the bill. True,

we need maybe to expedite things, but we don't need to ):: expedite things at the expense of not knowing what we're

expediting. I have a very strong feeling that we should have that tool or restriction so that the people in the gallery, the people in the state, the people on the floor will know what's going on.
CHAIRMAN CLARKE: Yes, sir. LT. GOVER}lOR MILLER: You're implying that they do know what's going on if they hear the Clerk or the Secretary mumble through some of these bills, maybe reading the first paragraph and then skipping over four or five pages. Don't i(\ you think that I s kind of winking at a REPRESENTATIVE JONES: I think they'd have a better opportunity if they caught every third word than if they
. ~. ' ~
didn't catch a word at all. They would at least have an
,)
/
opportunity go to the Clerk's office and get it and follow " along.
CHAIRMAN' CLARKE: Is there any further discussion as to Mr. Jones' motion?
(No response.) CHAIRMAN CLARKE: All right, we'll vote on the motions to amend in reverse order of their having been offered. I think that's the practice we should follow to begin with. So the first vote will be on the amendment offered by Mr. Jones, which would insert a period after the word "entirety" on the third from the last line of Paragraph VII and delete the remaining portion of the paragraph. Is that correct, Herb?

46

REPRESENTATIVE JONES: Yes.

CHAIRMAN CLARKE: As many as favor the motion of

Mr. Jones, signify by raising your right hand.

(A show of hands. )

CHAIRMAN CLARKE: Three. Those opposed?

(A show of hands. )

.,,

CHAIRMAN CLARKE: Ten. So the motion is lost and

we will proceed now with the motion offered by Mr. McWhorter,

the effect of which -- the motion being to insert a period !d after the words "presiding officer" on next to the last line j' ; of Paragraph VII and delete the remaining portion of the

paragraph.

Yes, sir?

MR. MCWHORTER: I sort of want to amend my motion

to make it majority.

" " J: .U "

CHAIRMAN CLARKE: All right. Is there any objection

.:!'
~ to Mr. McWhorter amending his motion, rather than having to

defeat it and then -- what is your motion now, Ham?

MR. MCWHORTER: That it reads instead of "one-fourth",

"majority of th.ose voting ... "

-l''

MS. RYSTROM: Of those voting, rather than what we

22
have done elsewhere?

MR. MCWHORTER: The majority of those voting.

CHAIRMAN CLARKE: You want to say a quorum voting?

MR. MCWHORTER: That would be an automatic quorum to

say one-fourth of those voting.

CHAIRMAN CLARKE: One-fourth of --

MR. MCW}{ORTER: Majority.

CHAIRMAN CLARKE: Excuse me, I'm sorry, majority

of those voting. Now as I understand it, the last two lines

would simply read this way, " . presiding officer or by

majority of those voting in either house." Would that stay

in?

MR. MCWHORTER: Yes.

';, ...

CHAlmlAN CLARKE: Does everybody understand the

ji

motion made by Mr. Mc~1horter?

1 .~

MS. RYSTROM: I just suddenly realized there is

\

j ~~:'_"!!~'!~ ~.. '-I

something I

don't understand.

Is each house dealing with this

separately?

CHAIRMAN CLARKE: Yes.

'1

t.

MS. RYSTROM: If the Senate wants it read entirely

and the House doesn't, all right, that's what we mean when we

say either house, we don't mean the Senate can force the House.

CHAIRMAN CLARKE: No. Any further discussion of Mr.

McWhorter's motion?

(No response.)

CHAIRMAN CLARKE: As many as favor Mr. McWhorter's

motion, signify by raising your right hand.

(A show of hands.)

CHAIRMAN CLARKE: Eleven. Those opposed?

(A show of hands.)

2
.,',

CHAIRMAN CLARKE: Eleven to two, so the motion is

3 adopted.

,~

Now let's vote on these two paragraphs separately

s since they do seem to have a little different subject matter.
"
() There has been a motion to approve the Paragraphs, is there

'7 I

any further discussion on Paragraph VII?

8

(No response. )

9

CHAIRMAN CLARKE: Are you ready to vote? As many

10 as favor the adoption of Paragraph VII as amended with the

.;;.
j I [-. editorial changes suggested by Mr. Edwards and amended by the ~ 0

J:: <I motion of Mr. McWhorter, signify by raising your right hand.

(~r=; /~s'!l1..-1.\

:

(A show of hands.)

~----;/

,

14 ~

CHAIRMAN CLARKE: Eleven. Those opposed?

<'

~

(A show of hands.)

J(i

l'
'J.
.-,:~,

[ 7 L":: "Xl

CHAIRMAN CLARKE: Eleven to two, and it is approved. Now, as to Paragraph VIII, I believe there are some

11\ editorial changes only, no amendments have been offered as I

I') recall. Is there any further discussion on Paragraph VIII?

2:,

(No response.)

CHAIRMAN CLARKE: As many as favor the approval of

Paragraph VIII with the editorial changes, signify by raising

your right hand.

I

(A show of hands.)

;',

CHAIRMAN CLARKE: Thirteen. And I believe that is

49
unanimous. Am I correct? I see no other votes. Now we will move into Paragraph -- or rather, Section
VI. The first thing is really something that I believe we fairly well acted on the last time except that the language needed to be perfected at a later time, and that is the saving /) language for existing legislation dealing with the Highway Beautification Act primarily, I think. It appears in Section VI, Paragraph II, subparagraph (b) beginning with line 7, page 12. Are there any questions about it? The effect of this is to assure that the statutes which have been passed JI ", under the present Constitution regarding the Highway
:0 ::, 1'
.1 Beautification Act are not caused to be unconstitutional by this Article. Is there any question concerning that? Yes? MR. HENRY: There's also I would like to point out in Section VI, Paragraph II, subparagraph (3), which is intended to be a catch-all so that the Constitution won't have to be amended in that manner. CHAI&~N CLARKE: Dealing with getting federal grants and so on? MR. HENRY: Right. CHAIRMAN CLARKE: Correct. But I think we perhaps had already acted on that. Is there a motion that this subparagraph (b) be approved? REPRESENTATIVE HOLMES: I so move.

CHAIRMAN CLARKE: There is a motion, is there a

2 second?

3

DR. PYLES: I second.

4

CHAIRMAN CLARKE: Second. Is there any discussion?

5

(No response.)

6

CHAIRMAN CLARKE: As many as favor the motion, signify

7 by raising your right hand please?

;{

(A show of hands.)

CHAIRMAN, CLARKE: It seems to be unanimous. Are

10 there any opposed? I see none.

"<.
]1 ~;

Haven't we already adopted this III over here, Mel?

o

;:J

w

12 ~

MR. HILL: This was new language but it's the

,~d

(~~-;- j))~~. "--\\.

/Jl

'---- / /

~
same -- it's a clarification.
.'
,

I might say, just as a point of

_.-

14 ~ information, the committee that worked on this really did

',0

IS'J everything possible in the language in subsection (a) to cover i':; "
16 . subsection (b). We did not like to have to do what we did
'~ "
17 ~ but it was just as a safety precaution to make sure the

,I',.'' Supreme Court would not think that the General Assembly didn't

have authority in these specific areas of federal law that

were necessary for federal programs. It was just a compromise
we finally decided we had to make in this provision.
~l .,
CHAIRMAN CLARKE: Another paragraph in this particular

Section that has not been acted upon by this committee -- by

the full committee is Paragraph VI of Section VI, it deals with

population bills I believe.

51 MR. HILL: Paragraph IV. CHAIRMAN CLARKE: I'm sorry f f'araqr.1ph TV r ('>XCl1:':(' mr-.
That appears on page 12, beginning at line 19. Now that was
.J the one meeting that I was not able to attend and perhaps
somebody who was there -- Mel, you might want to give us a little rundown of the effect of the language in this particular I paragraph.
MR. HILL: Okay. The committee was faced with the problem of trying to address the population bill issue. Frank
Edwards maybe can speak to the problem better than I can,
u
I: .. but in any event, as I think we are all aware every year there :, o. ~ are many laws passed in the General Assembly that have a very z ..J limited population range, a general law limited by population, ~ really applies to only one city or county. The thought in the T
1t.:' committee was that there should be some effort to restrict i l\ those if possible and this language -- with the assistance
of the Office of Legislative Counsel, this language was
developed to address this problem. Now this, as you see, prohibits bill classifying on the basis of population which .'0 if enacted will apply to only one city or county. And this does not apply to a bill that classifies on the basis of popUlation above a certain population or below a certain
popUlation. The reason for that limitation is because in Article IX, the present provisions on cities and counties and
one of the grants of authority to cities and counties states

the General Assembly can affect their powers by virtue of a
.. Ii population bill above or below a certain population. We had
" to conform this language to that language and this whole
..j question of population statutes we intend to continue to

5 address in the Article IX committee. This is a proposal to

6 deal with the immediate problem with an understanding that

7 there will be more work done on this by the Office of

.:-;

Legislative Counsel and over in Article IX to try to address

9 this problem in more detail.

1(1
Frank, do you have any other comments about the

.1

II

-
o"

population bill problem?

o.

~~~~" L:,

MR. EDWARDS: Well just maybe a couple of general

(((i:.~~}r.ol' ' . ~ comments. I wasn't in on drafting this particular language

,:::,:~,

but to accomplish what Mel is talking about, it's about as
<: 1

good as we can do.

One thing that concerns me -- of course, we've had

problems, I don't have to tell you members of the General
IS
Assembly, Charlie, anybody that has worked with them before,
19
we've had problems with population bills all through the

years. Of course, our office has taken the position ever since
21
I've been here to try to discourage population bills on account

of the fact that in the vast majority of cases if they were

attacked, they would be declared unconstitutional. I suppose

one thing that worries me about this more than anything is
25
that by putting this in the constitution we are recognizing

PA(~E 53

population bills. That sort of concerns me, although I admit

most of them apply to only one county when they are drafted.

As Mel mentioned, we have already recognized them to some

degree over in Article IX. I have mixed emotions about it.

I hate to see them given any credence at all really, by specifically saying you can have some sort of population bill.

If you say you can't do those to apply to one county, maybe

a couple of counties could get together and get around that very easily. That doesn't happen too often but -- that's

about the only thing I have. I just sort of have mixed ,',
-.:
emotions, I hate to see it put in the Constitution.

CHAIRMAN CLARKE: Is there any further discussion in connection with this particular paragraph, Paragraph IV of

ii " Section VI?

MR. CLARK: This is a question, Frank, if you have

,

j {j

l.
n

Constitutional

restrictions

saying that

all

laws

shall be of

l
l --, general application, must you not have this exemption so that

I ~. J you can deal with needs of legislation where population is a

j ,) factor?

~I)

MR. EDWARDS: Well actually you can do what part of

this says now, you can -- if you have it applying to all

counties over a certain population, say over 400,000 or 200,000.

The courts would uphold something like that, but they normally

won't uphold something that says population of 10, 000 or 210, OOiO or 500 because the population bracket is too narrow. I'm not

,; ) \ I .~)., .~.

54

sure what this does really in that line because you can already

do one thing that this says the General Assembly can do. I

3 don't think you need something that says -- to deal with a
,
-t county of a small population bracket. I don't think -- you can

handle all that stuff by purely local legislation by naming

the county in practically all instances. One of the dangers

~,
J

I:

of population acts is it gives the county or anybody in the

B county a false sense of security to say look we've got this
,
'-I il population act that allows us to do this. If somebody attacks
JO it, it's going to be knocked out. I think it's bad from that

There's no telling how many bills we've got -- acts

we've got on a population basis. If anybody were to attack

them, they'd be declared unconstitutional.

MR. HARRIS: Frank, doesn't this have the effect,

1) .,!~j while it might give credence to some form of population bills,

=,.l:

16

~
az

doesn't

it

have

the

effect

of

inhibiting

the

continuation

of

<

17 ~ the passage of these local Constitutional -- I mean local

IS bills, population bills that you tell people are unconstitutional

19 anyway, but it avoids the necessity of somebody having to :() attack it in court. This would stop the passage of local bills

with narrow defined populatbns.

MR. EDWARDS: It will stop it applying to one county, 23 ! it's true it does that. That's the reason why awhile ago I

said I have mixed emotions about it. It would do that, I agree

with that.

1 !

CHAIRMAN CLARKE: Yes, Ms. Rystrom?

PAGE 55 -------- -----"II I

MS. RYSTROM: I have the worry that including this

would mean that the Supreme Court would no longer say there

needed to be any connection between the subject matter of the

bill and the classification, and Tim Sweeney thought that

wouldn't be a problem. I wonder what you think, Mr. Edwards.

MR. EDWARDS: Well just offhand I would say that

Tim is correct. I frankly haven't looked at it from that

angle. This is the first I have even heard about that part of

'. Ci it. I think probably the court would still go ahead and
.'
; i :; apply the three criteria on population. They would still
,.

' Ut1

u go ahead and apply that particular criteria to it. Of course,

(/ "L_o'1..J.\)\J .~.',,~.o , who knows what they're going to do.

. ,, .'

MS. RYSTROM: We also don't know what the advertise-

,.

> "!

:"~l
c!

ment

for

local

legislation

requirements

will

be

when

they

are

;J
'~",. set by the legislature rather than by the Constitution. It's

possible, and a little bit frightening I think, that those
1 ".
regulations could be so easy to meet that the going around the

local legislation route because of advertising \-Till no longer

lead people to the population act technique.

CHAIRMAN CLARKE: True.

MR. HARRIS: Well of course the population bills

don't have to be advertised.

MS. RYSTROM: Right, and I understand that that

technique is used because for some reason or another the

56

I ' advertising for local legislation requirements can't be met,

2 it's too late or something. If those requirements are not

3 as stringent when they're set by the legislature as they are

,j now set by the Constitution, then there may be no -- I mean

.5 they may be too easily done, but there may not be that reason

6 to go the population act route.

7

CHAIRMAN CLARKE: The incentive for using this

g really is escape.

')

MS. RYSTROM: Right.

[0

CHAIRMAN CLARKE: Any further discussion or

11 ".z question in connection with Paragraph IV, Section VI?

"o,

"'

(~k~:'!

(No response.) CHAIRMAN CLARKE: Are you ready to vote? As many

, ,"-.--_//~//

,

14 ;, as favor the adoption of Paragraph IV, Section VI, signify

,~

t'

1 r :~ by raising your right hand.

'.

::J

1 1:~
(1 1,

(A show of hands.)

I '( ,r

CHAIRMAN CLARKE: Twelve. Those opposed?

(No response.)

19 ;

CHAIRMAN CLARKE: I believe it's twelve-zero

thirteen, excuse me, I can't count very well, thirteen is

an unlucky number anyway.
7"
The final section that is yet unacted upon, final

paragraph is Section VI, Paragraph VI. As you know, this

has been a very troublesome area dealing with the question of

gratuities. You will recall that at the last meeting,

57

consideration was given to a section a proposal which

required, I believe, a three-fourths vote of the membership

of each house and the absolute right of veto without the

possibility of it being overriden by the General Assembly.

There was some thought that this was not stringent enough. I

believe the redraft provides the same thing except that the

approval by each house would have to be at two successive

sessions of the General Assembly. Is that correct?

MR. HILL: And two-thirds.

1(1

CHAIRMAN CLARKE: I'm sorry, two-thirds instead of

three-fourths, but at two successive sessions. So is there a

motion that this paragraph be adopted?

DR. PYLES: I so move.

I;

CHAIRMAN CLARKE: Is there a second?

: ';

MS. RYSTROM: I second.

CHAIRMAN CLARKE: The floor is open for discussion.

MR. MCWHORTER: I'm asking the same question. This

still allows you to make gifts to municipalities and counties

and so forth.

,'U

CHAI~1AN CLARKE: It deals only with private persons

as I read it. Am I correct in that?

MR. HILL: Yes, that's right.
, ,'
MR. HARRIS: The rationale behind it was that the

spotlight of publicity on a bill passed in 1980 would be a

more effective deterrent to bad legislation; that is, the

; : ; ,,~,_:' ;

53

spotlight of publicity between the first and second passage,

than would the present law, which simply permits a Constitu-

tional amendment which is not really very -- well, it doesn't

command a whole lot of attention normally with the voting

public, and that the publicity side, the requirement that it

~, be passed in two successive sessions by a two-thirds vote witll

an absolute veto on the part of the Governor would really be

the inhibiting factor that would keep anybody from giving

away the contents of the Treasury.

I'.'

CHAIRMAN CLARKE: Any other questions or discussion

11 on this particular section?

j ...'

(No response.)

CHAIRMAN CLARKE: As many as favor the adoption or

~4
- approval of this section, signify by raising your right hand.

1)

(A show of hands.)

CHAIRMAN CLARKE: Eight. Those opposed?

(A show of hands.)

I"

CHAIRMAN CLAID<E: Five. So it seems to have been

approved by a vote of eight to five .

.. ',

MR. EDWARDS: Does this allow the General Assembly

to give anything to savings and loan associations?

CHAIRMAN CLARKE: Oh, yes indeed.

MR. HARRIS: I certainly hope so.

CHAIRMAN CLARKE: Only if they are situated in

Dekalb County and bear the name of the county seat.

PACE 59
I believethen that we have considered all of those

sections contained in the draft dated November 29.

Now it has come to my attention that there just

might be a possibility of some motions for reconsideration.

So at this time -- yes, sir, Senator Tysinger.

SENATOR TYSINGER: Mr. Chairman, I move that we

reconsider Paragraph VII dealing with the gasoline tax,

sUbparagraph (b) I think it is, page 21.

CHAIRMAN CLARKE: I assume that your motion is to !, reconsider that section for the purpose of then offering an

amendment to it, is that correct, Senator?

J"'

SENATOR BROWN: I second the motion.

CHAIRMAN CLARKE: There is a motion and a second.
-- -
We'll reserve the debate until the time the amendment is

,i ~ offered .
1
,~l

As many as favor the motion for reconsideration,

raise your right hand please.

(A show of hands~)

CHAIRMAlI CLARKE: Nine. Those opposed, please.

(A show of hands.)

CHAIRMAN CLARKE: A vote of nine to three. It is

reconsidered.

Now Senator, do you have a motion you wish to make?

SENATOR TYSINGER: Mr. Chairman, I move we go back

to the original language we had in here.

CHAIRMAN CLARKE: I believe that's roads and

bridges?

SENATOR BROWN: I second that motion.

tt

CHAIRMAN CLARKE: The motion is to amend the

paragraph by restoring the language as it originally appeared

in the first draft, and I suppose the present Constitution,

is that correct?

SENATOR TYSINGER: (Nodding head affirmatively.)

CHAIRMAN CLARKE: Now the floor is open for discussion.

Yes, Barbara?

..;~
1 I ,-

MS. RYSTROM:

I'm somewhat reluctant to subject

someone to the same arguments they heard before, especially

since I don't believe we have heard any arguments that in

effect support this motion. Perhaps we could have a few

'. comments about why this would be a good idea, other than that
III .. it suits the people who are in the business of building roads r::, "
I .::.J and bridges.

SENATOR TYSINGER: May I respond, Mr. Chairman? 19 I think I did last time and I'll say the same thing again. One,

the people of this state have voted on this before, it was

accepted by the people and I think the majority was pretty

high at the time that was accepted, so one, the people have

addressed themselves to this question. Two, it is a philosophy ,, _'f- of mine that taxes or costs for government services insofar

as possible should be addressed right to that service. These

PA(~E 61

taxes are paid for by the users of the roads of Georgia and

I think that the intent is that they would like to see them

go back to support the roads of Georgia.

DR. PYLES: Question, Mr. Chairman.

CHAIRMAN CLARKE: Yes, Doctor.

DR. PYLES: In line six, motor fuel taxes, does that

mean internal combustion engine fuel, jet fuel, bus fuel,

;, diesel fuel?

CHAIRMAN CLARKE: I believe -- now somebody who has

it: been closer to it than I have can probably correct me on this,

t 1 , but hasn't that been determined to mean only motor vehicle
..,(l.
motor fuel and not jet fuel and so on?

i(

; r- ,-.(-l_IlO... -,a.(,

"_.'

<.' '"

MR. PARRISH: It is defined in the Revenue Code,

it provides for those fuels that will be taxed as motor fuels

:) ~ shall be used in vehicles that travel on the public roads.

'"

SENATOR TYSINGER: Not farm vehicles.

Cl

1.

MR. PARRISH: It even touches the special fuels that

are not gasoline or diesel.

DR. PYLES: Alcohol -- gasohol.

MR. PARRISH: And the Revenue Code provides for a

means of collection for those special fuels too.

CHAIRMAN CLARKE: Is airplane jet fuel exempt?

MR. PARRISH: It's exempt, it is not taxes nor is

diesel fuel in railroads taxed. DR. PYLES: Diesel fuel in railroads? How about buses~

,'.\

62

MR. PARRISH: Anything traveling the public roads

2 is taxed.

3

CHAIRMAN CLARKE: Yes, Mr. Clark?

MR. CLARK: I guess -- I recall very well the

Constitutional amendment and the vote on this, but I think

() our transportation problems and the whole situation has changed
-,
so that I don't think the vote of the people would be that
8 binding on trying to deal with the present circumstances and

problems that we are going to be concerned with even more than

III we are today. The point that I need clarification on, as I

uz

11

:~

view this,

this

is not

~

this doesn't allocate funds to

12 : pUblic transportation, it simply removes a restriction that ,~

u, U

the

General Assembly might need in some years coming down

the

:;; road. As we know right now, the motor tax income is not going

':
T

15 ~ to be enough for the Department of Transportation on the

::..: ::1

J ()

~
,C)

highways and roads,

so this doesn r t

take

that money away

z
,:'

17 :;: from the roads, it simply removes a Constitutional restriction

18 that may be very binding in some future years when it may be

19 il impractical or may be unnecessary or may be very vital to

20 i! give the money to a different type of public transportation.

21 It seems to me like it's implementing an unrestricting thing,

removing a restriction rather than laying down a directive that

all the money must go to the highways. So I'm just arguing

24
for the revision.

25

REPRESENTATIVE HOLMES: I certainly thing the

63 Senator's two points are well taken, but I guess I would have some questions about the opinion that once the people have spoken on the matter that that ends it, because as we know, we have had Constitutional amendments introduced and defeated ) and then a couple of years later when the identical amendments are introduced the people have decided that circumstances have changed and they therefore support that measure. It seems to me that we are viewing this matter as a sort of zero sum game, (/ that there are no benefits to one mode of transportation if in fact funds are afforded another. I would disagree with that
'"-
I' ~. because the assumption seems to be that one of the gains that the highways have as a result of, let's say, funds being appropriated from the source for other transportation related
; ...,. purposes would be the fact that, for example, upkeep of roads ~ would be diminished as of course you transferred some of the
;,
.'"' z. use of the highways to other purposes and the cost of maintaining road would, of course, be less. I think there are in fact other kinds of benefits in terms of environmental pollution and things of that nature. i So I don't think we should in fact view this matter as being
21 a sort of net loss if in fact in some way funds are made available, and again possible as Mr. Clark says, we arErlt here authorizing any funds,we aren't saying you have to use five, ten, fifteen or any percent of funds for purposes other than maintaining highways and bridges. It seems to me in these

64 days and times perhaps we need to think in terms of

2 flexibility and multi-modal purposes of transportation rather

3 than looking exclusively at highways. I'd just like to throw

4 that out. SENATOR TURNER: Could I ask a question in that

(. regard?

7 ];

CHAIRMAN CLARKE: Yes.

8 ",:

SENATOR TURNER: Are there other taxes imposed that

l) I are used specifically for the areas in which they serve, like

III for the airport, some of the other methods of transportation?

\.~

II ~2.: Aren't some of those funds where the taxes are raised there

."oC.l..

12 ~ earmarked specifically for those purposes?

i\/~~'(2~:J:;,)\)V:d[.,JdJl\~'''' ;~~.'

REPRESENTATIVE HOLMES: You know, things like most

]4 ~ of the airports would be combined, things of that nature,

15" authorities and things of that nature.

-.:>

':"l

16 oi

SENATOR TURNER: For example, is there a ~~RTA tax

z

17 ~'. specifically for MARTA or can it be used for other purposes?

18

REPRESENTATIVE HOLMES: It's exclusively for MARTA.

]9

MS. RYSTROM: But it exists because it would be

20 impossible to use that kind of funds. One of the things that

21 many of us would like to see would be the possibility of a

-,~ Ii public transportation at some point in the future when it

2.; seemed necessary because of the changing situation in terms of

~~ energy, for funds which now might seems only appropriate for

25 roads and bridges, right now it has to be done that way because

-- ._.,-,---,.i~
where else is the money going to come from.

P"\(lE 65
-I

SENATOR TURNER: Should the money that is now

being allocated for MARTA and the airport be put in the total

pool too?

REPRESENTATIVE HOLMES: I'm really trying to say

that we ought to afford ourselves flexibility. I'm not

saying we ought to take motor fuel tax and allocate IO%.to

MARTA or anything, I'm just saying we ought not to lock our-

selves in by having Constitutional language which is so 11,1 restrictive when we may find at some point in the future we

may want that flexibili.ty. All I'm saying is let the

decision-makers, the people who elected those of us in the

., General Assembly, to in fact make those decisions as to

i-or whether we might want to do this. This does not permit that

;5 ,,.., flexibility, that's the only point.

,

.. ,I)

CHAIRMAN CLARKE: Any further discussion?

SENATOR TYSINGER: One thing just in response to

!

some of the things that have been said. In going around and

I '), ,
talking to constituents in my district, the one thing that

they keep coming back to is they're disappointed in their tax

dollars and they have no control over where they are going.

The people -- I think if this were put up to a vote today by

itself, they would pass it overwhelmingly to put it back in

the Highway Department. That has never been misused. They

don't have enough money now. To say in the future we're going.

66
to have extra funds to use for other modes of transportation,

2 then let those other modes of transportation generate their

funds at that time is my point. And I think that would be

.\ the thought of the peep..e.

CHAIRMAN CLARKE: Any further discussion?

(No response.)

CHAIRMAN CLARKE: Hearing none, are you ready to

vote?

1

As many as favor the adoption of the motion by

J(} Senator Tysinger to amend the paragraph, signify by raising
'J 7.
JJ your right hand please.

(A show of hands. )

CHAIRMAN CLARKE: Nine. 'l'hose opposed?

(A show of hands. )

CHAIRMAN CLARKE: Four. By a vote of nine to four

it is so amended.

Are there now any other -- yes, sir, Governor.

1.'\

LT. GOVERNOR MILLER: I don't have a motion, but I'd

]SJ like to make a point. It may end up being a motion.

20

On Section III, Paragraph I. I speak to this point

'..1J' as a person who has been Lieutenant Governor and held this

office now for five years, but more importantly I speak to it

from the standpoint that I am the Chairman elect of all the

Lieutenant Governors of this nation, and this goes right to the

heart of the office of Lieutenant Governor. It worries me

somewhat that we may be about to throw out the baby with the bath water, the bath water being me, the baby being the Lieutenant Governor's office.
I have no great problem with the Senate electing its own presiding officer, as this specifies although I will point out that you would be surprised what running for statewide office does as far as broadening your perspective. And if you don't believe that, you look at some of the people who 'I will be running for statewide office who had sort of a narrow III perspective and all of a sudden when they become statewide 12 -- candidates and have to run statewide, it broadens amazingly
,~
" and I think that's good. I have no great problem with this, but you put this
with Article V where I think the wording is that the Lieutenant Governor is just going to be a person who does whatever duties that the Governor specifies, then I don't -- that won't " do at all in my opinion. At worst what it does is it effectivel~ abolishes the office and maybe that's what some want to do and ,) at best it puts the office into some pretty unrealistic situations. First of all, it forces the Governor and Lieutenant Governor to run together, and maybe that's what we want. Twelve states do this. But I cannot imagine anybody running for a statewide office not knowing what his duties are and I cannot imagine the people being able to vote intelligent~y on a person for Lieutenant Governor, not knowing what his duties

68

are, not knowing what he's going to be doing. I mean if he's

going to be a person that's sort of going to be in charge of

industry and trade as some Lieutenant Governors are throughout

4 this nation, then that's a certain type of individual. If

it's going to be a person who is going to be in charge of the

Office of Planning and Budget as the Lieutenant Governor is

in some states, that calls for a different kind of individual.

I don't think you can vote intelligently for an individual

without knowing sort of what his duties are going to be. The

JU way it is, I suggest that it is going to confuse and probably

11

>-
.)~

even

jeopardize both Articles,

Article

III and Article V,

and

s

12 : it's going to be hard enough to pass them in the General
"

Assembly without this.

The General Assembly in 1976 really spoke to this.

)) ,; In 1976, there was an attempt made to abolish the Lieutenant
CJ
). 6 ~~ Governor's office. It failed in the House. 'rhere has been
z,
17 ';; a great deal of study on the office of Lieutenant Governor.

I was involved in one of the nationwide studies on this. The 19 , whole trend throughout the nation is not to abolish the 20 office of Lieutenant Governor, not to weaken it, the trend is 21 to make it stronger and give this officer additional duties

and meaningful duties. There has never been an office of
,.,
~_ .1
Lieutenant Governor abolished in the whole history of this

nation except one time Maryland did it several years ago and 2) within two years they reinstituted the office.

PAGE 69

So what I am saying to this committee is that if we

are going to allow the presiding officer of the Senate to be

elected from the Senate among its own members well and good.

I'm the only Lieutenant Governor, by the way, that ever

served in the Senate and then went on to become Lieutenant

Governor. I can see it from the situation of Senators, but

for goodness sake if we're going to make the presiding officer

of the Senate elected by the Senators themselves, don't let

that office of Lieutenant Governor flounder around. Don't

'J put it over there where it has absolutely nothing to do or

we don't even know what it is going to do.

The point that I would like to make is similar to

i

,. "~

".'

the one that Dale made awhile ago

in another article.

I think

~ we ought to serve notice or instruct or pass on or whatever

, the term may be, to the Select Committee that this is our

" proposal, but we think the office of Lieutenant Governor

the duties ought to be spelled out in a meaningful way. That's

the point I want to make, and maybe we can do that in the same

way that we did Dale's, or maybe it takes a formal motion.

CHAIRMAN CLARKE: Thank you, Governor. Would you

like to make some comment about receiving that information,

would you prefer for it to be in the form of a motion?

MR. HARRIS: I'm happy to take it either way. You

can rest assured it will get to the Select Committee.

My recollection of the last draft of Article V, and

70

Mel may have to correct me on this, was that originally in the discussions early on in the subcommittee, they were :' thinking in terms of duties of the Lieutenant Governor as

determined by the Governor but they ran into the same

problems that I think Governor Miller is expressing, and that

is the situation where an incompatibility might exist between

a Governor and a Lieutenant Governor, and therefore they further specified in there "and such other duties as shall be

provided by law" in order to give the General Assembly the

right to set the duties and responsibilities of the Lieutenant

1l ~ Governor and not just leave it up to the whims of the

I"

,~SVfiA

~;'

~ r----" '~Y{.~ ....-'rE/ ;:'Ji~\.)/ " ~\'

"'TO'''.

:,~,
"

14

Governor. LT. GOVERNOR MILLER: I think leaving it up to the
whims of the Governor is one of the most dangerous things we

J 5 c can put in there. It allows a person who is running for

. Governor to do all kinds of tricks as far as getting him a
17 :;;
running mate is concerned. If you put it that way and then
Ix
or if you don't have them running together, here you have a
19
Lieutenant Governor, the second highest officer in the state,

and the Governor not allowing him to have any meaningful

responsibility.

I don't have any problem with this, but I think it

does relate to Article V and that's why I wanted to make the

point without asking that this be reconsidered. I can live

with this, but I can't live with this with the other as it is

71 right now and I think it jeopardizes both articles.
MR. HILL: The Article V committee went through a series of decision points about the office and the first decision was whether we should have the office, and they decided yes the office was necessary. The second decision was what is the nature of the office, is it legislative or executive, right now it's kind of both. They felt that it is an executive office and it should be. Then they struggled with what kind of powers do we give him. A few ideas were presented, perhaps an ombudsman position which was an idea you . had had some time ago I think or perhaps make him a department head of some kind, but they didn't have any concrete recommenda" tions from someone who would know what to recommend, I guess, as to what would be the best thing to do. This idea as he (- " shall have such powers as given by the Governor and as provided j:' c. by law not inconsitent with the Governor's powers is what evolved. But I think the Select Committee would be very anxious to have your ideas on what would be the proper role, what kind of specific duties do you think would be good.
LT. GOVERNOR MILLER: There has been a thorough study made in which you can find -- you can take your choice, the ombudsman type Lieutenant Governor, the Lieutenant Governor that is wi.th industry and trade similar to the one in Indiana, and so forth. There is an excellent, thorough study made on this. The only thing I don't want to see done is that

72

the Lieutenant Governor's office abolished.

One of the amazing things that I have found in

"' working with the other Lieutenant Governors throughout this 4 nation and now, as I say, being Chairman-elect of them, in .; no other state except Georgia do you have this continued

f> controversy about whether the office of Lieutenant Governor

'7 ought to be abolished or not. The trend everywhere is in the

8 opposite direction, of not abolishing it but making it stronger

<) and more meaningful.

!O

CHAIRMAN CLARKE: Yes, sir, Mr. Clark.

,,-'J

1J .T..
r~~

MR. CLARK: My point, and I guess it endorses pretty

"

much what we have been hearing, is that the whole assignment

of this committee was to simply and clarify and unclutter our

Constitution, and that was my point on the allocation of the

15 :l: highway money, but on this point it seems to me a Constitutional
'.1: .J
j (l ,...~"; officer, the second highest officer in the state, that the 1.

17

I);: ttl

Constitution --

not

the

General

Assembly

but

the

Constitution

1 ~,,\
ought to be clear and ought to state, because you might have

1Ii one General Assembly giving the Lieutenant Governor certain

2Ll powers and ten years later something else. It seems to me

..: 1 it's important that this is a Constitutional issue and a

)
Constitutional matter that ought to be addressed and specified

-;- in the Constitution.

,'4

LT. GOVERNOR MILLER: He makes an excellent point,

..:) and I will give you a good illustration. In the wisdom of the

PACE 73

General Assembly they made the Lieutenant Governor the

Chairman of the Economic Development Council, which was a fine

duty, but then later at the same whim of the General Assembly,

and I use whim in a good term, they did not appropriate any

money for this Economic Development Council to operate.

So I agree with you, I don't think you ought to

put it as a statute, it ought to be written in our Constitution

and it ought to be some kind of meaningful, spelled out duty.

CHAIm1AN CLARKE: Senator Turner?

1\,,'

SENATOR TURNER: Mr. Chairman, I as a member of the

Senate feel very strongly that if it is going to be a full

time position and an executive office of Lieutenant Governor,

these responsibilities need to be spelled out in Article V.

I can see some wisdom in electing the leader in the Senate

by the Senate body, I think that will give us a leader that

we can really work with and through and I think there have

been times when we have needed that. I certainly agree with

the Lieutenant Governor as far as spelling out the

responsibilities in Article V.

If it takes a motion to pass that intent on, I

think it would be well enough to get a vote on it.

CHAIRMAN CLARKE: If anybody wants to make a

motion, y~u certainly have a right to do so.

MR. MCWHORTER: I so move.

CHAIRMAN CLARKE: We have no right to do anything

other than to give our sentiments to the --

i.

74

2

MR. HARRIS: I think it would be helpful to have a

vote.

MR. MCWHORTER: I so move.

CHAIRMAN CLARKE: There has been a motion that we

express the sentiment of this committee to the Select

Committee to the effect that the duties of the Lieutenant

Governor should be definitely spelled out in Article V. Is

that the import of the motion?

In

SENATOR BROWN: I second.

CHAIRMAN CLARKE: Is there any discussion of that 1.: motion?

(No response. )

CHAIRMAN CLARKE: I would want the people who

I: " worked on Article V to be fully aware that we do this, not <
1( in any intent to infringe on their --

,, J,

l.;

MR. HARRIS: They'll understand that.

CHAIRMAN CLARKE: Yes, sir?

MR. WALLING: You mentioned the Governor and
:0 Lieutenant Governor running together. Are you thinking about

something different than what is contemplated now by the other

section where each runs independently?

-,-''

LT. GOVERNOR MILLER: I think you would have an

unrealistic situation, Judge, if you had them running

separately and as the Article V says now, let the Governor

['A(; r' 75 spell out his duties. I can see you having a Governor elected i and a Lieutenant Governor elected that wasn't compatible with him at all and the Governor not giving him anything to do. And also you would have him running not even knowing what his duties were and, as I say, I think that would be very confusing to the voters of this state.
MR. WALLING: Would you prefer that recommendation be built into this motion, that the Governor and Lieutenant Governor be elected together as a team?
LT. GOVERNOR MILLER: I think if he's going to be a department head type person, and that's what you're making him, that's what we're making him with Article V and with this, j then probably they ought to run together. I would hate to be a Governor and have a Lieutenant Governor that was specified
.{~ in the Constitution that he was going to be sort of head of my
, Planning and Budget, let's say, I can see all kinds of havoc there. MR. WALLING: So there is a difference there. LT. GOVERNOR MILLER: It depends on what the duties are. CHAIRMAN CLARKE: Any further discussion on the motion? (No response.) CHAIRMAN CLARKE: As many as favor the motion, signify by raising your right hand.

76

(A show of hands.)

.)

CHAIRMAN CLARKE: Thirteen. I believe that is

:; unanimous and I am sure the Select Committee will take notice

-+ of that.

:J

MR. HARRIS: Yes.

to

CHAIRMAN CLARKE: Yes, sir, Mr. Jones.

i'

7

REPRESENTATIVE JONES: Let me express my appreciation

II to the Lieutenant Governor for making a point, because I want l) to make one.

As I understand it, the reason for the third reading 11 of bills back when this was put in the Constitution is because

" there was not adequate copies and the people should know.

I understand what we have done today, we have taken away the
14 ~. only method that we have to inform people and there is no ,; T
; 5 .C guarantee now that we'll have to do anything but print the
j c 'l~~ titles and so forth. There is nothing that says it has to )0
T <'
J7 ~ in writing. It used to say it had to be read. And I wish
18 they would look at a possibility of some way providing

information, guaranteed by the Constitution, because there is

nothing here that says they have to print bills and pass them

in the house, and that was used specifically because of the

lack of printed material.

SENATOR TURNER: I thought you did have to print them.

MR. HARRIS: Don't the rules of both houses specify?

REPRESENTATIVE JONES: The Constitution doesn't

'AGE 77

guarantee that. This is the only Constitutional guarantee

that I know of that the people would have to be informed. And

if I may expand it, I think we could construe this to say

that an amendment could be made that wouldn't have to be read

at all. We could be presented an amendment and given a title,

it wouldn't have to be read unless the presiding officer

want it. You don't have to read the bill, the amendment is

6 a portion of the bill, it wouldn't have to be read either. I

just think we're opening the door to sneaking things through.

')

MR. MCWHORTER: Mr. Chairman, you could put in

i, your rules that every bill must be read twice in its entirety.
;"
It doesn't preclude you from putting it in your rules.

, /,/

REPRESENTATIVE JONES: You can put it in the rules,

you can put in the rules that it be read three times, but the

,-; " Constitution guarantees that it is there. The rules are, as
~"l
)', l the Lieutenant Governor said, at the whim of the House and

l'- the Senate.

MR. MCWHORTER: Have you ever seen one read in its

entirety over three pages?

REPRESENTATIVE JONES: Yes, sir. Not the long ones

maybe, but it is a guarantee that we have. And I don't make

a motion, I just follow the Lieutenant Governor and make a

point.

CliAIRMAN CLARKE: Is there any further discussion?

I think we're down to the point now of approving the Article

78
in its entirety.

Mel has called to my attention that the memorandum

3 of November 21, which went out to everyone, itemized certain

4 changes that this draft included that were not included in

the earlier draft and the staff in doing so overlooked one

h other change that is in the draft that was adopted at the

7 last meeting, and that is Paragraph V of Section II that

:~ Ideal t with open meetings. I assume that those of you here

were aware of that in any event.

Now is there any further discussion as to -- yes?

~1

j 1 ,_..

MR. EDWARDS: Go ahead, finish what you were saying.

-
,:~
CHAIRMAN CLARKE: I was just going to say is there

any further discussion as to the Article in general.

MR. EDWARDS: I want to apologize for not having

gotten on this until last night, but I've got just some things
(l~
~: all through this. I don't know how to handle it, I can't

make a motion but will you permit me to just maybe --

CHAIRMAN CLARKE: Whatever you would like to say, 19 we'd like to hear from you, Frank.

MR. EDWARDS: If somebody else feels like it, you 21 could do it in a motion. Some of it is probably ticky, but

I'm going to leave those aside and maybe we can get some

little language changes without that.

One thing that I want to bring up just as a point

of discussion, on the first page, Paragraph -- Section II,

1 I PAGE; 79 Paragraph II on Apportionment of the General Assembly. Jim Tysinger brought this point up in the subcommittee on which he' served and I frankly didn't give it a whole lot of thought at that time. I hate to talk against what Jim put in there because I realize the situation he talked about. The language says "Such districts shall be composed of compact and contiguous territory." One thing that concerns me about that is that gives another avenue of approach to litigation. In other words, even through the state courts now. If we come in, for I) example, and reapportion the Senate and the House, maybe we have one district or two districts somebody might not consider compact. That's going to be another reason for somebody to go into court and start attacking the entire reapportionment plan. Now that might be what is desired. If so, I'll withdraw any COlmnents I have on it, but it occurs to me that on occasion we might to have a district that wasn't exactly , compact in order to get an entire reapportionment plan. I just wanted to bring that up for consideration, whatever y'all think about it. Jim, you understand the point I'm making? That gives me some concern on that one point. I can see it leading to more litigation purely on whether somebody thinks its compact or not, it's going to be up to the courts to decide. CHAIRMAN CLARKE: Following along with our same informal procedure, and I think that's probably as necessary at

..,,

80

this stage of the game, are there any other comnlents

concerning that particular thing? Yes, Ms. Rystrom.

MS. RYSTROM: I didn't bring it up before because

f apparently the subcommittee that worked on it was quite

adamant about not arranging for some other body to be

responsible for reapportiolli~ent, but that is something that

was recommended in the Select Committee, what ten years ago,

nine years ago. It's something that is sort of usually

'-I regarded as a thing that would be good only you'll never get lO it past~the legislators. But the notion that reapportionment

is designed by the very people that it is going to affect --

I don't think anyone is so noble as to vote for a reapportion-

ment measure that gets rid of his or her elected seat.

SENATOR TYSINGER: It has been done.

<: :::
is

MS. RYSTROM: Only someone who is ready to retire.

SENATOR TYSINGER: No.

MS. RYSTROMz I think it would be a rare person ](' that would do that, I'm sure we have many such in our ]lj legislature. I wish that if the topic is going to be

re-addressed, that we at least consider the possibility of

just advising the Select Committee that we consider the 2-'. possibility of having a method of reapportionment not handled 23 witnn the house. You know, one method is to have an

appointed committee.

CHAIRMAN CLARKE: Let's first sort of dispose of the

PACE 81
,,
issue that Frank raised about whether or not we keep the

statement concerning compact and congiguous districts.

MR. CLARK: Were you speaking to contiguous as

1 well as compact?

MR. MCWHORTER: You could leave continuous.

MR. EDWARDS: Compact was the main thing I was

concerned about.

MR. CLARK: You couldn't leap-frog, contiguous

you would lea~ in.

MR. EDWARDS: That'd be fine. Compact was the' word.

J:

CHAIRMAN CLARKE: Is there any feeling?

MS. RYSTROM: I just want to say that the reason I

made the comment then, I don't think they are separate issues

., This is in effect designed to prevent really gross 1) , gerrymandering, which is the kind of thing you expect to have j'l 4. when seats are being protected, which would not be the

j. concern of an independent commission.

CHAIRMAN CLARKE: The point I was trying to make

is that this is a specific part of that and then -- I think

they would have to be treated as separate questions in any

determination made. Does anybody want to make any kind of

motion or anything in connection with that? Yes?

MR. WALLING: I agree with Frank that it is a

Constitutional status and there is going to be litigation and

that's expensive and also confusing to the people. They ought

82 J \ , .

to be compact and contiguous but I think that ought to be

2 decided by someone other than a court, the legislature or

3 some other body, it ought to make that decision and it ought not to be something litigated by the courts. Frank is right. Compact is like reasonable, it opens it up and it

goes to court and some judge is going to decide, so I would

move, for that reason, to strike the words in the 20th line

,(.l

"of compact and".

(1'

CHAIRMAN CLARKE: 'l'here is a motion to strike "of

compact and" on line 20.

1; I IX "C. l.;

MR. WALLING: Correction, the motion would be to

12 J strike the words "compact and", so it would read "composed of

"

contiguous territory."

15 .,

:J

, .i ()

~
~

motion?

C\

1"7 ;;,

MR. MCWHORTER: I second it. CHAIRMAN CLARKE: Now any discussion on this
SENATOR TYSINGER: Mr. Chainaan, I go back to the

point, and I recognize it is a point that has been made by
'.J
Legislative Counsel, but following the 1970 reapportionment ,'0 by the Senate, there was some, in my opinion, gerrymandering
".:.1 done and it was not to take someone out but to make i t
difficult for them to run for office. It was done with a
vengeance. I would like to see this retained because the
only way then, if you want to go into court if it wasn't that
way, you can do that, you have that method of getting redress.
LL _

PAGE 83

This is the reason I put it in. I understand it would raise

some possible questions but I think there was some harm done

at that time too, for which there was no redress.

MR. MCWHORTER: Mr. Chairman, I agree with Senator

Tysinger 100%, but I don't think leaving the word "compact"

in there would accomplish that desired result, because the

word "compact", I don't know what it means, I imagine the

courts might have a hard time.

,l

CHAIRMAN CLARKE: Any further discussion on the

10 motion?
f.'l

(No response.)

CHAIRMAN CLARKE: Hearing none, are you ready to vote -")\-"'.-'~-""'", , on the motion? As many as favor the adoption of the motion
1+ to remove "compact and" from line 20, will vote by raising your t .; " right hand.

(A show of hands.)

ClmIRMAN CLARKE: Eight. Those opposed?

(A show of hands.)
; l)
CHAIRMAN CLARKE: Four. By a vote of eight to four --

I believe I counted everybody -- it is adopted.

Frank, was there something else that you would like

to -- don't let me overlook you.

MS. RYSTROM: I wasn't going to let you.

MR. WALLING: I do think we ought to leave open the

possibility out there in the future of reapportionment in some

84 way other than what we do now and I think this language

forecloses that without a Constitutional change. Some day

3: in its wisdom I think the General Assembly may decide it

4 would be helpful to have a citizens body do it, deal with

5 terms, deal with money and some other things. I think it's

(; going to be dealt with some where out in the future as a

package, but to preserve that possibility I would move that

we strike the words on line 18 "create, rearrange, and change"

and substitute in lieu of those words II provide for

reapportionment of".

11 ~ :( (, .i.

MS. RYSTROM: I second the motion. CHAIRMAN CLARKE: All right. There is a motion

by Mr. Walling, I think you heard it, to delete the words

"create, rearrange, and change" and insert inlieu thereof
<:
1
15 c. the words "provide for the reapportionment of", am I correct?

! () 1: ~

MR. WALLING: "provide for apportionment of".

l "7

CHAIRMAN CLARKE: And there is a second. Is there

I <. "

any discussion on this motion? No discussion? That's a

J'J surprise. Well, as many as favor the motion, signify by

": raising your right hand.

21

(A show of hands.)

CHAIRMAN CLARKE: Those opposed?

(A show of hands.)

CHAIR}~ CLARKE: Ten to one. I believe it is

" adopted. Does that accomplish

l'~,cr: 85
MS. RYSTROM: I hope it does. CHAIRMAN CLARKE: Now Frank, what is your next conunent? MR. EDWARDS: On page 2 at the top, subparagraph (b) it says "No person holding any civil appointment or office having any emolument annexed thereto under the United States, this state, or any other state shall have a seat in either house." The only reason I bring that up, Harold, is the General Assembly passed a law in 1977 which said that no elected municipal or county official could serve as a member ~: of the General Assembly. There is some difference of opinion . as to whether that particular law is valid or not. In other words, one line of thought says that that's an additional
/
, qualification in addition to what we have in the Constitution, as to who can serve in the General Assembly. There is another
"
"~ line of thought that says no, that's just on eligibility. If they serve in the General Assembly they have to resign their position. I'm just throwing this out to make certain if the General Assembly still wants that. This would be the time to go ahead and put it in the Constitution if they feel that strongly about elected municipal and county officials. CHAIRMAN CLARKE: So the question is whether or not you ought to include that as one of the restricted areas? MR. EDWARDS: Exactly. CHAIRMAN CLARKE: That's a matter that addresses

1,

86 itself to the committee as to what the committee's desires

might be. Anybody have any comments or thoughts along that

.l

line?

MR. CLARK: Will you reclarify that, I didn't

follow it.

CHAIRMAN CLARKE: The General Assembly in 1976 --

MR. EDWARDS: '77.

CHAIRMAN CLARKE: --passed an act that said no ') elected municipal or county official could serve in the General

Assembly. On page 2 at line 6 there is a provision that says

1: ,
?
:. (tJJ\~,"12 ~
''-.::::::.:;.///
J4 ,..
"
!5 ~
.u .i' ;11 ,.
J

"No person holding any civil appointment or office having any emolument annexed thereto under the United States, this state ... " could serve. The question arises if this is the restriction that the Constitution imposes, is that the only restriction that can be imposed, or could the General Assembly go beyond that. If they could not, then should not that restriction be in this subparagraph. That would be a matter

I \.\ that would address itself to this committee as to whether or

1:) not you want it in this subparagraph.

20

MS. RYSTROM: If someone thinks it would be possible

1j
to construe that to mean that was the only limitation.

CHAIRMAN CLARKE: That may preempt the area of

restrictive service.
)!
MR. EDWARDS: On the theory that adds another

qualification to serving in the legislature. In other words,

!~l
;" ;:-
I
\

PAI;E 87
one of the qualifications for serving in the General Assembly is you cannot be an elected county or municipal official. There is a difference of opnion on that.
MS. RYSTROM: What do you feel it would take to fix this so that the General Assembly had the option of attaching other stipulations about what you could not do?
MR. EDWARDS: You would almost have to say the General Assembly could set its own qualifications. In effect, that's almost what you would have to say.
CHAIRMAN CLARKE: That could carry with it some dangers.
MR. HARRIS: I don't think you want to say that. They might pass a law that everybody had to be a Republican.
MS. RYSTROM: Just get the votes. REPRESENTATIVE LAMBERT: I sure want to add ::: -; school teachers. CHAIRMAN CLARKE: Is there any feeling about this one way or the other? Any motions?
(No response.)
)
CHAIRMAN CLARKE: If I hear none, Frank, we'll move on.
MR. EDWARDS: That's all right. Some of these I don't have any strong feelings on, I'm just bringing them up.
CHAIRMAN CLARKE: We appreciate you mentioning them. MR. EDWARDS: On page 4, Paragraph IV on Rules of

1\ (,; 88

procedure. It says "Each house shall determine its rules

of procedure. II Dr. Parthemos is not here. We discussed that

] at one meeting I went to of his subcommittee, about the

4 Sunshine case where the Supreme Court held that each house

" could set its mm rules of procedure and what they in effect

o said was that that would override a statute. Some of the

') members there were surprised that -- were not a.'tlare that that

x had been held. So we talked about the possibility of putting

in the Constitution, the Constitution will be supreme, the

11) sta tutes will be next and then the rules. Since that time I

II think it just sort of flopped by the wayside. I don't recall

I ' any other conversation about it. Over in Article where it
-
'tells what the status of the law, Constitution of the United

States is supreme, and all that stuff, it could be handled

there but until it is with this we'd be going along like the
~.,
)" " Supreme Court said. Now there's a couple of dissents in that

1"' ~;'I if you recall, that said they couldn't agree with the fact

that the majority held that a rule of the nouse or Senate

could override a statute. The committee felt pretty strong

about that, as I recall, at that meeting. They wanted to do

something about it. If we want to do anything about it in

this Article, that would be the place to put it.

~, -,

..... 1

MR. MCWHORTER: In effect, one house on a whim could

just do away with the effective statute, couldn't they?

MR. EDWARDS: If it dealt with a procedure, yes.

CHAIRMAN CLARKE: Well let me ask you this question. The authority to adopt rules and procedures, is there any doubt that that is an inherent right of each house anyway, whether it is stated in the Constitution?
MR. MCWHORTER: That case throws some clouds on it. CHAIRMAN CLARKE: What I'm saying is, if this Paragraph IV were not in the Constitution at all, would there really be any question but what each house could still establish its own rules? What I'm asking is whether it is really
,I
necessary to be in there.
j(
MR. HILL: It's not in the present Constitution. ) They're managing without it now.
MR. EDWARDS: It's not in the present one. MR. MCWHORTER: It's not in the present one.
I' .',
ca~IRMAN CLARKE: Does it add anything, does it help anything by having it there? It seems to me we ought to look at whether or not something is necessary. If it's not necessary, then why include it? It is understandable but I don't know whether it's necessary.
iI
MR. TIDWELL: One reason why it's in there is the Speaker felt very strongly that it ought to be in there, if you will recall.
CliAIRMAN CLARKE: I had forgot frankly. I sat through so many of them, it's hard for me to remember what transpired.

MR. TIDWELL: He's not here, that's the only reason

I make that comment. You're probably right, he just felt --

just to speak for him since he's not here, he felt that it

should be in the Constitution, very strongly.

MR. ED~vARDS: He also felt rather strongly that a

statute ought to be superior to a rule also. You saw that,

Charlie.

MR. TIDWELL: Yes he did.
()
CHAIRMAN CLARKE: Does the committee have any desire 10 to make any change?

ij

,..

(No response.)

,,

I~:./,,:':.~*\\_"~~. , .... ',;.:.l.Vr./";",)/ 2,

\ \'--U;;;..:....... IJ

'j

,., \,'",- ."/ /J'i

advising

CHAIRMAN CLARKE: If I hear no motion -MR. RYSTROM: Maybe we could follow that pattern of the Select Committee. I'm sure there isn't any

,"
feeling on the committee that a rule should be able to

16 '",
override a statute, so if the question comes up -- no one is

making that point, we just want to be certain that no court

could ever think so. We could just say that's what we feel.

CHAIRMAN CLARKE: Yes. Our advice to the Select

Committee in other instances has been in areas being dealt

with by other Articles. As far as this Article is concerned
),
we ought to either act or not act, but certainly we could

explain in the record our reason for acting as we did in

order to give some legislative history.

Well, is there a motion of any sort on this subject?

(No response.) CHAIRMAN CLARKE: If I hear none, we'll move on then. Frank, what's the next item? MR. EDWARDS: I've got a lot of little nitpicking things, I'll just leave them alone. CHAI~~N CLARKE: Anybody else have any nitpicking things they'd like to bring up?
(No response.) CHAIRMAN CLARKE: All right. Is there a motion
';
then that we approve Article III as it appears on the working draft dated November 29, with the amendments placed in it today?
REPRESENTATIVE LAMBERT: I'll move it. CHAIRMAN CLARKE: There is a motion and there is a second. As many as favor the motion, signify by raising your right hand.
(A show of hands.) CHAIRMAN CLARKE: Twelve. Those opposed?
(No response.) CHAIRMAN CLARKE: There are no dissenting votes. Before we adjourn, I want to say a word of thanks to each one of you for your diligent work. I know that none of us ever sit down with a document of this sort and come out with something that is absolutely agreeable to everybody in the crowd. I personally appreciat~_o~r wi~l~~~ness to work, I

92

appreciate the spirit in which the word was done. I hope that

we at least have something that's better than we started off 3 with. I am sure that whatever may be the ultimate result, it :1 will be somewhat different from what we have done here because

I it is going through a long filtering process before the people (', finally get it, but I hope that whatever they get will have

some mark of the good work that all of you have done in such

fine spirit and I do think all of you.

Is there any other business?
J!'
REPRESENTATIVE JONES: Mr. Chairman, there is one ]:
item. Not members of the General Assembly but some of the

/~'?YJi~\

.., members of the conuui ttee have had personal expenses in excess

II\, (\>,l.".:lit_";-,;;~:;))-\,~\".JI:-C:-I:.- n:""-,'//7.' of what they recouped from it. Is there any way that can be

).:',
handled?

MR. EDWARDS: We've got that gratuities provision

in the Constitution.
I7
REPRESENTATIVE JONES: I voted against that.

CHAIRMAN CLARKE: I would have to address that to

the staff.

MR. HARRIS: There would be no way unless you

changed the law that created the Select Committee. That

set the compensation and emoluments.

I'd like to express on behalf of the Governor and

the Select Committee his appreciation and I'm sure ~heirs for

the hours and the time and effort that you have put into this.

93
The other committees that have a deadline like yours have been equally as diligent. It has been refreshing to me to see the interest that has been engendered, particularly those members of the committee who are not members of the General Assembly, and the tilne they have spent, you and the other cOlnmittee members. I think it speaks well for those citizens of this state who were chosen by the Select Committee to function in this capacity.
I wasn't going to make a speech. I got up to leave because I thought he was going to say we adjourn, but he sat back down and left me having to say something.
You can rest assured that it will be conveyed to the Select Committee, the effort and time that you have "" expended on this and I appreciate it personally.
CHAIRMAN CLARKE: Thank you, Robin, we appreciate the Select Committee giving us the opportunity to make whatever mess we could.
Is there any further business to corne before this cOlnmittee?
(No response.) If there is none, I suppose we stand adjourned sine die. (Whereupon, the meeting was adjourned at 3:16 p.m.)

94
C E R T I FIe ATE

3

I, Peggy J. Warren, CVR-CM, CCR A-17l, do hereby

certify that the foregoing 93 pages of transcript represent

a true and accurate record of the events which transpired

" at the time and place set out above .

.,
J ~l
l" Z
.,',"

:i

y
:~

1U 21

INDEX Committee to Revise Article III Full Committee Meeting Held on Nov. 29, 1979

FULL COMMITTEE MEETING, 11-29-79

SECTION II: COMPOSITION OF GENERAL ASSEMBLY Paragraph II: Apportionment of General Assembly. Paragraph IV: Disqualifications. pp. 85-87

SECTION III: OFFICERS OF THE GENERAL ASSEMBLY Paragraph I(a): Presiding officer of the Senate.

pp. 66-76

SECTION IV: ORGANIZATION AND PROCEDURE OF THE GENERAL ASSEMBLY
Paragraph IV: Rules of procedure; employees; interim committees. pp. 87-91
Paragraph XI: Open meetings. p. 78

SECTION V: ENACTMENT OF LAWS Paragraphs III: One subject matter expressed, and
IV: Statutes and sections of Code, how amended. pp. 4-7 Paragraphs VII: Reading of general bills, and
VIII: Procedure for considering local legislation. pp. 32-49, 76-77
Paragraphs XI: Signature of Governor, XII: Rejected bills,
XIII: Approval, veto, and override of veto of bills and resolutions, and
XIV: Jointly sponsored bills and resolutions. pp. 7-32

SECTION VI: EXERCISE OF POWERS
Paragraph II(a): Participation in federal programs. pp. 49-50
Paragraph IV(b): Limitations on special legislation. pp. 50-56 (Population bill)
Paragraph VI: Gratuities. pp. 56-58

Full Committee Meeting 11-29-79 Page 2
SECTION IX: APPROPRIATIONS Paragraph VI(b): Appropriations for specific sums. pp. 59-66
(Motor fuel taxes~)