Transcripts of meetings, 1977-1981, v. 6. Article V

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

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

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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 ARTICLES IV AND V

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

DATE
August 29, 1979 September 10, 1979 September 20, 1979 September 20, 1979 September 26, 1979 October 15, 1979 October 17, 1979 October 17, 1979 October 31, 1979 October 31, 1979 November 8, 1979 November 14, 1979 November 28, 1979

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BEFORE THE SELECT COMMITTEE ON CONSTITUTIONAL, REVIF.W STATE OF GFORGIA

In the Matter of:
Select Committee on Constitutional Revision of Article IV, Sections
I through 8.

APPEARANCES:
Chairman A. H. Sterne Ed ,Tackson Mike J. Henry Fd Smith Doris Holmes Sid Shepherd Cindy Nonidez Melvin Hill Dr. Melvyn Williams Charlie Tidwell Don Langham Vicki Greenberg Thomas Thorne-Thomsen Senator Hugh Gillis

Capitol, State of Georgia Room 402 Atlanta, Georgia
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Wednesday, November 17, 1979 3:05 o'clock, p.m.

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

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P-R-O-C-F.-F.-D-I-N-G-S CHAIRMAN A. H. STE~~E: There are five

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eomlOittee members here out of the nine. We may have one

more.

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I have a suggested agenda which I'll tell you

about. And wit.hout objections from you, we'll follow

that agenda. Since everybody hasn't been to every

lOl"etino --

There we d.r(~. How are you, Miss Holmes?

MS. HOLMES: Fine.

CHAIRMAN: I thought T would recap what t.his

c~ommittee has (lone to this poi nto Mike Henry, here, of

the sta ff of t.hp. conm1i ttee has done several things for

us. And one thing he has ~one is farret out what he
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crl1ls parrallel Rtatut.es fot- those boards and/or
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eOil,rnissions that. WP. hFto in:itiFtlly ! ill)ught might not be

rptainp.d as const{tutional Loa ' There are statutes on

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thE' iook~ which pu"tty much parrClts the ]an~1Ui1Cle in the

Constitution. He']) go through that with U8. ~ike has

sent you all an out] "inf> of the options il"l the Cc1se of each

l)f t:he three boards and/or commissions that- wr~ d~terl1lined

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qo l:hrouqh -- we'll ('all attel"ltion to those. Anrl J would s~y refer bac~ to j~ as we loo~ then at the pror~sed drafts of the canst i.tut.i.onallan~uaqe.__ fuLtb.oS~ three commissions.

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And they would be the Public Service Commission, Pardons

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and Paroles and State Personnel Board.

Havi.ng aone thi'l.t, we would then consider as the I big committee, of which we're a subcommittee, charged us
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I to consider whether or not th~ Board of -- the nepartment

of Transportation and the veterans Service Board should be
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retainen as constitutional hoards.

To recap our first meeting which was a very

br ief meeting following the meetineJ wit.h the full c:ommi ttee, we determined ~s a first step we should

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someoni

011 our committee should cont.act each of the boards or

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COfl1111is!;ions, their executive and where applicable their

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volunteer chairman. And that's now l~en done, just to let I I
tllelti krtow we're in 1 i fa, see wha t they wan ted to say to

us. .~d that's been done. TA?e've had reports in each

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case from our committee members and in some cases we've

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heard frOIti those involved in the boards and/or comm:i ssions.

We then at an earlier meeting of this sub-

committee agreed on two things. First, tl~t all

constitutional hoards and/or commissions sho\Jld be dealt
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with in one article. They're now dealt with in more than

one article in the Constitution. We were assured by legal

counsel that that could be done in 1982, not until then.

The second action W~ took was to recomm~nd that

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the State Personnel Board be retained as Constitutional

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committees which is to say that the other five be deletec1

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as constitutional boards.

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vTe made this report to the cOffiiTlittee, full

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cornmittee,at its last meeting. And t.hey asked us to go

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ahead and consider specific language foe the three hodies

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that we had recommended to be retained as constitutiorlal

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bodies. They asked that we reconsider in the case of

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Veterans Service Board and Department of Transportaticm.

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There was no direction given us there, but they asked simply that we reconsi.der our recommendation there
There was one other charge that we had out of

that committee and that was to consider in the case of

Pardons and Paroles whether some minimum time of sentence
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IS ..0 served in the case of capital offenses should be written

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into the language of the Constitution. That assumed

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but, again, we've got no direction on this -- that

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specific powers and duties would be dealt with in the

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constitutional language as it is now. You may know, we have

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another option. We can phrase that in our recommendation

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in a way that would leave those sort of matters up to the

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legislature.

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And so, are there any questions to that point?

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That's about where we are today.

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(No audible response.)

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kaeS -h~-l.oIn'c1aass~11 CHAIRMAN: Well, if not, then, M'l

you to run through with us in as a brief a f

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possible the so-called parrallel statutes.

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MR. HENRY: I'm going to pass these out, and

then I'll go over them (presenting).

(Pause. )

We were discussing in the last meeting the fact

that if these, ah, 'constitutional boards and commissions

were to be taken from the Constitution and carried forward

as statutory boards, what would be the effect of that move.

So, I was asked to go into the Georgia Code and find the,

ah, parrallel statutes, which in some instances said the

same thing as the constitutional provision did. With a

few exceptions, ah, the -- it appears that the exact same

language appears in the statutes as does in the Const.itution

I'll go through this Board by Board, the references to this

which is a copy of the statutes, and I'~l point out the

places where there would need to be an additional provision

put into the statutes because it is not provided for now.

And I'll also point out the places where it was determined

from first impression, at least, that these certain

provisions in it could not be taken out.

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Article TV, Section 3, Paragraph 1, Board of

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Offender Rehabilitation can be found in the chapter

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77-503A of the Code of Georgia Annot~tted. The langUa~

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the Constitution and in the Statute are the same thing.

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They say the exact same thing.

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Article IV, Section 8, Paragraph 1. State

Transportation Board carl be founa in C.hi'tpter 951'.-3, Co<l(:,

of Georgia Annot.fi,ted. }It 9SA-30l, it prov~Lde5 for tl1,c.

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creation. gSA-3Gb dnd 307, I think prQvide~ for the

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Constitution. And at Q5A-308B, ah, provides for the power of the Board to select the Commission(:r of the Department. There were t\oTO other para -- weI], actually there are three more paragraphs in that Constitutional provision. Paragraphs 2 and 3 dealing with complianc8 with Federal Law with regard to outdoor advertising and junk yard control, we determined that these had to be retained in the Constitution at some place due to the powers that were granted. These were -- the Constitution was amended for this specific purpose because there was something inherent in the Constitution that made this amendment be necessary before the State could do certain actions which they had to to comply with Federal Law. So these are ne~essary.
MR. FILL: But I would point out that the Committee working on the revision of the Leqislative Artiil:le
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i has already incorporated into its first draft the powers tha~
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I' :::p::::::::v::::~.-;::::s:o:e::::~:~::s::a::~Wh:: ::1:tesI

to Transportation. But it's a power given to the General I

Assembly to do certain things to comply with Federal

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Highway Acts and regulations. So this, both paragraphs

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2 and 3,are right now in the proposed draft of the

Legislative provision relating to powers of the General Assembly. So for purposes of your consideration you only

really have to worry as you do with all of the Boards

whether you want to have the reference to the Board here

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or whether you would like to have it be a statutory board

only.

MR. SMITH: If you take those two -- what you're

saying is, you can take those two out because they're

coming back through the Legislative's

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MR. HILL: That's right.

CHAIRMAN: Well, does your

Hello, Hugh.

Does what you say suggest then that this is

sort of a useless exercise we're going through here, that

another committee -- another subcommittee is looking into this?
MR. HILI,: It's not a useless exercise as to the major question that you face as to whether paragraph 1,

which creates the State Transportation Board and provides,

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whether that should be retained in the Constitution. So

it's not useless, as far as that is concerned.

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What we're saying is, that if you should

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decide that you would like to delete this from the

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Constitution and have the State Transportation Board be

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merely a statutory board, you don't have to worry abfJut

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paragraphs 2 and 3 and the fact that you're deleting that,

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you know, reference as well because that's already being

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covered in another article.

MR. HENRY: I just thought that perhaps there

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should be a formal recornrrlendation froIn this subcommittee

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to the Legislative Committee so that it's -- ah, in gray

you know, it's official, exactly.

DR. WILLIAMS: What would happen also if one

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article was to be defeated and another passed and that

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language was not contained in the article that was passed?

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MR. TIDWELL: That's the trouble, Mr. Chairrnan,

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with transferring something out of your article into another

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article. You run that risk. The State Board of Transporta-

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tion needs that -- the authority to do these things in

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junk yard regulations. ~ld if you just simply retain it in

your article and if it's ratified, you've got no probl~m.

But if you transfer it and your!s is ratffled and their's

is defeated, you've got a problem.

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MR. SMITH: As I understand it lhat is not going i

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to be a const!tutional provision. It's going t.o be a provision in the legislative statute: is that right?

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MR. HILL: No, no, it's a constitutional

provis5.on.

MR. SMITH: It's going to be a constitutional

MR. HILL: Because it's the committee working

on the revision of Article III of the Constitution on

legislati.ve powers. 1Uld one -- and we just added into that

section these specific powers.

But as Charlie says, there is that risk. That

other article should be defeated and the present Article

TIl would continue in force and the present Article III

OOAS not have this language in it. So that -- you know

MR. SHTTH: All right. will the changes in

the consti tuti.on br.:. paragraph hy PC!: -' " L" MR. HILL: Yes. MR. SMITH: -- 0r will it be as a whole? MR. HILL: At the moment the intent is that
they will br.:. on a paragraph by paragraph approval basis i-1S. HOLMES: Not Articlp by Article? MR. HILL: I meant by

MR. 'rIDWPLL: ArLi.cle by Article.
MR. HILL: I didn't -- I'll) sorry. I'm sorry.

eRAtRMAN; Article by Art ic] e.:." So Article 3

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doesn't pass and Article TV does.

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Charlie, this is my first expe~ie~ce in

revising the Constiblt lon. ~ut is there ,iny way these

sort of related things can be paired. And if one fails

the other automaticfilly falls or pasRaqe: the other

is deemed not to pass?

MR. '1"IDWF.:I.I.: You C1-in han<11p f<=tirly awkwardly t

but it can be handled to take'C1are of this contingency.

Vou can tra.nsfer it to Art.iele III And t.hen if it's

ratified, that's fine. Then you might have another aBclJon

of your arti.cle that says in the event that, ah, an

amendment to Article III should not be ratified then thiB

provision becomes operative. And then you repeat your

language that you want to retain. It getH real awkward.

~nd it's not clean. But it addresses the problem that needs,

to be addressed because without it, you can imagine that

you're going to have enough opposition from those that would'

like to keep the State Board of Transportation in the

Constitution, that you that they would seize uponthi.s

as a flaw in the revision effort and can make some political

capita] out of that.

MS. HOLMES: Could we -- is this the same thing

or more complicated to leave it in and have accompanying

verbiage that would say if three passe~, this would

automatically drop?

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MS. HOLMES: Yeah.

MR. TI DWELL: Same?

MS. HOLMES: Same thing. Uh-huh.

MR. TIDWELL: Just reverse the procedure.

CHAIRMAN: It seems to me to do anything less

than that is a little bit irresponsible because you deal

with half a problem.

MR. TIDWELL: You almost have to separate

YO\lr knowledge that there are other revision projects

going on. I mean it's difficult to do because we're
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transferring things back and forth from article to article.

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But to do it properly you almost have to say, "We don't

know what they're doing in three. And we have to have a

complete and neat package here to handle it-" Or if

you're going to try and take some note to recognize that

the other effort may fail or be ratified. Take care of

the contingencies.

CHA I RMA..l\l : It would seem to me that we need

to deal with the whole problem.

MR. HENRY: Charlie, would it not be one of

the responsibilities of either the legislature or the
,, select committee to make sure that something like this

didn't fall through the holes -- in effect, didn't -- if

article three was proposes ana defeated, could there not
be Romething li.~~_a_~~~:-=-lla_~_eous_~=G~i_~~~_~fe_~::r.ythinCJ that I

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is absolutely necessary, and then that could be revoked

or something or repealed?

MR. TIDWELL: Well, I think. you're just

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talking about housekeeping, handlinq all these matters in

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that fashion. And it could be. But, there again, it

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gets to be awfully messy.

DR. WILLIAMS: Yeah, I don't know how th~t would

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work. That's like saying that you would VOt8 a constitution but you would have parts of a constitution that would not be voted on that would be part of a constitution. How would that work?
(Laughter. )

MR. TIDWELL: At the same time?

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MS. HOLMES: Exactly. And get it out of thE' Executive Article. And that would take care of it. See, what I'm saying? Because they had to do that to ten.
CHAIRMAN: Mel, is there -MR. TIDWELL: And then provide for the contingency of passage? MS. HOLMES: Yeah. CHAIR~: -- a subcommitt~eEo! -- subcommittt:8 of the Select Committee that's concerning itself wi.th these aberrations that could happen?

MR. HILL: The staff of the Select Com.-nittee willi

be responsible to make sure when the final proposal are
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presented that these things don't happen. Now, my own

feelinq

and T don't think Charlie --

CHAIRlv1}\.N: Let's let ('har 1 if' hear thi s.

My own feeling -- Charlie, now, this hasn't

really been -- I don't think this is in cement yet about

this article by article approval. My own personal feeling,

and this would be a decision of Robin Harris, the Executive

Director, and the Select Committee as a whole, would be
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that all the ones to go forward this time would be put up

as one question: "Do you approve of the revisions of

Articles 1, 3, 4, 5, and 10 or 1, 3, 4, and 5?" Because

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there is a lot of this interdependence. But, ah, you know, that's -- that's not the way these are being written. It's

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not the way, you know, you can assume it's going to happen. So, you know, what Charlie said is true. But as

of this minute, you have to look at your article as if it

has to take care of everything it has. And I think Miss

Holmes suggestion that it stay here and that another

provision be put in as a matter of housekeeping for the
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staff that in the event that Article ITI is approved, and we

know that that section is already over there, then we can

delete it from here. We'll have to do that. Charlie says

it gets very awkward. But, ah, you know, we're prepared to

do that. We're going to have to do that because this has

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happened many times. Because things are not as well organized as they might be. And so we're trying to do the best we can to get them where they belong.
This provision relates to t he power of the General Assembly. It belongs in Article III. But you don't want to lose it in case Article III should fail. So I think we probably will have to keep it here with the proviso that it can be later, ah, deleted-if Article III is approved.
MR. TIDWELL: Mr. Chairman, Cindy just reminded me of the better technique that was used before. We've you know, we have revised two other articles. And these problems carne up. And the technique used there was let's take this very situation. Rather than trying to incorporate it into Article III well, check me, Cindy. You do it in Article III. And you would also have a parrallel separate amendment t.o Article III so that, ah -is that correct? I'm getting confused.
Tell us how to do it. MS. NONIDEZ: What you could do is, the new proposed Article III could capture this language, paragraphs 2 and 3 that you're talking about. And if it's ratified, that's great. But in your proposed Article IV, you would have directory language in there to -- the'll. -- so that your proposal includes, if you will, an amendment to the existigg, current Article III. So that you -- and then if

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your proposal is ratified, this new language is over in

Article III where you want it to be, both you and the

Article III commi.ttee. And you just have language in there

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so that if, you know, to take care of the contingency that

i.f both are voted up, you know, you only have one set of

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language and so forth. That's directory language. That

can be worked out. But if you can accomplish what I

understand you to he desireous of, which is to get these

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provisions out of Article IV, if you decide not to keep

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the Transportation Board, and get these provisions over in

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Article III, it can be worked out.

OR. WILLIAMS: I'm not going to necessarily

attack that technique, but I'm going to raise a questi.on.

What if you do in fact accomplish that and then when
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Arti,clf> III comes back for ratification it's defeated the

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second time. Where would it be tllen?

MS. NONIDE Z: What do you mean?

MS. HOLMES: It would still be in the old

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article.

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DR. ~LLIAMS: Would you have some kind of

contingp.ncy language there that it would not transfer until

such time that the article is adopted? You see what I'm

saying? If -- if you adopt ~rticle, what, IV, here? And

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adopt- in Article IV, ah, the amendment transfers these

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duties to Article III, which would not pass, you know, WhiChl
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would he t:he old article. Then in ratifying th8 n~w

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Article III, where would that language be if it were to be

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defeated the second time?

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MR. HILL: That would be in the new Article Ill.

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But we know it's in there already. ~eel then, what Cin~y

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is saying is that you cover yourself in the old one ilnd

then cover yourself in the new one.

DR. WILLIAMS: I wasn't addressing that..
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was addressin<:r the issue if ArLic18 III were defeated t",tice.:

Then you've already effectuated --

MR. HILL: If Article III is defeated then the

old Article III will continue in force. And the old

Article lIT has just been amended by Cinoy' s propOSed to

add this language to it

DR. WILLIAMS: Okay. Okay.

MR. HILL: Okay?

MS. NONIDEZ: It ca~ be worked out. I t - -

MR. SMITH: We can't work out the language today.

CHAIRMAN: No, we can't.. And I apprec ia te thi s

whole discussion is being recorded here. But do we have

a secretary to this meeting? Are you the secret.al-Y?

I think it is important that, our report to the full

committee be specific about our recommendation here. If

Cindy can help us with that.

MS. HOIMES: Cindy, why was this put hen,'? T

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shouldn't ask those kind of qu~stions. But '..,hy wasn't it

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put in this?

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MS. NONIDR7.: I -- I think --

MS. HOLMBS: Because it doesn't talk to the

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Boa cd at~ all.

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MS. NONIDEZ: Well, it's just developed there

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out of time. And I think in terms of the editorial revision

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that was done, felt that, yOll know, it really relates to

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the functions that are carried out by the Department of

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Transportation. You know, once again, it's better not to

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try to do any sort of n1ass, you know -- not doing any more

re-organizing, if you will, than you had to because -- and,

so, they just left it there.

MS. HOLMES: Okay.

CHAIRMAN: Mike, do you want to carryon?

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MR. HENRY: Okay. Paragraph 4, Article 4, sectiof

8, Paragraph 1 deals with transitional construction of

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statutory law. And they're changing the words "St.ate
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Highway Board was used heretofore." It shall be taken to

mean State Transportation Board. I think that: could easily

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be incorporated in the statutes. But it would in fact have

to be added, I would imagine.

Article IV, Section 5, Paragraph 1, entitled

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"Ve~erans Service Board" can be found in Chapter 78-4, Code

of Georgia Annotated. Specifically at 78-401 and 78-407 is

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[f--:-~r:~i~ion providing fO~--~h-e-s-e1-ec-:~~:~O-f--t-h-e--d-e-p-a-r.-.t:men t

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head, commissioner

the director of the department.

:1

3

Article IV, Section 7, paragraph 1, "Board of

4

Industry and Trade" can be found at Chapter 40-21, Code of

5

Georgia Annotated, specifically at 40-2102 and 40-2103. In

6

the statutes that I've got passed out it appears that

7

bey' re creating a Board of Corranunity Development in lieu

8

of the Board of Industry and Trade. The statutes do not

9

reflect the 1976 ConstitutiDna1 Amendment which was

10
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19

20

21

22 "~ I

23

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24 i

ratified rechanging the name back to the Board of Industry and Trade. Also in this provision, in the statutory provision, rather than creating this Board in the statutes or, no, I'm sorry -- rather than supplying the terms of the members and the provisions relative to the appointment of the members they, in effect, refer tothe Constitution on this matter. So this would have to be included in the legislation, were we to delete this provision from the Constitution.
Paragraph 2 of that, entitled "Powers" deals with the, ah, ability of the Board of Industry and Trade to participate with any county, municipality, and non-profit organization in the operation of any facilities operated
I
encouraging and promoting tourism. And that was proposed as :
I
a Constitutional Amendment and ratified in 1966. The

PAGE 19
powp.rs were not changed. wlotu'1s(~ tahe1-sroeChOamrnv~e-e-nt:ab:e~;nr-eOt-a~ .n~~e-ed---l

Staff that this paragraph

A

~,



at some point in the Constitut,ion, similar to the two

I

I

paragraphs at the end of the Board of Transportation due to I

thA powers granted in it.

I

Paragraph -- Article IV, Section 4, Paragraph

1, "Board of Natural Resources" can be found at Chapter

?"

43-17, Code of Georgia, 43-1702, 43-1703, 1705 and 1706.

Ah, again, you would have to --the statutes don't create

the Board, they just refer to the Board. They say the

Board shall be composed of. So you would really have to

refer to the Constitution to find the creation of it.

Thereagain, you would have to have some type of legislation

)1

creating specifically this Board, I believe. The statutes

J5 ". are in here. They -- in some instances -- directly

parralle1 the Constitution, and in other instances there are

minor aJditions that would need to be made if you were to

delete the constitutional provisions and carry the Boards

;.)

I, forward as statutory boards.

,,I

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CHAIRMAN: Well, can we say in sun~ary here that

it is feasible to delete these as constitutional boards and

with amendment or additions to legislation which can be

dC.d"Lf:? FI1 O'''l thern to continue to (Jf)t?rate as Liley operate

MH. HPNRY: That was my u!lderstandin~J.

PAGEL 1,-

TIi -------------------

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

... _~._-~.

,

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CHAIRMAN: Of oourse, it's not the intent-ion uf

Ii:1
2 I'

this Committee, obviously,t.o delete some body as a

il
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3 I;

constitutional board and then have it -- find itself

4i

inhibited or restricted in ways that it hasn't been thereto-

~:

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fore.

h

Charlie, is that a fair summary of it?

7

MR. TIDWELL: Yes, Air. I think it is, Mr.

Is

Chairman.

9:

CHAIRMAN: Any comment or question, Mike or

the others here, on this?

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MS. HOLMES: Do you have any suggestions where to put this power? What would be the recommendation? Where would you put these powers?
MR. HENRY: Ma'am, of the MS. HOLMES: Under the Board of Industry and Trade. MR. HENRY: Well, again, you'd run into that problem of one article, ah --

19

MS. HOLMES: Well, where would it normally

20
11
2l

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II

23

24

go? MR. HENRY: I think we've talked about putting
it in the taxation section or either tacking it on to the gratuity section in the legislative article.
MR. HILL: This one creates a different problem.

25

I.1_.

..

..

MS. HOLMES: Yeah, I see that, but --
_

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1

PAGE 21 MR. HILL: Than the other one does because it

"

mentiones the Board in its language.

MS. HOLMES: Dh-huh.

I

I

MR. HILL: And as soon as you mention it, in

I

any place in the Constitution, you've given it constitutional

status, I think.

i

I

MS. HOLMES: Yeah.

I

f)

MR. HILL: So this may create a different

')

problem. I'm not sure, this may -- it could go in this

]0

Article 9, you know, relating to the powers to work with

,,,)

1

cities and counties. But, you know, no matter where you

()

,

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put it, you're going to be retaining the constitutional

status as long as we retain it, it seems to me.

Tom, do you have a different opinion?

MR. THOMSEN: Well, I think you could word it

easily and just say, "To the extent that the General

Assembly decides to formulate any type of body as, you

know, contemplated -- you know, that would be contemplated

by the Board of Industry and Trade, that body shall be

empowered to consider." I don't think you have to give

constitutional status of that. It could be worded such
tot,
that you could avoid that problem that you were referring

this?
,.
--,'

CHAIRMAN: Any other questions or comments on

I

(NO audible response.)

I
I I,
_ _ _I

2?

PAGE

ir------------- CHAIRMAN:

--------1

Mike was, ah -- everyone was sent

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this memorandum --

!

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3 Ii

MR. HENRY: I believe so.

,

4 :1

CHAIRMAN: This October 8th meml)randuro of

5

your's?

6

MR. HENRY: It was sent to everyone. I have

7

some extra copies here for people who didn't receive one.

8

(Presenting)

9

CHAIRMAN: My thoughts, as mentioned earlier,

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was that we would not necessarily go through that linp. by line, but rather use it -- refer to it as we look at the suggestive arafts that hve been prepared. And if that's agreeable, we'll start. Does everyone have the suggested drafts? I want to be sure that I understand this and everybody else does.
MR. HENRY: I might point out on this draft, the first sentence of each paragraph we put a variable in

there for you all to decide whether. you want it or not. We

19

were trying to eonvey the sense that this Board was being

20

kept in the Constitution for some purpose. YOII may not want

21

to put that in there. And also this has been reworked by

the Office Of Legislative Counsel to conform with the

-,)

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current style of code revisions. I don't think there's any

substantive changes in the provision.
CHAIRMAN: All right. Now, I want to understand I

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PAGE 23
-- - - ------ -------- - -~------ - ---- ~-- - - - - - - - - - - - - - - - ---, this. That part that is strickened is presently in the
I
Constitution. What's underlined is new. MR. HENRY: Right. CHAIRMAN: What's neither strickened nor
underlined is what's in the Constitution. MR. HENRY: Right. CHAIR1vlAN: And everything that's in the
constitutional passage now is here, either strickened or left free; right?
MR. HENRY: Yes, sir. CHAIRMAN: All right. MR. SMITH: Has it been determined by this group that there's not going to be any -- that there will or will not. he a reeoromenat.ion to change the method of securing the Public Service Commission? CHAIRMAN: No, that WiiS -- we did not. We made t.he determination that the Public Secvice Commission ought to }~ retained as ct constitutional commission. And that's an opt i_on that we need to consider today. A.nd llln.ybe we coulcl. go throuljh this draft here ano l,Jick at it as we go
It's short as you can se~. As aike said, he put a phrAse or a clause -- a phr::-a$(~, I gue:-;s it i.s, ctt the be'Jinning ~)f each of these p~s~alJes. J have S(,me thouqhts on thf'm, but I'd he interest. d

PAGE 74

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to protect the interesT: cmd well-being of the consumer

public." Now, that'8 new langt1a~le. That's not in thr~J'r-'

now.

Yes, sir.

HR iACKSON: I've looked di:. cdl three, what. I

would call provisos. And I looked at thF:' other provision

in the \.onst.i tution. And with the possibJ e exeept ion (If the

state Personnel Board and it -- even it doesn't have a

proviso like this -- has -- such proviHo just says, "To

reg -- it just says what its power is, l~ regulate

utilities or to govern the university syljtem. When you

start using terms like efficient., int~gr.i.t.y, (ih -- my

initial thoughts would be t.haL -- thcd. we shollldn't hav(""

that kind of language.

CHAIR~.N: That was my feeling, my reaction .

DR. WILl.IAMS: I kind of aqree with that too.

Even if it do have that sort of language I think this

language is incomplete.

MR. SMITH: With respect to the Public Service

Commission.

DR. WILT-lTAMS: It's only ac]('lressing one side of

the question.
IJ(R. HILL:

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I
r"r. Chairman, the major reason that th iJs

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

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_ _ _ _ _ _ _ _ ...JI

PAGE 25

was suggested as an addition was that the -- the, ah,

l

philosophy of the committee in making a decision about

whether or not a Board should be retained in the

Const..itution or .not, you know, from previous Jneetings,

was that it should be because of a principle, some

underlying basjc principle and not just by -- because of

history or tradition. You know, there should be a good

reason for it. And this was just the first effort to come

up wit.h the reason why it's there, so that if people would

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ask, "Well, why did you pick these three?", you have some reason stated. And -- you know, admittedly, these reasons GouIn he better stated, more broadly stated and, you know,

worked on more, but that was the intent of this introductory

J.j ,

language to help the committee. It was really to give you

',c;. "., "

you d rationale ox put your rationale in here so that, ah,

"
any criticism that might be generated later would be met
"
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by this kind of --

CHAIRMAN: I think there needs to be a reason why

we -- r think we ought to ask ourselves of each of these

eight constitutional boards or commissions, why is this a
),
constitutic)nal board or commission, and answer that to our

own satisfaction. Now, I don't think that answer has to be

in the constitution.

MR. SMITH: What about the constitutional officer ?

Are we going to have an introduction -- introductory rationa e

PAGE 26
, - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - _ .._ - - - - - - - - - - - - - - ,
on each one in order to keep them in?

CHAIRMAN: Well, are there any other comments

about that passage?

4

(No audible response.)

5

CHAIRMAN: Is there any committee member who wouldl

opt for retaining that passage? If not, we're going to

7

suggest that that be -- that that just l>e put back to the

8

original language.

9'

I have a question of one c you. "There shall be

i

10

a public service commission for the regulation of uti.liti6>s.+

~l
7.
Does that word "utilities" adequately cover all those they

regulate? Trucking firms --

MR. HILL: That's the exact language that's in

there.

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CHAIRMAN: I realize that's what is there, but MR. HILL: I guess we really didn't question

18 !I

it, if it \<Tas already being used to authorize --

19

CHAIRMAN: Maybe if we don't disturb something

20

its worked for however-many-years. We've got somethings in

21

there that I hadn't heard described as a utility.

L' '_)

MR. SMITH:

I've got to go back to town. I"h~:

23

I

got a meeting downtown at four o'clock.

Let

me

just

put


l.n

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2).

rea4 my two cents worth on the Veterans Administration. r've

I

25 I I,

the letters that they sent us and so forth. I see no reason!

lL_ _._________

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l PAGE 27
r.eason for it to remain a constitut.ional commission. And

if I can vote

since you didn't get to that point, I

would \fote that it would not. b<:~ retained.

CHAIRMAi'\l: You're saying that in effect those

]ptters did not --

MR. SrIlITH: Dii.

CRAIRHMr

in your mind for retaining them.

All 1:" Lqht. Thank you

Anything else you waI'1t t:o comment on?

MR. SMITH: Well, I think I've cOIDmented on

the public service commission language.

CHAIRr-1AN: Okay. Thank you.

The next thing we want to look at here is

the second sentence where it says, "Such Commission shall

consist of five members, who shall be elected by the

people." And I think we ought to consider whether we

whether we want to recommend that the members of this

commission be elected or appointed in some fashion. I see

the staff maQe no recommendation there. I don't think it

was their place to. But I'd be interested in expressions

from the co~nittee members on that.

IDR. WILLIAMS: Mr. Chairman, what would be your

guided wisdom on that in terms of what we're seeking to

achieve?

CHAIRMAN: Well, I don't have any special
_ - - . . . . . . . . . . . . . ~_._~~~.~~_

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on the sUbject.

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

PAGE 28

I'm aware that -- I think my numbers are

right -- 39 states appoint public service co~~issioners

and 11 elect them.

And I'm generally aware that the electorate can

err and a governor or senate can err in making or

confirming appointments. So I have my own feelings 2S to

which would be best. I don't mind expressing it, but I

thought'maybe the committee would want to express themselves_

DR. WILLIAMS: I guess what I was really trying

to get at is, when you look at that kind of data that you

just suggested, would there be fuftctional differences that

woulld suggest to us that we ought to go one way or the

other? Or would the differences not be significant enough

to bring about that kind of comparative analysis; and if

not, what would we be guiding our decision on?

CHAIRMAN: Well, some of these gentlemen have

looked at practices in other states. My impression is that

the Public ~ervice Commission in Oregon has about the same

function as the one in Georgia does.

MR. HENRY: You can't really tell from the

research that 'I did by looking to see whether one existed or

not because you don't go and get into the issues that :it

deals with. I think one thing that you brought out was the
I
I
fact that the people who had appointed wanted eltcocted. Pt""(lPt~

who had elected wanted appointed. So I think it's a politic~l

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

I

PAGE 29

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

- .. ,_ ..

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question.

CHAIRMAN:

~ That was our -- the chairman

I

:;
public service commission. That. was his line. I asked him

w hat he thought and he said, "Well, r can just tell you

wh~t goes on in those states where they presp.ntly appoint

them, the people want to see them elected. And in those

states where they presently elect them, the people want to
8
see them appointed." Everybody is unhappy with this public
'I
service commissi.on thing.
i (\
MS. HOLMF.S: My own personal opinion is the
--
l1 ~'l best situation would be to appoint them. I think that is
".-
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il hett,er situation than electing them. But I think from a

political standpoint, you're never going to get it adopted

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as :in Oregon. I think people right now are very much -you know, I mean they're hearing an awful lot about the publ c service commission. They all have opir'lions, not usually based on any fact. But most people don't like their opi.nions based on facts. And, ah, I don't think it would pass if we tried to get an appointed beard.

CHAIRHAN: Miss Holmes, do you think we ought

to antieipate that or do you think we ought to make a

r:-eenmmendation that we think would would be our best
,. J
judgrnent and leave to the legislature well, the committee

first, the select committee and then the legislature and

. __,_th~n_tb~ electorate can. make the determination.

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PAGE lit MS. HOLMES: Well, you know, I really would like to hear what the resL of the committee ilctA to ~ay. Some people may think that electing them is t.he best. I mean we are trying to be responsibly democratiG. I rO"""'I;, you know, to the people to such a degree. I, frankly, Udnk' that what's politic~l, feasible and what's best is llS\lalJy at odds with each other. And I woulcl not -- you know, I don't have strong feelings about it either way. CHAIRMAN: Yeah, w~11, r' cJ 1 ike t.:.o hear from thtc> other committeernembers too as to how they feel about: thed:. {Pause.} Maybe I can put it another way. Is thertc> ~ny committee member who feels thrtt members of that_ comnd :.;sion should be elected? MR. SHEPHERD: I woulCJ support electing then,. CHAIRMAN: Election? MR. SHEPHFRD: Yes. I beli8v.... that: l:ltlS commission should anSWer to the people for iheir "\cts in regulat.ing the utilities. And \~hile it. Il1ny nut be the best. metho~ availahle, r think it's the only way that people can react to util:i ty charges and rates. This n\r\'y be o. poor wa':t to have it, but, ah, it's t.he only way thE' people ha,,:e. T would support the election method on thi s commissi0l1. COURT REPORTER: Pardon me. (Off the record at request of court reporter.)

r-------- --
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PAGE 31 MR. JACKSON: He just made a v~ry valid point. CHAIR~lAN: Yeah. MR. HILL: Both the 1964 and the 1970 proposals

callec1 for the election of t-.he public service commissioners

and so does this one. And so, you know, there was no

major change ~uggested in this in pr@vious efforts, at

least our latest ones.

CHAIRMA~: Stew, do you have a --

<)

MR. GILLENS: Well, I'll just express my position,

1l.ot my opinion.

1. l --
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(r~Clught.er ) Being a member of the Senate, I don't thi.nk I

ought to express my opinion now because I've got to vote

1.1

)"ot

on it later.

CHAIRMAN: Right.

MR. GILLENS: Anyway, I think you and this

committee ought to express your. opinion as to how you would

Ii like to see it done, to let us know, the members of the
I'
General Assembly, ~1hether you think the public thinks it

ought to be elected or appointed o~ whether you think it's

more heneficiRl -- let's put it that way -- more beneficial

to them. Right now I agree with her that the public is

probably going to want to see them elected. But you and the

commi.ttee ought to expn::osl'l your opinion as to what you think

is best.

,,.

-

__ ..

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

,

CHAIRMAN:

PAGE 37
----.-~~-,
!
I feel that way, too, regcudless of

whether up the line we get shot. out of the saddle or not.

3

Tom, you wanted to say somethi.ng?

4

MR. THOMSEN: ,lust an observat.ion. I have not

had the opportunity to read Judge Wofforc's opinion un this

last go-round with the Public Commissioner, but I think

some of the issues raised as reported by the newspaper a:n:"

8

really instructive. One of his comments that he Illakes in

')

that opi.nion apparently is to the impartiality of the

10

people -- one member of the commission. And that if they

'<".
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kind of impartiality that we would them to have. I mean it's

going to become more and more difficult to do this job down

the road I think with the energy situation becoming what it

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is, the demands made by the public utilities are going to

16 "7. w c.

be -- appear to be outrageous to the consuming -- we, the

17

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consuming public, but they rnay be justified by the si luationi.

18

Because of the increased complexi t.y and problems with it.,

1':1

it's going to need somebody who can be totally impartial

20

I think, or the impartiality requirement is going to become

_)1'
greater. And I have some problems wi i:h somebody goiO'J c.)Ilt

,'1 I
and campaigning for this office and saying, "Regardless of

whatever happens, I will never vote for a rate increase" is

,I not the kind of impartial ity that we're goinq to nef::!d and

U__._. is not. th~ e kind of impartiality that

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with the courts perhaps.

PAGE 33
- ~. -~-~.. ~--~ ... ._-~-----~-_.. _~------------,
And I don't know who is going to

win the power battle, you know f the public service commissio or the courts in this thing. But it's going~ be a hard

job for anyone. And you've got for election, you've got to

pretty much stand on the side of the consuming public and

take rl stance that's almost inherently opposed to the

utili.ties. And I'm not sure that's going to ee a practical

position down the road. I don't know.

CHAIRMAN: Ed?

MR. JACKSON: The first time around I -- I

hesitated to raise this but I'll throw it to the committee.

This to my knowledge has never heen done in State Government

here in Georgia. What would your opinion be to the -- to

a public service comn\ission with three elected members and

two appointed members, to try to get the balance or you

get some responsibility to the electorate and yet hopefully

get some expertise on the board. Or it wouldn't have to be '. 1 and 2. It might Be some other arrangement. But that might

be, ah -- si.nce this i.s a highly devisive issue, it might

be a compromis(~.

DR. l'.TILLI1V1S: I'd like to support some

exploration of that type because I'm not real sure I can

buy into the argument that we have to look at the ability

of the commission to do a job in the context of appointment

vis-a-vis election. I think given an issue like this one,
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- - - - - - - - - - - - - - _...._ . _ - - - - - -

it's hard to separate out credibility frorn ability. Tf

the people, no matter how you put them i.here, hmv you fY.1C

the members there, woul,} flot~ accept those individuals .in

making that type of decision. I think yo~ would have a

debilitated board at that point anyway, no matter how they

got there. I think somehow you -- you've got to take

cognizance of the fact that it is an issue the people are

very' much looking at. And you have a credibility factor

that must fit in somehow with the ability, which might

suggest some different arrangement.

CHAIRMAN: Leaving aside Ed's suggestion for a

minute

it's an intriguing suggestion. It certainly

hasn't crossed my mind -- and granted that your options were:

two, merely two, do you have an opinion as to whether they

ought to be elected or appointed?

MR. WILLIAMS: Well, again, I think it would be

kind of hard for me to separate out the concern that appears

to be very much in the minds of the people, given the

sensitive nature of that area. And if I were forced to go

with one or the other, lookinq at the reality of the

situation, I ,~uld go with an elected board. That does not

suggest that, you know, if I could hold the other things

constant that would be the acceptable model. But I find it

very difficult to separate out the perception of that board

1

and the importance of its work.

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

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PAGE 35
an~Pinion::A::::t~:S:_~::~o:::::O:a::::rIS:d~::y I

didn't have strong feelings. I don't have terribly strong I

feelings about this. But I would corne down on the side of
~)
appointed as opposed to elected members of this committee,
I,
recognizing the risks and rewards either way.

~1R. GILLENS: If you have a strong Governor and

he tries to operate all the state departments, which we have

had in the past, rather than me going to see a board member

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over there, I'd just go see the Governor, and say, "Governor I want so and so done over here in this Department." And if he appointed them, then he'd pick up the phone and call over there and them "This is what we want done." And that's happened a lot of times in the past. You can appoint good, strong people, probably sometimes better than you could elect. And i.t's two sides to the story.
CHAIRMAN: Yeah, I think what's happening to

all of us is, we -- our vision is good enough to see both
19
sides of it and that's why I don't hear any strong sentiment

i expressed one way or the other, very strong sentiments.

On the other hand, I believe that by some

date, Hel Mel, you'll have to tell me whether this is

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October 31st or not, because that's the date of the next

committee meeting, we should have proposed passage for the

service

'H__ c_Q!!.~.!.i1::l11::_~()ll-anc:t-=":': as it relate~th.e public/commission.

PAGE 3G

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could be exactly what's in there now or it could be

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2

amended if we are talking about amending.

MR. HILL: That's the date.

4,

CHAIRMAN: October 31st. All right.

5

MS. HOLMES: Do you think that the committee

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there will be

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CHAIRMAN: I don't --

9

MS. HOLMES: Because I think if they're just

10

going to accept what we've proposed, I think then we ought

to propose appointing them so there can really be some

discussion. You know, I think whatever we propose they're

going to discuss, is what I'm really trying to say.

CHAIRMAN: Actually it's going to more than one

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committee. You know, it goes to the Smith Committee and thert to the Select Committee, right?
And then to the Legislature, of course. So, whatever we propose will have scrutiny somewhere along the line.
Yeah. Tom? MR. THOMSEN: Mr. Chairman, I think that the Smith Committee will -- there will be much discussion I think regardless of which way -(Laughter. )

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And I'm sure that Judge Smith will -- will want I

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PAGE 37

the imput of the entire subcommittee.

MR. HILL: Would the method of appointment make
any difference in terms of your feelings about this? Becaus~

I'm assuming we're thinking appointed by the Governor with I,

I

the confirmation of the Senate. Now, there may be other

I

appointment mechanisms. Now, I'm not -- you know, this is I I
just thinking outloud. But is that an issue? Is that
I something that would change anybody's mind? Is it a fear I

of the Governor's control over this person that's really the I

problem or, you know, I'm not --

MR . .JACRPO]\;: You just raised an _;gsue. How

about the Missouri plan where the Governor appoints and then

the electorate confirms?

MR. THOMSEN: Or a modification on that plan

\-There the Governor appoints for one year with ratification

by the Senate and then that ind~vidual stands for

re-election, instead of a confirmation

MR. JACKSON: Well, that's what I meant.

MR. THOMSEN: Is that what you were thinking?

MR. JACKSON: Right.

CHAI~~AN: Is that Missouri?

MP. THOMSEN: Dh-huh. It's a system filed with

the Judiciary -- the Supreme Court in many states. And I

think it has a lot to recommend itself.

i

CHAIRMAN:
__________ ...

I
In Florida the public service commissi~n ---------------_---1

PAGE 38

is a statutory commission. They have a system that I think

is unique. There is a Florida Public Service Cormnission

3 I, Nominating Council. And that council -- three memmers -4 ;;I there are nine members. Three members -- bear in mind, this

5

is a nominating council. Three members including one

()

member of the House of Representatives to be appointed by

7

the Speaker of the House. Three members including one

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member of the Senate shall be appointed by the President of

9

the Senate. And three members then are selected by those

10

six. And those nine people then make their recommend'ations

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to the Governor. And what he does is confirm by the Senate.

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They make a stab at qualifications. And here's what they

lay on that committee. liThe council shall establish

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procedures for a~p1ications for membership on the rommission. No person shall be recommended to the Governor by the council unless the council is satisfied that the person is competent and knowledgeable in one or more fields which include, but are not limited to, public affairs, law, economics, accounting, engineering, finance, natural resources, conservation, energy or another field substantially related to the duties and functions of the commission." Interesting way of doing it.
1-18. HOLMES: How long has that been in effect? CHAIRMAN: It was a 1978 statute. And I don't know whether it was a consiitutiona1 board before that or not.

PAGE 39

MR. GILLIS: That's a statutory board.

1

2

CHAIRMAN: It is now. I say, I don't know before I

!

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that whether it was a constitutional board or not. But

thi.s was a 1978 statute.

MR. HILL: They nominate to the Governor and then

the C~vernOr selects from the list?
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CHAIRMAN: I believe that's the way it's done.

MR. HILL: Or do they just nominate this

CHAIRMAN: They nominate to the Governor, I think~

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Let's see.

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MR. JACKSON: Those qualifications though would

stack it for industry representatives. It would be hard

for a member of the general public. We might do what we're

doing now "lith our examining boards, have provisions for

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one member of the general public on the board. The boards that examine doctors and license all the professions in the State.

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CHAIRMAN: Yeah. It's the responsibility of that

nominating conncil to recommend to the Governor not fewer

20

than three persons for each vacancy. Ah

,.

MR.. GILLIS: And then whoever he selected

confirmed by the Senate?

CHAIRMAN: I'm I think I'm right about that confirmation by the Senate. I'm not sure about that confirmation by the Senate.

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PAGE 40 MR. GILLIS: Well, that more or less is a formality. CHAIRMAN: Dh-huh. I don't see anything. It gives the Governor a certain len~th of time to act on it. And failing to act on his part, they can make the appointment themselves. Pnd each appointment shall be subject to confirmation by the Senate. It's in there. Well, that probably confuses the issue more than otherwise. But I thou~ht it was an interesting stab at trying to establish qualifications. I believe I'd agree with what you said. And I'd run that idea up and down and backwards and forwards. And my own conclusion is that the harder you try to establish the qualifications the more of a trap you're likely to lay for yourself. And I think you can trust to the wisdom of the electorate or the Governor and Senate. one way or the other. MR. HENRY: You could also have a variation of that and have, ah, provide in the constitution that they'll be appointive and provide that the General Assembly shall provide the manner of appointment and qualifications, which is already provided for. And then the General Assembly could provide for some kind of nominating council, like apparently they do in Florica. ('}'A.IRM.,AN: And we do have somethinq that I s akin t:o

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PAGE 41
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MS. HOLMES: Yes, Judicial Review. Dh-huh.

MR. HILL: That's right.

ED JACKSON: The Judicial Nominating Commission.

CHAIRMAN: Dh-huh.

MS. HOLMES: Did you have any numbers in mind,

Ed, when you suggested some elected and some appointive?

MR. JACKSON: That was just really a concept

I was putting before you.

CHAIRMAN: Is there a precedent? I mean has it

worked anywhere that you know of?

MR. JACKSON: I don't think anybody has ever

tried it.

It may not be practical.

MS. HOLMES: Frankly, if I spent $100,000 getting:

elected I'd resent the person that just walked in having

the same vote as I did on the Board itself. I mean you work

awfully hard to get elected to those things.

MR. HILL: That's a good point.

MS. HOLMES: And then I think, too -- well, that'~--

CHAIRMAN: Tell us what you think.

MS. HOLMES: Well, I was thinking that the

person who was elected -- which might be a good thing

would have a different viewpoint than the person who had to

run again. People who have to run again

I hope Senator

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1!i Gillis doesn't mind me saying this-- keep that in min2 at

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all times.

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MR. GILLIS: And don't you forget it.

4

(Laughter. )

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CHAIRMAN: More sometimes than others; isn't

6

that right, Hugh?

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(Laughter. )

8

MR. THOMSEN: I would like to explore the

9

Missouri system a little more. I'm not sure how Ed

10

envisioned that working. But if, for example, you had this

Missouri system where a person would be appointed maybe

even as you do in the Judiciary, appoint that person for

life, ah, subject to his or her being re-adopted or

re-accepted or whatever the word be, by the general public

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every for years, that would keep the Governor from being able -- one governor from being able to "stack" the committee. It would also make that individual responsive

18

responsible to the public at least every four years;

19

in other words, for his or her contin~ed presence on the

20

Board of Commissioners, they would have to be answerable to

21

the public. So it might be a nice combination there,

22

compromise sort of a position and get imput both from the

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public and the, ah, -- from the Executive.in the initial

24 i I:

appointment. I have seen this process, Ed, in operation in

25

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the Supreme Court. And the State of Colorado looked into that

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PAGE 43

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once. And there was a situation where Supreme Court

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justices would not be reconfirmed by the people; in other ! I

words, it's not a pro forma election every year. :Some of th~

justices actually did lose their jobs after being appointed

by the Governor. So it's something where the people from

practice actually had some impute

CHAIRMAN: Tom, I have a reaction to that, if

you all want to hear what the Chairman thinks about it.

I think there are a lot more people in this

world who will not offer for public office than who will.

I think, therefore, whenever we set up an office which. is to

be an elective office, we very drastically narrow the field

of prospects. I think the matter of being appointed

for one year, knowing you run the following year, would

have that

MR. THOMSEN: I was envisioning more for the

full term, for a full four-year term, if he had it, say,

for example, on a term situati.on. And you wouldn't have

to put your name on the ballot until four years after your

initial appointment. And then if I am not mistaken, there

is, for example, with the judiciary in most of these states,

there is no campaigning. You just stand on your record.

And it's either up or down by the public. So, you avoid the' I
campaign situation, but at the same tirne you're quarantying

that the public will be able to, ah, have a word on the

continued presence of that individual on the Board.

2

MR. TIDWELL: Torn McAdams of Judicial Ethics

would prohibit members of the judiciary from campaignin9.

4

But I doubt if you would have any sort of other code

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of ethics that would prohibit members of the Public Service

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Commission from not campaigning, that they'd be retained. MR. ,JACKSON: But, of course, you wouldn't have
competition. MR. TIDWELL: No. The question is to the
voters, do you keep him or does h"" )1 out. But that -- wh<.' 1I'm saying the reason ,Judges -- you don't have a campaign,

because they don't -- they can't under any circumstances

campaign. They just put their -- they say I want to be

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elected and that's the end of it. Their canons of ethics prohibit that, but you don't have a canons -- canons of ethics for public service commissioner, who, if they violate them, could get disbarred as -- as judges could. You know, maybe the people need to be exposed to a little bit of campaigning. I don't know. So that the --
MR. TFOMSEN: Well, at any rate, as Ed suggests, it would be a limited type -- kind of campaigning.

MR. TIDWELL: It would. They wouldn't have to

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answer anyone that was running against them.

24

MR. THOMSEN: That's right.

25

MR. TIDWELL: Their campaign would be, "I've

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really done a good job."

I HR. THOMSEN: And as you say, that might not be

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a bad -- I mean maybe that campaigning would not be so

I

negative; I mean it would be an educational type process

for the public to the extent that their interested to find

out and evaluate this person's performance for that four

year period.

MR. GILLIS: I just wanted to ask you, does that

hold good for solicitors and prosecutors also, that same --

MR. TIDWELL: I think it does.

MR. THOMSEN: Charlie, what about the judges

that campaign?

MR. TIDWELL: They're very limited in what they

can do.

MR. THOMSEN: In their campaigning?

MR. TIDWELL: Yes. I don't know whether it

applies to DAIs or not. Does it, Don?

MR. LANGHAM: My reaction is that it doesn't.

MR. TIDWELL: I guess the code of Judicial

Ethics apply strictly to judges. And they -- it's -- they're !
severely limited in what they do.

CHAIRMAN: Well, Lady and Gentlemen, we have

really four options that have been suggested. One is to

continue election; one is appointment by the Governor with

confirmation by the Senate; one is some combination of

n--------------------------------------------

1'.-\(;[0; 46

!: elected and appointed officials; and the other is this

2 Ii

Missouri System. I suppose we could spend this day and

3
next week considering all this, but we do have a deadline

4
and I recommend -- and are required to make a recommendation

5
here. And I think we ought to do that. We can express

(,
ourselves on each of the four options if you want, or we

71

!

can eliminate some of them; that's your pleasure. But I

8
guess what we better do is just go around and express

9
ourselves.

10
Ed?

~~. JACKSON: Well, there's merit with all four.

I guess I'm leaning now to Tom's suggestion, the Missouri

Plan.

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CHAIRMAN: Hugh? MR. GILLIS: Mr. Chairman, I'm not sure I should get too much involved in what you're going to recommend since I've got to anticipate it in the General Assembly.

18 i

Off the record I could tell you how I would want it.

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CHAIRMAN: All right. We'll~ow you as having

20

passed.

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f4R. GILLIS: Ah, let me bring up one other. n 'i
You're talking about who all it's going to reviewed by. I

23
have found that when the House Judiciary Committee, which is

2". i!
composed of how many lawyers, Charlie? About 15 lawyers?

25
I! And t h e n i t comes o v e r t o t h e S e n a t e a n d a b o u t t e n more !.-,- .~._~__------~----_.-._-~-_. _ - - - - - - - - - - - - - - - - - - , - - - _...._ .. _.,,--------_._.. __._..._---- -_. __._-

PAGE 47

lawyerA. \~en they get through with it, we may not

recognize it, ~rr. Chairman. And then it goes to the floor

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We've got a lot more lawyers on the floor there. But I, for.

~

one, appreciate what you people are doing as citizens to

recommend to us what you think. So that was the purpose

of the committee to start with. And I'm going to have to

go because in line with what she's talking about a while

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ago, I've got about 20 mayors and all councilmen waiting on

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me down in Douglas, Georgia.

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(Laughter. ) MR. GILLIS: I'm going to have to go and see

about my constituents.

CHAIRMAN: Well, we thank you for corning.

MR. GILLIS: I appreciate it. And I've read

and hauled through this. And really, you all have got some

good material on this.

CHAIRMAN: Okay.

MR. GILLIS: And you've got my report from --

CHAIRMAN: Yes. Uh-huh.

MR. GILLIS:

Natural Resources. And I had a

letter from Senator a notice from Senator Kennedy saying

,.,
he couldn't be here today, but he had mailed you his.

--,".,

CHAIRMAN: I got his.

MR. GILLIS: Thank you.

CHAIRM~~: All right. Thank you. Miss Holmes?

P.AC;E 48

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~1S. HOLMES: Well, I really have mixed feelings about all of them. I think number -- the fourth one, I wouldn't even consider because I think with the feeling of the electorate of Georgia right now thaL you might J~ well appoint a board because every tim(~ SOIl1 ... body woul(~ CO;;le up, you know, ev(~rybody would vote "i.~(). 11 I t ' s been my experience when people have the least little doubt, they vote "No." So I don't think tha t anybody could ever staDe; on their record, not anyone that's in there today and not anyone that's in there in the future because things are going to get worse rather th~n better. I think ideally I like the appointed one with the commission like the F'lorida one. That's really my -- what I think is the best. But I think the only practical one is electing them. So, can I have two votes?
(Laughter.) CHAIRMAN: I do think this. I think -- and I believe we got a little message from Senator Gillis on this. I think we ought to express ourselves in terms of what we think is best. MS. HOLMES: Well, I like that Florida Plan, if we could vote on that specifically. CHAIRMAN: Appointment, generally, but some different method of appointment than simply the Governor?

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PAGE 49 CHAIRMl\.N: All right. MR. HILL: Recommendation by the Commission to the Governor \<lho makes the appointment, conf irm with the Senate. MS. ROUtES: And, see, that's a little bit political because you're getting the General Assembly to appoint a couple of people. I think with the understanding that two consumers really would be represented on there or at least one,would be a real out and out consumer, like maybe somebody -- you know, a housewife or retired person or, you know, somebody that really knows about paying light bills. CHAIRMAN: You open up a can of worms there bec~use I think if the consumers are going to be represented the investors and the industry ought -- need to be represented too. MS. HOLMES: Of course, the consumer and the investor are the same person. CHAIRMAN: One in the same. They're not just big, rich millionaires. They're little widows and orphans and other things. MS. HOLMES: Well, then, take the consumer part out. (Laughter. ) CHAIRMAN: Melvyn?

50 rr--
"
DR. WILLIAMS: Well, I don't know. I guess

I could rule one out better than I could support one. lilld
3
I guess I would tend to rule one out, the plan that was

just mentioned. A couple of things sort of stick in my

mind on that one. One, I don't know if that would be

comparable to the judicial process with judges because
7
judges -- you have a professional group making those
s
initial recommendations. And I don't know if you would
9
have a -- individuals in that context. The other part
lU
to that would be that that would be one bloody mess for

the person that had to go before the people and say, "vote

me up or down on the record." I don't know how fair that

would be to the individual. I guess I'm ruling that one

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out. And I could support very easily an appointed board or a variation of that.
CHAIRMAN: Well, we wind up with -MR. TIDWELL: You've got one more vote. CHAIRMAN: Oh, excuse me. Yeah. Well, yo~'ve expressed yourself. MR. SHEPHERD: Yes, I have. And I would stick to the same statement I made about the election. I would support the elective method.

CHAIRM~N: Well, the thing that comes out this
.24
way: There are three of us. I would go, as I said earlier,

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PAGE 51 would go for the elective route, one for the Missouri Plan, o,nd one member who chose t.o pass, since he's going to have to sit in judgment on this later. Nobody set any rules i by which this committee operates, but that does say that tllree of our six members presen.t, all, opted for appointment. And it would be my suggestion that we let that be our recommendation. I think the minority would feel free to speak,up at the committee meeting. And r'll make it a point that this be our recommendation and that this was not an unanimous thing by any stretch of the imagination.
MR. HILL: Would this be appointment along the lines of the Florida Plan?
CHAIRMAN: Well, I think that's the next thing we need to get at. Now, I believe Miss Holmes and. Mr. Williams thou0ht it should be appointment along the lines of the Florida Plan; is that right? I know that was what you said. Is that what you said?
MH. WILLIA~S: Well, I did.l' t have that pal' j concern. I di(1 not -- as a matter 0f fact when I made my observations earlier I was looking more or less at the credibility of that Board. Anything that we can do to enhance that credibility through some appointment system, I could support that.
CHAIRMAN: I have to say that the Florida thing looks awfully contrived to me. And to have a council --

!'.\ (;i, 52

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nominating council -- appointed in the way it's appointed,

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2

if you remember, the Speaker of the House appoints three,

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one of whom is a member of the House. The President of the

Senate appoints three, one of \>7hom is a member of the

5

Senate. And then three -- that's six -- appoints the oth~r

three. And they make three recommendations for each opened

office to the Governor. The l,overnor selects one and the

b

Senate confirms that. Now, I ask myself does that really

9

give us any better -- any assurance of better appointments;

10

that's what we're all -- that's what we're talking about?

11

(Pause. )

MS. HOLMES: In the final analysis, it comes

right back to the Governor because he has the choice of

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th~ee people. But he does only have a choice of three. MR. JACKSON: Those are screened. MS. HOLMES: Three. CHAIRMAN: Yeah. They've been screened. DR. WILLIAMS: Oh, they've been screened. So
his choices would be limited to those three? MS. HOLMES: Yes. DR. WILLIAMS: I'm not real sure whether
that's a better system over -- against what ha~pens now with appointments because one of the things that the Governor's Office does do with appointments is to ensure that every community is somehow polled to the acceptability

PAGE 53
or the n:-~--a~~~;~:bil-~~Yof those indiVi-d-~:~-:~-:~-:~:~---l

would be a broader acc~ss than a nine man committee. And

r don't know how that committee would go about making its

-,

recommendation. But I would opt for the broader view. I

do know that the current system of appointment does take

into consideration that local concerns to the extent that

one picks up the phone and calls -- and more than one

particular community.

MR. JACKSON: Can I ask Charlie one qu~stion?

o

CHAIRMAN: Yeah. Do.

MR. JACKSON: eharles, what are your thoughts

about some of the considerations of Governor Busbee on

t.his,not that it would control? I'm just curious. Does

the Governor want this kind of responsibility? Or would

he --

MR. TIDWELL: You notice I have been very

uncharacteristically quiet.

(Laughter. )

Ah, I couldn't presume to speak on what he how:

he would feel on this. Just some observations on his

appointments, the Governor's appointments. If you tie his

hands too unduly on some sort of nominating commission, it --

it is suspect in some areas because the Governor is going

to have to take the responsibility of -- of answering for

his appointments, where he really doesn't have that much

I' AC Ie; 54

control over who is sent up to him. Now, the way that's

2

dealt with on the Judicial Momination Commission, is that

3
the Governor appoints the members of the Commission. And

presumably he appoints people who he his confidence in,
5
whose judgment he, ah, respects. And, therefore, he's
6
presumably comfortable. They're reflective of his feeling.

And that's a helpful, ah, methodology for appointments. And

8
the Governor likes that. And his staff likes that.

9
MS. HOLMES: Of course, at times they're

10

uz

political appointments. That's why he likes it so much.

But go on.

MR. TIDWELL: Pardon, I didn't --

MS. HOLMES: No. And I said it a little low.

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Because -- I said because most of the time they're very politically oriented, his appointments. I have followed them too closely.
MR. TIDWELL: To the Commissioner that -MS. HOLMES: To anything. So if he appoints a commission, ah, you know MR. TIDWELL: Well, the Commission -- five of the members of the commission are exofficio members of the Bar, and then he appoints five. But that's a helpful process for the appointing authority, that sort of process. Ah, if the Governor gets
I mean pure unadulterated power to
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PAGE 55

appoint a member without any screening process, there's

a school of thought that feels that, well, you get a better

qualified individual than you do if the people elect. I

just wouldn't venture a judgment on that. But it is a

responsibility that I'm not sure tnat any -- given the

present climate in the State

that any Governor would

go out and seek to acquire. If it was given to him, I'm

Sllre h~ woult,l ~xerci.se that reSI)('")n,si:bili ty. But it \I'lould

be one that he would not relish. )\'1y experience dealing

with the Governor and his appointments, particularly the

Judicial appointment's because those are the ones that I

help him with, is that they're minuses for th~ Governor.

I~e r,lak~s one p0te11~ial nomin~e happy with all of his

supporters and four with all of their supporters are

disappointed. And so the numbers mount up against him.

And his position on new judqeships, whatever the General

Assembly wants to do, for him to appoint 'em or elect

'em, he cares not a wit. He'll do whatever they say. In

the past most Governors insisted when there was a new

judgeship that they be given the power to appoint. This

Governor -- if they give him the responsibility, he'll

exercise it. But he doesn't seek it. And I don't know how

he would feel about the Public Service Corrunission. That's

just generally his philosophy. If there are ten folks that

want the appointment and he appoints one, he makes all those

PAGE 56

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ten mad. And then if they don't do a good job, all the

people get mad at him. So it's a thankless- power of

appointment is a thankless position.

CHAIR}~N: Well, I think there's enough diversity

of opinion h~re to where we really don't have a concensus.

And I'll speak with the Chairman of our committee, Sidney

Smith. But it seems to me we're simply going to have to

report to that committee the options that we see available.

MR. SHEPHERD: Mr. Chairman, wouldn't it be

appropriate to say that a majority of the committee, ah,

voted --

CHAIRMAN: You see, that majority is divided as

how they'd be appointed.

MS. HOLMES: Y~ah, as to how it should be done.

MR. SHEPHERD: Well, I think just simply a

report though that the majority of the committee, ah, did

favor the appointing method. And, however', that there were

minority opinions expressed, one for election, one for

the Missouri Plan or the dual-election plan and leave it at

that for the full committee to pass 'ern.

CHAIRMAN: All right. We labored long over the

very first thing we ran into.

MR. HILL: I mean I don't know that you would want

to leave the language as is as the recommendation or --

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. CHAIRMAN: No.

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MR. HILL: In other words, what changes will we

make? This will be the proposal that goes before the

committee that they're going to be working from, because,

you know, they're at the point that they have to start to

generate a draft, you know,to go to the full committee.

CHAIRMAN: Yeah. Well, don't you think we say

appointed by the Governor with confirmation by the Senate.

But in my report I point out that there was a strong

feeling or there was feeling on the part of several members

of our commission who thought the Governor's appointments

should be screened before they get to him, that he should

appoint from nominees presented to him.

Now, let me say one other thing, that if we put

that in there -- and I think we need to add some language

which would -- where is it?

MR. HENRY: You would need to delete manner and

time of election.

CHAIRMAN: You would need to delete -- yeah,

that's -- that's housekeeping. And, Mike, I think we'd

trust you to do that. But, ah -- yeah, the last sentence:

"The qualifications, compensation, filling of vacancies,

manner and ti.me of election, powers and duties of members

of the Commission " I think you have to include there

also as is the case -- in the case of these other

removal from office. Yeah, removal from office. I think

you don't consider removal from office in the case of an

2

elected position, but you do in themse of an appointed

3

position. But that should be provided by law.

4

~ow, one other change that was recommended.

5

I don't say recommended. It was put in here by the staff.

b

Ah, the formal language was, "A Chairman shall be selected by

7 I:

the members of the Commission from its membership." The

8

suggested language is, "Each year the Conunission shall elect

9

one of its members to serve as chairman of the Commission

10

for the ensuing year." That goes further than the priQr

language in that it fixes the term of office, I guess, for

one year.

What's your feeling about that? Yeah, Mike, do

you have something to say about that?

MR. HENRY: I looked this up. A Chairman sex:ves

a two-year term.

CHAIRMAN: But that's under rules --

MR. HENRY: Statute.

CHAIRMAN: Under statute?

MR. HENRY: Yes, sir.

MS. HOLMES: Can th.~y btl' ;(t~ed themselves"?

MR. TIDWELL: They can.

MR. HENRY: It didn't prohibit

MR. TIDWELL: No. If you remember Commissionel."

2.

Wiggins held it for a number of year, Mr. Chairman

_.- .. .

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HS. HOLMES: Yes. CHAI~~: Well, my own reaction to this, I didn't see what it accomplished, really. I didn't find any fault with the prior language in there, which says t.:hat they elect from their O\t;1}1 -MR. HILL: This change was made by the Office of Legislative Counsel. I'm not sure if they had something in mind that we don't know about. But they won't object if we use the original language. MR. HENRY: You could possibly have that as provided by law since it is provided by law. CHAIRMAN: Select one of its members to serve as Chairman as proviced by law? MR. HENRY: Unless you wanted to engrave the Chairmanship into the Constitution so that you would need an amendment in case they wanted to change the, ah, the structure of the Commission to have -- say, two co-chairmans.: You know, I don't know what reason they would want to do that:
!
in the future. But if it's in the Constitution, they obviou$ly could not do that.
CHAIRMAN: Well, can we reach agreement then that this new sentence m~ght read, "Each year ---" No, you would say each year. Just say, "The Commission shall elect one of its members to serve as chairman as provided by law"?
MR. HILIJ: We can USe thecriginal language; "A

PAC;l-; 60

chairman shall be selected by the members from its

'"I

2

membership as provided by law."

3

CHAIRMAN: I think that's better. I really

4

think that's better.

5

MR. HILL: And th8 next question i8, do you want

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to provide for staggered terms for the first appointment and do you want to provide for six year terms, which is what you have now? As it is if the Governor is going to appoint them, you have to provide for staggered terms 01' you appoint all six at once and they serve concurrently. So, ah, that's the next question.
CHAIRMAN: I'm sure we'd want staggered terms, wouldn't we?
MR. HENRY: They're staggered at present to the extent that they can be.
MR. HILL: And six year terms would still be -CHAIID'1AN: I had a discussion with the Chairman about that six year term. And he acknowledged that some consideration might be given to a shorter term. On the other hand, a shorter term, particularly if you're going to appointment, could in effect make it more political, as you say, and the entire group might be appointed by one Governor now that a governor can serve for eight years. JviS. HOLMES: I think since it's such a complex,

ah, position to -- it might take a couple of years to really

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COURT REPORTER: Pardon me.

(Off the record at the request of the court

reporter. )

COURT REPORTER: Ready.

CHAI~~: I had no idea we would take two

hours on that one, but we did.

Pardons and Paroles. And they've given us two

options there.

MS. NONIDEZ: Excuse me. Mr. Chairman, I just

wanted to raise a question: Does this mean that you're

going to allow the present members of the commission to

serve out their terms or are you abolishing the old

commission entirely and then

CHAI&~: No, I think they'll serve out their

term. They were elected

We are given two options here. One is, essential+y,

the language that's in the Constitution now, and the other

is a short form which paraphrases the Public Service

Commission language. You might say that in each case that,

ah, the phrase at the beginning was put in there. And I

think we agreed that we'd probably be better off not to try

to justify these things. So weill eliminate that phrase.

If you want me to lead this off, my reaction from reading

the Pardons and Parole's passage in the present Constitution

--"-- ..--------. -----_.- - - --_.- - - - - - - . - - - - - - IT-----------------~----------

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P""CF: 62

:1

was that we undertook to tell them everything they could

2

do and couldn't do. And it just seems to me that "as

3

provided by law" is a pretty darn good way of doing this and

4

not having a lengthy thing where you finally start tripping

5

over your own language. And -- but that's only my view.

6

And I'm interested in the vie~ls of the members of the

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committee.

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Ed, what was your thought?

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HR. JACKSON: "As is" is cumbersome. I like the alternati.ve
CHAIRMAN: Miss Holmes? MS. HOLMES: I like the alternative CHAIRMAN: The short one? MS.HOLMES: Yeah. CH1URII1AN: Sid? '/vIR. SHEPHERD: I support the alternative. CHAIRMAN: Mel? DR. WILLIAJI.1S: I think ,"'e Cir n1cike it

19 I 20 2J
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unanimous. CHAI~~: All right. Let's look at the alternativ2 now and see i.t
there's anything in there. (Pause.) l\nc1 this last tient.enc,,;

is just \'lhat' s in the other provision of the other appointed

24

boards; isn't that right, Mike?

HR. HENRY: Starting with this first -- the fi.rst --

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PAGE 63

CHAIRMAN: Starting with the qualifications.

MR. HENRY: Right.

CHAIRMi\N: 1\11 right.

MR. HILL: There's one serious change now.

CHAIRMAN: Uh-huh.

MR. HILL: That we have mni t ted from the new

lAnauage, you ~now, the shorter version: Any reference for

mandatory sentence. And remember the discussion we had

,~ith -- at the last meeting that Justice Hill brought out.

His thinking in this area is that the present provisions

,,!hich require that if a person het s a -- has a sentence of

death converted to life imprisonment, that person must

serve a minimum of 15 -- a minimum of 15 years --

MR. HENRY: 25.

MR. HILL: Minimum 257

He felt that this should be

well, he felt --

I think he would feel that this should be retained, except

it should be changed t6 say that any life sentence, anyone

given a life sentence, must serve a minimQ~ of so 10n0 to

try to deter the imposition of the death penalty by the

jury, :because he was feeling that the juries would hear

evidence of some heinous crime and then under the present

system they could get out after seven years. And he felt

that, you know, if there was a mandatory sentence that it

",!ould deter this. So, that has been omitted from the short

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PAGE 64
version. A.nd I think it's samet.hinC] that you want to consider.
MS. HOLMES: Yeah, he was very firm about that. CHAIm~AN: I think he makes a good point. T recognize that it was omitted. I guess basically I'm a buck passer. And I'll pass on thqt one to the legislature "as provided by law." But is there a feelinq here that that condition, that provision ought to be in the Constitution? MS. HOLMES: I think the comnd ttee is going to put. it back in anyway. CHAIPMAN: Why -- what do you say we ask our staff to draft a sentence dealing with that alone and not wi.th all these othel" things that were in the old -MR. HFNRY: Mr. Chairman, I beJi.eve you're going to -- if you're going to do that., if you'ce going to draft a provision in there which provides for e ndnimum sentence for a person who has had a death sentence commuted to life, ah, it would just appear to me to look awkward -- not only look awkward but it would --: it. would not he consistent. I think if you're going to do that, in order to prevent what you're t.rying to prevent from happenin~!I you' re <J()in~J to have to have these additional provisions having to do with death with the sense of deat.h being ccmlffiut.ed to life and having a minimum of -- I was thinking it was ?S years.

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PAGE 65

MR. HILL: It was 15 in the original.

MR. HENRY: When a sentence of death is

commuted to 1 ire impl~isonment the board shall not have the

authorit.y to grant a pardon of a convicted person until

such person has served at least 25 years in t~he penitentiary.

CHAIm,mN: It's 25 yedrs.

MR. HENRY: All r ighL What ,Tustice Hill was

tryino. t.O qet at was thaI: by Rtatute yOll can get out -- if

YOll've heen conviete(t of. murder and the jury has not given

you the cleatll sent~rlce bu.t_ has y-iven you life imprisonment,

by stat.ute you could get ont in seven yc-:!i'trs. If they go

ahead and opt for the death sentence becftuse they know they

want to keep you in at least 25 ye.iirs t then that's -- Lhen that's given tll!~ facr. that your sentence is comn\l~ted to l.i.fe.,

t think this entire provision in he~e, if you're going to

put thE'" provision that. we're talking about in, it would have

to go j n as n package.

MR. HILL: Tsit the fl~eling of the comntit.tee

th.at this sentence should be th:\t when a person is sentenced

to )jfe ill\pri:'l()nnh~nt. (l(' when a d"'~ath se!lt.enc(~ is conm1uted to

life thnt then they w:ill hove to stay in for 25 y~ars.

C":HAI RiI1AN : 25 years.

HR. HILT. ~ 18 th.-'l.t t.hf-~

is that the concensus

of the committ~~?

rllS. Hn"rviFS: Wen, I think that -- IllY feeling is

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that this is very i.mportant to Judge Hill, who is -- Y'OIJ

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know, certainly k.nows more about i~ than I 00. And if i:his

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is what he feels is necessary -- .::'l.nd he fE~lt it 'Wn~;

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nf'cessary. I think i t was just som~h(,dy, Y01J know, ;-t l..C\y

5

person tellin(j ro'~ that. But I think a ,11(Jge say:inq :11

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makes you fee] like, well, mdyJ~ it is neCP8Srlry. Is ii

7

neceRsary?

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9'
The Parc10n and. Parole Board has only eornmutec1 one death
10
sentencE' in 15 years. And becau~e of the f;Jct that the

Constitution tried to Hay that they h~d to commute that

inmate's sentence, he had to serve 25 ye~xH, what did they

do? They commuted it to imprisonment. Not for life, hut

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99 yearfl so that that inmC\te could be considered for parole in seven years. It doesn't mean thAt he'!:l 90ing h, get out. 50 I -- I -- as I underst.ood ,Tustice Hill's posi t ion he haR '" feCt.r that j llr ies impose t.ile death sentence because t.hey, ah, are fearful that anything short of execution will result in that inmate beinq out on on the streets posRibly in seven years.
CHiURMAN: That was my tm<Je:rstanding. MR. TIDWELL: I don't know that you G<-tn st.<:nt i'it that point and get to his conclusion and say thCl.t. that -that that's the handle, that t;his addresses that. ptohlern. To

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out. '!'hey've only considered two death cases in 15 years. . They just don't come to them. They haven't as yet. They
will
MR. HENRY: Charlie, do you think it would be better to ask the Legislature to increase their maximum time served in the statute rather than address that issue in tile Const itution?
MR. TIDWELL: v7ell, I hat.e the way you have it here, drafted in this short form. The General Assembly is (jiven that opti.on to do what you -- to (10 what you have ~aid. And they have 0.1 n~ady address,~d th~"'msl~lves on that point. The people have. And said that's what we want. But there are ways to get. around what -- what that -- if it achieves anything.
CHA IRMAN: ~lell, let's go accllwd th.i 8 way Mel, wm.lld you opt for seeing SOllie such provision put t1\to the Constitution or would you ll~ave these things to the Legislature?
DR. WILLIAMS: I like i.t the way it is. CHAIRMAN: Clean an0 DR. WILLIAMS: I can yo with the way it is. CHA.IRMAN: Ms. Holmes? On, exCUSe me. Sill? MR. HENRY: The way it stonds?
DR. WILLTANS: No.
CEAIRM..i\N: The short form.

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MH. HILL: The alternative to it. MR. SHEPHERD: I think that's a matter that addr.esses itself to the Legislature. CHAIRMAN: Mis~ Holmes? MS. HOLMES: I do too. Now that T have hed.rd enough explanation. MR. JACKSON: I think W~' could make a recomrnendat ion instead of saying "The Board shalJ not have the aut.hority", just say "No person shall be" and then stick it over in the Judicial Ar.t.icle and let them worry about it. r'd pull it out of the Executive Article. MS. HOLMES: That one is never going to -(T.Jaughter. ) MR. JACKSON: I like the shortened version as is CHAIRMAN: Well, I think we finally are unanimous on one thing. We like the shortened version. I think we need to be responsive to Justice Hill. And we will tell him that we've considered that, but thought that it ought to be -Where would you put it? MR. JACKSON: I would just say, we could put it in the JUdicial. If we leave it here, I would ~uggest that we put it as a separate paragraph -- "2." The way itls in the Constitution it's a tremendously lon9 paragraph.

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PAGE 69 CHAIRl4.AN: Yeah. t-7ell, I think the general feeling is that we leave that to the Legislature. But I will make note of what! you have to say. Anything else in the Pardon and Parole that needs attention? MH. 'rID~1ELL: Mr. Chairman, just picky. On lines 16 and 17 it says the "effective date of this Constitution" -- you pick a date, January 1, '81 rather than that. MF. JACKSON: 'rhe Board consists of five members now? Is it five? MR. TIDWFLL~ Five.
MR. JACKSON: So, in effect, there would be no change. Couldn't you leave that sentence out entirely
since you'd. be going from five to fi\le? MR. TIDWELL: They'd probably want you to have
it in there, those five members CHAIRMAN: You need to amend the Public Service
Commission thing in the same way apparently. MR. TID'VELL: I don't think that -- it had a date
in there CHAIRMAN: No, it didn't. MR. HILL: ~fuat happened we had to keep the
people in office.

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CHAIRMAN: Oh, I see. Until they go out of office. I'm with you.
MR. TIDWELL: I may have to leave here in just a minute to make one of these political aI)pointmer~ts.
CHAIRMAN: All right. (Laughter. ) Ml~. TIDWELl,: And 1'11 leave t:he ,"urked up cOFY

MS. HOLMRS: I hope that doesn't ao in the

minutes.

CFP.IRJ'1FN: Okay.

~1S. HOLMFS: I'm makinq friends allover the

place.

CHP.IR~N: Now, we'll have a look at the State

Personnel Board. And, again, without 8bjection from tIle

members here we would delete that "in order to" phrase.

M~. HILL: Uh-huh.

CHAIRMAN: I raised one question. And, again,

this is the way it is in the Constitution at this time.

But when you say that State Personnel shall be selected on

a basis of merit. Does the word "selected" imply promoted

as well? Cause I think so this takes CJ.re of employment

and promotion. All right.

MR. LANGH&~: It does not address, though, ~k.

Chairman, the question of

termination. But I think that's

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PAGE 71
always been considered generally considered within their perview and certainly the General Assembly has made it within their perview in the last three versions of the Merit System Act.
MR. TIDWELL: This is the walking, living, talking expert on the Merit System.
(Laughter. ) He has to go to court with them all the time. (Laughter. ) CHAIRMAN: I wanted to ask a question. In the old -- in the present Constitution as provided by this rewrite there shall be a new, non-salaried State Personnel Board. bees the Constitution have to say non-salaried? It seems to me you might have a Personnel Board some day you want to pay salaries to. MS. HOLIvlES: And why not? The other two get compensation. MR. TIDWELL: They receive per diem only for the day they come to the Personnel Board meeting -- $44 and their expenses. MR. LANGHAM: I've always been a little bit bothered, Mr. Chairman, if I may, by the fact that it says "non-salaried" and I'm not really sure what per diem is. CHAIIU1AN: No, 1 1 m not either. MR. LA~GHAM: I thinkit woula remove any question

if you were to leave it out.

2

CH.AIRMAN: I think you could say non -- leave out

3

non-sala:r."ted, but in the catch-all thinl] "('l)mpensatioli ':i:':-

If

4.

provided by law." Per diem is compensation, isn't it?

MR. TIDWELL: Yes. I think that probably (JO~S

6

back to when this was created that it created the

l.lnpression that this absolutely -- public, service-minded

t',

people would serve here and it wouldn't be a political

plum and they'd make a lot of money off. of. Those principles

are pretty well-established.

You've got another one of those -- those picky

things on line 19. It says, "The members in office on the

effective date of this article " That ought, again: be

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changed to members in office on January 1, 1981. CHAIRMAN: Why not language in here like we have
in the others that deals with duties, powen,;, removal from office, those kind of things? I don't see it. l\m I

Ie;

missing something?

19

You see, in each of the others we ~ay that the

20

"qualifications, compensation, filling of: vacanies, manner

21

and time of election, removal from office, powers and l]ut_ie~

22

of the members including the chairman shalJ be provided by

,i

law." I~ there some reason why t.hat -- am I missing it

24

somewhere, Mike? Is it in here?

MR. HENRY: I'm sorry, what?

PAGE 73

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CHAIRHAN: We don't bave that catch-all

Lwguage in here about qualifications, compensai:ion,

removal from offir:e, filling of vacancies as provided by

law.

MR. HENRY: Do you have that in the present

Const i t.ution?

CHA IRMAN: I clon' t. think so.

MR. HENRY: I don't think we do. I think it 1s

provided by law.

HR. TIm-JELL: Well, if you put it in there it

doesn't hurt anything. If you put it in there -- in

sil""ncE" it. is under~toou thi'lt it will be as provided by

law.

CHAIRMAN: 'That being th~ caRe do we need that

provision in these other two?

MR. TIDWF.T..L: Not. re"t11y, in some o( them. If

the roost i tution just. d()e~m' t. address that i Rsue, then the

G~neral Assembly has that. inherent 1 i'l.1 thority.

MR. THOMSF:N: Charlie, isn't it. the pr.actice that

if there's no statute that's enacte~ to that effect that

the Governor can fill a uacancy under the other Constitutional

provision that we --

MR. TIDWELL: Yes. Yes.

MR. THOMSBN:

d j S(:ussP''1 t.he of-.hel" day?

CHAIRMAN:

,I---~------~~-~------------__--

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t.hat language out of all thcp.E! of U1Pse passa(~t~s?

] s L;H}n~

any problem?

T -- yOll know, illy !4p. 1 f i

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langlJ,age r you knot~ I t() me is helpful. ~n(l I tJlirlk i-t ~ ~~ (l

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hene:r<'l.l Assembly of whClt they I re supposed L(, dc, wi ttl r (~,:;r.)ef.: r

to this Board. I -- rather than take t.hem (II) i of tile ()t!~e!'

t,"!O, I --

CHAIRMAN: Put it in this one?

T-fR. HILL: I'd

into this one.

CHAIRMAN: Any objection to that?

(No' audible response.)

CHAlrn~1: Let's do it.

MR. HENRY: Mr. Chairman, I'd like to sugqest

that perhaps you could, ah -- I think I pointed out. )f1

rny memo -- we discussed it hriefly yeaterd~'_y. Perhaps you

want to dis<:=uss i.t now -- <lraw up 1 ike all introductory

catch-all which says, "This in effect shnU. apply to Lhe

Boards hereafter created. the appointments " Well, in

some of t.hem you would want to specify what -- how m..my

members and how many yea.rs they shall serv~. ligt the

powers, (luties, jurisdict.ion, compensat.ion. filling of

vacancies, et cet.era, shdJl be as provi<led by law t.o tht--

extent that you do want it provided by law. That coule,

perhaps cut down on your langnage somewhai:. And the., you

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woul t ln!t hnve t.o provide in each one that it shall be

f'rovi.d~d by law. They did something like

to that- effect

i~ 'n4 and '70 versions.

CHAIRMAN: MikA expressed that to me yesterday.

And my concern was -- well, I can't cite a case that at

SOille point i.n t.he future one boa.cd takeS a different turn

in wh<'lt it dC;AS and what's expected of it, and that common

lan9uagp doesn't apply. And then you've got to yo back to

thE' electorate to get that changed. Rut. T havA no strong

feelings.

Do the lawyers have any --

Yeah (indicating).

Tv'JR. THOMSEN: I know what Mike is referring to

in the 1969 versions. And I

T foun(1 j t to be JOore

confusing than actually helpful because there's an extensive

paragraph discussing all, thC'lt's entitled, "Continuation

of Existing Boards", which sets forth some of this

introdu0tory ~aterial. And I was a little confused the

first time I read it as to whether that applied to all of the

Boards that were then discussed specifically or whether

it was taking eare of something else. Tvty first reaction was

one of confusion~

.HR. HENRY: They had a problem there also with the

f<1.ct that two of the boards they were continninq were elected.

I mean one of the boards they were cont innintJ wag elected and

76

the other was appointed. J!._l1d they had to make that exception

2

in each sentence. But I just threw that.. out fox comment

3

that it could possibly be done that Wi:\Y since we are in

5
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effect going to draft a proposal which is going to provide for the appointment of all three.
CH~.IF.Ml\N: Mike, I don't believe your proposal drew much suppo:rt.
MR. HENRY: Okay. CHAIRMAN: Ah-MR. HENRY: All right. CHAIF.MAN: Now, I see one thing in the -- there

is a chairman of the State Personnel Board. I don't know

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how he got elected because it's not in the Constitution -"as provided for~' in these other two. And I wonder if it ought to be provided for in this one.
MR. HENRY: They elect a commissioner of the state Merit System, I believe.
CHAIRMAN: Well, I've got a letter from him. MR. TIDWELL: Chairman of the Board?

There is a chairman. I don't know how he <Jets
21
there.

MR. HENRY: Well, the con~issioner of the
23
Department is the only really head that I CoD find. He

serves as the executive secretary of the Board.

,1. ._ ....

~_.

MR. TIDWELL: He's appointed by the Board. That's

..

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the commissioner of the Merit System. I think Mr. Sterne

I

is talking about chairman of the Board.
I

CHAIRMAN: Yeah.

\

MR. HILL: We can

MR. LANGHAM: My recollection when they changed

chairmen -- and they've only changed it once in the past

eight or nine years -- was that the Board elected the

chairman. As a matter of fact, he ha~pened to have been

there the longest, but whether that's a custom or not, I

don't know. But I think he just serves -- fell in there

by seniority, if you will

CHAIRMAN: What do you think in the interest of

trying to be reasonably consistent we just say in there

that the Board shall elect from its membership a chairman?

MR. HILI,: It sounds

CHAI~AN: We don't even have to say the term.

(No audible response.)

CHAIRMAN: Ah, anything else now? Oh, well, we

haven't gotten to the Veteran's Preference.

MR. SHEPHERD: I've got one question there.

VietnaM was not an official war. And this refers to war

or the Korean eonflict.

CL'\IRMp):
."

Right.

,.

you just \N,-~nt '1:0 say "war" or

rieclaredconflict or war or recoqn~zcd c_o. nfl.i_.c... t? ._~

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MS. HOLMES: That's covered ~:;Latutorily. f',nc:

I think September, 1972 is the date they cut it off

July, 1973. I'm going on memory -- going on merno:ty is r.ot

good. It is when they had decided that the Vietnam cc,rJ1.let

ended. So that's what they use as the cut-off date. Anybody

serving after that, you know, enlisting or heing drafting

after that is not considered in the war or Gonflict, so would

not fall into this.

MF. JACKSON: If we had a future conflict, what

would happen?

MS. HOLMES: Well, of course, my whole thinking

about this veteran's preference -- and I'm so glad

Representative Wood isn't here to hear me say this

is

that it doesn't belong in the Constitution. And there WaS

feelings from the Board members of that that there should

be some kind of preference -- veteran's preference, but that

it should not be, ah, you know, put into the Constitution,

and that there should be some exceptions; for instance, a

military man whose life -- whose career has been the

military should not be given this break. They felt very

strongly about that. The whole Board ag:reed that anyone

who has spent 20 or 30 years in the military and then

resigns shouldn't be given five points on an examination.

CHAIRMAN: Well, that raises another question.

veteran's Preference doesn't give any great problem to me,

PAGE 79

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with ten percent disability get ten points on his

examination and any veteran gets five percentage points.

Now, we want to do things for veterans, but we're talking

there about eligibility for -- or degree of eligibility for

a job in some branch of the state Government. i\nd I -- I

this -- I don't know. I guess I was in business too long.

I really don't see how

how we could suffer that.

MR. HOLMES: I think that the purpose of this,

the thrust, was to assist people, ah, men, who, you know,

whose life was interrupted. And I -- and I, you know, I

completely agree with that. My husband was, my brothers

were, all of that stuff. But 110t someone who has -- who

has chosen that as a career and hal:' benefited and then is

on a pension and goes and takes a state exam and ~Jets an

automatic five points.

CHAIRMAN: Well, we've probably touched the most

sensitiv(~ i~sue that we've seen this afternoon. Ana I've

had more correspondence from the veteran's service people

than anybody else

MR. THOMSEN: I was ju::;t going to say, it should

b~ c:larified thii.t .it's points that are added to a passing
I
Tt's my understanding front reading this that the persrn

unl ess -- the vetE':ran, nnless he receive,l a passing score in

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the first instance, would not receivE-' the extr-a boo:::>t.

So, at least, thl~oretically, this person is qualified for

the job under the Merit System, I would think.

CHAIRMAN: Albeit, perhaps, lessqualifif'><.l.

MR. THOMSEN: Yes, :relati ve to other peopl e ""ho

also passed, might be less qualified a<.:cordineJ ttl tik

test But nevertheless, passed the min irtlum requ lref\lent~

set by the State Merit System

MS. HOLMES: Incidently, when I mentioned thi8

to the Board, they were surprised to find out it wasn't

in the Const,i tution because they thought it was a11

covered statutorily.

DR. WILLIAMS: Could you tell Ttle which board

you're referring to?

MS. HOLMES: Personnel Board.

CHAIR~rnN: She interviewed

MS. HOLMES: See, that was my -- my homework.

This comes under the Personnel Board. T Lhought it WdB

go.ing to be a real dull one until I got to i.his one.

CHAIRMAN: Was it your -- yeah. Was it yonr

feeling that that Veteran's Preferenee r whole entire paragraph,ougl1t. to be out of the Consti tilt ion?

MS. HOLMES: But maintained sOlltewlif.:"r:e. I'm 00\"

abont t.o throw mysel f to --

CHAIRMAN: Yeah, you'd haaY: f,om them

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PAGE 81

!'-iF. J.JANr:HA~l: Mr. Chal rman, there is nnot.her Vet~ran'5 Preferen~e aspect that is not covered by the

l

,

COtlstiiut-.inn Lhat i 8 <'lpplied hy Ule State Per!';,")nnel Board.

And th ls m::.=ty be why t:hey were confuseo. There is by
I
jvl<?ri t. Syterll Regulation nO abeolute preference fl)) vpterans

""hell fh(~y l~educe employees. And if ihere is a vf-d.er-an

\vhn i:~ performin;) satisfactori.' .. , '.:.hat veteran is retained

aCl(l '''In-''et.eran~ are r i f'tf-!cl or reduced in force.

CHA l Rivl.l\N : That':=; stCi.tute?

Yes.

Hr<.. LANGHAM: Ry relj1J.l <\ U.on of' the iv1:er i t Systellt.

An~ we are currently in litigation over that.

"";'IS ctr<nJea in the Supreme Court last week.

CHAIRMAN': ~'ihat' s your Eeplinq about ihe Veteran's Preferen~e being a part of ~he constitution?

MP, .JACKSON: From 1.'!hat I und'rst~.nc1. 0f Vietnam

veterans, they're not so much intere~ted in that hilt. in the

I~nefits that go along with being -- edurAtion benefits.

T think it's time that we could take it out. Bl1t tf\ke it

out of this article.

nR. WILLIM1S: Well; in that T'm one of those

t/::'n point veter~ns. I rf:!ally don't havp. a feel on that.

An(1 T ~uspect I would just pass on th,'lt vote. I've u8ed

; t (iTJCI T Ilnder.:'st:i'tTld how i t ' s appl i~..'d.

PAGE

MR. SHEPliERD: Well, 1 wo\.I],1 be in [avo.: of

leaving paragraph two, "Veteran's Preference" through line

3

6 on page 6, which would just simply give the power to the

4

General Assembly to enact any -- any veteran's preference

5'

that they saw fit and not try and go further to define it.

I mean just give the power to the General Assembly. This

7

way it would soothe a lot of feeling feelings knowing that

veteran's preference was still left in there.

9

CHAI~..N: That 's a good suggestion I I think.

10

Miss Holmes?

11 iX ."':..-..'

MS. HOLMES: And -- no, I just don't think it's

a place for it. It's not even on the merits of the veteran.

I think it's -- part of it is already covered by regulations

and I don't think it's necessary. And I think our purpose

1:- .....'
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is to rid the Constitution, not to keep things -- and let's face it, it was put in here in 1945. And, you know, they're

17 "co- worthwhile, but we're not in 1945 anymore.

Ix

CHAIRMAN: Your comment would apply even to those

19

first six lines that says --

20

MS. HOLMES: Yeah, because I -- I have the

21

understanding the -- that the General Assembly has that

2::

power. Is that right? That you wouldn't need this part of

.~3

it in order to give the power -- to empower the General

24

Assembly to make, ah, a veteran's preference, you know, abou~

veteran's preference. On page 5, line 34, deesn't -- isn't;

LL __. ~

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PAGE 83

-~~~ak~-~ny the General Assembly already empowered

lawtshe-m-l

MS. NONIDEZ: As Sid pointed out, it gives

I the power. I think what he's sayinq is that, you know, by

leaving -- by staying with those first six or seven lines I

'

that you -- you know, you may avert this --

I
I

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CHAIRMAN: Recognition.

I

I,

that you ma:S~a::~I:::~rw:::h:~ taki::i:t~::~ical problem I

)

MS. HOLMES: No, we're saying we want to do what Ii

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is the best for the Constitution. And I realize you're gOint

~,

'f

I I ;:: to get your heads bashed in, but that's what makes it --

!

CHAIR1'1AN: Let me say it doesn't ~rouble me that

we recognize veterans in the Constitution. I think it's a

pretty good place to recognize veterans. And that's all we
""
do with those lines, through line six. We don't tell any-

ju ~
,

body how to give 'em preference. We just recognize that

:0 veterans may be entitled to the preference.

MS. HOLMES: I think that's a feeling than

anything else. But, you know, everybody has their opinions.

CHAIRMAN: Well, I think -- yeah

..

-I

MR. LANGHAM: Mr. Chairman, can I -- could I

)"
anticipate a lawsuit? Ah, assuming you take out all referen4e

to veteran's preference and assuming that you leave in that

state personnel shall be selected on the basis of merit,

,

!
~ fitness and demonstrated ability according to law, if the I
- - - - - --- ------- - - - - - - - - - - - -- ---------- ----- ---------

_ .._--------._- -

PAGE
- -~-----------

84

General Assembly subsequently enacts legislation giving

veteran's preferences is that legislation running contrary

3

to the language in the Constitution?

4

CHAIRMAN: It's in conflict with this. Yeah.

DR. WILLIAMS: The preference is not absolute.

MR. LANGHAM: My suggestion is that -- that if

7

there is a reference to veterans -- reference of some

sort in the Constitution -- then that problem is eleviated.

9
CHAIRMAN: Miss Holmes, I think the sentiment

10
out votes you on this one. But if anybody doesn't under-

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stand it that way I'd like to hear from you. MS. HOLMES: I'm very used to that. CHAIRMAN: I doubt that. I doubt that. All right. Anything else on personnel? (No audible response.) CHAIRMAN: If not, we -MS. HOLMES: Would you all go -- well, then it
wouldn't have -- no, go ahead. Are you recommending then that, ah, it just stay in until line six?
CHAIRMAN: six.

21
MS. HOLMES: Okay.

22
CHAIRMAN: Through line six.

23
Ah, the committee, the whole committee, asked us

2~

to have another look at veteran's service board and

!

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I
transportation, have another look at retaining as constitutirlal

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boards.

PAGE 85
l

MR. TIDWELL: Can I make a picky point before you\
!
get into that?

CHAIRMAN: Sure.

MR. TIDWELL: On page 5, line 30, when the

constitution ",as revised this question was addressed every

time we thought that we could find it where it says, "Shall

be filled by appointment of the Governor." That's been

changed to fill by appointment by the Governor so it doesn't

imply that, ah, that somebody appoints the Governor to

fill that. And if that's worthy of changing, it would be

consistent elsewhere.

(Laughter. )

CHAIRMAN: All right. I have -- as I say, we

were asked to have another look at the veteran's service

board and the transportation board -- the Department of

Transportation. I have received communications with respect

to the veteran service board. The only communication I

received about the Department of Transportation -- did I

give that to you, Mike?

MR. HENRY: I think -- the ones that are right

there are the ones you gave me yesterday.

CHAIRMAN: Well, let me see. I'll find it.

i

i
(Pause. )

CHAIRMAN: Well, put it another way. Had - no ~I

c,---.. - -.. - . . _ -.. .....- . - . -....- - .. - . - - . - - - - - - ...

PAGE 36

communications from anybody saying that the Department of

2

Trans -- the Transportation Board ought to be a

3

constitutional board. I don't attach any significance

,I

to that because I'm not sure that the Board kno\\rs this

5

consideration is being made. The Board knows because one

6

of our members cal1'-I~ I." . Hon~land -- the chairman -- to

let them know that we were looking into all of this, and

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that our responsibility was the revision of the Constitution as it dealt with boards and commissions. But, at any rate, we haven't heard anything from them. Now, we've heard from -- well, Mel, called on and met with members of the board and commissioner Wheeler. And they expressed a strong feeling that the Veteran's Preference be maintained in the Personnel Board passage, and that the Board of Veteran Service be maintained as a constitutional board. I then heard from Wheeler directly and attached to his letter was a resolution, which resolved that the Board of Veteran Services call on members of the constitutional revision committee to maintain the Board of Veterans Service under the protected umbrage of the Constitution. I then heard from the Department Commanders Conference, and this is the head of the American Legion, Head of Amvets, Head of DAV and tee head of VFW and they make an impassioned

plea. Now, I guess yeah. That was all I heard. We did

LL__h_e_ar at_ the m..e. eting of the whole co.mm.i-t.t-e--e-,-.. -so-m-e-m-e-m.b-er.-o. - f ~I

__ . ------_._ _. ._.. __._--_._-
r~- that~~:~t~=:.-----~~--~--didn't identify him.

PAGE 87 He got up and

II

=11 said that he thouglf\:. the matter of retaining the Veteran's
;1

I
'\ Service Committee as a constitutional board ought to be

.[

reconsidered. I -- do you remember who that was?

,I

MR. HENRY: (Inaud ible)

(J

CHAIRMAN: All right.

But I read the Constitution, as I'm sure all of

you have, and what it says about the veterans service

board. And the only thing I saw the Constitution gave

them really was, ah, the power to appoint a director. It

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looked to me like everything else was as provided by

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Smith said before he left, that nothing in what I read

served to change my mind that either one of t~ese boards

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should be retained MR. HILL: Mr. Chairman, I want to report that
one of the questions that came up at the full committee

meeting was whether or not any funding would be jeopardized

if this were chang~d, because we heard some report that
I
federal money -- we could lose federal money, you know. And

.;..1

I checked with Pete Hackney, who is with the Legislative

,) Office, and with Clarke Stevens, who is with the Office of

Planning and Budget, and they couldn't identify any federal

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

PAGE 88

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contracts on a number of facilities that they have built or, you know, leasing. So there's a contractual arrangment. An~ so that's what he was fearful of if this should be changed to a statutory board. Then the General Assembly could at that point abolish the board if it decided to. And if it would abolish the board then these contracts would be jeopardized. So -- the fact is that, ah, these contracts would not be jeopardized by virtue of this board being carried forward as a statutory board, unless the General Assembly would come along and change something. But, you know -- so, just to make a report on what you know we've been able to do.
CHAIRMAN: Well, what's your feeling about it? MR. JACKSON: I haven't changed at all CHAIRMAN: Miss Holmes? MS. HOLMES: No. CHAIRMAN: Sid? MR. SHEPHERD: I haven't changed. CHAIRMAN: Mel? DR. WILLIAMS: Well, I don't think that ~he documents I received supported the view that they would be damaged by it. CHAIRMAN: We'll go back then~.__ .__.T~.h~e recommenda-t--i-o..--n.J

PAGE 89

is still that these three

MR. HILI.: Now, the transportation board we

,

haven't -- that was veteran's service.

CHAIRMAN: Well, I was trying to make reference

to both, but maybe we can deal separately with them.

Was -- did your comment have to do with both?

7

MR. JACKSON: With both.

MS. HOLMES: Both.

CHAIRMAN: So we -- we -- the distinction I drew

was, we got a lot of comment about the veterans service and

we didn't have any from transportation. I have no doubt

we'll have some when they find out what we're about.

(Laughter. )

CHlIIRMAN: Well, is there anything else this

, (..c
, i) ,.,
"
,7 C( ,~

committee needs to do this afternoon? (No audible response.)
CHAIRHAN: Mel?

MR. HILL: Not to my kno\-rledge. We'll prepare

a progress report to the full committee from this committee

with your draft recommendations. And we have a few

editorial changes to make. But that will be your report.

CHAIRMAN: I thank all of you for being here.

(Whereupon, the proceedings adjourned.)

p---_._----------(I

PAGE 90

C-E-R-T-I-F-I-C-A-T-E

2
STATE OF GEORGIA)

3
COUNTY OF DEKALB)

4

'I

I hereby'certify that the foregoing

:,

is a true, complete, and correct transcript

(,
of the proceedings taken by me in the proceedings.
-,
I
aforesaid.

q

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This the 8th day of November, 1979.
A...~~~,~
'David A. McMillan Certified Court Reporter
C.C.R. B-423 (SEAL)
-000-

19 20 21 22

INDEX Committee to Revise Articles IV and V Subcommittee Meeting Held on Oct. 17, 1979

SUBCOMMITTEE MEETING, 10-17-79

ARTICLE IV: CONSTITUTIONAL BOARDS AND COMMISSIONS Proceedings. pp. 2-5 SECTION I: PUBLIC SERVICE COMMISSION Paragraph I: Public Service Commission. pp. 23-61

SECTION II: STATE BOARD OF PARDONS AND PAROLES Paragraph I: State Board of Pardons and Paroles.

pp. 61-69

SECTION III: STATE PERSONNEL BOARD Paragraph I: State Personnel Board. pp. 70-84

SECTION IV: STATE TRANSPORTATION BOARD
Paragraph I: State Transportation Board; Commissioner. pp. 6-17, 84-86, 89

SECTION V: VETERANS SERVICE BOARD Paragraph I: Veterans Service Board Commissioner. pp. 17-18, 26-27, 86-89

SECTION VI: BOARD OF NATURAL RESOURCES Paragraph I: Board of Natural Resources.

p. 19

ARTICLE XI: MISCELLANEOUS PROVISIONS SECTION I: MISCELLANEOUS PROVISIONS Paragraph I(b): Continuation of officers, boards, commissions, and
authorities. pp. 5-6, 18-21 (Board of Offender Rehabilitation. pp. 5-6) (Board of Industry and Trade. pp. 18-21)

2
3 4 5 6 7 8 9
10 Czl
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12 ~
~~ r~ ~ ! 14 .... VI <l :J: 15 ~ Cl '"::> 16 .~.. Q Z 17 <g;l 18 19 20 21 22 23 24
25

PAGE
S~ATE OF GEORGIA
COMMITTEE TO REVISE ARTICLE':3 IV 1',ND V of the
CONSTITUTION OF GEOR~IA
[(oom 402 State Capitol Atlanta, Georgia ~)Gc"inesday, October 31, 1(79 9:00 a.m.

PRESENT WERE:

2

COMMITTEE MEMBERS:

3
4
5
6
7
8
9
10
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12 ~
~@F~' 14 ~ lV> 4 J: .., 15 .!) 0: ;:) 16 ~ Q z 4 17 ~

JUSTICE HAROLD HILL, CHAIRMAN MR. DAVID C. GARRETT MR. THOMAS J. HARROLD, JR. REPRESENTATIVE THOMAS BUCK MR. EDWIN JACKSON DR. FRANK GIBSON SENATOR JANICE HORTON PROFESSOR MELVYN WILLIAMS MR. KENNETH ENGLISH JUDGE SYDNEY SMITH
SELECT COMMITTEE STAFF:
MR. MELVIN HILL MS. VICKIE GREENBERG
OFFICE OF LEGISLATIVE COUNSEL:
DR. CYNTHIA NONIDEZ MR. VIPLYN SLATON MR. SEWELL BRUMBY
OTHERS~
COMPTROLLER GENERAL JOHNNIE CALDWELL MR. GARY JENKINS DISTRICT ATTORNEY WILLIAM LEE MR. TOM THORNE-THOMSEN

18

19

20

21

22

23
24

25

PAGE 2

PAGE 3

PRO C E E D r N G S

2

CEf'..rill1AN EILL: vlhy don r t i"re ']0 ahead and qet

3 started. I think SOMe others will be corning in as we do.

4

Comptroller General Johnny Caldwell will be with

5 us this morning and discuss his 0.fJ=.j.'.:1C8. !'ir. Caldwell ran for

6 and was elected to this office, he took office in January,

7 1971. Prior to thut time he was in the General Assembly

8 representing first Upson County and then District 45 or some

9 such.

10

IE?. CAL Dt.\TELL : Thirty-nine I thi.nk was the first

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11

I-
.'"o".".

District

nnmber.

12 ~

CrIl\.tHMl\N HILL: The numbers changed quite a bit

~r~ ~~ during those vears.

14 ~ l-

[:n. CJ1.LDhTELL: Fifty-one whenever I left l I believe.

V:-<>r

15 ~

CT'\IRMAN HILL: Due to re-apportionment.

Cl

:'>"

16 .~..

Perhaps nne thing that I might say that will be

c

Z

-<

17 ::; both pleasing to him and he would llke to have you know is

18 that his son'is a District Attorney and doing a really out-

19 standing job. And with that, Mr. Conunissioner, I'll turn it

20 over to you.

21

HE. c.n.LDI'IELL: Ladies and. gentlemen, Judge, I thank

22 you for the introduction and let me say that the letter that

23 I receiver! s~id that you wanted to know the functions of the

24 office, the agenda B~YS elected or appointed. Now do you

25 Lead to know somethin9 about the functions of the office? If

PAGE
rr-----------------~--
so, Judqe, I will go into it briefly or as deep as you wonld

2 want me to do.

3

Cm\Il?J.'1l'1.N HILL: I think our primary concern is

4 whether the office should be elected 01" a':.)pointed r and to the

5 extent that the functions of the office relate to that

6 question, we certainly would like to know about those functiol1r.;

7

All right. Hell? let r~e say <>.. t

8 the outset that there are eleven people that serve in -- let's

9 say that serve as Insurance Conunissioners and other thin~-rs as

10 well in the nation, including Georgia. The tenure of office

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.11

...
".o..

of

the

elected people

is

far

greater

than

the

appointed

~ 12 ~ people. If you will note from the most recent study done 1:>:1

~F~ the General Office of Accounting of the federal ~:rovernment,

! 14 ... they make a statement in there that the tenure of the elested

:'<"rl

15 .:l the tenure of Cornmissioners continues to Jeteriorate. They

Cl

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16 ~... say that out of only seventeen states that they studied, that

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17 : the tenure of service now is less than three years. It's

18 my understanding from other sources that the national has

19 improved, that it was a few years ago about six months, it has

20 now improved to somewhere, nationally I think, about a year

21 to eighteen months.

22

Now you h~ve to take into consideration my nine

23 years of experience. During that period of time we have hau

24 some Commissioners that had -- elected. Commissionc~"s \."ith ,~.s

25 much as twenty years of service. And if you apply that into

PAGE 5

the total nwnber that you're using, you see, you've got some

2 COlmnissioners that just serve a short period of tLne.

3

For example, in New York during the nine years that

4 I have been in office, they have either had five or six

5 Commissioners. :Nmv at one time, New York was known as the

6 father state of insurance regulation. It is not any more.

7 Many of the states around us here that have appointed

8 commissioners, for example, over in ~labama I believe we've

9 got the fourth Cornmissioner there during my period of time.

10

Tennessee must have had at least a half a dozen

~

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11 Eo durinq- that period of time. South Carolina has got the l1.
12 ~~ present COTI\' EnSS. l.One. r tor t h e t.hl'.rdt 'uae. H . e ' seben J..n anl1 au t

~ ~ -_. three times. 'i'hey have had two other COlmnissioners I believe

14 ~ in between there or three others, I can't really remember. I


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15 ~ didn't go back and check all this, I'm going by memory on it.

0< :;)

16 '~" Kentucky has its third Commissioner since I've been in office.

17

z
'0"< Missouri

must

have

its

sixth

or

seventh

since

this

time.

18 Looking toward Mississippi, an elected state, itlR got its

19 second one but the reason that it has is that the Commissioner

20 moved up to run for another office. She would have been

21 re-elected because she was elected to the Lieutenant Governor's 22 chair -tollowing service in the Insurance Commissioner's office. 23 So that to me was an indication that she would have been

24
re-elected if s})e 'Nas elected to another post at the same

25 election in which she could have re-run.

PAGE G

You've got the second one in Louisiana, you've qot

2 the second one in Florida. Those three are elected states.

3 You've got the same Commissioner in Kansas, another electeu.

4 Washington, you've got the second Commissioner, but he had

5 served some sixteen or eighteen years. You've got the same

6 Commissioner in Montana who has been in for many years.

7 Oklahoma Co~~issioner had twenty-two or twenty-four years of

8 service and died. They've got their second one because of

9 death. North Dakota has its second one and I don't remember

10 what happened to the other Conunissioner, whether he ran or

I:l

Z

11

j:
..'o"....

not.

I just don't really remenilier, but I know they've got

@;I their second one since I've been in office. North Carolina has i j its second one and the reason for that is that the Cormnissioner

14 ~ had some roughly twenty years of service and did not choose
o~ :rn
15 to run again. That was the first year I was in office I I:l '"::::l
16 ~... believe, or the second year I was in office -- I believe it Q
Z
17 : was the second year I was in office.

18

Have I named eleven? I can't remember if I have

19 named all eleven of them, but that's generally what happens.

20

Now let's look at some things that caused the

21 appointive office to not serve too well. The most recent 22 thing that happened in Kentucky is that -- that is appointed 23 by the Governor dnd nm'l the Grand Jury up there, accordiWi to 24 the press and you've read it like I have, has been investi25 gating the Governor and the Insurance Commissioner allegedly

PAGE 7

had been allowing some indiscretions in taking insurance

2 licensing exams for people that were going to get the State's

3 insurance business, tied back into an administration that has

4 the patronage side of it.

5

California has a fine, distinguished Insurance

6 Commissioner out there, he being the fourth one since I've

7 been in office, but he is a very good Commissioner. He was

8 appointed by the Governor and confirmed for a period of years,

9 up to the time that that Governor had to rerun and those

10 things expired at the same time. He has reappointed him but
lz.7
11 ~because of Ms. Fonda, who is interested in a post out there
.o..
9 . -. ~ ~ ~ 12 ~that the Senate wants her to have and the Governor won't appoint her. they won't confirm him, 50 he' 5 5itting there

14 ~sort of as a lame duck trying to run a large department in

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15 .:> that state.

l.7

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16 ~

Many things of that nature I could sit here and

Q

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17 g; relate to you that has caused a terrible thing in the

18 appointive states.

19

I think that a look at what really happens as far

20 as service is concerned, the elective states are the ones

21 that have the best system of monitoring claims for the public.

22 I think that could be established by a casual look at the

23 records.

24

The General Accounting Office said that those states

25 that had strong consumer divisions or claims handling divisions

PAGE 8
appeared to be doing the best job of monitoring the actions

2 and service of the companies by going through these claims.

3 For example l in my office just last year the Claims Division

4 handled 101,900

let's see, 101,964 claims. That does not

5 count tile ones in the other divisions, for example the rating

6 division must have handled, oh, I'd say ten or fifteen

7 thousand but they are having to do with answering questions

8 about rates and we don't put them in because that's not really 9 the kind of claim that we speak of when we say that we're 10 trying to handle claims for the public. Because a person

doesn't understand how rates are made is not really a claim,

it's an explanation l or they don't understand why their rates went up or if they were entitled to go up. So we don't

include those in the handling of claims.

Now the Claims Division, when I went into office,

the year before had handled something like 14,000 claims. So

in that length of time you can see how it has expanded to where

18 i t is today.

19

I feel like that an individual that is elected by

20 the people certainly has a closer tie to the public out here

21 and is going to do a much better job than a person that is 22 appointed by a Governor or by a Board and he owes his

23 allegiance to that Governor or to that Board only. He 24 doesn't care what the public says because they can't fire him. 25 It depends on how well that Governor does if he's going to be

PAGE 9

re-elected as to whether that man is going to stay in office.

2 It doesn't make any difference what he does to the public.

3

Now I understand that you could say well, we've got

4 some appointed offices here that we have to -- the Governor

5 surely tries to make them do exactly right. That's true, but

6 you just think of all of the complaints that you've hear~

7 about Revenue Commissioners and taxes over the years, even

8 some scandals in years gone by, but it never did affect that

9 Commissioner of holding his job, did it?

10

But if you have problems with an elected official,

~

Czl
11 ~ the public has a way of asserting their strength and getting
o
l1.
12 ~ rid of people. I am a firm believer, after thirty years of

~ -~'I servi ce around gove rnment , that the public, wh ile they may

14 !make some mistakes in their elective powers and elect some lV:r>
15 ~people that don't turn out well, the record far outshines that Cl '"::I
16 .~.. of appointive. There are far more people that don't do a
az
17 : very good job that are appointed than there are that are

18 elected. So in my opinion, the public does a much better job

19 of selecting office holders than do people that have the

20 authority to appoint.

21

This office was created -- the Comptroller General

22 was created some hundred and seventyOeight years ago, I

23 believe, and it was made a Constitutional office about, what

24 '61, a hundred and eighteen years ago, and it has remained so.

25 With reference to the kind of service that it has done since

PAGE 10
it was created, there have been additions to it all along.

2 You well know that originally it collected all of the revenues

3 and looked after the expenditures, taking over from the

4 auditor. Then along came the property tax and -- '31 -- I

5 don't know, wheneve~ they put in a property tax, I don't

6 remember the date now, but whenever it was that was added in

7 to the Comptroller General. Then in '87, the Insurance

8 Department was added, was created and put under the Comptroller

9 General. So it has been an office that has taken on many

10 duties. In 1955 we passed a law -- I was in the General

z~

11 ~ Assembly at that time -- and created the Industrial Loan

f

~---. ~ V

12 ~ Division. Because of the allowing of the lenders to take

from the borrowers insurance policies as collateral or part

14 ~ of the collateral for their loan, it was felt that that was ~ ~ %
15 ~ a proper place, because that was going to be a large part of
~
~
16 ~ the supervision and the Insurance Commissioner was the proper
zQ
~
17 : person to supervise it, and that's where i t has been. Like-

18 wise, it is in the same place in many other states -- not all,

19 of course.

20

Then along came the time to regulate the mobile

21 home industry. There was no real close tie to that except

22 that the Fire Marshal's Office, which does have a close tie 23 and was put in in 1949 after the Winecoff fire, the General 24 Assembly saw fit to put the mobile home division in the Fire 25 Marshal's Office because of the engineering staff that it

PAGE 11

already had to have and nobody else had that sort of staff.

2 So it fit as a logical part then. Of course, as you well know,

3 three years or four years ago the Federal government came along

4 and preempted all of the laws of that, but we now do it under

5 contract, which has nothing to do with this office, whether

6 it's elective or appointive, but I'm telling you some of the

7 duties and how the office has been expanded and why you've got

8 some of these things within the office.

9

With reference to the change of name in the office,

10 I don't suppose that I would really argue with you one way

Czl

11 ~ or the other; however, I would point out that if it has served

.o..

@ ' V

12 ~ well as the Insurance Office for 118 years, there's got to be

~F ~ something going for it. It just can't be that it has been

14 ~~ accidental tpat it has done well. If we are coming in contact,
':~z":
15 ol) through claims alone, in excess of 100,000 people each year, Crr:l ;;;)
16 ~ they're not having much problem finding out that the
Qz
~
17 ~ Comptroller General's Office is the Insurance Commissioner.

18 Now we feel

I feel personally

that the name should not

19 be changed. I think that if you want to change for the sake

20 of change, sure. I mean, I can see that you would be doing

21 something just to say we changed the name of it, but to say

22 that you have improved the lot for the public, absolutely not. 23 And the records are printed, they are in public offices for

24 review to show that the public does know what it is, or there

25 would be no way for us to have that kind of communication with

PAGE 12

the public unless the public knew what office it was. During

2 the period of time that I've been in office, I think the

3 records will show that we have handled totally, in all of

4 the departments, something in excess of two million claims for

5 the public. That's all of the divisions now. And that, up

6 until the recent population explosion, was half of the

7 populace. Some of them of course was twice, some of them

8 might have been half a dozen times, but at least the people

9 themselves know what the office is. I don't recall there

10 ever having been any great furor with the name or the title

~

e"z
11 Comptroller General being on the ballot, that they didn't
..o.... 12 ~ know who it was. I know tht three times that I've been elected

~ ~ _ . I certainly had to talk about the ins urance s ide of i t becaus e ,

14 >~1 as you know, we've had nothing but inflation since .I've been
':<"rl
15 ~ in office and rates have gone along with groceries and I have
<E
;;;)
16 ~ to explain that very thoroughly out there and there is no
cz
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17 ::; question but what they know who it is and what job you do.

18

If you think that the public doesn't know, just

19 let somebody introduce you as Comptroller General, which is

20 a thing that happens quite often, and you have a question and

21 answer period at the end and there won't be one single

22 question about the duties of the Comptroller General most

23 likely, but there'll be a dozen or more about insurance. So

24 they know who you are, the public does. Now if you walk

25 down here on the street and stop the first ten people and say

PAGE 13

what does the Comptroller General do, I don't think he could

2 tell you every time, but I'll tell you what you can do, you

3 can let that fellow get a claim and he doesn I t have any

4 problem finding you, not one bit.

5

Apparently Florida doesn't have any problem --

6 well there's about half of the elective states that are elected

7 as some other title, that's the Treasurer down there.

8 Washington State is I believe auditor, I think Washington State

9 is auditor. I can't remember what some of the others are, but

10 about half of them are elected as Insurance Commissioner and

~

"z

11 :;: about; half of them as something else.

."o.".

12 ~

I am firmly convinced -- now let me say this to you

IF ~

~ people and I don't know how many of you -- there's some in

14 i~= here that know -- under the Retirement System in the State of
I:zII:
15 ~ Georgia, if you were to make this an appointive office, you
Ill: ;;)
16 ~III would be doing me a big favor because I have my time in.
z
17 ::; They would have to project my age up to, what I think, 65 and

18 that is a few more years. But I am telling you as a citizen

19 of this state and a man that has served in government for a

20 long time, in and around this government, the general public

21 is better served by this office remaining as an elective office.

22 I just cannot believe that we would want to go through the

23 throes of what is happening in other states with appointive

24 people to serve. I honestly and sincerely urge you to continue

25 this as an elective office. I would encourage you to maintain

PAGE 14

its name, but if you feel that you have to do something to

2 show some change that you made, I would certainly encourage

3 you to make it the name change rather than the title change

4 the form of getting elected or appointed. I do not think that

5 the name should be changed and I have so stated and I have

6 given you some of the reasons. I will try my best to answer

7 any questions that you have. I very well may not have the

8 answers but I can certainly try to politely say I dorrt know

9 the answer.

10

CHAIRMAN HILL: Anybody got any questions?

1:1 Z
11 ioca=oIM

MR. JACKSON: I've got a question. Did I infer

from what you said with reference to the Revenue Commissioner,
@ ; j that that office also should be a constitutionally elected
~ 14!!;; office?



:a::

15 .:l

MR. CALDWELL: No, I didn't say that, I was just

1c:o1

;:)

16

~
1ozM

using

that

as

an

example

of

an

appointive

office.

17 :

MR. JACKSON: What criteria could guide us in

18 determining which Commissioners -- Commissioner of Natural

19 Resources, commissioner of Revenue, Commissioner of Human

20 Resources -- should be constitutionally elected and which

21 should be appointed? Are the problems you're talking about,

22 are they specific to the insurance industry or are some of

23 the problems you're talking about, the turnover, is that a

24

MR. CALDWELL: Let me say this to you, that in the

2S office, in the Insurance Commissioner's Office, in everyone

PAGE 15

that I know of both in this country and in similar posts in

2 some other countries, there is wide discretion, and there has

3 to be wide Giscretion because there is no way to write down

4 into statutory or into regulations -- morning, Billy --

5 everything that is going to come up. So there's a lot of

6 latitude and you have to have a person in that office that

7 has the confidence of the public, or you should. And in the

8 appointive offices you don't have any continuity. In other

9 words, the interpretation or the discretion that is

8f"3!t

10 exercised by the Commissioner of one background, of one
Czl
11 ~ philosophy, very well may change when his successor comes
o
Q.
-_.12 ~ into office three months later. six months. nine months. two ~ years later. and then everything is changed again; the

14 ~ method of doing business in that state by the companies, by

':z":

15 .:I the agents and by the public, because you and I are the Cl '":;)
16 ~ recipients of his decision when we buy our insurance. The

zQ

~

17 : handling of claims -- there are some states that claim

18 handling, during the time I've been in office, has been

19 extremely lenient in some areas; in other areas they were

20 unusually strong, but then you get a new Commissioner in that

21 same state and the whole thing reverses.

22

Continuity in an office where you've got a lot of

23 latitude, a lot of discretion, is very important.

24

MR. HARROLD: How many people do you have handling

25 claims in the insurance office?

PAGE 16

MR. CALDWELL: Counting secretaries and all, I 2 think there's twenty-six.

3

MR. HARROLD: And what's the nature of the type of

4 claim, somebody's just upset with an insurance company,

5 they're denied --

6

MR. CALDWELL: Yeah, they call and say I was in the

7 hospital nine days and my insurance company says that I had

8 a pre-existing illness and they won't pay. We'~e got to
!
9 investigate that one and determine what the facts are. The
10 next one calls and says I was in the hospital nine days and
~ z
11 ~my insurance company paid a third of the bill and won't pay
o
~
~---. ~adjUstor 12 ~the balance of it or I had a wreck two weeks ago and the hasn't been to see me. Or I had a wreck six months
14 ~ago and they've had my car in the shop all this time and they ~ ~ %
15 :won't pay for a rental car. When I say six months, that's
~
=~
16 ~az meant to be six months because that does happen -- not often, ~
17 :but it does. I had a call last night at home, a man has had
18 his car in the shop two weeks now and he has called the
19 insurance company I believe he said four times and they keep
20 passing him from one person to another and he can't find out
21 whether they're going to fix it or not. They first told him
22 to take it and then the garage called and said they haven't
23 called me and confirmed they're going to pay for it. What we

24 will do is investigate that and determine what the facts are

25 and what should be done. However, we are not a trier of facts,

PAGE 17

but generally we can get them together when we point out to

2 the company what their errors are, because they know we can

3 handle them

we can't do anything out here as far as trying

4 the facts, but we can handle the insurance company in other

5 areas.

6

Now last year, I believe the record shows -- it's

7 printed we collected for the public in the Claims Division

8 almost six million dollars.

9

MR. HARROLD: Well if you have a company that

10 continues to resist your efforts, isn't it more of a legal

EzCI
11 question that the beneficiary goes to court on, rather than

e _. ~o a.. 12 ~ through your office? MR. CALDWELL'

It all depends.

If I'm convinced

14 ~ that the company is violating a regulation or a statute, 1 1 11 ':z":
.. 15 ~ hold a hearing on a company, and do occasionally. In fact, ::>
16 ~III once since I've been in office I had an Illinois company to Q z
17 go; bring two pickup loads of records down here at their expense

18 and we went through them, to show that they had a pattern of

19 violations and I took their license.

20

MR. HARROLD: How many companies have their

21 licenses revoked in the State in a typical year? We're dealing

22 not with just fire and casualty but also with life companies.

23

MR. CALDWELL: I would say it wouldn't average one

24 a year. You mean for cause?

25

MR. HARROLD: Uh-huh.

PAGE 18

MR. CALDWELL: I'd say i t wouldn't average --

2 nationwide it wouldn't average one a year.

3

MR. HARROLD: How many people in the Fire Marshal's

4 office?

5

MR. CALDWELL: How many do we have over there?

6

MR. HARROLD: Uh-huh.

7

MR. CALDWELL: A hundred and three.

8

MR. HARROLD: A hundred and three. And what is

9 their primary function? Because i t seems like HEW has gotten

10 into checking on the types of trash cans you've got to have

I:l Z
11 j: in a day care center and all that sort of stuff.
'o.."....

~ 12 ~

MR. CALDWELL: Well we do HEW's work because we're

~Ji required by statute to do it anyway, and so we collect for

14 ~ the State of Georgia about a hundred and twenty thousand

!;;

<C :t

15 otI dollars a year for doing that work since we've got to go in

I:l
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16 .~.. there any way. I signed that contract some six years ago, I

Q

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17 g<C suppose.

18

The 1949 Fire Act requires that -- and its amendments

19 thereto -- requires that the State Fire Marshal's Office througl

20 his deputy in spect and approve the plans for all buildings

21 that are to be constructed that are three stories or more,

22 that have 15,000 square feet or more, or will house either

23 75 or 100 people or more, I can't remember. ~t was 100 at one

24 time but I think i t has been reduced to 75 now, or more. This

25 covers almost anything that you can think of except one and two

PAGE 19

family dwellings. Now there are some small grocery stores

2 and things like that that are not covered, but by and large

3 everything is covered other than dwellings, and I don't mean

4 apartment buildings. They are covered, you've got fire walls 5 going up to the roof, not just to the ceiling but to the roof, 6 that cuts them apart and if it does then it becomes a

7 separate building, if its a fire wall. I don't mean just a

8 sheetrock wall, it's got to be a fire wall. Other than that

9 it comes under it.

10

We then are charged with the responsibility of

almost anything that will explode; air sprays, chemicals,

oil and gas, anhydrous ammonia, propane and butane gases, all

those plants, gasoline plants have got to be built to specs

and we have to inspect them ever so often, and of course you

know that all public buildings, schools, colleges, hospitals,

jails, all of these things are included and they have to be

inspected periodically and are required to bring the building 18 up to its standards. Then on top of that you've got the 19 mobile homes and the most recent Act which hasn't been funded 20 yet has to do with rock quarries and the use of certain 21 amounts of explosives in those. We're supposed to have 22 seismograph machines and engineers capable of reading them, 23 but that one has not been funded. There's been a good bit of 24 discussion about that through the Attorney General's Office, 25 the Governor's Office and my office as to where I stand

PAGE 20

individually if something happens out there and it hasn't been

2 funded. So I don't know where we stand --

3

MR. HARROLD: Let me ask you one other question on

4 workmen's comp rates. Does your office still get involved in

5 the setting of workmen's comp rates?

6

MR. CALDWELL: The setting of the rates only, not

7 any other phase of it, only the rates of insurance.

8

MR. HARROLD: Do our rates compare favorably with

9 our sister states at the present time?

10

MR. CALDWELL: We don't have any sister states that

have the same benefit levels that we have, that I know of,

they're either up or down. It's awful hard to guage whether

or not -- we've attempted that but we're not the only ones,

many other people have. There was a study done by the Federal

government, as you well know, that came out three years ago

and they tried to do that and were unsuccessful.

MR. HARROLD: Well I think, at least my perception

18 is that you do an extraordinarily good job and having had to

19 work with Robert Constantine on a number of occasions, know

20 that you do, but you're in 4rrecarious position in that your

21 successor in office may not have the same caliber and integrity

22 that dealing with the private enterprise sector of insurance

23 companies and finance companies and the myriad of things that

24 fall in the office, that we were thinking or I was thinking

25 that it would be best to insulate that particular Commissioner

PAGE 21

from having to run for public office, from having to raise

2 campaign money.

3

MR. CALDWELL: Yeah, but at the same time --

4

MR. HARROLD: I ran for Congress three years ago

5 and I'm still paying.

6

MR. CALDWELL: At the same time you do that, you're

7 going to put him in the position of having to take orders

8 too from somebody other than the public.

9

MR. HARROLD: Well that doesn't bother me so much

10 since I perceive i t to be kind of the Executive Branch of

~ z
11 ~ government.

..o....

~ 12 ~

MR. CALDWELL: Well, friend, you ought to attend

~ ~ .-- about half a dozen NAIC meetings, national meetings, they have

! 14 ... them twice a year, and just listen to some of the Commissioners '<"l( :J:
15 ~ when you're sitting down having dinner talk about some of the
~
'";:)
16 ~ things they have to do and how they operate. It' 11 make your
Q
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17 :<l ha1..r stand up. I don't have to worry about that. Those of

18 us that arc elected, we look to the folks walking on the street

19 out yonder, we know where our bosses are, we know \vho they are,

20 we know what they'll do. Ain't no question. It's just ._-

21 there's no comparison to the kind of service th?t' s rendered

22 by a Commissioner that I selected ano the Conunissioner that's

23 appointed.

24

MR. HARROLD: I don't wal,L to aominate, we've got a

25 lot to do, does anybody else --

PAGE 22

DR. GIBSON: I'd like to know if we could have a

2 full citation on that General Accounting Office report you're

3 talking about.

4

MR. CALDWELL: I'll be glad to write and ask them

5 to send you a copy, I don't have but one copy.

6

DR. GIBSON: That would take an awful long time.

7 You don't have a copy in your office?

8

MR. CALDWELL: I've got one copy.

9

DR. GIBSON: You suppose you could Xerox a copy for

10 us?

"z
11 ;

MR. CALDWELL: Sir, it's about this thick (indicating)

'2"

@_. ~12 ~ and you're talking about a great deal of money. Now I'll be glad to let you use i t one night. I'm passing it around my

14 .>.. staff, I want them all to read it. As soon as

but I'll

'<"l

15 ~:t: be glad to pull 1 t away from whichever one's got i t now and

"'";:)

16 .~.. leave it with you one night if you'd like to read it .

Q

Z

17 g<l

DR. GIBSON: Well if it's not over 100 pages, it

18 wouldn't cost more than four or five dollars to Xerox it.

19

MR. CALDWELL: Two hundred and seventy four pages.

20

DR. GIBSON: What would that cost you, twelve

21 dollars to Xerox it? I mean I'll pay twelve dollars if you'll

22 Xerox it, how about that, because I'd like to see it.

MR. CALDWELL: Whatever they charge for Xeroxing, I

24 don't have any objection to it, of course. I mean I'll be

25 glad to do it, yes, sir.

PAGE 23

MR. JACKSON: I've got a question back about the

2 name and I'd like to assure you, I think the members who

3 proposed that were not motivated by a feel just to make a

4 change for change's sake. I think every department head in

5 State government, the title relates somewhat to the job they

6 do. In other words, the public can understand the Commissioner

7 of Agriculture has something to do with agriculture. I work

8 with teachers and students and repeatedly they ask me what is

9 a Comptroller General and why is he called Comptroller General,

10 what controlling does he do.

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11 ~

MR. CALDWELL: He controls the entire budget of the

o......

9-' ~ ~

12 ~ State of Georgia, as was demonstrated by the same office in Texas, what five years ago, when he refused to sign warrants

14 >- out there. I t has happened in this s tate. In fact I did it lV> <l :I:
15 ~ one time but it only lasted a few hours before we got it

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16 ~ straightened out.

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17 :<l

MR. JACKSON: But you feel strongly that you need to

18 leave that title even though the title doesn't pertain to

19 99% of your job, which is insurance regulation?

20

MR. CALDWELL: Ninety eight maybe.

21

MR. JACKSON: Ninety eight.

22

MR. HARROLD: My idea was Comptroller General and

23 Insurance Commissioner, that may be too long.

24

MR. CALDWELL: You know, I'm not arguing with you

25 too much about that, but I just think that if it has served

PAGE 24

this well for over a hundred years, I see no reason to change

2 it, it has done a good job. The Commissioners ahead of me

3 presumably did a good job, I don't remember any great scandals

4 of Commissioners ahead of me, Comptroller Generals, they must

5 have done a good job. I just -- I think that it's wrong to

6 change it.

7

JUDGE SMITH: Back to your discussion of being put

8 under pressure, who is it in these other states, the Governor,

9 that puts the pressure on the appointed --

10

MR. CALDWELL: The Governor or the Board that

11 5"z appoints them and he appoints the Board.

2...

~--- I 12 ~

JUDGE SMITH: Well I suppose that'd be true with

any Board like the Board of Regents or anything else.

14 !

MR. ENGLISH: Justice Hill, you mentioned that a

l:;z;:
15 oil hundred thousand or so inquiries come to your office or did

"~
;;)

16 ~... last year

Q

17 :Z

MR. CALDWELL: I'm sorry, I misunderstood the first

18 part.

19

MR. ENGLISH: You said a hundred thousand inquiries

20 came into your office last year about insurance problems and

21 so forth. Are these call-ins that you get into the office or

22 are these inquiries generated by persons on the staff that are

23 sent out to the various localities to handle insurance concerns

24 in those locali ties?

25

MR. CALDWELL: By a recent study done by the State

PAGE 25

Auditing Department, a very small fraction of them come from 2 the field, the four people that we have in the field compared

3 to the total number. They come by letter, they come by

4 telegram, they come by telephone, they come by walk-in S individuals. A break-down of which is which, I don't have 6 but I might could get it for you. I'm sure there's more

7 telephone calls, I just know that without going to the records 8 but as to letters or walk-ins, my guess is there'd be more

9 letters, but I don't know, because there's an awful lot of

10 people in and out that office every day.

~

.11 Cz~I 'o"

MR. ENGLISH: Well I had a concern about the name

12 ~ not actually denoting the function performed by the office and

~ - ~ some of the persons that I have talked to just simply don' t

14 ~know what a Comptroller General is unless they have been ~ '<"l
15 ~::t fortunate enough to come through the Capi tol or had one of
CI
'";;) 16 ~... your persons in their home area explain the functions of the
Q
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17 ~ Comptroller's Office, and I would be interested if there is

18 any sort of break down on the types of inquiries available.

19

MR. CALDWELL: As to whether they are by telephone,

20 by letter

21

MR. ENGLISH: Right and how many of those are

22 repeat inquiries.

23

MR. CALDWELL: You mean repeat by the same person?

24

MR. ENGLISH: The same person, same individual.

25

MR. CALDWELL: I doubt if I can give you that without

PAGE 26 taking the people off the job and have them go back through

2 a hundred thousand claims

3
4 some.

MR. ENGLISH: We don't want to make it that curnber-

5

MR. CALDWELL: What you'd have to do is go back

6 and list every name and then have somebody sit down and go

7 through the alphabet -- you'd have to alphabetize them and then

8 go back and see if you had the same person calling more than

9 one time.

10

MR. ENGLISH: You do keep some sort of listing

w

11 ~ though so that you can make reference to certain companies?

~

fw
~ 12 ~

MR. CALDWELL: We have a file on all claims that

~ .... Iwe have to do something on more than can be done today, we

! 14 make a file on it, and there is a file of that over there and ~ ~
15 ~~: we could go through a few thousand of those and tell you if
~ ~ ~
16 ~we have handled that file more than once, which would help
ozw
17 : to denote how many times we had had an individual

18

MR. ENGLISH: Not if it's going to take too much

19 time, we don't want to get a procedure that cumbersome, but

20 if you have some sort of listing, I would be very much

21 appreciative.

22

CHAIRMAN HILL: I don't want to cut this short

23 because it's the most significant thing we have on the agenda,

24 but we do have another meeting at ten o'clock we have to get

25 to and we've got to make some sort of report to that meeting,

PAGE 27

and certainly if you would like to address the full committee

2 meeting at ten o'clock, which is going to be in Room 133,

3 we'll be happy to have you.

4

MR. CALDWELL: That, of course, is up to the

5 members of the committee. If they want me, I'll be there,

6 but do you know already that --

7

CHAIRMAN HILL: I don't know what we're going to

8 do, I'm not sure we're going to have time to do it all.

9

MR. CALDWELL: The letter that I received said that

10 I was supposed to be in Room 133 at ten o'clock, but now that -

"z
11 I-
..lol..I..:

CHAIRMAN HILL: Why don't after we complete our

~ 12 ~ business, we'll talk to you again. You're going back to your

~F~ office? ! 14

MR. CALDWELL: Yes or I'll wait here, I'll just go

I-
':"r 15 .:l outside and wait.

"llI:

;;)

16 .~..

CHAIRMAN HILL: Well stay right here.

Q

Z 17 :;

Let me suggest since we do -- that we skip down

18 the agenda and -- because the next item of considerable

19 significance I think is -- we also have a guest here

and

20 that's District Attorney Billy Lee, who is President of the

21 State District Attorneys' Association, and let me turn it

22 over to you with the understanding that we've got a couple of

23 votes to take and be in another meeting at ten o'clock.

24

MR. LEE: All right, sir. Mr. Chairman, members of

25 the sub-committee,"I am here as President of the District

PAGE 28

Attorneys' Association of Georgia at the present time and

2 that's the trade association of the District Attorneys. It's

3 not to be confused with the Prosecuting Attorneys' Council of

4 Georgia, which is a state agency, although the two compliment

5 each other and have common goals and aims to a large extent.

6

I think I can state I'm speaking for the forty-two

7 district attorneys of Georgia although I have not polled all

8 of them, on this particular subject matter. The subject

9 matter is whether or not, I think -- whether or not the

10 district attorneys should be a part of the Executive or a

III
11 ~ part of the Judicial Article of the Constitution of Georgia.

o0..1.:

@ _ i12 ~ It is the position of the district attorneys that we properly

~

~

belong and should be in the Judicial Article of the Constitu-

.14 >I- t 'J.on . ~
15 ~

Actually, the Judiciary Act of 1789, which was

:i1
16 .~;.:.I passed not long after the Revolutionary War, is the one which
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17 established the office of district attorney, i t was called

18 solicitor general at that time, and i t was a part of the

19 Judicial Act, of course. About ten years later, the legislature

20 completely revised the Judiciary Act of 1789 and once again

21 included the district attorneys in the Judicial Section of the

22 Act. Incidentally, it was the latter Act that forms the basis

23 of present Chapter 24 of the Georgia Code, which is the section

24 on the courts and which is the seotion in which the duties and

2S so forth of the district attorneys are delineated at the present

PAGE 29

time. Then about 1877, the position of solicitor general, the

2 district attorney, was placed in the Constitution of Georgia,

3 and so far as I know it has been there ever since although I

4 have not totally researched that, I do know that that's where

5 it is in the present 1945 Constitution.

6

The question of immunity related to official acts

7 of a district attorney is of primary importance to us. That

8 is, the fact that at the present time we believe we have quasi-

9 judicial immunity from civil suits based on the acts which we

10 perform as a part of our judicial function with the courts and

11 ECzI so forth. You know, the tendency now is for everybody to sue o 0.
9---- ~ ~ ~ 12 ~ everybody about most anything, and we district attorneys don't want to get in a position where every time the jury acquits

14 ~ somebody the district attorney gets sued in some civil matter

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15 .:> because of it, and I think that trend would develop if we

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.

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16 ~ lost our quasi-j udicial immunity. The leading case in that

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17 : particular area is the case of Emma vs. Patman, which is

18 found, I believe in 424 U.S. 409, I think is the citation,

19 that's a 1976 case, and that's one in which the United States

20 Supreme Court held that a district attorney who was being

21 sued civilly on that citation by a man that had been released

22 on federal habeas corpus, but who had been convicted in a

23 state of the offense of a murder committed during an armed 24 robbery. This fellow, after he was released on habeas corpus,

25 turned around and filed suit against the prosecuting attorney,

PAGE 30

the district attorney, and the Supreme Court of the United

2 States held that that district attorney had absolute immunity

3 insofar as the acts on which the civil suit against him was

4 based. The suit was brought under the Civil Rights Act in

5 that particular instance and that's the law of the land insofar

6 as the federal government is concerned at this time. We

7 also believe that under the laws of Georgia we have quasi-

8 judicial immunity and we're afraid we'll lose it if we are

9 taken out of the Judicial Article of the Constitution and are

10 placed in the Executive Article of the Constitution.

" 11

% j:

Another factor that we are concerned with lies in

'2"

@ -12 ~the budgeting process. We are presently budgeted with the !JUdicial, our budget is a part of the Superior Court's budget.

14 !I think that budget is divided into two segments there, one
!;;
%
15 oll for judges and one for district attorneys and we think it's
~
::J
16 ~beneficial for us to remain in the Judicial so that we will be
zQ
17 : budgeted in that particular fashion.

18

I see Representative Buck there, I think may be

19 he and I were both in the legislature back when we had a fight

20 with the solicitor generals, as they were called at that time,

21 about taking them off of a fee system and putting them on a

22 salary and prohibiting them from practicing law. Weren't you

23 up here at that particular time? That move was made in order

24 to make more professional the posi tionand to sort of put it

25 in an area where it could more effectively fight the crime

PAGE 31

wave that this nation has faced for a long period of time.

2 The solicitor generals didn't want it, they wantd to be able

3 to practice law and they wanted to remain on a fee system.

4 1 1 m a district attorney now but I prefer the system that we put

5 them on. I think it has helped the criminal justice system in

6 this State and I think it has helped district attorneys literal y

7 even though they were opposed to it at that particular time.

8

1 1m not in favor of doing anything which I think

9 weakens the office, and I believe that changing us to the

10 Executive Branch would weaken the office. I notice in the
Czl
- - 11 j'o.".:. Supreme Court case of Emma that I cited to you, the court
.@ -,112 ~pointed out several things that could result from a district attorney not having immunity; one was that it would affect his
14 .~.. decision-making process if he's got to sit there and say if
'<"C(
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15 ~ I decide this way, am I likely to be sued. It would make him
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'":;) 16 .~.. sort of gun shy, so to speak. Also pointed out that it might
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17 ~ have an effect on appellate court decisions, although Justice

18 Hill, I don I t believe this would be true.

19

(Laughter.)

20

It pointed out that the appellate court might be

21 reluctant to reverse a criminal conviction if the court

22 realized that the district attorney might get sued if it did

23 so, that was a part of the Emma decision that was implemented 24 there.

25

I just think that at the present time, the general

PAGE 32

public is becoming more and more interested in doing something

2 about the crime picture that we have in this nation and

3 the district attorneys, as we all know, are an integral part

4 of that system. We're accountable as attorneys to all of the

5 disciplines and so forth of the organized bar, the State Bar,

6 we are accountable to the judges, they issue orders that affect

7 what we do and what we have to do, and mostly everything that

8 a district attorney does is a part of the judicial process at 9 the present time.

10

I'll try to answer any questions. I didn't talk but

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11

I-
..o'.."..

seven

minutes.

~ 12 ~

JUDGE SMITH: Mr. Lee, I have two questions; the

~r~ first is, I assume the grant of immunity is based on the

14

~
lr;;

nature

of

the

job,

rather

than

what

statutory

or

constitutionll

%

15 ~ positbn they have in the several states, but I assume it's

~

~

16 .~.. another argument you would have --

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17 :

MR. LEE: Yes, my other argument would be that it's

18 not solely based on that, I think the Emma decision pdnts out

19 that a prosecutor's immunity is derived from a judge's judicial

20

JUDGE SMITH: Right, but that's because of what they

21 do, not where they are put down on paper. As I understand it,

22 there are only a very few states where the district attorneys

23 are put over in the Judicial Article.

24

MR. LEE: Well there are twenty-nine states in which

25 district attorneys are a part of the Constitution and in nineteE n

PAGE 33

of those twenty-nine, they are in the Judicial ARticle and in 2 only one that I know of are they in the Executive Article.

3

JUDGE SMITH: But this case you're talking about

4 would apply to all of the fifty states, wouldn't it, it

5 wouldn't just apply

6

MR. LEE: Well we feel that a part of that decision

7 was based on the fact that the court recognizes our at least

8 quasi-judicial status and if you remove us from that and put

9 us in the Executive, the trend might be to mitigate the quasi-

10 judicial status.

zCI

11 ~

JUDGE SMITH: I recognize it as an additional argument

.o..

~ ~ ~ ~ 12 ~ insofar as the basis -- let me turn to another subject. In --- the event there should be some scandal in state government, a

14 !mini Watergate, so to speak, what is your understanding of who lV:r>

15 ~ would handle, who would initiate and prosecute such a case?

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16 ~

MR. LEE: If it happened in Daugherty County, which

zQ
17 :is the County that I serve as District Attorney in, if it

18 involved an employee of the State of Georgia, for example, you

19 mean?

20

JUDGE SMITH: Cover-up, whate~er happened. What I'm

21 getting at is, it's my understanding that the district

22 attorneys around the state who are independently elected, would

23 initiate and handle those cases. If you had some great scandal

24 over here in the Capitol, that Lewis Slaton and his crowd would

25 have the responsibility under law --

PAGE 34

MR. LEE: I think that's true, that'd be my opinion

2 about it. I would expect to handle them in Daugherty County.

3

JUDGE SMITH: In other words, if some major state

4 officer -- if Mr. Caldwell had a big office down there, and

5 maybe he does

6

MR. CALDWELL: I don't have y in any county other

7 than Fulton right here at the Capitol.

8

MR. LEE: I'd have to disqualify myself with Mr.

9 Caldwell.

10

JUDGE SMITH: But the question has arisen in the

11

!l
i=

scheme

of

things

whether

we

need make

any

provision

for

a

so-

~

2

Q - I12 ~ called special prosecutor, as was done on the national scene, and as I understand our system in Georgia, the district attorne, s

.. 14 !who are independently elected, would in fact function as the t;
15 :~z: prosecutor and we don't have thatprob1em. I'm just trying to

~

;)

16 ~... see if you agree with that interpretation .

cz

17 ~

MR. LEE: I'll give you my personal opinion, but when

18 I do so, I'm not speaking for the district attorneys of 19 Georgia, because my position is probably not in accord with the

20 majority of the district attorneys. I have no objection to a

21 special prosecutor under certain circumstances. I'm not that 22 zealous of what goes on in my particular circuit down there

23 and I could recognize that there would be situations where in

24 the interest of the public a special prosecutor could serve

25 the public better than I could serve the public, and I would

PAGE 35

have absolutely no objection to it.

2

JUDGE SMITH: Well I didn't mean it in that sense,

3 but if he did function, he would function under the sponsor-

4 ship of your office, is what I'm talking about. In other

5 words, you have the power to prosecute any crime, whether it's

6 a Watergate or hunting without a license.

7

MR. LEE: Yes, sir.

8

If you mean special prosecutors in the sense that a

9 victim we'll say of an aggravated assault or murder or some-

10 thing wants to hire a special prosecutor to assist me --

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11 i=
'o.."....

JUDGE SMITH: Oh, yeah, I realize that's done. No,

~ 12 ~ I'm really talking about some statewide -- wherever the venue

@F~ of that crime was, that district attorney can handle it.

! 14 ...

MR. LEE: Yes, sir

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15 ~

JUDGE SMITH: Whether he's got the guts to do it is

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16 ~... another question

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17 ~

MR. HARROLD: Don't U. S. attorneys have some type

18 of immunity?

19

MR. LEE: Do I not what?

20

MR. HARROLD: U. S. attorneys, prosecuting U. S.

21 attorneys, the guy that's prosecuting Bert Lance right now,

22 does he have any immunity?

23

MR. LEE: I can't I would assume that under that

24 Supreme Court decision of Emma that he would have, although I

25 can't speak for the United States attorneys. They are a part

PAGE 36

of the Executive insofar as the federal government is concerned

2

MR. HARROLD: I think the committee pretty well

3 wants to protect the district attorneys from any type of civil

4 action and carryover the immunity, whatever vehicle we use

5 to do it, so that brings us back now to the budget question,

6 which is the only unresolved question that we have. I think

7 that's true, y'all correct me if I'm wrong, but I believe it

8 was unanimous that everybody wanted to make sure that that

9 umbrella of protection carried over to the DA's. So then it

10 comes to budget, and what you're saying is you don't want to

11 "z~ have to go to the Appropriations Committee.

e - Io.0..-

~

12 ~

MR. LEE:

Committee.

No, sir, we have to go to the Appropriation

14 ~~

MR. HARROLD: OPB.

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15 ~

MR. LEE: I wasn't going to put it that bluntly. I

16 ".~:'.". know we have some sharp people in here. We have to go to the

zIII

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17 ~ Appropriations Committee, but we do not have to go to OPB.

18

MR. HARROLD: Go through that first step. I don't

19 blame you.

20

MR. LEE: Let me point out one difference in the fedelal

21 district attorneys and ours. The United States district

22 attorneys serve under the Attorney General and those are all

23 appointed positions by the Executive. We do not serve under

24 the Attorney General of Georgia, nor are we in a~pointed positicns,

25 either one. We have that distinction between the federal systeTI

PAGE 37

and the state system, I think, which might have some value.

2

CHAIRMAN HILL: I do feel like I need to call the

3 question so that we can go to our other meeting.

4

MR. CALDWELL: Would you like me to leave?

5

CHAIRMAN HILL: No. We can go ahead and get our

6 business done.

7

We have three matters that need to be taken care of

8 so that we can make a report to the full committee, and I'll

9 entertain any motions that anybody has.

10

DR. GIBSON: This committee seems to drag on, but I

l-'
11 ~ must admit I am most concerned about the little length of time
IoX
. i ~'_ ~~ 12 "~" we had to listen to Mr. Lee and I would like to see that GAO report.

14 ~

I think your case could be made stronger by getting

~
'"<C(
:z:
15 .:l away from that functional thing. I think there really is a

l-' IX
..::>
16 ~ massive distinction between the Attorney General's Office and

Dz

17 : the district attorney.

18

I guess, Mr. Chairman, what I'm saying

19

CHAIRMAN HILL: You want to study it some more.

20

DR. GIBSON: I have a feeling I would not like to

21 vote this morning, which I apologize for.

22

CHAIRMAN HILL: That's fine. The point of that is

23 another meeting of this commi ttee .

24

DR. GIBSON: And God knows, I hate to do that.

25

CHAIRMAN HILL: I take your motion to be a motion to

PAGE 38

adjourn, is that --

2

DR. GIBSON: Adjourn to the larger meeting.

3

CHAIRMAN HILL: Is there a second?

4

REPRESENTATIVE BUCK: I second.

5

CHAIRMAN HILL: All those in favor, please indicate

6 by saying aye.

7

(Ayes.)

8

CHAIRMAN HILL: All those opposed?

9

(No response.)

10
\!I
5Z
11
oG..o.
12 :
@rl ! 14 l;; <C :E 15 olI \!I 1lI :l 16 .~.. Q Z =<C 17

CHAIRMAN HILL: We're adjourned. (Whereupon, the meeting was adjourned at 10:00 a.m.)

18

19

20

21
22 23 24

25

PAGE 39

2

C E R T I F I CAT E

3

4

I, Peggy J. Warren, CVR-CM, CCR No. A-17l, do

5 hereby certify that the foregoing 38 pages of transcript

6 represent a true and accurate record of the events which

7 transpired at the time and place set out above.

8

9

10
..Czl
11 j:
o......
~ 12 ~
~Fi14 ! f':<"rl ..15 ~ Cl
;;)
16 ;... Q Z <l
17 :

18

19

20

21

22

23

24

25

INDEX Committee to Revise Articles IV and V Subcommittee Meeting Held on Oct. 31, 1979

SUBCOMMITTEE MEETING, 10-31-79
Proceedings. p. 3
ARTICLE V: EXECUTIVE BRANCH Section III: Other Elected Executive Officers Paragraph I: Other executive officers, how elected. pp. 3-26
Comptroller General. pp. 3-26
ARTICLE VI: JUDICIAL BRANCH Section VIII: District Attorneys Paragraph I: District Attorneys; vacancies; qualifications;
compensation; duties; immunity. pp. 26-36

STATE OF GEORGIA
COMMITTEE TO REVISE ARTICLES IV AND V of the
CONSTITUTION OF GEORGIA
Room 133 State Capitol Atlanta, Georgia Wednesday, October 31, 1979 10:00 a.m.
'0142-041'\2

PRESENT WERE:

COMMITTEE MEMBERS:

,

, II
, 'I

SIDNEY O. SMITH, CHAIRMAN

REPRESENTATIVE THOMAS B. BUCK, III

REPRESENTATIVE LOTTIE WATKINS

REPRESENTATIVE JOE WOOD

SENATOR JANICE HORTON

MRS. BERTA G. ADAMS

MS. DELORES CROCKETT

MR. KENNETH ENGLISH

JUDGE EMORY FINDLEY

MR. DAVID C. GARRETT, JR.

DR. FRANK K. GIBSON

MR. CHARLES L. GOWEN

MR. THOMAS J. HARROLD, JR.

JUSTICE HAROLD N. HILL, JR.

IL

MRS. DORRIS D. HOLMES

MR. EDWIN JACKSON

MR. A. H. STERNE

PROFESSOR MELVYN WILLIAMS

MR. J. HENRY WISEBRAM

SELECT COMMITTEE STAFF:

MR. MELVIN HILL MR. MICHAEL HENRY MS. VICKIE GREENBERG

i i1 ,~

OTHERS:

7.

MR. ROBIN HARRIS

MR. CHARLES TIDWELL

MR. HAMILTON MCWHORTER

MR. WILLIAM S. LEE

; ~)

MR. DON LANGHAM

DR. CYNTHIA NONIDEZ

"i

MR. VIRLYN SLATON

MR. JACK LITTLETON

MR. TOM THORNE-THOMSEN

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 j

PRO C E E DIN G S

PAGE 3
- -- - --._-----.-- - .._. -- - -------, I
I

CHAIRMAN SMITH: For the benefit of the reporter,

.\ she has asked that we start over here on the left and just

4 re-identify yourselves to her. She has most of the names.

5

REPRESENTATIVE WATKINS: Lottie Watkins.

MR. WISEBRAM: Henry Wisebram.

7

JUSTICE HILL: Harold Hill.

MRS. HOLMES: Dorris Holmes.

MR. STERNE: A. H. Sterne.

Ii)

cz:.

~J

I-

Y-

,:>

~,
w

1-' c...:

MR. GARRETT: Dave Garrett MRS. ADAMS: Berta Adams PROFESSOR WILLIAMS: Melvyn Williams.

MR. HENRY: Mike Henry.

<
T

l5 ~

':':"">'

,. ! ()

.~ ~

c

17 ~

MR. JACKSON: Ed Jackson. JUDGE FINDLEY: Emory Findley. REPRESENTATIVE BUCK: Tom Buck MR. HARROLD: Tom Harrold.

MR. HILL: Melvin Hill.

19 I

CHAIRMAN SMITH: Sidney Smith

.:()

MR. GOWEN: Charlie Gowen.

21

CHAIRMAN SMITH: Anybody who did not identify himself(

if you speak, for the benefit of the reporter, how about
,,
.c,) giving your name if you I re one of our visitors.

I notice we do have several visitors and it might

accomodate them if any of them have anything they would like

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

- ._--- - -- ------

to present to the committee as a whole, they won't have to sit

2 around here and listen to somebody else's problems, Mr.

3 Caldwell has just met with the subcommittee upstairs and I

4 believe he's here and we'd be pleased to hear from him if

5 there's anything he cares to say.

6

MR. CALDWELL: Mr. Chairman, I think since the

7 committee up there did not complete its work, that it would

8 be a little bit premature for me to speak to the full committee.

9[ I, of course, am here and at your direction will do whatever
Ii

10 you ask me to do.

"z

CHAIRMAN SMITH: Well I know Mr. Caldwell is

available to answer anybody's questions when we get to this

particular item.

MR. CALDWELL: It might be better if I come back at

15 ,.:, another time when --

I"':">

1(; O.z.X.>

CHAIRMAN SMITH: Well I get worried about time

a

Z

e:

17

t>: ,r;

running

out

on

us,

is

the only problem,

we haven't got but a

Ig i,, month to go and I don't know how many times we can get this 19 crowd together as a practical matter.

20

JUSTICE HILL: Mr. Chairman, unfortunately at this

21 moment, the other subcommittee is unable to give you a

22 recommendation with respect to the Office of the Comptroller

:n General.

2-1

CHAIRMAN SMITH: Well would you propose that the

~s full committee take it up today?

rr---~~----~----~--~~ ~~ ~ ~-----

J II

JUSTICE HILL:

PAGE 5

_._- ._-~---

------'---~~------------~----I

I
If the full committee wants to take !

:1
) I,,I it away from us, t hey may.

CHAIRMAN SMITH: Kind of a challenge, isn't it.

Why don't we do this to accomodate Mr. Caldwell, if you're

5 going back to your office, if that matter comes up we'll just

send for you. How would that be?

7

MR. CALDWELL: Thank you, sir, I'll be right there.

CHAIRMAN SMITH: Fine. Anybody else that wants to

<) ii be elected or appointed?
"

to

Because we have been putting Billy Sterne's

committee last so often, I want to reverse the order and give

him a chance to lead off. By way of review, the recommenda-

tion at our last full meeting was that three of our

Constitutional boards be kept with Constitutional status,

they are the Public Service Commission, the Pardons and Parole
16 .o~.. Board and the State Personnel Board. Referred back to the Z -<l
17 :; subcommittee was the re-examination of whether the DOT and

J8 , the Veterans Service Board should be accorded Constitutional

"

19

:: II

status

or

become

statutory

boards.

I guess that's the first

20 : item we ought to address.

21

MR. STERNE: All right. We did consider that and

"ri
22 ii in a word, we chose to stand where we were. We did not feel

that the DOT or the Veterans Service Board needed to be ,'4 Constitutional. That's our recommendation, that the Public

.. 5 Service Commission, Pardons and Parole Board and State

PACE 6

Personnel Board be retained in the Constitution, provided for

2 in the Constitution and the others not.

3

CHAIRMAN SMITH: All right. As a matter of order,

4 I suspect we ought to have the full committee act on that

5 recommendation. You heard it, it is that the DOT and

b Veterans Service Boards -- I started to say revert back to

7 or become -- statutory boards rather than Constitutional

1\ boards. Is there any further discussion on that recommendation?

()

(No response.)

10

CHAIRMAN SMITH: All those in favor, raise your

"z

11

~
.'~l"...

hands

please.

(~ ~S\V'~'""1~2

l~
!

(Votes were cast with raised hands.) CHAIRMAN SMITH: Opposed?

14 >-
<i-
:I:

MR. HILL: If it's going to be on the record,

15 ~ everyone is going to have to, you know, say aye or no.

u.

16 ~'" ,~ a

CHAIRMAN SMITH: Well, can't you just say that it

Z

<I
17 ~ was adopted without us going through all that?

18

MR. HILL: We can, sure.

CHAIRMAN SMITH: There were some abstentions but I

didn't see any negative votes.

All right, I suppose the next item, Billy, was

~,

,

L.:., having decided that the Public Service Commission remains a

Constitutional Board, how should they be elected. As I

understand it, the options were to have them appointed by the

Governor with confirmation by the Senate or appointed directly

lL

_

- - - - - - - - - - - - - - u---------~------

PAGE 7

i by the Governor or through some sort of nominating commission

'I
2 i;1I or have them stand for election under the present system or

3 :1 stand for election under the so-called Missouri plan, that
::

4 : those were the different approaches.

i

5 ':

MR. STERNE: Right. Our recommendation came out that!

"

Ii

I

6 they be appointed by the Governor sUbject to confirmation of

II

7 the Senate. I do think we ought to say that that was not a

:1

'3 unanimous recommendation and there was some sentiment to each

,:

9

Ii iIi,

of

those

other

options,

but

this

is

the

way

our

recommendation

10 to this committee carne out. I don't know whether you want to

Cl

11

.~...
0'.

deal

with

each

item

in

here

is that the way you want to do

0

"w-

(((;-3 0-c"~",,,. ~)Y~

,
\

~",--~-.l~-l=.=;//~

12

c.r,'
.u.. it?

;::

Z

"'
~

CHAIRMAN SMITH: I think we would like to have a

14

.,.
o~ n

little

background

For example, as I understand it, Florida

,~

r

15

.:>
"":OJ

has

some

system

that

you have

looked

into

and

I

think

16 'Xl 7: "c'

MR. STERNE: Florida's system, Mr. Chairman, has a

Z

17

,"
'"

nominating

committee

which

is

appointed

by

~-

certain

members

jX i are appointed by the Speaker of the House, certain by the

[lJ President of the Senate and the members themselves appoint

20 Ii some other members. They make recommendations to the Governor,
II
21 they make more recommendations than there are positions and

22

,
he can choose from those.

Basically that's what the Florida

~3 system was and I guess you would say there was some sentiment
;4 in the committee that that perhaps shielded it a little more
.25 from political considerations.

PACtS 8

CHAIRMAN SMITH: I'd like to know the reaction of

2 some our members of the General Assembly to that. As a

3 practical matter, what its effect would be in the political

process. I assume that they would act sort of like our

5 Judicial Nominating Commission, wherein the Governor is given

6 five names and he must appoint from those five, but he has

7 freedom of choice amongst the five, and the theory is that

8 only qualified persons would be nominated by the Commission

9 II and turned over to the Governor. I'm not sure what the

10 qualifications are for Public Service Commission or what they

/@SY\

"z

11 ~ should be, but that would be the theory.

.o'".".

12 ~.:.

Any of you who have had experience with these

b... ((~) m,~ ~ committees that are formed partly from leadership in the Senate

~

I
14 ~ and partly from leadership in the House and partly from the
<
J:
15 ~ Governor's Office, if you have any experience or ideas about

0:

:l

16

til
~ that,

I

think we'd all

like

to

hear

it.

z

17

<>:
'"

MR. STERNE: I might add one thing about your

lil Florida situation. The Florida Public Service Commission is a

19 st~tutory body. They did put in there in this passage in the

20 statute that created the Nominating Committee, they put

: qualifications in there. They range allover the map and they
22 finally had one sweeping qualification that really lets you ~).), i nominate anybody you want to. That's my interpretation of it.

CHAIRMAN SMITH: Well I think the studies show that
-\-
-) : sometimes when you engrave qualifications into law; that sometimes
'-'-- --- -- ------_._------- - - -- -- - ------ - -----------------

rr-------

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

-

PAGE 9
--------------------------------1

, you don't have enough interest, particula~ considering the I

I

-, compensation of these jobs, and sometimes you can paint

!

,!

J yourself in a corner by having too high qualifications and you

4 can't get anybody to take it unless it's somebody who happens

to have the paper qualifications but might otherwise not be

(, a good pUblic servant.

7

For information, the so-called Missouri plan is a

i

>::, system whereby a public official stands for election but doesn'~

i

,

!I

l)

!!
I'I

run

against

anybody.

He simply is put on the ballot and the

people say either keep him or discharge him from the job. In
--,
L
II o~ the latter event, then the appointive process takes over for <l. "'
(t-~~~_ ~I: : the vacancy. It has been used more on court related positions
~~~j?))r-C-<-""-". ~ than any other around the country I think. It's called

"-.. ~.._ _ ~

I
J4 : Missouri because it started in the Missouri judicial system

"

J5 ;~ where the jUdges there simply stand. And of course the idea ,: ;]
16 ~[0 is you don't get into an antagonistic political campaign by

7

the judicial officers and do not have the expense nor the

1~ j pressures of running a race in a hot political contest. !I,

J<.)

Any discussion on the recommendation? Yes, Judge?

JUSTICE HILL: I take it that the purpose of 21 including the phrase "filling of vacancies" in the last

sentence of the Public Service Commission provision was put

there for the purpose of permitting the General Assembly to 24 create a Missouri plan type of nominating system. Without :::5 knowing that, I misread it, and had concluded that it would be

PAGE 10

I,Ii possible for the General Assembly to take the position that

2 although the Governor appointed when the term expired,

3 vacancies would be filled as prescribed by law. And in reading

4 it that way, I felt like it was a possible means by which the

5 i Governor's appointive power could be withdrawn from him by

() legislation insofar as the filling of vacancies were concerned).

'"7 I

I He would keep the prerogative of filling the office when the

x term of the officeholder expired, but if a vacancy suddenly

I occurred, that would be filled as provided by law.

JO

MR. STERNE: Judge, we may have trapped ourselves

1J ~ with our own language, that certainly wasn't our intention. o

"-

(@) _.- i12 .~

CHAIRMAN SMITH: Well that's something the staff

needs to clean up.

"'-.:::---'

t4 ,. ''""

While you're on that same sentence, the phrase

r.

15 ~ "removal from office", how does that hook in with anything

0:

:J

eo

J6 it else we have for removal from office?

Czo

<0:

17 ~

MR. STERNE: It's in the -- I believe it's in the

18 Ii Constitution with respect to both of the other commissions or
'I
19 I';i boards.

20

CHAIRMAN SMITH: I just thought while we were there,

21 we might look at the language.

22

MR. HILL: It's in Section lIon State Board of

n i, Pardons and Paroles and also in Section III and the intent

was to have all three of these statements, all three of these

25 iSections, parallel one another with respect to that provision.

PAGE 11

[T-.----------- - ------.-----------.

-,

il That was one of the reasons we added "removal from office"

I

2 :1 in Section I, so that it was consistent.

I'Ii

J il

MR. STERNE: It needed to provide for removal from

'i!

4 office and it hadn't been before, of course, when they were

elected.

CHAIRMAN SMITH: Well is there some other section

7 that is going to handle how that is done, or is it just left

:3 open for procedures to be devised by the General Assembly?

9

II \i,

MR. GOWEN: I think it says !tby law", that would be

II

10 the General Assembly.

'z"

1] ~

CHAIRMAN SMITH: Right. In other words, there's

o

"-

.~

v

12 ~ nothing now and that's something that would have to follow if

Q(~"'~ ~ this Constitutional provision --

14 ~

MR. GOWEN: The only provision in the Constitution

'-"
I

15 .~ as I recall is for removal of the Governor.

Cj
c<
;:>

16 ~

JUSTICE HILL: I believe there is also a provision --'

oz

17

-< ~

isn't

that

one

that

the

other

subcommittee

transferred

on

1~ removal of the Elected Executive -- or Constitutional Officers?

19

CHAIRMAN SMITH: Well the disability part was but

20 Ii not removal for conduct. II I' MR. HILL: We removed one section and we're going to '

get to that, which authorized the General Assembly to provide

2j i by law for the suspension of a Constitutional Officer and, you 24 ,~ know, we recommend that -- one subcommittee is recommending

2) 'that that be deleted so that would no longer be here if the

n - - - - - - ..- -.-~--.-~.- -.... '--,----,----,--.-,- . -- --"_'_'-0_'--'

. - - - - , - - -. - .-----

'I full committee accepts that recommendation.

PAGE 12

JUSTICE HILL: Let me point out also that the

filling of vacancies phrase appears often in the State Pardons

4 and Paroles Board section and then let me ask this question.

I notice that the term proposed for Public Service Commissioners

is six years, for State Pardons and Paroles Board is seven

, years and for State Personnel Board is five years. Is that

what they are presently?

C)
MR. STERNE: What they are presently and we didn't

10 recommend any change.

"z

11 l-
oX

CHAIRMAN SMITH: In terms of proceeding, my idea was

0.

~

@v

12 ~ that today we would try to solve all these questions and I

(@'J~-~-m-""~ ~ propose that we meet twice in November so we can get down to

, 14 ~
actual line-by-line approval by the committee of what we think

<f

1:

15

~
<::>

we have

done,

so that we would

have

a

heavy drafting program

:'>"

1(i

.z'"..
Co

going

on

by

the

staff

between

now

and

the

middle

of

November

Z

<[

17 c0o: and between the middle of November and the end of November,

18

!!!I if that procedure suits everybody. I thought that would be

19

,; !

the

most

practical

thing.

They can't really draft until they

20
know what we want to do and I'd like to get all of those

21
ultimate decisions made today that we can.
n
Well, I guess we are at the point where the
23
recommendation is that the members of the Public Service
24
Commission be appointed for the term stated by the Governor
25

the statutory boards.

-

-

-

-

-

-

-

-

-

-

-

-

-

PAGE
------

-1-

3- -

-

-

-

,

1

Any further discussion on that recommendation?

(No response.)

4 I" :

All those in favor, raise your hands please.

(Votes were cast with raised hands.)

Opposed?

-,

I

(No response.)

MR. HILL: Unanimous.

9

CHAIRMAN SMITH: Another item that I had gleaned was '

whether in this process we've just been through, there should

z'"

JI ;. be some overall Constitutional provision that could in some

':)

Cl

..J

C;"-

l~ ~ method restrict the makeup of a statutory board. We discussed

/:~,-,~,~\

~

s: I\f~~\ ~.~~. /\))-cl.,-i'l-l~ ~ at one of our meet~ ngs the problem of a statutory board being

14 ~ created with terms so short that it could be rolled over in
<l 1:
15 ~ one session of the General Assembly or perhaps two or in one

J f,

'I.
:a:: term of

a

Governor,

and

the

idea

was

put out

that

perhaps

z

1'7

<.
'"" as

I

understand

the

law,

Charlie,

and correct me,

I

think you

i said this, if it's not there then the legislature is free to

19 do ,I it however they want to.

20
i

MR. TIDWELL: Yes, sir.

CHAIRMAN SMITH: In the creation of boards. And the

" , question was whether we should give consideration to an

23 'i enabling provision to exercise that power, that we have built
!i
24 : in it some sort of restriction. In other words, the legislature

'~
would have to create the board within the confines of the

..-_._-----_ _ .... -- ---- ---- ..- _. --- ,,- --- ---- ----
Constitutional Article.

J)"Ac\.{'..,'J1..',' 14
I'm not sure how practical a problem

~ it is. I'm not sure whether it's real or not. The ultimate

3 correction of anything the General Assembly does that doesn't

4 suit the people is that they get defeated at the next time, and
5 Ii that's kind of the basic way our system operates.

h!

Does anybody have any burning desire to try to tackle

7 that subject, or do you think it's not worth consideration?

~

(No response.)

()

Apparently not. Okay.

10

A technical question to the staff, if this

"z

]1 ~ Constitutional Article is adopted, do these Constitutional

o

"-

12

'" :

Boards

survive

that

process

as

statutory

boards

or

must

they

~It~~~r~!!~ ~ be re-enacted?

14 :~;;

MR. HILL: Michael did some research on this

(~

l:

15 .:> question.

\!)

'"::>

16 'z"
waz

MR. HENRY: I'm not sure if I understand the question.



17

r>' 00

There

is

parallel

statutory

language

creating

these

boards

18 with few exceptions where we would have to introduce companion

19 legislation along with this proposal, in instances in which

20 the statute refers to the Constitution and just -- I think

21 it's minor, since there is no case where there is nothing in

22 ii the statute with regard to the boards that we are suggesting

be taken out of the Constitution and remain statutory.

24

CHAIRMAN SMITH: Well it's a technical question but

~s ! one that we don't want to drop through the crack. We need to

PAGE 15
------- - - - -- ----------------------,
I
have a definitive answer before the next meeting because we !

, need to have all of these Constitutional Boards redrafted in

j bill form if for reason they die on the adoption of this ~ I amendment. That's the only question I raise.

In terms of specifics, along the same line there

o are two questions. The Veterans preference is now contained

7 in the Constitution, as I understand it. I believe it's along

the lines of "as provided by law", however on certain tests

there is a mandatory something or other. Does that need to

JO be handled by a special bill to reinsert that or do something

1) ~- to let the legislature flag the question?

MR. HENRY: At present in the statute there is a

Veterans preference as we see it in the Constitution right now.

_.- ~- ..

/

1 I ,~ . ,,' <l 1: 1".., .~
"

CHAIRMAN SMITH: It's in the statutes now? MR. HENRY: There's enabling statutes for the State

1(,

rll
2:
~

Personnel

Board

to

promulgate

rules

and

regulations

with

I -, ",,,7",--' regard to this subject and they have done so. Regulation C,

J ~, page 57, of the State Personnel Board Rules and Regulations.

19

CHAIRMAN SMITH: Well, but they can be changed

almost overnight, that's the point, and if in the wisdom of 'I the General Assembly they were to nail it down, I am wondering

~~ i whether some particular action has to be taken

.23

MR. HENRY: To prevent them from acting to change

this?

CHAIRMAN SMITH: That's correct.

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

.~._-~-

I

.)

MR. HENRY:

PAGE 16
I don't think you could restrict future

General Assemblies from changing it.

CHAIRMAN SMITH: I'm not talking about General

~ Assemblies, I'm talking about the Board. If they only have

it by rule or regulation, they can get rid of that overnight

and the General Assembly might wish to preserve this preference

by law, admittedly it would be subject to change by the x General Assembly. Does anybody know the answer to this

question?

10

MR. TIDWELL: Would you state that again? Don

Langham, who represents the Merit System, I think he might be

able to respond to you.

CHAIRMAN SMITH: The current Veterans preference,

in particular a five point credit or something, is in the 15 ~ Constitution. If this Board is removed from the Constitution,
~
happens to that credit?

MRS. HOLMES: That's -- the Veterans preference is

under the Personnel Board, it isn't under the Veterans

19 Service Board. So removing the Veterans

20

CHAIRMAN SMITH: Is it in your draft?

2i

MR. HILL: It is in the draft, but they have made

a recommendation that it be shortened

.:3 ,
MR.STERNE: We have deleted the specific language.
.)
. ,'t
MR. HILL: About five points or ten points, whatever.

25 , It is recognized as a preference in the Constitution to get

L_

._. . - __ -

- . - - - -..- ._ - .. - ' - . - _.. -"'" - - - - - - - - - . - - -..-.-- -

fT___ .__ __..__ _- .--_ .. -- ---

PAGE 17

i: around the Merit System problem, which Mr. Langham

MR. LANGHAM: Judge, as I understand the problem,

.,, the way the subcommittee has continued the Personnel Board

language, it provided that the selection shall be on the basis I

, ' of merit, fitness and demonstrated ability. Were Veterans

h preference not to be given some sort of Constitutional

status, there can well be an argument that a Veterans preferenqe

0 law would be unconstitutional if the Merit Board were confined

q to merit, fitness and demonstrated ability. So I expressed

10 an opinion to the subcommittee that they might wish to

c..;.i

11

Z
~

continue Veterans

preference as a

Constitutional provision.

':)
~.

12 ~ They then decided that they ought not to put in there the

((~~~~~:i/~,-.--'<I~)_S!!!!,~'.".~:;: specific number of points to be given to veterans but rather

\ "- " ,...~......_._...-/.,

:r.I.

:4

.~ ~

leave

that

as

a

matter

of

statutory determination

'.

~
CHAIRMAN SMITH: Does everybody understand what the

current action is on that?

(No response.)

All right, the next question was whether the

Jy I restrictions on the Pardons and Paroles Board in regard to

.iU death sentences and so forth, how is it to be handled if the

l' draft in front of you is adopted? It does not have those

specific restrictions in there and assumedly would leave that

to the wisdom of the General Assembly from time to time.

-1:. .+,

MR. STERNE: That was our intention in our short

form draft. We did consider it and I believe the committee

PAC;E 18

was sympathetic to the position that Judge Hill took. We

just simply didn't think it ought to be or needed to be in

the Constitution.

CHAIRMAN SMITH: Well, assuming the adoption of

this particular section on the PardonS and Paroles Board, my

A question to the Constitutional experts is where are we? I

7 assume it is currently a rule of the Pardons and Paroles

8 Board, again subject to change, and do we simply leave it

out there for the General Assembly to act on with no

iO Constitutional provision an1r0 statutory provision. That's

3~

11 "n": where we would be, isn't it? Can we just leave it open and

0

'J.

@~~~~ ii:::

,~
x c'

put

it on

somebody's

calendar

as

something

we

need

to

look at?

n)) r

j - - - ....". U

MR. TIDWELL: One implication, Judge, that that

/1

VI

ILl .,_, recommendation of the subcommittee has is now the Governor can ~. i
.. j~ ~ grant a temporary stay of execution. Under this present

language, I don't believe that he could.

CHAIRMAN SMITH: When you say this present language,

what are you referring to?

19

MR. TIDWELL: The present language under the

20 recommendation of the subcommittee. All powers of executive

clemency are given to the Pardons and Paroles Board. The -, )
present situation is all of the power of executive clemency

is given to the Pardons and Paroles Board with one exception,

and that is the Governor can grant a stay in order for the

Pardons and Paroles Board to consider an application for

:r- - -------

-_._-.- ---

----~~-----

-------------------------P--A--G--E----1--9-------1

I

ii commutation and my personal feeling is, having dealt with

'

,

death cases, that it's probably a good idea that somebody have

-- somebody like the Governor or somebody who can grant that

stay in order for the Pardons and Paroles Board -- they do

not review a case now under their rules until all judicial

review processes have been completed, and so what we're

talking about is when Pardons and Paroles Board now asks the

9 , Governor to grant a stay, the accused is going to be executed

q tomorrow, and they'll ask they're unable to get Judge

i \1 Findley to grant a stay --

!.1

1!

JUDGE FINDLEY: Right.

MR. TIDWELL: Another stay, and they will come to

the Governor and then ask for it. It kind of makes a package.

It's something that the Governor doesn't wish he had, I

. ] ) ~ think just as a practical matter somebody ought to be vested

-; '"-

:>
0~

w1..th

that

author1..ty

to

grant

a

stay

so

that

they

--

I

assume

~-;<
I the Pardons and Paroles Board could do it under this language

but they may not want to. They may rather have the Governor

19 do it and then they review the case and pass on it.

20

CHAIRMAN SMITH: Well is the problem that the draft

21 language, that the suspension would constitute clemency of

some kind and therefore be overridden by this provision?

MR. TIDWELL: As I read the present draft, all of

the powers of executive clemency are granted to the Pardons

and Paroles Board and the Governor is out of it completely,

20

which he is at the present time except for that one power.

2

MR. THORNE-THOMSEN: That may be just another eXilluple

3 of some draftsmanship that is going to have to be refined

4 Ii because I notice in the proposed draft that has been worked
5 up for the duties and powers of the Governor, it specifically

(, 'i provides that the Governor may suspend --

7

MR. TIDWELL: It's over in his?

8

MR. THORNE-THOMSEN: It's in his and I think we

would again have to modify the language that you're talking

10 about to try to preserve and make sure that there is not a

11 ~ conflict.

o

0.

w

@/"''''' ;12 ~

MR. TIDWELL: I wondered why I didn't raise this

point at the last meeting and I understand why now, I was

14 >- satisfied that it was taken care of there and I had forgotten

'r-".

15 .~ that. ~

:;,

16 c~;

CHAIRMAN SMITH: Well it's not very tidy to have

z.

<l

17 ~ some.confusion about it between the two Articles.

18

MR. STERNE: Well Mr. Chairman, I am confident

19 there was no intention on the part of the committee to remove

20 that prerogative from the Governor.

21

MR. TIDWELL: And I don't think it was either because

22 I wasn't worried about it, I didn't bother about bringing it

up when I was at that meeting, and it is taken ~aLe of some-

24 . where el se .

25 '

JUDGE FINDLEY: That's in Paragraph V, isn't it, on

PAGE 21

~~ ~~~~:~:~~~~~~f-~e:;;~-;:~~:n::, _ ._-------- .. .. ~

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

line 33 of the Section II?

!

ii

2 1\

CHAIRMAN SMITH: Okay, well somebody just make a

3 .Ii, note of that and be sure it's handled in the final draft

"

4

The last thing I have and I'm not presuming this

5 to be an exhaustive list, was some confusion about this

6 zoning power or condemnation power on these highway funds

7 because, as I recollect the problem there was some federal

8 reason, some federal funds reason that this power be

9 Constitutionally mandated instead of statutorily.

10

MR. HILL: Yes, that's true, there was a potential

"z
11 ~. problem with Paragraph II of Section VIII on the State

o.,.

12

"' :

Transportation

Board

because

it

gave

the

General

Assembly

(~)~~ ~ ~s~
~/


specific power to comply with federal law.
I

We have encountered

14 ~ this same problem in a number of other sections where we have

<.
T-
IS ~ had a specific -- this relates to highway beautification and
"'":OJ
16 ! it's part of transportation funds. We have another place Q
t

17 ~ where it refers to other specific federal programs, and what

1:~ we are attempting to do in Article III is to draft a broad

Ii

19

,I
!

provision

to

give

the

General

Assembly

all

powers

as

are

20 necessary to comply with federal law and to participate in

21 federal programs including, and we specifically say in there,

22 the powers of taxation, eminent domain and zoning to the

".;..) extent necessary to comply with federal law. So we haven't

24 just dropped this out and ignored it. We are very well aware

25 'i that this is something that needs to be continued in some form, ~

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

..

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

..... - ...

- - - - - - ..- ..

. - - , , _ . _.

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

PAGE 22

1 and we're dealing with it in Article III.

I

2I
I

CHAIRMAN SMITH: Well as I understand the second

3 I part of that problem, it is that if by some fluke Article IV

4 I and V were to be passed and Article III not, then where are we?

i

5

I
I

That's

the

second part of

the

puzzle.

And as I understood it,

6

I I

and

I

am bringing this

up

for

the

committee

as

a

whole,

perhaps

!

7 I that part that is necessary should be tacked onto IV in

8 exactly the same language as in III, so if they both passed

9 they are duplicative and then when you printed the thing or

10 codified it, you wouldn't have to repeat it, but it would

"7.
11 ~ save that possible gap in the law. Is that the scheme? o

....

(~r~ ~~

12 ~
~

MR. HILL: This is a problem, it's a general problem

with transferring things from one section to another. We're

, 14 .~.. going to do what we have to to preserve everything. I think

'<
:t

15 .~., that is a staff problem and we are well aware of it and we'll

:':"-

16

.~...
a

have

to

work

on

it

and

make

sure

that

that's

clear.

We'll

Z

17 ~ check with the Office of Legislative Counsel and the Attorney

18 I General's office to make sure that that's taken care of.

19

CHAIRMAN SMITH: I have another note but I can't

20 make out what it says.

i

21 'I

MR. STERNE: We wanted to alert the whole committee

to a concern that we had about this business of piecemealing. 23 One of our actions is going to cause an equal and opposite

24 : reaction somewhere else and it needs to be taken care of and

::~ IIi particularly we wanted this committee to know that we did not,

lL-

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

PAGE 23
::::::~u::::~:st::~~:t:::~-o:~:e:::o::o:::::::::~o I~--l
, 111

:1'

I

3 "il deal with. ,I

4 I"t

CHAIRMAN SMITH: I think it is more a technical

Ii
'I
5 problem than a philosophical one.

h

MR. STERNE: But it could be a problem and we saw

7 it in several places as we went through, looking at

, I Constitutional provisions and the parallel statutory

9 I"i statutes. And we did want to get that in the record that

"
10 absent some good clean up work there, we could create a

cz'

11

1-
.'oQ"...

problem

for

ourselves.

J:; :

~-=~! ,~~Y~,

~

CHAIRMAN SMITH: Was there anything else? MR. STERNE: No, I don't believe so. There are

14

>-
~.

other

members

of my

committee,

Mrs.

Holmes,

do

you

have

'"
x

15 :~ anything?

,;,

16 3'"

MRS. HOLMES: Are we finished with our subcommittee?

,~

z

'7 I>: J, "'

CHAIRMAN SMITH: That's what I'm asking.

MRS. HOLMES: Well I have something to say. I was

19 a minority opinion and I figured I might as well be a 20 Ii m. 1no.r1ty 0p1n10n h ere.

1I

CHAIRMAN SMITH: All right.

22

MRS. HOLMES: It's something on Veterans preference,

I was the one that was assigned to interview the Personnel

Board and I had some remarks from them that I just thought were,

noteworthy to pass on. The Board, first of all, was unaware

-_.----_.- ----- ----.

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

r--

24

:1 that Veterans preference was in the Constitution and they

II

II
2 thought it should have been. Of course, I was talking to two

lawyers. They objected also -- if they were aware of the

4 fact that they could change this, I don't think they knew

5 that. The career military are covered under this and they

6 felt that inequitable to have career military people covered

7 under Veterans preference. They also felt that there should

8 be a time limit. Now my own personal opinion is that I would

9 prefer it not say anything in the Constitution, not because I

0

10 am anti-veteran. I have a husband that is a veteran and we

,~

z

11

let:

have had many benefits

from

them and

I

think that

if we ever

:>

Q.

'~

.. 112 : get another draft they're going to draft everybody so we will no longer have the sex discrimination to be concerned about.

14

>t;;

But

I

think

it

speaks

more

to

a

statute

than

it

does

to

a



:I:

15 .:> Constitutional provision and if it has to be enabling, I have Cl

et:

::>

16

~ az

been

hearing

that

it must

be,

couldn't

we

put

it

in

Article

17 ~ III of the legislature, to give them the power to enact laws.

18 I,I' I know it is a very popular thing and I think we should

19

Ii!l
I'Ii

maintain

it,

certainly

no

one

is

going

to

vote

it

out,

but

I

20

:i
I'
ii

just don't

think

it

belongs

here

and

I

think

the

comments

of

:1

21 ! i the Board are interesting and particularly the career military.

22 I think this is really unfair to people that are just coming

in the system, to have someone who has put twenty years in, is

24 now on a pretty nice pension, get an automatic five points. I

25

!
I

don't

think that

is

language that

should

go

in

the

Constitution.

<L

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

.. --

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

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

Ii That's my problem.

II

2 Ii

CHAIRMAN SMITH:

PAGE 25
Well the current draft doesn't have

3 anything about five points, it adopts the theory --

4

MRS. HOLMES: But it does say preference, so they

5 could give twenty points.

6

CHAIRMAN SMITH: It does adopt the ideal or aim of

-: preference. However, it is limited to those people who served

& during time of war. In other words, if a fellow was in for

,

9

Ii i:

twenty years

but we

didn't

happen

to

have

a

war

in

that twenty

10 years he wouldn't get a preference. Isn't that right?

MRS. HOLMES: Name me a period of twenty years when

we didn't have a war.

CHAIRMAN SMITH: Well that's completely hypothetical.!

MRS. HOLMES: Completely. Well that was just some

points that, you know, I brought up and our subcommittee

didn't think it was worth considering.

MR. STERNE: We outvoted my friend.

18

CHAIRMAN SMITH: Well, where we stand now is that

19 the aim of veterans preference, without regard to the specifics!

20 ' of it, which will be left to the General Assembly and the Board, 21 is adopted by our draft.
-... 1
MRS. HOLMES: Well could we have an accompanying

recommendation that -- I mean would it be the feeling of the 24 committee that we could recommend to the legislature that the, 25 you know, considerations be put into legislation?

--------- -- -- ---------- [I--------------~------~

PAGE 26

1 :i

CHAIRMAN SMITH: Well I think in the comment section

I
II

2 I' I hope somebody is going to produce that this idea could be

3 Ii incorporated there for consideration by the General Assembly.

4

In connection with the Veterans Service Board, I

5 have a copy of a letter signed by the different state commanders

6 of the veterans groups advocating the retention of the Board

7 as a Constitutional status, and I want to get it in the

8 record somewhere. It didn't show who all got it except a

9 few and I didn't know

10

JUSTICE HILL: Mr. Chairman, a question arose in

l1

Z

11

I-
...oO'
Q..

the

other

subcommittee

this

morning.

Would it be possible

~r~12 ~
~~

for

us

to

create

a

system

whereby

as

we

review

these

drafts,

we could write, say Mel Hill, where we see little ticky

14

;
l-

problems

so

as

not

to

have

to

bring

them

before

this

whole

V>

<:

1:

15 ~.., group, with the hope that Mel would be able then to get it to

'"::J

16

.~..
c

the

proper

subcommittee

and

whatnot.

The one, for examp~e,

Z

-0:

17 ~ which was brought up, is that the election returns shall be

18

II
,[

sealed up.

Well Dr. Gibson I think very properly thinks that

II

19 !I we don't need the word "uplt in there, but we don't need to

20

II IIii

take

the

time

of

this

whole

committee

--

I

do

it

only

as

an

21 iI,l' example. Can we create such a system? If not, I have another

22 little ticky one which I will bring up.

23

CHAIRMAN SMITH: Well I thought that system was in

24 place and you needn't to write a letter, because we don't

25 i have that much time, just pick up the phone and call Mel and
, , - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ' . - , - . ---_._,---_._---,~---,-----_.--- -- ---~---- ----.,.

PAGE 27

IT------- - ~- -- --- -

--~--~~~

-

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

1 Ii tell him to get rid of that "up". Okay?

!

,I

"

::;

;1 I

MR. HILL: Fine.

;!

3 il

CHAIRMAN SMITH: Okay, let's turn to the subcommitte~

I
4 :,'I on the Governor and the Lieutenant Governor. Nick Chilivis
I,i
!!
5 could not be here today, I understand he had some sort of

I'
6 I appointment with a fellow named Lance.

"I

MR. GOWEN: And the Judge.

S I,

CHAIRMAN SMITH: But Charlie Gowen is here and will

I,

9 bring us up to date on that committee. Charlie, I don't want

10 to take it out of any order, but I had just jotted down what

11

~
7.

I

recollected you were considering.

One of them is the question

"ou-.

({~.~~ ~~~,~ ~12 ~ of succession.

,--~

MR. GOWEN: We considered that and our recommendation

'----

14

>.
~

to

the

group

is

that

a

Governor,

after

being

out

of

office

'<

15 ~ for four years be eligible for re-election. He could serve

'=", 1b '~" eight years under the present provision, then would drop out
z
17 ~ for four and be eligible for re-election again after four

18 I years.

CHAIRMAN SMITH: Does everybody understand the

recommendation, it is that you could have two successive 21 terms if elected and under the current proposal you are

forever barred from holding that office in the future, and

the committee recommendation as I hear it is that after four 24 yea~s you could come back and run. Is that --

MR. GOWEN: That's right. Paragraph I is on lines

1'A(;E 28

maya Governor be elected twice, then run for the

4 office of Lieutenant Governor or is he barred from that office

5 also?

6

MR. GOWEN: He can run for any other office under

7 the present Constitution, as I read it. He is only barred

8 from running for the office of Governor.

9

JUSTICE HILL: Does this mean he might ought to be

10 barred from the Office of Lieutenant Governor? For this

11 ".Z... reason, if he ran for the Office of Lieutenant Governor, then

12

'.oQ"...
~

under

the

Constitution

if

something

happened

to

the

Governor,

@r~ he could not become the Governor.

-

14 ~

MR. GOWEN: That might well raise a point the

~;

<

IS

I
.:>

Supreme

Court

would

have

to

decide.

",~

:J
16 .~...

JUSTICE HILL:

17

Czl g

those

possibilities.

I would like for us to avoid all of

18

CHAIRMAN SMITH: I suppose the counter-argument, and

19 I don~ want to be presumptive, is that I believe there have

20 been instances where perhaps the Governor's wife was not

2i barred from serving the third term and then the Governor could

2:2 come back the fourth term and you might end up with some sort

23 of royal family.

24

I,
!'

MR. GOWEN: That was discussed by the subcommittee

25 i and the subcommittee decided it was probably pretty remote, but

" -_ __ ~-

._._. .-~-

--~

..- . ..

PAGE

~~ut---~------"-- -~--~- -~- "~-----~---
if the people wanted to do it, that was the people's
II
2 IIIi prerogative.

Ii

3 I:

CHAIRMAN SMITH: And if they wanted to elect

29
---I
I I
I I
;

4 Lurleen

\:1

:1
5 It

MR. GOWEN: If they wanted to elect Lurleen or Mrs.

ilb !' Busbee, or elect anybody that the people wanted to, that was

their prerogative. But that was the thinking of the

committee.

CHAIRMAN SMITH: Well, any further discussion on

10 that recommendation?

JUDGE FINDLEY: One question. Suppose the Lieutenant! I
Governor should replace the Governor and serve two years or i

three as Governor Talmadge did that time, there's a Supreme

Court case on that --

MR. GOWEN: We've got a provision to be considered

that has something to do with that and that is whether he

becomes Governor or whether he stays as acting Governor and

JR that is covered a littlehter in our recommendations and I

19 think that would govern. If he becomes Governor, why he

"?O

i
II

then

I

think would

be -- would have

another term,

but he

I

ii

21 'I might have only six years instead of eight years.

JUDGE FINDLEY: Yes, sir. Under the existing law I ,..:..') think it was that you could serve the two years, I believe it

.>~ was when they had the two year terms, and then you could come

25 back in and run for a term successfully after that but you only.

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

---~----

PAGE 30

Ii had the one term in succession then instead of what we've got,

i2 two terms, now. So under the proposal that we now have, the
3 iI Governor could serve in succession two full terms and then Ii
4:1il any part of another term if he came in in some capacity other
i:
5 !i than as Governor.

MR. HILL: In the proposed language, there is a

limitation that no person could serve as Governor for more than

8 eight consecutive years so that if a Lieutenant Governor would

9

, Ii

become

Governor

or would

serve

an

unexpired

term

for

two

"

10 years, he would only be eligible for one more term, not two.

"z

... I! ... o0: ,

JUDGE FINDLEY: I didn't understand Mr. Gowen. I

(~\~~12 ~
~~

thought

the

Lieutenant

Governor

was

just

serving

as

Governor

'gJ;

- and never did really

14 ;...

MR. HILL: That's right, but if he should run for

'-"<

:I:

15 ~~ the unexpired term and serve for those two years of an

"0:

::>

16 o~ unexpired term, he would only be able to run for one full

z

<:

17 ~ term after that, so it would be six years rather than ten.

18 Ii

JUDGE FINDLEY: I didn't understand the language in

'I

19

Ii
II

the

thing.

20 III'
II

CHAIRMAN SMITH: Maybe we ought to wait on that and

21

II

II
Ii

make

sure that this

provision,

if

adopted,

is

consistent with

22 " the later one. I"

23

MR. GOWEN: Well this says that you can't serve for

i1
24 ,i more than eight consecutive years, is in line 23, 22 and 23. !

25

CHAIRMAN SMITH: Well what happens --

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

-~

---~ ~

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

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

PAGE 31
---I MR. TIDWELL: Doesn't that creat:-~-~~-:~-tua~i~~--
I
i
where you could go on and elect him, he just couldn't serve I

3 and then you have to have a special election

4

CHAIRMAN SMITH: That's the question I was going to

5 raise. In other words, if two years into one term the

(; : Lieutenant Governor moved up, he could be elected for the I
7 ': four year term, stand for the second four and then half way

through be out of gas.

l!

MR. TIDWELL: Then what do you do, is it just for

10 the remainder or do you elect the next Governor for two years
>:':' Z
or four years? Is that addressed here?

CHAIRMAN SMITH: I guess you get the next Lieutenant

Governor, don't you?

MR. GOWEN: If it stays as it is now, which isn't

)) ~ recommendation of the subcommittee, but if it stays as it is

oX ::>

jlJ

co Z

now,

he

doesn't

become

Governor.

If he serves two years as

t <:
1.7 ~ acting Governor, then he would have eight years after that

if the people saw fit to elect him.

19

CHAIRMAN SMITH: In other words, it depends on the

20 time he moves up as to whether he's acting

21

MR. GOWEN: It was exactly the same situation when

l' Herman Talmadge had two years of his father's term, then he

23 had four years of his own, which the two years of his

24 11 father's term was not counted against the Constitutional

provision then that limited tbe Governor to four years.

l~

,\ I'
h."

LL~\'

32

t,--~~-~--------__---""---

Ii

i

JUSTICE

HILL:

I think that was because of a unique

! 2 political circumstance at that time rather than anything

3 contained in the Constitution.

4

JUDGE FINDLEY: The Supreme Court held that, didn't

5 it?

6

MR. GOWEN: Unique political situations have a lot

... I to do with how Constitutions are interpreted.

CHAIRMAN SMITH: Well maybe it will clarify this

9 if before we put this recommendation to a vote, you explain

10 jump if you will to the Lieutenant Governor's provision and

:,:j

Z

11

i=
'.":".>-.

make

sure we understand

it.

12 :
(e);~,, ~

MR. HILL: That's Paragraph VIII. MR. GOWEN: "In case of the temporary disability

14

,
!-

of

the

Governor,

the

Lieutenant Governor

shall

exercise

the

'II

<

1:

15 ,:, executive power and receive the compensation of the Governor

'":":>"

16

.~..
a

until

such

time

as

the

temporary

disability ends

z

.~

17 ~

"In case of the death, resignation or permanent

18 disability of the Governor or the

Lieutenant Governor"--

19 well that deals with succession. The question before the

20 subcommittee as I recall was whether the Lieutenant Governor,

21 when he succeeded, when he took over the Governor's duties

22 i should become Governor or should remain acting Governor.

23 The recommendation of the subcommittee was that in case of

24 a temporary disability, he would be only acting Governor, but

25

I
ii

if

the

Supreme

Court

declared

the

disability

to

be

permanent,

or

II_:L.__"_" "_,

._~

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

PAGE 33
--_._--------_.-_._------ ----j

the death of the Governor, that he would then become Governor !

II

2

:l
!I

and would have the

title of Governor and that raises

the

Ii

3 II question we were discussing in connection with the other.

'I

I

4

CHAIRMAN SMITH: Well, to go back to Judge Findley's

5 question. If a Governor were ruled permanently disabled in

6 the first year of his first four year term, then the

7 Lieutenant Governor would become the Governor.

MR. GOWEN: That's right.

9

CHAIRMAN SMITH: For the remaining three years.

10

MR. GOWEN: That's right.

MR. HILL: Well now wait, that's one option.

MR. GOWEN: There is another option.

MR. HILL: There's an alternative -- there's two

alternatives. He can be -- presently he would not become

15 .~0 Governor for the unexpired term, he would become Governor

'":;;

III

~
Q

until

the

next

general

election,

which

would

be

less

than

T

-<:

17 :;; two years. He would become Governor for that short period as

IH
il opposed to the full, unexpired term. But the other option

19
would be instead of having him to become Governor just until

20
, the next general election as is presently the case, he would
I
2J I:
i become Governor for the full unexpired term. That is alternative
y,
(b) here and I'm not sure that the committee resolved this.

MR. GOWEN: I think the committee really passed it
24
on to the whole committee, as to whether he should hold office

only until the next general election or whether he should hold

r r - - - .. -. --_..- ---~---"-------~'---"-' ----.~------.---.
!!
I i' -- serve the balance of the term.

34 ') \f'L'
j: .. VL'J
Is that your recollection?

2

CHAIRMAN SMITH: In the first alternative, if he

3 stands at the general election, is it for a two-year term?

4

MR. GOWEN: For the balance of the term.

5

CHAIRMAN SMITH: And that doesn't count in his

6 power to succeed himself?

7

MR. GOWEN: Well it would count if we adopted the

8 language that we've got up in Paragraph I, it would count

9 :1 because he can't serve as Governor more than eight consecutive !:

10
11
12
(@@)r"

years.

"z

....
'0"

term.

."..-.

'"
IJ

two.

~
iz=
w

~

Therefore, he wouldn't be eligible more than one other If he stays as acting Governor, I think he could have
CHAIRMAN SMITH: Well the only time he's acting

14 .>..-. Governor though is when there is temporary disability as

V..>:

:t:

15 ~ opposed to permanent.

OJ

:':">

16 'z" w

MR. GOWEN: Well that's the way this is, under

0

L

.~

17

0'
'"

present

law

he

serves

as

acting

Governor

until

the

next

18 general election. He never becomes Governor until he gets

19 elected.

20

JUSTICE HILL: Let me pullout a proposal, and I

21 do not make it in the form of a motion because I'm not sure

22 that I really have thought it through completely, but this 23 committee has put on the back of the other subcommittee the 24 job of deciding how many elected Constitutional officers there

')'::: shall be and we presently have proposed that the Office of State

School Superintendent not be elected.

PAGE 35
"
I think the reason for

2 the momentum is we have too many elected officers. The

3 committee presently has under consideration whether or not

,) the Office of Comptroller General should be continued as an

5

I
I'

elected officer

and

for

purposes

of discussion

since

I

b personally favor retention of the Office of Comptroller
., General, let me suggest that we consider abolishing the

g I Office of Lieutenant Governor. This would cut down on the
9 : number of elected officers which you have to submit to the
10 people. This would permit the Senate to choose its own ,.oJ 7-
1; presiding officer, which I have heard recommended from what

I consider to be knowledgeable sources. This creates the

problem of what are you going to do with the succession.

14 ,... Well, except for the year 1945 or '47 when the office of J>

<l
:r

'5

.tl
~)

Lieutenant

Governor was

first

created,

we've never

had a

:<

::J

] ()

Xl
7:
'a"

succession.

The Office of Lieutenant Governor as suchms not

Z
.., ~,
J '".<> proved, I don't think, to be a necessary step in becoming

I ,'-<:
Governor. I don't think we have ever had a Lieutenant

19
Governor who became the Governor, so we don't need -- have we?

20
VOICE: Vandiver.

JUSTICE HILL: Right, you're correct.

MR. GOWEN: Griffin.

JUSTICE HILL: It's not essential that we have it

as a training ground for the office of Governor, in any event.

This would leave you with the problem of what do you do about

iT---__----~_-----_~_-_----__-----------",---
I: the problem of succession.

PACt,; 36
You've got to have some form of

2 succession. Well, one possibility is to name one of the

3 i existing statewide Executive Officers to be the successor.

4 And it seems to me that one logical choice would be, well say

let's just take the Secretary of State, and in the event of

the death, resignation or disability of the Governor, the

Secretary of State would become either the acting Governor

~ or the Governor. And I raise this question now because I

9 think it might make a difference how we are proceeding, if

10 we are doing something other than having the Office of

lz?

11

....
'o"

Lieutenant

Governor.

"w-

~@ r~'12 ~

Well it occurs to me that this would put an awful

lot of pressure on the Office of Secretary of State. In this

14

;. ~.,-

coming

election,

there

would

be

people

perhaps

running

for

i

15 .!) that office if this change were to be in the mill, that

"oX
:>

16

~ ozw

wouldn't

otherwise

be

seeking

that

office

and

so

as

not

to

<

17 ~ put that much pressure on the Office of Secretary of State,

18 I it occurs to me that maybe one solution on succession would

19 be to provide that in the event of the death, resignation

20 or disability of the Governor, the General Assembly, meeting

21 as a whole, shall select from the other Constitutional
--,>'
I Officer, the other Executive Constitutional Officers, which of

those shall become either acting Governor or Governor. This 24 would keep anyone of the other Constitutional Officers from 25 I being subjected to the pressure of having a lot of folks running

PAGE 37

for that office as a stepping stone to the office of Governor,

2 would provide for succession.

.\

CHAIRMAN SMITH: Well maybe we better put first

4 things first. That preposes the Office of Lieutenant Governor

r:
J

is abolished, and as I understand it, the subcommittee

;"'! recommendation is that it not be abolished.

7

MR. GOWEN: That's correct.

8

CHAIRMAN SMITH: So maybe we better get that decided.

9

JUSTICE HILL: I did not feel I could propose its

10 abolition without offering some means of succession, and I ..,

1I

~
-.

don't

really

propose

its

abolition,

I

think

it might

be

worthwhile for discussion in the full committee.

MR. GOWEN: The subcommittee also considered whether

or not the Lieutenant Governor should continue to be the

':<r:

15 .~ presiding officer of the Senate. Our research found that
'"'".:J

16

~ <:;

the

states

are

about

evenly

divided,

about

half

of

the

states

z

17 ::;; have the Lieutenant Governor preside over the Senate, the

18 other half do not. The -- we had a very strong appeal from

1':1 the Secretary of the Senate that we not do that, that we

20 ,i' permit the Senate to elect its own presiding officer. At the 21 request of the subcommittee, I was asked to interview both

the Lieutenant Governor and a member of the Court of Appeals, 23 the Honorable George T. Smith, who has been Lieutenant 2,1 Governor in the past and also Speaker of the House.

The present Lieutenant Governor felt that the office

q------

PAGE 38

I' ought to be retained because he had found that it was very
"i"l
2 !! valuable to have the title of Lieutenant Governor when he

3 made trips overseas at the request of the Governor in connect-

4 ion with trade delegations and things of that sort, because

5 he said he found that_people in foreign countries were quite

6 title conscious and having the title of Lieutenant Governor

7 gave him prestige that he wouldn't have had had he been

6 President of the Senate or some other office. He didn't seem 'i I
o I to feel that it was essential that he continue as presiding

10 officer of the Senate. I think the present Lieutenant Governor

"z

11 " felt that that was a matter about which he didn't have any

.C,
Q.
'

~ 12 ~ fixed thoughts.

~r~

I talked to George T. Smith and George T. Smith

14

>
:;;

said

he

thought

it

ought

to

be

continued

and

that

he

thought



:I:

15 ~ the Lieutenant Governor should continue as the presiding

.:-
16 3=> officer of the Senate. He said his reason for it was that o L
<1
17 ~ when he was Speaker of the House of Representatives he felt

18 he was only answerable to the people in his county, Clayton

19 County, who had elected him, and the majority of the members 20 of the House of Representatives. They were the ones that 21 elected him and they were the ones he was responsible to. 22 He said when he was elected by the people of the state to be

Lieutenant Governor and preside over the Senate, he felt then
24 I

---, PAGE 39

~-

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

1 !I of that kind than he did when he was Speaker, and he felt

I

, 'Ii that if the Senate elected its own presiding officer that

again you would have a Senator that was only responsible to

4 the people in his Senate District.

5

So the subcommittee I think hoped that this full

6 committee would give serious thought to whether or not the

7 Lieutenant Governor should continue as presiding officer of

8 the Senate or whether the Senate would have the same power 9 that the House has to elect its own presiding officer. I 10 believe a year or two ago -- Tom would remember about it --

but a Constitutional amendment passed the Senate and failed

in the House by a very small number of votes to give the

Senate -- to remove the Lieutenant Governor as the presiding

officer of the Senate.

15 ~
'':"">

CHAIRMAN SMITH: Well to get it in context, the

16

~
,~

recommendation

is

that

the

office

be

retained.

C

2

-0'

l7 ::;

MR. GOWEN: That's right.

It-;

CHAIRMAN SMITH: But it is up for grabs as to

19 whether that office should have the duty of presiding over

20 the Senate. Well let's get that --

21

MR. STERNE: I just have a question. I just read the

I paragraph, it says "The~ shall be a Lieutenant Governor II

and the only responsibility ascribed to him is presiding over

the Senate. What is his job if you remove that from him.

CHAIRMAN SMITH: I was gang to ask that.

PACE 40

MR. GOWEN: By law he is given other duties, and

there is no reason why by law he could not be given other 3 ! duties here.

MR. STERNE: This says he is given compensation by

law, but I don't see anything else.

MR. GOWEN: When the office was originally created,

7 it was contemplated that the Lieutenant Governor would go horne

s when the legislature adjourned and go back to plowing or

Y practicing law or whatever he did when he was at horne, and

]u that his only duty would be to preside over the Senate. Now

11 ;"0 that has changed and the Lieutenant Governor has become a J.:

,;.~

O.

~

12 ~ full time job and he maintains an office and he is there and

,.;;.'jJY!i.J"

:

((~))r~!~ his compensation has been increased because of that over the

- - _ / '-.....'-- . . / / /

'r.
!f years.

CHAIRMAN SMITH: Maybe if you cut the compensation

..:t

1tJ

.,~' '
i:.

they

would

go

horne

at

the

end of

the

session.

''z"0

] I<".

MR. GOWEN: That might have a lot to do with it.

1x

MR. HILL: Well you know the practical problem is,

!'j I'm sure you are aware, that if you are going to decide to 20 I make him a purely executive officer, what executive responsi-

21 bilities do you give him or allow the General Assembly to give 1 " him that is not going to interfere with the Governor's power , ', as Chief Executive and since they don'~ run together, you 'J can't assume they are necessarily going to get along that

well. So you really do have that other dilemma. If you're

PAGE 41

going to give the General Assembly the right to give him

II executive responsibilities, well then what kind of other

) problems are we going to create.

CHAIRMAN SMITH: What does Mr. Mondale do when he's

5 not presiding over the Senate?

(.

REPRESENTATIVE BUCK: Makes speeches for the ~resident.

7

DR. GIBSON: He's out of the country

MR. GOWEN: I think he does pretty much what the

~ President wants him to do presumably.

CHAI~ SMITH: Of course they run on the same
i..'J
,, . ~ ticket, that's the difference.

1.. ,.I

MR. GOWEN: That's it. It isn't practical -- the

".

subcommittee reached the conclusion that it was not practical

,~., under our form of election to have the Governor and the
-<
T
I" .~, Lieutenant Governor run as a team. They do run as a team in '.'J
many states where they have an active two-party sys~em and

where the Democrats will have a slate of Governor and Lieutenant ., J._ Governor and the Republicans would have the same, but under

l'! our system of election, it's possible, as has happened, to

have a Lieutenant Governor and the Governor that were not

compatible.

MS. ADAMS: Has anybody asked the Governor what .,.,, his opinion is of the value of that office? How it would . I serve the state?

MR. GOWEN: As far as I know, no one did, on our

42
subcommittee.

MS. ADAMS: If he ceased to serve as President of

the Senate and that was his only duty assigned him in the

Constitution, maybe we ought to find out from the Governor

what he might be doing.

(

MR. HILL: Well now Zell Miller had proposed this

7 long ago, that he felt that office would best serve as an

ombudsman, you know, a place where people could come and have

q a voice at the highest levels of government. You kno~ that

10 was a recommendation he had for one of the kinds of functions ,...
z

MR. HARROLD: Take over for Tim Ryles?

CHAIRMAN SMITH: Well there's nothing to prevent a

citizen from doing that now, is there?

:5 .~

MR. HILL: No.

',6 .:z;::J, ~,

MS. ADAMS: And that would only be effective if he

...-.;,)
2

''7 ~ had the ear of the Governor.

CHAIRMAN SMITH: And he might not under our system.

MS. ADAMS: That's right.

MR. HENRY: Mr. Chairman, I did some research at

the request of the committee on the issue of the legislative

functions of a Lieutenant Governor and I found that in recent

years, the present Lieutenant Governor at least, has by Senate

rule acquiesced in shifting his powers from the legislative --

I think he prefers being Executive. He has given up the power

PACE: 43

to appoint committee chairmen, he has given up the power to

aS$ign bills to committees, he has given up the power which I believe he formerly had to break a tie roll call vote which I presented a memo on this -- it's very questionable whether S he could do that anyway. He has also, as Mel stated, in a [, position paper issued by that office felt that a very effective: purpose that he could serve would be as a type of ombudsman.

He has also given up his position on the Legislative Services

Committee and initiated legislation which allowed him to appoin~

,j somebody to serve in his place on that. These are all powers

.
It which at least the Council of State Governments felt

S!.

(~~~)))("""" ~';\~IJJ.~
-_// / \...>~.,

1' I-

~";~

characterized

the

powers

of

a

legislative

Lieutenant

Governor,

u.

",') legislative model, which they characterized Georgia t s

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

, ~ Lieutenant Governor as. I think, like you stated, that the

'.0

".1:

~ Senate feels that they should be able to elect their own

(')

f_:

)

L
0

,presiding

officer

for

several

reasons.

Number one, you don't

"~:

I 7 '.' know if the Lieutenant Governor is going to have any

parliamentary experience. He can in effect throw a wrench 1 : into the works without even knowing it. I think also the i: I fact that he is limited to a four year term, although he can - i succeed himself, at least the leadership in the Senate is

scrambled or have the potential to be scrambled every four years, whereas in the House, you have the leadership can there's no limitation on the time that he can serve as Speaker and therefore you weaken the leadership in the Senate

l'A.GE

44

relative to the House.

2

The pros I found as to his legislative functions was

3 I' the fact that you have an elected -- a man elected or a

4 person elected statewide who is serving as the leader of one 5 of the legislative bodies, which goes back to a historical

h function of the office, and that was the function of the office

7 to serve as the Governor's advisor and also preside over the

t: upper body.

'.J

Another pro would be that it gives him something to

10 do while he is waiting around to succeed the Governor, without

~\

.:>

7

11 .:> interfering with the Governor's executive powers

i...
12

It also could possibly serve as a liaison between

\~r~9. the Governor and the legislative body. So you have pros and

14

>-,
,e"'

cons

on

both

sides.

I don't know which side is stronger, but

<,

1.'

15

,..,
'",.<

at

least with

respect

to

expanding

his

legislative

functions

::>

16

.'"r
w
Czo

you

could

also

get

into

a

separation

of

powers

problems

with

<>:

! 7 ',1" respect to

if he's serving on statutory executive boards

Ig and his legislative functions are expanded, you could possibly

19 have a legislative officer exercising executive functions.

20

I point out also the fact that the tie roll call

21 vote, where it is in the Constitution that a bill has to be 22 passed by a majority of the members elected to the General
),
~.) Assembly, and he is not elected to the General Assembly. If
.14
you have a bill that passes because of his vote, do you have
2)

who have been elected to that body.

PAGE 45
~- --- --- --------------,
I I
I
i

2

CHAIRMAN SMITH: Judge Hill answers those questions

3 easily.

MR. HENRY: I just throw that out as a consideration. i

5

DR. GIBSON: Mr. Chairman, every study made of the

Lieutenant Governor's office around the country, and there

7 have been many of them made of the Vice President, comes down

" finally to the issue of succession to the Chief Executive's

Q Office. The Vice President of the united States has no

: I.>' earthly reason for being other than to be there in case some-
,"
Ii ,- thing happens to the President. And so I think, you really --

if you try to give additional powers to the Lieutenant Governor

I think that, as Justice Hill has suggested, if that is the

sole reason for that office, succeeding to the Governorship,

perhaps we should address ourselves to other possibilities,

unless we think the expenditure of funds to have a person

wait around for the Governor to become ill or disabled or die.

I have no problem with that, I don't think there's too much

money in that office anyway, but that appears on the basis ::() everything I have ever read, the only reason for having a

",)
Lieutenant or Vice person around is to be there in case the

Governor or the President dies.

CHAIRMAN SMITH: Well I can think of some counter

.,-; arguments to Judge Hill. I might vote for a fellow for

Secretary of State because of a particular characteristic, but

Ir-~-----------_~-----_

. -.---- ----.-~-.--.

i! I wouldn't want him as Governor.

J\

46

2

DR. GIBSON: Oh, yeah, I would

CHAIRMAN SMITH: When you vote for Lieutenant

4 Governor, you're thinking that here's a man who might become

5 Governor.

DR. GIBSON: Oh, I agree 100%. My good friend

"' ' Justice Hill -- I would violently oppose that idea of the

8 Secretary of State.

JUSTICE HILL: I didn't propose that. There are

10 two people here who apparently misunderstood what my proposal

11

~. a:

was.

.~

DR. GIBSON: I do think that the idea that if that

is the only job he's going to have, then it ought to be open

for grabs.

CHAIRMAN SMITH: To try to get this thing in order,

""'-'
::>

16

~ 'oz"

let's

decide

first

whether

to

accept

the

recommendation

of

the

<

17 ~; subcommittee that we keep the Lieutenant Governor and next

18 we'll take up the question of what he does.

19 I

All right, on the first question, the recommendation

2U is that we retain the Office of Lieutenant Governor. Any

21 further discussion on that?

.22 !

MRS. HOLMES: I just have one question.

23 I

CHAIRMAN SMITH: Yes rna' am.

24

MRS. HOLMES: Are there any states that do not have

2~ a Lieutenant Governor?

47

MR. GOWEN: There was one or two, wasn't there?

2 Maryland I believe didn't have but I'm not sure -- Kentucky,

I think abolished it and then came back and recreated it and

Maryland I believe does not have a Lieutenant Governor.

5

JUDGE FINDLEY: Maryland had Agnew.

CHAIRMAN SMITH: I was going to say the State
Ii Purchasing Agent was second in command in Maryland.
i
MR. HARROLD: Ham has observed -- do you have any q ,ji comments?

MR. MCWHORTER: I don't have anything I could add to

,: o

it,

maybe

my

feelings

get

too

strong.

c.

w

12 :

\/.(>\,c"~ :Jl~Jli'\o.)0)r~

~~ :;

"-""'--'-:// ' ...-

14 ~~

f-.
'r<

REPRESENTATIVE BUCK: Can I ask Ham a question? CHAIRMAN SMITH: Sure. REPRESENTATIVE BUCK: Back before we created the

15 ~ Office of Lieutenant Governor, who presided over the Senate?

'"::J

it) ~ '0

MR. MCWHORTER: Since the '77 Constitution and

z

<

previous to that also, they elected the President of the Senate'

1'-< i like the House elects the Speaker.

::

Il) ,i

MR. HARRIS: He also became acting Governor in the

20 event of death or disability of the Governor.

2j

CHAIRMAN SMITH: Well I'm going to call the question

,,

on do we retain the Office of Lieutenant Governor. All those

in favor, raise your hands
.'4
(Votes were cast with raised hands.) CHAIRMAN SMITH: Opposed?

(Votes were cast with raised hands.)

CHAIRMAN SMITH: All right, there are four opposed.

J Now all those in favor again.

c,

(Votes were cast with raised hands.)

5

CHAIRMAN SMITH: All right, it carries and the

() recommendation is that we retain the Office.

7

Now let's go to the primary question and that is,

~ should that office automatically carry the duty of presiding

o officer of the Senate?

10

JUDGE FINDLEY: I'd like to speak against his

z"
II t retaining that position if I might, Mr. Chairman.

::')

"-
~,

~,,~.,,12"

~
~

CHAIRMAN SMITH: Yes. JUDGE FINDLEY: I believe it was succinctly stated

14 > that the job of the Lieutenant Governor is really to succeed

15 ~', the Governor in the event of his temporary or permanent

':J

'"

16

~~ I
."~, disability or

his

death,

and

this

being

true,

then

the

mixture

L

",I, ,

o f r<.:.
~.l

the

two

between

the

Executive

and

Legislative

is

not

in

the

18 best interest of either the Executive or the Legislative and

19 it would appear to me that the Lieutenant Governor should be

20 the Lieutenant Governor and have such duties as are assigned

21 to him by the Governor and that he stay out of the legislative

~~ process entirely.

~3

CHAIRMAN SMITH: Well I assume that you could say

~1--+ that he shall have such duties as prescribed by the Governor

25 'instead of as prescribed by law.

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

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

__._-----

P_\GE 49
---. ----.-.---.---.--.--.---------------- --1

II

JUDGE FINDLEY: Absolutely.

i

j" :

".. II"Ii

CHAIRMAN SMITH: And you know, it night be, do

II

)
-)

i:
I:

nothing,

get

out

of my way,

but

at

least

it would

be

prescribed

:1

4 by the Executive.

5

JUDGE FINDLEY: It would be advantageous for him to

6 get along with the Governor without changing our elective

process and if he is an Executive Officer he ought to work

8 for the Governor and with the Governor and learn the Governor's q job if he's going to succeed him and not comingle this with

JU the legislative branch.

1i -
..Q;
o
>.

MR. JACKSON: If we provided that in lieu of as it

\/l~~cX'.~,'~,:_.~.J\}/\~

r

12 :
S
"~'!~~;~

i i

s s

by an

law, you official

have a member

number of boards and commissions that and you have a number of other boards

he

\,-,./:--'J

-"/

J4

>.
,...

and

commissions

who

he

appoints

the

members

to.

If part of

n
...: r

15 ~~ the members or several members are appointed by the Lieutenant

..:.~

~

16

.~
o

Governor,

all

of

these

would

be

affected

if

the

Constitution

'l

q

17 ~ says only such powers as provided by the Governor.

1g I

CHAIRMAN SMITH: Well couldn't you just simply pass

19 an act that those appointive powers would be exercised by the

20 President of the Senate or whatever the title is?

MR. JACKSON: i President of the Senate could not sit

on the Executive boards.

23

CHAIRMAN SMITH: Well but can he appoint?

MR. JACKSON: He can appoint, but what I am suggestin~

is the Lieutenant Governor, even though he has a legislative ro~e,
:,
~_._-- .----._._-.-.

- - - .. rr-~--------''"------'--''---'---'--

50

li
1 I: is considered an Executive Officer and can sit on Executive

!i'Ii

2 :I[I boards and commissions and authorities. The President --

I:

3 ii'~

CHAIRMAN SMITH: Well is there anything inconsistent

with his still sitting on those boards if that's what the law

provides?

JUDGE FINDLEY: I think it clarifies that and makes

7

;j I

it possible

for

him to

sit without any objection on

the

8

Ii
il

Executive

boards.

I think there is a question now as to his --

the actual legality of his sitting, occupying two spots,

10 Executive and Legislative.

C)

Z

11 ro0:

MR. JACKSON: Could the Legislature assign him

"-

~'6'S)d

12 "~' responsibilities if we say he shall have such powers as


'--. J ) I1I1(,i-:-;,J\ c".~ z~ provided by the Governor? I

14 ,..
<r-
L
15 ob

CHAIRMAN SMITH: I wouldn't think so. MR. JACKSON: So that would preempt the legislature

:J

16

~
az

from

directing

him

to

do

anything.



17 ~

CHAIRMAN SMITH: Correct.

He would be subject to

J8 Ii Executive direction only and you ought to write his salary in :I:!

19 !i in the Constitution in that case. Ii

20

Well, the first issue is whether he should continue

21 to be the presiding officer of the Senate and that's separate 22 from the question about the source of his duties other than 23 that. So let's try to resolve that first. Any further

discussion on that? Yes, sir?

25

iu______ _

MR.
_ ..

JACKSON:

._.

.<



One last question.

- - - . -



-

--.

Are we going to

PAGE 51
Ji-----.. --~---~- ..------.--.- ....------.
ilI resolve that or make a recommendation to Article III, which il

2

II
!i

is

the

Legislative

Branch.

This also comes up there.

CHAIRMAN SMITH: Well all we would do is take that

4 duty out here, wouldn't we?

S

MR. GOWEN: If we take it out of here, then it

(, leaves it up them. I guess if we take it out, we put in that

7 I he would do what the Governor tells him to do, that covers it.

8

MR. STERNE: What is before us is taking this duty

9 i away from him and adding language that would say he would do

If) such things as the Governor might assign to him?

11

CHAIRMAN SMITH: Well that's the second question and

I think there are different solutions for that. The only

questbn we have before us now for decision is whether he shall

be the presiding officer of the Senate, as currently provided.

~
:<c
i" ~; Any further discussion on that?

~ ::>

1() ~

MR. TIDWELL: Mr. Chairman, it might be of some -- for

7.

~ '"'

<~~:

whatever

benefit

it

is,

this

question

came

up

in

the

Article

III

I~; I. committee and it was the sense of the Speaker of the House that

if the Lieutenant Governor were to be removed as the presiding 20 officer of the Senate, it is his belief that the House will

.... 1 move to abolish that office.

j'"

CHAIRMAN SMITH: Well now that's their problem.

MR. TIDWELL: I just state it for what it is worth.

His belief is they will not abide to have a Lieutenant Governor

unless he does something.

i~~----' .. -----------.. -"'--'-'- _._--.~-- .

I,

l I'

MS. ADAMS:

PACE 52
Well he might do something, he might

11
2 :Iii assist the Governor with his ceremonial duties. There are

I:1
3 :: a lot of things that the Governor has to do that he can't do

4 himself and he could assign those to a Lieutenant Governor

5 just as the President does to a Vice President and if the

(, Lieutenant Governor were responsible to the Governor for his
11
'1 I assignments, perhaps that would foster a better working

relationship.

q

JUSTICE HILL: Mr. Chairman, in view of what Charlie

10 has said, I move the deletion of that sentence on line 18

<J

11 12

...
"'"
c..
"~'

and 19 on the page under discussion, "The Lieutenant Governor shall be the President of the Senate." And encourage all those

~ 1f9Y-~ .._ ~ people who voted for abolition of the office to join me in

14 ' this motion. ~

<-
'1:

15 "J

CHAIRMAN SMITH: Well let's first see how this comes

~~

'"::J

16

~
Q'"

out.

The question is shall the Lieutenant Governor be the

Z
17 ~ presiding officer of the Senate. All those in favor of his

18 being presiding officer of the Senate, raise your hands.

19

(Votes were cast with raised hands.}

20

CHAIRMAN SMITH: All opposed to his being the

21 presiding officer.

22

(Votes were cast with raised hands.}

CHAIRMAN SMITH: Okay.

:'4

MRS. HOLMES: I wish before we had taken the vote --

15 ,. I tried to say something about three times. We haven't heard

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

--- _ ......

.. _---~.-_.

_-------, PAGE 53
_ ...... _------ . -- ... ---- ----_._-- ...

from Senator Horton and she is the only Senator here. She

must have some light to shed on this whole situation. Do you?

SENATOR HORTON: Well Itve been listening to both

4 conversations and all of them have merit. Itve only been in 5 the Senate for one year and the merit that I see to this is

that he would look after all the people of Georgia whereas

7 if you elect him as you do in the House now, you dontt have

8 that, and I see this balance. I could change my mind next

<) I year, this is just after one year in the Senate.

10

CHAIRMAN SMITH: Well absent a motion to reconsider

11

...
o'"

that,

I

will

assume that we have voted

to delete

that duty

0.

under the Constitution. Now the next question is where should

he get his duties whatever they may be, from the General

Assembly or from the Governor. Isntt that our next question?

T:

15 ~

I:>

.~

.::>

! ()

rc
1'.

~)

2
- -:
I , ""'

MR. GOWEN: Yes. MR. HILL: Yes. MS. ADAMS: I move that his duties be prescribed by

i the Governor or assigned by the Governor.

CHAIRMAN SMITH: All right. Any discussion of that

,I

:W

I
I

recommendation or motion?

.21

(Ko response.)

1'
CHAIRMAN SMITH; Okay. We're moving pretty fast
. .~
--' All those in favor of the motion to put in the Constitution

24 that the Lieutenant Governor's duties shall be those as

prescribed by the Governor.

FAG!', 54

(Votes were cast with raised hands.)

2

CHAIRMAN SMITH: Opposed.

3

(No response.)

CHAIRMAN SMITH: It's unanimous. We're making

5 history.

6

MR. JACKSON: I just have one question. If a person

7 every other case where a power is provided, there is I think

8 generally a parallel statute to cover a Constitutional grant

9 of power. My question is if the Lieutenant Governor is not

JO acting under color of law, the specific law that gives him this

"z

11

...
'.oQ"...

power,

will any

liability -- will this

affect the

liability of

~ 12 ~ that person for actions taken?

~r~

CHAIRMAN SMITH: I wouldn't think so.

14 ~ !;;

JUSTICE HILL: I wouldn't think so but I am

<t

:I:

15 ~ constantly amazed at the variety of oddball problems that

'";:>

16 ~... can arise and so a blanket yes or no would be very difficult

C\

.1:

<

17 ~

CHAIRMAN SMITH: What you're saying is suppose the

18 II Governor doesn't prescribe him any duties and he does some-

Ii

19

ii
11

thing,

would

he

not

be

acting

under

color

of

law

and

therefore

ii

20 ' subject himself to personal liability for whatever he did.

21

MR. JACKSON: That and if the Governor tells him

22 to go do something that is of questionable legality and the

23 ' Lieutenant Governor does it but there is no statute that

24 protects him, right now it would just be the discretion of the

:~~ I Governor. Would this Constitutional grant protect a Lieutenant

L~

...

- .. --.

PAGE Governor no matter what the Governor told him to do?

55 ... _.. --- --_., ._--,,

2

JUDGE FINDLEY: Well you'd go back to military law,

3 you obey all lawful commands of your commanding officer.

4

CHAIRMAN SMITH: Well you also go back to Watergate

5 and the guy is supposed to have some sense and not go out and

t~. commit a crime if the Governor tells him to. I don't see any

7 great problem with that.

8

MR. TIDWELL: Mr. Chairman, one -- I lost -- I

thought that there was no second and so I didn't know really

10 what you were voting on. I did have one comment about what

..:)

z

11

~.
'o"

you

have

just done.

It sounds good to say that the Lieutenant

"-

~.(7\,:'-~-.'..'~~./"'I'!t~'.1~/}~. !\}-".-'1"-"2.

~:. .
~

Governor is going to do what the Governor tells him to do. think you have just created a very awkward situation where

I
a

-...

14 ~ Lieutenant Governor goes out and gets elected by his own

<
J:
15 ~ constituents and is not answerable to anybody, and the

,"";

:;,

16

3
o

C

o

n

s

t

i

t

u

t

i

o

n

says

that

he'll

do

what

the

Governor

tells

him

z

<

p ~ to do, and he mayor he may not choose to do what the Governor

I~, i: tells him to do. He may be getting ready to run for Governor

19 next time around and he says thank you, Governor, but I'm not

20 , going to go down and make that speech that you want me to make

'::1 I because you can't fire me. I'm right responsive to what the

Governor tells me to do, I go do it right quickly. I don't

know how fast you're going to have a Lieutenant Governor doing ,,.., it, who may have gone out and run just as the Governor did

and was elected by the same folks that elected the Governor and

PAGE 56
r;----------------------------
11 he's in there and they can't do anything to him until the
I,
I'
2 I,I' next four years.

3 IIIi

CHAIRMAN SMITH: Well doesn't that become a political

issue? Don't the people elect as Lieutenant Governor the man
,
5 i! who under this Constitution is supposed to do what the Governor

6 says, and if he doesn't that's a political issue. You don't

7 elect him as being free from all Constitutional restraints,

8 you elect him to fit into this paragraph.

9

Ii I',i

MR. STERNE: I assume therefore that this would not

10 apply to an incumbent Lieutenant Governor but it would be

"z

11 t- applicable once we had elected a Lieutenant Governor under

'o"

"-

~ 12 ~'" these conditions.

~r~

CHAIRMAN SMITH: Right.

14 ~

MR. STERNE: In which case, I don't see much difference

t;;

-I

15 ~ in that and the Vice President of the united States. He's ,"' '"::J
16 ~ elected by the people and he does what the President asks him
oz
-(
~ 7 ~ to do.

18 !I

MR. TIDWELL: What I was trying to do was to put

19 IIIi what you have done into perspective. I don't think that you'll

20 find the Governor telling the Lieutenant Governor he ought to

2i do things. The Governor now doesn't call on the Lieutenant

22 ~overnor to run his errands or make his speeches. The Governor

23 makes the speeches he wants to make and attends the functions

24 i that he wants to attend and the Lieutenant Governor goes and

~~ does what he wants to do. I think you will find if this were

r ~~:t~fi:d-I>y-~h-:__;,~~;le I PAGE 57 ------< ----- --------------- ----------------,

to

that the Lieutenant Governor will

2 ~i sit around waiting for the Governor to die. He will not be

I

II

':

3 doing a great deal -- unless you have a very cooperative

4 arrangement.

CHAIRMAN SMITH: Well I think we decided that was

really his main function, was to sit around and wait for him

7 ! to die, wasn't it?

(I i i

MR. HILL: This is relevant too, will we retain the

9

I ,!

provision

that

the

compensation and

allowances

will

be

provided' I

10 by law so the General Assembly will still provide for --

z'CJ

II I-
'o"

MR. GOWEN: I think the General Assembly ought to

.'",

'u" prescribe his compensation. They do the others.

u_

CHAIRMAN SMITH: Charlie, I don't mean to minimize

the practical problem you have presented, but it appears to

15 ~ me we've got a practical problem now. We may just be swapping
'";;;,
16 '~" problems, but let's try something else seemS to be the sentiment Czi <
17 ~ of the committee.

18

MR. TIDWELL: I wasn't arguing one way or the other,

19 I was just trying to tell you kind of the way things work and

20 how I kind of envision that they would work.

21

CHAIRMAN SMITH: Let the record show Mr. Tidwell was

), not arguing either way.

Okay, now where does that leave us with the Lieutenant

24 Governor?

25

MR. HENRY: Mr. Chairman, I would have a question as

58

to what that would do to the statutes on the books right now

that placed him on these boards and give him these statutory

3 duties. Would that just be repealed?

4

CHAIRMAN SMITH: Well I think what we said was that

5 1 this would, strengthen his ability to sit on the boards. Now

6 the appointive powers raise another question and there would
..., i"i
! i:1; have to be a companion statute that transferred those appointive 8 powers I presume to the presiding officer of the Senate, unless 9 somebody has a different idea where that appointive power will

10 rest. Of course, the General Assembly is free to change it

~~

"z
11 ~ but just to get us going, that you would simply have one o 0w
12 ~ statute that provided wherever he has appointive power to an

('\S~~ F~- ~ Executive board it shall hereafter be exercised by the

J

"I'

-

14 ~ presiding officer of the Senate.

r<

15 ~ ,,:

MR. HENRY: So if those statutes were modified to

...;;

;;>

16 'c~z" reflect what we have done here, then as Mr. Tidwell pointed out

<

17 ~ he wouldn't necessarily have anything to do.

16

CHAIRMAN SMITH: Well he'd be sitting on the boards.

19

JUDGE FINDLEY: The point is he doesn't have anything

20 legally to do now. Legally, the things that he is doing, the

21 11 Lieutenant Governor, where does he get his authority to do it? 22 Well it's statutory but he doesn't have any Constitutional 23 right to enact a statutory authority the way it is written.

He's neither fish nor fowl, he's fowl. He just doesn't have

25 II the authority to do the job and we need to put him one way or

!i

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

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

PAGE 59

the other, either Executive or Legislative.

2

MR. HENRY: The Governor could choose not to

3 reappoint him to those boards.

JUDGE FINDLEY: The Governor could. The Governor

could encourage him to cooperate, I would think.

,

6

CHAIRMAN SMITH: Well wait a minute. As I understand

it, what you all are saying is that under current statutes,

membership on various statutory boards states that a member

shall be the Lieutenant Governor. Now the Governor can't !O change that.

MR. TIDWELL: Well it depends on what the sense of

this committee is, if it says the Lieutenant Governor will do

only what the Governqr says then the General Assembly cannot

pass a statute to say the Lieutenant Governor will --

<.9

MR. GOWEN: I don't think we said he would do only

:'"J

II)

z<Xl a'""

what

the

Governor

said,

we

said

he

would

do

the

duties

that

., 1-

]

'"rJ.:
r:J

the

Governor

assigned

him,

but

I

don't

think that

would

keep

1K him from being on the boards.

:i

19

MR. TIDWELL: I didn't hear the word "only", but I

20 heard the phrase that he would do what the Governor 'I

he would

21 perform the duties that the Governor assigned him. Well it

could very well be construed that if that was the language

used that the General Assembly was without authority to assign

him any duties.
25
MS. ADAMS: Should we add and such other duties

1'l\GE 60

p---------

Ii
I,Ii

MR. JACKSON: What happens if the General Assembly

2 II places him on a board and the Governor tells him not to serve

Ii

3

'I i1

on that board?

You almost cannot have "such powers as

,I

'i
4 IIIi directed by the Governor and/or as provided by law" because

S I'iI the potential for conflict comes up.

ii

6 IIii 'I

CHAIRMAN SMITH: Well what about this, what about

7 stating that he shall have such executive duties as prescribed

8 by the Governor and otherwise provided by law. Then the only
q
duties that the General Assembly could lay on him would be

10 executive duties. Is that a way out of the trap?

11 :-
'".>"..

MR. GOWEN: Yeah.

@}~~~12 '~"

MR. HENRY: Would that not be redundant because

that's the situation as it exists right now, he has the

14

>
lv'

duties

prescribed

by

law

plus

whatever

the

Governor

gives

him

<

1:

15.:c,
'9

to

do.

;":",

16 ~ u

CHAIRMAN SMITH: Well except he has no legal obliga-

z:

<:

17 ~ tion to do what the Governor says.

Iii i~

MR. HENRY: So we're just imposing that obligation

19 on him by stating that.

20

CHAIRMAN SMITH: Going to test it anyway. What do

21 you think about the suggestion I just made?

22

MR. GOWEN: I think that's excellent.

'),

-.)

JUDGE FINDLEY: I do too.

24
CHAIRMAN SMITH: All right. So the language would

25 be that he would have such executive duties as directed by the

PAGE 61 ..- - _- .. ---l

Governor and as otherwise provided by law.

I

2

JUSTICE HILL: Mr. Chairman, Mr. Sterne's comment

,,i

l I think is worthy of note. Suppose this provision is going

i to be adopted at the 1980 general election, at which time we

5 ' will have a Lieutenant Governor currently in office unless

b something happens in another election. Is the provision that

the Lieutenant Governor shall no longer be the presiding officer

of the Senate to become afective upon passage or at the

9 conclusion of the four year term which the incumbent Lieutenant

10 Governor has been elected to and are the duties to be assigned

"z.

11

...
'.";.

executive duties

to be assigned to

him by the

Governor or as

~.

"'

prescribed by law to become effective immediately in late 1980

or at the conclusion of the present term?

CHAIRMAN SMITH: Well I think the sense, and I may

15 ~ have just picked this up from Charlie's comment, was that

1..:" :;',1

i(

't:

1U

2:
~,

it

only applied

to

the

future

elected official.

We have to

"z.

<:

17 ~; state that unless this committee wants to intervene, it seems

II)
.'- to me you get into some legal problems there if you change

!9, responsibilities and all of an officer in mid-term.

20

MR. GOWEN: I think it ought to be at the end of

21 , the present incumbent's term.

CHAIRMAN SMITH: Okay. Well, I'm going to just

assume a consensus that it be worded so that it applies to

the next elected Lieutenant Governor.

Now that gets us back to succession. We're working

upstream.

!'AGL 62

MR. GOWEN: And the question there is upon -- the

committee felt -- really didn't think there was any great

argument about the fact that if it was a temporary disability

~ he should only be acting Governor. I don't believe there is

6 any argument about that, but if the Supreme Court declares

the disability to be permanent or in case of the death of

the Governor, then the question is does he become Governor or

9 does he continue as acting Governor, plus also the question as

JO to how long does he serve as Governor if he becomes Governor.

11 ,'z"

CHAIRMAN SMITH: Okay, and the proposal on the table

,,o,.-,

~~~r"~12 ~ is that

l'f ~

~:

MR. GOWEN: There are two of them, it's in the

14 >- alternative as to the term. Alternative (b) would -- on

t;

:<:c

15 ,~ lines 17 or 126 provides -- that alternative would provide

"'":::>

16

''z"
w

that

he

would

become

Governor

and

would

serve

for

the

balance

0z

17

a:
<Xl

of

the

Governor's

term.

The other provision would have him

Ii-) serve only until the next general election.

19

JUSTICE HILL: Mr. Chairman, let me in this context

20 note that on line 5 of the page we're talking about now, as I 21 I understand it the Lieutenant Governor, if he succeeded to the

office of Governor 31 days prior to the first Tuesday in 23 1 November, we would then have an election for the office of 24 Governor on the first Tuesday in November, 30 days hence. I

don't think you can make it. I don't believe you can have

iT-------+--.-------------- ----. --_.- ----- ---

,----- -+------~--------------.--~- - . - - , -

\li qualifying, print ballots, whatnot.

__ PAGE 63 _.

---_._---_ ..

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

So in the context of what :

we're talking about, if we're going to go for Alternative (a)

it seems to me we're going to have to provide more time prior

4 to the election for one, to have some candidates and let the
.,
I
5 public get to know who they are and what the platforms and

() issues are going to be.

'"I'

MR. GOWEN: I think that's the present language, we

8 just changed the thirty to a numeral.

JUSTICE HILL: I grant you that it is, I raise that

10 problem so that if we're going to back it up enough maybe we

z',J

11 ~ ought to go for alternative (b) rather than --

o

'Ni?

f') """,}-.':
. 2:

CHAIRMAN SMITH: Well the underlying issue is in the

/\:;":--'<.'/ \

~.

(~:~.\J.>~~}~~"~ ~ event of a succession, do you want the succeeding Lieutenant

14 ,. Governor to be the Governor for the whole unexpired term which
"~
<:
"1:

j S '> would be up to three years, 364 days, I assume.

".

~:

:::1

16 !

MR. JACKSON: Our thoughts have been that we ought

c,

.L,

i'7 :0 to have a Lieutenant Governor who is clearly an Executive person

16 Ii to fill in, his qualifications are this is somebody who could
Ii
19 , be Governor or fill in for Governor and yet we're saying we

20 don't, he would only serve for a temporary time and we would

2i have then an election for a two year term, which I think is

unfair to everybody. I think we ought to let if the

Governor dies, the Lieutenant Governor should become -- or

permanent disability -- the Lieutenant Governor should become

the Governor. And maybe we 'can rationalize or handle this

PAGE 64

problem about eight consecutive years and say if the Lieutenant

2 Governor becomes the Governor for over two years, two years

3 of the term of the person he fills, that he can only serve 4 one additional term, but if it is for less than two years, 5 he can serve then -- be re-e1ected for two consecutive terms

6 for a total of ten years.

7

CHAIRMAN SMITH: I hear you speaking for alternative

(b). Well I think I agree with you that the sense or

philosophy that is coming out of this is that the Lieutenant

10 Governor should be made an Executive officer and hopefully it

II

'z"
~

would raise the status of that office so that people would

(>

think of him as the successor rather than as having some other

duty with the Senate or something like that. I mean that's

the sense of what I think our recommendations have led us to.

15 .::.

<,;)

.,'".";J

16 .z..
cz.

<

17

0:
'"'

is

Well we're down to (a) or (b). MR. HILL: We're down to (b) (1) or (b) (2) There actually (a) we have sort of agreed on, that's the

temporary disability.

19

CHAIRMAN SMITH: Oh, that was temporary.

20 I
2] I
"
') )

MR. HILL: This is (b) -MR. GOWEN: (b) (1) or (b) (2). CHAIRMAN SMITH: (b) (1) or (bl(2). The first part

.'.1.-..-''1 is that in case of temporary disability he's just acting

Governor, period. Is there any dispute about that? Any

contrary thought?

tl. .

..

(No response.)

PAGE 65

2

CHAIRMAN SMITH: All right, now the next one is in

1 the case of permanent disability or death, does he become

4 the Governor for the complete unexpired term or only until the

5 next general election, subject to some calculation of days.

6 Does anybody have a motion?

7

MR. JACKSON: I move the acceptance of alternative

8 ' (b) (2)
q

CHAIRMAN SMITH: Charlie scared me that I wasn't

10 getting any seconds, that doesn't affect our

II ... 0:

MR. TIDWELL: No, sir. It just got past me.

"'l.
"'

CHAIRMAN SMITH: There wasn't any second and I

never have paid much attention to --

MR. TIDWELL: Well that's subject to your rule, Mr.

15 ~ Chairman.

>: .::>

J6 ;'
o
7

MR. GOWEN:

We operate as the legislature, you

don't need a second in the legislature.

CHAIRMAN SMITH: Okay.

lY

JUDGE FINDLEY: Could I ask a question on the

20 determination of permanent -- I agree with (b) but now on the
),
c.l determination of permanent disability, who would have the right

to raise that question? Could the Lieutenant Governor initiate

that?
.'4

MR. GOWEN: We have a provision later on that deals

with that and the provision is that three of the Constitutional

PACT: 66
n--------------------------- '._-- ----
officers could bring the petition to the Supreme Court and

~ the Supreme Court would then decide the question. It takes

3 three of the Constitutional officers. The present one says

4 four, but we reduced -- recommend reducing it to three because

5 they have taken the State Superintendent of Schools out and

t1 II put him somewhere else and we thought that three was a better

7 number.

JUDGE FINDLEY: All right, Mr. Gowen, but then on
9 Ii the other side of that coin was subparagraph (a), who then

10 decides temporary disability?

"z
II ...

MR. GOWEN: Well the Supreme Court, they bring the

"o

Q.

l.~ "~' petition and the Supreme Court, as I understand it, decides

@r,i that it's either temporary or permanent. In other words, the

14 ~ petition would say that the Governor is unable to discharge

v>

<:z:

IS ~ the duties of his office. Then the Supreme Court on that

.:J

':">

1(,

11l Z

petition

could

either

decide

it

was

temporary

or

permanent,

.~

Z <.;
l' ";::1 depending on what the evidence is.

11:\

CHAIRMAN SMITH: And if temporary, they decide when

I') it is over.

20

JUDGE FINDLEY: All right, then the Lieutenant Governor

21 could not participate in bringing this petition?

22

MR. GOWEN: No.

":3

CHAIRMAN SMITH: Well that was the second question.

24

MR. GOWEN: No, the Constitutional Officers are

2~ specified I believe.

MR. WISEBRAM: He's one of them.

PAGE 67
'--"-~-_.'---'--'---------',
I,

MR. HARRIS: He's included.

CHAIRMAN SMITH: Okay, well the issue is whether

4 he can be a petitioner.

5

JUDGE FINDLEY: And the way we have given him these

h Ii increased powers, I don't know that he ought to be able to do I":
'7 1;I that, that's why I brought it up.

8

CHAIRMAN SMITH: Well let's resolve that, I think

<) it's worth --

10

MR. JACKSON: Well the Governor would be out of the

11

,::
'"

picture if

he's

disabled

so

--

:..

CHAIRMAN SMITH: But he may say he ain't, that's

what the Judge is talking about.

MR. GOWEN: 1I executive officer means the Governor,

15 ~: the Lieutenant Governor, the Secretary of State, the Attorney
.,,;

16

:~
"c'\

General,

the

Comptroller

General,

the

Commissioner of

7.

C.

L7 ~ Agriculture and the Commissioner of Labor. II

MR. HILL: That's what we presently allow.

CHAIRMAN SMITH: Because it's as to each other.

:0

JUDGE FINDLEY: But the Lieutenant Governor being

.".c. elevated, I think we have increased his stature so far. Then

to let him have a vote in whether he would be one of the ,, ~
three officers that brings this in to court just seems

inconsistent with it to me. I don't believe that we ought
"(
CHAIRMAN SMITH: I'm not sure it is.

l'A. ': l~ 6 8

JUDGE FINDLEY: It may not be, but

CHAIRMAN SMITH: I mean, the Governor would have the

"\ I, right to say the Lieutenant Governor is disabled.

MR. GOWEN: The Supreme Court is going to determine

whether it's there or not, they're the one that makes the
!i
(, decision. This is simply to keep some disgruntled person

7 from filing one every day.

JUDGE FINDLEY: I withdraw that, I think that's sound.

I have great confidence in the Supreme Court.

CHAIRMAN SMITH: That might ultimately be one of

1; r the responsibilities that a good Lieutenant Governor ought to

"c~
w

J~ ~ discharge.

(-rS-V-l:~;.<h

"-

(((k~j)'):-,~". ,- ~

JUDGE FINDLEY:

~./':

Absolutely, I withdraw that.

14 ,..

JUSTICE HILL: What if the Governor says one of your

"<.i

:I:

15 ~ duties is not to sign these petitions?

"".;;J

If. ~
"o-'

CHAIRMAN SMITH: You can't fire him.

<.

17 ~

Okay, we're back to the motion to adopt (b), which

IE would mean that the Lieutenant Governor would become the

J9! Governor in the event of permanent disability or death for

20 the complete unexpired term without a mid-term separate
.1
'1
21 election. This is without regard to the next question which

will be the limitation on total number of years to serve as

'" Governor.

24

Okay, all those in favor of the motion, raise your

hands.
lL.

PAGE 69

(Votes were cast with raised hands.)

CHAIRMAN SMITH: Opposed?

.3

(No response.)

CHAIRMAN SMITH: Well why don't we jump right into

the eight years. Now that the fellow has succeeded for the

" full unexpired term, how, if in any way, do you want to limit

his total service? I personally don't like the idea of the

o thing running out in the middle of the second term. It seems

'J to me this is -- and I would prefer something like Ed suggests,

l() that if it is less than two years he runs for two, if it's

1 ' over two years he just gets one term. :'J '.>.
't:
DR. GIBSON: Mr. Chairman, you might follow the

federal Constitution which provides exactly that, if the

Vice President succeeds to the office of President he can serve

~ '~
.', for no more than ten years, depending on whether he is serving
.r
: ' two or a little more than two years of the President's office.

We could just track what the federal Constitution says except

use eight years instead of ten years.

JUSTICE HILL: Instead of putting

DR. GIBSON: He would not be eligible for election

after that second term.

JUSTICE HILL: From the standpoint of simplicity of ,> '
language, it seems to me that you might provide that no person

shall be eligible to succeed himself more than once consecutivetY

and that would say as I understood what I said -- would say

1';\';[', 70

you could have two terms back to back but couldn't have a

~ third term. Now rather than get into this problem of the

3 first two years versus the second two years, quite frankly I

4 can for.esee the issue of disability would arise 15 days before

the two years and then depending on when that disability

determination was made it would throw you one way or another '1 and I don't want that problem. If somebody wants to run for

Governor or for Lieutenant Governor with the expectation that () iI they may take over as Governor, why don't we just say if it 10 happens in the first term you get almost -- early in the first

term you get almost eight years maybe if you get re-elected;

if it happens late, you ran for the office, you knew what the

problems were, you can run one time and that's it.

CHAIRMAN SMITH: I don't see the difference in what

1:

j'

.,) ':.'

you

are

saying

and what

they

are

saying.

]6

"':1"1' t h e Z
:.J

difference?

1:J

Where have I missed

~

17

:<
'"

JUSTICE HILL: I'm saying

lI.\

MR. GOWEN: He's only going to let him have four

19 : more years plus whatever he succeeded to.

20

CHAIRMAN SMITH: Whether it's one day or four years

that he succeeds?

JUSTICE HILL: That's correct.

MR. WISEBRAM: You're going to leave it eight years too.

MR. HENRY: What about some language that would say

he may not succeed to the office to which he was elected. If he

PAGE 71

came to the Governor's Office by way of death, resignation,

whatever, he would not have been elected to that office.

3

CHAIRMAN SMITH: Well then he'd get eleven years.

~ That's what they're trying to prevent.

~!

MR. HENRY: Oh, you want to prevent that.

MS. ADAMS: I think we should, ten years is a long

7 time for somebody to be in office.

REPRESENTATIVE WOOD: Well that all depends.

9

MS. ADAMS: Well it does all depend.

!O

MR. JACKSON: Of course, a person doesn't have an

automatic right. That's not like a guaranteed job. You

have to go back to the voters, they return you.

MS. ADAMS: But there's the power of the incumbency.

MR. TIDWELL: What was wrong with the original

1:
15 .:J language that the subcommittee had under consideration? '."
co
;0 ,~n would have solved all this, it seems to me.
e>
2

That

CHAIRMAN SMITH: You mean the eight year limitation?

MR. TIDWELL: No, sir. There was a proposal that

J[) the subcommittee had prior to this language that addressed

this problem and somewhere between the last time they met and

now that was thrown away and this was put in.

MR. HILL: There was no final agreement last time

on what they wanted to do because of this eight year problem. .. ; This draft was an attempt to address the issue we're talking

about now and it hasn't done it adequately.

72
n------------------ ---- -----"--- ------. -- --------------
MR. TIDWELL: The previous language did address it.

CHAIRMAN SMITH: What did it say?

J

MR. THORNE-THOMSEN: The previous language had a

4 lot of problems that we discussed at great length in the

5 subcommittee meetings, and this was an attempt to address some

6 of the problems in earlier language and apparently it is not

7 satisfactory completely either. I think the previous

8 language had considerable problems. No one was really sure

<) I what it actually did accomplish and it was very ambiguous.

10

MR. TIDWELL: I heard that aiscussed but I never

11 could understand why that was so, but that's neither here nor

there.

CHAIRMAN SMITH: Well I'm in the dark, what did it

15 J
~
"'-
i t ? 16 ~:-:n:J
oz.
<l;
17 ~

MR. GOWEN: It's in the present Constitution, isn't MR. TIDWELL: It said that a Governor could succeed

18 himself for one term and except for a Governor who succeeded

19 himself, a person who served as Governor could not then again

20 serve as Governor until the expiration of four years. That

21 would take care of the Lieutenant Governor.

22

CHAIRMAN SMITH: That's what in essence you are

saying, isn't it, Judge?

24

JUSTICE HILL: Yes, sir.

MR. HILL: Was it the feeling of the committee that

PAGE 73

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

~~'-~:-IO~k;:~---~-~- ~~~-~-~-~rs limitation, is that what welre

i

II2 really thinking about?

3 i;1l

CHAIRMAN SMITH: They were really wanting eight.

I,

4

MR. HILL: No matter --

5

MR. GOWEN: I think what really, as I understood

Judge Findley, you could have six years but not over eight.

7

JUDGE FINDLEY: Yes.

")

MR. GOWEN: And Judge Hillis thing would be you

could have one month -- four years and one month, depending

10 on when the disability took place.

CHAIRMAN SMITH: And the other idea was that you

could have up to ten, you Ire right, because if it occurred

in the second two years of the unexpired term then you could

have two terms. That's the other idea out there, which would

be a maximum of ten really instead of a maximum of eight.

Robin?

MR. HARRIS: The way I read this draft, it says that

persons holding the office of Governor, which the Lieutenant

19 Governor would do -- holding, it doesn't say anything about

20 elected to the office, it says "persons holding the office of

21 I Governor may succeed themselves for one four year term, but no

22 person shall serve as Governor for more than eight consecutive

years." That says exactly what Judge Hill said,

CHAIRMAN SMITH: Having removed the mid-term election

2) this is compatible with Judge Hillis motion. I mean if you had

74

IT-t~e ~~~-~~:-elec~-~:~ then you had problems.

II,I

2 :1

MR. HARRIS: But under this, he couldn't serve two

II

3 11 years, then serve four and then be elected for four to serve

4 two of them. He can only be elected one time.

5

CHAIRMAN SMITH: Yeah, and our selection of alternative

(b) solved that problem really.

MR. GOWEN: We've made him Governor instead of

8 acting Governor.

JUDGE FINDLEY: What if you used language, something

10 -- "No one elected as Lieutenant Governor or as Governor shall

"z

11 ''o"" serve more than eight consecutive years as Governor." That

~ri12 ~"--,
~~

would

take

care

of

succession

irrespective

of

how

he's

elected he cannot serve more than eight consecutive years as

14

;
>-

Governor.

~

<l

1:

15 .::.

CHAIRMAN SMITH: Well I think that does the same

"ex

:J

16

~ "o'

thing

that

Robin

pointed

out.

Where were you reading?

What

z

..:

17 ~ line?

18

MR. HARRIS: Paragraph I on --

19

MR. HILL: Line 21.

CHAIRMAN SMITH: Line 21 on the first page of the

21 :' draft of Article V.

I
22 U

MR. GOWEN: That seems to cover it.

23

MR. HILL: Well we wrote this specifically with this

24 i in mind. We were attempting to prevent a Lieutenant Governor

, who would succeed to the office from serving more than eight

lL

_

PAGE 75

years. He could only run one more time. We'll rework it if

2 it doesn't say what we intended it to.

3,

JUSTICE HILL: My comments really I guess were

directed primarily to the concept that if the Lieutenant

5 Governor took office in the first two years, he ought to be

6 only able to be elected for one term, but if he took it in

7 the last two years, he ought to be elected for two terms after

8 that. I just thought we were --

9

CHAIRMAN SMITH: Well the real issue we're deciding

10 is if the Lieutenant Governor succeeds, should he have only

-+ Q

!

11 ~ one term or two. Now what are your wishes1 That's all we're

co

o.

w

12 ~

MR. STERNE: And this would say one term.

((~J\-~ ~

CHAIRMAN SMITH: This would say one term.

\--~/) '7

'--

14 ~

MR. GOWEN: I move we hold it to the language in

'<",

r

15 ~ Paragraph I, one term.

~

::J

16 ~

CHAIRMAN SMITH: All those -- any further discussion? 1

a

L

<

17 ~ All those in favor of the motion, raise your hands.

(Votes were cast with raised hands.)

19

CHAIRMAN SMITH: Opposed.

,

'i

20

(Votes were cast with raised hands.)

21

CHAIRMAN SMITH: Okay. We're still swimming upstream

Yl now. 11
r,,_)
...;.:, ~)

MR. GOWEN: I think we've about covered all -- the

24 rest of this is pretty much --

CHAIRMAN SMITH: Well, we're back to be disability.

!!-,..- "-_._-- --_. _---,MR. GOWEN: I thought we --

I'ACE 76

.2

MS. CROCKETT: Under alternative (b), do we want to

.3 reconsider whether the Speaker of the House would now be the

4 next person in line in case of disability of both the Governor

) and the Lieutenant Governor? Now that we have made the

() Lieutenant Governor --

CHAIRMAN SMITH: Whether the presiding officer of

5~ the Senate should be in the succession is what you're --

q :1

MS. CROCKETT: That's right.

10

CHAIRMAN SMITH: Okay. Does everybody understand

'.:J
z:
the issue? Since the Lieutenant Governor is no longer the

presiding officer of the Senate -- is that the right title?

MR. MCWHORTER: President of the Senate.

CHAIRMAN SMITH: Should you have in the line of

15 ~ succession the President of the Senate and if so, should he 't->': ::J
16 3 precede the Speaker of the House. What is the federal scheme, CzI <:
17 :i; Dr. Gibson, I've forgotten.

18

DR. GIBSON: It goes to the Speaker of the House.

I'

19

CHAIRMAN SMITH: That's what I was thinking.

20

MR. HILL: But they don't elect the President of the

11 Senate.

22

MR. ENGLISH: The Vice President serves as President

23 of the Senate.

24

DR. GIBSOM: They elect the President Pro Tern.

"..::) i, 11

CHAIRMAN SMITH: Well is he next after the Speaker of

n-----. -._-.-.-.-------.----.---.---.--------.----.--. --.- ..----.---.-.---------

1

'I
:1

the

House?

PAGE 77
. - _ . _ . _ - - - - - - - - - _.._._-----~._--------,
I
I

2

DR. GIBSON: The idea is he's an elected official,

3 which is why they went to that instead of going to the

4 Secretary of State and others. These guys -- these people are

) elected.

CHAIRMAN SMITH: Well the only issue then is who

should come first, should it be the Speaker of the House or

the President of the Senate?

MR. HARRIS: And it is only for a period of ninety

days -- sixty days.

JUSTICE HILL: I'm going to propose we increase that. I

I don't think you can get it done in sixty days.

MR. GOWEN: You can call an election in sixty days.

JUSTICE HILL: ~es, sir, you can call one, but you

15 ~ need some campaign to have an intelligent election and <':' <;t;

](,

~
:::

mechanically

just

getting

the

opening

qualifying,

having

a

z

~7 ,~ <,, period of time when the candidates could file their qualifying ,

18 fees and then getting the ballots printed and distributed to 19 all the counties and what not, sixty days is going to be a

20 madhouse.

_1J\

MR. GOWEN: With the day of television and radio, I

,) , think you could get all the issues out in a week. Ballots

-" d,

may

present

more

of

a

problem.

CHAIRMAN SMITH: Well I don't have any particular

quarrel between sixty and ninety or something, but let's decide

PACE 78
1-,-------------------------------- ------------
,I
1 :1 first the order of precedence, should it be the President of

2 the Senate or the Speaker of the House. The only parallel that

3 I,, we have on the table is the federal one where the Speaker of
I
4 the House precedes the President Pro Tern of the Senate.

5

MS. CROCKETT: That's because the Vice President

Ii
6

CHAIRMAN SMITH: But the President Pro Tern is almost

equivalent --

JUDGE FINDLEY: May I address that? Since you

9 removed the statewide officer from the Senate, that is the

;0 Lieutenant Governor and have placed him in a different position,

would it not be well to increase the power of the President

of the Senate or presiding officer of the Senate and let him

be the one that would succeed to the Governor's position

instead of the Speaker of the House? It would tend to

balance the bodies again. Your statewide power of the House
'.:J
'"::> 16 ~... of Representatives, the presiding officer there~storically
o
Z -<I.
17 ~ has always prev~ed but not so in the Senate, not even with

18 the Lieutenant Governor, it hasn't really had the statewide

authority that warrants under all the other provisions. I

would think the succession should be from the presiding officer.

of the Senate first or preferable over the -- or have priority

over the House of Representatives. I would suggest that.

23

MR. GARRETT: My reaction would be to go with the

24 Speaker of the House.

REPRESENTATIVE BUCK: Mine too.

~

PAGE 79 CHAIRMAN SMITH: Well I suppose the theoretical

b~cause 2 II argument is that the Speaker of the House is a little closer

3 II to the people

he's chosen by representatives elected

Ii

.

4 I!Ii in smaller districts than a Senator, therefore he's a little

5 III!I' step closer.

Ii

6

II
II

MRS. HOLMES: I would think just the opposite. I

:1
7 iI would think that the Senator who is from a larger geographical

il

8 i district is representative of more people than a Representative

9 IiI who is from a smaller district. II

10

CHAIRMAN SMITH: Yes, but he's elected by fewer

z<.:J
11 l- Senators than the Speaker of the House is elected by more ocY. 0~
@;i Representatives. MRS. HOLMES: But all those Senators represent the

14 ~ same geoqraphical state.

I-

'<

J:

15 .:>

CHAIRMAN SMITH: Well, whatever. Yes?

"~'
::>

16 ~ Q

MR. JACKSON: Just a thought for compromise. The

z

<-

17 ~ federal system does not have any other nationally elected

18 executive officer, so they had to go to the legislature. We

19 could go to our statewide constitutional officers like the

20 Secretary of State, who is elected just like the Governor by

21 everybody in the State. You have a controversy whether to go

22 to the Speaker or the President, you might go to Constitutional!

23 officers, Secretary of State.

24

JUSTICE HILL: If you go to the Secretary of State,

25 'i then it seems to me to make sure that you don't have an airplane I

PAGE 80 catastrophe, you've got to go to somebody beyond him and

2 somebody beyond him. If you go to the Speaker of the House,

3 if something happens to the Speaker of the House, the House

4 can get you another Speaker of the House. So that you don't

5 have to run the thing on out ad infinitum because any vacancy

6 in the Office of Speaker of the House can be filled by the

7 House and that would end the problem, it seems to me.

8

MR. GARRETT: And it's only for ninety days.

9 II

MR. HILL: So if something would happen to the

!!

10 Speaker, they would elect a new Speaker and he becomes the

..,

(@r2i11

z
i.oa0=.:..

Governor,

so this is taken care of through that body. CHAIRMAN SMITH: And you wouldn't have to have any

succession beyond the Speaker if that be the case.

~ 14!...

MR. HILL: And we don't

'<"l

:l:
15 ..:.>,

CHAIRMAN SMI'TH: You could have a two or three day

a:

16

:::l
~...

hiatus

there

and

then

who

would

suspend

the

death

penalty

c

Z

-< 17 ~

MR. GOWEN: I believe they said during the sub-

18 committee meeting that the present rules of the House of

19 Representatives say that if anything happens to the Speaker,

20 the Speaker Pro Tern automatically becomes the Speaker.

21

CHAIRMAN SMITH: This cuts against Judge Findley's

22 argument of trying to upgrade the President of the Senate.

23 i

JUDGE FINDLEY: Well in the Representative setup

24 that we have now throughout the State, there have been and

I

25 'II, contJ."nues to be an ongoing revision of the Kouse seats much morl

~

_ _ _ _ _ _ _ _ _----ii

PAGE 81
I ~ than the senates~~-.--;~~~~;~;air~~---:";;~st~~ishedand

2 survive probably until the next -- at least every ten years. I

I

3 It's not likely to be revised more often than that, but in

i

the House of Representatives, so many of the people now

really have a difficult time knowing exactly who their member

is in the House of Representatives but most everyone knows

who their Senator is. But your House of Representatives, it's

not unusual for them to have half the county this time --

he doesn't represent a whole county usually whereas Senators

10 do or for the most part they do anyway. Your identification

"z 11 ~ with the people -- the purpose I agree is that they are closer

o

(~ ~)r1-)

~""~"'
~

to them, constant

but the identification is being revision that we have of moving

lost in all of this our House members

14 ~ around. So that in a circuit wide situation, it's not unusual
v>
J:
15 ~ to have four House Representatives but you'll have at best
"~
:>
16 ~ two Senators or usually just one or often just one. So that
oz
17 ~ plus -- I think what I'm really saying there is that the

18 Senators are better known and do represent a broader cross

19 section of the electorate than do the House of Representatives

20 and I think possibly the time honored role of being closer to

21 the people, if that's the right word, is being moved over to

22 the Senate side.

23

REPRESENTATIVE BUCK: Judge, I could argue that

24 : with you.

25
ll!. L - -

JUDGE FINDLEY: I ' l l bet you could.

~

----~_~

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

PAGE S2

REPRESENTATIVE WOOD: Judge, I disagree with you 2 very little, but I sure would disagree with you on that.

3

JUDGE FINDLEY: I can believe that. I get no help

4 from the Senator over there. I think I'll abandon that.

S

CHAIRMAN SMITH: Well I think it's a question of

6 choice and we're still talking about ninety days here so I

7 don't think it's critical. I think we ought to do it

8 carefully but -- do I have a motion? Did I have one?

9

JUDGE FINDLEY: No, sir, I didn't

10

MR. HILL:

"7.

sixty days?

Are we talking about ninety days or

CHAIRMAN SMITH: Oh, yes, I sort of assumed that,

didn't 1.

MR. GARRETT: I'll move the Speaker.

MR. GOWEN: Dave Garrett moved we have the Speaker

of the House.

CHAIRMAN SMITH: Okay. The motion is that the

IS Speaker of the House succeed after the Lieutenant Governor.

19

DR. GIBSON: Does he include in his motion that it

20 be ninety days instead of sixty days?

21

CHAIRMAN SMITH: Okay, ninety. Okay? Any further

22 'I discussion?

23

(No response.)

24

CHAIRMAN SMITH: All those in favor of the motion.

2S I
(Votes were cast with raised hands.)

Ir---- . ~ --~~~-----~~~ --~--

PAGE 83 ----,

I,
Ii

CHAIRMAN SMITH: Opposed?

:i

I
:2 ,I

(Votes were cast with raised hands.)

,I
II

3 I"

CHAIRMAN SMITH: Let the record show that Senator

I'

~ , Horton was opposed.

:)

MR. GOWEN: The next thing we did was to take the

:1,

(, Governor's oath out of the Constitution, or recommend it be

7 taken out and that he should take the oath prescribed by law.

is It was pointed out he doesn't take that oath anyway, he takes

9 it plus a lot more. And if there is no objection to that, that;
I
10 brings us to Section II where there are one or two matters. i
!
The first part of it restates the Governor's executive powers _L
!
CHAIRMAN SMITH: There was essentially no change.

MR. GOWEN: No changes. Just a change in language

and made him Commander in chief of the military forces instead

15 .,.~, of the Army, Navy and militia .

IX

::>

16 .'2.".:.

And then the veto power is continued and we have

Cl

7-

-<

17 ''"" transferred the mechanics over to Article III, Section V at

I~ their request as being better to put it under the Legislative

19 than under the Executive.

20

MR. JACKSON: One question on that. If the

21 Legislative Article rearranges its section V and it is now

22 something el~ do we want to say as provided in Article III?

23 Do we need to say Section V?

24

MR. GOWEN: I think that's good. Now we came to

:~s ! the Suspension of the death sentence, which we recommended and

,,--_ ..~~

_ _ _ -'~""~--"-

..

-''''''''

PAGE 84

!I Judge Findley unfortunately wasn't able to be wi th us.

JUDGE FINDLEY: I was handling a death case.

3

MR. GOWEN: And he had a suggestion that the rights

4 to suspend it have a limitation of years, and without the

~ Judge's reasons for that, we couldn't see any reason to limit

6 the power of the Governor to suspend the sentence by any

7 particular number of years. We made a note to bring it to

the attention of the full subcommittee.

9

JUDGE FINDLEY: All right, sir. The real point, and

10 this is not advocating the death penalty one way or the other,
'z"
1] I don't know how I would vote if that issue actually were

brought up. It's just that we are, down in our part of the

State -- we do deal with this situation on a more routine

basis I suppose than perhaps some of the others, and we are

~

<1:
r

15 .:> very much aware, as is the Supreme Court, that the death \.'

':">

1(,

co
.:z..:

penalty

as

such

is

relatively

meaningless

at

this

point.

There

Q

Z

17 e'"n has not been an execution and I don't remember when it was that

18 the new law carne back into effect authorizing it, but there

19 hasn't been one and irrespective of the news coverage to the

20 contrary saying each year there'll be one this year, I don't

21 see any that are close at all yet. So if we were considering

ii whether to eliminate it that would be something else, but
":1
23 assuming it is going to remain in the Constitution, then it
-- ought to be meaningful. What we have now, a case the one

that I was considering when I mentioned this this is in 1973

PAGE 85

that this individual was convicted, he's still moving around.

~ He's been to the Supreme Court of the United States twice,

3 Supreme Court of Georgia three times, through our court four

4 , times and he's now back in our court and he's back in the

S federal court. After he goes through all of these situations,

6 he still then can go to the Governor and ask for this

7 suspension and this would be eight, nine, ten years he

R can go to the Governor and ask for a suspension and then go

9 to the Pardons and Paroles Board.

10

What I am suggesting is that the time ought to

'z"

il ~ start running against him somewhere along the line and if

o

0-

w

12 ~ he's going to use this Pardons and Parole Board route to escape l

~j~)\~!.'! f.~'j]v.'j<~'

~ 1\'

! /.

~

"

'

.

!

'

~~

the

ultimate

then

he

ought

to

be

put

upon

an

election

to

do

-.. , : '

//

I

14 t~;; so, that within three years after the jury verdict finding him '
<i 1:
15 ~ guilty and the second verdict saying that he ought to be '.:J '":::J
16 ~ electrocuted or within four years, whatever the period might
oz
17 ~" be, he would have to make his application to the Governor,

18 II which puts into effect his application to the Parole Board. II:
1~ I If he fails to do that, then he has forfeited those rights

20 so that when it is finally adjudicated through his seven,

21 eight, nine years of courts, whatever this takes, is is

conclusive that he has nothing else to do and you can't start

allover again by appealing the Pardons and Paroles Board

decision and come right on back through the entire system .)~ There is no end to it now. So he ought to be put upon an

PA. GE 86

election that at some point in time all of the remedies should

2 not be cumulative, some of them have to drop off as he keeps

passing on through the years. That was my whole purpose.

4 This may be a very poor approach to it but something meaningful 5 should be placed in the Constitution it seems to me that would 6 '! give meaning to the law that's on the books or remove the

7 law that's on the books because it certainly does cause a lot

8 of distress and hardship the way it is.

9

JUSTICE HILL: I'd like to second the motion. I

10 think that we have a crime problem in the State. I think that

<:l

7.

11 o~ we have a loss of public respect in the judicial system, for

0-

,~

i ~sv

12 one reason because of the interminable delays and I think

~}--,. ~ Judge Findley is entirely correct that what we are going to

14 ;~. see -- and let me just take a second to describe the process.
:<
1:
15 ~ There is a trial and a conviction and the jury determines the !J.:
16 '~" man should be put to death. Then there is an appeal to the
z
<t
17 ~ Supreme Court of Georgia. Then there is an application for

18 [I certiorari to the United States Supreme Court. Then there's
I

19 il a State habeas corpus application. Then there is an applica-

Ii

20

ii
i

tion

to

appeal

the

Supreme

Court

of

Georgia.

Then there is

!

21

i
! an applicatbn for certiorari to the United States Supreme

n i Court. This is if it goes ideally. Some people figure out

23 ways to delay even this system. Then there is an application

24 i of habeas corpus in the federal district court, then an

.~5

1,1
,i

appeal

to

the

circuit

court,

then an

application

for

certiorari I

L

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

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

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

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

PAGE 87

1 II to the United States Supreme Court. Then there is an

2 IIiIiI application to the Pardons and Paroles Board.

I,

Ii
3 ""

Now I can understand why the Pardons and Paroles

Board doesn't want to interfere with the judicial process and

I can understand why the judiciary might not like it if they
:i
I,I'
6 !i were considering a case and the Pardons and Paroles Board II it
7 II'I' suddenly granted a commutation of the death penalty. I
8 think the public is entitled to better than that. If it's

going to be done, it ought to be done reasonably promptly

10 rather than have all this wheel spinning in the judicial

"z

11

...
r".,

system

if

the

Pardons

and

Paroles

Board ultimately

is

going

@r~12 ~~ to take some affirmative action with respect to the particular case.

14 ;.
:;;

Now if we don't put some sort of a limit in here,

<

1:

15 ~ let me prognosticate to you what is going to happen. After

":> 16 ~lD the case has been to the United States Supreme Court for the

z.
17 ~ third time, then there will be an application to the Pardons

and Paroles Board, and I'm not giving away any legal secrets, lY if that Pardons and Paroles Board application is turned down, 20 then there will be an attack upon the composition of the 21 Pardons and Paroles Board, that it is is unconstitutionally 22 I composed, that its proceedings do not provide due process, and
,,
-~ ,we're going to have further appeals as to the validity of the 24 I action of the Pardons and Paroles Board. And I think that 25 this suggestion, to provide a time limit on taking a matter to I

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

~--~---

-------P--A.--G--E---- -8. 8

I; the Pardons and Paroles Board, even though it may mean that

Ii

2

Ii
i:

the

Pardons

and

Paroles

Board

is

considering

the

matter

at

3

il
I' :1

the

same

time

that

the

judicial

system

is

considering

the

I:
-- 4 matter, I'm willing to have that conflict rather than as

<,..'. a matter of fact, I am in the process of advocating the same

(, ,il type of thing in a couple of other areas.

7

CHAIRMAN SMITH: Well let me raise two questions.

8 First of all, all we're talking about here is a suspension

9 until the Board can hear it. If you remove that suspension,

10 ., the Board can still hear it, can't they?

z

11 ~.
.:::

JUDGE FINDLEY: I didn't understand it that way,

()

0.

Judge. I thought that the Pardon and Paroles Board cannot

if the Governor puts it in motion -- if he doesn't grant the

suspension, it never gets to the Pardons and Paroles Board.

<:

1:

15 .0
:''""j

CHAIRMAN SMITH: You mean if I'm down on death row,

16

~
w,:>

I

can't

apply

to

the

Pardons

and

Paroles

Board?

Z

17 <~'

JUDGE FINDLEY: I don't think so.

18

CHAIRMAN SMITH: That's crazy.

19 I

JUDGE FINDLEY: He's already said he would, but I

2U think if he does not get that condition precedent, that's what

21 gives the Pardons and Paroles Board the authority to act. The

2.:.

Ii
I

Governor

acts

and

then

the

Pardons

and

Paroles

Board

can

act.

23

MR. GOWEN: You set up in another place in the

24 Constitution a Constitutional Pardons and Paroles Board. It

25 wouldn't take the federal court ten minutes to say that you

cc .

_

PAGE 89

' - - - - - - - - - - - - - - - , - ----- ---,-,-~'--

~
il

can't put the man

to

death without

giving

him a

chance to

go

i
I

il

2 i before this Board that you created and has the only clemency

3 il power in the state. He's entitled to go there so you're just

4 il setting up another way for him to go if you try to prevent

il

I'

.::
J

I1I\

that --

(, Iiii
Ii

JUDGE FINDLEY: The intent of my suggestion is that

7 IiI there is a point at which he loses his right to go before the ,I,1i
8:1 Pardons and Paroles Board, if that's the one that can give

!:

9

!:,I
Ii

executive

clemency.

10

MR. GOWEN: But you see he has contended all along

that he hasn't been legally convicted, he's not guilty. He

only goes to the Pardons and Paroles Board for clemency after

he's guilty and has been convicted but his contention is that

he hasn't been legally convicted and until all of his appeal

routes have been exhausted and they say he has been legally

convicted, then he has a right as a matter of grace and mercy

to go to the Pardons and Paroles Board for commutation.

JUSTICE HILL: Mr. Gowen, I would say that for a
?
19 person like McQuarkadale, who cut on a young girl for about
20 three days before he killed her, to say that I haven't been

21 legally convicted and the Pardons and Paroles Board to get 22 the clemency and passionate consideration that is due me, I

23 I; don't think that's the purpose at all. The purpose is to
Ii
24 , postpone the death penalty just as long as possible.

25

CHAIRMAN SMITH: Don't misunderstand me, I understand,

I T - - - - - - - -- ...-.~

PAGE 90

IIIi the frustrations and the problems. That's why I'm here

II

4 something needs to be done, but I'm not sure this is the s remedy. No court has the power to exercise clemency in the

6 sense of changing the sentence. All of these appeals, all

7 they can do is either say the death sentence is legal or it's

8 illegal and one of the developments in our society was to have

9 a repository of mercy and clemency for appropriate cases. Now

10 what we have done historically and what we do here is to put

~ z

(@))~ ~'

11 12

...
'~"'""""

that power, irrespective of legality, or commute over in some person, be it

to reduce the sentence the Governor or some

u:

body, and the courts system can't exercise that.

14 ~ ~'

JUSTICE HILL: No problem, no complaint about that.

'"

J:

15

~
'-'

I'm

simply

saying

that

the

application

to

the

Pardons

and

16 3''"" Paroles Board could be made following the affirmance of the

Czl



17 ~ conviction, it seems to me, rather than waiting four, five,

18 ii six years after that while the other legal proceedings are going i,iI
19 I on, which are not concerned with the conviction itself at all.

20 That conviction has been affirmed.

21

CHAIRMAN SMITH: Well I'm not saying that's not

22 ! mechanically possible, but I'm not sure that it is within the

scope of what we're doing here, is it?

2S "I it is. :c~ l -_ _.

JUDGE FINDLEY: Well, sir, it is, philosophically

~_~

_

CHAIRMAN SMITH:

PAGE 91

------ - - ----- -- - ~~--~"--------'----------1

Well, you know, I'm for cutting

i,

2 them off with a habeas after X years, but --

JUDGE FINDLEY: Do you not -- if he's seeking

4 clemency and mercy and so forth, the Pardons and Paroles Board,

5 if they think that this clemency is there, then they could

6 act within a reasonable period, as Justice Hill has stated,

and then we don't need to go through all these delays and

8 all these continuous appeals and so forth up the line. If

9 clemency is the issue and not justice, then let's have

10 clemency right off, let's don't have that somewhere eight,
~?
Z
II ~ nine, ten years down the line. You can be merciful right after
'o"
Qw
12 ~ he's coniicted just as easy as you can ten years from now or
..... ~ ~ ~~ nine years and we'll actually go into ten years on some of

14 >- these I think. !;.; <:

15 ,~

CHAIRMAN SMITH: Well what you all are saying is

<.:J

0>-

;;)

6

~ ozw

that

you

ought

to

override

the

current

policy

of

the

Board not

<

17 ~ to interfere on appeal.

JUSTICE HILL: That's correct.

19

JUDGE FINDLEY: That's correct.

20
,.

CHAIRMAN SMITH: And it really has nothing to do with

(I

21 , what's before us. Can't the legislature do that tomorrow?

22

JUDGE FINDLEY: No, sir, I don't believe they can.

L~

CHAIRMAN SMITH: Why?

I'

!i

24

MR. TIDWELL: Well I think the Board has to act when

25 : the accused comes to them, just as they have done in the Willi~

__ __ - - _... --------. _._--_. __ -~---------~_._-,._--_.'-

.

.

.~~~_ ..

i

rl--- ---._- ._---- .__._.-..

PAGE~ 92

il1 Horace Gates case. He filed one habeas, he did not appeal it,

ji
-) 'I he asked for a stay, the Governor gave it to him and he went

3 to the Pardons and Parole Board, they affirmed the death

4 sentence and he's still appealing and will continue to appeal.

5 !:

JUSTICE HILL: Is there any reason that the Board

6 must wait on an application? Obviously they know that these

7, people are in the system.

8!

MR. TIDWELL: They discourage it as policy, only as

i C)!

policy.

If an application is filed with them, they take the

10 case, they have to.

1] "~z

JUSTICE HILL: Couldn't it be provided that they

o

"'-

~ ...,. I12 ~ will take the case whether or not there is an application filed? Make the decision and that will be the decision of the

14 ;, Pardons and Paroles Board with respect to that sentence.

r"

15 ~

MR. TIDWELL: Well you could but that still hasn't

~)

'"::>
16 3 corrected your problem.

oz

<

17 ~

CHAIRMAN SMITH: That shouldn't be in the Constitutiorl,

Jb should it? Let's assume that's true. Can't the General

19 Assembly say that under the duties of the Pardons and Paroles

2ei Board, you shall hear them, you don't have to wait on the

21 courts.

MR. TIDWELL: It depends on what the Constitution

~3 says, Judge. I think the Constitution is now so framed that

24 I the Pardons and Paroles Board can pretty well do what it wants

25 to in the area of executive clemency.

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

."

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

PAGE 93

rr---

I 1\

CHAIRMAN SMITH: Well doesn't --

,

IIIi
,I

that we have here,

doesn't the Pardons and Paroles Board have

!i

iI'
3 such duties and all as provided by law'?

Ii

-I Ii
I'

MR. GOWEN: As provided by law, powers of executive

I!
s! clemency as provided by law.

i ,I

6 il

MR. TIDWELL: That would take care of it.

II

7 II

CHAIRMAN SMITH: Then the General Assembly can say

i8 :1 Parole Board, you can't adopt a rule to sit back and wait on
'I
9 I!Ii Judge Findley and Judge Hill, you must act.

to

MR. TIDWELL: Let me again -- they do act when the

application comes before them. They don't tell the inmate,

you can't file a commutation application.

CHAIRMAN SMITH: Well, but do they act by saying

this man is still in court, therefore we refuse to act'?

15 ~

MR. TIDWELL: No. They have only had two, Judge,

16 a~ and -- in the last fifteen years.

-0:

17 ~

CHAIRMAN SMITH: I don't understand the practice. In

18 'i the old days, they guy filed his appeal and his application

Jl)

i!
,I

the

same

day.

MR. TIDWELL:

I
!
I
They don't go to the Pardons and parole~

21 Board, they're still in the court, they're trying to get their

conviction overturned.

23

CHAIRMAN SMITH: But they don't go because of

publicity for a rule that they won't consider it, and if that .~5 ! rule is overruled by the General Assembly, then I

PAGE 94

MR. TIDWELL: I think what they're doing is they are

2 saving it as their last shot.

3

JUDGE FINDLEY: They are saving it and it's just

4 another four or five years in the process.

)

CHAIRMAN SMITH: Well if you were going to correct

6 it, it seems to me you would say if you want to go to the

7 Pardons and Paroles Board, you've got to do it in so many years.

8

JUDGE FINDLEY: That's what I said to you.

9 I:I

MR. GOWEN: I think the General Assembly could say

10 that. What you're saying here is the Governor has got no

11

"z
',Y"o

power

to

commute

it

after

a

number

of

years.

(i

U.

12 "~'

JUDGE FINDLEY: Maybe it's clumsily stated, but

... ~ ,~,_ ~~ what we're really seeking and the judiciary cannot do it, it

14 ,~- has to be done through the executive and through the '<:"r:
15 .:> legislative, the judiciary has taken the brunt of the criticism' "'":::>
16 ~ over a situation that they are powerless to do anything about.
Q
Z
<:
17 ~ And I believe that there ought to be some of these remedies

IS Ii that have to be cut off and if you let the people in the State
Ii
19 ,I of Georgia vote on a limitation, I think that if it's in the

20 Constitution they would vote for it.

_1 l'

CHAIRMAN SMITH: Well let me ask this, the different

22 proposals that are out to solve this problem, aren't they the

23 I subject of separate Constitutional proposals? Unified appeal, 24 all this kind of thing.

JUSTICE HILL: Not Constitutional, I don't believe.

r-------- --------- - -- ---- -~~-----

-~

PAGE 95
-------------~---------I

II IIIi

CHAIRMAN SMITH: Well if it's a statutory matter, I

2 I1 still say that's something the General Assembly can deal with

3 IIi,lI and that we don't appropriately address.

"i

4

:1
q

MR. GOWEN: A bill through the legislature that said

5 the powers of executive clemency in capital cases must be

exercised within so many years takes care of it because it

7 says they shall only have the executive clemency as provided

8 by law, and I think that's where you need your limitation that

9 they can only grant executive clemency within so many years

10 after conviction.

lz!l

11 ~

JUDGE FINDLEY: That may very well be so.

0.

w

ft.r.::~~'\-~r--- ~ ~~iVl.(-i

12 ~

CHAIRMAN SMITH: I really think as a matter of order

\~~;)) e"" ....o ~ that that's the way it ought to be handled rather than by --

' ......-.... - - / J
-

I

14 ~

JUDGE FINDLEY: The next question then is can the

'r<

15

.:>
l!l

legislature

at

this

point

bring

that

into

play

for

the

':":>

* 16 <Xl convictions that are already outstanding or would you have to

z

-0;

17 a~: have a grandfather clause. You'd have a grand rush down there

10 to make application.

19

CHAIRMAN SMITH: Well you'd have the same problem

2U \1 whether it's Constitutional or statutory it appears to me.

2J

I
That's

just a

problem that's

out

there.

JUSTICE HILL: It seems to me there is this potential!

con~ct. If the legislature adopts a statute which Mr. Gowen

proposes there would be the potential conflict that the

c',

"

:,
u

C
~

o

n

s

t._i

t

u

t

i

o

n__

would

then-_ -say

the

Gov-.-e---rnor

may -s--u. -s-p--e--n--d----t-h--e---.e--x--e--c--u--t-i-on

PAC;'E 96

- . --.----.- ---- r:---~-----_._.~._--_._'

--.------.~-.---

I

Ii
.,,I

of the sentence of death for offenses against the State,

that

I!

2 suspension shall continue until the Pardons and Paroles Board

3 shall have an opportunity to hear the applicatiOn. Now if you

4 i had put a time limit by statute on it, it could very well be

'i argued that this Constitutional power could be exercised later

(, than the time limit prescribed by statute because it is a

7 Constitutional power and that the attempt by the legislature

g to put a time limit was an attempt to limit the exercise of
:
q .' the Governor's Constitutional powers to suspend and the

10 Pardons and Paroles Board's power to consider.

CHAIRMAN SMITH: Well I think you're going to have

problems with it, whatever limitations are put in it when you

go into federal court.

DR. GIBSON: Judge Smith, the reason for this

provision originally was that the Governor originally had the
r::>
16 power to commute. It was given to the Pardons and Paroles
oz.
<:
17 ~ Board, the Pardons and Paroles Board could not suspend and

18 the concern was that you might get a fast judicial hearing and

19 the guy might be down in Reidsville and executed before the

20 Board had a chance to fully consider the matter. And that was

21 . why this provision was put in to suspend thatreath sentence
until the Board had time -- you could do the same thing by
23 giving the Pardons and Paroles Board the absolute right or the

obligation, which they now have by the way, to hear it, they ,~".."' have to hear it. That seems to me to be totally out of order

PAGE 97

r--------------- ---....-.--...---- ..- - . .

.\

II in this thing. I don't see why we need that.

2 IIIi

CHAIRMAN SMITH: In other words, just remove the

3

I'Ii
!:

power

of

suspension entirely

from

the

Governor

and

let

the

4 Board exercise it?

DR. GIBSON: Right. Because if you read this

() entire paragraph, the suspension is simply a temporary suspensipn

7il until and only until the Board has the opportunity to Ii
8 !I consider it. I don't know what the value is of having it.

ii

0'

MR. TIDWELL: Well Frank, the present Constitution

:i

]0 also allows the Governor to suspend it for any other reason

Czl
11 ~ and I'm not arguing that the Governor ought to have this,

o
"w"

12 : somebody ought to have the authority to suspend the death
~~) ~ ~ ~ ...... sentence. If a man is going to be executed in the morning _0J; I

14 ~ and a fellow in Florida confesses and says I done it, somebody

~ r

15 .~ ought to be able to stop that execution. Now the Pardons and

':':""0
16 Q~ Paroles Board is fine or the Governor is fine.

7.

'" ] -; <:: ~,

DR. GIBSON: Really though Charlie, the suspension,

Jr, if you look at the first sentence and the second sentence,it

19 seems to be related only to the hearing by the Pardons and

20 Paroles Board.

")1 I
'"

MR. TIDWELL: That's right, that's what 1 1 m saying

itls a change from the present law where the Governor can

23 ii suspend it until the Pardons and Paroles Board can hear it or
~'4 for any other reason. Now I think it is probably wisdom to
!
25 have somebody, not only to suspend it until the Board hears it, i

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

PAGE 98

ii

;!
I'

but of course

for

any other

reason.

I'II

" 2

II 'i

MR. GOWEN: Well the language is still in there,

Ii

3 tl or 1I for any other purpose which may be deemed necessary by

4

,i,
I

the

Governor. 1I

That's still in there, lines 29, 30, 31.

i!

S

MR. TIDWELL: That seems that it deals -- to me, Mr.

() Charlie, that it says the suspension shall stay in effect.

'7 If he granted a ninety day suspension, he might could amend his

, order and continue it on, but I don't think that once having
\i
9 heard it and then if something has come up, he would have
10 the power to suspend. Or the Pardons and Paroles, whoever is

going to have it. It seems to me it ought to be in the Pardons

and Paroles Board and keep the Governor out of it except that

the Governor is just one person out here and he can act

rather quickly whereas the Board might --

JUSTICE HILL: Make it the Chairman of the Pardons

and Paroles Board.

CHAIRMAN SMITH: Well or any member, just like any

18 member of the Supreme Court.

19

MR. TIDWELL: Wherever, just so long as it is a

20 workable -- for somebody to act.

21

CHAIRMAN SMITH: It seems to me to clear up this

22 dilemma that perhaps Dr. Gibson's suggestion that you just put
),
--' that suspension power back into the Board, now do we need to

spell it out that any member of the Board has the power to

suspend, and if so, under what circumstances?

PAGE 99

DR. GIBSON: That would be more of a -- if you put

1 the power in the Board and allow the General Assembly then to

3 write the procedural aspects of it --

4

CHAIRMAN SMITH: Well you wouldn't have to change

a word we have to do that because all their powers and duties

b are as provided by law.

7

MR. TIDWELL: To let anyone member do it, you might

"o get somebody out there opposed to the death penalty and they

9

I
Ii

could

just

keep

on

and

on.

;0

CHAIRMAN SMITH: Well the General Assembly could

l] :o;; handle that by 1imi ting it.

,:l.

W

,,:...SYll,

12 ~
::

DR. GIBSON: Charlie, is it not true that that

/ //'.' -,~.~,,\,

~

\((Jr:,J))r~~ ~ suspension is almost an automatic thing, in terms of waiting

'''~.~_:'.~., /
14 ~ for a hearing by the Pardons and Paroles Board?

<:
1:

(.'1

MR. TIDWELL: Yes. The Governor will automatically

'~

::>

1() ~01 grant one on any execution, he said that would be his policy,

L
<:
1! ~ and then no further. We I ve already had two.

is

CHAIRMAN SMITH: Well how many times can he do this?

MR. TIDWELL: He can continue to do it. This Governo~
,
says as his policy he will only grant one stay. If the death

: penalty is affirmed, then the inmate need not apply to him

again, he will not interfere with -- he will not suspend the

execution. I think that is subject to modification if some24 : thing -- somebody confesses or something like that, you know,

but just for the Pardons and Paroles Board to look at it again,

PACE 100

i!
Ii he's had his shot.

".

CHAIRMAN SMITH: Well I have some difficulty with

'i
3 )1 anybody having the continual power to suspend indefinitely.

4 That doesn't make any sense.

5

MR. TIDWELL: I think that's the situation that they

b have right now.

",

JUDGE FINDLEY: Sure is.

8
') be.

MR. TIDWELL: And I agree with you, it ought not to

10

CHAIRMAN SMITH: Well to get back to our task though,

:z.:>
11 ~ all of that could be addressed appropriately by the General o 0<w
(t~~\,m.:. i su~ 1) oc Ass mbly in my opinion. Does anybody disagree with that? So theeis is

'-,"--
'_

/

I'

J4 r

JUSTICE HILL: Except that I think it is a very

t;;

<

1:

\5 ~ serious topic and I'm not a member of the General Assembly, so

<.:J

:'":.

16 ~ I'd like to address it.

o

7-

<

17 ~

CHAIRMAN SMITH: Well the real issue is do we leave

i8 the suspension of the death sentence authority with the Governot
!
19 or do we let it pass under the general language to the Pardons

20 and Paroles Board. That's the issue on the table.

21 i:

JUDGE FINDLEY: Well is a part of that or have we

22 ! jsut abandoned the idea that there ought to be someone, whether ,-)" it be the Governor, the Pardons and Paroles Board or a 24 combination of the Governor and Pardons and Paroles Board,

25 should there not be a Constitutional provision that a defendant

__ -'_.

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

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

.

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

.. __ .- ---.

PAGE 101

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

---.-.~----------~---------------------

n~-----_-------

] iI,

must,

if

he wants

to

use

this

Constitutional

balm,

as

it were,

i I

i!

i

I
holy water, he's got to start with that thing somewhere along

I

I
I
3 the line. He can't wait and use that after he has gone through

all the courts, he can't start allover again, which is what

5 i they have done on the two that have been to the Governor or

i1 to the Pardons and Paroles Board, they have simply used that I;
7 as a means for getting back into the court system. This is --

8

CHAIRMAN SMITH: We have simply said that's a

matter that should be statutorily addressed by the General

10 As sembly

II ~z.:J

JUDGE FINDLEY: All right, sir, I didn't know

o
a..
I ~~~\:oo.,1"2' ~ whether
~//); j

CHAIRMAN SMITH: I think it's a very pointed

14 ~ Constitutional question vis-a-vis the federal Constitution
'.;:{
r
IS ~ and I don't see how we can resolve it in three or four minutes

Ie. ~ myself.

17 ~

Okay. What are your wishes, to leave the suspension

12 power, I suppose, in the form it is now, omitting the years

19 or to transfer that power to the Pardons and Paroles Board?
,1 I
20 I Is that a fair statement of the issue? Can I have a motion

21 either way?

DR. GIBSON: I guess I'll move, Judge, to transfer

23 that power to the Pardons and Paroles Board, who has the

24 authority to exercise executive clemency.

PROFESSOR WILLIAMS: I'll second it.

l'AlrI~ 102

CHAIRMAN SMITH: Any further discussion on that?

2

MRS. HOLMES: It will be the entire Board?

3

CHAIRMAN SMITH: Well it will be as the General

4 , Assembly prescribes under the general language that we have

) ! here, the particulars of it. I would hesitate for it to be

6 the Chairman because he might be in Hawaii at a conference

or something, so they would have to work out that.

8

Okay, the motion is that Paragraph V on Suspension

') of the death sentence simply be deleted and that the power

10 of suspension as a part of clemency be vested in the Pardons

'.!l

Z

11

>-
o'"'

and

Paroles

Board

under

the general provisions.

0.

"'

favor, raise your hands.

All those in

(Votes were cast with raised hands.)

CHAIRMAN SMITH: Opposed?

'il
<: r

15 .:> '."
'"::>

(No response.)

16 ~
'.oz"..

JUDGE FINDLEY: I don't want to whip a good dog, but

17 :i: what's violative of the federal Constitution by a limitation?

18 I don't see where that has anything to do with whether or not

19 the death penalty is or is not a valid exercise of power, it's

20 not cruel and unusual simply because you put a limitation on it.

Your guarantees under the federal Constitution are an

exhaustive right of appeal, not clemency.

II

23

CHAIRMAN SMITH: Well it may be

24 i

JUDGE FINDLEY: I just wondered

25 ;ii

CHAIRMAN SMITH: All I know is that my previous

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

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

n------
IIIIII attempts to speed it up ha'\e all been thwarted.

PAGE 103

-, ":

JUDGE FINDLEY: Well I just don't see where it's

a federal vio1atbn.

CHAIRMAN SMITH: Well I think there ought to be X

5 years in which to exhaust everything and then it's over with,

(0

'I ,:'

but

something has

got

to

happen

in the

system before

that's

going to stand up.

JUDGE FINDLEY: Through the Judge meanwhile.

9

CHAIRMAN SMITH: Okay. I'm trying to see -- oh, I

10 had one little question on the disability. Do the current

11

>-
':">

provisions -- I'm thinking of a

Governor who may be temporarily:

Q.

"'

disabled, is he off the payroll if he's succeeded or does the

pension and retirement, disability insurance of the State take

~ care of stuff like that? ,.;:

1~I ..:J
co

MR. GOWEN: That's a matter we think addresses itself

:':"J

1(

z!Xl r":i

to

the

General

Assembly

who

fixes

the

compensation.

2

.

u

c:J

CHAIRMAN SMITH: I presume you have disability

;1' :: coverage under the State's policy, don't you?

MR. HARRIS: If he's disabled, I don't see where he
20 would forfeit his right to compensation.
-)1
MR. TIDWELL: There's no disability insurance.

CHAIRMAN SMITH: There's not? Well I agree with

you, the General Assembly ought to handle it. I'd hate for

MR. HILL: That's a good point. Back here in our

succession to executive power, we stated that in case of

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

PAGE 104

I I: temporary disability, the Lieutenant Governor would serve

and we say "receive the compensation of the Governor". We

probably should say "receive the same compensation" and we

would avoid that problem.

CHAIRMAN SMITH: You know, if the poor guy was

here in Atlanta and he was going to be disabled for ninety

days, I'd hate for him

MR. GOWEN: Lose his salary.

()

JUSTICE HILL: Mr. Chairman, have you gone to

10 consideration of Section IV?

IJ ~ ~1": :> 0.-
12 "~"
@r~~

CHAIRMAN SMITH: I'm really waiting on Charlie. MR. GOWEN: Veto power? JUSTICE HILL: No, sir, Section IV.

14 ,,'
,,'

MR. GOWEN: Oh.

JUSTICE HILL: I understood we were talking about

16

i
"<":\

disability

and

I

did

not

know

whether

or

not

you

had

turned

I

<:

17 ~ to that provision.

It;

CHAIRMAN SMITH: I do think we kind of skimmed over

19 that.

20

MR. GOWEN: Well we took off the -- recommended the

21 State School Superintendent be taken out from the list of

'1'> the Constitutional officers and reduced the petitioners from

"
':"'i

four

to

three

and

we

deleted

the

word

"permanent"

so

we

could

have temporary disability. And I think that's all the changes

that were made.

n----- --_.-.-- -------_. --_..-._----- -..- -- ..

PAGE 105

IIiI

.
JUSTICE HILL: May I propose a couple of changes?

Ii

Ii

2 Ii We're talking here about physical or mental disability and I

'I

:1

3

'I
!i

take

it that you could have a

physical

disability,

such as a

Ii !I !I
4 Ii coma, which would not be considered to be a mental disability. ,I

S II!i I guess coma is about the only physical disability that I can

,I'

6 think of that might disable a Governor from serving as Governor'.

7

MR. GOWEN: He might have a stroke.

JUSTICE HILL: Could be. Under those circumstances, q would it be necessary that one of the medical doctors be a 10 psychiatrist? It seems to me we're locking ourselves into the

utrrization of the services of a psychiatrist where in some

instances you really need medical doctors as opposed to

psychiatrists. In case of mental disability, certainly you

do need a psychiatrist.

15 c>
":'>"

CHAIRMAN SMITH: Well do they have expertise in the

16

.~.., oz

power

to

use mental

faculties,

say

from

a

stroke,

the

17 ~ psychiatrists? I had checked in my mind, how are you going

18 to find one that some time or other hasn't had some relation-

19 i ship with a state, federal or local government. They're

20 always called in for consultation, you could have a problem

there. Well you want to have four of them and one of them

a psychiatrist?

JUSTICE HILL: I was just going to say including

24
a psychiatrist or psychiatrist if appropriate and let the

25
determination be made depending upon the nature of the

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

._--i

fi--------------- -----.

![ disability.

') II'I,'
- Ii

CHAIRMAN SMITH:

Well I don't know the medical

3 answer. If I have a stroke, is my doctor better able to say

4 whether I can think or is a psychiatrist? I don't know the s answer to that.

DR. GIBSON: A psychiatrist has to be a medical

7 ! doctor anyway, I'm not sure that providing an extra specialty

IS would--
II
9 II
!t

CHAIRMAN SMITH:

But I do worry about the

10 "psychiatrist not employed in any capacity" because really

"z

11

~.
o'"

most

of

them

sooner

or

later have to examine

some prisoner or

:J..

12 "~' some welfare case or somethbg.

@r,1

JUSTICE HILL: What about "not in the employ"?

-- 14; ~

CHAIRMAN SMITH: Well I'm not sure there's any

<:

1:

15 ~ difference.

'":.J

16 ~

MR. JACKSON: Why are you including federal there?

zC\



11 ~

MR. HILL: This is the present language, the

18 it committee didn't -- it's reorganized, restated so it's a
:1
19 !i little clearer this way, but it's exactly the same provision

have currently.

CHAIRMAN SMITH: Why don't you just stop and let

') , him be in private practice. It says "not less than three

;3 :: qualified physicians in private practice, one of whom must

24

I I

be

a

psychiatrist,"

period.

Everybody knows what private

F . practice is.

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

,

-

.--._- ,,- -

_ ...-- ..._--------_._.... -

PAGE 107

__..

.. _------~

MR. GOWEN: I think that's an improvement.

I

2

JUDGE FINDLEY: Do we have to use physical or

I

J mental disability? We just used permanent disability of the

4 Governor and over here we struck "permanent" and substituted

5 physical or mental. Couldn't we just use "permanent disability~' I
6 or is that necessary?

7

MR. GOWEN: It was to handle temporary disability.

JUDGE FINDLEY: All right, sir.

q

CHAIRMAN SMITH: Let me hypothesize. Suppose the

10 Governor is in a bad wreck and he is hooked up to all kinds

"z

11

i-
'o"

of machines

in a

hospital,

isn't

that a

temporary disability?

"-

0 12

"'
0:

\~J'~,~~l:.-'7--.V"-,C-~~0/\\f'.1~4

~~~'
;

duties

of

MR. the

HILL: Uh-huh. If he is unable to perform the office, thma petition would have to be filed

... by three people and the Supreme Court would have to determine

'"

r

15 ~ whether it's permanent or temporary.

'"::J
16 ~o..

MR. GOWEN: The present one only deals with permanent,

17 ~'" as I understand it, doesn't deal with temporary.

18

MR. HILL: Right.

19

MR. GOWEN: This purpose was to try to take care of

20 temporary disability and provide that the Supreme Court could

21 determine when the disability ended and restore him to his job.,

22

CHAIRMAN SMITH: Well what else from that?

23

MR. GOWEN: That's all.

2.+ '
JUSTICE HILL: What if instead of "at the conclusion I

25 of the hearing", we simply say "if after hearing evidence"? It'

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

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

r - .. ------. ----- . ----

PAGE 108

.i suggests the decision might have to be rendered immediately

2 :1 upon the conclusion of the hearing.

:3

CHAIRMAN SMITH: Have you got that?

4

MR. HILL: Uh-huh.

CHAIRMAN SMITH: I think we're making excellent

progress. We still have a whole subcommittee to go through.
i
7 ,! Do you want to break for a sandwich and come back?

MR. HILL: There's another thing we have to go over

in this one.

10

CHAIRMAN SMITH: Well let's finish this one.

MR. HILL: There was one provision dropped from the

present Constitution and I think you should be aware of it.

The committee is recommending that a provision be omitted that

now authorizes the General Assembly to provide by law for the

IS ~ suspension of any Constitutional officer.

-"

::J

16 .:.~. Cl

CHAIRMAN SMITH: Yeah. That was an anamoly really

-7-

17 ~

MR. HILL: There was one statute, I think 1937,

iE

i!
i'

that was adopted pursuant to that authorization but it has

19 never been utilized as far as we can tell and because of the

20 disability provisions that we have in here, we felt that it

21 basically taken care of. Also there is a separation of

7--7'- powers issue too, whether the General Assembly should be able

2J to suspend Constitutional officers or not, so

24
CHAIRMAN SMITH: That sentence just popped up, as I

2=' recall, in a fairly odd place.

PAGE 109
: II ri~ht MR. HI~~ ~nfOrlna~i:~-;~:: Offi~e~:and ~Pl:Yee~l

II

1 :1

CHAIRMAN SMITH: It appeared to me that it would

I,

il

.f il contravene on disability, but suppose you had a real gross

I
Ii
5 Ii situation. That's the only argument I can see for such a

I'.

n :! thing, but on the other hand, if you had a runaway legislature

I!

7

il
Ii

you

could

suspend

them all,

which would

be

absurd.

8 :I
I.I,

MR. GOWEN: The power of impeachment still exists.

9 i,
il

DR. GIBSON: Oh, you're saying if they can impeach

:1

10 it's not necessary for them to be able to suspend. I guess

c?

Z

lI

f-
oa:

you

yourself,

sir,

mentioned the Watergate thing.

We had a

a..

~~~.:~1) ".:.:.6:-.'114'.

~") I

'0"::
U
~

former

member of

the

General Assembly who

was

involved

in one

\~\J')Jr!'!!'J!. g~ of these things. What if you had a Secretary of State who was

14

;
I-

playing

footsey

with

various

and

sundry Mafia

elements.

The

~

I

<:

I

:J:
15 '~ only remedy you have is to impeach, is that right?

He continue~

..."

'"::>

!

16 o~ to serve unless and until impeachment processes are completed.

Z

~

17 ~

MR. GOWEN: Until he has been convicted. If he's

18 playing footsey with the Mafia, he's probably committed a

19 federal crime.

20 i

MR. HILL: Well the report of the subcommittee was

I

21 to delete that sentence and unless someone would move to put

22 it back in, it will not be in.

23

JUSTICE HILL: I think it was necessary as to non-

elecUrl Constitutional officers; for example, members of the

~))- ! Pardons and Paroles Board.

Now the phrase "removal from o~ticejJ

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

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

PA.GE 110
- ' r - - - - - - - - - - - . - - - . - ~ - - - - - ~ - - - -
il
I: has been added or is contained in each of your Constitutional

2 Boards. My recollection is that that provision was related, 3 not to your statewide elected Constitutional officers, secretar~

4 of State et aI, but was as to other "Constitutional officers",

5 to wi~ your Board members, and you needed it at that time but

6 it is taken care of I think.

'7

MR. THORNE-THOMSEN: Just by way of background. It

H has been used once and it was -- there was a suspension of a

(,: 'I Treasurer, I think it was back in 1939 and there was some

10 litigation that arose out of that particular exercise. Other

II

,.
C)~

than

that,

there doesn't

seem to

be any litigation or any other

?

examples of it ever being used to suspend and that was a

situation where there was evidence of malfeasance of sorts

and it was sentence suspension.

CHAIRMAN SMITH: Well I'm afraid, Dr. Gibson, that
,~
'.< .:>
16 ~<Xl our system really says that a fellow ought to be convicted
z
<
17 ti before he is punished. One of my good friends says he has

18 concluded democracy can't work and maybe this is an example of

19 it, but it does seem rather unusual --

20 -

DR. GIBSON: You could think of a dozen different

21 scenarios where situations would occur that might not result

22 I in conviction but it is really not the kind of activity you

: would expect of a Constitutional officer.

25 those.
U

CHAIRMAN SMITH: Oh, yeah, I can think of lots of
._

PAGE 111
~---,-,---,---.------- - ' - - - i
1 1m not against the power of suspension if I decide

2 how itls suspended.

3

MR. GOWEN: That's right, and if you can find a

4 legislature that can cast the first stone.

:;

CHAIRMAN SMITH: Some of you Capitol dwellers, where

6 and how quickly can we get a sandwich?

7

MR. TIDWELL: The Garden Room is probably the closest:

I
I

8 and quickest.

i

I

9 i"l

CHAIRMAN SMITH: Across the street by the church.

]0 Is 45 minutes enough? 1:30.
"z
(Whereupon, a luncheon recess was taken

at 12:50 p.m.)

L'
..," 16 ~
~
717 ~

i I~

I',

19

I I

20
I;
2.1

J,\

::3

24

,)'i

PAGE 112

AFTERNOON SESSION

CHAIRMAN SMITH: I think that one or two are on

.3 i, the way back but in the interest of time, let's proceed.

4

Before we have any further defections, I suggest

the 14th and 28th of November. They're Wednesdays and somehow

6 we've gotten into a Wednesday schedule. Are those satisfactory?

7 And what we would be looking for is insofar as possible the

, staff would have completed the rewording of those things we

9 have decided on today and so we would be doing a more or less

10 line-by-line approval of the redraft and we can put it to bed

11

>-
''::">

by

the

first of December.

"-

~

J2 :
@r~~~

MR. JACKSON: What time, 10? CHAIRMAN SMITH: Yes, 10 suit everybody?

14 ,? ...
r.
15 <:J
~ I~
0'
16 r~!'
'Z"
<i
17 :;

MR. GOWEN: The 28th was the other one? CHAIRMAN SMITH: The 14th and the 28th. REPRESENTATIVE WATKINS: What's the location? CHAIRMAN SMITH: Here in this room, I assume.

18

MR. HILL: If we can get this room it'll be here.

19

CHAIRMAN SMITH: Melvin will let you know.

20

All right, the subcommittee we have not heard from

this morning are the Other Constitutional Officer Subcommittee

that Judge Hill chaired.

"~J

To bring us up-to-date, the committee as a whole

has eliminate~he Superintendent of Education as an elected

Constitutional Officer and he is to be appointed. Melvin, can

L

.

._

~ ------.---------------

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

PAGE 113

,-1--- ----- ---------------------------------

II

IjlI you tell us where you are with the Education Article on that?
II

2 !\
ii

MR. HILL: The Education Article met -- the committe~ I

3

Ii
:1

to revise the Education Article met last week to receive the

II

il

4 II recommendation of this other committee and try to corne up

'/Ii

5 Ii with its own feelings about how to proceed and it decided

I,iI

()

" 'I

that it wanted a special comm~ee appointed of its own to look

~i

I"
7 II at this question and also the question of the composition and

8

II
Ii

method of

selection of

the

State

Board of

Education because

!!

') ilii they felt that it is not an isolated issue, you know, about

10 appointment of the State School Superintendent and the Board.

So both of these questions are now being looked at by a

subcommittee, a special committee of the full committee of

Article VIII. They will be meeting next Thursday and then

the following Tuesday, the full committee on Article VIII will

be meeting again, which will now be one day before this

committee meets again. So that we will have a recommendation

probably from the other committee on Article VIII back to this 18 committee then to make a final decision on this. They may 19 decide to recommend to you that this question not be dealt 20 I with yet. You know, I can't really say how they're going to
")1
....l come down on the issue, but they are looking at it, studying

it and they will have something concrete to recommend one 23 way or the other at the next meeting -- by the next meeting of 24 1 this committee.
25
CHAIRMAN SMITH: Well where we are, as I understand it,

[1-------.------. ---- .-------.------.....----

PAGE 114

il we have decided that he should not be elected and leaving to
II
)1
2 ;; them how they think the Board should be selected. Now what

Ii

3

:i
Ii

you're

saying

is

there

could

be

disagreement

on

the

first

I
4 proposition. I don't know what you do then. " ii ii

5I

We sent them a recommendation to adopt the so-called

6 Regents plan for the Board, but it was only as a recommenda-

OJ tion because we felt the selection of the Board, who would

8 have the power to hire the Superintendent, was completely withip

9 their domain. But as I understand it, they're going to make

10 a priority item out of this because they aren't on the same

"1 Z.

11

~
"'"
"w-

schedule

we

are.

They're two years off.

1:::'
..(J

MR. HILL: They thought they had two years to work,

:-.

.Z...
(@~)r~ u

but

all

of

a

sudden

they

have

this

other

problem

to

solve

'"

I

I

14

>-
~

first.

",

15 ."~" 'x9

CHAIRMAN SMITH: All right. The subcommittee went

~

]()

'l".'
w

back

last

time

to

see

if

there

were

any

other

of

the

present

Cl

Z.

<:

17

>:
'"

Constitutional

Officers

who

should

be

eliminated

and/or

their

18 i names changed.

19

Judge, as I understand it, the committee reached

20 I agreement as to everything except the Comptroller General and 21 the Labor Commissioner.

JUSTICE HILL: Everything except the Comptroller

: General.

CHAIRMAN SMITH: Well what was the action on the

Labor Commissioner?

PAGE 115

To leave him as an elected officer.

CHAIRMAN SMITH: To leave him?

JUSTICE HILL: Yes, sir.

4 I;

CHAIRMAN SMITH: All right. So everybody presently

5 named with the exception of the State School Superintendent

is still in there at this point. And the issue for discussion '

7 is the Comptroller General.

8

MR. JACKSON: There was disagreement on that, but

that was the majority opinion.

10

CHAIRMAN SMITH: Well does anybody want to raise

u Z
any of the others except the Comptroller?

MR. HARROLD: I'd like to raise the Labor

Commissioner. I think on the vote I was the only one that

voted that it should be an appointed position, so I don't

15 ..:.>, have very much room to talk but the arguments that were given -~

<t:

::>

16

:'"z'
'C"J

Ken

could

probably go

over

them,

he

met with him

--

didn't

z:

<>:

17

<t:
0'

you

meet

with

him?

IS

MR. ENGLISH: No, Delores did.

!9

MR. HARROLD: Delores did? And outline the reasons

20 "II why he should. I think by the nature of the functions of !:

21

i,I
his office that he

should be appointed and I'm realistic

--

now, you're going to write me a note and say you're going to
il
get me, but

REPRESENTATIVE BUCK: You must have a bad conscience.

MR. HARROLD: The critical realities are such that

PAC": 116

we would have a very difficult time in the legislature, I

2 believe, having the office made an appointed position, but I'd 3 like to hear what some of the other committee members think.

4

CHAIRMAN SMITH: Well what are the reasons for keeping

him? I mean, what's the counter argument?

JUSTICE HILL: When he goes to Japan, he can say

he's the Labor Commissioner instead of saying he's an

8 I! appointee of the Governor.
!I

C)

MS. CROCKETT: His argument was that he is directly

10 accountable to those that put him in office as opposed to the

"z

11 ~ Governor and that because labor is an issue that affects the

"o.

12 :'" people very dearly, that he felt that that position should not

s~,

"-

@r'" be subject to the political feelings of the Governor and that

14

>-
v,~.

it

should

remain

accessible

to

the

people.

Realistically he

r<

IS .:> felt that the committee would not be able to get it passed

'.?

'":::>

16

al
Z

'0"

MR. STERNE: Now you've got your answer.

7.

17 'a"l

MR. ENGLISH: That's the real bottom line.

18

MR. HARROLD: I don't think we -- our job is not to

19 \1 be dictated to by the political aspects in my judgement, but

II

20

'I I'
II

we

should

look

and

do

what

we

consider

to

be

the

right

thing

21

Ii:'

'I
Ii

in

making

our

recommendation

to

the General

Assembly.

I think the job is an important job. It's kind of

23 part federal, part state but still executive in its nature, and ~4 I I personally think the Commissioner should be accountable to

the Governor. Certainly a lot of people are affected by it, but

PAGE 117

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

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

~~~er~~o~~--~--:-af;~ctedb-y-~:~ Revenue Department and that's an i

'i

I

2 appointed position and I think by the nature of it, it

I

!

3 should be and should be insulated from politics, which you

4 can be to a certain degree by having the position appointed.

Anybody else like to respond?

MR. JACKSON: There are only one or two other states

7 in the nation that elect a Labor Commissioner. He's the

8 newest Constitutional Officer we have, so there's not the

9 weight of tradition there. I looked at about eight different

10 standards for whether you should have a Constitutionally

~ z

11 ~ elected officer or not and his did not meet any of the eight

o

0-

w

12 ~ standards, but I will defer to his political power.

~ F ~ ~sY.!t.-'1'

~

CHAIRMAN SMITH: I'm not sure that's consistent with

14 ~ some of the other things we have done. It's a matter of

':!

is

.I
~

philosophy

I

guess

<!l

'."J

16 zOJ w

MRS. HOLMES: Does the Commissioner of Agriculture

0

Z
<
17 ''"" fall under your classifications? It seem to me

Ix

MR. JACKSON: He's second on the list to go. I

19 would say the Commissioner of Labor is the least likely to fit

20 ~ any of these and the Commissioner of Agriculture is next.

21

MR. HARROLD: What were your criteria?

MRS. HOLMES: I think the points are very well

23 I: taken because frankly I think if you're running a political 24 campaign for four years,you're not running your office as well

as you could.

PAGE 118

2 that we've got to have a petition of three officers to

3 determine disability, that doesn't leave many.

4

JUSTICE HILL: That number can be amended though.

CHAIRMAN SMITH: Well I hate to make it two. That's

the only legitimate argument I can see for keeping him as an

'7 elected officer, to tell you the truth.

DR. GIBSON: I think you would have a very difficult

9 time with any argument supporting any of the other elected

10 officers but I do think that not to all of us involve ourselves:

C1

11

Z
...

in a

complete exercise of

futility,

we can't escape some

'o"

"w"

12 ~ realities of life. The Secretary of State's office has been

@r~ the carrier of every motley function that can't be put some-

14 ;::. where else. The Lieutenant Governor is the Secretary of State
~
<
1:
1S ,~ in one state. You would have a very difficult time under any <.:' ,~ "
16 ~ rational argument saying that should be elected. If you tried ~,
T. <
17 ~ to get the Constitution amended to appoint the Secretary of

18 !I State, it would die. I don't know how many years the rest of

19 : you have left, but I don't want to spend the rest of my life

20 , in the exercise of futile efforts. A lot of Constitutions

21 have gone down the drain in this state. I'd like to see one

22 that has some chance of passing.

"-.)

CHAIRMAN SMITH: Well I take it that the recommenda-

24 i tion is that he be retained. Is that
,
JUSTICE HILL: That was the committee vote -- subcommitteE

r-----
Ii vote, excuse me.

PAGE 119
----------------------.- ----------------------~

, Ii
- II

CHAIRMAN SMITH: All right, well why don't we just

3 IIIi take a vote on that motion. All those in favor of the

4 :1 recommendation.

,Ii

I

5

(Votes were cast with raised hands.)

CHAIRMAN SMITH: Opposed?

7

(Votes were cast with raised hands.)

CHAIRMAN SMITH: Let's do that again. All those

9 ! in favor of retaining him, raise your hands.

10

(Votes were cast with raised hands.)

'T.-'
Il I0o:
a.
12 '~"
/\,~~~'y-;>~Y~_~:/,)\V)'-~ ~~~

CHAIRMAN SMITH: Opposed? (Votes were cast with raised hands.)
CHAIRMAN SMITH: Okay. I never have known, is he

'---

I

)4

>-
I-

the

Controller

or

the

Comptroller?

I never have known how

'4

1:

15 .:> to pronounce that.

~

:'>"

.. 16 ~,

JUSTICE HILL: Comp, it's got a "p " in it.

C\

2



17 'ii

MR. GOWEN: I believe it's pronounced Controller.

16

CHAIRMAN SMITH: That's what I thought.

19

MR. GOWEN: I'll look it up when I get back to the

20 , office.

CHAIRMAN SMITH: Okay. Now as I understand it, you

did not resolve that issue.

23

JUSTICE HILL: That is correct.

CHAIRMAN SMITH: And I think in view of the earlier
__ 2) :iI appearance of Mr. Caldwell that at some point we owe him the
._._--_._------ _._---_. ~---_._-~---------_._.-------------------_._~-._---------~.. -_

l" hl~''. I"i' 120

courtesy of coming back. Let's see where we are on him

2 first.

3

REPRESENTATIVE BUCK: He appeared before our

4 subcommittee.

CHAIRMAN SMITH: Yeah, he appeared about 30 or 40

() i minutes with the subcommittee this morning.

7

DR. GIBSON: Judge Smith, I'd like to let the

subcommittee members know that there is an Executive Summary

of that GAO Report that is about 36 pages in length and the

10 Comptroller General's office does have a Xerox copy of that.

"z.

II

The interesting item in that report is that of the

v

CL

w

12 ~

("@-'~SV)~ ~"-~;:

I,

-

1

V

50 of

states, the GAO

four states and Georgia

did was

not one

respond to the questionnaire of the four states that didn't

'".~ .y/j

"

-

14

~ ~

respond.

So you might have some problem in citing that report

t

r

15 :~ to support anything about that office. It is available in

2

16 ~~~ his office.
T

CHAIRMAN SMITH: Well I missed what that report was

18 , about. You all were talking about that when I came in.

19

JUSTICE HILL: Let me see if I can summarize it for

20 :, you. As I understood whatCo~ptroller General Caldwell was _)1' saying with respect to the report was that it indicated that

the average tenure of Insurance Commissioners -- I believe it

dealt strictly with Insurance Commissioners -- was three years

.2-'1 ,: And he either found in the report or found from his own

25 I'

personal association that the tenure of elected officials to

I;
u._~

.

._,.~

._.~

~

~~~

PAGE ------------

- 1- -2-1- 1

!
that office is much greater, whereas the tenure of appointed

2 Insurance Commissioners is shorter than that of elected ones.

Now taking that and saying that the average is three years,

4 then the appointed ones may be even shorter than the three

in some instances.

6

And I believe Dr. Gibson indicated that the report

7 showed that in those states where it is appointed, there was s some movement from Insurance Commissioner to President of 9 insurance company or Vice President of insurance company and

10 from Vice President of insurance company to Insurance

z'",

11

l-
lol:

Commissioner,

that the appointed process

looked like the

"'-
.~

!2 ~
\(.t\~C'~~')_')1 \J r)~~)~0v~

revolving door that we establishment and arms

have seen perhaps in the manufacturers, that type

military of thing.

"..:.-.:..>'

I

14 ,.
~

CHAIRMAN SMITH: So he was using the report as an

<:

1:

15 ~ argument that it left you more independent, and then he was

'".;:l

1fJ

~ oz

using

continuity

--

I

didn't

quite

follow

that,

but

I

suppose

17 :ii that could cut either way. If you had the appointed thing

18 then the new Governor could presumably roll them over every

19 time, whereas if he were elected and good he would have the

20 i: continuity of successive terms.
!
21 was saying?

Is that basically what he

JUSTICE HILL: Yes, I think so.

DR. GIBSON: The general tone of that report is ..'4 very negative about all insurance commissioners, by the way,

that they are badly staffed, badly paid, unprofessional, do pla~

lc____

---

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

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

1 : footsy with insurance companies.

-, PACE

122 ......

It was a very negative report

2 on control and regulation of the insurance business and, as a

3 matter of fact, addressed itself primarily to the question of

4 whether the federal government should take over.

CHAIRMAN SMITH: Well I was going to say there's
,,
method in that --

7

JUSTICE HILL: Who is the author of the report?

DR. GIBSON: It's a GAO report.

CHAIRMAN SMITH: Well there is a subcommittee in the

lO Congress now trying to grasp that under the federal bosom,

11

,-
o.e

which

may

explain

some of

the

slant,

the

GAO

does work

for

the

:>

"-

~

12 ~ committee members.

~F!, ~~W~'

.;:

DR. GIBSON: I'd just like my views on the record to

t 14 show that that's a rather odd report for the Comptroller

<
I
15 ,~"' General to cite because it does not support very much at all.
'":;)
16 ,'z".,' That's one of the reasons why I did not want to vote this 'z".

1'7

lY.
'"

morning

because

I

wanted

to

see

that

report

before

I

voted,

and

18 I have seen it now.

19

CHAIRMAN SMITH: Well of course the counter arguments:

20 to what he is saying is that is the man is elected and he's

21 running for office this is yet another opportunity for
,,,
Lt:.. insurance companies to exercise influence on him, either by "",'-,, granting or withholding funds with which to make the race and
,.>1' other things. I suppose that's the nature of the beast. You
,.:: have the same thing with the Public Service Commissioner and

.._ n--~_ . _-------_._---_.__._-_.~.. _----- ----- -- ------------- ------------ ---
I rl anything else.

PAGE -12-3--, I I

IIII

I

2 11

MR. STERNE: Another thing we considered -- and I

3 II!i guess you could carry this argument to a ridiculous conclusion ~i I
4 ! talking about qualifications of Public Service Commissioners.

5 I think there as in the case of some of these Constitutional

(, officers, you narrow the opportunities to get more qualified

people interested when you put it on the basis of election.

8 There are a number of qualified people who are not willing to

9 go through that election process to be Public Service

10 Commissioner or whatever and a lot of people eliminate themselv~s

IJ ~ because of that and many of them would be available for

...o
0..

12 ~ appointment, I think.

(~~~)W\_j.~s!.!.!!!'!. ~~

MR. HARROLD: Well one of the things he stressed was

\ "'--J'//
',----/ 14 ~ that I believe there are eleven -- isn't that right -- that

"
1:
15 ~ were elected insurance commissioners in the country that he

a: ::. co
16 3 made the point that their tenure is longer. After he said

Cz\

l'!

<

x co

that

I

thought

about when

Governor

Busbee

came

into

office,

Tom Moreland was the head of the Highway Department and still
:i
j S' I, is, Joe Tanner was head of Natural Resources and still is,
20 Bill Strickland, Revenue Department, that was the only change

21 that I can remember, Charlie. And most of the people that n. head up our appointed state agencies and departments have been

,3 " there a long time. And I think it is easier to get rid of -l 1 them if they develop a drinking problem or something happens,

they get caught with their hand in the cookie jar, for the

PAGE 124

Ii Governor to get rid of them than to wait around for two or
I
three years for the next election. I think in our situation

3 we're fortunate to have the quality of the people we have

4 running state agencies today. And I don't think we would have s the same quality, as you say, if they had to run. Anybody

that runs has got to be crazy to start with.

7

Then when you look at it, who is interested in that

job and who is going to make the campaign contributions for

<) that particular job. It's not going to be just the average

person who would be interested in who the Governor is, it's

going to be the insurance companies, the finance companies,

the people that are going to be regulated by them. And I

don't blame them for making sure that they get somebody that's

at least not anti to them.

<

Ie

15 '"

He did make one point, that they handled 101,964

~

16

~"
u'

claims

in

one

year.

This was relating to the argument that

'<'"-:

17 ~ the people of the state were aware that the Comptroller

18 ;' General's office handled insurance problems, but he did say

19 'i that he only had 25 peope --

20 I' I!

DR. GIBSON: That included secretaries too.

2J

MR. HARROLD: -- handling claims, which works out

22 to 4,000 per year per claims adjuster. If you found off the

state holidays, which there are plenty of, thirty days annual

leave, they'd have to handle about 22 claims a day. So that's 25 just another point.

PAGE 125

r,---~

II
Ii

I think Johnny does a good job. I don't want to

,,:I

2

Ii
,I

make

this

a

personal

thing,

it's

just

that

I

believe

that

,I

1 after -- and it would benefit him personally to convert the

4 office, it would help his retirement personally to convert it

to an appointive office. But he feels -- don't let me lead

you astray -- he feels very strongly that it shouldn't be 7 appointed and it should be elected.

CHAIRMAN SMITH: Well what's the difference in the

considerations of this office and the Labor Commissioner?

IU

JUSTICE HILL: Well I wanted to ask Ed Jackson, he's

come up with a formula which I would love to hear about, but

in the interest of time maybe we can just find out where on

the scale of things he put the Comptroller General.

MR. JACKSON: The Comptroller General's potential

<:
);

15

'~1
,..)..

clients

or

actual

clients

I

think,

are

much

greater

by

the

;;;

I (.

0.1
I.
'7""-

weight

of

tradition,

he

has

been

a

Constitutional

elected

,, ~

7

~

~ officer for a hundred and something years, he is not a

1'I federal agent which essentially the Commissioner of Labor is.

19 , The Commissioner of Labor carries out federal unemployment

2U policies, 95% of his job is federal, the other 5% is

21 inspection.

There are other criteria but essentially I saw the 23 Comptroller General as more of a state agent handling more of

a variety of types of things that affect the people than the

Commissioner of Labor.

JUSTICE HILL: And I take it, more so than is true

2 for the Commissioner of Agriculture.

:< ;1

MR. JACKSON: Right.

4

JUSTICE HILL: Where on the scale of things, vis-a-vis

the Secretary of State and the Attorney General, would you

6 I put the Comptroller General?

7

MR. JACKSON: Well again this is a very subjective

8 thing because this is not a scientific criteria. I would

personally have placed the Secretary of State and Attorney

10 General, the Attorney General for his potentially important

~

t:J Z
J1 ~ role in investigating government, higher than the Comptroller () .",-
12 ~ General, but that's -- everybody has a different feeling

~ ~ ''''''., about that.

14 ~

DR. GIBSON: The Comptroller ,General, it's true he

n

<: r

15 ,,~" has been a Constitutional officer since 1799, but that office

:;)

16

00
.;; was
Q

set

up

originally

to

disburse

and

audit

state

funds

and

z

1'7

-0:
Yo
'" really

90%

of

it

now

is

insurance

commissioner,

he

has

18 nothing to do with state funds. I think it's kind of obscuring i

I

1

19

t h e I"
i

picture

to

talk

about

that

being

a

hundred

years

old.

20

MR. JACKSON: That was just one of many categories

_;'i that you would look at for why an office should be continued.

DR. GIBSON: Johnny Caldwell mentioned that today too .,. ',
and it kind of bothered me because really it lost that function

a hundred years ago and is now basically an insurance

commissioner's office, and a fine one. By the way, if he has

I'A.C~E 127

,rI------

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

~

-~- ~~

Ii to approve 6lery plan of every building over three feet high --

:1

I:

2 'IiI three stories high in this state, he sure must be a busy man.

3 \1 I'

I would just object to that. I don't know what

4 categories I would use and I can't defend my vote on the

5 Commissioner of Labor at all, I just have a gut feeling and

I don't have a gut feeling for the Comptroller General. That's,

7 about as subjective as you can get.

(,

:

()

I

-

,I

JUDGE FINDLEY: One is gut and one is gutsy.

ii

q

CHAIRMAN SMITH: Joe, do you have any feel for how

10 the industry, insurance industry nationally feels about this

'z"

1I

>-,
IX

kind

of

situation?

:;)

" ~.

.... /';'c/':Ii<\ J2 v~

REPRESENTATIVE WOOD: Judge, I do not because of the

,~., "'\\ \ ,,,.,'
I (Il."')ijr---

"R' variations

of

various

states.

And of course being in the

~~/ "
l: > business I have givenit a lot of thought myself, as to what 'r<
i) ~ can we -- the public best be served because insurance affects

I";

!l)

z: c~.

every

citizen

in

Georgia

practically.

Mr. Caldwell has done

r

~

1'J ~i a superb job but yet I think a specialized, trained individual

j ~l I in the field of insurance should be insurance commissioner, u Ii probably more so in the future than even in the past.

2U

CHAIRMAN SMITH: It gets more complicated.

REPRESENTATIVE WOOD: Getting more complicated, more

sophisticated every day.

2J

CHAIRMAN SMITH: Of course, there's no reason why

2-t the number one deputy can't be a Merit person with all of

2~ , this technical skill that you're talking about, and that's

really the optimum way government ought to operate anyway.

2

REPRESENTATIVE WOOD: He has an excellent staff, I

3 think he's to be commended in the way he has operated that

~~ office. Georgia as a rule has excellent insurance laws, we

5 will come up with New York and some of the other leading states;.

6 We were the third one to have the file in use, which has kept

7 insurance open for Georgians.

CHAIRMAN SMITH: Well does the industry -- let's say

9 the guy in Alabama is appointed, have you any feeling for how

10 they feel about dealing with an appointed person as opposed
II "z to an elected?
'"
REPRESENTATIVE WOOD: No, I don't have no feeling

for that because I have not been associated with anyone

CHAIRMAN SMITH: That's more from the company end

,~
r<
15 '.:> than the agent end really. \:. '-", REPRESENTATIVE WOOD:

Well of course I firmly

Z
<L
17 ~ think that it's not what the companies feels, it's how they

18 I qualify the man to tell the companies what they can and cannot

19 do. Companies are so sophisticated with all their computeriza-

20 tion that even our insurance department here doesn't have that.

21 We have one analyst and trying to hire another one but the

funds are not being made available. Insurance companies _) .', say we need this and Mr. Caldwell, there's no way in the world

he could say well I can prove you don't need it. He can say ~) I don't think so but -- not only in our department but probably;

1'." Cn'v:, 129

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

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

-- .. _.-

..

!

-- New York could prove everything they wanted to, but your

other southern states that I'm familiar with, no. They're

not qualified or sophisticated enough and until you get a
i:
I'
professional man to sit as insurance commissioner or deputy

insurance commissioner, I think we'll kind of stay away from

that.

CHAIRMAN SMITH: Well of course the General Assembly 1

8 could create qualifications for a deputy. You know, that would

) 1 be a way of attacking that situation. But I don't think what

[u you're saying really changes the difference in whether he's

l'

[I

l. c

appointed

or

elected.

'o"

I 1 '~"'

REPRESENTATIVE WOOD: No. I'm just giving it from

my vantage point as being in the insurance industry.

CHAIRMAN SMITH: This argument about election, Tom,

,~
L _'

'"1: ":'":".

you

know,

I

don't suppose anybody raises

any more money when

16 ,cz.o they run than the Governor. There's nothing to prevent the

::,

1:'

<
,~
'"

insurance

companies

from

saying

to

the

Governor

we're

going

1~ to give you this donation but we want you to make Joe the

]9 I ~nsurance commissioner.

20

JUSTICE HILL: Philosophically there is a difference

though because the Governor draws his support from so many

diverse elements.

CHAIRMAN SMITH: His constituents --

JUSTICE HILL: His constituency then is very

.2S balanced and very diversified.

MS. CROCKETT: Can we look at it from the viewpoint

2 of the people that elect these people? How many people

< actually vote for that position on the ballot, how many

4 people are aware of what the Comptroller does and how it

5 affects them, how many times has he been unopposed? Because

() looking at it from the electoral standpoint, this is a long

7 ballot and they see a name that they are familiar with. So

K when we look at protecting the rights of the persons that

9 :1 is electing that person, really I think we need to look at

10 how educated that person is when they are voting, in deter-
..;~
;-
II ... mining whether we should make it elected or appointed.

CHAIRMAN SMITH: Well I think as we mentioned earlier I

everybody votes on it but nobody knows what they are doing

and that's exactly what you're saying. And the name change .; 15 ~ related to that, if he's on the ballot as the candidate for
t;l
.r
16 ,<. insurance commissioner, it might change their interest in the ~ 2. -=l:
17 ~ job compared to what it is now. That's what the subcommittee

has been talking about.

19

MR. JACKSON: The simple matter is the Constitutional

20 officers are re-elected and re-elected with the exception in

2J '66 I believe when two former Democratic Constitutional

officers turned Republican and were later defeated. The voters

couldn't buy that. There has been about one in 30 or 40 years .~" j who has sought office and been defeated.

CHAIRMAN SMITH: Okay. What are your wishes?

JUDGE FINDLEY:

PAGE 131

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

- - - - - - _.......

Are we going to have him come down

;:i and talk? CHAIRMAN SMITH: Well if we need to.

4

JUDGE FINDLEY: Oh, is that what we decided?

5

MR. TIDWELL: If you vote to abolish him then you're

6 going to have him come?

7

CHAIRMAN SMITH: Obviously he wants to stay. There

~, ain't no point in letting him come if the committee votes for

him to stay.

!O

MRS. HOLMES: I don't think we're extending that

11 ,.. courtesy to all of the others that we're considering, are we? o 0w X JUSTICE HILL: All those who serious consideration

was given to, for deconstitutiona1ization of their office,

~ were either interviewed on that subject or came and talked to

15 ~ us, yes.

r.;,;.

:oJ

16

~
o

MRS. HOLMES: Would a motion be in order to delete

7.

" from the Constitutional officers the office of Comptroller

General?

CHAIRMAN SMITH: Okay, the motion is to delete him 20 as a Constitutional elected official. Is there a second to

that?

MS. CROCKET: I'll second it.

CHAIRMAN SMITH: Okay. All those in favor of the 24 motion to remove him from the Constitutional officers --

MR. ENGLISH: Point of informatbn. Is it going to

[i--

PAGE 132

I ! be the posture of the overall committee to take actions in

2 the absence of a subcommittee vote on issues like this? I

3 think the subcommittee this morning decided to postpone this

4 until a later date

5

CHAIRMAN SMITH: Oh, I didn't realize that.

61

MR. ENGLISH: I think to take a vote now in the

7 absence of some recommendation from the subcommittee is some-

8 what voiding them of their rights and responsibilities.

,

I
9i

JUSTICE HILL: They can veto us though no matter what

!

10 we do in any event. This would move things on. Dr. Gibson

z~
11 ~ saw the report that we put off this morning. But may I

o

0-

~-,~. ~1~

"'
x

suggest

that

rather

than

take

this

vote,

if

it

is

to

abolish

the office, ask the Comptroller General to come down here. And

14 > we vote now on whether or not to ask him to corne down here
<>-
1:
15 ~ with it being understood that all those who vote one way want ~ ":>
16 ~ one thing and those who vote the other way want another. I
az
17 ~ think it is unfair to have the decision made before a hearing.

18 Somebody when I was in law school made that statement.

19

CHAIRMAN SMITH: And I have this morning.

20

MRS. HOLMES: That just confuses the issue.

21

CHAIRMAN SMITH: Okay.

MRS. HOLMES: I'll withdraw my motion.

23

CHAIRMAN SMITH: The substitute motion is -- well, we:

!

really have several possibilities. Do you want to kick it back
I
25 to the subcommittee, do you want to have Mr. Caldwell and then
- - - - - - - - - - - - - - - - ----~----'

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

._. -._-..-_. - -.-.-----.-P-A-G-E----1-3-3.-.l

take a vote -- well that's really --

I

2

JUSTICE HILL: Or go ahead and leave him in the

3 Constitution.

4

CHAIRMAN SMITH: Do you construe as the movant that

5 a motion to hear from him is --

6

JUSTICE HILL: Is a motion to remove him. The motion,

7 to have him come speak to us now would be to follow that up

8 with a vote to remove him from office.

9

CHAIRMAN SMITH: Okay. I have one feeling as

10 Chairman and that is if the vote is very close on this and

~ z

11

....
oct.

I

would want to bring it back when we have more of our

"-

12
(l(-<ci~}~)\)F'~~

"~"
~

members,

whichever way it MR. GOWEN: Why

goes. not let

the

subcommittee

--

we're

":::-.=../ / I

J4 .>..-. going to meet two more times, let the subcommittee bring a

'<

T.

15~
C!>

recommendation

on

the

14th.

-'"'

16 ~

CHAIRMAN SMITH: Does that suit you all right?

Cl

JUSTICE HILL: That'd be fine.

18 i' I'

CHAIRMAN SMITH: Well that is a motion I take it,

"
19 Iii a substitute motion -- what's a substitute for the substitute,

20 you parliamentarians?

21

MR. TIDWELL: That's just fine, Judge.

22

CHAIRMAN SMITH: Okay, all those in favor of referrin~

it back to the subcommittee.

(Votes were cast with raised hands.)

25

CHAIRMAN SMITH: Opposed?

PAGE 134

MR. STERNE: It's mainly because I don't know how

2 to vote. I think there are compelling arguments on this one

3 that don't apply to some others.

4

CHAIRMAN SMITH: That's my dilemma.

5

MR. JACKSON: Just one comment for the record. It

6 would really be nice if we had the money to hire Darden or

7 someone to do a poll of the people to find out do they know

8 I who the Constitutional officers are and what they do and what

9 :1 their thoughts about it are. I don't know if we've got money

10 for it but I think that would be

CHAIRMAN SMITH: Well, how would it change if we

knew?

MR. JACKSON: Well if people came in and told us,

this statewide constituency they have and how important it is

"<,

1:

15 ~ and we find out just the opposite that nobody in the state know~

<:J

,,,w'
:;,

1()

z
w

who

these

people

are

or

what

they

do

and

don't

really

care

0

Z

<

17 'c"o about them.

II;

CHAIRMAN SMITH: Well you could say that about a

19 bunch of judges too.

20

JUSTICE HILL: I would not want the money spent in

21 that way.

22 i

CHAIRMAN SMITH: Would the subcommittee like to

23 sort of at least get a reaction as to the possible name

2,+ change?

2:'

JUSTICE HILL: Yes, you can take that up and see if

r r - - - ------- --------- -------- --- -- - - ---------- ---
it's easier to decide.

2

CHAIRMAN SMITH:

PACE 135 -------------------, I I
I
Well the proposal basically, if I

.3 may presume, is to change his name to Insurance Commissioner

4 or to leave it like it is or to call him the Comptroller

5 General and Insurance Commissioner, wasn't that the last

o thought?

7

MR. HARROLD: That was just my idea.

CHAIRMAN SMITH: Oh, was it, I thought it was

9 ' But his work is fire marshal and insurance commissioner as I I!

10 heard him up there this morning, that's what he does.

Cl

'z

l~ l-

MR. STERNE: I think we'd give the electorate a big

oX

o.

'" break to tell them what the office does, Comptroller General

doesn't say anything to anybody. In the federal government

... they control national banks or regulate them

~

I

15 -:>

VOICE: Fire and casualty.

<.:>

Q;

::J

16

'Xl
z

wa

CHAIRMAN SMITH: What would you say, Insurance and

z

..;

i 7 ""',):l Fire Commissioner?

18

REPRESENTATIVE BUCK: He said Fire and Casualty

19 Commissioner.

20

MR. HILL: If it were changed it would be Commissioner!

21 of whatever to be consistent, Commissioner of Insurance or

22 I Commissioner of Insurance and Fire or -- the others are
23 i: Commissioner of Labor, Commissioner of Agriculture. This
24 one should be Commissioner of Insurance.

MR. HARROLD: But you have Revenue Commissioner.

MR. HILL: That's true.

PAGE 136

CHAIRMAN SMITH: He's not a Constitutional officer.

3

Well I think insurance ought to be in his title

4 somewhere, now whether you tie on one of these other things or

5 not, I don't know, but I feel that very strongly myself.

6

MR. GOWEN: I move we recommend to.the subcommittee

the title be changed to Commissioner of Insurance.

MR. THORNE-THOMSEN: I took down some figures from

9 his speech this morning, and he only has actually 26 total

10 working in the claims office with respect to insurance, he

has 103 people working in the fire marshall office. We may

want to add that because it certainly is descriptive too.

CHAIRMAN SMITH: How many work in the small loan?

MR. HARROLD: He does that and of course he does

15 ~ the rate setting for workmens' comp and all the others.

:'":;

16 ~

MR. TIDWELL: He has far more people in the fire

;>

Z

<l

17 ~ marshall than he does in the others altogether.

18

CHAIRMAN SMITH: I suspect that too.

19

MR. TIDWELL: They're field inspectors, that's not

20 because they're handling paper work, shuffling paper.

21

REPRESENTATIVE BUCK: He implied he was contracting

22 I that to the federal government this morning, the fire marshal

business, he signed some contract with HEW.

24
ii 25 i
[L

CHAIRMAN SMITH: He does it and they pay for it. REPRESENTATIVE BUCK: Right.
_

PAGE 137

IT--

- - - - - - - - - - - - - - - - - - -- -----~------- -------------------------------------l

Ii

JUSTICE HILL: We're trying to help identify the

I

I

2

:1
I,

office

to

the

public,

not

just

to

identify

the

office

as

to

II

II

3 II all of its duties and when you have a problem with your fire

4 :": you don't call the fire marshall, but when you have a

5 problem with insurance you do call the insurance commissioner. :1

6

\I1i
Ii
I'I

Rather

than have

a

string of

names,

it

seems

to me

the

shorter

'I
7 I,I' the better.
II

8 !i!

CHAIRMAN SMITH: Okay, the motion is Commissioner of

9 I:,!' Insurance. All those ~. n f avor.

10

(Votes were cast with raised hands.)

'z"
11 ...
'o"
~,
I'} "'"'
@rl

CHAIRMAN SMITH: Opposed? So be it. (No response.)
CHAIRMAN SMITH: The next issue that I had down,

.:::..

I

14 ,,-. Judge, was the business about the placement of the Attorney

r'<

15 .:> General and the -- and/or the District Attorneys in the
16 3"'";:, Executive Article. As I understand it, the subcommittee has Czl -.;
17 ~ recommended or is recommending that they both be placed in the

18 Executive Article and removed from the Judicial Article.

19

Billy Lee is here representing the District Attorneys

20 ! Association, if I have the name right, and we'd be pleased to

21 hear from you.
,-,
He met with the subcommittee this morning and

discussed the matter with them. Their wishes are to stay in

24 the JUdicial Article, as is the wish of the Attorney General.

25

I'd like to hear from you or at least we should know

PAGE 138

that you are here to answer any questions as they consider the

2 matter.

3

MR. LEE: I'll be glad to answer any questions. I

4 ;, think most of you in here now, or the vast majority of you,

5 were on the subcommittee and I have nothing new to add to my

6 speal, just to reiterate that we prefer to stay in the Judicial

7 Article.

8

MR. JACKSON: I've got a question to ask. I was at

:i

9 the subcommittee meeting this morning. The determination of

lU your budget, whether you are Judicial or Executive, is entirely
~:
11 ~ a legislative decision. They determine by statute whether you o .0"-
~.__.IJ7 ~ will go to OPB or whether you'll be submitted with the Judicial budget. Since that's not affected by the Constitutional

14 .~..1. provision of where you're located and if there was a clear

'<:
1:
15 ~ grant of immunity to district attorneys, would you still object

'::">

16 "~' to being placed with the Executive Branch?

z



17 ~

MR. LEE: We would still prefer to be in the Judicial

18 Branch. We don't want to rock the boat, in substance. We

19 think we've been getting along traditionally all these years

20 where we are now relatively well and we don't know of any

21 problems that have occurred because we're in the Judicial

-') , Article or what might be -- what the advantages or disadvantages 23 -- well I can name disadvantages but I don't know what the

24 rationale is for wanting to put us in the Executive Article, as

..,.
~) ! a matter of fact.

I would have thought, and I don't know
- - - - - - - - - - - - - - - - _ . - ..-----~-_._-

r--------------------------~--

--

PAGE 139
------l ------------ -------- --

11 enough about the budgetary process but certainly Mr. Tidwell I

2 Ii and Mr. Buck and Mr. Harrold over here probably, or Mr. Wood I
I
-1 !' would know. I would have thought that probably the reason

4 I why we don't deal with OPB is the separation of powers that

5 ' you might get involved with, everything that's judicial in the

() legislative, as long as welre in the judicial -- I mean

7 executive. As long as we're in the judicial we don't have to

:; budget through the executive, although I don I t know whether

() ii that's right or not. That's why I would have thought we are ,I
]() budgeted through the Judicial without having to go through

OPB, just dealing with the Appropriations Committees of the

Senate and the House.

JUDGE FINDLEY: I wasn't at the subcommittee

meeting but I know from our own -- he speaks for the entire

Association, but on behalf of our own district attorney I

'u'-:>,:

16

~ ow

must

say

that

they

certainly

do

want

to

remain

in

the

Judicial

I

z

17 ~ Branch. Apparently this is something that the district

Its Ii attorneys have given a lot of thought and I believe it is a
lSi Ii matter that unless there is some pressing reason for moving
I~
20 ' them out of the Judicial Branch over into the Legislative
'I :1
i
21 Branch, I can't see any need for it either or any reasoning

22 behind it. They get the immunities -- of course I have talked

23 I with some of the members and -- where we can give them their

2-'1, judicial immunities and so forth but I doubt that we can do

that because the jUdges have a hard time keeping that judicial
!,

PAGE 140

immunity. You know, addressing the jury commissioners for

2 example, we've almost lost it. But the district attorneys and

J we're going to be getting into the probation officers and

4 juvenile caseworkers, all these people have a quasi-judicial

role and are more and more subject to lawsuits and very few

6 of them can afford the liability insurance that is required.
-,
i And if you don't have this immunity and are being sued, it's

is an arbitrary thing on these suits now, but enough of them stick',
<} it's like throwing things up against fly paper, some of it hangs
10 there and it scares you every time anyway.
'Z"
It just seems to me that unless there is a pressing

reason for putting them over in the Executive, all of their

work is in the courtroom and it is directly affected by the

work in the Judicial Branch, I don't see any reason for

I wasn't privy to the discussions that

took place.

MR. GOWEN: I'd like to say a word about transferring!

the Attorney General. I think the Attorney General ought to 19 stay in the Judicial Article, because the Attorney General as 20 I understand it is not the Governor's personal lawyer. He's 21 got duties and responsibilities that look into the conduct of

state officials and state offices, people of that kind, that 23 I think places him removes him from, you might say, the 24 Governor's cabinet or the Governor's place, and I think it is

extremely important to have a fairly independent Attorney

L~._ .__. ~

..

~..

. -----.--.-.---.-.. -.----------~--~-~------

PAGE 141

General. I think wetve got one, Itve seen the day that we

: didntt have one that was independent, but I think itts great

3 to have an Attorney General such as Arthur Bolton and he's

4 doing a good job and if he wants to stay in the Judicial

5 Article I'll do everything I can to keep him there.

6

CHAIRMAN SMITH: Well let me -- I've forgotten what

,.,
I

was subcommittee and what was full committee, I think

8 everybody agrees that his functions has a quasi-judicial

9 character but itts primarily executive in nature. This I

10 think was the result of -- in other words, the prosecution

11 "~z of crimes against the state is an executive function, not a

o
.",-
,c,v~ 12 ~ judicial function, because the judiciary is the third branch,

~l.r"~~ ~~

it sits in judgement between those two forces, between the

-.

j t, >- state acting through the prosecuting attorney and the attorney

I-

~

<

"I:

15 .~ general and the citizenry. Itm simplifying it, but that was --,

''""

16 .~..

MR. GOWEN: He has a lot to do besides that, I think,

o

z

17 ~" thatts the smallest part of the Attorney General's function,

18 is dealing with prosecution. That's handled locally by the

19 district attorneys and people of that kind. I think his job

20 is seeing that the departments of the state are properly

21 i operated and honestly operated and honestly maintained as

22 part and parcel of

23

CHAIRMAN SMITH: But he is their lawyer, Charlie.

24 That was the earlier point, he is the lawyer for all these

state departments, hets their advocate not their judge.

PAi,!; 142

MR. GOWEN: He provides the lawyers for them but

! the Attorney General is after all the man that has charge of
il 3 i! how they operate and whether they're operating properly and

4 whether they're doing the right job.

5

CHAIRMAN SMITH: I'm not sure about that and I'm not

6 trying to be an advocate, I'm just trying to tell you what I
,,
-; '! understood to be their earlier thought process. If the

s commissioner of something does a certain act, is it not the
,
9 Ii Attorney General's duty to defend that act?

10

JUSTICE HILL: No.

"z
11 f-

MR. GOWEN: No, I don't think so.

'o"

'-

~

12 :

JUSTICE HILL: His duty first is to determine

~ (k-1\.) ..."".. @) v --~~~ whether that act was rightful or wrongful and only if it was

14 ,.. rightful will he defend.

f-

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J:

15 <.!>

CHAIRMAN SMITH:

Well what does the poor devil

ii:

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16

~ ow

do

if

he

decides

not

to

defend

him?

Z

<l

17 ~

JUSTICE HILL: He toes the line from the beginning.

18

MR. GOWEN: Gets him another lawyer.

19

CHAIRMAN SMITH: I'm putting you in a litigation

20 context. Suppose that I file a suit on behalf of a citizen

2J against the DHR Commissioner. Does the Attorney General just

22 leave him hanging?

),
--)

JUSTICE HILL: The Attorney General has confessed a -~

24

CHAIRMAN SMITH: That's right but he's doing it as

his lawyer, not as

PAGE 143
- - - - - - 1 , - [I--------------------------------~------ - - - - - - - ------ - - - - - - - - - - ------------------

II!'

MR. GOWEN: He's doing it as Attorney General

i

2 II because the man doesn I t want it done.

Ii

':

3 1\

CHAIRMAN SMITH: Again I come back to the question --I

I-
il 4 'I

MR. GOWEN: He doesn't have the attorney and client

5 IIIi relationship that the ordinary man that employs an attorney

III
6 II has. A person comes to you to employ you and you think he's
il

ii

7

II
;1

wrong,

you

don't

take

his

case,

you

don't

have

anything

to

do

I":

1',

!
Iii

with

him,

but this Attorney General

has to make an independent I~-

-I

9 II has to make a decision as to whether his action is proper or
It

10 whether it's improper and if he says his action is improper

Czl
11 ~ then he tells him so. If the man don't agree with it he goes

o

0-

w

12 ~ into court against the Attorney General.

(\~(~Y.-(l-~i~-),e/m"r".

~~
I

MR. JACKSON: The investigation function is not a

--- 14 ~ function of the court, the courts determine whether evidence

J>

t

J:

15

.:>
,-'

found

is

guilt.

Also the Attorney General has to approve

'~"

16

zen
w

whether

any

agency

can

get

an

attorney.

Do you want the

Cl

Z

-<

]7 'a"l Judicial Branch telling Executive agencies whether they can

18 Ii hire an attorney of their own?

19

MR. GOWEN: By statute they have done away with

20 Ii their ability to hire independent ones except the Governor,

2! the Governor has still got the power I think under certain ii
22 circumstances to hire a special counsel, but and the

Attorney General I think has got the authority, he's got the

authority to hire within his budget. But it's -- in other

words, there was a day in Georgia when the Attorney General was

PAGE
rr--------------------- .--..-.,------.---------- ----.. -.---------. ----- .----------- ----.,----'.-- -.----"--.--.~------- ..--. -

144

ilII subservient to the Governor or at least -- when Gene Talmadge

I

2 Ii was Governor he had his own lawyers, he didn I t pay any attention

Ii

i

3

i!
:j;i

to

the Attorney General,

the Attorney General

didn I t

have

ii
4 II anything to do with it. Will Mann was in effect the attorney

i"

general as far as the Governorls office was concerned and the

6 legislature tried to get away from that. They turned around

7 and said his people can go out and hire special counsel and

8 that was one of the things Arthur Bolten insisted on when he

agreed to become the Attorney General, was that he would have

10 the right to hire the people that worked in the Law Department.

@\

'z.!l
11 ~ He was going to make it a real law department and not a place "o..-.
12 ~~ to put b rok en d own 1awyers.

~".,- ~

CHAIRMAN SMITH: Well he has accomplished that in a

14 ;~ grand manner. And again I' m not trying to debate, I' m simply '<
1:
15 ~ trying to review the earlier thought as I heard it. It was
'"::J
16 ~.xl that in essence he is the representative, be it on whatever
z
<I
17 ~ terms he has, he is the advocate for the Executive Branch, and

lR therefore he is one of the antagonists before the judiciary.

19

JUSTICE HILL: Judge, at one time he was also the

20 lawyer for the General Assembly. That has been changed, but th

21 fact is that we are dealing, as I view it and said earlier,

22 the Attorney General and the district attorneys, they're

I, I'

23

"
, bridges

between

the

various

branches.

When you put them in

24 ; one, they're quasi the other is what it comes down to.

25 Ii
LL.

CHAIRMAN SMITH: I think everybody agrees to that, but

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

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

PAGE 145
[1--------
II there are certain attributes that require an independence of

2 II thought and action by Mr. Lee or by Arthur Bolton. Sounds to

3 II!I me like he's saying you ought to be an executive, Billy and

I,

il4 !I the Attorney General ought to be judicial.

II
5 I'I,

JUDGE FINDLEY: The Attorney General -- almost

6

I,Ii
i
ii

everything

that

they

do,

if

an

appeal

starts

off

in

the

lower

7

'IIi II

court,

it

comes

up and

they will

handle

it

before

the

Supreme

8

I' !

Court or

Court of

Appeals.

But the DA is going to handle it --

') i they work very closely together, where the one is, they both

10 ought to be, the judicial or executive, you would have a

~,
11 ~ terrible time splitting them I think.

0:

o

a.

12 ~~

CHAIRMAN SMITH: I think over the years in the

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

I.' future they're going to be working closer and closer together
.

-

14 >I- t 00.

c:

<:

IS ~1:

JUDGE FINDLEY: Yes, sir, and when you bring--

~,

i>:

16

3:J
you

have

other

special

situations

where

the

District

Attorney

L
'-
17 -~< needs help, well it's the Attorney General that sends him

18 I,;. the help and not the Governor, in this respect. He will send l,e1' in a special prosecutor or an assistant to aid in the

prosecution of cases. Cases that cost a lot of money that a

21 county cannot handle and so forth, it can come through the

22 Attorney General's -- through the Law budget, and so forth.

23 There are many ways that the judiciary works hand in glove

_~4 with the Attorney General and the District Attorneys every

25 day that goes on in one form or another, always independent of
__,.... _-"--_._ .....1

--- ------.---.. -.----- - [I--------~---------

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

Ii the executive, or at least as far as I know.
i!
2 ii but they appear to be.

PACE 146
It may not be

CHAIRMAN SMITH: Well I assume many days they work

4 hand in glove with the Executive Department.

5

JUDGE FINDLEY: I don't think the district attorneys

o do but the Attorney General of course likely would.

7

CHAIRMAN SMITH: I don't know. I'm being the devi1's

8 advocate deliberately to make sure

MR. TIDWELL: Putting them one place or the other

10 wouldn't change one thing that has been said here this

l?

1:

.. 11 r- morning. Regardless of which Article he's in, the same '3 0-

@r"~12 ~ process will go on. members agree?

Would it not?

Would all the committee

14 ,. t;;

MR. HARROLD:



l:

IS .~ through OPB?

<:J

'":::J

16 ~

MR. TIDWELL:

Does the AG's office have to go Yes.



17 ~

MR. HARROLD: If you put them solely in the Judicial,

18 would that eliminate that onerous burden?

1':1

CHAIRMAN SMITH: I think that's one of the reasons

20 i! the Attorney General want:s to be in the Judicial Article.

ii

21 'i

MR. HARROLD: I think it would be a good reason for

II

'1, i the DA' s too. I don't blame them a bit.

CHAIRMAN SMITH: Well you know we discussed at one

.:'\ 'meeting the process of putting them in the Executive Branch

but having them in the Judicial budget, as being a way to

cL

.

~__

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

PAGE 147

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

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

~~~-~~~~~t~-that sort of financial pressure, of giving them

'

I'
; IIIi t he'l.r f'l.nanCl'.a1 'l.ndependence to act l'.n a quasl,.-J,udl'.Cl,.a1
'i
I:
:1 il capacity and the immunity but putting their functions 1,

essentially in the Executive Branch.

5

DR. GIBSON: I thought the OPB was a friendly

b agency, I never knew it was such an enemy.

7

CHAIRMAN SMITH: They want to cut the budget

8 apparently.

DR. GIBSON~ Well we set up that office so you

10 wouldn't have eighteen different departments going to the

<z.?
11 ~ General Assembly. I would hate to see us back off from that

.-0
"-,

<,

12

0: ':!

narrowing

of

that

independent

foray

to

the

General

Assembly.

(?~~)r""-~ ~ \;-~!);

And by the way, I am one of those people being represented by
I

',_/ 14 ~ an Assistant Attorney General right now in a-~ suit against me

r
15 ~ and I'd like to think that the Attorney General is an <.?
~
::>
16 ~ Executive officer. I've already got the courts to contend
oz
<l
17 ~ with, I'd hate to have two against me. And I had no choice.

IB Under state law right now if I don't accept Assistant Attorney

19 General aid I have to hire my own attorney and I'm not covered I

20 by the state insurance if I do that. So I think it's an

211 executive office. II

22 I

MR. TIDWELL: The Attorney General represents not

23 only the Executive but he still represents the General Assembly 24 and the judiciary. He represents all three branches of

25 government.

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

---_ ..

.. , ...

_--------_.-...--

~--

._-

PAGE 148

MR. JACKSON: How about an Article just for the

2 Attorney General?

3 'I,

CHAIRMAN SMITH: I was going to say maybe we ought

4 to have a fourth branch. That is an idea.

:1

5I I

MR. HILL: That has been proposed with some

"

6 seriousness by some people.

CHAIRMAN SMITH: Yeah, Article X and just hang him

x out there by himself.

<) I

MR. TIDWELL: That wouldn't resolve anything.

JUSTICE HILL: It might avoid some problems.

'-'

7.

II I,"-"

MR. TIDWELL: It doesrlt make a bit of difference

"-
@r~12 "~' where you put him, what does he do? JUSTICE HILL: If you put him in the Executive

14

>-
;;;

Article

you

may

then

prohibit

his

appointment

to

certain

15 ~ executive boards. The present Attorney General has corne off J6 '"-'az"i", of most of them I think but if he were in a separate Article
<
]7 ~ you might not have that problem.

Ix

Another instance, for example, there is a proposal

19 amongst the State Bar to make the Attorney General a member

20 of the Board of Governors. The State Bar is part of the

21 Judicial Branch of government. If he is purely in the

Executive Branch he may not be able to serve on the Board of

Governors because of separation of powers.

24

CHAIRMAN SMITH: You've got laymen on the Judicial

Council.
--,. --------------------- - -

__ iT---~-' _-----------__---~---~~--__-~~----------

PAGE 149

...~. . _

__ " ' - - - 1

JUSTICE HILL: But they're not in the Executive or I
2 Ii, Legislative Branch though.

3 ;!i

CHAIRMAN SMITH: Well I think it's more cosmetic

4 than real whatever we do. I guess the matter is up for the

5 whole committee to decide.

6

JUDGE FINDLEY: I like that proposition of getting

7 a separate Article, that sounds maybe like --

8

MR. HILL: Frankly, this would be a real possibility.

9 ,,i In the 1970 proposal, the Constitutional Boards and commissions!, I I
10 which are really an aspect of the Executive Branch, were put

I1

"z
f-

as

a

separate

paragraph

under

the

Executive

Article,

so

we

have two Articles we're dealing with. If you wanted to put

the Constitutional Boards and Commissions as part of the

Executive, you would have a separate place for the Attorney

15 ~, General and DA's as a separate provision if you're going to ,.,0,

:j

16 3'" do it. That would be an option available to you.

0

7:

., .{

!

O'

'0

CHAIRMAN SMITH: Tha.t may be the way to do that.

j ,~.
I
I:

DR. GIBSON:

19 about that?

How would the District Attorneys feel

20

MR. LEE: That's an absolutely new proposal to me

21 and I'm not in a position to speak for the District

22 Attorneys on that particular proposal. I'm sorry, I wish I was.

23

MR. JACKSON: If we do that, do we need to address

24 the liability?

CHAIRMAN SMITH: You mean the immunity question?

- - - - rr---~---~-~~---~------~~--

,[

MR. JACKSON: I'm sorry, the immunity.

PAGE 150

2

CHAIRMAN SMITH: In my view, as we discussed earlier

3 \i this morning, that immunity arises out of the nature of their
ii
4 jobs. The fact that they are labeled judicial is a sub-

~ argument, I think Billy would agree with that. For example,

(, a Supreme Court case applies to every prosecuting attorney in

7 the country, whatever Article he's under in his respective

8 state. So I don't think it's a critical thing, and I'm not

o i sure on federal standards whether the express grant of

10 immunity by a State Constitution would prevail anyway.

zCJ
... 11 f0e< o , '

JUDGE FINDLEY: Well that would give him some state

12 : aid if he lost, would it not? I mean if the state had given

.... ~ ~, ,.~~ him immunity, then the state is going to have to pay whatever

14 ..,.:.. judgment comes down against him. We're not differing with

4
r

15 -!l you at all on your interpretation of law, but --

.0"<"

:>

o 16 ~ z

CHAIRMAN SMITH: A grant of immunity, I'd be for

<:
17 :ii putting that in there.

18

JUDGE FINDLEY: If he's given that, that means the

I
Ii
19 .1 state or somebody is going to hold him harmless for doing his

"

20 job.

21

CHAIRMAN SMITH: Well there is I believe a judicial

exception and I'm four or five years behind now Judge, but

,,
~.'

there were some cases in Mississippi where it was proven that

the prosecuting attorneys did in fact conspire with others to

deprive people of their civil rights and there wasn't any

PAGE 151 .

. ----

--~.---.-

-

_...._- .~---- _ - - _ _ - - - - - 1

immunity in that case because he was stepping outside of his

!
I

2 role and acting really as an act of retribution or whatever

3 you want to call it and that was considered not to be in the

:1

I

4 ;, course of his duties, even though he was the guy that tried the!

I'

5 'I case.

6

JUDGE FINDLEY: Yes, sir. Well that would still

7 apply. I think that you would have to be acting within the

,
r; !, scope, but if you are clearly an administrative officer then
i"i

C)

,i
,i

the

burden

shifts

over

to

you

to

prove

that you

have

immunity

10 and it's such a close line in there that the shifting of that

II ~ burden becomes a very delicate thing. Of course, Mr. Langham o "-
12 ~"' who was here earlier for the Attorney General's office, he
\('~,~~Yf)('/)1;~1~~= ~~ has handled a number of these things and continues to handle
'<~:::-/ / 14 >- them, in which the Judges themselves, not infrequently any more;, !;; :~z: 1:, ~ are named in a suit for a simple matter that they have given
'.t.:
:'
16 3 your jury commissioners who are appointed by the grand jury, Cl :z. <
17 ii given the jury commissioners instructions as to how they are

18 1 to make up the make up the voters -- how they put jurors in the!
r
19 box. We have already had at least one, possibly more Superior
20 IIIi Court Judges in Georgia sued because they said they didn't II
21 given them the right instructions. They prevailed but it went
iI
221 out on another point. That basic issue never was really

resolved. So the exposure now is a real thing and the Judge, 24 i if he cannot, or the District Attorney, or the Attorney General,

if they cannot bring it within that immunity. ,There's a

PAGE 152

n-

I":
"
~I

difference,

when

you

talk

about

malfeasance

in

office,

then

':

2 "d of course you cannot get any help, but if it's nonfeasance or

3 ,Ii even misfeasance you still ought to be able to be protected in i 'I Ii
4 your job or else you just really can't do your job.

5

CHAIRMAN SMITH: Would it be practical, since you're

6 going to meet anyway, to refer this back to you and have an

7 investigation made of this separate Article concept so that

R at the next meeting we would have three options on which to

9 I vote. Is that a practical --

JUSTICE HILL: Yes, uh-huh.

CHAIRMAN SMITH:

way to look at it.

JUSTICE HILL: If that's where we are, let me raise

another problem. If the Attorney General is moved to the

Judicial Article, he would have to come out of the disability
1Jl
<l T
IS 3 of Executive Officers which we have already gone over, which
ct. ::>
J6 .'7."-. reduces the number again of those people who could petition Co

J7 '." for the removal of the -- any of the other officers. If he
i8 were going to a neutral Article, it might be that he could

19 remain in there, but this problem brings up -- we had a

20 disability provision or a removal provision that we dropped,

21 isn't that right, that we were talking about earlier, Mel?

Y"l

MR. HILL: Suspension, you mean, the General

".e..I~.', Assembly's authority to suspend?

1-+

JUSTICE HILL: Yeah. We've not got no way to remove

:!') a district attorney short of impeachment because these -- I

r-------------------------------------

PAGE --------

--1-5-3---

,

I II think I'm correct -- or are they subJ'ect to removal under

!

2 IIIi the removal provisions that judges are subject to?

I

3 IIII

MR. LEE: I think they are, Judge, but I can't

4 II guarantee that answer either. As a District Attorney speaking

II

5 i: for myself, I have no objection to any reasonable provision

II

(,

II :1

which would provide

for

the

removal

of

a

district attorney.

I

I!
II

7 II think they ought to be removed if there's cause for it.

8

JUSTICE HILL: I think the concept the way it has

9 been developed is that impeachment is just not practical. i'

10 We've got other provisions for removal. I said earlier that

"z

II

.le.-:
o

so

long as

the Boards were not Constitutional Officers,

their

"

removal was provided for, and I was forgetting the existence

of the district attorneys. There may be some provision for

suspension or removal as to them, if it would have been

15 ~ covered by the thing which has been dropped.

;.;r::

::J

16 ~

MR. LEE: We can be removed by losing our membership

z
<:
17 ~ in the State Bar too, disciplinary proceedings.

is :1

CHAIRMAN SMITH: But not on any disability basis.

1')

JUSTICE HILL: That's true.

20

MR. TIDWELL: DA's are not subject to the judicial

ii
21 qualifications commission.

22

JUSTICE HILL: So here you have an elected officer

who is not subject to any of the removal provisions.

MR. LEE: There's a provision, statute provision for

a judge to replace a district attorney who is disabled, even

PACE 154

temporarily. He can in some way make arrangements for another

2 district attorney to serve. Isn't that right, Judge Findley?

3

JUDGE FINDLEY: Yes, sir.

CHAIRMAN SM~TH: As Mel has pointed out, since he's

C J

elected he's also subject to recall.

(;

MR. HILL: There is the new recall provision. I

'7 i

think it applies to all public elected officers and so that

t\ I would be another way in addition to impeachment that that

9 i person could be removed.

10

JUSTICE HILL: Well Constitutional officers and

11 "z~ judges are subject to impeachment, they're subject to the
...o
C>.
12 ~ special removal provisions and they're subje,ct to recall and
~~ "~~ ,.. ~ t don't see any reason for leaving the DA's out of that.

--

14 ::I

CHAIRMAN SMITH: I think you have mentioned something!

I" 15 ~ here though that may cut for keeping them in the Executive
l.:')
'":::> 16 ~c: Branch, is this petitioning thing and the disability provisions
L
17 ~ and all of this, being part of that executive system.

18

Well we're not making much progress on this one. I

19 don't know what to do.

20

JUSTICE HILL: That's why we didn't bring you a

2i recommendation.

22

CHAIRMAN SMITH: Oh, I thought there was one.

JUSTICE HILL: I guess there was on this one.

24

MR. TIDWELL: On the Attorney General I believe there'

25 ,was.
"l~i

+

~

- - - --~-- -

---

il~--
1 ;i

-----------

PAG
~----------

-E---1--5-5----l

JUSTICE HILL: You're correct.

!

CHAIRMAN SMITH: Well let's sweat it out~ain for

:1 two weeks. I would like though if the staff could -I,

4

MR. LEE: Let me, before I leave, compliment this

5

'I
I:

committee.

I have served on two or three Constitutional

6

I'
i:

Revision

Committees

and

I

have

been

impressed with

the

depth

7 of the thinking that I have seen go on, some of the things that:
I
8 you have discussed in here quite frankly, and as a citizen

9 Ii I would like to compliment you.

10

CHAIRMAN SMITH: Well thank you very much. We do

'z..:'
all right on the easy ones, it's just on the hard ones we

kind of break down.

I do think there's going to have to be some research .

MR. HILL: Well, do you intend to have a subcommittee

15 --0 meeting prior to the next full committee meeting? ''::1 -->:

::1

j(, :"z".
'C"l

JUSTICE HILL: Yes. And I gather from the voices

-I:

4:

17

r.<
'"

that

we

could

probably

have

it

before

the meeting

on

the

18 ! 14th.

19

CHAIRMAN SMITH: Well I don't know, since you've

I

20

I
I'
II

got

this

second

one.

You were going to do that with the

!l I Comptroller, but this one seems like it might have to be given

22 a little more time than that.

"':J

JUSTICE HILL: Well maybe I can meet with my

subcommittee and we'll pick a date to meet.

25

CHAIRMAN SMITH: Are these two issues all that's left

PAGE 156

in your subcommittee?

2

JUSTICE HILL: Yes.

II

Ii
J"

CHAIRMAN SMITH: The Comptroller and the placement

4 of the Attorney General and the DAis.

5

MR. JACKSON: There was one minor issue over the

6 language of qualification. It says " citizen of the United 7 I: States for ten years, shall have resided . (here) four

8 .1 years " We I ve got a memo here which looks at the term

9 "residence" and what the terns "reside" and "domicile" and

10 "sojourner" and "citizen" mean.

"z
Ii

CHAIRMAN SMITH: And abode.

':.1::

o

Q.

@;:,i~, MR. JACKSON: And "abode". You might want to look at it, but there are some questions, for instance, if -- I

14 ,.. think the question if a Congressman came back here and wanted

n
<:

15

1: ~

to

run

for

office,

although

it

says

here

" shall

have

resided

""";:J
16 z<:l in the State for four years prior ", what if someone on

,~

0z

17

<
",
'"

the

Carter

Administration,

if

they're

not

re-elected,

if

IS they come back here would they be eligible to run for these

19 offices? I just raise this because there is inference that

10 when it uses the term " shall have resided in this State ",

21 it's talking about actual residence and there's other instances

2.: when they say must be a resident, they I re talking about legal

~3 residence or domicile. So I just raise this, I don't have an

24 answer. I just think it ought to be considered, do we want

25 to change this language.

PAGE 157

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

I

CHAIRMAN SMITH: Well part of that was resolved

I

I
earlier in connection with something else about next preceding.\

-'

,
:i

In other words,

there was

a question whether you could

tack

!1
4 gaps of residency to come up with four years, as in your

,-
_J

example, or did it have to be the four years next preceding

h the election. That only takes care of half of what you're

'; saying and the other half is what is a resident.

i

8

Ii
II

MR. JACKSON: That's right.

ii

9 !";

CHAIRMAN SMITH: There's been lots of lawsuits on

10 that.

MR. JACKSON: Well Mel raised the question do we

want to say legal resident. Do you want to throw that in to

clarify?

MRS. HOLMES: I would object to that because a woman

15 ~ is a legal resident of her husband's legal residence and they O' :':">
j() .'Z".. may have lived in Georgia for five years but if he has his 0 Z
<0:
17 '",:0 legal residence in New Jersey, that's where she is a legal

18 resident and this would disqualify her from anything.

19

JUDGE FINDLEY: I think the Fifty Circuit threw that

i!

20 out recently.

21 ;1

MRS. HOLMES: Only for voting.

22

JUDGE FINDLEY: All right, that's true, it was on a

23 voting case and that was across state line. This is equally ---',".1' important when you go from county to county, are you a

25 resident, you are a citizen of the State of Georgia residing in

n---~----------------------------------------

PACE 158
--- ---------- - - ---- - - ---------------- ------- -----

, a particular county in a particular municipality. All of

2 those go -- to be consistent there should be some overall

3 definition and there is none that I have any knowledge of.

4 ' There are many definitions but none to handle all of them and

s now we have run into a federal question and you're right that

() it has only come into the voting side, but it won't be far

7 behind I think on the non-resident motorist statutes that are

8 i already involved there, I don't know if it has been solved

') yet. I believe that an approach to it, as we discussed

10 briefly, may be that we ought to have a definition, whether

-:J

[]

7-
,...

the

legislature

does

or

whether

the

Constitution,

where

we

say

-~

~

that residency means citizenship, it means abode, it means all

of these different names, it means sojourner, it means -- Mr.

Carter may be just sojourning in Washington right now and

still a resident of the State of Georgia. There should be a

common definition and out of this common definition, statutory .;,: 17 '",", or Constitutional, all other things are construed in the

18 i l light of that. It is so important in so many areas and we do
19 I~i! not have a definition that is in any way consistent.

i

20 ,II

MR. JACKSON: Would that go in the Bill of Rights

n Article?

2.~

JUDGE FINDLEY: It could very well be in the Bill of

,i

n Rights, but somewhere in which there is a common definition

Z4 where it means the same thing no matter whether you're talking

about voting or you're talking about automobile wrecks or

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

PAGE .1_5-9-_.,

!!,: whether you're talking about committing a crime within a

2' certain area or crimes across state lines, crimes across

3 county lines. All of these things have to do with domicile
!
and venue and so many other questions that all corne back to the

5 same basic question of where were you at that particular time

6 and what was your status within that area. And a more

7 important one that Ed mentioned awhile ago is people going to

a state aid school or wanting to enroll in colleges or

') things of this nature. It's a real tough question there of

10 whether you qualify for residency tuition and so forth. I
z~.J
11 think there should be a common definition somewhere along the Q~ o :.. :"' line.

MRS. HOLMES: That applies to all citizens.

;..

JUDGE FINDLEY: Yes, ma'am, everyone, begin with the

..,~
,-'

15 ~ ladies and then work down.

16 ''~"""

MR. HILL: Well there is a definition in Article I

ow

z

17 ~< of citizenship and it states -- it's just kind of circular,

IH Ii: it says that "All citizens of the U. S. resident in this State

"

1'1
,"

are hereby declared citizens of this State. "

And that's what

20 ,I we now have, you're a citizen of the U.S. and a resident of II
21 I"' this state, whatever that means, then you are thereby a

22 citizen of Georgia. That's the present definition. The

23 Article I committee has not suggested or thought much about 24 changing it. So you're thinking that maybe we should spell

this out in more detail?

PAGE 160

JUDGE FINDLEY: I don't think that does anything.

-"' It just gives you, you're a United States citizen there and

~ that's about it. As far as fixing your place of residency

4

i !

in the State of Georgia, it may do it for the purpose of

5 being a Constitutional Officer but it wouldn't do it for any

6 of these myriad of circumstances that arise every day in the

7 court, elections, things like this.

CHAIRMAN SMITH: Well just getting it down to what

9 we're dealing with, we really have the question of what

10 resident means in terms of qualification for one of these

z~)

11

>-
"o

offices.

You know, whether we can solve the tuition problem

:>-

'~

12 ~ in the state school system in one fell swoop is another

(/~,O'fr;-Y~.;'l;,l-J_1-~)"'\" r"-.-"-".-. :~~,0:' question.

\:::~ '/

';'

14 ;

JUDGE FINDLEY: But couldn't we though? Is there

",

<!

r

15 ~' a way that you could ever come up with who is a resident or

0:

::>

16 "~' what is a resident or who is residing where for all purposes?

C\

7,

<1

17 ~

CHAIRMAN SMITH: Well of course you could say here

18 'i " citizen of the United States who is physically resident in
'i
19 : Georgia "

MR. HARROLD: For how long?

2i

CHAIRMAN SMITH: Well it would depend on what you're

talking about, whether you're talking about voting or running
,,
--' for office or what.

MR. HARROLD: You remember the Campbell case where there was an estate tax case where the Campbell Soup heir grew

PAGE 161

up in New York or grew up in New Jersey but had an apartment

.2 in New York, a real nice place in Florida and when he died,

3 all three states attached every asset that they could find. 'ii' That was a real interesting case.

5

CHAIRMAN SMITH: Well they're doing that with Howard:

6 Hughes too.

'7 i

MR. HARROLD: Yes.

MR. HILL: One reason we suggest "lE;!gal resident" 9 is because it seems to be subject to change upon court

10 interpretation, it just seemed like a way out. It's hard to

zI:J

II

,-
'o"

make

a

judgment

for

all of

these other circumstances about

<>.

w

e)~~12 ~ what it should be. Now for this particular question what do you think it should be, that a person had to have intended,

.-

14

C>1-.

resided

here

physical~and intended

to

reside

here

for

a

'4

1-

15 ~ period of four years and claims this as his official domicile .

.z: ::>

16 ~

MR. JACKSON: I don't know what this means. There

,:)

Z

<l:
17 :; is support for viewing it as actually residing in the state

18, and there is other support for, you know, been a resident.

19

MR. HILL: Just being here.

20

MR. JACKSON: Right. So I don't know what the intent:

21 is. Does a person have to actually physically be in this

22 , state for four years prior to the election? If so, then you

are eliminating -- and you may want to eliminate -- anybody

in Congress coming back here and running, anybody in the

Carter Administration from Georgia coming back and running. I,

- :~I - -. --------------.--- " -_ ..._._-----_ .. __..-
i!
I, don't know, I'm just raising the question.

PAGE 162 Based on court

2 decisions and the law, how it is used in different ways, this

3 is not clear to me, " shall have resided in the state for

4 four years "

5

MR. HARROLD: Do you have to have anything from a

6 practical point of view about how long they resided in the

i State because Lord knows they're not going to get elected if

8 I they haven't had some connection in Georgia.

JUDGE FINDLEY: Well South Carolina just had a real

10 shoot out on this the last time around. Mr. Ravenel would

11

>-
'o"

have

other

thoughts

on

that.

"-
~

~@._".. ~ 12 :

CHAIRMAN SMITH: Well let's see. What is the feeling

of this committee as to a residence requirement for qualifica-

14

;.
f-

tion

for

office?

What do we want it to mean?

Do we want it

'<

T-

IS ,~ to mean prior total residence of X years or X years

<:i

'";;J

In ~ consecutive residence immediately preceding or simply be

zC>

<

17 ~ legal residence which could be where your heart is even though

, you are temporarily somewhere else, under the decisions.

i9 I

MR. STERNE: A Congressman is a legal resident of

20 the state.

21

MR. JACKSON: But he's not an actual resident.

CHAIRMAN SMITH: A military person normally keeps

his legal residence at one place but moves allover the world.

24

JUDGE FINDLEY: Before we changed our domestic laws,

25 Candler, that's the first case that went out to Reno, wasn't itt

[i----- -----------

PACE 163 .~_ ._-----_.. -- .- - - - --l

II took their suitcases and came on back and made Coca Colas and I

Ii

I

il.2 that was all right, you had a resident of that state for that

Ii
3 1I,1' period of time. So the point is if it's something that should

4 II be resolved, if we could call it legal residence and then

'I
5 I'II define legal residence.

Ii

b Ii

CHAIRMAN SMITH: Over in this other Article.

Ii

7 Ii

JUDGE FINDLEY: I think it's a real question.

Ii,I

8

MR. HILL: I think you're asking an awful lot of

this other committee or ourselves to try to pin down -- you

10 know, the reason for fuzziness is because of the fuzziness of
l? Z
the concept however they may apply it as to the tuition and

that student. There are so many different places where

MR. TIDWELL: If you read the Attorney General's

opinions on that he addresses the question but he did not

answer it. He gives you all this laundry list of things that

indicate what is a resident. There is no answer to the

question.

IS

CHAIRMAN SMITH: There's not really an answer short

19 Ii of a court decision.

:1

20

MR. TIDWELL:

~)1' factual circumstances.

Each case is different due to the

MR. JACKSON: That's true of what is a resident but

'23 "what does this mean, this language here, " . s hall have

resided " Now we're not saying shall have been a resident.

25 That can be an issue that goes to a court but what does this

.. __._.' _.. _.

. ~ - - . .. __ .. . ----------_......1

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

PACE 164

ii
Ii

mean here,

" shall have

resided in the state . "

i:

i

2!

MR. TIDWELL: I understand what you're saying but

3 there is another concept that I'm talking about.

4

JUDGE FINDLEY: Could you go this far, "Residency

5 shall be determined by objective evidence and not subjective."

This is where the hassle always comes, if it is beneficial to

7 the individual, he says subjectively this is where my heart is

8 and I intend to remain there and therefore I am a resident, q but objectively all of the evidence is that he lives somewhere

10 else.

I.:J

7-

11 ...
'o"

MR. HILL: Haven't the courts read intent into this

"-

~

12 : as being very important and, you know, this would exclude

@ r ! Herman Talmadge if they were just going to use objective

14

,.. :<;;,

evidence.

r

," 15 .:>

JUDGE FINDLEY: You've got to either go with one or

:'">

16

J1l
Z...

the

other,

is

it objective evidence

that

is

going

to

be

the

0

2:

<

17 ''"" main criteria or is it subjective, is it the individual's

18 , intention or is it what it actually appears to be. Is there

19 any way to define that?

20

MR. HARROLD: I think it has to be a combination of

21 , both.

22

JUDGE FINDLEY: That's what it is now.

JUSTICE HILL: Do we have two standards though? For

24, Governor it says that he must have been a citizen of the state ' 25 for six years. Now then you go -- maybe you-don't go to the

PAGE 165
r Arti~l:- t~~~yo-:-:ea~-~~~,- ~hereas for o~~-~r-consti~uti:::~-l

2 II officers it says "shall have resided in this state for four !I
3 I! years". I'm not sure we're using the same standard even in
I: ,
the same Article and I would suggest that we turn it over to

the staff.

MR. HILL: It dies for lack of a second.

CHAIRMAN SMITH: I do think it ought to be uniform,

8 the term ought to mean the same in the Governor's paragraph

q i as it does in the other Executive Officers, and it may be that

10 a legal resident is the best we can do and let the chips fall
:~
Z
II on a fact by fact basis.

JUSTICE HILL: But that's different from what we've

got here.

CHAIRMAN SMITH: I know, but at least it ought to

15 ~ have that word in there, " shall have been a citizen of the

.>:

::>

16 ~o United States for ten years and shall have been a legal reside9t

z

!

17

'"
m

of

this

state . "

At least that draws it down to something.

I

11l Ii

MR. TIDWELL: Could you avoid the problem if you

Ii Ii

19 !I just had it be a registered elector for a certain number of

11
20 Ii years? ,i
21 :ii:

And get away from the objectivity and subjectivity. CHAIRMAN SMITH: That's a resident.

22 I

MR. JACKSON: That may be the first time we required

:i

23 il being a registered voter to run for office.

"

,

24 "

MR. TIDWELL: It would be.

'25 :'
lI L_____ , , .. JUS~TICE H, I_L_L_: ,T_hat wo_u_ ld _impose ,_a,__n~_a_g.._e_ requirement ,_

r r - - - - - - - - - - - ..- . - - - - . - - - . - - -

PAGE 166

2

H
i,Il
I!I

if we do not already have it registered before you became

because 18. If

you you

couldn't have had to have been

a

3

1\
I'

registered voter for

four years,

then you'd have to be 22.

i!

4 Ii

MR. TIDWELL: Twenty-one now.

I!

MS. CROCKETT: It's 25 anyway.

6

CHAIRMAN SMITH: What does it say in the Governor's

7 thing, I've got the other one.

8

JUSTICE HILL: Citizen of the state.

9

CHAIRMAN SMITH: Well citizen of the state gets back

\0 to being a citizen of the U.S. resident in the state.

"z

11 '"o.""."-.

MR. TIDWELL: If you peg it to registered elector

~ 12 ~ you don't have to do all of these -- perform all of these

~~ri impossible legal interpretations.

_.

14 ~

,...

JUDGE FINDLEY: Just to argue that one time since

'<
l:
15 ~ this comes up also, is that you are then imposing on your

"="'

16

~
~,

registrar

at

the

county

level

to

determine

whether

you

should

o

2:

<

17 ~ have purged that voter from the list and that's a real live

lk question right now under the law that passed last year. They'r~

II) having to go through and purge everyone who hasn't done so and

20 so and re-register them. So I think you are shifting it to

J' _1

! a person who is least qualified to make that decision by

22

i
!

pegging

it

to

being

a

registered

voter.

MRS. HOLMES: And don't we really want a Governor 24 who has resided in the state for six years prior to election?

__ __ 25 Is that the intent of Paragraph VI, he has really resided in the

._ ._-_ ,'---_ ....

.... _-- ---_.

._---_ .. _._-_._.-

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

PAGE 167

[i - - - - ------------ --state.

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

,

2 \1

CHAIRMAN SMITH: That was the previous interpretatio~

,I

1

3 II!I and previous conversation of either the subcommittee or the

I

Ii

4 I:1I committee as a whole.

5 I!!i

MR. JACKSON: What if a person went to Congress

6 IIII:I for a one-year appointment to some special fact finding

Ii7 conunittee?

8 :,I:

MRS. HOLMES:

i"i

<)'

MR. JACKSON:

Then they blew it. I would lean to legal residence in

IU both cases.

"z

11 ...
'o"

CHAIRMAN SMITH: I think that's probably the best

0.

12 ~ we're going to be able to do, but it ought to be the same in

@ r l both places.

14 ~ >-

MS. ADAMS: Why is there objection to that? Is there

~

1:

15 .:> an objection?

"'";:,

16 ~

CHAIRMAN SMITH: Well the objection Mrs. Holmes had

Czl

17 ~ is suppose you had a legal resident of Georgia who went off

for something for two years, he would still have his legal

19 residence here and would be able to run and the counter thought

20 was that he ought to have been here.

21

MR. HILL: That doesn't upset me so much, the

22 :1 people can decide this. This is just kind of a minimum

23:, qualification and I think it should be as minimum as possible

24 because the people are going to decide. Unless we say it this

2'i I way we may be disqualifying someone who the people of Georgia

LL

~.~ _ _.__. _,

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

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

PACE 168

rr----------------------------- -

!i would like to have represent them. So why should we be putting,

I'

2 I[I, a door on that possitility?

II

3 ,I

CHAIRMAN SMITH: The thing we were trying to prevent

:1

Ii

4 Ii was somebody moving in a la the New York system for the

5 I~ purpose of running. And as long as you have a legal residency

6 requirement, you're going to prevent that because you can show: I:
:1
7 11 the guy voted in Massachusetts the preceding 20 years, which ii II
R would pretty well nail it down.

Q

I think we're going to end up, Ed, just like you

10 said, going with -- and the phrase would read " and shall

"z

11

..-
Co'

have

been

a

legal resident of this state ......

for

x years

-:>

:";-,

@. _i12 u or whatever it happens to be. Does anybody really disagree !j~. with that?

14 :..V> ~-
:t:
1'i c~

":'>"

16

~
o

back.

Z

<l

17 ~

(No response.) CHAIRMAN SMITH: Okay, you're got two hot potatoes
JUSTICE HILL: Thank you.

18 ;1

CHAIRMAN SMITH: I suggest to you that you might

19 have to meet before nine o'clock the day we meet on the 14th.

20

Can anybody think of anything else?

21

MR. TIDWELL: We have one problem that was left

22 dangling in Nick's committee that we didn't resolve and I

23 see that it's here and I think this was -- Emory, this was

24 your subcommittee -- dealt with the Governor calling special

25 sessions and did he have the authority to amend his proclamatioh.

'- ------------- -- - -

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

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

-- ..

PAGE 169

Th=-~-~bcommittee -

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

-

[

as I understood their position, they didn't

!I

2

II
IIi

want

to

impose

an

onerous

burden

on

the

Governor

in

getting

:1

3 Ii approval of the General Assembly, but they wanted it -- they

4 !i were trying to help get issues resolved that would come up.
!:
5 :1 And so we were discussing at the last meeting if the Governor 'I
6 ,I,I' did have to get three-fifths approval of the General Assembly,
7 did that create a problem and we were trying to find out. I

E was confident that some proclamation had been amended but we 9 couldn't put our hands on it. But in the last 25 years we

10 have had seven sessions and in three of those instances where
C) Z
the Governor issues his proclamation, he did not make it

broad enough in his first proclamation and he had to amend

his proclamation. Now granted all three times it was before

the General Assembly got here. But the way the language is

15 ...t,l now worded, he could not amend his proclamation until the

'"::J

16

'z"
,~

General

Assembly

got

in

special

session

and

then

approved

it,

0z



17 ''"" so it makes clear that the Governor can amend it but he has to

18 get three-fifths. Historically he has amended his proclamation

19 Governor Vandiver did it twice and Governor Sanders did it

20 once.

21 !

CHAIRMAN SMITH: Well does this one solve it in some

22 fashion, this draft?

23

MR. TIDWELL: Yes, sir.

24 "
Ii

CHAIRMAN SMITH: And the major question was whether

anybody disagrees with that solution?

PAt;}; 170

1 - 1- - - - - ..- - - - - - ..~.-----~ . -.--- .. _._--_._.,_._,._-

II;i

MR. TIDWELL: It was not clear. I think the

II

2 II subcommittee -- Emory, you ought to be talking now, but you

'I
3 Ii'I:I weren't at the last meeting -- I think they presented it that

4 we want to make it clear that the Governor can amend his

5 proclamation. Historically he has done that. Now the

present language says he has to get three-fifths of the

7 members and that is a change, historical change.

8

CHAIRMAN SMITH: And that would be at the special

l) i session itself that he got that concurrence.

10

MR. TIDWELL: That's right.

11~~

CHAIRMAN SMITH: In other words, if they got there

'='

C\.

(~\ . :.: i. and got rid of what they were called for, by three-fifths vote
", ~;;!J) they could say let's get rid of something else while we're

14 ";,<-,. here.

'1:

15 ~

JUDGE FINDLEY: If the General Assembly agreed to it.

":'

.:>

16

'z"
'a"

Because

they

could

go

right

back

home

and

vote

themselves

I.

<l

17

o>e
'"

right

back

into

session,

so

we

were

trying

to

avoid

that.

18

CHAIRMAN SMITH: Well it looks like a practical

19 solution to me unless somebody has any expression about it.

20

JUDGE FINDLEY: It may need to be broadened so that

21 the Governor before the General Assembly gets up there can

"" amend his proclamation, but once they are in session he can
.'--' only amend it with three-fifth concurrence

.:4

MR. TIDWELL: That's the point that I was addressing.

JUDGE FINDLEY: That may be a better approach.

U

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

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

PAGE 171

MR. TIDWELL: Until they come into session, it has

been the historical proposition that he could amend it and

3 include anything he wanted to.

4

CHAIRMAN SMITH: Well do you think that ought to be

5 spelled out?

6

JUDGE FINDLEY: We didn't address that issue, we

7 II did not consider that part of it. I!
CHAIRMAN SMITH: Are you suggesting we ought to

spell it out?

10

MR. TIDWELL: Well, no, sir, I'm not, I don't

presume to suggest to y'all, I just want to point out.

JUDGE FINDLEY: We did not address it and I think

that would be -- we only considered after they came into

session. We did not think that the Governor then should amend

15 .:> it without the consent of the General Assembly. But we did
':':"">
: 6 ':"i not address the question of whether he should have the right "z
17 ~ to amend it before they actually went into session. It should

18 Ibe spelled out.

lY !

CHAIRMAN SMITH: Well just to clear it up, the first

2U clause could simply be amended to say "The Governor may convenei

the General Assembly in special session by proclamation which 22 may be amended prior to the convening of the session,1I or 23 words to that effect.

JUDGE FINDLEY: That'd be fine.

CHAIRMAN SMITH: And that will just clear up that one

PACE 172

thing.

2

One thing I'm not sure of and this will be the final

3 thing I'll impose on you about that we didn't make clear.

4 That in the rework of the Pardons and Paroles Board, we

5 'i effectively removed those minimums that are presently stated 6 : for service of sentence. I just wanted to make sure the

7 committee is aware of what is happening here because we may

want to propose a concurrent bill to reinstate those as a
i:
9 I statutory measure or certainly point it out to the General

10 Assembly that they are now gone. But as I see it, if all

"z

11

~
...o<Y-
0..

happened was

simply

to

adopt

this,

there

aren't

any more

12 'u" restrictions on the length of sentence or time that sentences

0@~0F ''-..~I

~
;: z
w have to be served imposed on the Pardons and Paroles Board,
~

14

r
t";

except

their

own

rules

and

regulations.


:r

15 ~

JUDGE FINDLEY: That's going to be very difficult

"'"::l

16 .IzX..>, to get through right now, especially if they get them indicted

J "7

z0c<
co

over

there

in

what

county,

the

district

attorney

is

trying

to

ji{ indict the Pardons and Paroles Board for letting out somebody.

19 Goolsby, that's him. And I think recently the Pardons and 20 Paroles Board has come in for some criticism for early releases

and I believe as a practical matter -- early releases in

quotes, I don't mean that there was anything in any way improper 23 about that. But the consensus seems to be that minimum

sentences -- and I think there is a bill before the legislature, 25 now taking all of this into consideration, that even the Judges

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

PAGE 173

Ii are going to be restricted as to minimums. So I don't know
Ii
2 'i that the Constitutional provision -- my own feeling would be
II
'I
3 ,i that the provision should point out somehow that the legis:1

4 I lature can adopt or enact laws that would prescribe minimum

5 sentences below which the Pardons and Paroles Board cannot go.

6 Don't fix any of them, but just make it clear that they are

7 to act on it.

8

CHAIRMAN SMITH: Well I think we will have dis-

9 charged our obligation if in the package that is going to the

10 Select Committee this is put in as a flag, saying this

11 removes it and there will be done absent action by the

I?

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14 :>-

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General Assembly. I think we will have discharged our duty. MR. TIDWELL: To point out one practical problem,
Judge, if it should be ratified as proposed, there is very little executive clemency statutory provision now and you are going to have a hiatus there where there is not going to be any provided by law. The worst thing that comes to mind,

JS nobody will be able to suspend the death sentence unless the

19 General Assembly acts. You can handle that by the effective

20 date of this Article. Now whether that whole Article needs

to be delayed until July 1, 1981, probably so, but it needs

to be looked at. The General Assembly does need to act in

that area.

CHAIRMAN SMITH: Our theory here today is that were

it adopted the Board of Pardons and Paroles could suspend it.

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

----

PAGE 174

MR. TIDWELL: But it says "as provided by law", so

2 there is no as provided by law.

3

CHAIRMAN SMITH: That's true, the effective date

4 ought to be delayed until after the next session of the

General Assembly, maybe make it June 1 or even March 1.

REPRESENTATIVE BUCK: Don't say March.

7

CHAIRMAN SMITH: Put it on the fiscal year.

8

MR. TIDWELL: The other Articles, because of the

q ii fact that the General Assembly did have to do some things,

10 they did delay it until July 1 and probably this is what we

CJ

7-

11 ~ ought -- you ought to do.

o.Q.,

12 ~

CHAIRMAN SMITH:

(t~);"',." ~ the different conunittees

It ought to be systematic with all

.-........-/

I

14 c~

MR. TIDWELL: Well some there is no need to have a

~,

<:

r

15 ~ delay, but this one there is.

~1

':":>

16 ~

CHAIRMAN SMITH: Well all right, I think we made

;;,

2.

<

17 ~ good progress up to a point.

MR. HARROLD: We have the room for the 14th but we

19 won't -- we'll have to go somewhere else on the 28th.

20

MR. HILL: We'll have a notice in the mail to you

21 about that.

YJ

(Whereupon, the meeting was adjourned at 3:13 p.m.)

.'3 ;,
24

25
i ',

,.

.__~

.

.~

.

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

--------1 PAGE 175
~ ~--------------~-------~-----~----

-C -E -R -T -I -F -I -C-AT- -E

2

i

3

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

4 hereby certify that the foregoing 174 pages of transcript

5 represent a true and accurate record of the events which

6 transpired at the time and place set out above.

7

8

I2.~QZF~

Peggy ~arren, CVR-CM, CCR A-17~

9

I

10
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'o"
",.-, 12 ~
~@r~' 14 ; t; :x:

25

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 j j j j
j

INDEX Committee to Revise Articles IV and V Full Committee Meeting Held on Oct. 31, 1979

FULL COMMITTEE MEETING, 10-31-79 Proceedings. pp. 3-5

ARTICLE IV: CONSTITUTIONAL BOARDS AND COMMISSIONS Subcommittee Reports: Recommended Boards and Commissions Section I: Public Service Commission Paragraph I: Public Service Commission. pp. 5-13
Section 11: State Board i Pardons and Paroles
Paragraph I: State Board of Pardons and Paroles. pp. 5-6, 172-174
Paragraph II: Powers and authority. pp. 17-20, 83-103

Section III: State Personnel Board Paragraph I: State Personnel Board. pp. 15-17, 23-26

Section IV: State Transportation Board Paragraph I: State Transportation Board; Commissioner.

pp. 21-22

ARTICLE III: LEGISLATIVE BRANCH
Section VI: Exercise ~ Powers
Paragraph II: Specif ic powers. pp. 21-22 (Relative to Constitutional Boards and Commissions)

ARTICLE V: EXECUTIVE BRANCH
Section I: Election of Governor and ~. Governor
Paragraph I: Governor: term of office; compensation and allowances. pp. 27-32

Paragraph III: Lieutenant Governor. pp. 37-61

Full Committee Meeting 10-31-79 Page 2
Paragraph IV: Qualifications of Governor and Lieutenant Governor. pp. 156-168
Paragraph V: Succession to executive power. pp. 32-37, 61-83, 103-108 Paragraph VI: Oath of office. p. 83
SECTION II: DUTIES AND POWERS OF GOVERNOR Paragraphs I: Executive power,
II: Law enforcement III: Commander in chief, and
IV: Veto power. p. 83 Paragraph VI: Information and recommendation to the General Assembly.
pp. 108-111 Paragraph VII: Special sessions of the General Assembly. pp. 168-171
SECT[ON III: OTHER ELECTED EXECUTIVE OFFICERS Paragraph I: Other executive officers, how elected. pp. 112-137
State School Superintendent. pp. 112-114 (recommended for deletion) Comptroller General. pp. 114-115, 119-137 Commissioner of Labor. pp. 114-119, 125 Paragraph IV: Attorney General; duties. pp. 137-155
(Attorney General and District Attorneys) Also see Article VI, Section VIII, Paragraph I, District Attorneys.

. rr--~-----
I i\
I! 2 Ii
\.1,
..
~
:I1; b

, PAGE 1
-_._._-..._ - - - - _ . _ - - - - - - - - - _ . _ - - _..
I
I
STATE OF GEORGIA
COMMITTEE TO REVISE ARTICLES IV AND V
OF THE
CONSTITUTION OF GEORGIA

7 :1 I'
8

9

SUBCOMMITTEE ON OTHER ELECTED OFFICERS

10
'.:J Z

:r:
15 ,~!
(,1
:':">
]6 ~ w c.
17 :i
18
19
20
21
22

Room 402, State Capitol Bldg. Atlanta, Georgia
Thursday, November 8, 1979 10:00 a.m.
+++ ++ +

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

i:--------
1 I'Ii
2 PRESENT:

COMMITTEE MEMBERS;

-I

JUSTICE HAROLD HILL, Chairman

REPRESENTATIVE THOMAS BUCK

(,

MS. DELORES CROCKETT

7

MR. THOMAS HARROLD

MR. EDWIN JACKSON

q

10

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14 )1,

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15 '"

OTHERS PRESENT; MELVIN HILL, Director of Staff VICKIE GREENBERG, Staff Attorney CYNTHIA NONIDEZ THOMAS THORNE-THOMSEN, Esq.

PAGE 2

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20
22 I

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[1----------------------- ~--.---------~------

PAGE 3
---------~

il

PRO C E E DIN G S

!

:1

III'

"

CHAI~~ HILL: Let's go ahead and begin. I think

3 we have a quorum.

Let's go kind of slow here at the beginning so we

5 don't do too much before the others get here, if they do get

here.

7

My recollection from the full committee was that we

had three things that were referred back to us, and those

three things are here in the agenda, and we certainly can add

10 other items to the agenda if the occasion arises.

"z

11 ~
o'"

Does anybody recall something different from that

0-

12 0W'

\~!/--- ~3 (;~S'::l_1t~..\~\

I.'
".
CUT""O

as

to

the

three items All right.

that

we

were

to

take

up?

]4 ).. v.

Vickie, why don't you tell us again the summation of!

J:

15 .'.", the District Attorney's immunity situation?

"::>

16 '~ w a

MS. GREENBERG: Okay. This handout on prosecutorial'

Z

<

17 :~ immunity is excerpted from the booklet called Official

lK Liability Immunity under Section 1983 written by the National

Association of Attorneys General Committee. It deals with -20 the booklet dealt with every conceivable type of immunity of 21 executive officers and judicial officers, and district 22 attorneys and attorney generals, and this section seems to say

that prosecuting attorneys receive immunity depending upon

their role or function.

For example, as officers of the court they would
_. ~---_._--------- --_ . __ ...__..__ .. _---~-~---~~-_!

PACE 4

I ! probably be afforded a quasi-judicial immunity, and in an

advisory role they would be depending upon -- let's see --

3 in certain cases they were absolutely immune from liability,

and in other cases they would receive a qualified immunity

depending upon their particular function.

In the investigative role of the prosecuting attorney

I he has only a qualified immunity, and the paper goes on and

talks about grand jury proceedings, and it's determined in the

courts but it's typically -- let's see -- either a qualified or

iU an absolute, and it does not really function on placement in

II the constitution, but as just really the nature of the role :"1 that he is playing in that particular position

CHAIRMAN HILL: It goes without saying that the

district attorneys would like to remain in the judicial
< J::
15 article.

Is there any further discussion that we need to take
I <J:
17 ~ up with respect to it?

Yes, Mel?

1(~J

MR. HILL: I would think that if it should be decided

20 I that the district attorneys should be put into the executive

article, there should be some statement in there that they 22 would continue to enjoy such immunities as they enjoyed under 23 the other, so it doesn't appear that we are trying to take

that away from them by putting it into the executive article.

I think some short statement to that effect would
- - - - - -----------

PAGE 5
rr--------------. il1 be necessary just to clarify the issue, it's so important to
I
leave it up in the air, and my own thought is that would be

necessary.

4

CHAIRMAN HILL: Let me mention also that at one

5 point our proposal was down to one rather neat legal page,

6 and bringing the DA's over adds quite a bit, and we're going

to have to do some checking because the decision to bring them

8 over has not been made formally.

9

For example, we want to make sure there is a

10 provision they be paid, that they not be able to go back on
'...:J Z
1j the fee system, how vacancies are filled, removal and that

type of thing.

I believe I am correct that presently there is a

u-. provision for removal of judicial officers, and they would be

<:

1:

15 ,~ 0.:'

included under that, whereas presently the proposal is for

:;,

i () ~~ ~,

removal of executive officers is for those named in that

')

I

<

17 .~ paragraph, Governor, Lieutenant Governor and so on on

on petition of three to be removed, so if the decision is

made to move them, there are quite a few housekeeping and 20 language problems which will have to be resolved at that 2l point, that can be resolved certainly.
)
It's just that we can't take final action today I

suppose because we won't have the language before us that would

be necessary to include in the article.

In this general area let me say that in a telephone

PAGE 6

conversation yesterday with Charlie Tidwell of the Governor's 2 office he raised this question of whether or not it would be
permissible to just leave the constitution the way it is now 4 with respect to the Attorney General and the district

s "attorneys. He was not advocating that; he raised it as a () ji question.

7

My own feeling about that is that it is not too bad

8 an idea unless it appears to approve having the Attorney

General in both articles, L _of what we are in effect saying is

10 let the Select Connnittee who's going to have to make the

., 11

,.
:.;

decision

anT#ay

make

the decision,

it

seems

to me

that

is

one

e-

o

(@v:":' i ,,-=~

thing, but to continue to have it in dual positions just kind
of goes against the grain of logic and so on.
:

14 ;..

But I think right now what is happening is that

!;;



I

15 ~ we're trying to put the Attorney General and the district

.,~

':"J

16

It:>

z.
~,

attorneys

in

the

same

place,

and

it

looks

like

one maybe

ought

:0

Z.

<i-

17 'm" to go one place and one ought to go the other.

18

Is there any further comment on the problem?

19

REPRESENTATIVE BUCK: Their main thing -- Excuse me, .

20 1: Tom.
21 22 !
23 ' things.

MR. HARROLD: Go ahead. REPRESENTATIVE BUCK; They're concerned about two Number one, innnunity; number two, they are concerned

24 , about where they're going to be as far as budget items. That

seems to be their main thrust as far as I can gather.

.. .._.. . _. _..... PAGE __7----I

~

~~-~~.

-~

-.~_.

___-~_~_

Originally this subcommittee did make a recommenda- \

2 tion I think that they be put inthe executive branch of

i

3 government, did they not?

4

CHAIRMAN HILL: That's correct.

5

REPRESENTATIVE BUCK: I can appreciate what you said

6 about housekeeping. That would include I.assume something

7 relating to immunity if we put it there, and I don't know g wllether we would want to put anything about where they would ') I be as far as purposes for budget items are concerned in the 10 constitution.

I just wonder about that. How could that be handled?

It's pretty much -- as far as their items, it's just

like the courts, Judge, I mean you're going to get so much as

far as salary is concerned, and you look at what your staff

15

,j
~

gets,

and

that

gets

to

another

thing.

:,,:"t

16 ~ r.:..)

NR. HARROLD: If we could put them in the executive

l.

<l.

17 ~ but insulate them from having to go through OPB and piggyback

is ! the immunity over, I think they would be happy.

1,)
NS. GREENBERG: ~by has the committee decided to put

20 both the district attorney and the Attorney General in one

2\ , article, in the executive? What benefit is there of that?

MR. JACKSON: Ny thought is this would allow at a

future date instead of 42 levels or qualities of prosecution
24
in each of the circuits perhaps go to a system where the

Attorney General could initiate prosecution statewide. In

. L_~

_"

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

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

1'."\(;E 8

other words, it would become more like the federal counterpart

2 where the district attorneys are part of the -- clearly under

3 the Attorney General.

!

I don't know if that's what we want, but it seems

5 like at some date we might want the area of consumer protec-

o tion or auto repair where the Attorney General could initiate

7 some standard of prosecution around the state, wereas as it is

now -- I'm not surej what is the relationship between the

9 Attorney General and the district attorney?

10

CHAIID1AN HILL: It is very much ad hoc right now

z~1
11 ~ I think. There is no formal relationship, it depends a lot on ~, a-

(I~~S~~)d".

U
_~

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\~:~"

the district attorney and the Attorney General the Attorney General's office.

or

somebody in

14 ,

One of the things that the district attorneys have

"~,
I
15 ~ need for I think in a relationship with the Attorney General's

u. ::J
16 ~ office are such things as your white collar crimes. The '2"

, . , ::l:
1 I ~1

district attorneys' office are daily exposed to your aggravated

18 crimes, murder, rape and so on, but when it comes say to a

19 securities law violation, state blue-sky law, they simply are

not geared up, and no lawyer would be if it came along only

21 once every ten or fifteen years, but there's somebody in the

22 Attorney General's office, for example, who can stay current

23 on that and go to whatever county may need him, may need that 24 type of assistance and try such a case.

25

I think the same thing may be true of campaign

PAGE 9
---- ---------------- ----------------------------------1

contributions or violations. I don't know whether those ought I

II

'")
L.

to be tried in Fulton County because of the reporting

3 requirements, but you could have, for example, particularly

4 with a local office where the report may be made to a probate

5 judge a violation of the law locally which the DA just would

6 never have heard of before.

7

REPRESENTATIVE BUCK: Talking about that, I notice

8 where the school superintendent down in Clayton County had a

9 little problem with it, it seems like he was indicted before a!
!

10 grand jury for failure to report five different contributions.

<.?
Z
11 :-

CHAI~~N HILL: Yes.

THE REPORTER: I'm sorry, sir, I am unable to hear

REPRESENTATIVE BUCK: Oh, I'm sorry.

IS ,~

I was talking about Clayton County and the school

\9

(.i:

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.. 16

ID
,z:

superintendent had been indicted down there under the campaign

C\

<:

t7 ~: m

disclosure financing act, and it was disposed of I think in

Us II Clayton County by the district attorney of that circuit and
!
19 not Louis Slayton's office.

:0

MR. HILL: Is the thought in putting them together

L~ ,I in one place that thereby the Attorney General would have more ,,
control or jurisdiction over the DA's? Because if that's what
-)-,, is really underlying this push I think it may be based on a

24 false premise because the Attorney General doesn't appoint

2S them and they're independently elected, he doesn't set their

PAGE 10

--- Ir-------------~---------------------

~ -~ - - - - - - - - - --- ---- -- -----\

il !I

salary, he can't remove them, there is no real control he

i

2 i would have, and to use this as a justification for, you know,

3 1\ insisting that they be in the same article may just not be
Ii
4 ,I justified. You know, I would say that.--

5 II

MR. JACKSON: You could make the same arguemnt on

6 il Superior Court judges, you know. They are elected, and yet

'I the Suprem~:Court has some authority to make rules and

regulations over them.

MR. HILL: That's true, but I think the burden is on

10 -- it's kind of been the feeling of the other committees the

~..:)

<-

It Q. burden is on the person or the group proposing to change the
,o.

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~ 12 ~
I/~~~,Y~."~h ')\r~~~"!~- ~;

.

,-!;

thing to show what the problems system and what the benefits of

have been under the present the change are going to be,

----=-. ./ / /

14 , and I think our assumption in this corrnnittee is - .. one of them

15 ~; h as b een, you know, if we put them together under the executive
'J: :0
J6 ~,:<; article that will give the Attorney General some more control
1'"1 ,.r; over the DA's, and I don't know that that assumption is really
Ix true, and we have encountered so much opposition to this
19 I proposal from a number of quarters, and I'm not sure that the

present system is that harmful. You know, that is my only 21 , thought, plus as Judge Hill has been saying where is this

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

--------l PAGE
--.----~~------.------

11

them befor'e they have had a chance to look at this, and I am :

2 having second thoughts about this proposed change by this

I,

3 committee, but it's your decision and I hope it's based on

4 reasons that are valid. That's all.

CHAIRMAN HILL: Mel, I think that if you split them,

6 put them in two different articles, then a law passed by the

7 General Assembly saying the Attorney General will have the

right to call upon the assistants or the district attorneys

9 I of the various circuits to provide him with information, the I
10 help of an assistant to obtain indictments on a multi-county

auto theft ring that you might be violating the separation of

powers provision because here you're letting somebody from the I

executive office call upon somebody in another branch to do

this, that and the other thing.

15 ~)
~)
,,::

By having them in the same you eliminate any argumen~

;)

Iv IX> Z ~,

that could be made that any statute were trying to meld the tw~

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17

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,'1'.

in any way would violate separation of powers.

18

MR. JACKSON: My thought is the executive branch is

19 that the term execute means to enforce, to carry out. That's

20 what we are talking about, the Attorney General being part of

2] the enforcement branch. I can see how he has a quasi-judicial

2.": role, I see that very clearly, but I also see how he has a

23 quasi-executive role, and my feelings are he should be clearly, 24 part of the executive branch.

25

MR. HARROLD: I think his executory functions far

PAGE 12

q-------------------------------------

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

II
I Ii outweigh the Attorney General's opinions, I guess would be
il

2 'I
!i

about as judicial, which I presume are binding

at least we

pI:

3 !I II

felt like they were binding on the beaurocracy and not binding

!l

ii

4 on the people, on the Superior Court judge if he decides that's

5 not right.

6

My feeling is the same way, I think in the classic

7 separation of powers that this should be in the executive

8 branch.
9i

MS. GREENBERG: Is there any benefit to keeping them

10 in both, keeping the Attorney General in both as it is

presently, since it seems like the thrust of this paper from

the Attorney General's counsel is that they are cloaked with

this judicial immunity no matter where they are placed; is

there any purpose to keeping them in both?

MR. HARROLD: I wouldn't object to having the AG's

office in both, but I think the DA's ought to be in the

executive with the things that they want. Anybody that can

18 avoid going through OPB I think is much better off.

19

There are elected officials -- the Superior Court

20 judges, they don't have to do that. Who else would have to go

21 through OPB on a local level for their budgets? That would be 22 i a mess, really.

23

If the staff could so structure an arrangement to

24 carry the umbrella of immunity over into the executive branch

with the DA's_ and have the Attorney General in both, that mighC

lI,L

_

PAGE 13

SOlut:~. be a

HILL;

What do Yo:t~ink about TO~'S~d~a-~-l

2

3 financing them? Do you think this should be specified, I mean!

4 the funding, it should be specified in the constitution that

5 the DA's will continue to be funded in such a manner as they

6 were before, or --?

7

MR. THORNE-THOMSEN: The problem with both of those

8 -- I was going to respond earlier to your remark, Mel -- you

9 made a statement in there to the effect that the immunity as

10 currently enjoyed by the district attorneys would be

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11

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continued is

that

you freeze

the

law as

it

exists

today and

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you

deprive

the

judiciary

of what

I

think

is

the

necessary

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flexibility

in

that

area

in much

the

same way

you're

freezing

~--

14 1-. a situation of funding that I'm not sure needs to have

v.

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15 ~ constitutional protection.

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16 .z w a

Is it a matter of course that if an officer is

Z.

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17 '"~:n provided for in the executive department then that officer has

Ib to go through the OPB?

19

REPRESENTATIVE BUCK: That's the way I understand it.

20

MR. JACKSON: There's an exception to that. The

21 State Auditor has been declared to be an executive officer in

22 a 1976 court decision, Rich versus the State. The court

23 looked at it, and they said clearly his functions are not 24 .! legislative nor judicial, therefore they must be executive,

25 and yet under the budget act, Title 40 the legislative

__ __ ,~_ .. ._--------_._-----_.. _ ._. .._--~--_.- _._.-
officer is funded as the Lieutenant

Governor,

I'AGE 14 an executive

.2 officer, under the legislative budget, so you don't have to

3 have that in the constitution. The legislature by the budget

'-I act can do that, they can declare what goes to OPB and what

~ goes under legislative budget, what goes under the judicial

6 budget.

7

MR. HARROLD: Maybe we don't have to have it, but

8 we can have the committee recommendation that companion

9 legislation go through.

10

REPRESENTATIVE BUCK; I see what you're talking about.

..;:;
II ,.

MR. HARROLD: With immunity too, I don't know that

~
@;:,~ that has to be -MR. THORNE-THOMSEN: Particularly if Vickie's bottom

!.~ ;. line conclusion is that it's determined by the courts as a

~~

i

IS ~. matter of their function, their particular duties and jobs,

U

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16

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and I

guess that's

an almost a case by case thing, isn't it,

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17 ""." Vickie? In other words

18

MS. GREENBERG: That would seem to be the trend of

19 this paper also. All these cases were federal cases, most of

20 them are U.S. Superior Court cases that determine it's quasi-

21 judicial immunity.

22

CHAIRMAN HILL: Tom, to overcome your problem of

23 freezing, what about the provision to the effect that the

24 district attorneys and Attorney General shall enjoy such

25 immunity as is necessary for the performance of their duties?

rr----
1 iI

PAGE 15
----------------------------------------,
That wouldn't freeze it.

2

Ii
Ii

MR. THORNE-THOMSEN: No.

3 II

CHAIRMAN HILL: It would give it some sort of a

4 i'Il constitutional status, it would authorize I think perhaps

it
I
5 Ii legislation to implement it, but it wouldn't require

6 i legislation.

i.

ilIi
7

MR. THORNE-THOMSEN:;. I think that would be a good

:'
8 I: solution.

Ii

9 I:

CHAIRMAN HILL:

.i

Then with an amendment to the budget

10 act so as to provide the district attorney with -- to submit

(,?

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11 ~ their requests for appropriations through the judicial budget.

.a0..-

Q ... ~I~ ~

MR. HARROLD: And the Attorney General's office too

if they felt like it was necessary.

14 ~

MR. HILL: As a recommendation you mean?

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15 ~

CHAIRMAN HILL: Yes, a statutory recommendation.

~I

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16 '"' '."~

MS. GREENBERG: Has that been a complaint of the

1:

~
17 ,1';": Attorney General's office that they would prefer being funded

18 through the judicial?

19

MR. HARROLD: Yes. I don't know if you would call it!

i

20 a complaint. It's more akin to a sledge hammer. You; don "t

I
I

2i I have to get stuck with OPB.

22

MR. JACKSON: Are we going on record that we support

the legislature placing the Attorney General in the judicial

24 budget? Is that what we just said, or that we will just leave I

2S it to the discretion of the General Assembly to decide this?

-- _ _ --------._---------------- - - - --- -

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

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

'1-------- -------------- -----------------

PAGE 16

1 i:

CHAIRMAN HILL: If we have a consensus, I think it

:1

'!

2 ,I may be that the district attorneys ought to be in that category,

:i

and our feeling probably is not as strong with respect to the

Attorney General in the same situation.

5

MR. HARROLD: I feel pretty strongly they ought to

be safe from it, because you could get an attorney general and

7 a governor going at each other, and I know our current

8 Governor's management philosophy is by budget, and if he could 9 just eliminate the budget of the Attorney General's office it

10 would effectively end all functions I presume.

II f,

REPRESENTATIVE BUCK: He's not going to practically

"-
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~ 12 ~ do that as long as he's got a legislative branch that's going

~~) ~ '--~ COO",,". to rewrite the budget anyway.

14 ~:

Whatever comes down from the Governor's office, those!

:<r

15 ..:.>, department heads, they can

.:.:

=-

16 .'z".. "7.

I don't think as a practical matter the General

17 '""" Assembly would be acting responsibly to an Attorney General's

18 office if they said "Okay, buddy, just whap, you ain't got

19 nothing." You know, it could conceivably happen; I doubt it. i

20

MR. HILL: Of course, he's made the argument before

21 that the main objection he has with being in the executive

22 branch is that he's fighting with his own people, he's fighting

-) , '

with the agencies he represents for money, and the conflict of

24
interest problem is why there is just the easier method of

25

, being funded, so

:_i

. . _~ .~_

PAGE 17
rr--- ----------- - - - - - - - - ----------- ---------------- ---------------------- ------~- ----',

il

1 Ii

MS. GREENBERG: Has this idea of having the Attorney!

2 II General and the district attorneys working together been

i

"
3 II presented to those two offices? Are they in accord, or is

that also going to be a fight when that proposal comes before

5 the General Assembly?

MR. JACKSON: I don't know our recommendation is to

solidify thati I think it would rather create ,a structure

8 where in the future if in the wisdom of the General Assembly 9 there ought to be a closer relationship, then we could do it JO by placing them both in the executive branch and in the same

branch. It may be ten years from now the Governor is

elected on a platform to clean up crime in the state, crime

that crosses superior court circuits, and we might want to hav~

a situation where he could fund or recommend funding as well a~

recommend responsibilities to the AG, then to the district

J6 3:0 attorney to act in this area. '-:z:I:

-0:

17 :ii

That would be my concern about taking that, his

IS budget and placing it solely in the judicial budget.

19

MS. GREENBERG: I just wondered if this idea had

20 been played in the General Assembly. Have they thought about I

21

this?

REPRESENTATIVE BUCK: I don't think so, Vickie, I

),

~-)

really don't not at all.

MS. GREENBERG: Is it something out of our committee7 I
MR. JACKSON: I think Judge Vick was one who really

PACE 18

supported the idea.

2

MR. HARROLD: There is some merit to that. All the

3 DAts I have talked to in south Georgia particularly get awful

4 tired of driving 1-75 up here on appeals, and if you did have

5 a unified system that might be something where you could have

I> I the AGts office handle their appeals, and a lot of them are

7 just nothing appeals but they still have to come.

8

REPRESENTATIVE BUCK: I can envision talking about

9 putting those~two things together for the future. As long as

10 youtve got an attorney general whots an elected officiI, and

11

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....

as

long

as youtve got a

district

attorney who's

elected out

o0:

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12 : of the circuit, and the AG says IILook, fellow, I want you to

~r~ ~~ do so and SO,II and he says "I aintt going to do it," there

14 ~ aintt a dadgum thing he can do to force him to do it, I

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15 .~ wouldntt think.

~

16 ,:z':"">

MR. HARROLD: But there could be areas of

w

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17

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cooperation.

They reallykind of get a~ong pretty goo as far

18 as that goes.

19

MS. GREENBERG: I wonder if that would be enhanced

20 if theyt re put in the same article, and could the same thing

21 be accomplished by the same structuneas is contemplated.

22

CHAIRMAN HILL: Well, does somebody want to propose

23 an overall motion, or do you want to take these offices

24 one at a time?

15

MR. HARROLD: Well, in the interest of time I

PAGE 19

propose that we keep, or we place the district attorneys

2 in the executive branch with the recommendation of companion

3 legislation that their budgetary process will be handled

4 through the judicial, and that the language -- I don't remember

I

exactly the words -- about their immunity be carried over,

i

I
and that the Attorney General's office be in both articles. I

I

REPRESENTATIVE BUCK: Did you want to make any

i
I

recommendation about the Attorney General's budgetary coming

through the judicial?

10

MR. HARROLD: Through the judicial too.

CHAIRMAN HILL: Just so that it doesn't look like

exclusion by omission, would you be agreeable to the such

immunity as necessary language with respect to the AG as well? i

MR. HARROLD: Sure.

MS. GREENBERG: Are you proposing that the AG be

l.')

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J6 .~.. only named in one article, then, or the AG be in both? ,:>

l

.,;

17 :~

MR. HARROLD: The AG in both, the DA in executive.

REPRESENTATIVE BUCK: What do you all think about

that? It may be the AG ought to just say in executive.

20

MR. HARROLD: I feel like it has a quasi-judicial

21 function with the opinions that are issued, and for that it

should in my mind be in both, and I'm not so worried about
23 i the separation of powers in this area. Their real criminal 24 functions are not as distinct or as elaborate as the DA's
25 criminal functions in a classic reparation of powers.
- - - ~ ~~-~~ ---~--- ~---~~---_._-_._._-~-_ - ._-- - - - - - - - - _ . _ - - - - - - - - - - - - - - _ .

PAGE 20

MR. JACKSON; One point of information before we

2 vote on this.

3

CHAIRMAN HILL: We haven't gotten a second yet so

1

4 it may die.

5

MR. JACKSON: This is just an inquiry. Are we

6 I dismissing what was raised at the last issue of possibly

7 providing a separate article for the district attorney 1 and

8 that article would neither be judicial nor executive 1 it

9 would recognize that there are certain executive functions

10
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11 ....
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that the DA and the Attorney General have as well as certain judicial functions?
I say there's precedent for that because 1 100k 1 we take the Superintendent of Schools and pull him out of the

14 .~...
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15 .:>
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17 :i:

executive branch and create a separate article for schools 1 so maybe we could do this for the DA's and the attorney generals. They might like this because this would elevate them status-wise to their own article.

MS. GREENBERG: If that's a suggestion 1 why not put

19 the DA's and the AG in both articles? As the AG is named now

20 in both articles 1 why not put the DA in both articles?

21 i

CHAIRMAN HILL: Why should the DA be named in the

)I
judicial article?

23

MR. HARROLD: My thought 1 just as a gut reaction 1 if

24 we add another article we'll just cop out 1 and the country has

25 gotten along for 200 years with three branches of government.

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__ ~ ~

~

~

~

._____________

_

_

PAGE 21

that our wisdom is any greater than --

sounds kind of like a politician, doesn't it?

Ii
3 i!!; I'd better shut up, but my reaction is that three branches
II
4 il work pretty well. I

5

!"
!

MR. JACKSON: Am I correct, Judge Hill, that you

6 ii!i suggested there could be separation of power issues come up in
!'

7 the future by leaving them in both branches? Did you make a

8 comment to that effect?

CHAIRMAN HILL: I don't think so. If they're in bot~
I
10 branches, then I suppose they could function in either one

without separation of powers problems, it's only if they're

isolated into one branch.

Perhaps my comment was that if they were in a

separate article all by themselves that might eliminate



15 .~ separation of powers problems because we wouldn't really know

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where

they are.

On the other hand, it might create them

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because we don't know where

they were.

tK :,:

On the fourth article topic I tend to agree with Tom

19 I think that we've only got three branches of government; by

20 putting them in the fourth article welre not going to be 21 creating a fourth branch of government, it's just we are not 22 able to decide where they ought to be,so we choose a fourth,

but they've got to be in one of the three I think.

24

I used to think of the state authorities as being

25 the fourth branch of government. I think there was a little

PAGE 22

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

------,

Ii ] 'i

bit more justification for that than there is this problem.

i

I

2i

MR. HILL: Tom, let me ask you this. Do you think

3 i the Attorney General would want to be in both if the funding Ii

4 , would come out of the -- if it was, you know, a recommendation

5 that the funding come out of the judicial?

6

In other words, is the reason for having him in both

7 just to get around this conflict?

MR. 11ARROLD: I think possibly in the future there

9 I will be some instances where the white collar crime or what-

](J ever, where the AG's office will take a more vigorous
'z"
criminal role, pick up the slack that the DA's either for

some reason or another -- we had a classic case in Livonia

where the local DA wouldn't prosecute this car dealer, so we

~ had to get the AG's office involved, get a special order from

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17 :~

the Governor to do it. MR. HILL: My question went more to whether they need
to be in the judicial article -- I mean why you want them in

:8 I, the judicial.

19

MR. HARROLD: Because he issues the Attorney

20 General's opinions.

21

MR. JACKSON: But an opinion is strictly advisory.

This is something the judicial branch cannot do. The judicial 23 branch as I understand it is prohibited from issuing opinions, 24 so I don't see that function as a}ldicial function. I see

25 ,' that as -- I mean the advisory function is really no function,

l.:

. __~.

__ ~~._.

PAGE

,

The courts have ruled you can create advisory bodies I

3 that consist of legislators and members of the executive

I

4 branch, so I don't see that as a judicial function. All he's

) doing is advising on what he thinks the law is in that case.

6

}1R. HARROLD: His advice carries more weight in the

7 beaurocracy than just somebody's opinion.

8

MR. JACKSON: Legally it doesn't.

'}

MR. HARROLD: I think at least in practice the

10 beaurocracy follows that, arid if you didn't follow it then he

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would file suit against you to restrain you from doing some-

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(~:J} . . , :" III a: thing against what his opinion has been set forth, and then

, ~-:J}f

that really gets --

---

14:

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MR. THORNE-THOMSEN: The Attorney General in that

15 ,~
,"

situation then is suing the member of the executive department]

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16 3'"'

MR. HARROLD: That's right.

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MR. THORNE-THOMSEN: That's a real fundamental

problem that we have with respect to the Attorney General 1 19 and that is whether you want to continue that kind of a

20 situation.

21 I

I mean the way I see the Attorney General viewing

II his own office is that it is as a check on the executive

department 1 and I think his view of that is more justified at 24 a state level than it would be at the federal level because 25 he's an independently elected officer, he's elected by the

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

PAGE 24

people, and I think if you place the Attorney General in the

2 judiciary department then you are fostering that, you're

3 enhancing the power I think of those, or theoretically you're

4 enhancing the persuasiveness of those opinions, and if that's

5 what we want to do then I think it is necessary to put them

o in the judiciary.

7

If we feel that those opinions should not be

8 enhanced and that instead we should decrease the potential

friction between the Attorney General and the executive

10 department itself, then I would feel like we need to move

'"

2:

11

f-
0a:

toward a strict placement within the executive department,

,0"-

12 ;~ so I see as you go over to the judicial department and place

@ r i them there you've got more potential of conflict between the

14 ,>.-- AG and the executive department. If it's within the executive ','j <: J:
15 ~ department, you're dimishing it, at least I feel at a

<>:

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16 ,'.f, theoretical level whether that has a practical effect or not.

o

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17 :i;

MR. HARROLD: So long as he is elected, my thinking

is he's going to be quasi-independent anyway, and if he is

19 appointed then I would say make him strictly executive, but

20 like we talked about before, I think if on the federal level 21 they had an independent Attorney General a lot of things we 22 have suffered through in the past six or seven years wouldn't 23 have happened, and I think it's kind of good to have, you know~ 24 a loaded gun there watching what's going on around here, not

that I don't have eminent faith in the second floor and the
- - - - - - - - - - - - - - - - - - - - -- - ----- -------- ------ -----

PAGE 25
I IIth~~~ floor and ~;:, ~~au;ocrac; ~~~;~s~he s treet ,~ut it' s l

2 II nice to have somebody watching, so for that reason, Mel,

'I

1\ that's what my thoughts are, they are really judicial

3

\i.I!,

4

functions.

5

You get into a problem of whets checking on the

6 store type, you need somebody watching the henhouse.

7

MR. JACKSON: Justice Hill, what is the judicial

8 function?

9

CHAI&~N HILL: Of the office of Attorney General?

10

MR. JACKSON; No. What does to you the term

judicial function mean? You keep talking about the Attorney

General

I
CHAIRMAN HILL: Could you turn that over to the staff?

(Laughter. )

IS C~l

MR. JACKSON; For instance, do you view the

tD

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16 ':"z ~,

judicial function as investigative or enforcing or prosecuting!

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17

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or do you see it adjudicating conflicts, interpreting statutes1

IS

CHAIRMAN HILL; I think that's the first thing that i

I

19 comes to mind. Whether it's limited to that I'm not sure, but

20 the resolution of conflicts certainly is one of the judicial

functions, the making of decisions as to how to avoid those

.)'1

conflicts.

23

MR. HARROLD: To interpreting the law, which is a

24 little bit what the Attorney General's office does when we ask i

25 for an opinion, they interpret the law.

CHAIRMAN HILL: To go back to a comment of yours,

I'm not sure that advisory opinions are not judicial in

nature. The judiciary traditionally refrains from rendering

:t advisory opinions.

:--

Now, in this area of declaratory judgment today they

~) do to a certain extent render advisory opinions, but it doesn't -, mean it wasn't a judicial function, it was simply that they

~', didn't want to be in an advisory situation, they wanted to be

q in conflicts between live people situation, so the fact that

IU you render advisory opinions I'm not sure takes it out of the
..J
1I judicial category. J
MS. GREENBERG: The Board of Pardons and Paroles is

an executive board, yet they act as judges in determining the

sentences or clemency or whatever of convicted persons, and

15 ~ they still have judicial immunity yet there's no problem of " them being in the judicial article.

MR. JACKSON: As the Public Service Commission.

is

CHAIRMAN HILL: It's really a spinoff of the

I') legislature, it exercises a legislative function. i,

20

The lines get blurred at points. It's easy enough td

21 know that members of the General Assembly are the legislative

branch and that judges are in the judicial branch and the

Governor is in the executive branch, but then at some point we .:4 ' get down in there and it's kind of hard to

Well, we've got a motion. Do we have a second?

PAGE 27

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

II

MR. JACKSON: Would you restate the motion again?

-1
I

I

~ 11

HR. HARROLD: Okay. The district attorneys would be I

I

"
solely listed in the executive branch of government with a

recommendation that their immunity be retained and that their

budgetary processes be set forth by the legislature as the

t> judicial people do, and that the Attorney General's office

7 be in both the judicial and the executive, and that their

k budgetary processes remain as they are now through the

" judicial, and that the immunity carries over.

10

REPRESENTATIVE BUCK: The Attorney General's office

iz.::' is under OPB right now. You said leave it like it is.

MR. HARROLD: I thought it was separate.

MR. JACKSON: It is through OPB.

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time.

MR. HILL: That's one of the major reasons for this MR. HARROLD: I thought it was under the judicial. CHAIRMAN HILL: It comes through OPB at the present

'I.' 1 '.'

MR. HARROLD: It does?

CHAIRMAN HILL: Yes.

20

HR. THORNE-THOMSEN: Mel, you said that's the main

21 reason for what?

,)

MR. HILL: That's one of the main reasons I think,

one of the underlying reasons for why the Attorney General

would like to be in the judicial article, to change that.

MR. THORNE-THOMSEN: Strictly in the judicial

PAGE 28

article, not a change in the status quo?

2

MR. HARROLD: I will rephrase it, then. I would

3 say let's change it and put him in judicial for budgetary

4 so that he'll come out --

5

REPRESENTATIVE BUCK; mlat about leaving him where

6 he is, in the executive branch only, and put him over here for
;:
7 Ii budget purposes? He's presently in both. "

8 Ii

MR. HARROLD: I think because of what we just talked

9 about, the judicial functions he's got --

10
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12 ~
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REPRESENTATIVE BUCK; I second the motion. MR. HARROLD: Thank you. CHAIRMAN HILL: Yes, Mel? MR. HILL: Would it be possible to vote on this

14 ~ separately, because I think the full committee is probably

:I:
15 ~ going to be evenly divided on a lot of these things, and if
O'"J 16 Q~ this committee could come forward with a recommendation as to
2
<
17 ~ DA's, and then a recommendation as to the AG it would help.

,n1\,'

MR. HARROLD: Okay, I'll separate them. Let's just

19 take the DA's first. Do you second it?

20

REPRESENTATIVE BUCK: Yes.

21

MR. HILL: Clarification of your motion. Now, is it

22 ' the motion to add in the constitution a section similar to

what Judge Hill had recommended on the immunity thing, adding 24 i' it into the constitution, but just have a recommendation,

you know, that the budget come out of the judicial?

I Ii

MR. HARROLD: That's right.

MR. HILL: Okay.

PAGE 29
----------------1

CHAIRMAN HILL: There is a motion and second. Any

" further discussion on the district attorneys?

"

All those in favor of the motion please indicate by

(, saying aye.

7

(Ayes.)

CHAIRMAN HILL: Any opposed?

(No response.)

iO

MR. HARROLD: Do you want me to make the same motion

'.:J 7-
! i '::: on the AG I s office?

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Well, do you all want to talk about whether or not

5 I,.y :...SY.~Rd'-"\

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he

ought

to

be

independent

in his

budgetary processes

or

.,

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continue

to

go

through OPB?

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MR. JACKSON: Actually that's not under the aegis of i

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1 6 1: this committee, since currently that's statutory where he's

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1 -; ,l"~ going to be funded, unless we're going to add a constitutional

provision that --

MR. HARROLD: I think it would only be a recommenda-

20 tion.
2t

MR. THOro~E-THOMSEN: Yeah, we'll be putting together

-- there will be the actual constitutional draft that the 23 committee decides upon, then there will be comments that will

be presented to the committee also; that's where I would

envision this proposed companion legislation or just

P.ACJ' 30
1[-----------------
1 I~Il reconrrnen dat~. on being included, so it will be part of the
Ii
2 !I packet that goes to the Select Conrrnittee if that's what you
11
3 :11i decide.

4

MR. JACKSON; If we vote, I would like to divide the

5 question of where he's going to be placed and the budget

recommendation.

7

MR. HARROLD: Okay.

REPRESENTATIVE BUCK: Make your budget recommenda-

9 tion first. I think we can get that; I don't think there is

10 any problem with that.

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MR. HARROLD: On the Attorney General's office the motion is to reconrrnend that by statute the budgetary process of the Attorney General's office be handled the same

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way as the budgetary process of the judicial branch of the state government.
REPRESENTATIVE BUCK; I second it. CHAIRMAN HILL: Any further discussion on the

18 motion?

19

All those in favor please indicate by saying aye.

20

(Ayes.)

21

CHAIR}Uili HILL: Any opposed?

22

(No response.)

23

MR. HARROLD: Okay. Then the next motion is that

24 II the Attorney General's office be retained in both the judicial

25 and executive articles, and that the immunity question be

u __ ... ._...

.. _.._... __. .

.._.__ ._.

.__ ..._.

_

PAGE 31

f1-~---'-"-"

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

- - - - - - - - - - - _ . _ .__..__...._---_..._--_._-- .. _---!

I I'Ii resolved with the phrase which you mentioned.

i

II

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21

CHAIRMAN HILL: Is there a second to that motion?

\

REPRESENTATIVE BUCK; (Raised hand.)

I

I II1

CHAIRMAN HILL: The motion is made and seconded.

5!

Any discussion?

C

All those in favor please indicate by saying aye.

7

(Ayes. )

d

ChAIID1AN HILL: All those opposed.

I

I

9 :1
I

(No response.)

!O

CHAIRMAN HILL: It is carried unanimously.

Ii

All right. That brings us to the Commissioner of

Insurance. We have on the agenda the words "Commissioner of

Insurance" for the reason that the full committee to my

understanding voted that that would be the title, and I don't

15 ....J know unless we really feel strongly about it we need to go ,9

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16

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back into that problem.

We're really talking about the

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Comptroller General which the full committee has voted to

1'\ designate as the Commissioner of Insurance.

lSi

Ed, do you have anything from your chart that

2U relates to this issue of whether the Commissioner of Insurance

2: should be appointed or elected?

4~ .:

MR. JACKSON: This chart was prepared simply for the

23 benefit of the committee members to show them the record on al~

2,. the constitutional officers, whether there has been challenge

H~ to them, whether they have been defeated.

PAC:E 32

The point was made at the last meeting that

consitutional officers are very seldom if ever defeated. I

think this bears out there have been a couple of cases where

~ a constitutional officer has sought reelection and has been

defeated, but it only relates to the Commissioner of Insurance

6 to the degree that it discusses what's happened to the office

"' of the Comptroller General, who the people have been and

~: whether they have sought reelection and whether they have been

<} Ii beaten or not, so you can just take it for what it is.

10

CHAI~~ HILL: Well, you indicated there have been

l:}
~:
some incumbents who suffered defeat at the polls.

MR. JACKSON: Zack Cravey I think in 1962.

REPRESENTATIVE BUCK: And Jimmy Bentley.

CHAIRMAN HILL: I think the Bentley election or lack

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15 '" thereof generally is attributed to the fact that he switched ';J t.;>:
16 :n,.::,' political parties.

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17 ,'n"

REPRESENTATIVE BUCK: And ran for governor, Judge,

IB so when Johnnie Caldwell was first elected he did not run

[9 against Jimmy Bentley. He ran -- I don't remember who is was

20 now, but Bentley had offered as a Republican candidate

21

CHAIRMAN HILL: He did not seek reelection.

It seems to me there was one or two other Public

23 Service Commissioners

24

REPRESENTATIVE BUCK: Al Fowler?

CHAIRMAN HILL: -- which switched from the Democratic

PAGE 33

to the Republican party, but also Jack Ray was in there.

2

What I'm suggesting is that the total number of

.3 incumbents who have had opposition is partially explained by

4 that incident.

, II
-'

MR. JACKSON: I guess this chart at least gives us

(J some type of evidence to the theory that all the constitutional

7 officers use, that by making it publicly elected it holds them!

8 , accountable to the voters, and I guess there is a presumption, ii ji
9 that the voters never kick any of them out, so that theory

10 may not work out in practice although it sounds good in theory.

CHAIRMAN HILL: I would question that because their

conduct which is successful in getting them reelected may

very well have been influenced by the fact that they were

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going to have to seek reelection. MR. JACKSON: That's true. CHAIRMAN HILL: So that to put it bluntly, we don't
know what we might have had had they not been in an elective

1g office.

19

I:
I

For example, when the Judicial Qualifications

Commission was created, and this has got a misnomer, it was
)1
4" it removes judges, and it hasn't removed many judges, but its

existence has an impact, and if one of the members calls a

judge up and says "We're getting complaints," they don't have

to have a formal hearing necessarily in order for it to be

good to have that cornmission, and what I'm making the analogy

PAGE 34

is that the elective process may be effective even though

2 on ability to get reelected it's not as readily apparent.

MS. CROCKETT; I wanted to raise the issue of the

4 name again. wnen we voted for that we did not have the letter

of Sidney Smith in which he stated opposition to having his

6 name changed because he said the people of Georgia know the .., very duties of a Comptroller General .

Now, in looking at what he said was the original

9 purpose for that office, it was financial and that's

10 supporting the name comptroller, but looking at his budget

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he has more money

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believe assigned to

the

duty of handling

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12 ~ insurance than any other, including his ex officio duties,
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but I'm wondering if we might want to reconsider that since

14 f' we are reconsidering everything considering his rationale,

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and I don't really know if people in Geor[';ia know the extent of the varied duties that he's responsible for, but considering that his major purpose is financial we have taken the name

IE comptroller out of his name. I don't know, I wonder if we

19 i' might want to look at the whole thing again giving him a name

2U that shows what one of his ex officio duties \ is.

21 I

REPRESENTATIVE BUCK: It's more of an actual duty

now than it was, than the financial aspect in the beginning.

2,

MR. JACKSON: Doesn't the term comptroller refer to

,,
_"'t a financial accountant for an organization? I don't think he

25 essentially plays that role for the state; he's not our

---------------- --------~--------~---
financial accountant.

--------------- - PAGE 35 --l ----------~--------

MR. HARROLD: There are about fifteen provisions in

-' the code or in his office which he mentions, all of which as

of January 1st, 1980 will be repealed by reason of the re-

) codification of Title 92 of the Revenue Act.

u(

MS. CROCKETT: All fifteen of what will be repealed?

MR. HARROLD: Chapter 40, or it's Title 40, Chapter

15 of the Code that relates to the -- primarily all the

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financial and tax duties, which are really anachronisms that

1
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have stayed in the law even thoughthe functions have been

''"-
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the -- what's the board that handles all the money, Hogan's

old board -- what's that called? -- they make all investments

f ,~ ':;' and handle all the money, and the DOAS, you know the moneys

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returned on that. MS. CROCKETT: You're saying what he said under that
particular code will be null and void as of 1980, one of his

rationales?

1',

MR. HARROLD: Yeah. There are a few things which ar~

kind of carryovers which he'll continue to do which are more

ceremonial than substantive.

r~

I

In the phone book the insurance department is

separately listed as well as his office, and under Comptroller, I
General they have the insurance department listed again.

CHAIRlW.N HILL: Let me suggest this, that if the

PAl,! 36

office is not a constitutionally elected office, that anything

2 we say about the name is purely recommendary -- recommendatory

3

do I have enough syllables in that?

4

If it is constitutional, then what we say about the

5 name as more impact. vfuy don't we take the problem first,

although we're at a little bit of a handicap because tile full

committee has already voted on it, but why don't we take the

problem first as to whether or not it will be in the

constitution or out, to see if that in any way resolves the

10 name problem on whether or not we're really picking the name

or whether we're making a recommendation as to the name.

MR. HARROLD: Then over here his office is listed

again, and in the insurance department it's seprate.(referring

.. to Atlanta telephone directory.)

T"

15 >,
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CHAIRMAN HILL: Recommendatory -- I'm still practicing.

"::>'

16 ~ 'M [, '.<..

MR. HARROLD: You all have heard !TIe before, but I

17 ;:; think it's extremely technical, an extremely technical area of

responsibility dealing with all the insurance companies, and ]<} I think we are lucky in who we have now, but looking down the 20 road who we have coming on, I think it would be easier to get 2l a well qualified person as we have said many times who is a 22 technical e~ert, proficient in insurance law and regulations

if we can make him an appointed office and appeal to their .1...1t I public service, feed them a few martinis and then they'll sign

up before they think about it, we would be better off in having

PAGE 37
_. ---------~-- ------------~~-------l
an elected office because the type of person that you need as !
a technocrat would not be inclined I dontt think to make a run II

3 for public office.

I

MR. HILL: Better off appointing you meant to say.

.-
.'

MR. HARROLD: Yes .

MR. HILL: You said elected.

I

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I

MR. HARROLD: I'm sorry, I meant appointed .

MR. JACKSON: Is there any feeling on the committee

,) on whether to grandfather this, that is to leave it as it is

]U until the present incumbent elects to move on to higher office?!

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REPRESENTATIVE BUCK; You know what Johnny was

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talking about the other day when he said we would be doing him

, a favor if we took it out of the

What he's talking about

I; is involuntary separation, he's talking about retirement

l'; :; benefits strictly, and what that means is if you do away with
,

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this office then you affect the retirement benefits all the

z,.

':, way up even though he's not at the age to get his maximum

benefits; he would under the old involuntary separation
],.
provision, and so --

MR. JACKSON: Do you think he prefers if we were to

do it --

REPRESENTATIVE BUCK: He said he would benefit him.

What it means is he could retire and get his full retirement
,J
benefits; that's what it amounts to, and I doubt if he would .:) want -- That's what he was talking about doing him a favor.

CHAIRMAN HILL: It creates quite a problem. Nobody

would run against him because if they win the office is gone,

3 so he just runs and runs and runs, so it's kind of hard to

grandfather the situation unless you can think of some means

to overcome what appears to me to be. the fact that nobody

l; , would ever run against the grandfather because if you won

you would lose the office.

HR. JACKSON: I guess the only thing, it would give

o him one additional full term.

IU

MS. GREENBERG: Well, if the office was made

II ';, appo~. ntive \vhat are the chances of him being appointed to the

Insurance Conunissioner's position? Pretty good.

That also would allow these other duties to be --

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what?
area as whether

MS. GREENBERG: To be possibly put into their proper far as fire safety or building authority or something, that should be put in.

1
"

8

MR. JACKSON: Actually the constitution has nothing

to do with that. All powers and duties of the office are 20 prescribed by the legislature, so they could reassign every-

thing else out.

CHAIRMAN HILL: SOIaebody at one of these meetings

made the statement that never really occurred to me, but I
24
think it was true. When you think about it , the Secretary of

State's office, that name is not really very descr~E~_!"E:_

_.- n~-~--~~------~---------------~--__---~~---"-- ---------~--

..-.----.-----P--AC-!!:- -39- 1

II
] II except we accept it more readily than we do Comptroller of

i

i"l
2 :1 Revenue, but it doesn't tell you a whole lot about what it

I

!

i

3 i! does, and the truth of the matter is that there is a

!

I" I

conglomeration of things done there, and the other office in

state government which has kind of acc~ulated a conglomera-

() tion of these things is the Comptroller General.

REPRESENTATIVE BUCK: When you think about the

Secretary of State, if you compare it with the federal level,

our Department of Industry and Trade over here does more

iO state affair work than Mr. Ben.

MR. HARROLD: Well, there's one thing about the

Secretary of State -- at least 1 1m speaking from a legal

perspective, if you're going to qualify a corporation to do

business in Idaho you always know the Secretary of State is

:5

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going to be the one to go to,

and some of the other things too

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I think like the securities laws traditionally nationwide are

"1

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Secretary of State functions,

even though like I say the name

III is changed, because the old original Articles of Confederation

JI) they had a foreign policy function to make treaties with South

20 Carolina.

2I

MS. CROCKETT: If we make this position appointive,

))
when would Johnny Caldwell's time be up? As of the next

"':"_'"

election?

-,'.....,.
MR. HARROLD: '82.

)(
REPRESENTATIVE BUCK: He has two more years on his

1',\t:L 40

term.

CHAIRMAN HILL: We would need to take care of that,

3 and perhaps take care of it expressly as we have in the state

,I school superintendent because at least statutorily I think

5 !! where you hold a statutory office, when that statute is

u repealed you simply do not hold the office. Hhether or not

7 the same thing would be true when you hold a constitutional

r, office I don t t know.

MR. HARROLD: Couldn't you say effective January

to the 1st 1 1983?

CHAIRMAN HILL: We would have to.

MR. JACKSON: Bill Burson's office was abolished in

mid term, it was abolished -- he was elected in '70, and it

was abolished as of January 1, '73; the voters approved that

15

"
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election.

u~

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11 ~

CHAIRMAN HILL: That was an amendment to abolish the

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I '7 ~; office of State Treasurer which may be a little different than

18 :i an amendment to have these executive offices which happen to I I": omit one or two. I'm not sure.

20

The voters knew that what they were doing on that one

21 was that -- and so did Burson -- if the amendment. passed that

office would be terminated.
t,
MR. HILL: We have already addressed this issue with

24 . respect to the State School Superintendent, he will continue to

serve until the next time, and also we're going to have to

PAGE 41
.------.----.----....-------- .. ----------------1
address it with the Lieutenant Governor's office should we mak1

any substantive change. I don't think there would be any

intent on the committee's part to have this Lieutenant

'; Governor function other than he's expected to when he took

office.

CHAIRMAN HILL: As to whether or not he's the

7 i: "

presiding officer of the Senate, yes.

8

MR. JACKSON: As a practical matter you would want

q the Commissioner of Insurance to come in with a new Governor

!O so the new Governor in '82, you know, could appoint someone
c? Z
[1 .., he could work with .

MS. CROCKETT; If he were not reappointed, then he

could retire and not suffer; right?

14 >-
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MR. HARROLD: He would gain immensely.

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MS. GID:ENBERG: But at the same time what would he

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lose by being appointed, anything as far as retirement?

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MR. HARROLD: He probably wouldn't take an appoint-

,I; ment, would he, because that would cycle him back into the

] ')
system and he would have to wait until he was 65 or he had

20 thirty

.,

"" j

MS. CROCKETT: Which he has to do now if he

)',
i:_ ... continues to be reelected; right?
23
MR. PiliRROLD: Yeah, unless he's defeated. That's

deemed to be an involuntary separation.

MS. CROCKETT: Right.

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

PACE 42

REPRESENTATIVE BUCK; You know, we changed the

involuntary separation law after your former Lieutenant

Governor who is now on the Court of Appeals went to the bench

because under the old law when he was defeated "that was

involuntary separation, he's drawing down a heck of a retire(1 ment right now from the state, plus being on the bench, or is

that suspended until such time as he _..

CHAIRMAN HILL: Yeah, I believe so.

REPRESENTATIVE BUCK; Anyway, he was defeated as
11;
Lieutenant Governor, then his retirement ben.:. ;fits would 11 .L accellerate, but then the legis lature did something about the

involuntary separation and redefined, and I think some people

are still grandfathered in under that old system. I think

Johnny is one of them.

CHAIRMAN HILL: Tom, isn't it also true that during

1(,

,:".
l

Q the Carter administration the involuntary separation
l

'.',

!1 "

provision may have just been repealed?

REPRESENTATIVE BUCK: I think so.
19
CHAIRMAN HILL; It may have been as a result of that

same incident, I'm not sure.

REPRESENTATIVE BUCK; There was something done, but

still you couldn't do something about those that were already

grandfathered.
)I _.'t
MR. HARROLD: There was something about Sam this

year or last yea!", that s?~ebody said well, you know, he might

---' - - ------

,-,._----- --,----------'-- "

PAGE 43
" ,--~---' '--'---------~-----------l

1 I run and intentionally be defeated. Do you remember that talk? I

2

REPRESENTATIVE BUCK: Sam?

I

I

I

3

MR. HARROLD: Caldwell I to get the maximum, and then

he came out in the press and said no, he wouldn't ever do

that.

(,

MR. JACKSON: Are we ready for a motion?

7

CHAIRMAN HILL: Yes.

8

MR. JACKSON: I make a motion that we place the

9 Corrrrnissioner of Insurance as an appointive office, and I guess

JO we statutorily remove him as a constitutional elected office.

MR. HARROLD: I will second it.

CHAIRl1AN HILL: Any discussion on the motion?

All those in favor of the motion please indicate by

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saying aye. (Ayes. )
CHAIRMAN HILL: All those opposed . REPRESENTATIVE BUCK: I oppose it.

1i!

CaAIR}~N HILL: The motion carries three to one, or

19 by 75 percent.

i;

~.I

WK. HILL: Is this a recommendation, then, that the

".... ( name -- Well, the full corrrrnittee has already spoken I but

if it's going to be removed all together then I guess there's

no need to say anything about it.

CHAIRMi\.N HILL: I think if we want to make a

l'c\!.!, 4/-

designation as opposed to constitutional, maybe the full

committee would forgive us for going over the ground they hdve

already plowed.

Has anybody got any thoughts about wanting to change

" the name from Commissioner of Insurance?

JIB. THORl~E-THOt1SEiJ; You knoltl, the interesting thing

about this to me is that I would think that the current

Comptroller Genera 1 1t1Oul:i be m,ore in favor of having the name

retained as Commissioner of Insurance because as you look at

the constitution the General Assembly can simply remove all

li

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of his insurance regulatory duties and place that in a

d~

~r":: ~~~ 12 ~: separate appointed insurance commissioner if they so desire, but if it were named Commissioner of Insurance they would be

14 more reluctant to do that. I mean it '(,vould C1.Tlpear more absurd

~l to the public, and they 'Nouldn' t take agricult'lral duties

:l:

~:J

lb '.f
<"J

away from the Commissioner of Apriculture, so I'm really sort

L

<

17 &: of confused at his reluctance regarding the name change.

I guess after we have made this last vote, I guess

j9 it really becomes moot in a way. I'm not sure exactly what

20 the proposal of the full committee will be in light of this

~l!'

last vote.

CHAIRMAN HILL: Let me suggest this, that if is not

-,-''

going to be elective, itls going to be appointive, this is

going ~o i112an the General Assembly is going to have to

reexamine I think the office and decide whether or not to

11----------------------------- -- ----

PAGE 45
----------

)\ separate the fire marshal and the small loans and insurance

2 !I or keep them under one.

3 Ii

Now, if they keep them -- if they separate them, the

'I

r
I

Commissioner of Insurance certainly fits the head of that

i

II

r Ii department. If they put them together, then there's a :1 il

6 r different problem, so without knowing whether or not the

~
I

General Assembly will divide that office, as somebody has said

ii cannibalize it, or whether or not they will leave it together

0 intact, it seems to me really we don't need to meet the hard

lO issue of what title designation should go with it.

With that, may 1 take it we just leave it as is,

so to speak?

MR. HARROLD: There has been some discussion about

putting the industrial loan functions under the banking

15 ~ department, which might make logical sense .

f.

:0

16 !;!
c:

MR. HILL: In other words, the committee has no

L

<
17 :ii recommendation with respect to the name, and the recommenda-

tion of the full committee will go an as the recommendation to

t9 I whatever.

20

CHAIRMAN HILL: Okay. We are going to need to get a

21 revised draft along these lines, which I'm not going to be

able to be at the meeting next Wednesday. I will use this as

an opportunity to remind everybody that the meeting is next
24
Wednesday, but we will get a revised draft along these lines.

You may have some concern about thedetailed language,

, but it can be thrashed out at the full committee meeting at
,I
2 :':I that time.

3i

Is there anything else?

4

Yes, Mel.

5

MR. HILL: There is one other thing, and I'm sorry

that I didn't alert you to this earlier, Judge Hill, but I

overlooked it.

This committee originally reconunended that that

provision about fees and perquisites be broadened and sent 10 over to the committee on Article I to be included as a broad

stroke prohibition on conflict of interest and whatnot.

Article I does not really intend to put anything in their

section in this issue, you know, some of the exact same

i--
'r0,:

problems that were raised in the meeting when we discussed it

l'

IS ,~
", in the full committee were raised there, and they decided

"
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.Xl
.7:

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Q

that they were getting in over their heads and they didn't

17

<c'-:
""

want to include it,

so that unless this committee should

18
decide to add back into your Section III this prohibition on

19
the other elected executive officers receiving any fees,

20
perquisities or compensatioll other than their compensation

21
and allowances prescribed by law it will not appear in the

)
constitution anywhere, so I feel you may wish to reconsider

23
whether to put it back in again or exactly what to do.

CHAIRMAN HILL: At an earlier meeting Ed Jackson

made a statement for the record of the sense of the committee

PAGE 47

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

-~

-

i'Ii which ever since he did that I've just been dying to do one,

''II
l

let me try this out, that it be the sense of this sub-

3 committee that by omitting the provision with respect to fees

..:~ and perquisites we do not in any way mean to say that the c, General Assembly cannot pass laws in this area governing the

6 financial conduct of state officials, but that the problem is

7 of such complexity that it probably needs to be handled on an

8 office by office basis or perhaps a branch by branch basis 9 as opposed to one across-tae-board prohibition, and if that be

JO the sense of the committee we can feel like we have expressed

11
",D

ourselves.

We are not intending to limit the authority of the

,

General Assembly to put appropriate prohibitions on the

various offices insofar as receiving outside fees and that

type of thing is concerned.

:>
1() ~:

Czi

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.<):

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sense.

MR. HARROLD: I think that's good. I second the (Laughter.)

MR. JACKSON: I've got one question.

1 (J\

If interpretation of this constitutional article

ever comes to you while you're sitting on the court, would you

be prec~uded from wxiting the decision?

22

CHAIRMAN HILL: On this article? I don't know. It

might depend on the nature of the problem. Probably I would
24
be precluded, yes, but again it could be a problem which I

would not feel I had prejudged. I think that is really the

only prohibition that would be on me, not the fact that I had

2 worked on it but that I may have prejudged the situation

3 that would cause a disqualification.

WeIl, there are just a lot of variations. If it has

5 been a statute that has been intact that I had nothing to do

with being applied against this constititional provision you

might get into another situation.

\' '\

Is there anything else that the subcommittee needs

...)

to take up?

iU

MS. GREENBERG: There is one more issue dealing with

11 -

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Article VI, Salary of District Attorney. Presently the constitution provides that they may be salaried from their fees, and that the General Assembly has the power to abolish this fee system and provide a salary, and then in 1977 I gave you the handout of the statute that provides that the DA shall receive an, annual salary.
Now, in making the change of putting the district attorney in the executive article, does this committee wish to

I':> provide for salaries or provide for either fees or salaries?

20

MR. HARROLD: Salaries, period. We don't want to get

21 back on the fee system.

?2

CHAIRMAN HILL: Is it necessary that the constitution

MR. HARROLD: If we're repealing the article, that

goes out.

CHAIRMAN HILL: I guess what we're going to have to

PAGE 49

have is that the General Assembly shall be empowered to

2 provide for compensation of District Attorneys. Hopefully 3 that power will be broad enough to include an annual salary ,I and prohibit fees.

MS. NONIDEZ: We don't even really need that

() ! generally. In the position as we know it, the power of the

7 General Assembly, there is inherent power to set compensation

F and allowances and, therefore, when we went through the '76

9 revision they recognized that.

10

MS. GREENBERG: In our present draft we state that

'z"

11

....
'(")

the General Assembly shall prescribe

the duties,

authority and

'"

(~~~)r"""" I12 ~ compensation and allowances, so we will leave it that way and delete the reference in Article VI to fees.

\<,--~>~
'----

;
i4 ~:

MR. HARROLD: Will Tom present the committee's report?

<~

r.

IS ~

MR. THORNE-THOMSEN: Dave Garrett is going to.

CHAIRMAN HILL: Actually Judge Smith stays up with
,:.I
7.
J.) :~ things so much, last time he knew what all the committees had

done, and I suspect he will find outsomehow what we have done,

l'.i and if not I will communicate with him, and certainly any of

20 you can express yourselves and make suue we get that

":1 communication correctly to him.
-, )
Anything else?

~~. :

Hopefully this is our last meeting, although it will

be a disappointment to me not to see you all biweekly because it has been a pleasure.

,

If there is nothing further to come before US , we

il

2 are adjourned.

J

(Whereupon, at 11:25 a.m. the subcommittee meeting

,\ was adj ourned . )

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++ +

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IX

19

20

21

23 24

INDEX Committee to Revise Articles IV and V Subcommittee Meeting Held on Nov. 8, 1979

SUBCOMMITTEE MEETING, 11-8-79
ARTICLE V: EXECUTIVE BRANCH Proceedings. p. 3 Section III: Other Elected Executive Officers Paragraph I: Other executive officers,. how elected. pp. 31-45
(Commissioner of Insurance) Paragraph IV: Attorney General; duties. pp. 3-31
ARTICLE VI, Section VIII: District Attorneys Paragraph I: District Attorneys; vacancies; qualifications;
compensation; duties; immunity. pp. 3-29, 48-49
The Constitution i 1976, Article V, Section III
Paragraph V: Fees and perquisites denied. pp. 46-48

STATE OF GEORGIA
COMMITTEE TO REVISE ARTICLES IV AND V of the
CONSTITUTION OF GEORGIA

Room 133 State Capitol Atlanta, Georgia
Wednesday, November 14, 1979 10:00 a.m.
!
I--------------.------------------~ I
BRANDENBURG & llASTY
SCIENTIf'IC REPOR11 i\:G 3715 COLONIAL fRAIL, DOUGLASVILLE, GEORGIA 30135
942-0482 DEPOSITIONS - ARBITRATIONS - CONVLNTlO;\JS - CONFERENCES

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f1-----
1 Ii PRESENT WERE:

__ PAGE 2 -_._.

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2 iI
3 ;!
1
5
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11 ,.
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COHMITTEE MEMBERS:
SIDNEY SMITH, CHAIRMAN MR. THOMAS HARROLD REPRESENTATIVE LOTTIE WATKINS SENATOR JOSEPH KENNEDY SENATOR HUGH GILLIS SENATOR JANICE HORTON MR. A. H. STERNE MR. EDWARD SMITH MR. DAVID GARRETT MRS. DORRIS HOLMES MS. BERTA ADAMS DR. FRANK GIBSON MR. EDWIN JACKSON MR. HENRY WISEBRAM JUDGE EMORY FINDLEY REPRESENTATIVE THOMAS BUCK REPRESENTATIVE JOSEPH WOOD MS. DELORES CROCKETT

SELECT COMMITTEE STAFF:

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MR. MELVIN HILL HR. MICHAEL HENRY MS. VICKIE GREENBERG
OFFICE OF LEGISLATIVE COUNSEL:
DR. CYNTHIA NONIDEZ MR. JACK LITTLETON

OTHERS:

MR. CHARLES TIDWELL MR. HAMILTON MCWHORTER HR. JOHNNY CALDWELL MR. TOM MORELAND MR. JIMMY CONNOR MR. EMORY PARRISH MR. J. O. PARTAIN

.,-}
.-.--- -- ---- ---------- - -------------

PAGE 3

PRO C E E DIN G S

CHAIRMAN SMITH: I know I've seen Torn Harrold

\ upstairs but I think we have sufficient to resume this

fascinating business. Some of you read the book Miracle in

5 Philadelphia, which relates to the drafting of the United

b States Constitution. They had their problems too.

We have several visitors today. To try to put it

6 in order of, at least the way they carne to my attention, if

9 you recall at the last full committee meeting Mr. Caldwell

10 was here. We couldn't decide whether you are the Controller
c?
~,:
11 ',: or the Comptroller General, whatever the title, and at that
o
0w
J2 ~ point we had not acted on the question of the name of that
(~~t~)S;tt,0~;r'=~ ~~ office or whether it should remain an elected Constitutional

'.. 14; office or become an appointive office. I-

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. 15 -, .-;-;

Subsequent to the meeting, the subcommittee met and

::0
16 ~ I have a report. Judge Hill is sitting on the bench today.

('1
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.~
"u"., And the recommendation of the subcommittee to this committee

i' is that the name of that office be changed to that of

I\) Commissioner of Insurance and that it become an appointive

m rather than an elected Constitutional office.

2-

We had told Mr. Caldwell that when the matter came

')-1 before the full committee, we would invite him back. So Mr.

Caldwell we would be pleased to hear from you.

MR. CALDWELL: Thank you, Mr. Chairman, ladies and

gentlemen of the committee.

.. ~\-_

-.~_._--

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

At the request of the committee I mailed to you, or

sent by courier, some background material on the office. I

3 trust that everybody received a copy of that. Mr. Chairman,

4 some of these say they didn't get their copies. I will -- I

5 don't have but one with me. I can have some made and get them

6 to you. I was of the opinion that everybody had had a copy -,. of it.

:-.

CHAIRMAN SMITH: Excuse me. Did you mail them out

<) to everybody?

10

MR. CALDWELL:

l'

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~~'

guess

your

staff.

No, sir, I delivered them to, I

MS. GREENBERG: I believe only subcommittee members

got those.

JUDGE FINDLEY: We didn't get them.

MR. CALDWELL: Oh, I was under the impression that
.,'.)
.~
I (, I~ they were for this committee rather than the subcommittee.

<

17 ';;

CHAIRMAN SMITH: Well the essence of the report is

lk to describe -- and it's a very fine report -- all of the 19 activities of Mr. Caldwell's office in regard to the fire :w marshal program, the handling of insurance claims, the small

21 loan company supervision responsibility that he has. We'll ,) see that everybody gets one of those.

MR. CALDWELL: May it please the committee, the

.., " ,"/

purpose in sending that was to answer a request, but more than

.) that was to allow the committee to see the overall aspects of

-_.. ~~ ~-~-

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

PAGE 5
'~~~"~-~--------------l

the office and how the name Comptroller General carne along

2 I 180 years ago and has been a broad office rather than one
i
I
, delineated or followed only a name such as Agriculture generall~

4 follows nothing but agriculture. There are many areas of this

5 1 state that are regulated by this office that are inter-related

though namewise they are not. If you look at the name of the

7 manufacturer of mobile homes, you don't associate that with

.3 being the Comptroller or being Insurance Commissioner either

one, but when you look at many of the other duties that fall

10 under it; for example, the fire marshal's office is under the

]1

:-.
u:

office

because

of

its

relationship

both

with

engineering

and

e-

o..

~

12 : with insurance, and when you put those together and then you

\~~Drl /~Sy.~

put the mobile homes under that, they all fit.

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14 > 1--

The same thing about the industrial loans office

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1:

15 ..:.>, when it came along in 1955, you had a provision in the law

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that

allows

those

people

to

take

as

collateral

insurance

CI

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]i .~ policies. Well necessarily that had to be regulated by the

Insurance Commissioner, and being a member of the General 10 Assembly at that time, I can say that we did not feel that it 20 should go to banking because it was not closely related to

banking, it was more related to insurance and the kind of

examination that is done on those companies is the reverse of

what is done in banking. In banking, you look for the
,,
....."1. protection of the depositors. In this field, you look for the

protection of the borrower, which is a reverse sort of situation
--- ----- ----------)

PACE 6

I i and it was more closely related and had to be regulated more

2 by the Insurance Commissioner. So consequently it went there.

3

Then along came '72, we did away with the Treasurer's

4 Office and it became necessary to do something with the

5 deposits that were held by the State, by the Treasurer for

the State, so it was necessary then to do something with those.

7 Then it seemed right that they would be put with the

Comptroller because of the title that he holds and that he was

the one that would be responsible for the use of those

j() deposits, about $180 million -- whatever that figure is, I

11 ~ don't recall now, that presently is held.

2

12
\I~~~\/~.o

~"'
:~

under

Some bond fees that are collected which transferred that same statute in '72. -Now all of that is explained

--

14 >>--. in this document that I thought each of you had. I could go

~

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15 .:J into a long history of it and explain it to you, but the

'-9

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az bottom line is that I realize that almost all people look

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after

their

own

hide

first,

don't

they.

So it would sound

,8 i, reasonable for me to be here trying to maintain this office
19 as it is for my own benefit. I'm no different from most 20 folks, I look after me first and you second, but that's not

the case in this instance. Under the retirement system of )1 this state I have in the years, and if you abolished it today, 23 I would retire with full benefits as though I were age 65. So 24 if you abolish this, you are really doing me as an individual
financially a favor, but it is my firm conviction both as a

PAGE 7
1 ~iti;en of this s-~~~e,~;~~~~~-~;-t~e House for 16 years 2 II and your Comptroller for nine years, that you will be making

3 II a mistake on behalf of the people, not me. The people are

4 (I entitled to have a right to vote for a man that has the
!:ii
5 IiiI discretionary authority that this office holds. This office II
6 II touches the life of every citizen in this state every day in
)1
7 i some form. You either walk in a building that is regulated
I"II
8 :i by it, you own insurance, you own a cemetery lot, you do
"II II
l) Ii something every day that this office touches. And an office

10 that is that important, :the people of this state surely should

11

'z-, ~

have

the right to vote

for

and

against that individual

o

50-
12 whomever they may be.

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As to the name, I think that the name very well

.

14 ~ fits. The people have had the privilege of knowing and

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15 ~ understanding that for 180 years. Now I understand that, as

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16 3 was said to me since I've been in this room, I generally

Q
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17 ~ refer to you as Commissioner because I used to be in the

18 insurance business and I just have a habit of that. Well I

19 don't see anything wrong with that. Lots of people call me

20 and my predecessors Commissioner, there's nothing wrong with it!,

21 but the title Comptroller General is on the ballot, people are

22 accustomed to looking for it. I don't think you could go out

23 here on the streets and pick out everybody and say what does

24 ii the Comptroller do and every 'one of them would tell you all of

25 the duties. I didn't even know until I was elected what all the

( - \ - - - _ . __ ._---'-_._-~

PAGE 8

I I duties were. I knew what the law said but to get down to

2 really what happens, I didn't realize it because I had never

3 studied it to the degree to find out what each and every facet

4 of the law provided for. But I can tell you this, just last

5 year the Claims Division of the Insurance Department alone

(; , handled 109,134 claims. I think that figure is right, it's

in that report. Well that many folks found out who we were.

The year before it was like 101,000. This year the figures

9 ;! indicate that it is going to run somewhere around 112 to 113, OOiO.

10 The name Comptroller didn't hamper those people in finding out

uz

I!

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who

we

were

.",-

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If you go back to the rating division or to the

mobile home side or the industrial loan side and pick up those

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inquiries

asking

for

assistance,

they

didn't

have

any

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waz.

So it seems to me that the name itself means an

<.:

17 ~ awful lot to the people of this state, but moreover, whatever

18 i you do about the name, don't take away the right of the people

19 to vote for the person that holds this office.

20

Mr. Chairman, I don't know of anything else I could

21
say, but I'll try to answer any questions that anyone may 22 1 have .
.'3
CHAIRMAN SMITH: First of all, in defense of the

subcommittee let me say we don't propose to abolish the job,

Mr. Caldwell. It would continue just like it is hopefully. I

PAGE 9 ----- -- fJ--------~-- - - - ---- - - - --- -~---------- - - - - - - - - - - - - - - - - - - - - - - l
:1 think everybody agreed at the last meeting that your office
~ Ii:I is performing very well. As I understand the comments that I! ,I
3 i were made, everyone felt that the most publicly oriented duty :1
4 of your office was in insurance and that it would eliminate

5 1 some confusion in the minds of the public if the name were

6 changed. Mr. Caldwell has made it clear that he thinks the
I
7 people ought to be able to vote on his job since it affects

8 the people. As I understand the previous comments, the same

might apply, for example, to the one you mentioned, the

10 Banking Commissioner. If something affects the people, they

~.,

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11 ~ ought to have a right to vote on it, then there would be a

o

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1~ ~ lot of state officers that we would like to vote on, if that

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were

the

criteria.

-

14 ;~

Does anybody have any questions of Mr. Caldwell?

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15 .:,

JUDGE FINDLEY: I was going to ask the Commissioner

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16 'zu>.l who publishes -- first, who writes your regulations for your

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department?

IH

MR. CALDWELL: Well the law requires in the various

_!9 departments that they be drawn by us and submitted to the

20 Attorney General as to their legality and then there is a

21 public hearing held, as required by law, and after that they

) ~ are made final and filed with the Secretary of State.

'J' L,)

JUDGE FINDLEY: All right, then after they are

24 pUblished, your department would be charged with enforcing

them?

l'AGE 10

MR. CALDWELL: Yes, sir.

2

JUDGE FINDLEY: Interpretation of them and would

3 determine under the regulation whether there is a violation

4 or not.

S

MR. CALDWELL: Yes, sir.

()

JUDGE FINDLEY: And would anyone -- from that, would

7 you go into the court system if anyone differs with your

R department on that?

9

MR. CALDWELL: Oh, yes, sir. The public has a right

10 upon a charge that I make against them on the law or a
~,
II ,~_. regulation, they have a right to ask for a public hearing,

after which they have the right to appeal to the Superior

Courts of this state the decision that I made, in all

instances.

"-
I:

15 ..:,,0

JUDGE FINDLEY: There has been some feeling among

::.1

16

<II
.I.,

some

of

the

committee

members

and

my

own

feeling

is

that

in

C'

7

<

17

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'"

the

regulation,

issuance of

regulation

by

the many departments,

18 that there is no centralized way, no way to control regulations

19 that are being issued, that they can come up from any of the

20 Boards, the Constitutional Boards, be initiated there, if

21 they are legally sufficient then the Board itself would make

)"'!
its determination independently of any conference with any

other board and put them into effect.

I guess what I'm really trying to say is would it

not be better, would not this position function better if it

11----

---- --,----- - -~---

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

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

1 il was under the Executive, and

II

2 III where all regulations were published and then were reviewed

3 ::1i through an office that was established for that purpose and

'i

4

I
Ii

coordinated with all other

regulations

and then

the Attorney

:i

5 General could pass on the legality of them and so forth.

6 There are so many overlapping now, each department becomes

7 almost totally independent and if remaining a Constitutional

8 Board contributes towards it becoming not something that is

9 , necessarily responsive to the peole, that's one of the effects, 10 but it is -- it becomes isolated, becomes a power unto itself.

It is neither executive, legislative nor judicial, it is all

three of them. Should it not belong to one of them? This

is I think why many of us would feel maybe that there are too

many boards and they all ought to come over and be governed

:t:

15

'~
':':"":t

by

or

under

this

general

supervision

of

the

Governor

and

then

16 .'z".. the individual that would go into that position either be "1':

".;

17

<Yo
'"

appointed by

the

legislature,

by the

Governor or

some combinatipn.

l~ The main thing being to get more centralized control over the

19 building, the steady increasing bureaucracy that comes about

20 by so many different agencies. Do you think coming into the

21 Executive Department would make any difference in that respect?

"

MR. CALDWELL: Well it was my understanding that all

23 Constitutional officers are a part of the Executive Branch 24 with the exception of the judiciary.

25

JUDGE FINDLEY: Yes, sir.

PAGE 12

MR. CALDWELL: That's my understanding. I could

very well be in error.

3

Now in the states where you have the cabinet system,

4 the Insurance Commissioner or Treasurer or whatever his title

is in those states, is charged with promulgating rules and

6 regulations just as I am here. Most of them follow almost

7 the exact same pattern by being required to send them to the

8 !i Attorney General. We had a statute passed here about

9 two years ago that puts another step in there and that is that

10 after they are prepared we must send a copy to each of the

"z

11 ~if it happens to be insurance, we have to send it to the

o

"-

~

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~~~ two Insurance Committees, Senate and they then have

one the

in the House and right to conunent

one in on it.

the Unless

14 ; the department head makes some notice of their complaint or

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15 ~suggestion or whatever they might be, if any, then they have

'::">

16

"~" the
a

right

within

the

first

ten

days

--

I'm

sure

these

gentlemen

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17 :iiof the legislature can correct me -- I think it's the first

18 'iten days of the next session, to pass a resolution that would

19 idefeat that set of regulations if they so saw fit. That is a

20 second step that was put in about two years ago.

21

Now thus far we have had statutes passed since

22 that happened that required regulations and I think we have 23 probably had about three sets maybe that have gone -- or three 24 regulations that have gone to the Committees. I would have to

25 . say that so far none of them have had much to say about any

L.:.

~_ _ ---- - - - - - - - - - - ----------------

PAGE 13
that we~a~: drafted. Whether that h~S~~::~ true:~r:~s-t~:-1

,

board or not, I don't know.

I

I

3

There are eleven elected Commissioners of Insurance I

4 across the nation and one thing that I omitted to say a

I

5 minute ago, which is in the report, that continuity is a very

6 valuable thing in regulation of any business or industry

7 where there is and must be wide discretion. Continuity has

an awful lot to do -- I made the statement to the subcommittee

using several states and one of them was Missouri, I said to

10 the best of my memory there had been about five Commissioners

~~

"z
11 ~ out there since I have been in office. But then I left the '::> :'-
12 "~' committee room and went back to my office and one of the

(~) ~ ~-::/cuJmj". i Commissioners, former Commissioners as of June of this year,

14 ~ was in my office. And I said well it's strange, I just

0: r

15

.:>
,-,

mentioned

you

upstairs,

not

by

name

but

your

office,

and

I

'x
::>

16

<Xl
:z.
w 0:>

told him what

I

said and

he

said well

you

told

them

a

story

Z

17 .,<,"; and I said I did and he said yeah, we have had six in four

IS i years and I held that office two of that four.

19

So continuity -- if you'll look at the states that

20 , have elected officers --

21

JUDGE FINDLEY: I don't want to take up any more

of your time. Some others want to ask you questions, but I

23' don't think there is any question but what it is an executive

24
function, but that the name in fact as it exists now is not

25 an executive function, is it?

"-

~--.-------. . .- - - - - - . - - - . - - - - - - - - - - . - - - - - - - - - -

.

. ._._.

.~

i .____1

r-------

II 1 \'

MR. CALDWELL:

PAGE 14 . -.----.------~-------. --- ---------------------,
Well I think so but I guess that's

2 I a difference in philosophy. It may not be. While it has an

3 I awful lot of judicial or quasi-judicial functions, I don't
Ii
4 ;1 know that I would be, as a citizen, willing to transfer it to

5 the judiciary. So I think that it remains a part of the

6 Executive Branch.

7 Ii

JUDGE FINDLEY: Yes, sir. Well the question that I

,!

(oJ ; asked, if it' s-,ehe Executive Branch then the Governor can

9 ! say or have some input and the legislature could, the Governor

10 primarily, as to how it is to be run and so forth. But right

11

'"'
Z

now this

is

not

the

case,

is

it?

.;:

MR. CALDWELL: Well I can only speak for nine years

and the two Governors that have served as Chief Executive of

this State during the time that I have been in office, to the

best of my knowledge there has never been any dispute between

the Governor in the running of my office. They have had

suggestions and I --

IH

JUDGE FINDLEY: I don't want to interrupt you, but I

19 in no way meant any disparaging remark against your office,

20 it is very effectively done, no one questions that. It's a

21 philosophical question I was raising.

22

MR. CALDWELL: There has only been one piece of

23 legislation that affected my office to the best of my knowledge

24 ! during that period of time in all of the legislation that has

25 been vetoed, so -- and the Governor called me and talked to me

I-

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

~

--

-

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

.

_

q-'----.------- "

----.---------.--- .--.-.---.----.--.----~~---~-

l PAGE 15

il1 about it ahead of time, so I suppose that in general we have .
I

2 :\ had a fairly good relationship.

!

I,!I

3 ::

JUDGE FINDLEY: I understand. Thank you, Mr.

'I :1
4: Caldwell.

5

CHAIRMAN SMITH: Ed, I think you had a question?

MR. JACKSON: Except for some language in Article

7 III, the General Assembly can abolish and reassign your duties

8 is that correct?

9

MR. CALDWELL: To the best of my knowledge, that is

10 correct, sir.

"z

11 ...
..":>"
~

MR. JACKSON: The issue before this committ~is one,

1'2 ~ whether with reference to your office it should be listed in

:)!r'~ I '-~

the Constitution and two, whether it should be elected or not.,

!

14 ,~..,.

Now it would be possible to delete Comptroller

':':

"1:

15 -tl General from the Constitution and still have it statutorily

';)

'"-:;,

16

'I"
Q

elected.

This has been done in the past.

What is your

z

17 '"'-0 position? Is the main thing the election or the main thing

L) placement in the Constitution?

19

MR. CALDWELL: I think that the public, the citizens

20, of this state, must and shall and have always relied on the 21 Constitution as being the basic law of this state, that no one' i

could change except by their vote. And I think that an office 23 , that is as important to the public as this office is, that 24 no one should have the right to change the method of placing

2) i; that individual in office except the public. Which means that I

. '".. .. ..-.--.... -.----,.... i
,-,---~-._

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

'I
--.------~"-----.----__r__

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

PAGE 16

I think that it should remain a Constitution officer so that

2 only the people, by their choice, could remove him.

3

CHAIRMAN SMITH: Somebody else -- Mrs. Holmes?

4'

MRS. HOLMES: I was just wondering Mr. Caldwell if

5 when you cited the numbers of complaints that you handled and

6 I: you said that the -- I am really speaking to the name change

7 you said that these people found your office. Have you had

8 any statistics about how many people first called the

9 : Consumer Protection or whatever it is Agency here in the state

10 and were told by them that anything concerning insurance is

l'

Z

II

...
."'o".-.

only

handled

by

your

office

and

there

was

no

help

that

they

]2 : could give them?

@ri

I think that, you know, the average voter does not

14

~
t;

know what

Comptroller

General

is

and

frankly

my own

experience

<

I:

15

,!)
":':">

--

and

I

feel

like

I

know state

government

as

well

as

the

16 o~ average citizen, in fact much better probably because I have

L

<0;

17 ~ Ed's chart at home so I sort of know where to put things -- and!

18 Iii' that was the route I went through, the Consumer Protection
!i 19 III, Office first and I was told, you know, if you have an insurance!
Ii 20 III' complaint we cannot handle that, we cannot touch it, we can
!'!
21 Ii sympathize with you and we hope you get some pretty good

22 treatment from this office. So, you know, as far as that's

~3 concerned, how many people really can easily find you?

24

MR. CALDWELL: Well of course you answered the

25 question. I have never seen a survey of how many went to the

L

. . ._.

~

__

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

rr-
>, Consumer Office first,

so I,

of course,

PAGE 17 _ ._, --'---'--' .._-- . . ...... .._-_._-----_._.-
cannot say that as

2 an absolute fact that more people would find the office if

3 the name was something else. I have no way of being sure of

4 i'Ii that. I can only tell you my experience and this experience
5 ' that I speak of is documented and from that I draw the conclusipn
I:
6 that I have espoused to you people here. I certainly have no

7 way of knowing, I wish that I did know so that I could be more

8 specific with you.

9

CHAIRMAN SMITH: Any other questions of Mr. Caldwell?1

10

(No response.)

lz'l

II ~.
.'o"
"-

Thank you very much. We will se that everybody

/,?'9Y41,

12

~
~

gets

a

copy

of

this.

I thought it had gone to everybody but

(~) ~ n apparently it just went to the subcommittee. We'll do that

--

14 .~.. before we disband, obviously

'n

<l
r

15 .:>
l'l

MR. CALDWELL: Thank you, Mr. Chairman, ladies and

"=">

. 16

,~
C,

gentlemen.

'L.

<:.;

17 :ii

I might add one thing, Judge, before I leave. YOu

referred to not abolishing the office. I hope that you

understand that if you change it from elective to appointive,

even though every duty that is there now remains, it is an

21 abolition of the office

.2.2

CHAIRMAN SMITH: You mean in terms of the pension?

23

MR. CALDWELL: Yes, sir, Georgia law.

24
CHAIRMAN SMITH: Maybe we ought to find out how

much it is costing us to make this change.

PAGE 18

MR. CALDWELL: Well it would cost

2

CHAIRMAN SMITH: Well I'm just -- don't answer that.

3

MR. CALDWELL: I serve on the board, so I --

4

CHAIRMAN SMITH: All right, we have a couple of

5 other visitors and I propose that we hear from all them and

6 then revert back to our subcommittee reports.

7

Following a subcommittee meeting in mid-September

8 mid-October and the full committee meeting last time, the 9 subcommittee on Boards had recommended that the State Highway

10 Board not remain a Constitutional Board but continue in its

"z

11

~
IoX

present form as

a

statutory Board.

That action was taken by

"w-

@ ..I12 ~ the committee. Mr. Moreland's office contacted me and they have some concerns about that action and so I invited them to

. 14 ~- meet with the full committee today

~

T-

15 .:>

We'd be pleased, Tom, to hear from you or whoever.

<:l

'"::J

16 ~ owz

, MR. MORELAND: Thank you, Mr. Chairman, ladies



17 ~ and gentlemen of the committee. Thank you for letting me

18 come before you. I have with me the Vice Chairman of our

19 Board Jimmy Connor from Hazlehurst. Our Chairman is Young

20 Longino of Fairburn and he's out of town today.

21

If I could -- I'm sure you're acquainted with the

22 Board but in just about sixty seconds let me -- it is a

23 unique Board I think among perhaps the Georgia State government

Boards and somewhat unique among Transportation Boards in the
,;
country. Our Board is composed of ten members, one from each

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

PAGE 19

i: Congressional District. They are elected for five year

I'
2 staggered terms by a caucus of the legislators from each.

Congressional District, so we end up with two members elected

in the first ten days of each General Assembly session.

5

This ten man board dates from 1962 I believe and all

this, the Board and the length of term and the method of

7 election, is set out in the present Constitution, dating from

8 1962.

9

I was in the field building projects in 1962 and

10 wasn't very aware or really concerned about the composition

uz
II >~- of the Board. I am informed by our Board members who were

"-

~-'"" ~ ~

12 "~' aroun,d then, including -- I talked with each of them this
morntng, including Mr. Carr, who is here and Mr. Connor was

14 ;
~ in the General Assembly, that the reason for changing to the

1:
15 .~
~ ten-man Board from a three-man Board was to try to effect a
,OJ
16 ~
~ more equitable addressment of projects of capital improvement
z
<l
17 ~
or at least to be sure that there was an orderly system that

18
i included needs assessment of projects.

19
We are in the business of building, maintaining

20
i and operating transportation facilities. And we build more

21
than we maintain and operate since we do a lot of the

22 :1
fi construction for local roads. It is not an easy thing to look

23
, at the entire State of Georgia and to -- there is always more

24
i need than there is resource and it isn't an easy task to look

25 "

lIi Lst-a-t_ ew, ide

and ~

s

ele ~,

c

t

.

the most ~

nee_ded

projects.

We believe that

PAGE 20

I~e 1

have a good system for doing that and we believe the

2 Ii genesis and the strength of that system rests with the ten-man 3 IIIi,i Constitutional Board. For example, the Board sets overall

4 !I priorities first. They have prioritized that the maintenance
Ii
5 I!Ii of existing facilities is the highest priority, to keep what
I
6 I we have in good operating and good serving condition before we

7 build new projects. ThEfurther have a policy that 70% of our

8 formula type funds are to be distributed on an equal basis

9 among all the ten Congressional Districts and then 30% of the

10 funds are to be distributed on a most-needed basis, statewide. !

"z

11 lI:<.

I report at each Board meeting on the distribution

@;;o ~ '"' of projects and project funds they operate on the project.
effect that and to get at the need, we have three priority

To

14

~
I-

systems;

a

rather

complex

computerized

system

for

major work,

'r<

15 four laning highways, major bridges, that considers density

"'":::>

16 o~ of population, congestion, accident rate, a myriad of factors.

Z

<l

17 ~ Then we have a simpler but different system for evaluating

18 resurfacing and rehabilitation including some geophysical 19 tests on the roadway itself. And then our city-county

contracts and local assistance programs is a need system that 21 first starts with the local official who rates his needs and 22 then our engineers look at the proposed project and rate them 23 from the structural condition of the roadway, the number of 24 ! houses per mile, whether it's a school bus route and all those 25 things. So we feel if that was the goal of the 1962 change,

PAGE 21
P~=t to some considerabl-e-e-x-t~~~--~~~~s-~-e-e-~g--a-i-n~d-,-t-h~a-t-w-e------'

2 II have achieved it.

II

il

3 II

And I guess my overall suggestion, Mr. Chairman, is

II
4 II that it is working well. The Board very much would like -- I

5 II talked to each of them and requests that you consider this
6 IIi action and to place this Board along with the other three or

7 II whatever you have done in that regard in the Constitution as

8 II a Constitutional Board including its method of election and
,I
9 'III so forth, as it is presently written.

10

I looked at the Constitution this morning and I know

Czl
11 ;~: that we as ~- the Board further wished me to tell you that

0w

'(V~~\I~ ~\ J -

a: v

they

applaud

your

goal

of

simplifying

the

document

and

we

note

that there has been only one change in the Board that we can "I

14 ~ remember, and that was the change from the Highway Board to the

:<r

15

.:.
Cl

DOT

Board

and

that

was

a

Constitutional

change

that

was

voted

':">

16 ~a on. There are some other things in there about outdoor

z

17

<
a:

m advertising and other things that our attorney, Mr. Gordon, is

18

II Ii

here

from

the

Attorney

General's

office

and

certainly

if

there

19 :1
II are some changes that could be made to allow us to continue to

20 1 function and simplify that provision, we certainly have no
I
2\ objection.

23
a word?

If you would allow, can I let the Vice Chairman have

CHAIRMAN SMITH: Certainly.
25
MR. CONNOR: Mr. Chairman, members of the committee,

PAGE 22

i I just have one quick word. I appreciate first you allowing

2

II
I

us

to

be

here and as Mr.

Moreland said our entire ten-man

i

3 II

Board would like to request that you make this change back to

4

;,"Ii
II

a

Constitutional Board.

5

'!I'
i!

I have the unique position of having served inthe

:1
6 General Assembly for twelve years during the period of time
II
7 II that the first change was made that we were talking about in

"
8 '62 and I just have a deep seated feeling personally for the

9 tremendous job you've got before you and how difficult it is

10 to have a Constitutional Revision Committee without every

Czl

11

~
.'o"".-.

horse

breaking out of

the

stall,

and

I

am certainly aware

and

,

~ 12 ~ our Board is aware of it and we intend to support your endeavoris

~r~ over here with all the support we can give it.

14 ~ !;;

We just respectfully ask you to please make that

<:

~

15 .:> change. We think it is best.

Cl

'"::>

16 .~..

CHAIRMAN SMITH: Let me ask a question for the

Q

Z

<:

17 ~ committee. What difference would it make in the way you

18 function if your Board continued in its present form and was

19 simply not listed in the Constitution but in the statutes of

20 the state? What practical difference would it make in the

21 function?

22 ,.

MR. MORELAND: Mr. Chairman, I asked that question

23 of the Board in anticipation of it coming up and I guess our :!
24 answer is that if there is never any legislative change or

25 i:II any change in it, then obviously it would make very lJ .ttle

L_'_ .

_

_ _ _ ~.

. _ _- - - - J

fT------- --- ~--- ---

PAGE 23

1 I difference. The Board feels that the permanency provided by

\
2 Ii the Constitution allows the addressment in a professional way

:1
3 II of resources and needs and strengthens the Board and allows

4 IiI it to do its task better. The ability to change the makeup
iI

5 Ii or election or composition of the Board being so much easier

Ii

6

I~
I'I,

as

a

statutory Board,

to

them was

a

major

feature

in going

to

~i

:i

7 II the ten-man Board and making it a Constitutional Board. So I

il

8 II:i guess that's the best answer I can give you.

9 IiIiI'

CHAIRMAN SMITH: Well let me just say, even if the

'i

10 legislature were to change it to an appointed Board, which I

\z.?

11

I-
o0:

assume

is

the ultimate

fear of the members,

the

best advice

"w-

@,,:~I that we get is that as a practical matter it would end up with your present caucus system anyway, that every Governor, if

-

14

~
!;;

he

was

going

to

appoint

a

member

from

the

Sixth

District

or

1:

15 .:> the Seventh, would by the political nature of the process, \.?

oX

16

3::>
o go

to

the

elected

members

of

the

General

Assembly

to

seek

their

z

17 ~ approval of his appointment.

18

I think it is perfectly obvious that the public is

19 well satisfied with the way the Highway Board is operating now

20 and this committee does not propose any change except where it

2i is listed when you pick up the Georgia Code. We just don't see!

22 any difference, or I don't certainly as one, in how you would

23 function if your Board continued just like it is, is chosen

24 just like it is, until such time as the General Assembly might

25 think otherwise, the Assembly could propose a Constitutional
"------_._----- -------- ---._._--------

PAGE 24

IT

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

1 ii amendment now, as far as that goes, and it would be just a Ii
2 II matter of time until it got through.

3 :!

But I am searching for what difference it makes in

il

!i

4 ,; function. I think that the philosophy of the subcommittee and

:1
i:
5 :i thus far of the committee was that there ought to be a

i" i

6 compelling reason for something being included in the

7 Constitution and it oughtn't to be encumbered if it could be

8 avoided.

9

MR. MORELAND: Mr. Chairman, may I respond very

10 quickly? I think we offered what we consider two good reasons.

Czl

11 ; First, you have already chosen to consider among the Boards,

o

"-

~

~ ~ sv

p'. ~" you have chosen to retain three Boards in the Constitution.

.._- So we already are at the point of where do you draw the line.

14 .>..-.

CHAIRMAN SMITH: Well let me stop right there. I

'r<

15 '~ really ought to defer to the subcommittee chairman how that

u: ::>
16 ~ came about and I will in a minute, but basically it was that

z
<l
17 ~ there were three great items of public interest there that ought

18 II to be preserved for the people and I'll let Mr. Sterne refer

19 Ii to that again, because this was the philosophy with which they

20

Ii
.,

approached

it,

that

you

ought -to

have

to

show

cause

to

be

21 included, not show cause why you should get out but show cause

1 ) why you ought to be in, I think was the basic approach. But

23 I didn't mean to interrupt your

24

MR. MORELAND: I guess that's what we're trying to

25 say. We believe the same public interest cause is shown there

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

PAGE 25

Ii because of the experience of the political nature of our
i!Ii 2 "II function of government through the many years of state
II
3 I!Ii government history and we believe that the present system is

4 iI, working the best. The two reasons then if we're going to get I:
5 !: the public -- it is already set aside as the only Board
'i
6 elected by the members of the General Assembly, it already has
1:
i:
7 Ii that uniqueness to it. Second, we deal in the selection of !i I:
8 II projects statewide which needs to be done in a professional
I,I 9 :1 public interest manner and I guess we believe that gets it in

10 ~ the direction of the other three, Mr. Chairman. So those wouli

11 ~ be the two reasons we believe, the election by members of the I

0-

I~\ '12 ~ General Assembly of the Board members already and the fact
~!~ ~ that we must select projects statewide in a professional,

I
,1

14

;
l-

detached

sort

of

a

way.

V'

I:

15 ...~,

CHAIRMAN SMITH: Well not to beat the dog to death,

:':">
16 .o~... but I don't see why all of those things wouldn't continue if z <
17 :ii you became a statutory board.

18

MR. MORELAND: We would try to continue them, Mr.

19 I' Chairman, I assure you of that.

20

CHAIRMAN SMITH: Well I mean I'm counting on you to

2l do it, but I just -- in terms of function. Before we get

questions, might I call on the subcommittee chairman, Mr.

23 Sterne and he can refresh our memory about the report.

24

MR. STERNE: I'll be glad to and this really is a

25 rehash because we have made our recommendation so whatever

PAGE 26

q

-~----

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

I: change in the recommendation is made will be made by this

'i
II
2 Iil' committee. So you might say it's out of our hands and a

i

I

3 I matter for this whole committee rather than our subcommittee.

I

II

4

:1
i,1l

But to go back, Judge Smith said it very well, we

5 II accepted our charge as one to simplify the Constitution, to

"~
'I

6 !I recommend removing from the Constitution those things that did

il

7 II not need to be in the Constitution, and this was done to

if

I

8

"I!
!i

avoid

the

problems

of

change

in

the

case of

the

Constitutional

i
il
9 'I Boards, the change having to go to the electorate for a

10 Constitutional amendment. I think we have all suffered with

"z

11

... IoX

ballots

that

have

42

Constitutional amendments

on them.

0-

~

@)~12 :

We looked at all of the Constitutional Boards and

commissions. We looked at some statutory Boards. I think

14

~
~:r:

it

was

said

here,

but

I

want

to

remind

you

that

Natural

15 .:> Resources is a Constitutional Board, Human Resources is a

"'"::J

16 oZ statutory Board. For the life of me I don't know why. Both

z

<

17 i of them seem to be functioning all right.

18

We also looked~ the matter, Tom, particularly --

19 the question was raised if this would impair, if a change

20 from Constitutional status to statutory status would impair

21 in any way your right and ability to gain federal funds, have

22 federal funds flow to you and we were satisfied on that score.

We sa~isfied ourselves on that score before we did anything.

So basically we adopted an attitude that there

2S should be an impelling reason in each case for retention as a

'.L ~

,_







~

._--._._. i r~~~~:~:U~~:l BO-:-~;

PAGE 27
------- - - - - - - - - - - - - - - - _ . _ - - - - - -

2 !I

The three that we recommended retain that status,

3 II the Public Service Commission which we looked upon as somethin~

4 Ii of a legislative process, fixing rates; the Pardons and parolesl

II

I

5 !! Board, and the history here and elsewhere of Pardons and

i

il

6 I: Paroles Boards that have been appointed has had some bad

!I

7 IIII experience and we thought that that should be as far removed
8 :1 from the Executive and the Legislative as possible; and then

,I

9

il
:1

the

Personnel

Board which,

you

know,

deals

with

the

compensatio'p

I
10 ~ of many of the people in this room and others and we thought I

11 ~~ that deserved Constitutional status.

!

~

I

~r~ ~

p"
-~

So those were the ones we recommended be retained

and we saw no, again, compelling reasons why the other five

II

14

;
~

should

be.

I would say this, that if I hear clearly what the

'<

:t

15

.:>
"'::">

Commissioner

says

--

and

he

says

it well

--

I

have

to

think

16 ~ that if we accepted his argument, we would likely have to

Czl

17 :ii rethink our position on the other four Boar~or some of the

18 il other four Boards, about whom we made our recommendation that

19 they not be Constitutional Boards.

20

Now there are other members of my committee, Mr.

21 I:
, Chairman, who might want to express themselves if you will

22 hear them.

23

CHAIRMAN SMITH: Certainly. I know several people

24 had questions. Ms. Adams?

25
:L1l

MS. ADAMS: I was wondering if perhaps Mr. Moreland ~_

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

PAGE 28

II could share with us some of the experiences that you had prior

2 i to '62 that leads you to believe there would be chaos or

,I

3

II
I,

turmoil

or problems.

Ii

4 ;:

MR. MORELAND: My experience prior to '62 was out

i

5

il
[

building,

it wasn't

in

selecting

projects.

I have been

II

6 il with the Department 23 years and had every job I think there

I'I,

7

,I I'

is in the Department,

maybe

I'll find one I

can hold down one

:1

II

8

!I
II

of

these

days,

but

it

is

common

to

discuss

among

the

:1

9 Ii department the shift, the drastic shift in priorities from

10 time to time which would disrupt the work. The project
CzI
11 ... selection process was not continuous. I wouldn't go so far as .'"o".-.
(e);~i to say roads have been sold really but there has been that talk. We've got Emory Parrish here, our Deputy Commissioner,

14 .;.. who has been in the top management of the Department longer

':<r

15 .:> than I have and he might could address it even more fully and

CI

,Z:

:;,

16 .~.. also Mr. Connor. Emory, could you help me just a little bit?

o

:z.



17 ~

MR. PARRISH: Yes, sir. Let me make one comment

18 and I think Senator Gillis is pointing to me, I guess he

19 doesn't want me to talk much this morning.

20

SENATOR GILLIS: I've got a longer memory about the

21 ' Highway Department than he has.

22

MR. PARRISH: That's true. We have had this Board

23 16 years, the ten years prior to that we had a three-man
24 Board, the four years prior to that we had a ten-man advisory
,
25 Board, the two four years prior to that we went back to a three~ _ _ _ _ _ _ _ _ _ _ _--.J

------------------ l PAGE 29
"..-------------~---------
ilII man Board and each time these were statutory boards that all

2 I,II that had to happen when the Governor came in and said, you

I
!

,I

3 'I'I know, I want to get in the Highway Department, the way you

I:

4 IIII do it is one vote more than half of either house, and that's

5 'II what happened to us through the years. We have had 16 --
:!
well I think January 1 of '63 was the effective date of the

Board and we have had, continuously during that time, one

management of the Department. We have had great stability and

it has been something to me -- I came down in this job in 10 '66, I came to Atlanta in 154 in planning. So I know what

happens when a Governor changes. I'm not speaking of this

Governor. This is an outstanding Governor but history repeats

itself and it is easier to get one over half than it is two-

thirds to change the makeup of a board. When a new Governor

15

~ :,:'":

came

in

our

priorities

very

often

were

180

degrees

away

from

Ie

~...
oz

where

they

were

during

the

previous

administration

<:

17 :ii

I'm sure Senator Gillis may want to comment on that.

SENATOR GILLIS: Mr. Chairman, I'd like to answer

19 her question and make a comment on my good friend Billy's

20 remark about the Pardons and Paroles Board probably had some

21 bad experiences.

22

That is the exact reason why the Highway Department -~

23 they've been changed to the Transportation Department and a

24 ten-man Board elected by the General Assembly.

25 ,I;

I'm going to go back eighteen years back of you. In

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

PAGE 30

~

1936

we

had

a

five-man

Board

and

I

was

in

-------------i college at that

!I

2 \1 time but my father was a member of the Board at that time.

3 I During the administration -- they were appointed by the

I

i

4 i Governor -- during the administration there was some dissention:

Ii

I

5

II

because

things

were

not

being

transacted

between

the

1
Governor's!

II
I,

6 Ii department and the Highway Department and part of them were

7 II pitched out on the street by the National Guard and part of 8 IIIi them walked out. I knew some that walked out, but they put
!, :1
91'1 an entirely new group in there. I,

10

Later on then -- if the press wants to know any more

CzJ

@;;11

....
0."o.":.

about

it,

they can go

back and look at their own newspapers

there was a lot of scandal about asphalt schemes.

CHAIRMAN SMITH: Center lines too.

14 ~ !;;

SENATOR GILLIS: Sir?



J:

15 .:>

CHAIRMAN SMITH: Center lines too.

Ca:J

::>

16 ~...

SENATOR GILLIS: Probably so. But many things of

oz

17 ~ that nature during that administration.

18

Later on then it was changed to a three-man Board

19 and during that administration we had -- I believe we had some '

20 sand pit publicity and we had some extension of contract

21 publicity, they'd go out there and let a road for three miles

22 and then add five more to it at a negotiated price. Things

23 of that nature.

24

Then we also I believe had some gas savers, seems

25

like I remember, that was promoted over there. - - - __. -------- - .. ~---

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

PAGE 31

~--_.

Ii

During another administration, we had a Director

III

2

.1
'I

and a

ten-man Board which

served

in an advisory capacity.

The I

;1

Director was appointed by the Governor and the Highway Board

!
I

I

I

members -- their duty was to advise with the Governor, I believje

I

that's what the law said. Well during that time Directors

changed four times I believe, three or four times during that

administration and all kind of scandal was published about

that.

So you see, we do have turmoil and bad experiences

10 with our old type of legislative switching at the request of

the Governor from one type of operation to the other.

As Torn said, you can't plan. You go in there and

set up your plans for what you're going to do in the future

and the first thing you know you change administrations and

all that is shot out the window and you've got to replan again.

There's no continuity with running the Highway and Transporta-

tion Department under a deal where the Governor appoints them

18 and they change every four years.

19

This method of operating the Department has been

20 in operation now 16 years and to my knowledge I haven't seen
21 or know of any bad publicity from a scandal standpoint. I
22 know there has been a lot of planning done over there and 23 a lot of work by people that's been continued in office and 24 turmoil has been at a minimum. I'd have to say -- and Torn is 25 present -- he has done an excellent job over there. Even if
- . . ---~-----

PAGE 32

- ------ rr--------------------~--------- --~---------------------------------------

--~----,

it was changed, Governor Busbee, I have all the confidence

2 in the world, would appoint good members over there and

3 operating a good Highway Department, but I have known eleven

4 Governors, served with eleven Governors, and they have all

5 been different. Some of their appointees have -- I'm going

6 to wind up my statement by a remark made by a former Director;

7 of course he's in trouble now, I hope he comes out all right,

8 but he says if it ain't broke, don't fix it. So I think

9

'I
I

we've

got

a

good

operation

over

there

and

I'd

hate

to

see

it

10 changed.

"7:

11 ...
'o"

MR. CONNOR: Mr. Chairman, let me say one quick

:l.

~ 12 ~"' word and our Department will quieten down and Senator Gillis

SJr i said all of it so amply and better than I do about the

14 .~.. background

'x<

15 ~

I had the pleasure of going to an ASHTO Association

"'::">

16

~ (;

in October

in Connecticut with Mr.

Moreland,

who

incidentally

-z

<

17 ~ is President of that Associatibn. This is an Association of

18 !I all the highway officials and commissioners throughout the
II
19 IIi' states. We had Senators and members of Congress, Department 'I
2u !: of Transportation Secretary, member of the cabinet there, and
"j I
21 all the Boards and Commissioners from all the other states in
!I Ii
22 'I this nation. Chairman Longino was with me, we were the only

23 two Board members there and the Board members function in
"-I
24 i subcommittee meetings and committee meetings while the

25

i;
"

Commissioners

functioned

in

other meetings.

And with no

I

,----------- I
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ----,------~_._-_._._-~--_._- --~-------'

PAGE 33

n - - - - - - ~ - - - - - ~ - - - - - - - - - - - - - - - - - -~ -- -

"I

il reservation, Mr. Chairman, whatsoever, in answer too to the I

2 IIilI' lady's question, our Board was pointed out time and time

I
I
I
I

3 ;!!1Ii again as having more stability. Many, many Board members,

I
I

:II,

I

4 II Judge, who were appointed by the Governor, who were appointed

II
5 Ii jointly by the Governor and confirmed by the Senate, over II

6 Ii and over again said we have no stability, we have no II I'
7 Ii continuity, have no continuing process. I came back to

i!I
8 Georgia and told the rest of the Board in the meeting,

II
9 Ii explained to them the position that our Board was in and our II

10 Department, ladies and gentlemen, and in credit to

..,

z

.. 11

...
'o"

Commissioner Moreland and his

staff,

was pointed out once and

w

@;i many, many times as the leader in this state in Transportation and having done so many things and many of these people

14 .)1... credited it to the formation of the Dep~rtment from the Board

'"
~
15 .~., down to the staff

'":::>

16 ~
aw

CHAIRMAN SMITH: Let me ask this. Is there any

Z

<

17 ~ fear that the present method of selection would be changed?

18

MR. CONNOR: Mr. Chairman, I don't have any --

19

CHAIRMAN SMITH: Everybody is talking as though we

20 are recommending the Governor appoint. We aren't.

21 Ii

MR. CONNOR: I'm like Senator Gillis, I served

I
22 ,i over there twelve years too, and those twelve years in the

23 General Assembly there were several Governors came along then.

24 :i I remember a Lieutenant Governor and a Governor getting in a

25 i' rather violent argument one time during Governor Maddox's
'~--~--

PAGE 34

- - - - - - - " - - - - - - - - - - -

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

[I

campaign

and

there

was

all

kinds

of

discussion

about

what

could I

I
I

i

2 I happen if the department could be brought in but it couldn't

I
3 I. be brought in. It was almost outside of it. I can remember
,II'

4 Ii,l a day when it would have been right hectic during that time.

5

Ii i

So

if

it remained

like

it was with the

Senators

and

Ii

6 III' Representatives that I see in this room and the ones that I

Ii

7

I!
II

know,

no,

sir,

I

don't

have any

fears,

I

don't have

any

fears

Ii

8 II of Governor Busbee, but it might not. As Senator Gillis says,
II

9 II people are different.

10

CHAIRMAN SMITH: Tom, I think you had your hand up

\:l

Z

@;;11

>-
.'oQ"...

first.

MR. HARROLD: What is the total budget, Tom, that

y'all dispense with every year? It's pretty big.

14 ~
>-

MR. MORELAND: Yes, sir, including federal funds we

'r<

15 ~ budget -- we bring our federal funds to the General Assembly

":"0"

16 ~a too and they appropriate them, about $550 million including

z

17 g; federal funds.

18

MR. HARROLD: And I would expect that the requests

19 from local people for new roads -- like I've been asking for

20 a four lane road to Athens for I don't know how many years --

21 would be three or four times what you have to dispense with?

22

MR. MORELAND: I have often said I would work free

,

2~ -

:i:i i f

I

could

--

if

we would

have

enough

resources

to address

all

'II

24 ,1 of the bona fide needs.

Ii

"

25 I~iL_t_h_e_r_i_g_h_t_o_n_e_s_.

_

That's the biggest job, picking out

i

_

.--J

r------~-----
1 II

MR. HARROLD:

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

35
~

And isn't it really the bottom line \

2 II that if you're a Constitutional Board then you are somewhat

3 I''II, protected from the whims of the General Assembly, you don't
iI.,i
4 have to worry about somebody coming in and saying Tom, I need

5 i my road and if I don't get it I'm going to cut your budget or Ii II
6 :1 I'm going to --

,i

7 I;

MR. MORELAND: I don't know about whims of the

Ii

8 j! General Assembly, I think they are a great asset to us but

9 il the system --

10

MR. HARROLD: Did you get that down, Prentice.

Czl

11 ~
'o"

MR. MORELAND: The members of the General Assembly,

"-

~)r~12 ~ when I show them the figures, the traffic and the priorities, have terrific response. The system just works. But you are

14 .>.-. absolutely correct in that the needs out there are far beyond

'<

J:

IS

.:>
<!)

the

resources.

I think they will always be and it is a

'"::>

16

~
oz

matter

of

choice.

The system is working so well in our

..:

17 ~ opinion in contrast to what chaos could occur. It might not,

18 but it could.

19

MS. ADAMS: I think we ought to reconsider our

20 decision to remove that Board from the Constitution, and I
2) am for streamlining the Constitution too, but I think there
22 ought to be as much of a buffer for that particular Board. I 23 can remember being in Savannah and needing a road and all kindsl,
I
of political things going on and in the last ten years or so 25 that has changed dramatically and I think one reason is that

PAGE 36

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

-----1

the legislature has dealt with the facts and the needs

because they haven't been able to do anything else, to play

politics with the Board for transportation.

CHAIRMAN SMITH: Well with your permission, let me

postpone that motion until we have finished our other guest

and we'll take it up when Mr. Wood is out of the room.

REPRESENTATIVE WOOD: I have a couple of amendments

I want to bring up.

CHAIRMAN SMITH: Yeah, I thought you would have.

10

MR. JACKSON: Judge Smith, can I ask one question?

CHAIRMAN SMITH: Yes, Ed.

MR. JACKSON: In the distribution of that $500 millioh,

is that determined strictly by the current Board's policy or

is that controlled by federal and state laws and rules and

regulations? Would any Board have to make a fairly equitable

distribution along Congressional Districts or is this some-

thing you have wide policy latitude in?

MR. MORELAND: The Board has wide discretion and

there are certain funds, for example, interstate funds which

can only be spent on the interstates, but the Board approves

what is on the interstate system, so the Board has broad

i

22
-

II.'
I

Clb..sc, ret.l.on.

23

While I'm up, I couldn't help -- if I could respond

24 to the Judge's comment about bureaucracy. This Board feels

25 rather strongly about that and they evaluate our budget in

PAGE 37
[ 1 - - - - - - - - - - - - - - - - - - - - ------ - ---------- - ---- - ------------------------
I,!I' percentage of cost of personal services and that sort of thing

2 and we have reduced from one time 9100 or 9200 people down
I3 to around 7000. So I believe this is a bureaucracy decreasing
"
4 II and not a bureaucracy increasing. But there is broad

5 'li discretion over there. ii

6 !I

MR. STERNE: Mr. Chairman, I really think it needs

7 I:Ii saying by me that nothing in our discussions of this in our
8 !!ii subcommittee was brought out or even suggested or hinted that
:1
9 ji there was anything wrong with the Highway Department, the way

10 it is being run now. I applaud the way the job is being done

Czl

11

.... o0:

over

there

and

I

believe my committee feels

the

same way.

So

Q.

@t~1l' ~ our recommendation isn't a recommendation to change something because we are displeased with the way it is going now.

- 14; .... </> :<r

DR. GIBSON: Judge Smith, before we get too far, I'd

15 ~ like to reserve some time to object to some of this. This I!)
IX :>
16 ~ Board has been Constitutional since '62, I have been here since a z: <:
17 ~ '59. It has not all been well run and efficiency. I have

1& some problems with worrying about how much we love Governor

19 Busbee and the General Assembly. I guess I'd like to ask you

20 before we get overwhelmed by the emotion of the moment, at

21 some point I'd like to have some time to talk.

CHAIRMAN SMITH: Well, either now or later, it doesn't

23 make any difference. Let me say this, my own feeling is that

24 if politics was going to control the Highway Board, it could i
I
25 control them now the same as it could any other way. The reasorl

PAGE 38

- - - - - - - - - - - _ ------ ..._-----------_.._-"--_. -----"._------ - -

..~------,

it's not are the people involved like Mr. Moreland and Mr.

Connor and the other people. And politics could wreck it

whether it is sitting over in the statutory Board or in the

Constitutional Boards and that depends on people in the

ultimate, as does every governmental function, in my opinion.

DR. GIBSON: That's all I've got to say and you have

said it very well.

CHAIRMAN SMITH: I have a bad habit of that.

MRS. HOLMES: May I ask what portion of that $550

10 million comes from the allocated gasoline tax and what part is

Cl

Z

11

...
"o"

given by

--

stuck

in

the

budget,

and

the

federal,

if

you don't

~

<.>".
12 ~ mind.

~J~

MR. MORELAND: In round figures, the proposed budget,

! 14 !;; about $190 million in federal funds, some two hundred -- I



1:

15

.:>
Cl

guess

about

$350

million

motor

fuel

tax

and

probably

somewhere

<>:

16

::>
~
oz

in

the

range

of

$10

million

federal

and

state

funds

and

,
general I

17 ~ funds, not highway transportation, bhat "s a general breakdown .

18

CHAIRMAN SMITH: Maybe you can get a piece of these

19 Iranian funds that were seized today.

20

MR. MORELAND: We appreciate you hearing from us.

ii

21 i'.i

JUDGE FINDLEY: Could I ask one question before they

22 leave? I believe we possibly reconsidered the Department of

~~J Ii Labor and I think in terms of leaving it in as a Constitutional

24 Board, is that the way we finally came out?

25

CHAIRMAN SMITH: Well nothing has hat'P~~e~_~_~~t__~~-=-_-!

lJ

-:--l PAGE 39
1 !r-:Ub~;~ittee re~~~e~d:~~~;iS -~~~--~t--~-~ el-imina~:-~- as

II

2 II Constitutional office, there is no Board that I know of.

I

II
3 Ii

JUDGE FINDLEY: That was a misword.

II

4 I:1i

It should be observed though that the Department of

5 I'! Transportation, being from a rural area as I am, on this

'i 6 particular Constitutional -- proposed Constitutional amendment
,I

7 :i I have heard from some highly respected people -- that is

I'

8

II
I'I:

people that

I

respect and

I

think others do also

--

in

favor

9

!
IiI~

of maintaining

its

present

status,

which

speaks

well

for

the

10 organization of the Department. Plus the fact that it is

11

<z.'l
~

doing an excellent

job,

without exception the people that I

(Q);I.'"o".". have heard from, again being in a rural area, and I think the people in the rural areas are most affected by the shenanigans

14

~
~

that

go

on

in

the

Department,

or

have

been

in

the

past.

Anyonei

'<

J:

15 ~ born and raised on the Ohoopee as I was, they just have their

<.'l

'::">

16 a~ road back in there lately. It is working well, it is well

z

<

J7 :; thought of and if we're going to do a textbook Constitution,

18 II then I don't believe that it ought to be included in it, but

19

II
'I

we're

not

doing

a

textbook

if

we're

going

to

include

these

I

20 other departmen~ particularly the one that I just mentioned.

21 So it would be my feeling on the thing that its present

22 position should remain what it is.

23

CHAIRMAN SMITH: Let me correct a statement, I

misunderstood you, Judge, the Commissioner of Labor remains a
:i

25 :: Constitutional office under the recommendation .

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

. _._ ....

. ..- -

. _ - - - .. ---_.

~--~

PAGE 40

------,

'I

I

Ii

JUDGE FINDLEY: That's what I thought. That's the

2 II one on which I see no Constitutional background for.

3 II

CHAIRMAN SMITH: All right. We have at least one

Ii
4 !I other visitor. The committee has, as you are well aware,

III'

5 II recommended that the Pardons and Paroles Board remain a

il

6

II II

Constitutional

Board.

Mr. Partain, who has been connected withi

7

,I iI

that work

through

the memory me

and

runneth

not

to

the

contrary

8

Iqi
Ii

I

think,

is

here

and he

had

contacted

the

staff

and

I

think

:i
9 I"II' there was some concern about the wording of the present draft

10 ., as related to the Pardons and Paroles Board, so I would suggest

z

11

...
0:

you

look at your draft

and

find

that

section and Mr.

Partain,

.o".-.

~ 12 ~ if you would --

~r~

MR. PARTAIN: Mr. Chairman, members of the committee,

14 ;... my purpose here today is to try to assist you and point out '<
1:
15 ~ what we believe is some flaws in the proposed draft so far. I
0:
;j
16 '~" got this assignment from the Chairman yesterday at 4:30, so
z
<
17 ~ this has been a rather hurried review of the situation.

18

If I'may, I would like to go down what is proposed

19 'I item by item and then offer a substitute for your consideration

20 I Lines 24 and 25 merely state that the Board is II vested with

21 the powers of executive clemency " We feel

22

CHAIRMAN SMITH: Wait just a minute, there's some

23 confusion here about the draft. Did you give him one of these

24 II that we're looking at, Mel?

2S

,L.L

.

MR. PARTAIN: I have that draft.

.. ~_

~ _~



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

-

r--- PAGE 41

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

-----,

1

---~HA~~;~~I~~~--I~ 's this morning's, your lines

2 11 didn't make any sense.

!I

MR. PARTAIN: Oh, I'm sorry.

: II

il

CHAIRMAN SMITH:

:1

5 I'll' looking for.

We can pick up the phrases you're

6 !I
III

MR. PARTAIN: Well the lines are changed. This

7 IIII would be lines 25 and 26. We feel that the term "powers of

II
8 Ii executive clemency" is too general and indefinite. The

:":
9 II dictionary defines clemency as the merciful deed and that

10 could be most anything. The Board might even decide to award

"z

11

...
'o"

somebody

some

money

or

something

of

that

kind.

We think it

"w-

(~, ~ ought to be spelled out and tied down definitely what the Boardl 12

~F~ I is authorized to do and in the absence of what the Constitution!

14 .>..- states that it is authorized to do, then it is not authorized

'<

'I:

" 15 ~ to do it. ,;< :>

16 ~
o

The main point that I would like for you to reconSidek

z

-<
17 ~ though is the phrase "as provided by law". We think that it

I
I

18 II ought to be as provided by the Constitution. We believe that Ii

19 II this phrase is regressive and it would simply mean that the II

I

20 I'Ii Board would have to swing with the times. There is a possibility

21

III:
i) even

of

punitive

legislation

and

believe

it or

not we

have

had

I
!

22 some of that proposed, although very little of it has been

23 passed. However, we have had at least two bills that were

24 ,
definitely punitive because a member of the General Assembly

25 I

,I objected to something that the Board had to do in the carrying

,

.

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

PAGE 42
" - - - 1 1- - - - - - - - - - - - - - - - - - - - - - - - - - - -
I! out of its duties. And we believe that there is a conflict
2 Iil, of interest. We have members of the General Assembly, in all
il 3 II due respect, and we have two of the outstanding members on your:
i:
4 I!Ii panel here of the General Assembly, I have great respect for I: 'I
5 Ii them, but there is a situation that we must face. We have II
6 II members of the General Assembly coming to the Board frequently
II
7 II in the interest of constituents who are incarcerated and some-
I:
8 !i times the Board must say no. In fact, many times, to members 11
9 II of the General Assembly. We feel that to have the Board

10 .., subject to legislation every year would put the Board back

z

11

...
a: o

during

the

time that a

lot of

things happened that all of us

"w'-

1'I a:

@~; objected to. The one thing that I fought for perhaps harder than

14

.~..
'<

anything

else

since

I

have

been

on

the

Board

is

the

elimination

1:

15 .~., of politics, and we feel that this would cause politics to

a:

::>

16

.~..
oz

enter

the

picture

again.

We have had bills proposed by

<

17 ~ members of the General Assembly to -- well for example, one

18 II' was proposed to require a man to serve 75 years before he was
19 I:I! considered for parole on a life sentence. Well, of course,
20 IIi!i' they usually don't get in trouble till they're about 20, so a

21 i,i,.

I

i: man would have to live to be 95 under a system like that before

i'

22 !I

he would ever be considered for parole. We think it ought to

23
be spelled out in the Constitution.

24
There are still safeguards if it is felt by the

25 I
IL_G_e_neral Assemb_ly and others that the Board---i--s a--- b---u- s--i-n--g----p- o-- w-- -e-r--o--r--I

PAGE 43

~

ha~~~O-~UCh

p

"

w

:-

;r-~he~=

~hOUld ----------------- --- ----

.

be chan

g

e

s.

---I

You always

I

2 I'II have the Constitutional amendment route. But the very fact

3 Ii that that is more difficult to make changes is for the

4 II protection of the people and the Board. We feel that an 5 !'Ii autonomous Board is necessary for the efficient carrying out
6 ",iI of executive clemency.
You have an expert on your committee, he has written
8 Ii books on the subject. I haven I t discussed this with him, he 9 IiiI may disagree with me, I don't know, but he certainly deserves

10 to be heard because he knows what he is talking about and that

Cl

7.

11 ~ is Dr. Frank Gibson.

o

<>.

(t~~~ 17 ~ -u

You have other experts on the panel, Senator Joe

~r!"- t Kennedy has dealt with this for many, many years. I haven't

14 ~; discussed it with him. I don't know how he feels, he may

'x<

15 ~ disagree

.:<

::>

16 ~

We have numerous bills put in every session, some

z
17 ~ of them are, well you just wouldn't believe some of them, and

18 we spend half of our time trying to explain to committees of

19 the General Assembly how certain bills would adversely affect
I
20 the Board. We need, as Commissioner Moreland said, permanency. Ii
I
21 I A Constitution, in my opinion, should be a system of fundamenta! I
22 rules, principles and ordinances for the governing of a state
23 and it is the manner in which sovereigh power is distributed,
24 I the structure and characteristics of a body or a system and

25 : the only way that the Board has survived is by spelling out in

PAGE 44

~he present Constitution just what the Board is supposed to do i

2 and making it difficult to change, although it can be changed,

3 as I pointed out through the Constitutional amendment route.

4

Now on line -- let's see, I'll have to change my

5 line here, I can't even find the line -- well, regardless of

b that, the flaw that we feel, giving the Chairman or some other

7 designated Board member the power to suspend the death

8 sentence. We think that that perhaps is not too wise because

9 any action of that type we feel should be by the entire Board

10 and not just the Chairman or a designated member. We have had,

Czl

11

~.
'o"

believe

it or not,

members of the Board who were outspoken

"w-

8~ "-' ~j12 ~ in opposing the death penalty, and one in particular made speeches allover the state opposing the death penalty. And

/

I

14

;
~

you

can

see

that

if

a

member

of

that

thinking

should

be

':<r:

15 ~ Chairman or be the designated member, he probably would delay

CJ

0::

16

~ ozw

an

execution

and

perhaps

indefinitely.

<:

17 :i

Also, where the Board is given the power to suspend

18 ii a death sentence while the Board investigates it and conducts !i
19 hearings upon it, we agree with that, we think that that's a 20 I' move ~ n the r~ ght direction, taking it out of the Governor , s 21 hands, but there is no time limit, and we feel that for the 22 protection of the people and the law, there must be a time

limit that the Board should not be allowed to drag this out 24 indefinitely. There ought to be a time limit of 90 days
25 i: that the Board has in which to inve~t~~~~te_it!__ ~_~~duc=-_ ~ _he~~~J . . ~------ _ ~ - - - - - _ . _ . _ ~ -

:r-- ---~----~--

PAGE 45

I and act.
Ii
!1
2

CHAIRMAN SMITH:

Excuse me just a minute, Mr. partai~,
I

just to clarify it, this power was transferred over to the

4 Board from the Governor. We felt it was more appropriate. As

5 it was explained to us, it's a midnight situation where there
:i
6 is an execution scheduled the next morning and someone has

7 to have the power to stop that if there is a valid reason, and

8 the Governor could be in Japan, for example, and we felt if

9 you lodge this in the Board, that any member of the Board

10 could suspend, but only until the full Board could meet. Now

Czl

11 ~ I hear you agreeing with that in your last comment, but the

o

"-

~

12 : comment before, I didn't understand what you were saying, that

(~~);'~~~ ~ ,,;;.'3-YJ(-1,

~
you didn't think they ought to' have that power of suspension.

'-_/ 14;: We don't intend to provide for any suspension in perpetuity,

<
1:
15 ~ it is only until the full Board can meet. ":':">
16 ~ of the Committee.

That's the intent

Cl



17 'r."o

Did I misunderstand you?

18 Ii
Ii

MR. PARTAIN: Well that does explain it more fully.

19 However, Judge, each Board member must be on call at all times

20 and even if it came at midnight, all five Board members could

21 be contacted within a couple of hours, and we feel that any

22 delay in a serious matter like that, that it should be at

"'),-,, least the majority of the Board acting.

~~4

CHAIRMAN SMITH: Well is there anything to prevent

2) i, the Board, under this provision, from adopting your own rule

L

_

PAGE 46

--- r r - - - - ~ - - - - - - -- - - - ~ -

I

II
t!

to require the majority or all of the Board,

however you can

"
II
2 IIIi most easily function. But I think your Board members go to

3 conventions too, just like the Highway Board going to

4 Connecticut. It seems to me it's going to be difficult at

5 times to get all five people, if you have that kind of
,
:i
(. 'I emergency.

7

MR. PARTAIN: We have an emergency almost every day.

x We are called upon to grant reprieves where there is sickness

9 in families and one of the rules of the Board is that all

10 members must be available by telephone. We have to give

telephone numbers where we are. I have even been called in

~
1:Z ~ Hawaii. So we can get the Board members, at least a majority,
Q)F'~ a quorum of the Board.

~_::://

l-~ '_ ;,;

CHAIRMAN SMITH: Well I go back and repeat my

<:

1:

15 ~ question. Under this provision, I don't see it as any

:':">
1tJ .~,f prohibition in you continuing that practice, if that seems to Co Z <'
j 7 :7 be the best way for the Board to operate, but I just wanted to

clarify that there is not any intention in here to have the

19 power of suspension of execution except till the full Board

20 ! can meet on it.

21

MR. PARTAIN: Well what -- right now, the Governor

22 i has the power to grant a stay up to 90 days, as I understand

it, that is being transferred to the Board.

24

CHAIRMAN SMITH: That's correct.

25

MR. PARTA:IN: And if the intent to have the Chairman

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

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

~--

PAGE 47
- ---- -------_._-------_._--------- _ _... - - - - - - ,
I

1

!I
!I

or

one

member

stay

the

execution

temporarily

until

the

Board

I

i

I

2

jl
'!

meets

on

it,

it would

appear

that

that

should be

stated

II
3, because as it is now, taking the Constitution literally, the II

'I Chairman could, in effect, delay an execution.

5

CHAIRMAN SMITH: Well that's not our intent, but I

b ~ don't know why it doesn't say what we intended in its present 7 I language, that's my trouble. It says that --

8

MR. HILL: This starts on line 33 of this draft.

CHAIRMAN SMITH: Yes, at the bottom of page 1.

10 "Said chairman, or any other member designated by the board,

may suspend the execution of a sentence of death for offenses

against the state until the full board shall have an opportunity
!
of hearing the application of the convicted person for any

relief within the power of the board."

,-'

",

::>

I6

~ wa

suspend.

z

17 :::;

MS. CROCKETT: That suggests that one person could CHAIRMAN SMITH: I think that was the intention of

Iii our committee, that one person could. It's just like lawyers

19 going to any Justice of the nine members of the Supreme court

20 and getting one for that sort of emergency.

21

MR. STERNE: Our purpose was to create a machinery

that would allow an emergency situation to be dealt with, it 23 wasn't to avoid the board action. I think the board, if it 24 can convene on a moment's notice, that's a better answer, but

this would take care of an extreme emergency. That was our _~

IT
:1

intention.

':'1

2 Ii,l

MR. PARTAIN:

PAGE 48
-- ----- ---- ---- --- ------ - - -
Well after your explanation, I can

3 certainly see the point there and this would be acceptable to

4 the Board. However, the flaw as I see it is that there is no

5 time limit stated in which the Board must act. I don't think

6 \': the intent of the law or the people is for the Board to continue
i!
7 It a death case indefinitely and drag it out. I think that --

8 IIi,

CHAIRMAN SMITH: Well my recollection is that there's!

i!

9 !'I nothing, if the Governor suspends now, that requires you to

"

10 to meet

Czl

11 loe<

MR. HILL: There's no time limit.

"w-

~ 12 ~

MR. PARTAIN: There is a time limit in the Constitu-

~r~ tion now that the Board must make its decision within 90 days.

14 ~ ~ ,.

CHAIRMAN SMITH: Let me just ask you a practical

<l

J:

15 ~ question. Is the Board more comfortable if we say you have

e< ::>
16 ~I%l to act in 90 days?

1-

<I

17 :ii

MR. PARTAIN: Well the Board perhaps would be more

18 comfortable with this, but in the interest of the law and the

19 people, the Board should be forced to act in a reasonable

20 ii period of time.
il

21 !

CHAIRMAN SMITH: Well there's nothing here to keep

you from meeting the next morning.

",

MR. PARTAIN: That isn't the point, Judge. My point

24 is, suppose the Board took six months on one of these, or a

'~1 )-

I
': year.

We don't believe that that is a safe situation.

We

LL____________________

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

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

PAGE 49
rr------ --~- -~- - - -- - ---~~--~---- - - - - - - -- ------- - - - - - --~--
"1 'I think the Board ought to be required to proceed with haste -:1
2 \I1I not undue haste but we ought to investigate it, hear it and

!i 3 reach a decision during' a time limit.

!I

4 !i

CHAIRMAN SMITH: I don't think we have any quarrel

II

5 Ii'i with that philosophy, it's just that we have tried to avoid

the minutiae of specifics in this thing. Now if you are

7 telling me that you have a fear that the Board wouldn't meet,

8 then this is a clear and present danger that we ought to

9 address, but I don't see any reason why you can't meet under

10 the present language. There might be a case that 90 days

"Z

11

...
'o"

wasn't

enough,

and

I

think it was the feeling of the committee

a.

(~) ....:. ~l' "'"' that we wanted to invest the Board with as much discretion as

~~

possible in this regard. Now I think everybody on the
I

14 .)... committee agrees with you that you ought to go on and dispose

'<
r.

15 .:> of the matter if there is a suspension .

\9

'::">

[6 'z" ~,

SENATOR GILLIS: Let me ask him a question.

az

~

'" 17 ,Xl

CHAIRMAN SMITH: Yes.

IX

SENATOR GILLIS: Is the present philosophy of the

19 Board or the rules of the Board -- do you set a quorum, is

20 three a quorum of your Board and would it take a two to one

21 , vote then?

l'

MR. PARTAIN:

Three is a quorum but as we interpret

-1.)' the Constitution it still requires a majority vote of the Board

24 for any action .

.:5

SENATOR GILLIS: So you would need three votes?

i

~

--.J

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

PAGE 50

MR. PARTAIN: You need three, two is not sufficient.

i

2

I
I

We conduct revocation hearings

every Wednesday,

they're going

3 I on right now, we do it with three members but if those three
I
members don't agree, then it must go to at least one of the
4\

5 :! other two and if it goes to one and it is still tied it goes

6 to all five.

7

CHAIRMAN SMITH: Let me back up. The 90 day

8 provision is for any application you get, isn't it?

<)

MR. PARTAIN: Well it could be interpreted like that

10 but it certainly applies to death sentences.

"z

11 ~
'o"

CHAIRMAN SMITH: Well I still think we are making a

"-

@;i'" problem when we don't have any, and I may be thick. MR. PARTAIN: Well I thought I would point that out.

14

~
:;:;

If

the

committee

is

comfortable with

leaving

it

to

the

discretipn

<l

i

1:

15 .:> of the Board, well certainly that's all right with us, but

":':">

16

~ Q

I

just thought that

there

should be a

safeguard in there

z

17 <~ requiring the Board to act.

IS

CHAIRMAN SMITH: Let me just stop a minute. Did you

19 do some work on this?

20 ,
Ii

MR. HENRY: There is a statutory requirement that

i

21 :iii the Board act within 90 days after suspension by the Governor.

22

CHAIRMAN SMITH: Okay, well that statute would

23 , still be there until and unless it is changed by the General

24 Assembly.

25 i

MR. STERNE:

,
I
I
It would have to be changed to s~_b_s_t.:tutIr

---

PAGE 51

lr~ member of the Board for the Governor. -- - - - -- - -~--~

----~

-~~-

-

-

--~._~~.

I
I

I

I

2I

MR. PARTAIN: The sentence conunencing with "The

I

I

3 II qualification ", let t s see, that's line 4 on page 2. In I

I
II

i I

4 \1 the draft that I got in parentheses there was "(question need

I i

5 III' for last sentence)". That is no longer here but we agree

ii

6

1
Ii

with

that

and

we

do

question

the

need

for

this

sentence.

We

7 Ii don't feel that that is necessary and we think that some of 1\ :1 Ii

8 these things are spelled out or should be in the Constitution

9 and others are spelled out in law and we feel that that's

10 superfluous.

That, sir, is our feeling about this and I'll be

happy to answer any additional questions that the conunittee

may have.

CHAIRMAN SMITH: Well let me address a couple of

15 .t> things. The Constitution provides for seven year terms and the

Cl

16 .":'z";.J,. last sentence you refer to is a standard sentence

0

Z

<l

17 ." <Xl

MR. STERNE: We standardized it for each of these

18 three.

19

CHAIRMAN SMITH: -- for any of the Boards and it was

20 simply that from time to time you may want changes in your pay

21 or something else, and all of this instead of being graven in

22 stone in the Constitution is conunitted to the General Assembly.

23 Let me back up though, I thi~the most serious problem here is

24

'
i

the

first

one.

25

MR. PARTAIN: Judge, if I may conunent on what you I

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

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

PAGE 52
-------- ------------- ----------- -------1

just said. I omitted a very important point that you

!

reminded me of and that is the seven years. There is a

problem with that in that we have three members of the Board

serving presently whose terms expire at odd times, one May

the 5th, one February 16th, one January 16th.

Now I have a substitute that we propose to you. If

I may read it to you, it corrects that and puts all of the

expiration dates on the same date, that is the final day of

the year and it commences all terms on January 1, back like

10 it was before it got off the track. The last three appoint-
..,
z
11 ~ ments by Governor Carter were for odd expiration dates because o Q. ~
~_._. i12 : of the seven years. In other words, one was appointed on May 5th and instead of being appointed for the unexpired term,

14 ~ the member was appointed for seven years so the expiration

'<
'I:
15 ~.., date is out of kilter now. If I may -- this substitute is one

'"::> 16 ~ page, if I may read it.

cz,

<:

17 ~

CHAIRMAN SMITH: Let me ask the experts. Could not

18 that be handled by the legislature? I mean, could not the

19 legislature correct the imbalance, and I understand the

20 problem and it ought to be corrected, in that they ought to

21 have a firm date for the ending of terms certainly.

22

MR. STERNE: It manner and time of appointment

as provided by law It

24

CHAIRMAN SMITH: As you can detect from what you

25 have heard here this morning, we are trying to avoid putting a

---------~-------~-----_._.-._--------
bed sheet of details in the Constitution.

PAGE 53

MR. PARTAIN: Well this really doesn't do that but

it does correct this for all time, and we fe~l that it is

,, necessary when a Constitutional officer is appointed the
5 i Constitution should state for how long and he has tenure I'II

6 1\ subject to being removed for cause under the Constitution as

7

II
:1

it is now.

I
And we have a very simple method here of correctin,

I" I

CHAIRMAN SMITH: Well I'm satisfied it's simple,

10 but it's long.

"z

\1 ...
'o"

MR. PARTAIN: Well the whole thing, the whole

0..

@(".:. ~P ''"" Constitutional paragraph dealing with the Board is one page. CHAIRMAN SMITH: Well in the interest of time, why

14 .>..- don't you just deliver that to us and actually we're a little

<

1:

15 ~ bit putting the cart before the horse here. We haven't

\!)

'"::;l

16

'z"
'C"l

approved

this

draft

that

you're

looking

at,

but

I

wanted

to

:z

-

17 '"c<l hear from you while you were here.

18

Let me go back to what I think is a fundamental

19 question that Mr. Partain has raised and I'm not sure -- I

20 may defer back to you, Mr. Sterne, but the current Constitutionl,

21 it's in the middle of the section on the Board of Pardons and

22 Paroles, says "The State Board of Pardons and Paroles shall
23 have power to grant reprieves, pardons and paroles, to commute
24 penalties, remove disabilities imposed by law, and may remit
Li
25 any part of a sentence for any _offe~~:_~~~~_nst th~~at~~__._~~

PAGE 54
ff--
Ii Then there follows the exception about treason and impeachment
I:
2 1I and we never could figure out what treason against the state
!
3 was, but I think we went to the "as' provided by law" because

4 of this business about treason and impeachment and the 25

5 year terms, and all that. But actually, the grant of power

6 in the present Constitution does not make it at the control of

7 I the General Assembly, as I read it, but is an absolute grant

of power within these defined areas. And I think this is a

9 very real question here. The Board, under the present

10 Constitution, has complete power, but for the limitations

c,

z

9 ; ;11

f-
".o0....

stated

in

the

present

Constitution,

and we were

trying

to

avoid again all of these specifics that are listed in the

present Constitution and we may have just copped out by saying

14

;
f-

"as

provided by

law",

but

in

terms

of

philosophy,

this

~

:r

15 ~ committee has got to decide whether the proposed Constitutional:

o.:J

'";:,

16 .~... amendment will vest absolute authority in this Constitutional

o

z

-<

17 ~ Board or make it subject to the whims of the legislature from

18 time to time, and I think this is a very real issue that we've

19 got to straighten out.

20

JUDGE FINDLEY: Mr. Chairman, doesn't this run

21 Ii directly head-on into something that I thing will be coming ,I
22 'ii up in the next session, determinate sentences? This is I

23 think -- a serious movement is underway to have placed in the

24 law determinate sentences where it is now discretionary as

25 " you know in the courts. While the courts have discretion in

lL-

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

PAGE 55
1 ~iXi~~~--Say for bU~glary, --fr~m one to twenty. If they fix a
2 'I certain number of years, then the court will have very little

3 II leeway in it but the Board of Pardons and Paroles, even as now,

Ii

4 Ii irrespective of what the lower courts say, they fix their own ,I

5

I!
I'

rules

and

they

can

still

set

it

at

anything.

i1

I"I

ii 6 Ii

So is it not something that the Constitution should

Ii

7 ' address; that is, the system of sentencing, the conflict that

8 develops between the Pardons and Paroles Board and the court

9 systems. Courts are the ones that get the flack for people

10 not being sentenced long enough. You can sentence them but

"z

11

...
'o"

they

don't

serve.

All right, should this -- the rules and

"w-

12 : regulations there, should that not be addressed in the

~r~ t~\


Constitution, and this is an issue that is now coming up, I

14 ;... believe at the next session, and should we not address it in

'r4"

15 ~ this particular Article.

~)

:'>"

16 /Xl Z w

CHAIRMAN SMITH: Let me ask a question. In -- does

0z



17

a:
IXl

anybody

have

any

knowledge

of

this

committee

that

has

been

18 hearing the indeterminate sentence bill? Charlie, do you?

I

19

MR. TIDWELL: No, sir, I have not been privy to that. !

i

20
I:

CHAIRMAN SMITH: Well let me raise a question. suppo~, e

2li that the Constitution grants power to the Pardons and Paroles !

22 Board in an absolute sense. Then the General Assembly comes

23 I along and says everybody that commits rape must be sentenced

24 to a minimum of ten years and Judge Findley sentences a man to

25 I ten years. Then stopping right there, I would assume the

PAGE 56
r;oard of Pardons and parole~ C:~l~ c~~~t:~:~~:-'~~-------------i

2 II

JUDGE FINDLEY: Yes'; that's the way it is now, and

3 4

III
!II
il
II

that's

the way it would be. CHAIRMAN SMITH: Now if that bill

said that he

i
should

Ii

Ii

5 il be sentenced to ten years and under any circumstances must

ii

II
6 i serve five, then you've got a statutory provision that sets

I:

7 Ii a minimum actual service of five that would run into conflict
Ii
8 I"' with the absolute power granted to the Board.
,.

JUDGE FINDLEY: That's the point, yes, sir.

10

CHAIRMAN SMITH: I think that was Judge Findley's

Czl
11 ... point, and the grant of power here would override that .'o:">...
~ 12 ~ statutory provision if challenged in the courts. I am
~r~i sympathetic with what you say about punitive type legislation. I 14 .~... I think that personal events or personal knowledge of events 'x< 15 .:l can result in everybody getting whipped up to a state of Cl '::"> 16 .~... frenzy about a certain thing, and it can result in very quick az ..: 17 ~ legislation that might be overly punitive. And I think this

Ii; is a real problem for a Board such as the Board of Pardons

19 and Paroles. I think it's a real problem for those people

20 who have the job of operating our so-called rehabilitation 21 facilities. In other words, if one man is sentenced the day 22 before that law goes in and the next man is sentenced under a 23 more punitive law and they're serving in the same cell, you've 24 got one hell of a problem in terms of administering that

25 thing. So I'm real sympathetic, but I'm really grasping for a

PAGE 57

~ay I

to accomodate our aim of not spelling out everything that

I2 II you all do, we might as well plug it in a computer if you're

3 Ii going to do that and just punch the computer aId say what to
Ii :1 do with Johnnie Jones, but I am concerned about this

Constitutional conflict that Judge Findley raised.

MR. PARTAIN: We don't really consider it a

Constitutional conflict. The Board assumes that the sentences

of the court are correct, the trial was just and fair and
r- as far as with a rape case, I'm not here to pass on rape cases

10

CHAIRMAN SMITH: Let's make it automobile theft

I

"z

11 ~ and that'll make it less emotional.

o

<l.

(~~ ~ ~ P ~

MR. PARTAIN: Well even that, I'm not here to pass

~F ~ on any cases for the future, but the Board is very, very

14 ~ careful and very reluctant to commute or to release, even on 4 :r
15 ~ parole people who are convicted of serious crimes. The '::">
16 c~o Board's experience rate is better than 95% of people on
z
4
17 ~ parole committing new crimes while on parole. We also have

18 I some technical violations which is another 5%, sQwe're

19 actually about 90% successful, but 95% on commission of new

20 crimes. Where a life sentence is involved it's less than 1%

21 I of the lifer committing a new crime while on parole.

22

CHAIRMAN SMITH: I hope the newspapers are taking

23 all this down because they don't ever say that.

24

MR. PARTAIN: I do too, we need the truth to be

25 written. But we feel that an autonomous Board is in a better

PAGE 58

~
II

position

for

serving

the

statewide

rather

than

---'~--------,
a Judge, a

II
2 II Superior Court Judge in one locality, the great disparity of I,

3 Ii sentences -- now another problem that Judge Findley doesn't

j!

4

II
:1

bring up and

that is

the

courts

being

too

lenient.

We have

:1

5 !il that too.

II

6 il

CHAIRMAN SMITH: I don't believe they have accused

II
';

7 It Judge Findley of that yet.

!i

I,

8 I!II

MR. PARTAIN: But we have one area of the state whereiI

9 II a man, say for an automobile theft would be given a year's

10 probation and other areas where he would be given five to

~

zt'
11 ~ seven years. So when they get down to Reidsville and they o "w"
12 ~ have their bunks next to each other, they get to comparing

~ ~ .._. notes and they say, gee, I'ma first offender and I'm here

14 ~~ for stealing a car, what are you here for? Well the same
<
:J:
IS ~ thing. Are you a first offender? Well I got a year and you 13 :":>"
16 ~ got seven. The Board is in a better position to correct any
z -
17 ~ disparity, any great disparity of sentences, but it is very

18 I rare that we ever get into overthrowing a sentence of the
19 I court. There must be documentary evidence, cogent and
20 III, compelling reasons why the sentence was unjust, excessive or
II
21 IIIi something of that kind, and we consult with the Judge and

22 the district attorney --

:~ i!1

1

CHAIRMAN SMITH:

I think our conversation related to

I paro e rather than commutation.
I:

25 I:1i

JUDGE FINDLEY: Yes, sir. And t~~_~en=ence Re~i_e_w_----J

PAGE 59
I r;~nel --~~es- th:-leveling n~~~,-~he Superior Court Sentence
II 2 II Review Panel. The real conflict that exists now, and perhaps

J II we can do this hopefully in the new Constitution, it can be
4 Iiil taken care of, is that you have the power vested in the
5 II legislature distinctly to affix the sentencing method. This
!i
6 II will include determinate sentencing if they so desire, just
7 Ii as it was the jury that used to fix the sentence not many Ii II
8 years ago. We move around trying to find the right thing, but

9 irrespective of what the -- the General Assembly when it acts 10 the court is bound to stay within those limits, but irrespecti~e
.
then of what the General Assembly does, which is the voice

of the people statewide, the court then acts within that,

some maybe differently than others but they are balanced or

try to balance them up the line. Irrespective of what the

15 .:> General Assembly does, what the court does, the Board of a~,I: .:>
16 .:'".z. Pardons and Paroles then does its thing. And its thing is a-z: <l:
17 ''"" often the one where we have them back on the street again, as
18 they say, is not from the short sentence to begin with, but

19 it's from the policy established through rules they make, to 20 put them back out. I'm not saying this is not a good idea,

21 but if you're sentenced to ten years, under the present rule,

22 you get five. Well a Judge, when he's thinking of that,

..,~
--' he's liable to say you get twenty because I know you rearry

24 need to do ten. So you're going to serve ten unless they

25 parole you in the meantime. The actual time served is very

_~i

_

_

--.---J

PAGE 60
r:suallY related to--~he se~ten=:~~~~~--ar-~--:~~~~:dand it --I
II
2 III should be, I think, addressed in the Constitution. There

3 I should be a bridge between the Pardons and Paroles Board, the
I]
4 II courts and the legislature and someone should be making a 5 I!Ii final decision. In my judgment the legislature is the one
I
6 II that should be making the final decision since they are
7 !I they fix the ranges anyway and it should be conclusive. They
'I
8 11 should be bound by the Constitution in this respect. But now
:! 'I
9 ;IIi as I say, the conflict does exist and I believe it should be

10 resolved and with the determinate sentence law coming up, or

C)

z

11

...
'o"

bei~g considered,

whether

it's

passed at

this

session or

n.

w

~ 12 ~ somewhere down the line, obviously we're fixing to have some

~ri changes made. Obviously we should have some changes made.

14 ~
i;;

My concern is the same as everyone's, where should

-<

1:

15

~
C)

that

change

begin.

I believe it should be in this

~ '"

16 .~.. Constitutional Article. The way it is presently written, the

Q

:z

<

17 ~ legislature can finally say what the sentences will be and

18

II
Ii

how they will

be

determined and they can take

the

final

I,

iI

19

II
II

power,

leaving

a

lot

of

discretion

in

the

Pardons

and

Paroles

20 IIIi Board, which is absolutely essential, but they can finally

21 :1 say what the final sentence will be and then change it from

Ij

22

i
I

time to time as circumstances demand it.

So I would say that

23 I"i as written, it takes care of it.

24
MR. PARTAIN: Mr. Chairman, with all due respect to

25 I

j

u;, Judge Find. ley, he mentioned the f.act that o. ne---m---a-n---.w---a--s----s-e--n- t-e-n--c-e--d-!,

1 III t~o ten years, he gets out in five.

PAGE 61 That has nothing whatever

2 Ii to do with parole. That is a separate law that is administered
11
3 II by the Department of Offender Rehabilitation. The Parole

4 Ii Board does not even consider a man until he has served two-
II
5 II:i thirds of his sentence, two-thirds of the time he will serve.
:1
b [I It's one-third of the sentence, but due to the fact that there
ilII
7 is a statutory provision that a man gets a day t s good time for
:1
8 Ii every day he serves, that does mean that he gets out in five

9 :1 years on a ten year sentence, even when he's not paroled, and

10 it has nothing to do with parole. But the Parole Board is
"z
II ~ concerned only with him after he has served two-thirds of his
o
<>. w
@ ". . ~ 12 ~ sentence 66-2/3 -- I mean of the time he would serve. CHAIRMAN SMITH: Well in the ten year example, it

14 ;: would be three years and four months.

'<
J:

15 ..:.>,

MR. PARTAIN: It would be three years and four

:':">

16 '~oz-" months but he would get out anyway in five years.

17 ~

CHAIRMAN SMITH: But it's one-third of the sentence

18 the Judge gives him.

19

MR. PARTAIN: Right.

20

CHAIRMAN SMITH: And it ends up as two-thirds of

21 what the jailer gives him.

22

MR. PARTAIN: Right, of what he will actually serve.

23 So actually, we're talking about only 16-2/3% of his time

24
that the Board is concerned with at all, because the law
25
requires that he serve Dne-third of his sentence before becomin1
Ll-__

r PAGE 62 eligible, he gets out in 50%, -~-o- it-l-s--~-n-l;--t-~~~---~~~-2-/;~-~~~-l

2 Ii Board is operating on other than life sentences. Of course, 3 i'Il life sentences, you can't say a third of a life so we have a
11
4 il seven year minimum, but the actual release date, average for

it
5 Ii life sentences, is about fourteen years. That isnlt a true
i

6

'I
I'

average,

that

is

an

average

of

those who

are

released.

Some

Ii

11

7 I[ are never released. We've got them in Reidsville that have
I
Ii8 :1 been there for over thirty years and if you had a true average I

9 Ii,' it would probably be 25 or 30 years.

"

10

CHAIRMAN SMITH: Well I think everybody understands

z~

11

...
'o"

the

problem.

We'll have to work on it as we continue our

0-

u

@r~J2 ~ deliberations. Ms. Adams? MS. ADAMS: Is it a state law that a prisoner is

14

,
~

released

after

he

J
serves

50%

of

his

time,

so

automatically

<:

1:

15 .:> he only has to serve half of the time?

':J

'::">

Ih z!Xl

MR. PARTAIN: If he gets all of his good time, and

zC>

<:

17 of ,J>r' course most of them do and even if they lose it, they have

18 provisions for restoring it, and it's a very rare thing that

19 a man ever loses any good time permanently. So for all

20 practical purposes you crould say that when he is sentenced to

21 ten years by Judge Findley he gets out in five, even when the

22 Parole Board turns him down. It has nothing to do with parole.
!

23

CHAIRMAN SMITH: That, lIm sure, was instituted as

24 a procedural matter. In other words, if you will stay in here

25 and behave you're going to get a break.
L--

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

PAGE 63

r~----
1 II
II 2 i,i
I
3 I,

MS. ADAMS: Helps contr~-;-~-r:---inmates?--~~---I

CHAIRMAN SMITH: It's a penology institution.

I

MR. PARTAIN: The great flaw, as I see it, is it

',i,

:1

4

;i
,I

is given to the first offenders as well as the tenth offenders

II

I!

5 II the same good time. In other words, an habitual criminal, he

II

6 \i gets his good time just like a man that is there for the first
II II
7 Ii time. i'Ii

8 II

CHAIRMAN SMITH: Well I think our philosophy is

9 that those questions ought to be addressed by the General

10 Assembly and straightened out.

"z

11 t-.
'o"

JUDGE FINDLEY: The Constitution ought to allow it.

e.: 10-

w

P '"

CHAIRMAN SMITH: Are there any other questions for

Mr. Partain?

14 .:.~

While we are here, you had some trouble with the

':<r

15 .:> words "executive clemency", is the wording of the current
":':">

16 ~ Article more to your liking? Which is the one I read. oz

<

17 ~

MR. PARTAIN: Yes, sir. We -- in our substitute

18 we propose, we have it spelled out just what the Board is

19 empowered to do.

20

CHAIRMAN SMITH: Well is the current language --

21

MR. PARTAIN: Yes, sir.

22
_).:'l
!
24 II, , :1 !!
25 i
' 1L -

CHAIRMAN SMITH: Okay. MR. HILL: I have a copy of it. MR. PARTAIN: Thank you, sir. CHAIRMAN SMITH: Thank you very much Do we have
_

PAGE 64

other visitors who would like to speak to the committee on

anything that's on their hearts and minds?

3

(No response.)

If not, let's kind of go back and see what's on

5 the table. I think in terms of order, that we ought to go
I
I
() ! back to the recommendation from Judge Hill's committee. And

7 I believe in your packet is a written report. Was this in

8 everybody's?

9

MR. HILL: Yes.

10

CHAIRMAN SMITH: All right, it's a memo at the

l'l Z

11

i-
.'oQ"...

top

that

says

"To all members of the

committee

from Vickie

@~ ".:.:. i Greenberg", and there is a draft connected to it. There
~J-~ are four items there that were left unresolved at our last

~

14 .~.. full committee meeting. The first one relates to the subject

'<
J:

15 ..:.,. matter addressed by Mr. Caldwell this morning. The first

'"::>

16

~ Q

recommendation

is

that

the

Commissioner

of

Insurance

--

we

had

z

17 ~ agreed at the last meeting to change the name of that office

18 II to Commissioner of Insurance -- they went back and studied

19

IIii
II

again

the

question

as

to

whether

he

should

be

an

elected

20 I::i Constitutional officer, and the recommendation, as you see, is

~I i

21 that it be deleted as an elected Constitutional officer.

22

Do we have any additional discussion on that

23 I question from any member of the committee?

24

MS. ADAMS: I have a question about the title change.

25 , I'm beginning to wonder after hearing the information this

L I,~'_ .

..

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

morning whether or not Commissioner of Insurance

apt label for that position.

CHAIRMAN SMITH: Well some of the other subcommittee

members are here.

MR. HARROLD: You know, I think, in all due respect

to Johnny Caldwell, that we ought to share with the committee

our thinking on why first we suggested that it be an

8 appointed position rather than elected. The classic duties of i

I

9 , the Comptroller General as created: two hundred years ago have I I

10 been practically removed. That is, the handling of state

I

I

funds. The last vestiges under the law will change on

I

I

January 1, 1980, when the new Revenue Code comes into eXistence\,

House Bill 3.

I

His primary duty, at least in our judgment, by far

15 ~ his most important duty, is the regulation of the insurance '"::>
16 ~<1l industry, not only fire and casualty but life companies, to
z
17 ~ protect the people who pay the premiums that they will have
18 something there or their families will when they die. Rate-
19 making, workmens' comp., automobile assigned risk rates, it's
20 an extremely technical area and we think, all of us agree that
21 he does a great job, but we tried to look at it as if he was 22 not there. In my mind, I had his resignation in hand, now

the office is vacant, to take it away from dealing with any 24 personalities and deal with the office. All the insurance

25 L'; agents in the_ state are licensed by his office. Small loan

PAGE 66

rr--------

-- ---------------- ._- --- ----------------_.-

II

I II companies, the finance companies that you see running up and

2

II;I
i

down

the

streets

in

smaller

towns

that make

loans

up

to

3

i"l
II

$3,000

are

in his

jurisdiction.

Everything that he does in

'I

4

!I
II
ii

that

area

is

technical

in

nature

and

our

philosophy

or

thinking'

:i

5

I
Ii

was

that

in

order

to

get

the

type

of

technician

and

professiona!l

II

6 II to take that job, you had best not make him run for public

7

II
I'Ii

office.

And his best argument, which I am very sympathetic

8 II with, and most persuasive is that it is the right of the

11

9

il
I'

people

to

elect or

throw

out.

I agree with that, that's

10 something we ought to consider very carefully. But I think

Czl

@;;11

....
'o"

his

position,

or the office rather,

is unique in that it

Q.

w

doesn't get a lot of publicity. The people of Georgia are not

informed by the papers every day what they are doing. Now

14

,>..-

the

people

that

do

know

are

the

insurance

companies

and

:
finance!

'"

r

15

~
Cl

companies,

insurance agents.

And we kind of made an analogy

='">

16

~ zwo

somewhat

to

the

regulation

of

the

alcoholic

beverage

industry

17 ~ which is done by the Revenue Department. They would have a

18

I,
I'

natural

interest

of who

is

going

to

be

in

that

office,

and

so

19 we think that we ought to insulate it by making it an

appointive position.

If you will notice in the Atlanta phone book there

is a listing for Comptroller General under Georgia State

23 Government but there is a separate listing for Insurance

24 i Department, and it's the same number.

I:

25

IIIi
:i

L--~

The

o,_t__her

functions

that

he

has, such as being -.-,--.. ~._-------'-----

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

--f. -i-r.-e-----

PAGE 67

marshal has generally been usurped by federal regulations,

even though he has a rather large staff that approves new

buildings that are under construction.

i
Mobile home manufacturing standards are under his
I
area and of course they are interested in who has that positio~.

I

CHAIRMAN SMITH: That's under a federal umbrella

I

i

though.

I

MR. HARROLD: Yeah, that is too.

MS. ADAMS: I have no qualms about it being an

10 appointed position. I was just concerned about the title.

z~?

11

...
'o"

I

didn't know whether Commissioner of

Insurance was

going to

o.

w

~r~ ~

17~ '~" be any more satisfactory or helpful. CHAIRMAN SMITH: I think they played around with

14 .;.. a long title and decided it was too long. Is that correct,

~

1:

15

~ I.:J

Tom,

Commissioner

of

Insurance

and

Fire

Safety,

something

--

IX

::>

16

~ woz

and

they

just

felt

it

was

too

unwieldy.

17 :ii

MS. CROCKETT: If you look at the duties that he

18 has under him, also he has the greatest budget for insurance

19 as well as the largest number of positions. So if you

20 balance it, I guess the majority of his time and staff and

21 money goes for insurance.

22

MR. JACKSON: He also testified today that the

23
other functions relate to insurance, fire safety and even the

24
small loans relate to insurance.

=:5 ii

Ii

JUDGE FINDLEY: It's just that Comptroller looks

L

.~ _ _ . .

_

-'

PAGE 68
I~~f;~re~t~y o~--~~~-~:~lO~~---If y~u rem:~e -~~:~:--~~::---;--~~in~

2 'I Insurance Commissioner would cover i t fine. On the ballot it

3 I has a 200 year history and if it's not there, then --

4I

REPRESENTATIVE BUCK: Mr. Chairman, if we take the

5 Ii1'1, Insurance Commissioner out of the Constitution, then wouldn't
:1
Ii
6 Ii the question of name change be moot? II

7 II

JUDGE FINDLEY: Yes.

II

II

i
8 il

MR. HILL: That's a recommendation to the General

11
9 :i Assembly from this committee.

10

CHAIRMAN SMITH: Well let's assume, unless I have a

"z
11 ~ motion to change our recommended name, that we proceed to the o.Q...
~ ~ ~ ~ 12 ~ real guts of this recommendation which is to remove him from .._,. that list of elected Constitutional officers.

14 ~ I-

MR. WISEBRAM: Mr. Chairman, did the subcommittee

':<x:

15 ~ apply the same criteria in arriving at the decision that he

~ :;)
16 ~ would be removed as an elected Constitutional officer to the Q z <l
17 ~ other officers?

18

MR. HARROLD: I did.

19

MR. WISEBRAM: To the Commissioner of Labor.

20

MR. HARROLD: I made that motion too.

21

MR. WISEBRAM: Well why pick on one and not the

22 other?
23 iI
24 I:
25 !i 1:

MR. HARROLD: Well again, we're not trying to pick.

MR. WISEBRAM: Well why not take them all?

MR. HARROLD: I agree wi th you, I agree wi th you 1 00%

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

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

--_. _ - - - . _ _- _..

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

._ ..

~nd -voted that way in the subcommittee.

PAGE 69
Unfortunately, I was

2 II not able to prevail and I haven't -- my job was to look at

3 II his office and not the Labor Commissioner's office so I really
ii

4 11 haven't studied it and didn't have my arguments for it.

I'

5 Ii

MR. WISEBRAM: In other words, at first we talked

II

6 II about State School Superintendent, which I concurred in becausJ I'

7 he had a Board and they could go out and select that person.

I

8 II But now it seems that we've gotten into another area completely!.

II

I
!

9 II

CHAIRMAN SMITH: Somebody here who is on that

10 committee correct this, but my recollection of their thinking

Czl

11

...
'o.Q"...

was

that in the Labor Department,

you had,

in terms of

@J~12 ~ workmens' compensation and this kind of thing, a very direct relationship with the people. I'm just trying to recall what

J4 .>..- I heard from that subcommittee report. Tremendous amounts

~

"I:

15

.:"
<:I

of

money

that

are

going

directly

to

a

beneficiary

under

:':">

l6

~
az.

unemployment

insurance,

is what

I'm talking

about

as

opposed

<

17 :::; to workmens' comp, and that this was of importance to a

18 significant number of our citizens, particularly in a time

19 of recession. I'm not stating it too well but that's sort of

20 the drift I heard. And the other part of it was it was

21 hopeless to try to change it.

22

MR. HARROLD: I think that was the first one.

23

MS. CROCKETT: Something like that came from my

24 report.

25

MR. WISEBRAM: In other words, he's got more clout anp

r-

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

PAGE 70
--------1

II
I!

we're

afraid

to

handle

him.

2 II!I

CHAIRMAN SMITH: I suppose if the truth were known

3 iIlI that that's a fair statement of it.

II

4 II

MS. ADAMS: It seems to me it would be more

5 IIiiIi reasonable for the voters to have the same provisions for

6 Iii those three positions rather than selecting out one of them.

II

7 II It's going to be hard to explain that. You'd have to be making,

8 II the same justification over and over again. Why not just have
11
9 II a Commissioner of Agriculture and Labor and the Insurance

10 Commissioner be appointed?

'z"

11 ....
o<>:

MS. CROCKETT: It also has something to do with

n.

w

@ r l12 ~ disability. officers.

We need a certain number of Constitutional

< 14 .~... r

MS. ADAMS: They could still be Constitutional

15

.:>
"'::">

officers,

can't

they,

and

be

appointed?

16 ~ Q

CHAIRMAN SMITH: No.

z

-

17 ~

MS. ADAMS: They have to be elected?

18 II

CHAIRMAN SMITH: Well let me say this, I think we

II

19 Ii all have trouble all the way through this with trying to take

20 II a posture where we do what we think is neatest and best and

21

iIIl
II,i

let

somebody

else

worry

about

the

political

decisions.

The

'i

22 i'l other one is for us to worry about them and we have ended up

i:

'l' ,

--' Ii somewhere in between, if you wnat to know the truth, and that

24
may be the best that human nature is capable of.

25

MS. CROCKETT: There was one other difference when

n------~~~---

PAGE 71 -----,

I II you look at Labor and the Comptroller General, and that was I:1!
2 I,I the issue of technicality or expertise. Whereas both position
:1

11
3 Ii serve the people directly, I think we thought it would require I

4 II less expertise if you compared them, on the part of the

I

II

5

il il

Commissioner of Labor

than it would for

someone who

knew and

i
i
I

Ii I

I

/) : could understand the regulations of insurance. That was somethjing

!i

I

else we considered when we looked at one versus the other.

i

I

You've got an opportunity to get an expert in the Insurance

Commissioner's position whereas you would not necessarily

10 need that kind of expert in the Commissioner of Labor slot
z<.:>
because many of the laws and.the money comes from CETA and

the Federal Department of Labor. But that position also

requires being accessible to the people because he aids most

>- of the people.

'<

1:

15 .tl

CHAIRMAN SMITH: Well if I may assume that the

<.:>

:'">

16

!Xl
Z...

recommendation

of

the

subcommittee

is

tantamount

to

a

motion,

0z

17 '"!Xl why don't we go on and decide on the recommendation number

18 !I one there. I get lost on the parliamentary procedure, but
il
19 II does the recommendation require a second, will somebody tell
!'
20 i me?

21

MRS. HOLMES: I'll second it and we'll make it

22 legal whether we need it or not.

23

CHAIRMAN SMITH: Thank you, that removes the

I

i

24

I
problem. Okay. Any further discussion on recommendation numbe~

25 i one of that subcommittee?

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

PAGE 72

r~

Ii

(No response.)

II

II

2 ":1

CHAIRMAN SMITH: All right, all those in favor of

[I

3

II
I!

the recommendation,

that is that the office of Commissioner

4

I'
:I:i

of

Insurance,

recommended name,

be

removed as

a

Constitutional!

5 officer, raise your hand.

Ii

ii
6 'i

(Votes were cast with raised hands.)

!j

,: ~

7 I'\I

CHAIRMAN SMITH: Opposed?

8 'IIi

(Votes were cast with raised hands.)

Ii

Ii'I
9

MR. HILL: Nine yes and seven no .

1

10

CHAIRMAN SMITH: All right, the next recommendation ~-

C1

Z

11 l-

MR. STERNE: How did that vote come out?

o'"

<l.

@;~'"

CHAIRMAN SMITH:

It carried nine to seven.

Nine to seven, I beg your pardon. With great restraint, I am not

14 >- voting unless there is a tie.

l-

V>

:I:

15 ~

Okay. recommendation number two relates to the

\9

'"::>

16

~ 'Q"

placement

of

district

attorneys,

and

I

think

you

should

look

7:

<

]7 ~ at recommendation number four and also the last sentence on

18 that page when you consider number two. To sum up, it is

19 recommended that the district attorneys be placed in the

20 Executive Article and not in the Judicial Article, with the

21 provision number four that the statement about immunity be

22 retained in the Constitution and with the admittedly informal

23 I recommendation to the General Assembly that that office along

24 ! with that of Attorney General be funded through the judicial

25 budget.

,
~ ---~~~---~~~~--~------ ~~-~----

PAGE 73
~----- MR. SMITH~--I I m l~:~,-I~m not sure where you ~

CHAIRMAN SMITH: In your packet, okay? Recommenda- i

tion number two is that the district attorneys, who are

I

elected officers, be placed squarely in the Executive Article,

which is Article Number V.

SENATOR GILLIS: By that you mean they would not be

elected?

CHAIRMAN SMITH: No, they would be elected. They

would do just like they do, but instead of being over here

10 in the Judicial Article, it was the sense of the committee,

zC.l

11

l-
oe<

again

I'm being bold --

that they were

purely Executive

"-

12

~
u

officers.

There is nothing judicial about a prosecuting

(~~r!~ attorney. He's supposed to be fair but there is absolutely 14 I- no logic in a district attorney being classified as a judge.

':"r

15 .:> He is one of the adversaries before a judge. I'm sort of

I.!l

e<

::>

16 .~.. doing this in shorthand, but

oz

17 ~

REPRESENTATIVE BUCK: Judge, I was just going to say

18 it seemed like when we heard from the district attorneys when

19 Billy Lee came, their two primary concerns were number one,

20 their immunity, degree of immunity and number two, their

21 , funding. And I think with this recommendation, this resolves

any problems that they've got.

23

CHAIRMAN SMITH: Well I think that's what the

I
24 I subcommittee was addressing. Again, on the question of

25

i

L :, im-mu

n

it

y,
~

I

think the nature of ~---.~~

the

job rather

than

where

they

I
J

PAGE 74
---_._._----_._--_._---~-~------~-~,
happen to be in any state Constitution is going to determine

2 that in a court test. But it might be another argument, is

3 about all that they could say, but if you repeat the immunity

4 Ii item in the proposed draft, it would give them the same benefit,
5 I:: in terms of legal argument, as they now have.

6 !i

Is that some kind of motion, Tom?

II

7 Ii

REPRESENTATIVE BUCK: Well I make a motion we

8

I:
I

accept

the

recommendation

of

the

subcommittee

relative

to

11

II

9 II item two on this memo.

10

CHAIRMAN SMITH: Does that include four and the

~ z

11 ic=o last thing, as it relates to district attorneys?

o.".".

~ 12 ~

REPRESENTATIVE BUCK: Yes.

~r!

JUDGE FINDLEY: Could I address that? The district

14 ;... attorneys I believe want to remain under the Judicial Article,

'<

1:

15

.:>
~,

and while

they

are

not,

as

Judge

Smith has

said,

they

are

:':">

16

~...
o

not

judges,

that's

true,

but

neither

are

lawyers.

They are

Z

<

17 ~ an adversary in the court room, their duties partake, it's

18 II hard to tell them they're not doing judicial work is what I'm

19

II
II

saying,

work

with

them

all

the

time.

20

'"II,
I'I

The other thing is that the judges and the district

Ii

21

I,II
I'

attorneys,

most of

your --

at

least one meeting

a

year

is

'"I

22

'I
"!,Ii

held

jointly,

part

of

it,

so

the

work

closely

inter-relates.

I

23 A good example again is this determinate sentencing thing.

24 The district attorneys' attitude on that and the judge's

i

I

2) Ii attitude on that, they may differ, but they'll both be very muc~

iL_

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

r PAGE 75
I concerned with it, not that the executive~~~o-u-~dn:t be c~~~~;~1

2 I with it, but they will be very much concerned with how this \
3 Ii would be. Plea bargaining or plea negotiation which always !
il cam~ 4 raises some sort of a question mark there. but really that

5 I.i. in in 1870 in the Constitution. It I s not brand new by any
6 IIII stretch of the imagination. So the district attorneys and
II
7 IIIII the judges work very closely in this area, as do the defense
8 IIIi counsels. I am addressing now really the criminal field
9 I:I1Ii rather than the civil, because I don't think it makes that

10 much difference.

"z
11 I-
'o"
<>. w

But the district attorneys, by the very nature of

~F~ ~~

12 : their roles, function their entire lives in the Judicial arena. They are in that courthouse every day or one of six in our

14

~
I-

circuit,

almost

every

day

of

their

lives.

They are rarely

'<

J:

15

.:,
"'::">

doing

any

executive

functions

as

such.

They are prosecuting

16

~ Q

and

they

are

for

the

state,

but

they

are

still

working

in

the

z

<

17 :ii judicial environment. Almost all of their existence is that

18 way.

19

So they desire -- the ones that I have heard from

20 anyway -- desire to remain in the judicial article and I respech
i
21 their desires, and again working with them as I do, I have a

22 hard time seeing them anywhere else regardless of what we call

23 I it, a rose is a rose is a rose. Not many of them are roses, but

II

24

.,,I
,II;

in

any

event,

I

believe

they

should

remain

in the Judicial

!
I

:-'5

II
I~I rtl.c 1=~

~___________________

J

PAGE 76

MR. GARRETT: I think Georgia is the only state

CHAIRMAN SMITH: Any further discussion?

MS. GREENBERG: The district attorneys are, in the

major portion of the states, in the Judicial Article. The

Attorney General is in the Executive Article in the majority

10 of the states, except one state and Georgia has the

11

"z
I-

Attorney General

in

both Articles.

o0<

a.

w

12 ~

JUDGE FINDLEY: That's the way I had understood it,

~J~ ~~ the district attorneys are in the Judicial, the Attorney

14 ; General almost exclusively is in the Executive.

I-

'<

1:

15 .:>

MR. HARROLD: Judge, I think if you would ask the

"0<
::>

16 .~.... Georgia Trial Lawyers' Association, the further we could get

Q

Z

17 ~ the DA's apart from the Judges, the more we would like it.

18

JUDGE FINDLEY: They're way apart.

Ii

19 II

MR. GARRETT: I would second Mr. Buck's motion.

II

20 II

CHAIRMAN SMITH: Okay. And that motion is to

21

II
if

approve

the

recommendation

of

the

subcommittee

as

to

all

three

i;

ii

22 IIII particulars here.

"

23

MR. HILL: Now this draft you have in front of you

24 does have the DA's in it as well as the provision about

25 immunity. I suppose you are approving this draft.

PAGE 77
I ~--------- CHAIRMAN ~-~;TH:--~el~-w:.it a minute, let's don It go

2 I that far because we need to line by line it as to language.
I 3 I For example#.the results of the last recommendation in regard
4 Ii to the Commissioner of Insurance will impact the disability

5 III provision, and when we get to that we're going to have to
0' IIII substitute another officer, in my opinion, to have enough

7 bodies, "perhaps the Speaker of the House or someone like that.

8

Okay, any further discussion on the motion before

9 II us?

10

(No response.)

"z
11 ... 0: o .Q....
12 ~
@@ l~:''~

All those in favor, please raise your hands. (Votes were cast with raised hands.)
All opposed?

...

(Votes were cast with raised hands.)

'<"l
:r

15 ~
"0:

CHAIRMAN SMITH: 13 to 2 is what the chair counts.

:>

16 '~" All right. Recommendation number three from the subcommittee

z

<l

17 ~ after hours of discussion since we commenced in August, is

18 II what to do with the Attorney General. The recommendation is

19 II to leave parts of him in the Judicial Article and part in the
II 20 !I Executive, which is essentially where he now is. Again, I

21

il1,1
refer you down

to

the

provisions

on

immunity and

funding

that

22 i would be applicable to Attorney General the same as the distric~
ii 23 i attorneys.

24

Any discussion on that recommendation?

25

MR. GARRETT: I move it.

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

If

- - - -----~--------------------
MR. HARROLD: Second.

PACE 78
-------,

2

CHAIRMAN SMITH: All right, there is a motion and

3 il a second that the recommendation number three be incorporated

4 III' in our proposal.

5 II

MS. ADAMS: Why would it not be considered just part i

6

Ii
II

of

the Executive Branch?

7 III,

CHAIRMAN SMITH: Well I think to some people he is

8 and to some people he's not and there doesn't seem to be any

9 happy resolution of it. I think this is a practical result.

10 They even looked at putting him in a separate Article all

"z

11

t-
...oO!
0-

by himself

in the

subcommittee.

I agree with you it sort of

~ 12 ~ offends my sense of neatness, but nonetheless that is the

~r~ recommendation.

l 14 t::;:

MR. JACKSON: Actually, all we're doing is voting on

::t

15

.:>
"O!

Article

V with

a

recommendation

to

the

Article

VI

committee.

:>

16 ~ Q

CHAIRMAN SMITH: That's true, we cannot bind the

z

<{

17 :ii Judicial

18 Ii

MR. HILL: Well now our understanding with respect

19 I', to the Education -- change in the Education Article and with I,
20 this one, is if you would recommend that the DA's be deleted

21 from Article VI, that will automatically happen and it will

be a part of the change in Article V to be voted on this time. 23 If the people approve it, Article VI will automatically be

24 'i changed to delete the DA' s from Article VI and to make whateverl
I
I
25 ;1 changes in the Attorney General you would make. So, I mean it i I,

PAGE 79

i~1.------~ . .

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

1 II ~s your ec~s~on, it will be made right now.

I

2 II

MR. JACKSON: But they will later get a

I

II

I

il
3 'I

MR. HILL: They'll have another shot at it.

I i

II
4 II

MR. JACKSON: --another shot at it.

I

!I

5 I:

CHAIRMAN SMITH: In fact, they are already ahead of

us in that regard, aren't they, don't they have a draft

MR. HILL: I wouldn't say that. They've been workin~

for two years.

:i

9 II

CHAIRMAN SMITH: I worked on a draft on that three

I,

10 years ago.

'z"
11 f-
olY.
.".-,
('~~)r12~~

MR. HILL: They're working on that same draft. JUDGE FINDLEY: That's the judiciary. CHAIRMAN SMITH: All right, any further discussion

14

)0-
o n f-
<r

the

motion

relating

to

the

Attorney

General?

15 ~

MRS. HOLMES: I hate to ask it, but could you please

'"IX
:>

16 .~., say that again, Mel, I kind of lost you

a

] 7 :Zi:

MR. HILL: If you should approve this change to

]8 move the DA's over from Article VI and put them in Article V,

19 if this committee should decide that's what you should do,

20 well then the amendment to Article V will be drafted so as to

21 include the District Attorneys and there will be a provision

22 that says if this is approved, if Article V is approved with

23 the DA's in it, all references to district attorneys in

24 Article VI will be removed.

25 L.

MRS. HOLME._ S: So that will be an accompanying

PAGE 80

MR. HILL: Yes, that's right.

2

MRS. HOLMES: I mean it will go on the ballot as

3 one?

4

MR. HILL: As one, yes.

5

CHAIRMAN SMITH: To anticipate further, if the

current committee on the Judicial Article comes up with a

'7
I

proposal that they stay there, then the Select Committee and

8 the General Assembly will have the ultimate duty of deciding

9 as between the two committee reports.

10

MR. HILL: Except that Article VI will not be done

z"

11

t-
oct:

until

1981

so

that won't happen

for

two years.

w"-

~ 12 ~

MRS. HOLMES: You hope '81.

~-'_.~

CHAIRMAN SMITH: Any further discussion on

14

>-
t-

recommendation

number

three?

Vickie?

o:;

'I:

15 ...!,l

MS. GREENBERG: I'd just like to mention that the

'~" 16 ~ draft you have in front of you has all references to district '
Cl Z
17 ~'" attorney and Attorney General that are in Article VI, they

18 are now in Article V in this draft, so that everything is

19 covered in this draft.

20

CHAIRMAN SMITH: Is there any further discussion or

21 explanation?

MR. JACKSON: I've got a question. This requirement

that the Attorney General be a member of the bar for seven 24 years, is that already in the Constitution or is that new 25 language?

~---~----
j I'

MR. HILL:

PAGE 81
- - - - - - - - -- --~-----.-------~--
That's already in the Constitution, it~

2 over in another section of Article VI.

3

MR. JACKSON: Would this language be identical in

4 both places?

5

MR. HILL: We're not -- I didn't think we were going

6 through the language just yet.

7

MR. JACKSON: Okay.

8

MR. HILL: It's just the concept being approved firsJ.

I

9

CHAIRMAN SMITH: Then we'll work on the language.

10 We are going to have to conform this language to what we do.

z~?

11 ~

Okay, any further question or discussion on that

o.,.-.

(,,~,~<~~~;);~V}~1~2

~~
I

motion

number

three? (No response.)

14 ;

CHAIRMAN SMITH: All right, all those in favor, pleas~

'4

I

15 ~ raise your hands. ~) <X :>

16 ~

(Votes were cast with raised hands.)

CzI

.<

17 ~

CHAIRMAN SMITH: Opposed?

18 'I

(Votes were cast with raised hands.)

19

II
II

i

CHAIRMAN SMITH: All right, now --

I'

20 Ii

DR. GIBSON: What was the vote on that, Judge?

il

21 !I
:1

CHAIRMAN SMITH: 15 to 1.

I11i

22 il

MR. TIDWELL: That will help us in the record, Judge,

23 if you give the count.

24

CHAIRMAN SMITH: Oh, okay. Now, I think in terms of

25 !i my memory that Ms. Adams wanted to make a motion to reconsider

PAGE 82
i 1 i the Highway Board, the elimination of the Highway Board as
a Constitutional Board.

:I
4 ! things.

MR. HILL: Could I conclude this, I have two other

5

CHAIRMAN SMITH: Excuse me, Mel says I left something

6 lout.

MR. HILL: There are two other things that we need

8 to bring to your attention from Judge Hill~ committee.

9 Number one was, we had a discussion earlier in this full

10 committee on the provision on fees and perquisites of other

"z

11

l-
oe,:.:

elected executive officers

and we,

you know,

taked about

that

~ 12 ~'" for some time and the recommendation of this committee was

~ri that that provision really should apply more broadly, it shoul~

14

~
I-

not

necessarily

be

limited

to

elected

executive

officers

and

'r<

15 .:> they recommended that it go into Article I. So you kicked it

"""::>

16 '~" over to Article I. Article I looked at it and they were
oz
17 ~ unwilling to include that in their provision and so it was

18 sent back and Judge Hill's committee looked at it once again

19 and on reconsideration felt that the issue should be

20 looked at and studied in more detail by the General Assembly

21 and dealt with appropriately by statute and still kept out

22 of their proposed draft of Article V. So that's where it is

and unless -- the committee has agreed thus far to delete it

24 ' but i think it was with the understanding that some other

25 iii committee was going to have it in their proposal. So I'm not

~

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

PAGE 83

II sure if you waut to -- you know, the recommendation of the
2 I, subcommittee is that it be left out with a recommendation to

3 the General Assembly that it study it further and that it

be -- this whole issue of the compensation of executive officerr

be dealt with appropriately by statute.

i

CHAIRMAN SMITH: Well then I assume that you want

this committee to act on that proposal.

MR. HILL: Yes.

CHAIRMAN SMITH: Did I hear you say that the other

committee had refused to take it up in the Bill of Rights?

I

MR. HILL: They decided that it was too broad

I
i
they!

i I
basically did not want to put it in the Bill of Rights. They

felt that they would be doing something they did not understandlI

i
the ramifications of and they basically just decided not to

address the issue.

CHAIRMAN SMITH: Charlie, do you see any problems?

Suppose this thing falls through the crack and it's not

18,
III,

addressed

by

either

committee,

then

it

is

left

to

the

General

19 IitI Assembly.

I
What we're talking about here was really the conflict

II

20

II
II

of

interest,

the

double

dealing,

double

~y matter.

And I

21

I
I

think

we

had

some

frustration

in

trying

to

work

with

that

I,

22

\1
ii

language

and

apparently

they

did

too,

because

everything we

put:

23 down that made sense meant that a fellow couldntt cut any timbe~

ii

i

24 il

on his land if he happened to be one of these officers or

25i similar problems. You see any problem if it is just left to

,~I

~

I'
I!Ii the General Assembly?

PAGE 84

2 Ii

MR. TIDWELL: No, because I think they have the

.3 I! latitude to do that. Understanding that if you leave it out
II
4 iIII' there is not anything until the General Assembly perceives it
II
Ii
5 !i to be a problem and then does something. But if you leave it ::
6 i out, they certainly can address that problem if it comes to II
7 II be a problem. As I understand it, everybody had a hard time
II
8 ii understanding what that means, so maybe it's a good proposal
j!
9 I,II to take it out.

10

CHAIRMAN SMITH: Well it's really something that a

Czl

11

.... oc<

committee

of

the

General Assembly ought to

devote time

to

"-

~

~ 12 ~ exclusively and come up with some meaningful language. We

~r~ have to know what a perquisite is before we can tackle it.

.'.4 >..I.-.

Let me Just ask for a motion to accept that

':<r

15 .:> recommendation or a second from somebody because that is a

"c<
:>

16 ~ recommendation.

Cl

Z

~

17 ~

MR. GARRETT: I'll second it.

18

CHAIRMAN SMITH: Any further discussion on it?

19

(No response.)

20

dlAIRMAN SMITH: All those in favor of that

21 recommendation, please raise your hands. :i II

22 \1

(Votes were cast with raised hands.)

Ii

CHAIRMAN SMITH: Opposed?

24 IIII
il
'II,
25 I,
I,

(No response.)
CHAIRMAN SMITH: The vote is 16 yo nothing.
~--' ------------------

r------- PAGE 85

1

MR. HILL: Okay, and the last thing is, for your

2 I information, the Committee on Education was called together

3 I earlier than it expected to by virtue of the recommendation
I
4 it by this committee that the State School Superintendent be
II i
5 i!,i deleted, and that committee met, has had two full committee
b ii,l meetings and one subcommittee meeting, the outcome of which

7 I,II is the proposal to concur with the recommendation of this Ii
8 1'1 committee that the State School Superintendent be appointed,
9 I[Ii but appointed by the Board of Education with confirmation by

10 the Senate. They made that one change. I think in this

"z

11

l-
...o0:
a.

committee

the

recommendation to

them was

that the

person be

@ r i12 ~ appointed by the Governor -- appointed by the Board, period. So under the proposed draft -- and there is a copy of this,

-

! 14 1;; the last thing you have in Vickie's memo, is the new language



J:

15

.:,
"0:

that

that

committee

wants

to

propose

which

will

be

an

::>

16

~ 'c".

addendum,

a

complementary

amendment

to

Article

VIII

that

will

z



17 :i: accompany Article V, so that the Education Article will be

18 .
changed to reflect this deletion of the State School

19 Superintendent.

20

CHAIRMAN SMITH: Well the only change from what we

21 informally recommended to them is the confirmation by the

)1
Senate thing.

MR. HILL: That's right and it's just a report back

24
about what they did.

2."
LL .

.. . CHAIRMAN SM.. ITH:

Well I think we shipped that over
---------------

PAGE

fl
!

there with the

understanding

that the composition of

the

I

2 I Board was a matter within their jurisdiction. We made a

I

3

i
I

recommendation

I

believe

for

fifteen

members?

I

4

,I II

MR. HILL: Yes. And they debated that question

II

5 about the composition of the Board and decided to leave that

II
6 I, membership as is with the, with further study as to whether
Ii

Ii
7 Ii the Board members should be elected rather than appointed
,"i

8 with presentation to the people in '82.

ii

9

!I
!i

CHAIRMAN SMITH: Well all I'm saying is I think we

i

10 felt that was their question to deal with and we were merely

II I- giving them the benefit of our advice. 'o"

"w-

~ 12 ~

MR. GARRETT: I might add that this does not do what

~Ji we were trying to do, and that is make this consistent with

14 ; what the Board of Regents does with the Chancellor.

l-

V>

-<

:I:

15

MR. HILL: Well they had thought about increasing

C)

0:

::>

16

~
w

the

size.

Czl

17 :::i

MR. GARRETT: I don't mean size. The Board of

18 Regents can elect a Chancellor without the advice of the Senate

19 or anybody. By adding the Senate in here, you're making

20 them inconsistent.

21 ,

MR. HILL: Well there was a reason though. The

Ii

22 :\ committee really struggled with whether they should require

election of the Board members. There didn't seem to be any

political accountability and they felt here in Education they

-, ~
d

I

really did

need

some

accountability and

that's

why

they had

the:

il

_

---_._~._----~_._-------_.-
~~Vi;e of the Senate.

---_.

PAGE 87

2i

CHAIRMAN SMITH: In other words, this was a

Ii
3 IIIi compromise between straight appointment and popular election?

"

4 II

MR. HILL: Yes, that's right.

il

5 il

CHAIRMAN SMITH: You know, we discussed how

II

6 IilI difficult it would be to run statewide races for the State

7 il"I' Board of Education, and this was a compromise between absolute

J!

8

II
,I

appointment.

Ii

9 Ii il

All right, now we're back to Ms. Adams' motion that

10 we reconsider

MR. JACKSON: Could I just ask a question before

we reconsider, Mr. Chairman? Are there other Boards that are

also going to be reconsidered or is this the only one?

CHAIRMAN SMITH: I understand Mr. Wood has a

proposal on guess what.

MR. TIDWELL: Before you leave that question, is

the effect of what was done here is that the language that

18 you have in this draft is approved by this committee?

19

CHAIRMAN SMITH: You mean that last thing?

20

MR. TIDWELL: Yes.

21

CHAIRMAN SMITH: We don't have any jurisdiction over i

22 it, is our feeling, and they are simply reporting back to us.

In other words, we voted to eliminate the State School 24 Superintendent as an elected Constitutional officer. The

25 ii composition of the Board is purely in the Education Article.

~

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

rr
II 1 I, II
2 I' tendent.

PAGE 88 MR. TIDWELL: I'm talking about the School SuperinYou will have to have some language in your proposal

3 I, to do what you want to do. What I'm trying to find out is this! I' I:
4 II statement that I have that says Article VIII Education and has il
i!
5 i" it struck through at the top the present language and then the I

6

I, II

underline~ is

the

effect of

your

action

that

you

have

just

I,

7 III' adopted that language?

I!

I'

8

CHAIRMAN SMITH: If we have the power to, I'm willing

9 to do it.

10

MR. TIDWELL: Well you won't do what you want to do

Czl

11

...
'o"

unless

you do

it.

You would use the same procedure that Mel

"w'"

~ 12 ~ just outlined for the DA's.

~r!

CHAIRMAN SMITH: Okay.

14

~
....

MR. TIDWELL: I think the committee needs to know

'<

J:

15 something about that language --

Cl

:'>"

16 ~ Q

CHAIRMAN SMITH: You mean the other committee needs

z

<l

17 ~ to know?

18 II

MR. TIDWELL: No, sir, this committee if you have

'I 19 II just adopted it.

I'

20 II

MR. HILL: Well the other committee adopted this

21 Ii language.

22 I

CHAIRMAN SMITH: Yeah, that's their proposal.

23

MR. TIDWELL: That they wanted you to adopt to do

24 what you want to do.

25

,
"

I,

I" : '-'-

MR. HILL: Right, it's a recommendation back to this -_.-_- ----~----'---- - - - - - - - - - - ' - - - - --

PAGE 89

~ommittee.

II

2 Ii

MR. TIDWELL:

l I I
I confuse it enough, I understand, but i

3

II
II

I

think there's some right important implications in some of

I,
!

I,

4 IIIi this language here that you really need to know what they're

Ii

5 !I doing.

II

6 Ii

CHAIRMAN SMITH: All right, look at it again as

7 I1I though it's going to be our recommendation as a practical

II
8 II matter.
Ii 9 II

Look at that language. MR. TIDWELL: The point that I'm making is where

10 it says that the powers and duties of the State School
Czl
11 ... Superintendent will be as provided by the Board of Education.
o0::
"-
12 ~"' The implications of that is that that will be the exclusive
~@ ".,-'~ source of what he is told to do and the General Assembly can

14 .>.-. never tell him to do anything else. And I'm not speaking

'<

1:

IS ~ for or against that, but I think you need to understand that.

Cl

0::

::>

16

~ "C'l

It's

the

same

thing

as

the

Pardons

and

Paroles

Board.

The

Z

<

17 ~ General Assembly can't mess with them. If you adopt this

1~ II language the General Assembly can't pass a bill saying the 'I

19 III' State School Superintendent will report to the Governor the 20 II number of ten year old kids in the school system.
!I

21 I'!!

CHAIRMAN SMITH: Unless the State Board required it.

,i

.,

22

II
"

MR. TIDWELL: Well it's unconstitutional for them to

I

23 !I say that when they pass a law. I think the court will look at

24 this if this language is adopted, that it is the exclusive

25 : source of his authority and --

l_L...--

_

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

I ----_--1

PAGE 90

Ii

II

MR. HILL: That was intentional. The committee

2 ii definitely addressed that issue and it was intentional.

I!

3 I!Ii

MR. TIDWELL: Right, but I think this committee

1

II

4 II needs to know that.

il

'I

5 II

MRS. HOLMES:

Why did they think that?

r!

6 :"i

MR. HILL: Well they felt that to the extent possible,

II''!

7 II!Ii' the School Superintendent should be insulated from politics

8 ,'II" and from control of the General Assembly and that his boss

9 I"I or her boss is the Board of Education and that's who that I'I'

10 person should look to for their direction and, you know,

guidance. The fact is the General Assembly has the authority

to prescribe the powers and duties of the members of the

Board, and that's where the General Assembly can exercise its,

you know, authority over the members of the Board itself. But

15 ~ with respect to the School Superintendent, the committee on

16

'":>
~co

Education

really

felt

that

the

General

Assembly

should

not

be

z
17 ~ the one to tell that person what his job is.

18 Ii

MRS. HOLMES: But of course they could go one step

19 III further and',say the members will be elected. I see great

--'0 II d1'. ff 1..CUlty'1.n remov1..ng t he Super1..ntendent f rom an e 1ected II
21 II position and then also removing him or her from any accountIi
22 !\ ability except to a Board. I'm just trying to express the

23 iIl: difficulty that I think I am going to be hearing and a lot

I'

24

Ii
11

of

us

are

going

to

be

hearing

if

you

remove

the

person

quite

'Ii

25 i a 'I distance from the people. And I think it's quite a different

lL- ~

,.__~~ . ,. ~ . .

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

PAGE 91

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

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

r'-~~ing than the Board of Regents because I think most people
2 ,I look on the Board of Regents as something to do with those

i
i

3 !I universities out there, but their schools are theirs, their

Ii

I

I' schools are right next door to them, and very important to the~I.

4 il

I

I

5 :1!!

CHAIRMAN SMITH: Well I think this all goes back te I

II

6

Ii
II

what

we

discussed

in

the

elimination of

the

office,

is

whether

11

il

7 I' you have an elected Board or an elected State School
II
II Superintendent, and the impracticality of having an elected
g ;1

9

II
I'

Board.

And in view of all that, this committee decided that

II

10 the benefits of an app~inted School Superintendent were

C)
11 Z greater than having him elected, and voted to eliminate him.
'o"
w"-
~g~)r , Now the selection of the members of the Board is ..:.:. I.: still a subject matter for the Education Article and

14 ~ presently they are appointed by the Governor and confirmed by
:;;

<: r
IS ~ the Senate, are they not?

C)

:'>"

16 'Z"

MR. HILL: Yes. And there is a specific charge to

w

CI

Z

17

<l:
'"""

that

committee

to

continue

addressing

the

political

aCGount-

18 ability issue for presentation to the people in '82. Now the

19 fact is that the present incumbent was elected, the present

20 incumbent School Superintendent was elected and the job that

21 he has is preserved until his term ends and there will be no

II appointment of a new School Superintendent until 1982, and so

23 if this committee in its work should decide to have the Board

24 !I members elected or provide some other method of accountability !I

25 !: to protect some of the things you're concerned about, then the

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

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

PAGE 92

II people would be voting in '82 for that change. The board

II

2

II
Iil'

struggled with

this

a

long

time

and

they

felt

that you were

3 squeezing them. They kind of would have liked to have had
\1

4 II this question to take care of all at once in '82, but they did II

:1
5 Ii the best they could to come up with some accountability with "~ !

6

Ii
!'I,

confirmation by the Senate of

the person appointed,

and they

I",

7 I,I' are going to continue to work and maybe come up with some more.

IIIi

8 II

MR. TIDWELL: Judge, did you -- I didn't mean to

I'

9 I'II confuse either you or the committee on why you have to adopt

10 some language that makes the School Superintendent appointed,

\:)

z

11

~.
.'on"...

because

in the present Article VIII,

he's

an elected,

and

@;i just deleting him from your Article doesn't do anything. leaves him intact. Do you see what I mean?

It

14 ;.
I':-;

CHAIRMAN SMITH: Yes.

J:

15 .:>
<.:J
'"::J

MR. TIDWELL: To carry out your -- execute your

16

.~..
c

policy,

you

have

to

do

something

in

your

Article

of

this

Z

<l
17 ~ nature.

18

CHAIRMAN SMITH: Conceivably two years later if this

19 Article were to pass, this provision, they could undo it with 20 a new Education Article.

21

MR. TIDWELL: I don't think that they plan to do that.

22

CHAIRMAN SMITH: I understand th~t it's the timing

23

!i

II
I

question

you're addressing.

24 I

Well I think the issue for discussion is the

25 approval of the language on the last page of the draft, as Mr.

L~'

_

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

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

PAGE 93
r~i-~well POint~d-=ut, ~~-~::-veS~-~~l=:n~rOl of the SChOOl-l

2 II Superintendent in the Board of Education, how so ever it may i

3 ,II be selected in the future. My recollection of our conversationI

4 !,II is that comports with what we wanted.

I

II

5 ii i

MR. SMITH: I move its approval.

6I

MR. WISEBRAM: I second it.

7

CHAIRMAN SMITH: Any further discussion?

8

(No response.)

9

CHAIRMAN SMITH: All those in favor of the motion,

10 please raise your hands.

(Votes were cast with raised hands.)

CHAIRMAN SMITH: Opposed?

(Votes were cast with raised hands.)

CHAIRMAN SMITH: The vote is 14 for and 2 against

the motion.

~- Okay, now back to the motion of Ms. Adams which

raises for reconsideration the elimination of the DOT Board,

18 I guess it's called, State Highway Board.

19

JUDGE FINDLEY: I second that.

20

CHAIRMAN SMITH: All right, there is a second. Is

21 there any discussion?

22

MR. STERNE: I think as chairman of the subcommittee

23
that made the original recommendation that maybe I ought to
I" i

24

i
,<

comment.

In the first place, as a personal reaction, I found

I

25 ii
myself unmoved by the arguments we heard this morning. A

PAGE 94

picture was painted of the worst case and I think we can paint

that same picture with respect to any Board. Furthermore,

there is language in the Constitution right now that gives the

legislature considerable influence over this Department. I

read this, "The General Assembly shall define by law the

powers, duties and qualifications and compensation of the

Board and the Commissioner." So I don't think you can say that

the Board or the Department of Transportation is in an ivory

tower somewhere and untouched by the legislature, untouchable

10 by the legislature. So let me say I have no great feel about

Czl

11

t-
...oO'
Q.

this,

but

I

thought

I

ought to make that expression.

~ 12 ~

CHAIRMAN SMITH: Any other discussion?

~r~

MR. GARRETT: After reflecting on our discussion

14

~
t-

at

the

previous

meetings

and

hearing

the

conversation

this

':<r

15

ob Cl

morning,

I

would

tend

toward

reconsideration.

O'

::>

16 .Z.. Q

MR. SMITH: I would take that same position

Z

<

17 :ii

CHAIRMAN SMITH: Mrs. Holmes?

18

MRS. HOLMES: My thoughts were just about what we

19 were assigned to do, which was we were supposed to corne up with;

20 an Article that is broad and general and sort of a framework

21 of fundamental law. I think this is what we have been

22 saying to one another over and over and I think if we are

going to get that concerned about the political influence that

may have an effect on one Board, then we have to get concerned

25 about all Boards because all Boards are as vulnerable, maybe no~

LL.

~.

-_

-------l PAGE 95
I lr~o the sa-m~-~de~;~e~ -b~~-:O-some degree, all BO:~~~--::~-

2 II vulnerable, and other Boards seem to work pretty well without

'I
3 III! being engraved in stone in the Constitution. And I go back II

4

'II
Ii

to voter education,

which

is what,

to me,

the League

is

best

5 I known for. We're known for a few other things but we are
I 6 i'Ii best known for that. Sitting in an office explaining 36

11

7 Ii Constitutional amendments to people, you can hear -- they have II
8 IiI called you to ask for information but by the time you pass

9 :1 the second one they have gone to sleep and by the time you

10 pass the eighth one you have gone to sleep and I remember we

Czl

11

>-
'o"

had a

Constitutional amendment

to

change the name of the

c..

12 ~ Department within the last four years. We had another

(@)r! Constitutional amendment to put in the Pardons and Paroles

14

;
>-

thing

about

the

25

years,

we

had

to

have

two

Constitutional

4

J:

15 .:> amendments to change the Industry and Trade name. I mean we

.:J

a:

::>

16 .~.. have 36 amendments. I had statistics which I don't have with

za



17 :ii me about how many people voted for Constitutional amendments

18 as compared to how many people voted for Governor, and most

19 people don't bother to vote. They're not going to read 36

20 amendments. I would really like to see us continue -- and I

21 think this was really one of the considerations in Mr. Sterne's

22 subcommittee, that we stick to a Constitution that we do not

have to constantly revise or amend.

24
Ii i
25 1:
J_ _~

CHAIRMAN SMITH;
SENATOR GILLIS:
_

Thank you. Anyone else? Mr. Chairman, in response to that, i
_ _ _ _-----J

PAGE 96 q
I you can change the law with a majority vote just about any

2 time you want to, then you're changing your Highway Department

3 or any of these departments as far as that's concerned, every

4 other term, every time a new Governor comes in. But if

(; you've got it in the Constitution, it's not too easy even for

6 a Governor to change it, a two-thirds vote is hard to get in

7 I! the House and the Senate. So if you've got a good operation

8 :! going, it's not too easy to switch it over if it t s in the

9 i Constitution.

10

CHAIRMAN SMITH: The thought occurred to me during

,-'

z:

11

~
'o"

the discussion this morning

that we might want

to put in

the

0..

w

@~I1') '" Constitution a provision that statutory Board could not be changed except by two-thirds vote. Maybe that would solve

! 14 t; everybody's problem.

<: :x:

15 .:>

SENATOR GILLIS: That would help.

:'':"">'

16 ~
wo

DR. GIBSON: I guess I would like to join this lady

Z

-0:

17 ~ from the League and the chairman of the subcommittee. I have

18 IIii been here twenty years and I have never known that the Ii
19 I'IIII Highway Board was immune from politics in the state. That

20

Iiii
'i

comes

as

a

little

surprise

to

me.

I

21

SENATOR GILLIS: It never will be, or any other

Board.

DR. GIBSON: I think at some point in our discussion

24 we have to accept the fact that Georgia I hope has changed and

25 we've got to have some faith in the integrity of our elected

~L

_

PAGE 97
j r.:-ff~~~:~S- i:--~;~-~en-e::;~sS~~l;-.---so--~--:O:ld -~ik~ to-~-:-!

I

I

2 It opposed to reconsideration.

i

3!

CHAIRMAN SMITH: Any other comments?

4

(No response.-)

5

CHAIRMAN SMITH: All right, the motion is to

6 I started to say replace. The motion is to place back in the

7 Constitution the State Highway Board.

8

SENATOR GILLIS: Board of Transportation.

9

CHAIRMAN SMITH: Board of Transportation.

10

MRS. HOLMES: I hate to pull Roberts' Rules, but

isn't the vote to reconsider whether we reconsider?

CHAIRMAN SMITH: You're correct. The motion is to

reconsider it, which I think we just have, but - all those in

favor of that motion, raise your hands.

(Votes were cast with raised hands.)

CHAIRMAN SMITH: The vote on the motion to

reconsider is 11 for and 5 against.

18

Now that leaves me with the motion --

19

DR. GIBSON: How did you get the negative votes?

20

CHAIRMAN SMITH: Deducted.

21

DR. GIBSON: That has been a variable though, it

22 changed on each of the votes.

23 '

CHAIRMAN SMITH: You want a recorded negative vote?

24

DR. GIBSON: I would like it, I really would, yes.

25 ,1 '~i_

CHAIRMAN SMITH: All right. Again, I will call the

_

1

PAGE 98

question on the motion to reconsider. All those in favor, 2 please raise your hands.

3

(Votes were cast with raised hands.)

4I

CHAIRMAN SMITE: All right, all those opposed.

5 II

(Votes were cast with raised hands.)

I

6 I,

CHAIRMAN SMITH:

7 Ii five against.

Eleven in favor of the motion and

8

SENATOR GILLIS: Mr. Chairman, I make a motion now

9 that we continue in the Constitution the Board of Transporta-

10 tion as written.

"z

11 ;::
0o:

SENATOR KENNEDY: I second it.

"w"

~ 12 ~

CHAIRMAN SMITH: Well wait a minute, there are two

~--~ questions there. One is whether to retain it and the other

14

~
>-

is

whether

to

retain

it

as

written.

'<

1:

15 ~

SENATOR GILLIS: I didn't know there was any

"0:
::>

16

~ ow

dissention

about

as

written.

Z

<l

17 ~

MS. ADAMS: I'd like to strike some of the language.

18 II

SENATOR GILLIS:

"

19 II a motion to retain it.

I,

'Ii

20 I:

CHAIRMAN SMITH:

All right. Thank you.

Then I'll just make

21 I
II
n i lI,
23 I"i motion? Ii
24 i!
Ii
I
25 i

SENATOR KENNEDY: I'll second it. CHAIRMAN SMITH: All right, any discussion on that
(No response.) I
CHAIRMAN SMITH: All right. All those in favor of theI

II motio~~- raise you"handljo

PAGE 99

2 11

MR. JACKSON: Wait, what rotion is this?

3I

CHAIRMAN SMITH: To put it back in the Constitution,

i

without regard to the question of language.

SENATOR GILLIS: In other words, we can change the

language.

MR. JACKSON: We can amend the language?

CHAIRMAN SMITH: Yes.

(Votes were cast with raised hands.)

10

CHAIRMAN SMITH: Eleven. All opposed?

Czl 11 f0-
e<
.on...

(Votes were cast with raised hands.)

~r! 1~

p~ ~'"

CHAIRMAN SMITH: The vote is 11 in favor of the

motion and 5 against, so it carries.

14 ~

MR. JACKSON: Now is the entire section or just

fo-

'"

x

15 .:> Paragraph I?

Cl

'"::>
16 ~ Q

CHAIRMAN SMITH: Well we've got to get to that.

z

17 ~

MS. ADAMS: I was going to propose that we consider

18 accepting or adopting Paragraph I and rejecting Paragraph II

19 on down.

20

:
MR. HILL: I might say that as a matter of informatiop

the provisions in Paragraph II have already been -- Paragraphs I

22 II, III and IV well Paragraphs II and III, the provisions

23 there have already been incorporated into the work of the

24 Legislative Article. This refers to powers of the General

L -__ 25

A

s

s

e

m

b'l~y'--a-n-d---w--e--'r-e--lm--a-k--in--g--e--v-e--r-y---e'f-f--o-r

t

-

over
-----

there
------

t
-

o

give

the

I

PAGE 100

General Assembly broad authority to be able to comply with

2 these provisions and other provisions pertaining to federal la

3 We have operated in Article tIl on the assumption that this

4 authorization has to stay in the Constitution and that maybe

5 this Board will not be here, so we have already addressed

6 ~aragraphs II and III in another place. So I think you would

7 be safe in, you know, deleting this.

8

MS. ADAMS: I move that we adopt the language in

9 Paragraph I and omit Paragraphs II, III and IV.

10

CHAIRMAN SMITH: Okay. Look if you will at page 28

'z"

@;;11

i=
'2."..

in

your

--

what

did

we

decide

this was,

coral?

MS. CROCKETT: No, rust.

CHAIRMAN SMITH: Rust, yeah. In your rust booklet.

! 14 l- Paragraph I creates the Board and tells its composition.

V>

-:<r

15 ~

MR. STERNE: Before you get away from Paragraph I,

''::"":>

16 .~.. Mr. Chairman, it also creates the Board, says how the Board

Q

Z

-<

17 : is selected, but it also has language that says that the

18 General Assembly shall,by law prescribe the manner, time and

19 procedure for the election of members of the Board. I wonder

20 if those things aren't in conflict with one another. We're

21 talking about legalese now and that~s not my field.

22

CHAIRMAN SMITH: We need Judge Hill here. What

23 you're speakin~ to, Billy, is it says at the tap ~The member

24 of the Board from each Congressional District shall be. elected

25 by a majority vote af the members of the House of RepresentatiY s

PAGE 101

r and Senate whose respect:e ~~=t~~cts--=re-:w,rac~ or~:~0

IIl

I

2 I embraced within such Congressional District, meeting in

II

3 I caucus." Then later it says that "The General Assembly shall

I

I

4 I define by law the powers, duties, qualifications and compensa- I!

5 I tion and shall by law prescribe the manner, time and
I
.I
6 :1 procedure for the election of members of the Board, and the

~i

7 I manner of filling vacancies therein."

I

8 II

Charlie, check me out on this. If I had to rule,

9 i,;11 I would rule that they could not overcome the first provision

10 if the General Assembly were to pass a bill that varied the

manner of selection as clearly spelled out in the Constitution,

it would fail.

MR. TIDWELL: I think just as a matter of procedure,

the General Assembly follows --

[6

"'"I
=>
~ 'C"l
Z

time

and

CHAIRMAN SMITH: Well procedure. Of course,

it says procedures -the Constitution does

manner,
I
not speak! i

17 <~f to a vacancy, so that would be picked up by statute. I want I

I

I

18 to feel comfortable in what I said. Do you think that's

lSi correct?

MR. TIDWELL: Yes, sir.

21

MR. STERNE: I just saw it and thought

22

CHAIRMAN SMITH: That's a good point.

I
I

I

23

I suppose this language of serving out their term I

24 would remain in the new Constitution.
25 I
lion the staff

Does anybody, particularty
I
j

PA.GE 102

II
I

MR. TIDWELL: If you're looking for something to get I

2 rid of, that sentence could go. It's not a new Constitution,

3 it's a new Article. There's no longer any need, I don't

4 believe, for that sentence.

5

CHAIRMAN SMITH: Why?

6

MR. HILL: It's not going to be a new Constitution.

7

MR. TIDWELL: That sentence was put in there so that

8 when we adopted a new Constitution in 1976, it guaranteed the

9 .1 present Board members would continue on.

10

CHAIRMAN SMITH: Well what is to continue them if

Czl

11

...
.'"o."-.

this

one is

adopted

in 1980?

~ 12 ~

MR. TIDWELL: Well this is not a new Constitution.

~-::.~ If you leave it in, ies meaningless.

<.:.r.

15

~
Cl

Article.

'::">

16 ~...

Q

Z

17 ~

MR. JACKSON: This is a new Article, amended
MR. TIDWELL: If you're worried -CHAIRMAN SMITH: I'm for cutting it out if -- you

18 know, I'm for shortening it.

19

MR. TIDWELL: Any other lawyers disagree with that?

20

MS. GREENBERG: Then the second sentence after that

21 should also be deleted, "The successors to such members ......

22

CHAIRMAN SMITH: I would think that could come out

23 too.

24

MR. TIDWELL: I don't want to -- I always have to go

I

25

I
back to my office and sit down and contemplate out in the stell~r

PAGE 103
-----

10 you, but I always like to think about it.

"z

11 >-
o<Y-

CHAIRMAN SMITH: If it is the will of the committee

'>.

~r~ ?:~

~ 12 ~ to go with the language, why don't we adopt it on a tentative basis and if the staff finds any technical problem, we can

14 .~.. clean it up later

':<r

15 ~
"""::J

MR. GARRETT: I'll second that motion.

16 .~.. Co

JUDGE FINDLEY: I think they refer in the editorial

Z

-<

17 :ii note in the Code showing how that carne in, the annotated

Code, that was added in 1945 just so that you could preserve

19 it. Now we would not need it any more, but the committee I'm

20 sure the staff would probably want to do that.

21

CHAIRMAN SMITH: Mr. Garrett seconded, but I don't

22 believe I have a motion.

23

JUDGE FINDLEY: I move it.

24
25 lII__~

CHAIRMAN SMITH: What is the motion? MS. ADAMS: I did, I made a motion.

PAGE 104

MR. HILL: To adopt Paragraph I.

CHAIRMAN SMITH: Oh, it's Paragraph I, with the

deletion of these two sentences?

i

i

4

I
'I

MS. ADAMS: Yes.

5 II

I,I'

6

I:
I'I:

7

Ii II

proper.

Ii

8 Ii

CHAIRMAN SMITH: And that's the one you seconded? MR. SMITH: Tentatively approve it if they say it's
CHAIRMAN SMITH: Ed?

11

'I
9 'IiI

MR. JACKSON: I'd like to amend it by just adding

10 a few words so that we will never have the situation where

Czl

11 ;:: you have to go before the voters of the state just to rename

'.o0".-.

~ 12 ~'" it from say Highway Board to rransportation Board or in the

~r~ case of Corrections to Offender Rehabilitation.

That if the

! 14 Transportation Department would get expanded duties, that we

!;;


:r

15 .:> could have some language in here which would allow the

Cl

"::>

16 ~ General Assembly to change the name to reflect that. So I

oz

17 ~ guess my amendment would say "There shall be a State

18 Transportation Board, or such other -- or by such other name

19 as the General Assembly shall provide ...... to give the General

20 Assembly a chance in the future to give an accurate title if

21 that Department takes on additional responsibilities.

22

CHAIRMAN SMITH: Why shouldn't we do that with all

23 of them?

24

MR. JACKSON: If that's your feeling, you could do

25 it as a beginning paragraph to Article IV, the names of these

1--~~--~~-~---~--~~------------~~---~--

PAGE 105
~~ ~~~-~ -----~---._~ ~---~---~--~----~-----~~~------I

1II officers can be changed by the General Assembly.

!
I

'I

2I

CHAIRMAN SMITH: Well we're talking about Boards

3 I right now.

4

MR. JACKSON: I'm sorry, Boards. I think we lose

5 I a lot of credibility putting a change like that to the status

6 of Constitutional amendment, just to change from Highway to

7 Transportation.

8

CHAIRMAN SMITH: That was one of the examples Mrs.

9 Holmes mentioned. Sounds to me like a reasonable thing to do

10 but I don't know why we don't do it now with all four of them,

simply add that phrase in there.

Now say it again, Ed, "There shall be a State

Transportation Board .,

MR. JACKSON: Well I hadn't really thought about it

15 ~ until I was reading it, something to the effect 'I . or by such

'::">

16 ~III other name as shall be designated by the General Assembly "

z

<:

17 ~

CHAIRMAN SMITH: Or by law.

18

MR. JACKSON: Or by law. The name is not what's

19 important, it's the people on there and how they are appointed.

20

CHAIRMAN SMITH: That's right.

21

MR. SMITH: Can you change the functions of it and

22 give it additional duties without changing its -- the 23 Constitutional language as to what its duties are?

CHAIRMAN SMITH: Yes, the General Assembly has that I

25

I~ , pow__.e. r

at the end of that
.~__._. . . ~ .~

section.
~~~~

It's just a question of name!

,". .__.~~_. .__. ~.

.

.-J

we're dealing with now.

PAGE 106

2

I'm a little worried about the English, Ed. Why

3 don't y'all figure out how to do that in six words or less.

4

MS. ADAMS: Why don't we hold off consideration of

5 the language until the 28th and have it proposed for adoption

6 then.

7

CHAIRMAN SMITH: If we can, let's go on and act on

8 your motion and then they'll know what to do and we'll have

9 to revote on the line by line part.

10

Any further discussion on Ms. Adams motion as

"z 11 ~ seconded by Mr. Garrett and amended by Mr. Jackson.

I
I'm gettinj:1

o.".-.

$V

12 ~ with it now.

@ri

MR. JACKSON: I just proposed the amendment.

. 14!
l-
V..>:

MS.ADAMS: I accept it.

1:

15 ...,
"~
:>

CHAIRMAN SMITH: She accepted it. All right, all

16 ~ those in favor, raise your hands.

z

17 ~

(Votes were cast with raised hands.)

18

CHAIRMAN SMITH: Wait a minute, I'm cDnfused, would

19 you raise your hands again?

20

(Votes were cast with raised hands.)

21

CHAIRMAN SMITH: All opposed?

22

(No response.)

23

MR. HILL: Frank?

24

DR. GIBSON: No, I'm abstaining. It'd be a conflict

25 if I voted for this motion and yet I don't want to vote against,

PAGE 107

1

it, so I'll just abstain from the whole thing.

I

2

CHAIRMAN SMITH: All right, the vote is 12 for the

i
I

i

3 motion and none against, so it is carried.

I

I

I

4

Okay. Now we obviously have some specific word

!

5 problems, but let's go on to Joe Wood, who has notified the

6 chair that he has another motion.

7

REPRESENTATIVE WOOD: Mr. Chairman, this is an

g amendment which I am giving to the secretary creating a new

9 section pertaining to restoring of the Veterans Service Board

I

10

into Section IV.

What

we

are

doing

is

creating

a

new

i
paragraPh\.

<z:J

11 'o" This is the verbatim words that presently is in the Constitutiop. o.

~

~f~~~ I~\

12 ~

I'm not going to take your time to tell you the



reasoning that I do think the Board should stay in, but I

I
I
i I

14 .>..- will just hit a few highlights.
'"

It has worked successfully for!Ii

:r

15

~ <:J

34

years

without

one

shadow

of

disrespect

for

its

operations

~

::>

16 ~... in what degree. It works very close with the Veterans
Cz\
17 ~ Administration out of Washington and my real problem is that,

18 i: true, you can put it into the General Assembly and it would be

19 a statutory board, but my problem is this. The makeup now of

20 the General Assembly is getting to be more of those that came

21 along after World War II and the Korean Conflict that "maybe

did not have the impact on the veteran population or even

Y)
....J have knowledge of their needs. We that served in World War II

24 are now getting to the age that they're going to need some

25

- - - help from the State of Georgia and the VA and by keeping the

_ .. ----~~_.

_ ~_.-

_-

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

_. ..

_._-~_._

_._. . ~ - _ .

PAGE 108

1":

Veterans Service Board in the Constitution, you are assuring

II

2

'I
I,I'

this population of veterans, which is over 650,000,

that they

il

3 'I will be taken care of in the manner in which it is operating

"
'I
4 IIIi today. I Ii
5"

And with that, I'm going to stop and answer any

It
6 Ii questions or attempt to in any way. But I do move that we
!i
"
7 II amend the Third Working Draft of Article IV of the Constitution
I,I'
8 to add a new section in Section IV restoring the Veterans
9 I'II Service Board into the Constitution. It

10

CHAIRMAN SMITH: For the benefit of the committee,

..,

z

11

I-
".'o"..

the

proposal

from

Mr.

Wood

is,

as

he

said,

verbatim the

~ 12 ~ present Section V on page 26 in the rust book.

I

~)~

i
SENATOR GILLIS: I'll second his motion, Mr. Chairman;.
I

14 ~
:;;

I
CHAIRMAN SMITH: All right, any further discussion I

<

:I:

15 ~ on the motion?

"::>

16 ~...

DR. GIBSON: Is this a reconsideration, Judge?

Q

Z

<

17 ~

CHAIRMAN SMITH: Well it was presented as an

18 amendment to the present draft, it's tantamount to a reconside~a
i
19 tion. The full committee had previously voted to remove the

20 Veterans Service Board as one of the Constitutional Boards.

21

MS. ADAMS: We are considering reinstating the

22 Veterans Service Board, right?

23

DR. GIBSON: I guess I just have to go on record as

24 opposing that, as one of the old veterans of World War II, and

25

,
being sympathetic to the thrust of the motion, but I feel it is:

------ --------~-- .-----~

PAGE 109
Ir~-;mo~~t--~mp::-i-~~-~-~~~-m~-~~--:upport that position having been

, II kind of vociferous in my opposition to the Transportation

.' 'i Board, I guess for the same reasons that were stated earlier,

4 I reducing the size of our Constitution and making it a more I! Ii
5 understandable document for the people of our state, I would

6 like to oppose the reconsideration.

:

7

!Ii, !

CHAIRMAN SMITH: Any further comments?

f4

MR. WISEBRAM: Mr. Chairman?

9

CHAIRMAN SMITH: Henry?

10

MR. WISEBRAM: Mr. Chairman, if we were considering

"1:

11

....
:1:

a

model

Constitution,

a

textbook Constitution,

I

would

be

o

"-

(~~) ,,,,:1p ''"" opposed to this motion. But it is very obvious that we are

"'>:0~J

not, and I think that this particular Board deserves as much
'7

14

.~ ~

prestige,

shall

we

say,

of

being

in

the

Constitution

as

any

of

1"

15 ,~ the others and for that reason I'll support it

..'J

,L

=>

16 ~
c~.

CHAIRMAN SMITH: Mrs. Holmes?

z

MRS. HOLMES: I have a sneaking idea that by the

1:1 time we get to the next meeting that Industry and Trade and

19 Natural Resources and Offender Rehabilitation will be here

2CJ with all of the same arguments, which I am very sympathetic

21 with. I think Judge Smith's suggestion and I can't make

a motion while a motion is on the floor that we suggest

that a statutory board cannot be changed unless we have a 24 two-thirds vote might be a safeguard to these people who feel

that their only safeguard is being in the Constitution. I
- --------- -- -_._-- - - - - - - - '

['.-\\'1<; 110

IT II
:"! think our committee felt that -- our subcommittee felt that

I,
II

2 IIii we were really trying to, you know, get the concise -- we

3

II
II

don't want a textbook Constitution because there's no textbook

:1

4

II
:1

state but I

think, you know,

you do have to be practical about I

I'II

5

Ii
!i

what you want enshrined in the Constitution.

6

Ii
I,

SENATOR GILLIS: Mr. Chairman, she stated Natural

II

7

il
!I

Resources Board.

Did you take that out?

;)

8 Ii

CHAIRMAN SMITH: Yes.

il

ii

9 I: Ii

SENATOR GILLIS: I was misinformed.

10

CHAIRMAN SMITH: Well to bring you up to speed, the

Czl

11

~
'o"

Personnel

Board,

Pardons

and Paroles,

Public

Service Commission

0w

@;l and now the Department of Transportation are the only boards in.

14 ~ ~

MR. STERNE: All the others were out.

'4":

:I:

15

SENATOR GILLIS: Somebody told me Personnel Board,

Cl

'":::>

16

.~..
o

Pardons

and

Paroles

and

Natural

Resources

was

left

in,

but

Z

4:

17 ~ that's wrong?

18 II
i

CHAIRMAN SMITH: They meant Public Service Comm 1ss1oni. I

19

II
I

Vickie?

j:

20 il

MS. GREENBERG: The Veterans Service Board has

Ii
II

2J power over the State Department of Veterans Service, which is

statutory, and if the fear is that the General Assembly is

23 composed of members who have not served in a war, then they

24 possibly would not have power over anything since it is a

25 , statutory department which they have power over now. According,

l_:

.

~~

..

. _ - _. - --.-----------------

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

PAGE 111
~ ~~ ---~--~~---l
to Section V, the Veterans Service Board has power over the

State Department of Veterans Service, which is a statutory

state department, and that department could be negated by

4- statute.

s

CHAIRMAN SMITH: Well now wait a minute, it says

6 "There shall be a State Department of Veterans Service . " 7 and then the rest of it I think would be up to

MS. ADAMS: I think that's the concern of the l) , veterans, that if it is not in the Constitution, it can be )0 abolished by the legislature.

REPRESENTATIVE WOOD: Judge, may I make one closing

comment?

CHAIRMAN SMITH: Sure.

I
REPRESENTATIVE WOOD: Of all the various Constitutiorual

"r.

15

,~
.:"'-'J
:>

amendments

that

have

been

proposed

to

the

voters

since

1945,

16

~ wc

even when

the

ballot

had

30

or

40

on

them,

those

that

7-

ct,

~ 7 r,d pertained to veterans have passed, not a one has ever failed.

ld And I say that for this reason. That might have some guide

I')
to the actions of the future of the new proposed Constitution.

20

MR. WISEBRAM: I think that's a very valid comment.

21

CHAIRMAN SMITH: I don't understand what you're

saying.

(Laughter. )

'i

CHAIRMAN SMITH: Okay, any further discussion of the

motion?

....-- - , - r:--------.~------~-------.--

PAGE 112

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

--_.

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

.. .. _._~._

.

I,II

(No response.)

2 I,I'
I,II

CHAIRMAN SMITH: All right, all those in favor of

3 I'Ii the motion, which would have the effect of restoring the

II

4 I Board in the Constitution, raise your hands.
I

5

(Votes were cast with raised hands.)

6

CHAIRMAN SMITH: Opposed?

7

(Votes were cast with raised hands.)

8

CHAIRMAN SMITH: The motion carries 9 to 7.

MS. ADAMS: I'd like to make a comment. Maybe this

10 will discourage other Boards from coming to us. The reason

"z

.. 11

..
'o"

that

I

voted

for

this was

that there were

five

boards

that

0-

'

~ 12 ~ were originally considered as being maintained as Constitutional

~r~ Boards and the Veterans Board was one of those. And I think

.. 14

;
<

we

had

a

problem

all

along

as

to

whether

it

should

be

a

~

15

.:>
"~

statutory

board

or

a

Constitutional

board.

We were concerned

::>

16

!Z
Q

with

their

status

and

protecting

their

benefits.

That's the

z

<-
17 ~ reason I voted for it. I don't think that other Boards would

18

II
,I

receive

the

same

consideration

from

this

committee,

but

I'm

IiI'
19 Iil' not sure.

!I

20 i',

CHAIRMAN SMITH: Well if we're going to get through

\1

I;

21 il by December we can't keep plowing the same field, if we

22

i
I'

expect

to

get

thi s

done.

23

All right, here's the way I see where we are. Most

24 " of our questions have been decided in terms of placement and

25 hopefully the philosophical approach to it. It seems to me that

PAGE 113

r

:

~

:

-

~

:

-

-

~

-

~

-

-

-

:

-

~

:

~

~

~

~

-

-

-

s

-

:

~

~

:

~

:

-

~

:

~

iCy------- ---
dec

----------------~-
ision lef

-
t

-

---
on

----
the

-

--------
Pardons

-

1
I

I'I,

'

2 and Paroles question, and I think we ought to get with that

:1

3 today. It had been my hope that we could start approving the

specific language and I'll be governed by your wishes about

5 going as far as we can, but I think we need to go back and

6 look at the Pardons and Paroles draft that you have and address! !
7 the problems raised by Mr. Partain.

8

If I can speak as an individual, I don't know the

9 rUles, Mrs. Holmes, the first one is the only one that bothers

10 me. The other business about suspension and all that, that's

Czl

11

~ o,..

just

no

problem

as

I

see it.

That's something that can be

~

~~~~12 : handled in due course by the General Assembly, but the first lone, that is the grant of power, is I think a fundamental

'---

14 ~

~ policy decision that we've got to make.

'<

:I:

15 .0
<..:>

To restate it, the question is are you going to

oX

:oJ

. 16

no
,Z
Cl

make

the

Board

of

Pardons

and

Paroles

the

sole

holder

of

the

Z

-<

17

,~
''=1

power

over

the

subjects

that

are

mentioned

here

or

are

you

IS going to make it subject to what amounts to the whim of the

19 General Assembly, stated cleanly. And I think that's the crux I

20 of the situation.

21

The Constitutional question that Judge Findley raises

~~
is a very difficult one. If we're going to have the General

J--'' Assembly with power over sentencing and power over paroles or

24
split it up, that's what it amounts to. But i.f you recall the

-~-) example, they could require Judge Findley to impose a certain ~

_________________________~

--.J

PACE 114

sentence but the Board of Pardons and Paroles could have the

2 authority to -- parole is the word I'll use as sort of a sum

3 it up thing, based on their own rules.

4

Dr. Gibson was held out to us as an expert by Mr.

5 Partain. My recollection is that under the federal system there

6 is an absolute grant of power to the United States Parole

7 Commission.

8

DR. GIBSON: Generally that's true around the country,

9 Judge. There's always been a tension between the judiciary

10 and parole boards. Parole boards have always been considered

"z

11 ~to be matters of executive, all the way back to the English

o

Q.

w

@ -~. ~ ~

12 ~common law and the kings. In those cases where there has been

an attempt to simplify. if that' s a good term, the language

14 ~of the Constitution, there has been a substantial amount of

'<":
1:

15 ~ intrusion by the General Assembly in many cases going back to

:':">

16

IXl
~ amending

the

Constitution.

It is fair to say, however, that

z

<

17

Q. IXl

parole

right

now

is

under

serious

attack

all

over

the

country

18 I for the same reason Judge Findley is talking about. Maine

19 abolished parole three years ago, several states are considerind

20 the abolition of it right now, but on the single point of whether

21 or not the Board is the sole repository of executive clemency,

22 then I would say the trend in the country over the years is

23 :'that we would be in line if we went along with Mr. Partain's

24

I

I
!

suggest~ on,

to

spell out

in

the Constitution the

language of

!
25 .i!. that power.

'.1

.

----

PAGE 115

f r - ~-----

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

I II,i

CHAIRMAN SMITH: Well of course the history in this

Ii"::
2 state was to remove that absolute power from the Governor. Do ou

.3

I1I1
,I

transfer the

absolute power to

this

Constitutional

Board or

do

Ii

4 ;: you simply create a Board in the Constitution and leave that

II

5

Ii
I'

power

in

the

legislature.

i!
"

6

DR. GIBSON: And the history of the whole movement

7 was to transfer that in whole from the Governor to a Constitutipna

I

R body which would be "removed from politics". That doesn't

I

'} i mean anything.

10

CHAIRMAN SMITH: I think you should disregard the

dialogue we had about determinate sentence, that's not really

the issue. I'm sure Judge Findley, and I know I would, take

issue with the statements he made about that, but that's not

the question. The question is not whether you have mandatory

sentences or not, but whether you have any sentence who is

going to exercise the power to modify or parole or pardon.

JUDGE FINDLEY: On the surface -- if I may address it! J~ ,I it appears that the court can do this, and that is purely
19
appearance. The court has very little to do with how long a 20 man is going to stay in prison or a person is going to stay
2J !
in prison. Yet the public, and rightly so, looks to the court

to fix the sentences and they believe this is what should be
23
done and they feel then a sentence having been imposed that

that takes care of it and he'll be out of the way or she'll be

out of commission for awhile. That's a short way of giving the:

1"~~,l .'1',' 116

il--~~---~---'-------'----"

I Ii public's view of it. It has nothing to do with whether I II II

2 ii agree or disagree with it, this is the practical way that it

3

I!'III
,I

works.

Well the hiatus comes about then, the court -- they

5 look to the courts and the district attorneys to see that these
6 Ii things are carried out. You impose the sentence and the
7 ;: next thing you see, you read in the newspaper where someone

8 with a prior mental condition or this, that or the other,

9 comes in and does a cruel murder or something like that. Well

10 right away, it's because the courts have turned them loose or

didn't sentence them for long enough period. This is totally

unrealistic and it is also because the legislature didn't

impose a law that would give the kind of sentence, things of

this nature. All of this is simply not the case at all.

15 ~ What you do have is an irreconcilable conflict in there or ,x :;,
16 '~" hiatus or blank to where the public conception of what is
z -<
17 ~ happening to the truth of what is happening is totally wrong.

18

CHAIRMAN SMITH: Well it's an age old problem but

19 as I heard the explanation this morning, the problem with the

20 court is more with the good time, at least in terms of scope,

21 than with the question of parole.

22

JUDGE FINDLEY: Well I think that is -- the legis-

23 lature has set up the good time rule in there and -- that is

24 : not a variable any more, as it were, not so much as the others,

25 and even there there is little variable in it, but the public ---_.--_.....

[1----- - -

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

I'ii can grasp that. You can know what you're doing.

PAGE 117 But you

2

I
I

cannot

grasp,

like your ad valorem tax system,

you know we

I

31';) go with 40% instead of 100%, so you have a variable upon a

I
4 , variable. What you're doing in introducing another variable i!

5 that the legislature cannot address, that the court cannot

b , address, that it is vested in this instance in the Pardons and
i
7\ Paroles Board by rules they make, and that they can change

and that are not subject to review by anyone else from time

9 to time, that the public has no knowledge of unless you make

10 it your business to go down and read them. But they can

1]

,... o,>,,-:

adjust

from time to time how long a person will or will not

" I;' .r.

remain in prison. This is a power I thi~should be

stabilized either in them, the judiciary or the legislature,

but it ought to lie somewhere and be total.

,-'

CHAIRMAN SMITH: Be that as it may, if the conduct

u:

:71

IC

:~: woz_

of

the

Board

of

Pardons

and

Paroles

reaches

the

point

where

-,

J; :; there is popular dissatisfaction, then a Constitutional

amendment could be adopted, it seems to me, there is an

!()
, insulating factor there against some precipitous action by

20 intemperate legislators.

21

MR. SMITH: It seems to me, Mr. Chairman, that what

),
you're really trying to protect against having this as a

Constitutional Board, taking it out of the Governor's office,

is dealing with an individual prisoner as to whether you

pardon him or parole him today or tomorrow, buying and selling
--~~------

PAGE 118
~--;ardon~::d P::~-;~-~~:~'-s the-~r~~-~~~--~e--~~~ 40 years ago,

II
2 I but if you leave it in the legislature, I don't believe that

3

'1 I1I

anybody

believes

that

the

legislature

is

going

to

pass

i

4 '\:1 specific statutes to deal with specific criminals. They might

5

IIii
:1

change

the

rules

as

to how

long

a man

has

to

stay

in

to

!I

n !I adjust to the present situation and I would think that it

ought to stay as a legislative matter to be controlled by the

legislature rather than having it written into this

Constitution. I think you do need some flexibility from time

10 to time as times change.

<z.?

11 i= 0: o0..-.

MR. STERNE: That was what our subcommittee thought.

~ 12 ~ You remember Judge Hill asked us to consider language in there

~ri that would require a certain number of years served in capital

14 .~ offenses, but we thought that was a thing for the legislature

h

1:

to do. 15 ~ '.':;

Let me say that I see around this table and in this

"::>

16

<Xl
.Z..
CzI

room

a

lot

less

confidence

in

our

legislature,

even

on

the

17 """ part of members of the General Assembly, than I have. So I

18 !i think somewhere we have to corne to grips with that and i: 19 I
realize that the legislature is the body that

20

CHAIRMAN SMITH: Well it's supposed to be the closest

21

I,
!!

to the people.

22

MR. STERNE:

That was the whole point.

23 Ii

DR. GIBSON: But it may be subject to some passions

24 of the moment, Judge that was the reason for setting up these

Boards in the first place. And if the performance is bad, we

PAGE 119

~:-~a;e a~:n~::~s t h a t were p u t i n t h i s t h i n g i n t h e p a s t on ! -----~----~---------~------------------------~-------------------------,

II

!

') Ii armed robbery and various things. I guess I have a strong

3 feeling that if the situation is so very wrong, then let the

4 people decide that in a Constitutional amendment, but until

5 that time let's go with a system that has proved to be fairly

6 efficient over the years in states other than Georgia. Again,

7 the courts and the board are always going to have tension,

8 it's kind of a creative tension that I kind of like because

9 :~ i.t keeps each of them on their toes.

10

CHAIRMAN SMITH: Well, any further discussion on this!

I

II '" issue? ~~ w 12 ~
(@))~

(No response.) CHAIRMAN SMITH: Well do I have a motion?

.---"

14;.

MR. STERNE: I would move that we leave the

n

r

"1 ~ ~ language -- the final sentence is what you're talking apout?

:'":J

16 ~ 'C"l

CHAIRMAN SMITH:

7-

o

17 ~ first sentence.

Well let's see.

It's really the

MR. STERNE: Powers and duties of a member of the

J<) Board shall be as provided by law. And the first sentence,

20 that's right.

21

CHAIRMAN SMITH: There may well be a problem with

22 ii this broad phrase "executive clemency". Did anybody look into

that? That does bother me a little bit and maybe these time

honored phrases that are in here would be better language so
,
that it would read "There shall be a State Board of Pardons and:
- - ~- -~--~-- -~-~- - - - - --~ ~ - - - - --- ------~------------------------.

PAGE 120

Paroles vested with the power to grant reprieves, pardons

2 and aproles, to commute penalties, remove disabilities imposed'

3 by law and to remit any part of a sentence for any offense

4 against the State, as provided by law." That's the way it 5 would end up.

6I

MR. STERNE: Yeah, he challenged the use of our

7 word "clemency" and I'm not prepared to argue that.

8

CHAIRMAN SMITH: It's kind of like an insurance

9 policy, they're afraid to change the words because everybody

10 knows what the old one means. It opens up sort of a

"z

11

.o..e.
o.Q...

Pandora' sbox.

e:; DR. GIBSON: Well if you listed those duties, Judge, does that mean the General Assembly could not then change

14 ;

....
'<

the

power

over

clemency

--

J:

15 ~
"~
:>

CHAIRMAN SMITH: I would think they would have the

16

~
o

power

but

it

would

be

subject

to

such

detail

as

the

General

z

<

17 :ii Assembly prescribed. I mean, they couldn't pass a law that

18

Ii
Ii

would

take

away,

for

example,

the power

to grant parole and

19

IIIi
:I;:

give

it

to

somebody

else.

20
DR. GIBSON: But they could pass a law that if a

21
person commits armed robbery, he must serve at least 90% of

22
his sentence?

CHAIRMAN SMITH: That's the way I read it and that's
24
what bothers me quite frankly.

il
25

L

~

Okay, with the suggestion, Mr. Ed, about that language,

.

---. -------------~---- ---- -----

rr-------

PAGE 121
-----------1

1 I1 could we consider that your motion?

i

II
II

I

Ii

:: i

MR. SMITH: I would think so.

I

:1

I

Ii 3

CHAIRMAN SMITH: Is there a second to that?

i

i

4I

MR. STERNE: I'll second it.

CHAIRMAN SMITH: All right, any further discussion

on the motion?

7

MS. ADAMS: Would you restate it?

8

CHAIRMAN SMITH: With the changes I just read the

9 first sentence of the draft of Section II would be as written.

10 In other words, that the exercise of those powers vested in the

CzJ

1J >- Board would all be as provided by law, which means that the

(~);.:. ; \~=:::/J

o'"
0-
"' General Assembly from time to time could prescribe parameters
in which they could exercise those powers.
I

14 >-

DR. GIBSON: Would that mean that the Board has the

I-

':1

J:

15 ~ power solely to itself or could the General Assembly give to

i:< ::>

16 3", any other executive body some co-partnership with the Board?

Cl
r.

<l

17 ~

CHAIRMAN SMITH: I don't think they could. I think

it would be an exclusive grant of power under the Constitution

to that Board.

DR. GIBSON: But the thrust of it would be to allow

21 the General Assembly to intervene in the rules and regulations

22 and processes of that Board.

23

CHAIRMAN SMITH: As a practical matter, how difficult

24 ' would it be to pass one of those acts in the General Assembly?

25

SENATOR GILLIS: It'd be pretty tough.

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

PAr:1: 122

CHAIRMAN SMITH: In other words, would there be a 2 presumption sort of in favor of the Board's rule?

3

SENATOR GILLIS: I don't know, right now there's

4 , a little bit of dissension I think among members of the

5 General Assembly as to some of the actions inthe past. I don't

6

I
!

know how --

it wouldn't

be

bad

enough

I

don't

think

to

try

to

7 change the rules on it, but there is some dissension.

8

DR. GIBSON: Maybe here's a most unpopular person

9 i and you had a bloody incident that occurred, the General 10 Assembly would --

JUDGE FINDLEY: Are we moving to change the first

sentence, the language of that first sentence, in other words,

strike at line 25, "There shall be a State Board of Pardons and

Paroles vested with the powers of executive clemency . "

~

CHAIRMAN SMITH: It would be " the power to ... "

'":"J

16 .z:.0. and then pick up the language that's in the present

0z



]7

~: OJ

Constitution.

18

JUDGE FINDLEY: Well it goes on to say, " power

19 to grant reprieves, pardons and paroles, to commute penalties,

20 remove disabilities imposed by law, and may remit "

2J

CHAIRMAN SMITH: " and to remit . ", yeah .

.., ,
JUDGE FINDLEY: " and to remit any part of a

2J sentence for any offense against the State, after conviction

2-1 " except. f or . "

CHAIRMAN SMITH: I was just going to stop after "State".

rr----------

---- - - - - ---~ --------------------P-A-G--E---1-2-3----\

il Then say "as provided by law. It

I

II

-:J_ I,!I

JUDGE FINDLEY: "as provided by law." All right,

il

3 !I that I s what I wondered.

Ii

4

CHAIRMAN SMITH: It after conviction ", youlre

5 right. " . against the State, after conviction 1t In

6 ii other words, you can I t pardon before conviction like has been

Ii

7

'i
I:1I

done

sometimes.

Ii

8 "Ii,

JUDGE FINDLEY: Well the sentence went on through

II

II

9 II and didn It give the legislature the right to act, but you

10 would add "as provided by law." I understand, thank you.

"z

II f--
'o"

CHAIRMAN SMITH: Charlie?

Q-

(gt),J,:,,:,1~ MR. TIDWELL: If I may, I don't want what 1 1m about to say to be construed as in favor of what youlre about to do

or 14 ,I f--

-~
r

15 -:>

CHAIRMAN SMITH: Yeah, we put that in the record

cO

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If)

~ ozw

the

first

meeting,

any

time

Mr.

Tidwell

spoke.

<0;

17 ~

MR. TIDWELL: Obviously, our office has no position

i
18 : on this, but I speak now as the advisor to the Select Committeel
I

19 Chairman. This is a profound change that you have under

20

discussion.

i
It does not just confine itself to you, if you wer~

!
21 to approve this action and say "as provided by law", and then

wash your hands of it, because if it comes to the Select

23 Ii Committee in this posture, I don't believe they're going to !i
24 accept what you give to them because there is no "as provided
25 by law", and if you don't draft something and say how these
, _ _ - - - - - - - - - - - - - - - - - - - .. .-'~---------_._" ---,-----~-_._--------_..

PAGE 124

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

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

II executive clemency powers are going to be, there will be no
it
2 I' exercise of executive clemency powers until the General

3 I Assembly does act in areas that they have not already acted in

I:

4

II
II

I

know that Mike has been worrying and

struggling with this

t:
.'

l:i' II

concept to

see exactly what's on the

books

right now,

what

ii
6 II'i could be done and what couldn't be done.

Ii

I;
7 I:

CHAIRMAN SMITH: Excuse me, I thought that the grant

8 IIIi of power in the Constitution would be absolute until and unless;

,I

9 IilI the General Assembly did something.

10

MR. TIDWELL: I don't believe it would be, Judge.

Czl

11 0-
@;;'o" ""'

DR. GIBSON: That's not what the language says. MR. TIDWELL: It gives it to them, they can exercise

it only as provided by the General Assembly. So it is not a

14

; t;,

responsible

proposal

to

just go

this

far

and

stop.

You've got

~

r

15 16

~
":'>"
.~...

to on

come and say all right how executive clemency

is

I
you've got to have a whole statute! l
I
going to be done, whether the

Q

Z

-0:

17 ~ General Assembly will buy it or not. I just want you to

18

I!
II

appreciate

the

implications

of what you're

doing.

19 II
I'

CHAIRMAN SMITH: I think it's a point well taken.

20 We can take two approaches, we can do what is embodied in

21 ' this motion or we can say some modifying language that says

22 1 they exercise it unless it is modified by statute.

MR. TIDWELL: Could continue to do what they're doing I
24 until it's unlocked by the General Assembly or sometnng like

25 I": that. "-----------------

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

r- -----------

-------_ -..

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

PAGE 125

1

CHAIRMAN SMITH: Well what about in lieu of the

2 III, phrase "as provided by law", if you say "except as modified
II
3 II by law" or "except as limited by law". That may take away

4 IIii the whole thing though.

5 III

MR. STERNE: "Except as provided by law."

il

6 I'!

MR. TIDWELL: I think maybe you might deal with the

I!

7 1:1 concept and we can struggle with it and come up with something.

:"i
8 Ii

JUDGE FINDLEY: If we do that though, then the

!I

I,

I'

9 :1 Constitutional amendment adopts all -- just about gives

10 Constitutional standing to every statute that is now on the

Czl

11 ~ books.

o

w""

(~".,,,, ~12 ~

CHAIRMAN SMITH: The way I conceived the conversa-

tion was that they would have the absolute power unless it

14 ~ were limited in some way by the General Assembly, that's

~
:r
15 ~ the way I heard the conversation.

0:: ::;,

16 3

MR. SMITH:

Cl

Z

-<:
17 ~ at is something like

I would think what you're trying to get this is a terrible example -- the

18 Bureau of Internal Revenue has got the right to issue

19 regulations but the legislature has got a right to overrule

20 those and change them. That's what you're really trying to

21 get at. I don't think you're trying to make the legislature

22 do the detailed work of drawing the rules and regulations for

23 the Pardons and Paroles Board but I think what we're trying

24 to say is the legislature ought to have the right to say to

25 the Pardons and Paroles Board, for instance, nobody who commits,

I..L--_~.~

..

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

__ ,---' ... _._--~-,_

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

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

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

--

126

-o~: Ii armed robbery can be let

of jail in less than 27-1/2 years

2 II or whatever they want to use. That's what you're trying to
3 IIIi get at, not the day-to-day running of it, but the ability
'!
4 Ii''Ii to tell the Pardons and Paroles Board that under certain

5 II circumstances we want to determine sentences in executive

b II clemency and things of that sort and not have the power of
7 IIII the Pardons and Paroles Board built into the Constitution to
I,
"
8 i the extent that the legislature can't direct it.

9!

CHAIRMAN SMITH: Well, but the question raised by

10 Charlie is if it goes like this, there isn't any power granted

<z:J

11 .oe.x. until the legislature acts and I sense the motion --

Q.

~ I2~"'

MR. SMITH: It seems to me the legislature could

~J~ very simply solve the problem by adopting a one sentence

14 .~.. statute and saying that "The Pardons and Paroles Board shall
'<
1:

IS

<:J

have

the

right

to

promulgate

its

own

rules

and

regulations

'";;;,

16

.~..
c

by

statute."

Then if they want to change that statute all they;

Z ..;

17 ~ have to do is change the statute in the legislature to say

18

Ii
II

those

rules

and

regulations

cannot

provide

for

pardoning

of

19 such and such an offense in less than a certain number of days.

20

CHAIRMAN SMITH: I think there's a little gap in

21 what you propose. It seems to me that what everybody is

saying is give them the power until and unless it is abused, 23 ' then the General Assembly has the right to correct it. Now 24 I that's the way I hear everybody.

-
me saying that, Judge.

PAGE 127

CHAIRMAN SMITH: Yeah, these are all consensus

opinions.

4

MR. SMITH: I don't think it's necessarily an

5 abuse of power.

6

CHAIRMAN SMITH: Well that was a bad word, until

7 the General Assembly sees fit to change the manner in which

that power is exercised.

MR. STERNE: If you said "except as provided by

10 law", wouldn't that do what you're talking about?
~l
Z
CHAIRMAN SMITH: I yield to my lawyers.

If that's

the sense of it, then the staff can go off and study the

exact words and clean it up.

JUDGE FINDLEY: Well I again would have trouble

If you use "except as provided by law", you corne

along, you have statutes on the books and then you adopt a

Constitutional provision substantially changing the existing 18 Constitutional provision and say "except as provided by lawn, 19 you are giving, I think, Constitutional status to the statutes 20 and you are almost embodying each one of the statutes that 21 has already been enacted and making it a part of that

Constitutional provision.
23
CHAIRMAN SMITH: I don't know the answer to that.
24
It would either be that you pick up what's there, and I
25
don't think there are any, are there?
- - - -_._~-_._-~_._---_ ..~_._-_.....- - - - - - - - - - - - _ . - . .

IT" - - - - - - - - - - - . - - - - - - - - - - - - - - . - .

PAGE 128

II

JUDGE FINDLEY: There are.

i"l

2 il

MR. TIDWELL: There are some, yes, sir.

II

3 Ii

CHAIRMAN SMITH: Or you will clean the books until

i4 i,!I they do pass laws.

Ii

5 'i

JUDGE FINDLEY:

That's the one that would be good.

!i

6

\1 :~

i

CHAIRMAN SMITH: And that's something the staff

i)

7 i ought to aadress, as to which language does what.

8

MR. HARROLD: What if you just said "and as may be

9 otherwise provided by law in the future".

10

CHAIRMAN SMITH: Well that would clean the slate,

Cl

11

~
>-
0."'".-.

would

it

not?

And then it would be up to the General Assembly

12 u'" to start at ground zero and move from there.

~@F' ~ ;z.:. 0 '"

Let's get a sense of what everybody wants and let the!

14 >--- staff figure out the language for us before the next -- can

'4

r

15 <!l somebody make a motion that gives a sense of which way you

\!l

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16

z'"
z~

want

to

go?

17

IX
'"

I think there are three options. One is the

IS III: present language which would do nothing until -- they would

19

!I
Ii

have

no

power

until

the

legislature

acted,

provided

by

law.

20

Ii
,I
II

In other words,

it

is

a

grant of

power

but only as

provided

11

21

~!
I

by

law,

therefore

law would have to be passed to define that

22 power. The second one is that it would be adopted with

23 language that would clean the books and wait for the legislatur

24 to act, to limit the otherwise absolute grant of power. Another

25

possibility

would

be

to

pass

it

with

a

grant

of

power

I
preservin~

L'

_

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

rr------------------

PAGE 129
-------------- ------ -----------------------------------1

II any present statutes and any future statutes. Aren't those I

II

I

2 !I the three combinations we have? The fourth is to strike

I

'.' .i,.II. "as provided by law".

Iii

'I

4 'i

DR. GIBSON: That's right.

Ii

I!

5

I' :,

CHAIRMAN SMITH: Ed, since you made the motion, can

I'

6 we consider your motion as the sense of cleaning the books

I':

'I

7

~i !I

until and unless

they act?

!'Ii

8 'I':
I,II

MR. SMITH: I would think so. I'm not sure of all

I'

9

II
II

of

the

ramifications.

When you say cleaning the books, I

10 don't know what statutes are on the books and what you're going

Czl

I!

>-
IoY.

to

be

clearing.

"-

~

I') IY.

@r~1 MR. HARROLD: That's the question I ask. I know there's an armed robbery statute, five years minimum sentence.

J4 ;
>-

JUDGE FINDLEY: Well there's some in narcotics,

'<r"

15

.:>
Cl

there's

some

in

armed

robbery.

There are certain sentences

:":>"

16

~...
oz

where

there

are

minimum

sentences

and

I

don't

know

what

the

-<

I7 ~ Pardons and Paroles Board -- whether they are bound by them

18 now or not.

19

CHAIRMAN SMITH: They don't have anything to do with

20 sentencing.

21

MR. HARROLD: So what else would it be?

22
23 parole.

CHAIRMAN SMITH: It's only an act that affects

24
JUDGE FINDLEY: They mention in there and whether thei

,.,------

130

"II,I 1aw now eX.l.sts. Those statutes do not address themselves to

2 1\ the Pardons and Paroles Board.

II

3 il !!

MR. HARROLD: You could still get a minimum five

4 year sentence and get a parole.

5

My question is what laws are there on the books?

6

SENATOR GILLIS: The staff might be able to shed

7 a little light on it.

8

MR. SMITH: Could you provide that -- give them the

9 authority and say they have the right to promulgate rules

10 and regulations except as otherwise presently or hereafter

Czl

11

I0::

provided by law."

o

0-

w

~ 12 ~

CHAIRMAN SMITH: We could. There could be some

~r~ language that would do either one. That's the question I'm

14

;
l-

trying

to

get a

vote on.

Mike?

V>

:l:

15 .:l
\!l

MR. HENRY: Mr. Chairman, presently there are severa~

0:: ::l

I

16 ~... statutes on the books. In fact, there are 34 or 35 different

Czl

<:

17 ~ statutes that deal with the subject of -- talking about

18 hearings, when probation is revoked or parole is revoked and

19 areas such as that. There's some on there that really deal

20 in substance -- they track the current Constitutional

21 provision except for the matter dealing with the minimum

22 service for certain offenses and that is provided for under

23 rules and regs with specific reference back into the

24 Constitution. There is no statutory parallel to that language.i

!i

I

25

;;
i,

There's

another provision

in

there which,

I

guess was

enacted

I'

PAGE 131
r--
II pursuant to the present Constitutional provision which says

I'

2

II
II

they may make rules

and regulations.

Well the General

'Ii
3 I,I' Assembly, by statute, gives them the authority to make rules

!'!

4

I I

and

regulations

in

areas

which

they

specify,

but

not

limited

5 to, and then they go into the seven year statutory service

6 for armed robbery and such as that.

7

CHAIRMAN SMITH: Well the question is, as I hear it,

8 under this motion, if the motion carries, do you want to

9 preserve all of those things you just described on the books

JO or start afresh.

l?

Z

1J ;..

MS. ADAMS: If you start fresh, wouldn't that create

o'"

Q.

12 "~' some problems for the Pardons and Paroles Board?

~~ F~ ~

JUDGE FINDLEY: Probably.

14 :,.

DR. GIBSON: They wouldn't have any work to do.

~

<l
:r:

15 ~

CHAIRMAN SMITH: No, they could do what they wanted

'.:>

'O"J 16 mz to by rule.
"C1'

Z

<
17 '"e:>

MS. ADAMS: Oh, I see what you mean .

IK

CHAIRMAN SMITH: Until the General Assembly saw

19 fit to change that rule.

20

MR. STERNE: I don't know what the problems are, but

21 that sure is the cleanest way to do it.

22

MR. TIDWELL: I don't see what you're talking about

"L.) on wiping the books clean. That's a concept that I have =~4 trouble understanding what you're talking about.

2'\ I

CHAIRMAN SMITH: There are 34 statutes on the books

PAC1~ 132

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

.. ----,

that somehow relate to either procedures or substance of the

2 Pardons and Paroles Board. This Constitution can corne in and

3 say we're going to give all of these powers to the Board of

4 Pardons and Paroles and you are free to act either subject

5 to all of those things or subject to something that will be

6 passed in the future.

7

MR. TIDWELL: Under the present Constitution, any-

8 thing that the General Assembly has done in the last 35 years

9 that attempted in any shape, form or fashion to tell the

10 Pardons and Paroles Board how to grant executive clemency was

II

~
:o>:

patently unconstitutional.

>.

12 "~'
~~ r~ ~

DR. GIBSON: That's right. MR. TIDWELL: But the General Assembly nevertheless

14

:
l-

has

insisted on doing

that.

Some of those the Board has

V'

<l

-r

15 .:> acquiesced in by adopting them as their own rules and

~

"::l

16

~
w

regulations because they didn't want to have a confrontation

.o'"

<{

17 ~ but it seems to be inconsistent to say you want the General

18 Assembly to do it, to have that power that they've been doing

19 for 35 years that they obviously don't have, but yet wipe

20 it clean. That's what I just don't understand.

CHAIRMAN SMITH: Well I may have created a problem

when there's not one but I heard some people saying that any

'23 limitation on this grant of power should be exercised in the

24 General Assembly but only in the future.

I

25

MS. ADAMS: I didn't see tha.t as the issue. I thougdt

PAGE 133

~~:---i~::e wa~ Wh:~-~::-:~~~:t--we _---_ _--- ---------- ... ----~_

..

-----------~----~----,

wanted to permit the General I

2 IIII Assembly to intercede or not.

Ii

3 II

CHAIRMAN SMITH: That's correct, but the problem

4 ":1 all started because of the way it's worded. They wouldn't
Ii

have any power to exercise except as provided by law, and

6 Ii there isn't anything there to give them any power to exercise

7

I'
il

now.

And I believe that the overall intent was to grant the

'I

8 II power subject to limitation of the General Assembly, intent

!:

9 .

I:
:1

of

the motion.

I happen to agree with Dr. Gibson, but I'm

10 trying to go on.

And now, assuming that to be the case, do you

want to make those unconstitutional statues on the books

applicable to the Board or make them start over in the General

Assembly? Isn't that --

15 .:>

MR. TIDWELL: I'm just sympathizing with your staff

<:J

<>:

.::.>.

16

z
,~

on

how

they

would

get

rid

of

all

those

statutes

that

are

on

Cl

Z

17 .'4".. the books right now

Ix ,I
i:

CHAIRMAN SMITH: Well Tom had an example that they

19 ,I are hereby granted this power except as may be modified by

20 any statute passed in the future.

21

MR. SMITH: Why couldn't you say "except as now or

22 ': hereafter otherwise provided by law."

23

CHAIRMAN SMITH: You can, I think.

MR. SMITH: Then you don't run the risk of getting

25 things off the statute that you don't know are in there now.

L:

~_~_ .

~~

._. .__~.~ _. .__'

.

._~

,._-----.J

-.-------------- --- If--------.----~--~---

PA(;E 134

I Ii

CHAIRMAN SMITH: I don't know what's on it now and

I"i

2 :1 it may be something terrible.

il

3 :I1;

DR. GIBSON: No one knows what's on it.

4 ..

MR. TIDWELL: I know that Mike has been worried about

5 this because he has been talking to me about it and I haven't

been able to give him much help because I've been doing other

things.

8

MS. ADAMS: But before we take up the issue of the

9 I language, why don't we decide the sense of this committee as

10 to whether they want the legislature to be able to intercede

"z

11

~ ooX

or

not,

and then we can go on.

0..

w

~ 12 ~

CHAIRMAN SMITH: Then we can get down to the

~r~ refinement. Okay.

14 >~

MR. SMITH: I make the motion that the legislature

'<

1:

15

".:> do
'":::>

have

the

right

--

is

intervene

the

right

word?

1() ~

CHAIRMAN SMITH: Or limit.

Cl

Z

<

17 ~

SENATOR GILLIS: I'll be the dispenser of the drinks

18 of anybody wants to have one.

19

CHAIRMAN SMITH: If that's the best you can do, I'll ;

20 i pass.
I
21

SENATOR GILLIS: We've got Coke, Tab, Sprite.

23 motion?
24

CHAIRMAN SMITH: Okay, is there a second to that MR. STERNE: Yes, I'll second it.

CHAIRMAN SMITH: Any further discussion on that

- - -- rr---~---~ ---------------~

- ~----

PAGE 135
._------~

1 II motion and the question is do you have an absolute grant of I Ii

2 II power to the Board or do you have it sUbject to legislative il !:

3 I' oversight.

MR. JACKSON: Is that the only question?

5

CHAIRMAN SMITH: That's the only question on this

6 motion. Okay? Any further discussion?

7

(No response.)

8

CHAIRMAN SMITH: All those in favor of the motion

91,I, to have legislative oversight, raise your hands.

10

(Votes were cast with raised hands.)

"z
II ...
@;.:.;o0: 0"'

CHAIRMAN SMITH: All opposed? (Votes were cast with raised hands.)
CHAIRMAN SMITH: Two and a half.

.

! 14

I-

MR. JACKSON: Are we going to talk about the

~ :r

15

.:>
<:J

mechanics

of

what

that

legislative

role

will

be.

There's a

0:
:>

16 .~... variety of mechanics. Is that today or later?

Q

Z

4;

17 ~

CHAIRMAN SMITH: I'm for getting all done we can,

18 I'm getting worried about running out of time, we don't have

19 but two weeks.

20

CHAIRMAN SMITH: The question is do we pass this

21 Constitutional amendment or recommend its passage, holding

in place the present laws on the books or do we wipe the

23 slate clean. I don't know how else to put it, and have them

24 start over with any limitations or oversight.

25

MR. SMITH: Personally I would be very much concerned'

PAGE 136
~,I about trying to wipe the slate clean, because I don't think

2

:1
II

any of

us

are

smart

enough

to

know what we're

doing.

II

3

II !,

MS. ADAMS: I agree.

i:

Ii 4

CHAIRMAN SMITH: Okay. Then why don't we simply

5 refer back to the staff to get us a what's the word I want,

6 where you distill something down to one -- synopsis of the

7 current statutes on the books, so we can make an informed

8 i judgement on this question.

9

MR. TIDWELL: One problem that you're going to have, ,

10 and these are all legal problems, if those statutes in fact ..,
z
were unconstitutional, then they are as if they were never

there.

CHAIRMAN SMITH: That's true.

MR. TIDWELL: And I don't know how you are going to

15 ~ go back now and try and breathe sanctity in them.

~,

:':">

16 'z" .'-'

CHAIRMAN SMITH: Well you may have answered our

0z

<

17

0:
~l

question

for

us.

18

MR. TIDWELL: I was hoping I was going to be of some

19 help to you.

20

CHAIRMAN SMITH: If this hypothesis is correct, and

21 I think it is as a matter of law, then there is no slate to be

22 cleaned.

23

MR. SMITH: Well if you say "except as now provided

24 by law" that means valid law, doesn't it. If the law is

25 unconstitutional, it's not provided by law now. i'

that.

If you said "except as hereafter provided by law",

then obviously that would mean a fresh start.

MR. HILL: If you gave the right specifically
'I
Y III' stated that the Board shall have the power we just mentioned

10 and the right to promulgate rules and regulations in pursuance

"z
11 Ioo-e of that power until or except as otherwise provided by law,
(,pg,J"'~.:. i"~ I think that would really clarify it.
MR. SMITH: That's what I thought, "except as now
1

14

<,:.
I-

or

r

hereafter

provided

by

law".

15 .:>
~1

CHAIRMAN SMITH: Well the "now" is what creates the

oe

:>

16

~
~
Cl

lawsuits.

Z

<

17 ~

MR. HILL: "except as hereafter shall be provided by

18 law", and then we wouldn't have to worry about -- all of the

19

I
regs would come forward, which is what they are using to operat~

20

!
under and the laws, you know, if they're not unconstitutional i

21 they're certainly in question, and that might solve the problem!.

They will be able to operate pursuant to rules and regulations

23
and then the General Assembly will have a chance to come in

24
there whenever they deem it necessary to modify that authority.

25

CHAIRMAN SMITH:

_ _ I,
L~I_ ~

~

_

They would have what, two bites at I
--~--~_.~_._----~-----~----~._------

PAGE 138
rr
II:i the apple anyway, wouldn't they? If the thing passed in
!"i
2 November at the next session, they could have a model bill
3 I; ready, right?

4

MR. HENRY: Let me get the charge to the staff on

5 this matter.

6

CHAIRMAN SMITH: You ain't got one yet.

7

MR. HENRY: Oh, okay.

S I'

MR. JACKSON: The committee may also want to

I:1,

9 !i consider another way to oversee it and that is the rules and

10 regs. They could give the General Assembly two options, one

z<.'l

II

... eox

each

rule

or

regulation

has

to be approved by both houses or

"-

~@\~i ~

"'
two a rule or regulation shall be effective unless vetoed by
both houses. That keeps it from having to be a statute and
,

14

:
~.

th~also gives

an

oversight

over

the

rules

and

regulations.

~
<

J:

15 ..:.>, If you do this in the Constitution there would be no legal --

'"::J

16 ~ woz

MR. HILL: What about present rules? You see then

<::

17 ~ all those that are presently on the books might be in jeopardy

18 because they're not subject to that.

19

CHAIRMAN SMITH: They haven't been cleansed through

20 that process.

21

MR. SMITH: Plus the fact that doesn't give the

22 legislature the right to take affirmative action, only

23 negative action.

24
CHAIRMAN SMITH: That's true.

2S Ii

MR. HILL:

Is the sense of his motion to include a

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

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

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

PAGE 139
~----------~-------,

promulgation of rules and regulations specifically except as I

otherwise provided?

CHAIRMAN SMITH: Not to put it in the Constitution.

If we take Mel's suggestion and I hear it that we

would put all the language about their powers under rules

and regulations promulgated by the Board except as hereafter

provided by law. At least we would all know what that means.

8 Now the only gap would be if there happened to be a present

9 act that is constitutional, it would be voided.

10

MR. HARROLD: Well in the Constitution is the life

Czl

11

~.
'o"

imprisonment.

>.

'.u

12 ~
e~ r~ ~

CHAIRMAN SMITH: That would be gone. MR. HARROLD: It would be gone and the five year

14

~ t;

armed

robbery would

be

gone,

both

of

those would

be

gone.

<: :r

15 .0
\.? ;;,;,;;

MR. SMITH: That's probably going to be taken care

:oJ

16

~ wa

of

by

your

determinate

sentence

statutes

anyway.

z

<:

j7 ~

JUDGE FINDLEY: Well I hope that doesn't pass but

JIi if the determinate sentence -- I don't know whether that would

19 have any effect on the Pardons and Paroles Board or not. I

20 don't believe the legislature at this time as the Constitution I

21 is presently written could limit the Pardons and Paroles

Board, determinate sentence or otherwise. I think the Pardons

23 and Paroles Board can do what it wants to do or feels it is

24 proper to do in this regard, and that's where the big breakdown

25 :, comes.

You think you are doing one thing but really -- you
-------~-~------------_._~~~---~---------- .. - _ - ~

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

PAGE 140

Ii

:; believe that you are incarcerating someone for a certain

I,

2 II period of time and there are numerous laws saying so, trials,

'I

3

II
I,

all

of

these

other

things,

but

this

is

not

the

case

at

all.

Ii

4 II The Board has Constitutional privilege as stated over there,

5 they have the Constitutional right to set their own rules

6 for turning someone loose irrespective of what the legislature

7 says. That minimum on armed robbery, I think it's just so

8 much language. I think the Pardons and Paroles Board, if they

9 want to, can disregard it completely. Now this is what needs

10 to be clearly understand. We don't understand it in here and

'z"

., 11

I-
'oa".

how much more

confusing

is

it to

the pUblic at

large

and to

~ 12 ~ the prisoners themselves. This is very confusing to them, and
~r'~ they have a large stake in this. And I am not making a tongue 14 .~.. in cheek remark there. On the inside of the prison itself, 'r<".

15 .~ the conduct of the prisoners, the discipline that you have in

I":)

'":::>

16

<Xl
Z
~

there,

certainty of

the

time of

punishment

is

of

extreme

0z

-<:

17 ''"" importance. The public things that there is certainty when

Iii the sentence is handed down. There is no certainty at all or

19 very little certainty. The laws themselves, when the

20 legislature now acts and says you will serve this many years,

21 that doesn't mean that at all unless by dispensation the

22 Pardons and Paroles Board says yes, we will accept that and

'"':".:'1 make it ones of our rules. You can't bind them with that. And

24 what I am suggesting is that it is difficult to write, but

that's no reason for not doing it properly It ought to be

L

_

...

._._ _. __~__ .._ .__ . _ _ ._.,_._~_._+._.

.

----J

PAGE 141

~~;-~h:~ I -

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

------1

I

either the Pardons and Paroles Board or the 1egis-

Ii

I
I

2 I 1ature or the court or any combination of those does make a fi~l

I

I

3 II determination and then that is it and it applies to everyone,

4 IIII not to do away with the right to give special consideration

5 I!III but the same rules will apply to everyone, and that's what

6 i'Il you don't have now. I don't know how to word it but it is
q
7 :iII misleading to everyone at this time.

II

8 ii

CHAIRMAN SMITH: Charlie, if Mel's suggestion were

'"I
9 i made into a motion, there would really only be a period of

10 about two months that they would be free to act as they want

"z

II Io-e to.

o

0-

w

12 ~

MR. TIDWELL: Yes, sir. Well, they are free now,

~@r~' you know, really, so you really don't make a change. The

14 .>... only change you are doing is putting the General Assembly

':(

r

15 .:> into the picture where they are not in there now. I believe

,-"

:':">

16

':Xz:l
w

if

you

had

a

valid

statute

I

don't

believe

that

language

would

I

Cl
:z:

<

17

Q;-:
'"

impair

it.

jg

CHAIRMAN SMITH: You mean the "except as hereafter

!9 provided by law."

20

MR. TIDWELL: I think if it were constitutional,

21 it wouldn't --

22

CHAIRMAN SMITH: Well if there is a constitutional

23 one, you would simply want to say "except as provided by law",

24 wouldn't you, instead of "except as hereafter provided by law".,

25

MR. TIDWELL: I think the point I'm making, for it

r--- ---------~--

PAGE 142

:1 to be constitutional, it didn't infringe on their absolute
I'
,I
2 III power anyway.

3 Ii

CHAIRMAN SMITH: Yeah, I see what you mean. In

"Ii

4 II other words, a procedural thing like a hearing or something

Ii

5

:1
I[

like

that,

would

be

in

conformity

with

the

present

provisions.

I'I.

6 ,I i'I

Okay, can we get a motion? I'd like to get this

Ii

7 Ii'IiI one down because they're going to have to work on it before we

II

8!:,II meet . aga~n.

9 I:1i Ii

MR. SMITH: You tell us what the motion ought to be

10 and I'll make it. I make a motion that we adopt language

"z

II

.....
ct:.

that

permits

oversight

by

the

legislature of

the

rules

and

0

"w-

~~r12

0:
u

regulations

of

the

Pardons

and

Paroles

Board.

,~

;::

z

w U

JUDGE FINDLEY: I'll second that.

'"

14 >-
l;;

CHAIRMAN SMITH: Now you're not talking about



"I:

15

.:>
<.:>

Jackson's

suggestion

but

simply

in

a

position

of

passing

an

:'>"

16

'z" 0

act.

z.



17 ''""

MR. SMITH: Passing a statute, that's right, I'm

18 using the term "oversight" in the very broadest terms. In

19 other words, give the legislature the right to pass a statute

20 that affects Pardons and Paroles.

21

CHAIRMAN SMITH: Well may I assume, subject to the

221 staff studies from now on, that motion would read, "except as

23 hereafter provided by law". In other words, it would be the

24 language we have just discussed in lieu of "as provided by

,

25 law", we would simply say "except as hereafter provided by law.~

----

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

r-----

PAGE 143
~------ ---------~ ~----------~----------------I

I,

MR. HARROLD: Would it help to put "as may be

II

:1

Ii2 II hereafter provided by law"?

II
i

!I

i

3 '~II

CHAIRMAN SMITH: It says the same thing to me.

!I

41

MR. HENRY: The present Constitutional provision has

5 in it " . the State Board of Pardons and Paroles may make
II
6 i rules and regulations as may be authorized by law."

71q Apparently that takes care of everything except this language 8 in here dealing with the specific powers and duties that are

q i in the Constitution right now. I would think that would

10 uphold everything that is on the books right now.

CHAIRMAN SMITH: They would have valid rules until

they were overcome by the legislature, which is what Ed is

talking about.

Will you accept my language as the movant?

15 ,~
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'"::l
16 z'J:>
'au
Z -<:
'" 17 'l.1

MR. SMITH: Yes. CHAIRMAN SMITH: Is there a second? VOICE: I second it.

III i!

CHAIRMAN SMITH: All right, any further discussion?

1)

(No response.)

20

CHAIRMAN SMITH: All right, all those in favor of

21 the motion, please raise your hands.

22 23 24 25
l!

(Votes were cast with raised hands.)

CHAIRMAN SMITH: All opposed? Dr. Gibson?

DR. GIBSON: No, no, I'm abstaining.

CHAIRMAN SMITH: All right, the motion is adopted 13

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

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

PAGE 144

to nothing.

2

Now I do not know of any burning issue that we have

3 not now settled on and the rest is a question of approval of

4 language. I had hoped we could commence that today and still

5 would like to. I am only nervous about our schedule. We

(, can go into it as far as we can go -- oh, I think there is

7 one other thing we need to do today -- or we can devote the

8 Ii entire next meeting to approving the words to cover the things
ii
9 i that we have done. I think it could be done in a meeting

10 provided we do not have a consistent flow of intervenors.

'z"

11 ... o0::

JUDGE FINDLEY: Would a motion be in order that we

"w-

@r~12 ~ no longer accept any amendment to the things we have already approved as to Boards?

14 :"':><r.-:

CHAIRMAN SMITH: If that is the wish of the committee.

15 ~

MR. SMITH: I move the next meeting be an executive

':'"">

16 '~" session attended by only the members of the committee for the

z.

17 ~ purpose of finalizing the draft of what has already been

18 i determined.

19

CHAIRMAN SMITH: Well we are under an admonition undet

20 i I the Sunshine thing, but certainly it could be a session that I
21 we would not hear from anyone except members of the committee

11 and the staff. We can do that, can't we, Charlie?

~l.')

MR TIDWELL: Yes, sir.

.:4

MR. HARROLD: Mr. Chairman, is Charlie part of the

25 staff?

CHAIRMAN SMITH: No, he's an advisor.

----l PAGE 145

MR. HARROLD: I'll vote for that.

I

I

SENATOR GILLIS: For clarification and not for

I

4 debate, has this committee already decided finally to elect
\!!
"
5 i the Public Service Commissioners?

1\

6 :i

CHAIRMAN SMITH: No, it voted to have them appointed,

!:
7 Ii sUbject to confirmation by the Senate.

I"i 8 I,
II 9 II final.

SENATOR GILLIS: I mean you did vote and that was

10

CHAIRMAN SMITH: That's right.

"z
SENATOR GILLIS: That was at a prior meeting?

CHAIRMAN SMITH: Yes.

MR. HILL: Now my understanding was that everything

was approved tentatively prior to the final approval of the

last draft to go to the committee. My feeling was that these

issues are still subject to reconsideration until the final

meeting. I feel that's necessary in case other people would 18 talk to you or you hear new information and I think at the 19 last meeting when you look at the final report that will go 20 to the Select Committee, then I think there would be an 21 opportunity for people to raise any issue that they had.

22 'I,

SENATOR GILLIS: I didn't want to re-raise the issue,!

23 'all I wanted to do is just be recorded as voting to elect the

24 Public Service Commissioners.

25

SENATOR KENNEDY: Same here.

r-------~-----~-----------

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

----~-

PAGE 146 --- - - - - ------- ----~-~-------

I :i

CHAIRMAN SMITH: Well let me go back, the motion

2 II is that the next session be a session devoted to approval of

3 11 language expressing the prior decisions made by the committee

Ii

,I
4 Ii and that no one other than the committee and the staff be

:1
I-I

5

ii
Ii

allowed to

participate

in

the

discussions.

Is that a fair

i:

6 Ii statement of the motion?

7 iilt
I1i
,I
8 I:
!I I
9 ii that? II

MR. SMITH: Yes. CHAIRMAN SMITH: All right, is there a second to

10
"z
11 i= o0:
0w
~ 12 ~ motion?
~r~
14 !. '" :r
15 ~ hands.
"0:
::>
16 zIn w 0z
17 IX <Il

DR. GIBSON: I'll second it. CHAIRMAN SMITH: Any further discussion of the
(No response.) CHAIRMAN SMITH: All those in favor, raise your
(Votes were cast with raised hands.) CHAIRMAN SMITH: All opposed?

(No response.)

19

CHAIRMAN SMITH: The vote is 13 to nothing, so that's!

20 adopted. Now if that be the case, if the staff could send us

a draft before the next meeting, we might be able to wrap it

up at the next meeting.

23

MR. TIDWELL: I can almost promise you that you

24 i won't, Judge.

25

CHAIRMAN SMITH: Who else is coming?

I

_ _ ._~

~

. __ .

~__ _J

PAGE 147

r---------- I --_._.-._.._-"'~~-~-'-~-~--

-------- --..--_.-

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

1

MR. TIDWELL: Well, you're going to have problems

il

I

2 !I with language there now that properly executes policy and

II

II

3 \1 you're going to sit around and try to draft from this table,

4 I! and I promise you that what you come up with is going to have
5 I!Ii problems and it's going to have to be reviewed one more time. II
6 ':1 I've just done it too many times. You might be able to do ii
7 II it but it would be a miracle if the language that you thought 8 II was going to do properly what you want to do, if it 9 I,iI doesn't create some problems that at least the Executive

10 Committee has to deal with.

"z

11 ..
o'"

CHAIRMAN SM~TH: Well let me make this proposal,

0-

w

~r~ ~

1")
-

'"
~

that we

hold

to

our meeting

on

the

28th,

that

you

plan

to

stay all day and we resume on the 29th.

.. 14 ;

JUDGE FINDLEY: If we come before breakfast I

'r<

15 .:> think we'll finish it.

"'"::J

16 ~ 'Cz"I

CHAIRMAN SMITH: Well, would you like to start at 9



17 ~ on the 28th? Is that a problem to anybody? How's the

Ib Early Bird?

19

MS. ADAMS: I think I get in at 8:30, so I should

20 be able to make it.

21

CHAIRMAN SMITH: All right, let's call the meeting

22 for 9 on the 28th to proceed all of that day with time out

for lunch and resume on the 29th, so if you will hold both

24 I days and let's wind this deal up.

25
i...:---

JUDGE FINDLEY: Did we get a room yet?

._~

~_~

.

. . - --.---.--~~;

PA(~E 148

MR. HILL: Yes, 337-B.

CHAIRMAN SMITH: The staff will send you a notice.

MR. HILL: Along with a copy of the fourth working

4 draft and hopefully final working draft.

5

CHAIRMAN SMITH: Can you make one other decision?

6 Inasmuch as our recommendations have eliminated the

7 Comptroller General, if you will turn to your disability

8 provision. In your attachment that has the cover letter, it's

the third to last page, "Disability of Executive Officers".

10 We have provided there that any three of the above named

,~

z

II

~.
.Yo
o.Q...

executive officers may certify that another executive officer

@;i is disabled and that's one, two, three, four, five, six, seven.! If you eliminate the Commissioner of Insurance that reduces it

14 ;... to six and presumably the target would not be allowed to

'<

"I:

15

.:>
<.:J

vote,

so

that

reduces

it

to

five.

I am uncomfortable with

<Yo

:::>

16

~...
Q

that

few.

It seems to me we should put another body in in

Z

17 ~ place of the Commissioner of Insurance of the group eligible

18 for three of them to petition the Supreme Court.

19
MR. HILL: Or reduce the petition to two.

20

CHAIRMAN SMITH: Well you could reduce it to two,

21 but we have discussed before that we didn't much like that

22 where two buddies could go off in a smoke filled room and

23
decide one of their enemies was incompetent.
24
MR. HARROLD: The Speaker of the House.

2.~
i!
i.L-_ _.__.

CHAIRMAN SMITH: That has been discussed before, that!

~.~~~

~

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

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

.--~.----

~1 we might insert in there the Speaker of the House, as another
2 person entitled to participate in this procedure. It would

3 i take some :rewording of paragraph II, Mel, as well as I.

II

'1

4 il

MR. WISEBRAM: Is he considered an elected

5

'Ii
II

Constitutional officer?

,1

6

:1 !I

CHAIRMAN SMITH:

!I

No he's not, that's the problem,

7

II
II

they would have to adopt language to do that.

It either

'i

8 'i!l ought to be reduced to two or we ought to kick in another i:

9

ii
i:

body.

10

JUDGE FINDLEY: Reduce it to two would be a better

way to do it. The Supreme Cou~t is going to look at it and

if it is brought on before them, I'm sure the defense is

going to raise any wrongdoing or alleged wrongdoing of the

two persons or three that br-ought it up.

15 ~
":'":>'

MR. TIDWELL: There's a taint

16 'z"
0z

CHAIRMAN SMITH: What did you say?

<

17 "'""

MR. TIDWELL: I think if I were the Attorney General

18
and my two enemies went off, and they knew they weren't going

19 to prevail before the General Assembly but in the headlines
20
there has been a petition filed against the Attorney General

21
,! because he's mentally disabled. I think all of the

22
, Constitutional officers are going to worry about two.

23
CHAIRMAN SMITH: Well that's what we had discussed

24
before. You could, since we now have a President Pro Tern of

25

I,ii the Senate

you missed that one too._~-- in lie.u~. of the

--'

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

PA(;E 150

11
II

Lieutenant

Governor,

you

could

add

both

of

those

as

being

the

II

2 II pool from which you could get three petitioners. Then it ,I

3 i""i would be up to the Governor, Lieutenant Governor, Secretary

Ii

I'

4

Ii
"

of State,

Attorney General,

Commissioner of Agriculture,

II

ii

5

I:
1:

Commissioner of

Labor,

Speaker of

the

House

and

President

Pro

ii

6 II Tern of the Senate, would be the pool of prospective petitioners I~

7

it
i!

to ,the

court.

,!

II 8 I!

MR. SMITH: I think if you put either house of the

'I

t,

i:

9 il legislature, you ought to put both.

II

10

CHAIRMAN SMITH: How do you I don't know why

11 ~"z you all don't sit together -- how do the House members and the
o
"w-
~}._-~ ~ ~ 12 '" Senate members feel about that? REPRESENTATIVE BUCK: That's why, because we're on

14 .~ one side and they're on the other.

lV' <I
:r
15 .:>

SENATOR GILLIS: Just carrying on the tradition.

"0::
::>

16 a~ z

REPRESENTATIVE WOOD: You might as well put both

17 <~I bodies, that way you've got no problem.

18

CHAIRMAN SMITH: Okay, can I get a motion?

19

SENATOR GILLIS: It'll pass easier that way.

20

MR. GARRETT: I move we add both of them.

21

CHAIRMAN SMITH: Okay, second?

22

MR. HARROLD: I'll second it.

23

CHAIRMAN SMITH: Any further discussion on that?

24

(No response.)

25

CHAIRMAN SMITH: All those in favor, raise your hands?

PAGE 151
~ ------------~----~----------- ------ -------- - ------ ------------------- ------- ------- --I (Votes were cast with raised hands.)

~ !I

MRS. HOLMES: It wouldn't be the President Pro Tem.

:1

~I

:1

3 ii I

MR. HILL: President of the Senate.

,!

4

CHAIRMAN SMITH: Excuse me, President of the Senate. t

5

MR. HILL: President of the Senate and Speaker of

6 the House.

7

CHAIRMAN SMITH: Do I have any votes over there?

8

MR. HILL: Now these two wouldn't be subject to

9 being removed, they are strictly there for petitioning

10 purposes.

"z

11 f-. o0:

CHAIRMAN SMITH: Right. They are only removed by

Q.

~

17 0:

@~~ the people. MR. STERNE:

Sidney, I assume we've got some fall

14

>-
I-

back

situation

to

take

care

of

this

in

the

event

that

our

~

J:

15

~~
""":::>

proposal

that

the

Comptroller

General

not

be

an

elected

officer

16

i
'<":>

and

that

the

President

of

the

Senate didn't

fly,

our

proposal

2:

<I-

17 ~ with respect to that.

18

CHAIRMAN SMITH: Well let's see, they're in separate

19
Articles, aren't they.

20

Ii

MR. STERNE: Well of course if your Comptroller

21 'i
General thing doesn't fly, you've then got another bite.

22

MR. HILL: We have to keep track of this in the

23
General Assembly and 1 1m not sure what's going to happen.

24
We're going to have this problem in a number of places.

25
SENATOR GILLIS: You wait till it gets to the Senate

r

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

PAGE 152

il Judiciary Committee and the House Judiciary Committee.

~,

"'I
i!

'" 'II[I,

CHAIRMAN SMITH: Okay, if these are your wishes

3 II nowk the staff is going to try to get you at least by the

4

IIIi
11

Monday

before

the meeting

on Wednesday,

the

proposed

language,

jl
5 .: and please look at it before you come over here, and I thiiik
i

h :i it will speed up our process at 9:00 on the 28th. ,

7 il
8 Ii:1:l to keep

We could have a general Constitutional provision politics out of all these offices.

I'I,

9 ,i 1!

MRS. HOLMES: I'm for that.

10

11 ".z..

o0:

0-

w

;.

12 ~

~~ )r~ ~

14 ;... 'r<
15 ,:,
"'~"
16 ~
o
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-< 17 ~

CHAIRMAN SMITH: Well thank you all for coming. (Whereupon the meeting was adjourned at 1:56 p.m.)

18
Ii

19 II ii Ii
20 i

11

21

ii
Ii

22

23 24 ,,

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C E R T I F I CAT E

153

I, Peggy J. Warren, CVR-CM, CCR A-171,do

4 hereby certify that the foregoing 152 pages of transcript

5 represent a true and accurate record of the events which

transpired at the time and place set out above.

7

8

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i

Peggy J. Warren, CVR-CM, CCR A-17~

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INDEX Committee to Revise Articles IV and V Full Committee Meeting Held on Nov. 14, 1979

FULL COMMITTEE MEETING, 11-14-79
Proceedings. p. 3
ARTICLE IV: CONSTITUTIONAL BOARDS AND COMMISSIONS Section I: Public Service Commission Paragraph I: Public Service Commissison. p. 145
Section II: Board of Pardons and Paroles Paragraph II: Powers and authority. pp. 40-63, 112-143
Section IV: State Transportation Board Paragraph I: State Transportation Board; Commissioner.
pp. 18-39, 93-107
Section V: Veterans Service Board Paragraph I: Veterans Service Board; Commissioner. pp. 107-112

ARTICLE V: EXECUTIVE BRANCH
Section III: Other Elected Executive Officers
Paragraph I: Other executive officers, how elected. Commissioner of Insurance. pp. 3-18, 64-68, 71-72, 151-152

Commissioner of Labor. pp. 68-71
State School Superintendent. pp. 85-93 (See also Article VIII, Sections II and III)
Paragraph IV: Attorney General; duties. pp. 77-81

Section IV: Disability f Executive Officers
Paragraph II: Procedure for determining disability.

pp. 148-151

ARTICLE VI, Section VIII: District Attorneys
Paragraph I: District attorneys; vacancies; qualifications; compensation; duties; immunity. pp. 72-81

Full Committee Meeting 11-14-79 Page 2
The Constitution f 1976, Article V, Section III
Paragraph V: Fees and perquisites denied. pp. 46-48 (no comparable provision)

PAGE 1

, IIii

l I

4

ARTICLES IV AND V (EXECUTIVE BOARDS & COMMISSIONS)

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OF THE

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CONSTITUTION OF GEORGIA

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Room 337-B, State Capitol Building Atlanta, Georgia Wednesday, November 28, 1979 9 :OO~ .m.
+++ ++ +

PRESENT:

COMMITTEE MEMBERS:

CHAIRMAN SIDNEY SMITH MS. BERTA ADAMS
REPRESENTATIVE THOMAS BUCK MS. DELORES CROCKETT JUDGE EMORY FINDLEY MR. DAVID C. GARRETT DR. FRANK GIBSON SENATOR HUGH GILLIS MR. CHARLES GOWEN MR. THOMAS HARROLD JUSTICE HAROLD HILL MS. DORRIS HOLMES SENATOR JANCE HORTON SENATOR JOSEPH KENNEDY MR. SIDNEY B. SHEPHERD MR. A. H. STERNE REPRESENTATIVE LOTTIE WATKINS REPRESENTATIVE JOE T. WOOD

OTHERS PRESENT:

14

MELVIN B. HILL, Jr.

MS. VICKIE GREENBERG

j ~ .,,-

MR. CHARLES TIDWELL

MR. ROBIN HARRIS

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MS. CYNTHIA NONIDEZ

MR. MICHAEL HENRY

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MR. THOMAS THORNE-THOMSEN

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PRO C E E DIN G S
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CHAIRMAN SMITH: We have a quorum, so I'm going to

~ suggest we go on and start.

4

Each of you has been mailed a copy of the current

5 draft, and it has at the top Fourth Working Draft, November 28"

b 1979, so if you will direct your attention to that, there is

7 one overall change. The effective date of all of the proposed

6 articles is going to be changed to July the 1st, 1981, and this

9 allows the preparation of the complementing statutes to be

10 introduced and passed at the term after this one, and then we

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Harris and Melvin so that all the proposed articles will have
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'-~ 14 ~ an effective date of July the 1st, 1981. That will be a change

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In terms of the procedure, there remains for us to
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)7 ~ agree on the language, and in your little folder kit are some

18 proposed comments prepared by the staff which will be forwarded

i " with our final draft to the Select Committee simply so they 2() will understand why we did certain things.

21

The important thing for us to agree on, though, is

') ) the language of the draft, and I think the proper procedure

would be to do it sentence by sentence, and what I would like 24 to do is say everybody read the first sentence and then see if

there are any suggestions, and without voting I hope we can

assume that it is approved unless somebody has a suggestion,

2 and then we can take that up, and maybe we can get through at

.3 some reasonable hour.

4

Okay. Does everybody kind of understand?

5

All right. Let's look at the first sentence under

f Public Service Commission.

7

JUSTICE HILL: Can I interrupt the protocol immediately

and inquire whether or not just from an organizational standq point it might not be better to have constitutional boards

10 and commissions as Article V and executive officers as

It seems to me you kind of split up the flow of the

constitution to go from the legislative branch, which is

~ Article III, to constitutional boards and commissions, and

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to

the

Governor.

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CHAIRMAN SMITH: Thank you. It makes sense what he

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priorities, does anybody have any objection to that protocol

19 i change?

20

JUSTICE HILL: The staff may.

CHAIRMAN SMITH: All we've got to do is put it back

12 in the typewriter.

_,.,'

JUSTICE HILL: All the numbers will probably change,

the cross references and so on.

CHAIRMAN SMITH: Oh, yes.

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II
Ii

MR. HILL: That can be worked out.

ii

PACE 5

1 HII

MR. HARRIS: Why don't we just assume this is what

;1

,, your desire is and we will work towards that goal. If we can

4 do it, we will, and if we can't we'll just --

"

CHAIRMAN SMITH: All right. Then new Article V,

(, we will start with it, the first sentence.

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'7

It's a matter of English, but I prefer the words

g "such jurisdiction, powers and duties as provided by law.

Any comment on the first sentence?

10

The second sentence.

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JUSTICE HILL: I have this question. We have five

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REPRESENTATIVE BUCK: No, they go on the second terms,

14 )-

JUSTICE HILL: So they're on election years, so it

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All right . Then this is going to mean you've got a

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17 ~i change of two at anyone point. It occurs to me that the

IX Governor with the appointive powers, that there may not be

19 quite the stability in the Public Service Commission as there

20 has heretofore, and their cases run quite a long time. If

21 that be the case, they couldn't start any case within the

")'1 i estimated time of completion of that term unless the members

'~1,)' presently on the board are going to hold over to complete any

24 pending cases that they're on.

),

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MR. HARRIS: Haven't you covered that in the last

PACE 6

sentence by stating "The qualifications, manner and time of

~ appointment ... " shall be as provided by law?

~

The General Assembly could say we have one ~ach year.

JUSTICE HILL: Except you're saying they will serve

' ! out -- Oh, I see, make that kind of change. Excuse me .

b

It says they will ,serve out the remainder of their

7 respective terms. You're suggesting, Robin, that the statute

Si might even provide it would be longer than that?

MR. HARRIS: No, I'm suggesting the statute would

10 provide for when the appointment times come they could be
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11 ~ appointed in such manner as to be one vacancy occurring each ~
(t~\ ....., ~12 "~.' year with the single exception of the sixth year when there would be no vacancy. which would solve I think the problem \ .~ .. !
14 ~ you are

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JUSTICE HILL: Except in the case of a two-two vote

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MR. GOWEN: I don't believe you could do that. I

Ii{ think as this says that as their terms expire they get a six-

1<) year term, so if two of them expired the same year you're going

20 to have two with a six-year term. I don't believe the
,.
legislature could take away the, shorten the term of a person

who the constitution says was appointed for a six-year term.

CHAIRMAN SMITH: But I think Robin is talking about

ultimately they could do that. MR. GOWEN: Not if the constitution says their term

PAGE 7

shall be six years. That's what you've got in the other

sentence I guess, "All terms of members appointed by the

3 i Governor shall be for six years."

CHAIRMAN SMITH: I see what you're talking about.

5

MR. GOWEN: Therefore it could not be changed.

(,

JUSTICE HILL: While we're on this problem we could

7 add another ingredient to it, and that is that I think that the

confirmation by the Senate is more meaningful if the vacancy

occurs while the General Assembly is in session.

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and there's

an interim appointment subject to

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confirmation six months or a month later the input of the

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Senate on that office is not nearly as great as it might be

if the appointment took place at the time while the Senate was

15 :.~ in session.

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CHAIRMAN SMITH: When do their terms now expire?

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MR. HARRIS: At the end of the calendar year, at the

end of the calendar year of the general election in which they

19 come up.

20

JUSTICE HILL: I was going to suggest it be plus

,. _1 thirty days, which would throw it into the term of the General

'"1
Assembly or the session of the General Assembly.

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MR. GOWEN: Isn't that something the legislature

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could handle?

JUSTICE HILL: It might be.

CHAIRMAN SMITH: Let's go back to the first question,

., that is if it's two-two-one now should we endeavor to make any

1 change in that sort of --

~i

Is it on alternate years; is that what it is?

MR. HARRIS: Yes, every general election year.

MR. TIDWELL: Judge, it can't be two-two-one.

7

MR. HILL: There are six-year terms, so I think that

8 every two years you either have two of them elected, or in one

9 case you have one of them elected. That's why it's two-two-one

10 on six-year terms.

CHAIRMAN SMITH: The question is, I assume it is

12 ~ two-two-one on alternate years, on election years. Should we
~ ~ ~, ...... endeavor in the constitution to make any change in that,

i.14 because I think the feeling is here that the legislature could

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MR. HARRIS: You could solve it by saying that all

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1~ more than six years, and then the General Assembly would have

19 the power

20

CHAIRMAN SMITH: To change it then. You could have

a four-year, a five-year and a three-year, this kind of thing,

and work it out eventually.

Does that suit everybody?

24

Well, we were on the second sentence.

25

MR. STERNE: My only question about the second

rr------------------------------------- -- - .-- ....-.---..---- .. - .--._- .--. . .--------------.-
Ii sentence is whether that date stands up.

PAGE: 9

, II

CHAIRMAN SMITH: It would be July the 1st.

III.

3 Ii

MR. STERNE: It would be July?

:"1

4

CHAIRMAN SMITH: Yes. I don't think it would change

5 the election, but the effective time of it might not have some

6

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enabling

statute.

Okay. So the second sentence, before we get to the

other, will stand as written except for the change of July the

1st, 1981.

10

All right. The third sentence begins "As each term

II " of office expires, the Governor shall appoint a successor as

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I~ " legislature sees fit to do that.

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Is everybody in agreement on that?

20

JUDGE FINDLEY: Would that mean that the Governor

21 could not appoint one to succeed himself? Is it the intent

of this body that no member could succeed himself?

CHAIRMAN SMITH: I hope you would have some

24 permanancy over there.

25

JUDGE FINDLEY: When we say for not more than six

years, that's the only question I have.

;;

MR. HARRIS: Each time you appoint him.

3

MS. CROCKETT: At a time.

4

CHAIRMAN SMITH: Could say each term of members

appointed by the Governor shall be not more than six years.

A VOICE: Judge, quite often in cases like this we

7 say a person should serve a term of six years and until his

8 :i successor is appointed and qualified. That would take care
'I
9 ," of the problem.

10

CHAIRMAN SMITH: You mean the thirty-day thing he

"1:
was talking about?

Let's take them one at a time.

The question raised by Judge Findley is could any

court like the Supreme Court read into that -- Are you

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JUSTICE HILL: I would understand it, but I could not

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speak for the entire court.

10

What about shall be for terms of not more than six

19 years?

20

CHAIRMAN SMITH: You mean have it read all members

21 appointed by the Governor shall be for terms --

JUSTICE HILL: All terms of members appointed by the

Governor shall be for terms of not more than six years. It

seems to me that might eliminate the construction that it

would impose a six-year or a one-term limitation.

PAGE 11

CHAIRMAN SMITH: All right. The inserted language

~ will be terms of not more than six years, and then the suggestion and until their successors are duly -- What's

4 i the word we want?

5

MR. HARRIS: Appointed and qualified.

MR. GOWEN: Shouldn't you have a general provision

7 somewhere in the constitution that applies to all public

officers? You don't want a hiatus in the public office,

somebody has got to discharge the duties. It seems to me a

10 provision that applies to all public officers that they would

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think

there is a statutory MR. HILL: There

provision now to that effect. is a provision that says the

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IS .:> provided by law. There is a catchall provision that the

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provision

of

that

kind

in

here.

18

CHAIRMAN SMITH: Well, but his question is -- and

1') this is probably the converse argument -- suppose the Governor

20 does not appoint, does the fellow just serve forever?

)1

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MR. GOWEN: I think so. I think the Supreme Court

11 decided that in the two-Governor case, Ellis Arnold held as

23 I Governor until his successor was elected, properly elected and 24 qualified. I think that folbws.

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CHAIRMAN SMITH: What I'm wondering is, though, if

.

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PAGE 12

I !i the fellow's term expired wouldn't there be more pressure on

2 I:1i the Governor to fill it than just let it sit?

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3 ii

MR. GOWEN: I think the Governor would go ahead and

!

4 fill it. There have been Governors who have had difficulty in

5 making up their minds.

II

6 'I I'

MR. STERNE: Does that sort of provision require that

"

a man who's resigned must hold his, continue holding his office

8 until the Governor at his pleasure appoints somebody to take

9 his place?

10

CHAIRMAN SMITH: That's ~ question.

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MR. STERNE: If he took a job somewhere else

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JUSTICE HILL: I think it doesn't operate in cases of

resignation or death, for example.

14 ;..-.

CHAIRMAN SMITH: The real question here is whether

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MR. STERNE: I don't see how we can.

J7 ~

CHAIRMAN SMITH: -- or exigencies by the constitution.

IN

I agree, it would be better if all this was handled

III by a separate --

20

As a matter of fact, this language about everybody

21 under the new constitution would be cleaner if it was put

22 somewhere else.

23

MR. GOWEN: Why don't you put in here, as Judge

Findley suggested, then leave it up to the Select Committee

as to whether they can cover it with one provision somewhere

PACE 13

I ' in the constitution. CHAIRMAN SMITH: Where we would stand then, I assume, I
I
J is that after the phrase "terms of not more than six years,

4 and until their --"

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JUSTICE HILL: The language from the Governor's

(, provision is and until a successor shall be chosen and

7 qualified.

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MR. HILL: Until their sucessor shall be choSEn and

9 qualified?

10

JUSTICE HILL: And until a -- that's as the Governor,'~I

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1] ~ office. You may want to

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j'C-"T-"_~ ~~ fourth sentence?

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Melvin, will you read the whole

14 >-

MR. HILL: All terms of members appointed by the

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16 ~ until their successors shall be chosen and qualified.

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CHAIRMAN SMITH: Okay.

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MR. TIDWELL: Haven't you just undone what you did

]i) ;i by saying not more than six years and until a successor is

20 chosen and qualified? You haven't done anything.

2!

CHAIRMAN SMITH: In the sense of inhibiting the

1 ' Governor is what I was talking about a minute ago.

MR. TIDWELL: By adding and until their successor is 24 chosen and qualified completely negates "but for not more than

six years."

CHAIRMAN SMITH: If he refused to act.

MR. TIDWELL: All the Governors are a little slow in

naming successors. There's some intervening time between the

expiration of the term and until he appoints a new one.

CHAIRMAN SMITH: What happens now; they just hold :i:: over, don't they?

MR. TIDWELL: Yes, sir.

MR. GIBSON: Are we going to run into this on every

one of the provisions?

CHAIRMAN SMITH: We are. We might as well wrestle

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with

it now and get us

a pattern.

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JUDGE FINDLEY: I was going to ask the further

question then, in view of Charlie's comment would this mean

that the appointee if somebody terminated in the midst of a

six-year term would the appointee be for the unexpired term

to fill out that six years?

CHAIRMAN SMITH: That's covered over on the vacancy

provision.

JUDGE FINDLEY: All right.

20

CHAIRMAN SMITH: And it is

21

MR. TIDWELL: Just let him hold over.

1 '1

You know, if the Governor is anxious to get rid of

him he'll appoint somebody else. If he's satisfied with the

man, he will reappoint him. If he's having trouble making up

his mind he just continues on until he can get somebody.

PAGE 15

I don't see the problem that you all are trying to address.

CHAIRMAN SMITH: We didn't have any until you made

your last comment.
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(Laughter.)

S

MR. TIDWELL: Do you want me to hush?

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CHAIRMAN SMITH: No.

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What we have proposed, Charlie, is no different from

~ the current system.

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MR. TIDWELL: Well, I just thought the committee

might be interested in knowing -- I thought you weDetrying to

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II ~ limit the terms of the Governor's appointees to six years.

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CHAIRMAN SMITH: That "not more than six years" was

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14 t put in to allow the legislature to restagger the terms if they

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15 ~ wanted to. That was the reason for that, and that's how the

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"not

more

than"

came

into

our

discussion .

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17 :;

MR. HILL: What if we made it even clearer still?

Here we go extending the thing, but "terms of not more than
19
six years as determined, or as provided by law, and they shall
'0
serve until their successor shall be chosen and qualified"?

Can't we just spell it out exactly what the term says? Would

that solve our problem?

MR. GOWEN: It might solve the problem, but it

changes what has been done.

If you want to give them a six-year term to have

L

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PACE 16 :" some continunity, from the language you have just suggested

2 the legislature could make the term a year or thirty days.

3

CHAIRMAN SMITH: They could with what we have on the

4 : table now, if it's "not more than," which is another danger.

5 They could create thirty-day terms for everybody.

6

REPRESENTATIVE WOOD: Sometimes that wouldn't be bad.

7

CHAIRMAN SMITH: That's what I'm afraid of.

8

(Laughter. )

9

MR. STERNE: Is there any big problem in leaving it

10 like it was here in the first place? Staggering, is that --

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CHAIRMAN SMITH: When we started monkeying around with

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it

in

order

to

allow

a

different

kind

of

staggering

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MR. STERNE: I'm not sure it's worth it. I like the

14 ~ clean language we had in the first place.

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CHAIRMAN SMITH: If everybody is satisfied with the

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two-two-one

rotation,

we

can

go

back

to

ground

zero

and

say

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17 '"f<l they shall be six-year terms.

18 :i

JUSTICE HILL: I think you've got a problem. How

!~

19 !"i long does a Public Service Conunission hearing last? It seems

20 like they go on forever in reading the press.

21

CHAIRMAN SMITH: They Wlld be no different in the

22 i future.

23 '

MR. STERNE: It's whatever problem you've got right

24 now I would think.

JUSTICE HILL: Except the turnover is not as great,

: T - - - ' .. -~-.-- -----~--.----~-----.-----

PAGE 17
- - - - - - l - ..- - . -- . . . ----~----.-.----- --.-- ....--.--. ..

and therefore I think the fear of starting a proceeding in

I

2 the first of November and having it run into a new member's

.~ coming on is not as prominent.

4

MR. STERNE: Why would the danger be greater under

5 this provision?

fJ

JUSTICE HILL: I think the Governors generally have

7 I: a tendency to appoint people with whom they are acquainted.
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CHAIRMAN SMITH: Well, surely they've got some rule

,
Y I now that if there's a pending case that the remaining three or

10 whatever it is can rule on it, don't they?

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JUSTICE HILL: I just don't know.

"-

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MR. GOWEN: I guess they do but, for instance, in the

primary election before Ben Wiggins knew he was off the

-- J4;. commission there wasn't any problem. The cases that they had ~ <: 1:

J '; ~ went on and were handled.

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MR. HARROLD: They limit some of the testimony I

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n

know

down

there,

and

it

seems

to me

they

kind

of wind

everything

i
down in December. You know, they'll get one rate case approved;

I') in December, and then come back in with a new request in

20 January.

.",

JUSTICE HILL: Maybe they can handle it.

MR. GOWEN: I don't think it really presents a 23 , problem.

-

CHAIRMAN SMITH: Unless there is a strong feeling

_, .("'

I
IL:~_upse~_!~_=-_~~~_=~~.~-=~~.:~_~:_~~.itl' we would be better

off

to

PACE 18

back to the base language.

MR. HILL: One last connnent.

I

3 Ii

What if we say all terms of members appointed by the

II
4 I: by the Governor shall be for six years, provided that initial

I:1i
5 ~: terms of such members may be as provided by law, so that the

6 initial times might be one, two three -- say the term shall be,

7 but allow for the initial term that the General Assembly could

come in and change that.

9

Would that eliminate your problem?

10

CHAIRMAN SMITH: I think that's the thought that Judge

z"
11 ~ Hill was trying to get over.

0..

w

~ 12 ~

MR. GIBSON: You would have a new man appointed every

~ ~ .._- year the initial term or the firs t term. so you could have --

, 14 I

~ each year the Governor could appoint a new man.



:r

15 ~
:'':"">

MR. HILL: My intention, you know, isn't reflected in

16 '~" what I just stated.

z

<l

17 ~

CHAIRMAN SMITH: I think we are buying more trouble

18 when we get into this.

19

MR. GOWEN: I move to leave it like it is.

20

MR. STERNE: Second.

21

CHAIRMAN SMITH: All right. So we go back to the

22 original language?

MR. GOWEN: Yes.

24

CHAIRMAN SMITH: Okay. If there is an office that

becomes vacant by expiration of a term it just becomes vacant,

I_i__ ._ _. ~__._~.~

~"_.__.. . .__

._

.

._~.

.__ ._

._.

. .__.

l'ACE 19
rr----------.---- -.------------...-.-....
Ii and the Governor has power to fill that vacancy under a later
I
2 I provision. Okay.

!

3 II

All right. We're probably going to have the same

!i

4

II
ii'I

question

all

the way

through here,

so we need to be

consistent.

!I

5

il
Ii

JUDGE FINDLEY: One question. Sentence 3 is "As

6

il
Ii

each

term of office

expires,

the

Governor

shall

appoint

a

II
:1
7 I!Ii successor as provided herein," and "All terms of members

jl
8 !i appointed by the Governor ... " Why are we repeating "appointed
!:
9 II'i by the Governor"? If he appoints them, then all terms of

10 members shall be for not more, or for six years or whatever
Czl
11 ~ the present language is. By repeating "appointed by the o "wdon't know how that ties in with other things. It

Is there any other way to put them in there now

15 ~ except appointment by the Governor and, if so, then there's no

0>'
::>

16 '~" point in repeating that three times in three sentences.

z

<:

17 ~

A VOICE: I think that one reason that was left is

18 because your present members are elected.

19

JUDGE FINDLEY: The sentence immediately preceding it,

20 says that "As each term expires __ "

21

Well, they first go into -- up there it says "Such

22 Commission shall consist of five members appointed by the

23 Governor, subject to confirmation by the Senate."

24

Then they go on in the next sentence, "As each term

25

I
;i

of

office

expires,

the Governor

shall appoint

a

successor."

__ --"- 'I
. ~ - _ . _ - ~ . , _ . _ - - - - - - - - - - - - - - - - - - _ . _ - - _ . ._~----

PAGE 20

.. ;-r--------.-.------~-.----- ,--.----'~-.--.--

Ii

I I!,i

Then the fourth sentence, "All terms of members

I,I

2 I appointed by the Governor ... " Well, that's the only way they

:I can get in there, so "All terms of members shall be for six

4 years."

CHAIRMAN SMITH: All terms of members shall be for

6 six years?

7

MR. STERNE: No problem with that.

JUDGE FINDLEY: That will shorten it.

() ,

CHAIRMAN SMITH: The fifth sentence "A chairman

10 shall be selected by the members of the commission from its

'z-"
11 f: membership," assuming they can agree.
,o

~VR" 12.~

Okay. The last sentence is sort of stock language

~ ~ r-~\

~
throughout this, and the purpose, of course, is to have the

14 ~ specifics of their operation placed under legislative control.

<c

:r:

15 .:>

I still have a little problem with that "manner of

-:)

:':">

16 ~~ time and appointment" phrase throughout here. What does the

z
<l
17 ~ staff think that means in view of what we have just been

through?

19

MR. HILL: Mike?

20 I

MR. HENRY: The manner of appointment is obviously

21 provided for in the provision.

CHAIRMAN SMITH: Yes, so is the time.

-"-'

MR. HENRY: The time would be -- if everything is

24 worked out right from the beginning or the creation of this

2:-' ! then it's a staggered term and the time would take care of

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

------- - -- -

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

PAGE 21
-- --------- ---- ----- ---- ---------------------------,

itself, but that has been provided for in all types of places I

2 in the constitution, so I think it could be ~eleted, though.

3

CHAIRMAN SMITH: I just didn't want the legislature,

4 for example, to pass an act that sought to change what we have

5 just done and then have an argument that there's an equal

6 delegation of power in the people to the two.

7

JUSTICE HILL: Does not the same comment apply also

with respect to the phrase "filling of vacancies"?

9

MR. HENRY: In some instances we don't provide for

10 the filling in the constitutional provision.

CHAIRMAN SMITH: This phrase here means that after

the Governor has appointed somebody for six years and he either

-

resigns or dies, what happens. I mean that is what that is

intended to cover, isn't it?

15 ~
"'":oJ

JUSTICE HILL: We have the provision that the

16

~
w C

Governor

will

fill

all

vacancies.

'Z

1"' ~"

MR. HILL: Unless otherwise provided by law, so there

Ii:: is already that catch over there.

19
CHAIRMAN SMITH: The proposal is, then, that it read

20
"The qualifications, filling of vacancies, compensation,

21
I; removal from office, and powers and duties of members of the

commission, including the chairman, shall be as provided by

law. "

-

24

What does it mean, removal?

JUSTICE HILL: By a method other than impeachment.

PAG1; 22

CHAIRMAN SMITH: Then everybody thinks that ought to be left in there in case there is some other provision.

MR. HILL: This is true of all the boards that are appointed, this provision is in there that the General Assembly

should be allowed to provide for removal from office other than impeachment for the members if they choose.

MR. STERNE: If they're convicted of a felony or whatever.

CHAIRMAN SMITH: Then the last sentence will finally

10 read t~e qualifications, filling of vacancies, compensation,

~@

"z
11 ::< removal from office, and powers and duties of members of the o "w-
12 ~ commission, including the chairman, shall be as provided by

~} "-,, ~ law."

~ 14

MR. GIBSON: Are you satisifed with the filling of

r<

15 .~ vacanc ies ?
"'::"<

What can the General Assembly do?

Could it change

16 o~ t he method of appointment of a vacancy?

z

<

17 :;

Does that preceding stuff only apply to original

18 appointments? If there's a vacancy, could the General Assembly 19 set up a different system of appointments?

20

MR. HILL: Presently the vacancies provision gives

21 i the Governor in the absence of any statutory provision the

22 I power to fill vacancies.

23

Now, of course, if the constitution would provide

24 for the method of appointment then they wouldn't have that

25 ~ authority, so perhaps here since you don't to encourage any

PAGE 23

misunderstanding about the fact that if there is a vacancy

-

they should be appointed by the Governor as the initial

3 appointments are, it would be better to strike this from here.

4

CHAIRMAN SMITH: Let's leap on to the other question,'

the later provision that allows the Governor to fill a vacancy.

6 I Should that be absolute? That's really the question. Should

7 he always have the power to fill any vacancy of any public

8 office?

')

MR. GOWEN: I should think he would in this instance

10 since we have given him the power of appointment.

Where it was an elective office there might be

some argument about whether he should fill it for the balance

of the term or whatever it is, but here where he has been given

~ the sole power of appointment it doesn't seem to me it's

<:

1:

15

.:.
~

necessary.

=,

16 z'0 'zC"l

CHAIRMAN SMITH: I think we agree it's not necessary



17

'"
00

here,

but

the

question

is

later

on

--

and we'll

get

to

that

Ix hopefully

19
MR. GOWEN: We will, bit I imag~ne that would bring

20 on some discussion as to whether elective offices should have

21 elections or whether they should be filled by the Governor for

22 the balance of the term.

23
We have had some discussion of that in one of the

24

-'

subconnnittees.
25

CHAIRMAN SMITH: I hear sort of a consensus that we

PAGE 24

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

strike filling of vacancies.

,

2

MR. STERNE: When you say each term of office expires I,

3 does that cover the situation where midway in a term a man

dies or runs away or whatever? If not, don't you need this

filling of vacancies or need some provision for somebody to do

6 I' that?
I:'
7,

JUSTICE HILL: It seems to me the second sentence

8 mandates that the vacancies will be filled by the Governor.

I'

9 '!i:

CHAIRMAN SMITH: I think maybe the question Billy is

10 raising, though, is suppose after three years of a six-year

J

11

'.
;.oa.:.:;.

term

a

fellow dies

and the

Governor appoints,

is he

appointing

@r~~12 : for six years at that point, or is he appointing for three? MR. STERNE: My question is whether the term should

14 ,~ expire. The man has expired, but should the term expire.

~

<;

r

IS .:>

MS. CROCKETT: Under filling of vacancies it says

c?

'::">

16

!i'
Q

that

the

Governor

can

appoint

for

the

unexpired

term

unless

z

<0:
17 :; it's otherwise stated by the constitution or by the law, so

18 whatever we choose to put in here, nothing is already covered

19 under filling of vacancies.

20

CHAIRMAN SMITH: Does everybody kind of agree that

21 the later provision in the example raised by Billy would only

be for the unexpired term? That's the question.

_,.''

It sounds to me as though it is, it says if there is

24 any vacancy he can only appoint initially at least for the

unexpired term.

~------~ --~;--~-;~C~-T;~-- ~i~~t .

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

i'.-\GE 25

2 II

MR.. GIBSON: Unless otherwise provided by law.

3 IiI!iI

CHAIRMAN SMITH: Which we may s trike when we get

II
4 ii there.
5 II'I"i
II

Okay. Then the proposal is that we strike filling of

vacancies in the last sentence, so it will finally read "The

7 qualifications, compensation, removal from office, and powers

8 and duties of members of the commission, including the

9 i chairman, shall be as provided by law."

10

Okay. Is everbody reasonably satisfied with that

"z

j 1 ~ paragraph?

o

'w"

-' ~~rv~' ~ ~'" d

12 ~

Okay. The next one is Section II which is the State

~

Board of Pardons and Paroles.

14 ~

I direct your attention to the first sentence that

'r<

15 ~ was rewritten from the last draft at the suggestion of the board

:'"J

16 ~o to spell out the traditional language of what they were

z

4
17 ~ empowered to do as opposed to the catchall phrase of executive

18 clemency which we discussed before, so that language "powers

19 to grant reprieves, pardons, and paroles," et cetera is lifted

20 , from the present . i const~tut on.

21

JUSTICE HILL: I suppose no matter where you put the

22 last phrase "except as may hereafter be provided by law" there's

23 always a question as to what it modifies.

24

If you put it up after the words "with the powers"

25 it may be limited to modifying "to grant reprieves, pardons

i
~l

._.._"_.. ~

.._.

.. _._ _ ._ _.~

_

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

II and paroles," and not to the remainder.

II

2 I'II

If you put it down at the end where it is, it might

3 i:1i be understood only to modify "and to 'remit any part of a
:1
4 sentence for any offense against the state after conviction."

5

Is it the sense of the committee that that phrase is

6 intended to modify all of the powers of the Pardons and Paroles

7 Board?

CHAIRMAN SMITH: It is, and of course you could

9 I start the sentence off that way, let that be the first phrase,

10 "except as may hereafter be provided by law."

\:l

Z

11 >0;

JUSTICE HILL: "There shall be a State Board of

o

0-

w

@SV

12

~
~

Pardons

and

Paroles"?

(~~, ~-_ _~ .,",","0 >-.3 ..

CHAIRMAN SMITH:

That isn't good English, is it?

]4 ;.
';;

MR. GIBSON: You could put it right after State

"1:

15 ~ Board of Pardnns and Paroles, "There shall be a State Board

:'>"

16 ~'" of Pardons and Paroles, and except as provided by law it

z

<
17 ~ shall be vested with --"

18

JUSTICE HILL: Excuse me. Maybe this is what you

19 just said, "There shall be a State Board of Pardons and

20 Paroles which shall consist of five members appointed by the

21 Governor, subject to confirmation by the Senate; except as

22 may hereafter be provided by law the board shall be vested

23 ! with with the powers u

24

CHAIRMAN SMITH: Does everybody understand the

25 'i problem? The question is whether the phrase "except as
----_._------------------------------- --------- --------------- -

PAGE 27

[I----------------.-----~----------

1 Ii may hereafter be provided by law," whether it would modify

-

'!
2 il all of the powers or only the one that's adj acent to it.

.,I

MR. STERNE: Mr. Chairman, the subcommittee knocked

out all that language. The feeling is it's a limiting,

restricting sort of provision. I don't know if ten years from

now that would cover all the things we look to the Pardons and i

Paroles Board to do, and we thought general language with the

legislature having some opportunity to provide would be better

than this, and I still do think so.

10

CHAIRMAN SMITH: The discussion as the last meeting

Czl

1!

...
"o"

was

that nobody knew

exactly what

the

phrase

"executive

:>.

~(~@--l)~ip "0': clemency" meant.

MR. STERNE: That's right. That's something else

14

I
>l;;

the

big

committee

ran

in.

We didn't put it in there, I'll

<

r

15 ~ promise you.

'":;>

]6 ~

We haven't attempted to define specifically the

z

<

17

""
00

duties

of

the

boards

otherwise

than

this

one,

and we're

trying

16 to do it here.

19

CHAIRMAN SMITH: Of course, you could go back to the

20 , original phrase of executive clemency, and then immediately

21 put in a statute which has this language in it as being the

22 powers of executive clemency, and if they wanted to add

23 something later like -- I can't think of anything -- different

-

24 forms of execution or something, some easier than others, that ~:

25

u.: the

legislature ~

co. uld. change

i t ..

__. _ ._~~

I ~----------;el~~~~~:;~-al~ing ~~-~~t ~~ ~i~~-eren~--~~~ngs at

,I
2 II once again.

Ii

:1

3 Ii

Let's first with your permission, Judge, go to this

4 II question. II I:

5 il
III

Was there any discussion of a phrase other than

6 il executive clemency by the subcommittee? What do you think

'I

7 \1 executive clemency means, Justice?

8I I

JUDGE FINDLEY: A problem

I don't believe that

!

9 i is adequate. Of course, I have a philosophical difference as

10 to what the duties of the Pardons and Paroles Board ought to

"2-

11 ~ be, and I think there was some discussion, already, but I think

e ". . ~o.:>...

SV

12 ~ the paragraph ought to open "As provided by law, the Pardons

and Paroles Board." and then "shall have" whatever functions.

14 ~

CHAIRMAN SMITH: That's the second question.

~ ..:

J:

15 .:>
"""::J

JUDGE FINDLEY: No, that's

Well, if you started

16 ~ it off that way, then "shall provide executive clemency,"

z

17 ~ then that leaves it to the legislature to define it, to spell

18 out every part of it, adjust it as times change and so forth,

19 but the Pardons and Paroles Board never has a constitutionally

20 vested right to determine what executive clemency is; it's

2\ always determined by the people through the legis lature from .

22 time to time.

2.~'

Ii
,

CHAIRMAN SMITH: I'm not sure we want to go that far,

24 do we? Isn't the idea to make sure that the powers of

25

i
i

clemency

are not

in

the

executive

but

are

transferred

to

the

LL

.__~

.

.

~ ._

I'ACE 29
rr-------------------------~-------------
Ii board, and you've got to have some expression of that transfer
II
1 i of power, and if you simply create a board and say it will have
:1
3 Ii the powers that may be granted later by law, they may just give

4 them nothing, and then it would revert to the executive.

5

JUDGE FINDLEY: That's the other side-of the coin.

6 How far do you want to go? In that event, then, you're going

7 to have to define I believe executive clemency, and you've done

8 it here by spelling out reprieves and all of these other things~

9 Is that the definition that we want to place in the constitution?

10

I think that places in the board itself a constitu-

@

(:J
7-
11 ~ tional grant that is too far removed from any ability to adjust
."o.-.
1') ~'" H to the times from. year to y.ear as the General Assembly

~ ~ ~ .. meets and so forth.

14 ;~

The only way to get back to it again would be by

'<"
-I:

15 '.:> constitutional revision. (:J

:':":>

16 ~ ~

Now, the present constitutional provision is

Cl

Z

<

17 :ii extremely cumbersome as we all are aware, it's about four

lil times as long as what we have written, and they just revised

19 it what, two years ago, it was back before the people again.

20 It just keeps getting more and more complex. We ought to

21 !i narrow it.

22

CHAIRMAN SMITH: Billy, would you have any problem

23 if you used this language and then added a phrase "and such

24 other powers of executive clemency as may be provided by law"?

MR. STERNE: No, I don't have any problem with this
~---_._---------- - - - - - - - - - - - - - - - -- ------~------------- -- -----------------~.. _---- - - - -

PAGE 30

language except that I think you need something else to

2 broaden their powers if and when the situation would occur.

3

CHAIRMAN SMITH: Of course, the other thing is you

4 could say that it is vested with the powers of executive

5 clemency, including the power to grant reprieves, pardons and

6 paroles, et cetera.

7

MR. STERNE: I'm not sure what executive clemency

8 means, I'm not sure anybody does, but that's a good nice clean

9 phrase. Maybe that does it.

10

CHAIRMAN SMITH: Does that approach seem reasonable

"z

11

...
'o"

to

everybody?

Q.

w

@;i All right. Now let's go back to yours. The suggestion there is that it read "There shall be a State

14

; !;;

Board

of

Pardons

and

Paroles

consisting

of

five

members

:<r

15 ~ appointed by the Governor, subject to confirmation by the

'"::l

16

~
w Cl

Senate.

Such board shall be __ "

z



17 :;

MR. HILL: Except as hereafter may be provided by

18 law.

19

CHAIRMAN SMITH: Yes, except as hereafter may be

20 provided by law, such board shall be vested with the powers

21 to grant reprieves, pardons, paroles; to commute penalies;

22 to remove disabilities imposed by law; and to remit any part _,.'' any part of a sentence for any offense against the state after

24
conviction, and such other ... " It's very unwieldy.

~5

I

lL.

JUDGE FINDLEY: It is, and that's the part right there

~_~

. _ .__.

.

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

PAGE 31

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

- - ----~

~

-

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

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

I Ii that causes so much of a problem, an ongoing problem between

--

2 II the judiciary and the pardons and paroles.
II

3 iIii'

That is, any sentence that's imposed in the judicial

II
4 !Isystem be modified in its entirety or whatever by the Pardons

5 and Paroles Board.

6 II.1ii

CHAIRMAN SMITH:

II

The other way to approach it we were

7 11 talking about would say such board shall be vested with the

~,
g powers of executive clemency, including the powers to grant

9 repr~es and so forth. Wouldn't that take care of it, starting i
i
!
10 off that there's a limitation in the legislature? Does that

sense?

MR. HILL: Yes.

CHAIRMAN SMITH: Okay. Do you want to re-read it,

MR. HILL: Okay. "There shall be a State Board of

.c.:>.

::>

i6

':Xz.l
w

Pardons

and

Paroles

which

shall

consist

of

five

members

0

l-

<

17

~
,Xl

appointed

by

the

Governor,

subject

to

the

confirmation

of

the

It Senate. Except as may hereafter be provided by law such

19 board shall be vested with the powers of executive clemency,

20 including the power to to grant reprieves, pardons, and

21 paroles; to commute penalties; to remove disabilities imposed

22 by !: law; and to remit any part of a sentence for any offense ii
),
--' against the state after conviction.

24

CHAIRMAN SMITH: Okay. Does everybody understand

25 : where we are?

LL

~ ._...

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

.

.__ _ _

- _ _.. -_._._-----_.-

PAGE 32
__ -_. ._----_._------------ -'---'----- -------_._---_._-------

MR. HILL: I feel I really have to speak.

1

I

2

The chairman had sent a copy of this proposal to each!

I

3 of the board members and told them if they had any reaction

4 that they should contact me or Robin to express their viewpoint.

Now, I know this meeting was just for the purpose of

going OVer the language. Would you like a report that I

received from --

CHAIRMAN SMITH: It's the same report that we had

9 last time, that they did not want to be limited by law.

10 Isn't that right?

<z!l

11 ~

MR. HILL: They're very concerned this may subject

o

"w'-

~ 12 ~ the board to -- and this is his quotation -- to the hysteria

~" ~ of the times and will destroy the autonomy of the Parole Board

14 ~ which has been very important in the past evidently, and ..: :I:
15 ~ totally destroy the concept of individualized justice which is
:':">
16 ~ another principle, and they are very upset, they really feel
z -<
17 ~ that this is going to emasculate their function, and they

18 i wanted this to be expressed, so that , s a report to the committe~.

19

JUDGE FINDLEY: Did they define individualized

20 justice?

21

MR. HIL~: I don't believe they did.

22\

CHAIRMAN SMITH: This is a fundamental question we

23 i! wrestled with last time, whether you're going to have a grant

24 of all the power unfettered to the Pardons 'and Paroles Board,

25 or should it be subjec t to legislative control. We were

Il.L - . . .

_

PAGE 33

~fairlY - - - - -------~----

--I

well divided on that. The issue as you can see it here I

-

!

~ il whether there would be legislative control, Dr. Gibson and I

!
!

,I

~ Ii don't agree with it.

I,

4 11

CHAIRMAN SMITH: Does anybody want to revo t on that

Ii!1I1
5 question?

,I

I;

6

Ii
il

Okay. If not, let's charge on.

:1

II

7 !iiI

That gets us down to the sentence beginning at the

8 II!i bottom of the page, and I assume that date will be changed to

9 il July the 1st, 1981. I,

10

MR. HILL: Right.

"z
1 I ;::

CHAIRMAN SMITH: Wait a minute. What does this --

'o"

"-

,~

12 ~

MR. HILL: What this does, this change here just

~ ~ /~s~

~

...,,,., has all of the terms of the members of the board expire, made

14 ~ to expire on December 31st of the year preceding the year they I

'r< 15 ~ would otherwise expire, so that right now they have a staggered

:':"1 16 w~ te rID.
o z
~
17 :ii

This was a problem, not a staggered -CHAIRMAN SMITH: I believe Charlie Tidwell brought

18 i! this up to us that some people would be appointed on May the

19 5th and some on June the 2nd, and the way that they are set

20 i up now they would serve out to those odd times instead of
,I
21 -Ii expiring at some common date, and this was to correct that, the

22 last part of the sentence.

Okay. Any question with that sentence, including the'

-

24 : December 31st? Would it be December 31st?

25

MR. HILL: Oh, December 31, okay.

l. _

PAGE 34

CHAIRMAN SMITH: All right. It backs them up to

December 31st of the succeeding year 1 the preceding. JUSTICE HILL: We've got a gap 1 1 m afraid.

CHAIRMAN SMITH: We've got a problem there. You're

going to shorten a fellow's term.

6

JUSTICE HILL: You're not only going to do that, but

I the constitution will go into effect on July the 1st, and if

R ! his term had ended on February the 1st of the following year
,
9 iI' it would now be December the 31st of the preceding year, and

10 he would be already out of office when the constitution goes

into effect.

CHAIRMAN SMITH: I think it ought to read or should

be December 31st of the year in which the member's term would

otherwise expire.

I think we're safer to extend them three months

than to shorten them, because as a matter of law you can't cut'

a fellow off in the middle of his term.

18 "
. II

JUSTICE HILL: Here again we have the problem of a

19 'i'!', term ending at a time when the Senate is not sitting.

20 III

CHAIRMAN SMITH: It's going to be exactly the same

!I

21 I: as the Public Service Connnission.

:i
ii

JUSTICE HILL: I understood Robin to say he thought

that~pect of it migh~ be taken care of by legislation.

24 '

MR. HENRY: There is some legislation on that

25

if i,

dealing with

that

contingency.

i,

PAGE 35

r----------

-------------------------------l

Ii

CHAIRMAN SMITH: You're just talking about the first i

-

I,Ii
2 II time?

i
!

I

J il

JUSTICE HILL: Each time.

4

CHAIRMAN SMITH: Well, this modifying phrase only

5 talks about the current terms.

(,

MR. GOWEN: The Senate would convene within ten days

, or so of t he time he's appointed. It wouldn I t be a long period.

8

CHAIRMAN SMITH: All I'm saying is this December

9 I 31st only happens the first time, and thereafter they would all

10 be December 31st. Okay, "Provided that the expiration date of

the term of any such member shall be December 31st of the year

in which the member's term would otherwise expire."

--

In essense we may be extending them a month or two

in order to make it come out right.

Okay. The next sentence, of course, is the seven-

,~

1;;';

:::.

16

~
,~

year

term.

How are they staggered?

Well, they have odd times. i

-Cro

~

17 :; That's a problem there, isn I t it.

18

MR. HILL: They have odd times in terms of one is

J9 March and one is May, and

20

CHAIRMAN SMITH: What we don't know is under this

21 'preceding provision how many ~ill expire that first year. Does

anybojdy know?

23 I
i,

Well, is it a problem? In other words, it could work:

-

24 out that instead of being staggered they would be bunched is

all I'm saying, so that the first appointments may be for three

: - 1 - - - - - - - - - - - - - ---------~---- ---
, out of the five.

PAGE 36

MR. HARRIS: They couldn't be any more bunched than

3 they now are as far as the year is concerned, the calendar

4 year.

5

CHAIRMAN SMITH: That's true. Okay.

6

You all have gotten me gun-shy, I think that's the

7 : problem.

"
()

Okay. Now, the next sentence, "A chairman shall be

9 II selected by the members of the board from its membership. II

10

MR. HILL: The present provision states that each year

11 ~ a chairman shall be selected, and I wonder whether we should
e . .1o ":2 ~"' state that in here just to clarify that the board can select a chairman every year, and then if they want --

1'1 ;

CHAIRMAN SMITH: We ought to be consistent back to

~
<
T'

15 ~ the Public Service Commission. !:J

"":;)

16 ~

MR. STERNE: I think you should let the board set its

Czl <
17 :ii own rules.

18

MR. HILL: We can except -- that's where we're having

lq problems. If the board appoints a person as chairman and then
I,
2U I" two years later they would like to have another chairman, the

21 chairman may claim that he has a constitutional right to be

22 chairman for his full term under this provision, and thats the

23 only reason, it may clear up a problem that could arise to state

24 that each year they can do it.

25

MR. STERNE: The same thing would

__ i,
,,------~---_.-

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

..._------------------------_.-

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

._---_._----

apply

in

the

----- case I

PAGE 37

~-:f t~-~-;ubliC Service commissi~:~-----------

-

'"i
2 II

Ii

iI

CHAIRMAN SMITH: What are your wishes on that?

3 'II

MR. GOWEN: I would leave:it: up to the board to say

'i
4 1I

how

long

it

would

be.

5

il
'I

CHAIRMAN SMITH:

I

The issue is do you want to have a

6 'i provision to require the appointment of a chairman each year

II
7 Ii or leave it up to the board? That's the question we had.
,I

8

JUDGE FINDLEY: I think we should leave it up to the

9 board.

iO

JUSTICE HILL: Right.

'?

Z

I 1 i:

CHAIRMAN SMITH: All right.

o

->-

u,

@f~~-i The next sentence relates to the transfer of suspension of execution from the Governor to the board, and it

"'-

14

~
Iv'>

can be

exercised by

the

chairman

or

any

other member

designated I,

"-
:I:

15 ~ by the board. It would be my hope that they would designate

'::">
16 '~" everybody, but Mr. Partain indicated that they have their own

z
17 :ii procedures to gather a consensus on anything, so it's left that

1/\ I' way.

19

This language is the same as it was in the grant to

20 the Governor, isn't it?

21

MR. HILL: Yes.

)'1 II
CHAIRMAN SMITH: Okay.

23

Again, in the interest of consistency the next

--

24 sentence says "The State Board of Pardons and Paroles shall 25 make rules and regulations as may be authorized by law."

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

PAGE 38

We don't have that in the Public Service Commission.
2 II: Again, I think we ought to be consistent.

J

Tidwell is gone, but is there an inherent power of a

4 board to adopt rules and regulations?

5

MR. HENRY: Mr. Chairman, I did some research on that.

6 The present constitution has a sentence in it that the State

i Board of Pardons and Paroles may make rules and regulations as

8 i may be authorized by law. In several instances the legislature

9 ; has enacted legislation authorizing them to make rules and

W regulations in certain areas, shall make rules and regulations

"z

11 ~ for additional time consideration for parole, and shall make

o

~.

w

~\7s>~v~)d\),

12 ...,,,".!'.

~.~~

rules rules

and regulations for other types of clemency, and in they base, or they state as authority to make these

their rules

',-!)
---"

:V't

1~ ~ a Georgia law, and the inherent rulemaking authority a board

~ r
15 ~ I think only comes within the boundaries of the duty which it's

.t:
::J
](1 ~ charged with as authorized by law, and this is kind of an odd

;or.
<
17 ~ type situation where you have it in the present constitution

1~ i that there is this sentence and that they have, that the

19 legislature has acted in areas to give them authorization to

20 make rules and regulations.

CHAIRMAN SMITH: Well, let me state the question

again. Does the Public Service Commission under our proposed

draft have the power to adopt rules and regulations?

24

MR. GOWEN: I think the legislature has given the

:) , Public Service Commission the power to make rules and

PAGE 39

r~~~~;~~~on~---~~~~~~~~- got--~he code before me, but my

1

-

il
2 ilI' recollection is they have been given the power by statute. I,I[

3I

CHAIRMAN SMITH: What I am trying to find out is, if

I

4 there is no statute does any board have the right to adopt its

5 own rules and regulations? If it does, we don't have to put it

C. in anywhere. If it doesn't, we ought to put it in everywhere.

7

MR. GOWEN: I think they have.

8

MR. HARROLD: I think under the Natural Resources

<) case that a board or department has an inherent authority to

10 make procedural rules and regulations to govern how they
11 ~'" operate, but outside of that I don't believe -- we got into
.o".'-. 12 ~ this 3(c) thing a couple of years ago -- that a department
_~ (~ ~~)~(''''~ ~ really shouldn't have the authority to make substantive rules

14 ~ and regulations that go beyond just mere procedure. I don't
<:
1:
15 ~ think the sentence ought to be in there because it's confusing, I.) -'""
16 .az...l first of all, and might give more substantive authority to the a 1. ""0:> board than we intend to do.

18

JUDGE FINDLEY: Mr. Chairman, I agree with him. They

19 have the inherent power to conduct their internal operation,

20 I but when it comes to making substantive law they can do either '

21 of two things. They will act under the constitutional

2.: provision, and then they would become a junior body of the

23 legislature, make their own rules, or they have to adopt

-

24 rules -- it would either be the constitution and therefore

2:5 the authority is too broad, or they will have to come under a

PAGE 40
-------l statute enacted by the legislature, andthe Court of Appeals I
just recently handled this one in the Department of Corrections I I ! I
3 where they have many, many regulations for prisons and so forth I

41 that they adopt themselves, and they have the authority

,) generally to do this, but the question arose as to whether an

inmate's money could be taken from him for the entire period,

7 that is, it's contraband while it's in his possession, but the

g fact that it's contraband there, is he entitled to receive it

9 i when he's discharged or can they put it in the athletic fund

10 as they did in their rules and regulations, and the Court of

'.:J

<-

II

..~ Appeals
:J
-,

ruled that

the

statute was not broad enough

to

allow

''":' them to do more than to adopt a regulation to do more than take

,~

Ic; it away from him while he was in prison, that you had to give

i
.:: it back to him when he started to leave, so the point is there
"n
1:
15 ~has to be an umbrella, you're either going to have to have the
,.;"
::J
j(, ~ constitution do it or you're going to have to have a
2,

17 ~ constitutional provision to let the legislature set the rules

ik ,under which they can adopt their regulations it appears to me.

19

CHAIRMAN SMITH: I wish Charlie were here. I would

2U like to know the basis for the law in Georgia about --

'I

21 II

JUSTICE HILL: I think we're in a period of transi-

22 tion. I think historically any subdepartment of government had

only such powers as were delegated to it. Now we presently 24 are in the idea that there are certain inherent powers, the

judiciary, the Governor's inherent powers, and inherent powers

PAGE 41
---- -----------------,
in some of the subagencies, but rather than worry about it I

would think we ought to decide whether or not we want them to

j have it and put it one way or the other, and I would propose

maybe contrary to something that has been said here, maybe

supportive of it except that rather than say as may be

authorized by law to say except as contrary to law.

CHAIRMAN SMITH: Let's back up. Charlie has come in

g with the answer.

<)

In the absence of a constitutional provi,sion, does a

10 board or department have the power to issue rules and

:::: regulations?

o

>.

-

~~fJ)~'" ~12

"
c:.;

MR. TIDWELL: Judge, I think they could. Mac and I

0 have been talking about this, been going back and forth, and I

~' 14 >- just asked him here while ago, we were talking, that was his

vo.
:1:
15 '!l final conclusion. I'm a little worried about it like that, but (.1
'".:0 J(, ~ he had looked at it and concluded that perhaps it ought to be
:.:.

17 ?i that way.

1~,

CHAIRMAN SMITH: But his was limited to the Pardons

19 I and Paroles, his inquiry.

20 I

We're just saying it ought to be consistent. You

21 " either ought to grant the Public Service COlmnission the power

') ) to adopt rules and regulations or not, the same as this one.

I
i

I

23

I
MR. TIDWELL: I just feel like if you're silent on th1

I
question that they have the inherent right, they have to functif

)..,; somehow and, therefore, the only way they have to do it is

q----- -----------------I 11 through rules and regulations.
:'

PAGE 42 ~
i

CHAIRMAN SMITH: The dialogue in your absence was

i

I

3 :!that everybody felt they had the inherent power to adopt

I

4 procedural rules and regulations, but whether they had the

I

power to adopt substantive rules and regulations is where we --II I

b

MR. TIDWELL: They would have the force and effect ofl!

I

law.

I

i

CHAIRMAN SMITH: Of course, this is a matter going onli

1
9 in the Congress today with Congressman Levitas' program, and

10 apparently they have done it to the FTC as of yesterday in the

e II ~ House.

<O~1.2~

:.
el.
~~;

Board.

the:~yT::~L: ~ru:t::::~

:::

:::8::th::r:o::l:::X::::::g

14 0; grant of authority to do these executive clemency things, I

<..~ ~



15:; think there they through rules and regulations have the right

:;
Ih ~..a to provide SUbstantive --

l<-
I 7 ~.

CHAIRMAN SMITH:

How about the Public Service

Commission?

19

MR. TIDWELL: Probably not, Judge. They probably do

20 , not.

2i

CHAIRMAN SMITH: I think the thing ought to be

consistent myself, that we either ought to say nothing on the i

theory that they have the inherent power to go as far as the

I
i

i

law allows them, or either to grant them that power except

I

where contrary to law, which is the__ I t is a fundament~ .._ - - - _.. ------_._--------------~---_

-~.

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

PAGE 43

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

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

question of government.

JUDGE FINDLEY: Could we in that catchall provision

3 could the sentence be included. or language be included dealing

4 with this that it's the sense of the constitution that no

<; agency or board has inherent power to adopt substantive rules

c, or that they do have.

7

CHAIRMAN SMITH: I think that's what Judge Hill's

8 language would do. It would say you can grant them unless

q they're contrary to law. and the inference is that if they

10 were substantive they would be contrary to law is what he's

11 ,;: saying. o a.

__ \(~~~~~\/r~t-'.!'.''!!!1'2'

~
2~ it

just

JUDGE FINDLEY: I didn't understand him to say included administrative. that they could have

that

14._v, substantive as well as administrative.

r;:

:I:

15 ,~)

MR. HARRIS: As I understand it. in effect he's

"

~.

;:;>

;;[1

16

1:
f~.'

putting

the

legislative

veto

on

rules

and

regulations

saying

r.:l

7.

(".:

17

f
~J1

they

can

make

them

unless

contrary

to

law.

which

would

give

is the General Assembly the right to pass a law saying "You did

19 wrong."

2U

CHAIRMAN SMITH: "You can't do that any more."

21

JUSTICE HILL: The way it's presently drawn. though.

-, ,
it would give the General Assembly the power not to provide

23 that they can make any rules and regulations. so the legislature

'q

-

has got a threshold veto.

,~s

CHAIRMAN SMITH: I think his suggestion is better.

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

PAGE 44
-1 r : - - - - - - - - - - - - . - - - - - - - - - - - - - - - - - - -
il
I that they ought to move until stopped, but again I come back
Well, let's address it on this particular sentence. I
!
3 Whatever the sentence is, I say it ought to be in all of these

4 boards.

5

MR. TIDWELL: It's entirely different from any of the

other boards you've been talking about.

7i
'i

JUDGE FINDLEY: It has a limitation at the end of

8 ! the thing, the very last proviSbn there of the constitution as

9 now written is that after each year the General Assembly may

10 enact laws in aid of but not inconsistent with this paragraph.
'..9
L.
1I .e" That's the Pardons and Parole Board right now, so they have ,~ ,:<.. ~
~ 11 ~ a constitutional -- there is no way the General Assembly can
~~~~ act except as is already provided in there, so they certainly

14

,_
~-

have

the

rules

and

regulations

authority

at

this

point.

IS .:.
''".'

MR. GOWEN: I would like to raise a proposition that

it's redundant to have it in there anyway because the next

sentence says that they shall have the powers and duties as

18 II provided by law.

19

CHAIRMAN SMITH: I think the only difference in what

you're saying -- and correct me -- and what Judge Hill is

21 , saying is that if you strike this sentence they would have to

22 ! wait until they were given the power to adopt rules and

i

i

23 regulations by the- legislature, where if you put it in the

I

I

th~~ constitution they can~opt them except where limited by

25 , legis lature .

PAGE 45
I MR. GOWEN: If you use Judge Hi11;:la~~~:g~-;;;hink

2 the way it's written in now they have to get authorization

3 before they can make them.

CHAIRMAN SMITH: I sort of come down to Judge Hill's

5 suggestion as to each of these boards, the board shall make

(, rules and regulations

What's your phrase?

MR. HILL: Except as contrary to law.

JUSTICE HILL: Yes.

q

CHAIRMAN SMITH: Okay. Does that sort of suit

10 everybody?

N.~!VJt,.;

!! ::~
'o"

MR. HENRY: Mr. Chairman, consistent with the

,.J,.

,~,

I -, '~proposal of the subcommittee to give the board the power as

/f'/"" .. ~., \\

~-

!~~JJ~':':" :~ authorized by the General Assembly. I was kind of fuzzy there,

~ I was working still on trying to retain and uphold the

15 ~ legislation on the books right now, and in the present (, "~"", constitution you have the specific grant in certain areas,

1:: :t and they have the duty to make rules and regulations in those

areas, and they have the duty to make substantive rules and

10 :i regulations in those areas, but now that you are saying that 20 they shall have these powers except as may be hereafter

provided by law

CHAIRMAN SMITH: No, except where contrary to law.

MR. HENRY: -- except where contrary to law, I don't

necessarily think that you would have to have that phrase in

there now because of the fact that you're in effect giving I ---,--~ ------~- - --~~~----,------~

PAGE 46

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

the legislature the power to tell them what to do.

I

I

CHAIRMAN SMITH: It's just a matter of timing, as I
I
3 see it, whether it's the front end or back end, but all I'm I I

4 saying is it ought to be the same.

I ,i

5

MR. HENRY: In the Public Service Commission, the

reason it wasn't in that was because there was no specific

-7 constitutional mandate of what their duties were in the present

constitution and, therefore, they didn't need a provision like

9 'I that.

10

CHAIRMAN SMITH: Well, the way I feel is I go with

Judge Hill, and let's make it uniform as to each of the boards.

Does anybody have any violent objections to that?

MR. HARROLD: I agree with the uniformity, but I

don't think it should be in there mainly because I think it

15 ~ would be just a litigator's delight to go in to decide what is

:">'

1()

,.J
Z contrary

to

law;

is

the

regulation procedural

or

substan~ive,

Q

z:

-<

17

y. '.:.J

or

against what

law?

It's great for trial lawyers.

Ix

JUSTICE HILL: If you don't put it in there it adds

19 to the argument they don't have the authority in the first

20 instance.

21

MR. HARROLD: I would rather them not have the

"~"I authority. Frankly I have more faith in the legislative branch

~3 to make substantive law than the boards and departments.

2..~

CHAIRMAN SMITH: You could say except as provided by

.;~ law except as contrary to law, then there would be a purer

-

PAGE 47

limitati~:~p::r-:-t~:~~~slature~=s:ead of it being a court1

queston, it would be a legislative question.

I

3

MR. HARROLD: Every law that would affect the Pardons I

and Paroles Board '-- you all correct me if I'm wrong -- you

5 know, that would outline things saying the board would have

such authority to make rules and regulations to effectuate the

'7 /

intent of the statute -- that's the way it normally sounds,

doesn't it, Joe? -- so that ~ould give them the authority to

9 make a regulation or a rule for that particular law, which is

10 a legislatively limiting authority because to me the drift of

Ii ~ the abuse is going the other way, that what we experience and
",
__.@J) ~ ~SV~ I.: ~ see in government on Capitol Hill is the agencies and depart<0_., ments going their merry way and just kind of ignoring the

]1 >:; 1egl..S 1ature.

r"
15 -t>
.,:l

CHAIRMAN SMITH:

But doesn't his modifying phrase

J6 ~D leave that final check with the legislature? That's what I

i 7 '~unders tand we're talking about.

'\I

Ie}

MR. HARROLD: If they do it in April, they make any

,j

Jl)

i
kind of substantive

rule

and

regulation,

then

there's

a nine-

month delay before the legislature can get into it to address

it, and then normally they don't do it unless they have one or

two constituents, and then they get busy, and they've got the
23
: budget and all these other things. They rarely get around to

attacking a particular regulation or rule. True?

CHAIRMAN SMITH: I thought some witness we had said -----_.. "-'-'-~ _. - - - - - - - - - - - - - - - '

0--------'---~--~---'-~---------------

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

PAGE -48----,

1 II that all rules and regulations are submitted to a conrrnittee of I

i
2 .1 the legislature.
"

i I
I

3

:1 i"i

REPRESENTATIVE BUCK: That's only been recently in th~

i

4 last year or two.
"

5

MR. TIDWELL: The Pardons and Paroles Board's

(, regulations are not subject to that overview. They could be

7 made subject to it the way ycuhave it here.

8

CHAIRMAN SMITH: You mean with his amendment?

9I

MR. TIDWELL: Yes, or even without it I suppose.

10

MR. GIBSON: Because that exception you put in the

11

-
'o"

first

sentence gives

the General Assembly power

to

do

anything

a

(O\)r~~ ~12 "~' it wants to in the area of pardons and paroles.

~/

0'

If we're allowed to express philosophy, by the way,

14 ,. I disagree with that.

~.

<'

i

15 .~)
"

CHAIRMAN SMITH:

You're consistent.

I swear I didn't see all these problems when I read
l.
" this thing.

11':

(Laughter.)

19

CHAIRMAN SMITH: Okay. We have as I see it three

20 choices.

21

One is to leave the language like it is; one is to

take it out; and one is the Hill amendment which would add to

that

and it may be redundant because of the first sentence
I

-- except as provided by law. MR. GOWEN; I move to leave it out.

I think it's

J

-----

[1- _.... __...__.__._..._..

....'

-~-_.-

PAGE 49

I il covered in the first sentence.
Ii

2 II

MR. HARROLD: I second that.

3 I~ I

CHAIRMAN SMITH: Let's take a vote on this.

;"1
I'
All right. The motion is to delete it on account of

the first sentence, the earlier sentence which says except as

(, hereafter provided by law the board shall have the power ...

7

Okay. Any further discussion on the motion?

MR. GIBSON: A point of information to deal with your

9 statement.

I

10

Is that going to be true with all of the rest of the

lJ

,..
0:
o

boards

also?

We ought to look at that.

CHAIRMAN SMITH: I think it ought to be the same for

-

all of them. I don't know whether we can wrestle with that.

MR. HILL: This is with the understanding that the

15

..:.
"::>

boards

have

an

inherent

rule-making

authority with

respect

at

16 :',..z:"...:. least to their procedures? Just an understanding, so that by

Z

J7 '"<'0 deleting it you haven't taken something away from them.

H

CHAIRMAN SMITH: I think that's accurate.

EI

MS. HOLMES: Then they couldn't make any other rules

20 and regulations unless they were granted the power by the

"l,'[ legislature, or they could?

11
CHAIRMAN SMITH: I think it's the otherway around.

23 I think they go as far as they want to go until they are

24

--

limited by the legislature.
~5

MS. CROCKETT: If we delete it.

PAGE 50

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

1 i:

MS. HOLMES: I think it comes out to a practical

il

2 i consideration. There's a small group of people who are really

3 iI into a problem area, have more information at their disposal

il

4

:! :i

and

more

to

work

with

than

256

people

who

have

800 bills

to

5 consider, and usually they don't consider one if one person is

o affected anyway.

7

CHAIRMAN SMITH: I think in theory at least it ought

8 to work that they would go on and do a good job, but if they

'} Ii stepped out of line there would be a remedy in the legislature

10 short of a constitutional amendment, and that's sort of the

"z

11 ~ philosophy on that where we're traveling.

e . ". ~o 0.. '.1.1 J2 ~

We're going to assume they would do a good job, and

most of them do I think, but there would be that legislative

J4 ~ check.

<:

I

15 ~.,

Any other discussion on the motion?

I':':

:0

16 czo
a~

All right. The motion is to delete the entire

Z
-.:
17 ",,,", sentence. All those in favor please raise your hand.

18 I.

(A show of hands.)

I

j9

CHAIRMAN SMITH: Thirteen.

20

Opposed. Okay.

21

Now let's address the question as to what to do with

,) the other boards with the same problem.

MR. HILL: There's nothing in there now, so it would

have to be an affirmative action to put' them back in.

CHAIRMAN SMITH: Do you want" to leave them alone?
~_._._~_..~----~_.- - , - - - _ _ ... --------~-_.. - - - - - - - - - - _.. _-~._--- -_.__ ._--~---------- --_._~- -----~-

11------
j Ii ii II
2 IIi'

MR. GIBSON:

PAGE 51
-- ------------------------~
If it ain't broke, don't fix it.

JUDGE FINDLEY: Does that mean then that we're

3 recognizing the inherent power in the other boards to make thei

4 own rules and regulations?

5

I'm opposed to that, but then that's just that I

don't believe any board ought to have final legislative powers; 7 it ought to be the legislature that has those, and that the 8 boards should be able to have their administrative powers, but

they should not be able to enact any substantive rule or 10 regulation.

CHAIRMAN SMITH: I guess what we're all assuming

is that if they were to it would be judicially unlawful.

seems to be what the current status of the law is.

JUDGE FINDLEY: Yes, sir.

,-'

MR. GIBSON: With all due deference to the judges,

:':">

iG

~
::l

I

think

that

battle was:

fought

forty

or

fifty

years

ago

in

this

z

17 "'"' country. The ABA took that position at a national level fifty

Ix
years ago. I thought we had moved a little beyond that.

19
There's not much sense in having these boards if

20
you're going to have the General Assembly decide every issue

21
for them; we ought to strike the thing from the books.

)',
JUDGE FINDLEY: The experiment has not proved

23
worthwhile.

MR. GIBSON: That's one man's opinion on that.

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

PAGE 52
- - ------------------ ----------------------------l

I Ij law is, that's where we stand on this draft we have right now. I

ii

I

By striking this, except for the express limitation on the

I

I

I
3 Pardons and Paroles Board, so be it. and I take it nobody is I

<-I 'I willing to climb that mountain.

I

5

We'll leave it like it is. Okay.

i

Again the last sentence, do we have any of the same

problems we did before?

Should not manner of time of appointment and filling 9 :,of vacancies also be stricken?

10

MS. CROCKETT: Yes.

MR. GOWEN: I think that ought to be consistent with

the last sentence of the Public Service Commission.

CHAIRMAN SMITH: All right. Now, for some reason in

the preceding one you use the phrase "including the chairman,"

15 :? and not here.

,i

;:,

16 ~

Is the "including the chairman, II is there any special

z

17 ~ duties a chairman of the Public Service Commission has as

18 opposed to a member?

19

Why don't we go back and strike the "including the

20 chairman" in the --

21

MR. HILL: That was only included because it was in

the present one.

MR. STERNE: We picked that out of the present 24 language. That's the only reason it's in there.

CHAIRMAN SMITH: Why don't we strike "including the

--

--_.----._.---._-----=l PAGE 53

-----.--------------------------~~~-

I I chairman" in Section I?

2I

Does anybody want to have all of Section II read by

the scrivener here just to make sure you know what you're

4 doing?

MS. ADAMS: I would like to hear it.

MR. HILL: "There shall be a State Board of Pardons

7 and Paroles which shall consit of five members appointed by

8 I the Governor subject to confirmation by the Senate. Except
,! i
9 as may hereafter be provided by law such board shall be vested

]() with the powers of executive clemency, including the powers to

II ~ grant reprieves, pardons and paroles; to commute penalties; to
,,-
'u
- ~r~ ; CV~ " : remove disabilities imposed by law; and to remit any part of a sentence for any offense against the state after conviction.

---

14 ~ The members of the board in office on July 1, 1981, shall

r<

15

,~
':1

serve

out

the

remainder

of

their

respective

terms,

provided

" ';)

16

"z.". z".

that

the

expiration

date

of

the

term

of

any

such

member

shall

<

J " "" be December 31 of the year in which the member's term would

ik otherwise expire. Thereafter, all succeeding terms of members

19 shall be for seven years. A chairman shall be selected by the

20 members of the board from its membership. Said chairman, or

21 any other member designated by the board, may suspend the

execution of a sentence of death for offenses again~the state
),
~J until the full board shall have an opportunity of hearing the
24
application of the convicted person for any relief within the

power of the board. The qualifications, compensation, removal

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

PAGE 54
---- --- ---~-----. --- --- --.-- --~-------- ----- ---------1

from office and powers and duties of the members of the board I

shall be as provided by law."

I

3

MR. GIBSON: That's very good.

I
I

i

4

JUSTICE HILL: I would like to move that the second !

sentence be moved to the fifth sentence, the third and fourth

6 ! sentences be elevated to the second and third sentences.

~
I

CHAIRMAN SMITH: I have lost count of the sentences

8 ' at this point.

MR. HILL: The second sentence be moved to --

10

JUSTICE HILL: All the appointing and term provisions

"<II ~ precede the powers provision, because right now we've got the

(I

"'-

,~

~@SV

12 ~_~ powers provis ion in the middle of the appointments.

I (~ I~~ ~

CHAIRMAN SMITH: Line 6 of page 2 is where your powers

I

,

H ~ thing would go in.

~

1:

15 ,"
","
:>

MR. HILL: Okay.

16 '~
ow

CHAIRMAN SMITH: Would it make any sense to paragraph

z

17 ~ the sentences?

JUSTICE HILL: We had one paragraphed; I think it is the

19 only one, and that is the Veterans Service Board.

20

CHAIRMAN SMITH: I don't mean to put a subhead, but

just simply to break it in print where you had the composition

of the board in the first paragraph and then a second paragraph i

talking about powers or whatever else we do.

24 I

I think it might look better on paper is all.

MS. ADAMS: I think it makes it easier to read as

PAGE 55
-------------------------------------- -----------,
well.

CHAIRMAN SMITH: In the case of the Public Service

3 Commission the second paragraph would simply be the qualifica- I
I
tions, compensation and removal and so forth, but in this one I
the sentence we just moved plus the suspension and all would I

(, ii all be in the second paragraph.

I

!

7I

JUSTICE HILL: Because of the problems of codifica- I

8 tion, if you make them separate paragraphs wouldn't it be bettet 9 Iili to make them paragraphs (a) and (b) under Paragraph l?

10

CHAIRMAN SMITH: I was hoping they wouldn't codify

-z'

11 ~ them; it would just be two paragraphs.

-:)

c.-,

_ (~~!"''''. ~ ~~

12 ~~

JUSTICE HILL: I think the habit of the codifiers has

been if it's a separate paragraph to give it a separate nt.unber.

~---'

,
J4 , "~ ',
<;
.:

CHAIRMAN SMITH: I don't want to do that.

15 :,
-'J

MR. GOWEN: You've got Veterans Service Board, you've

.i:

:'

S lh got I:r. an (a) and (b). There's no reason I guess why you couldn't

z
<:
17 '~have -- I don't see anything wrong with an (a) and a (b)

if you want them.

MR. STERNE: They don't use (a) and (b) in the

20 present constitution.

21

MR. HILL: Because of the codification problem that

might arise if we just make them (a) and (b) as we've done in i
inl '"...:;...) the Veterans Service Board, then they'll all appear together

24 the same code section and won't get separated.

i

1('

I

CHAIRMAN SMITH: You mean an A parentheses?

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
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

r-- -- --~

PAGE 55-19
._------~~------------------------------~~~~~~~~~~----,

1 I,

MS. HOLMES: That paragraph is numbered, it's under

II

,I
2!

veterans ,

preference.

3 II

MR. GOWEN: Veterans Service Board.

I

4

Okay. Let's go to Section III, the State Personnel

5 Board.

The first sentence -- again, I'm more comfortable

7 with shall be vested wi.th such additional powers and duties as

8 provided by law, and this is going to mess up your neatness

') here, Judge, if we put the composition of the board up, which

10 I think we should, then we skip the second sentence and push

it on down, don't we?

JUSTICE HILL: Yes, sir.

CHAIRMAN SMITH: Look at the second sentence. Is

this the current language?

MR. HILL: No, not completely. The current language
":J ,n
16 ~ states that state personnel shall be selected on the basis of
2 <l
17 0,~: merit, fitness and a demons trated ability according to law,

1S and we just decided that merit is the concept and that covered

19 the other two things, and that's why that was amended.

20

CHAIRMAN SMITH: What was it, merit, fitness and

21 what?

))
MR. HILL: Demonstrated ability.

CHAIRMAN SMITH: To me, I think that does mean merit, 24 doesn't it?

MR. HILL: That's what we thought.

PAGE 56

---------~---- ------------------------1

I:

CHAIRMAN SMITH: So it's a saving.

I

Well, any question on the first sentence?

I

3

The only change would be 'which may be be vested withl

4 such additional powers and duties as may be provided by law."

5

i
:i
!i

The background of

that

is

that

there may

come

a

time

that

they

I
I!

"

I

I

want this particular board to handle some other function than I

!

-, merit selection; there may be some other duty under the law,

S and this would be a place to put it, and instead of having to

q ,I create some new additional board to handle it.

10

Okay. Skip the second sentence if you will and go

Czl

II

~-
IX

to

the

third,

"Such board shall

consist of ... 11

o

~

,~

Q:

All right. This is fairly routine through here.

Why is the word "succeeding" in the next sentence?

MR. HILL: That was again just the present language. i

15 ::; I don't think it's necessary.

'.e

:>

! 16 oz

CHAIRMAN SMITH:

17 ~" that somebody succeeds.

I don't either.

I think it infers

It would read just like the previous ones do, then, 19 wouldn't it?

20

Let's strike "succeeding."

21

MR. HILL: It should say all terms of members shall

22 be for five years.

i

23

CHAIRMAN SMITH: Okay. "Therafter, all terms of

24 members shall be for five years. Service on the State

I
I

25 l~_~erso~_~:_~o:~~_~_~~_:~_b_:._~est=~c~=~_~~~~~ __con~:=~t~ve ~erms ~

PAGE 57
provided that ~~~. ~C:p~:~~~n of an ~~~~~~ term~ha~~ not b~l

considered a term of service within the context of this two- I

.\ term limitation."

MR. HILL: A question we have had is whether you

C .J

had any desire to either make this limitation true in the other!

o I boards as well, or whether to drop it out and leave it.

I

I

"J I

This is presently the provision, there is a two-term I

8 limitation here. I'm not sure if you want to --

()

MR. GOWEN: There hasn't been any limitation so far.

10

MR. STERNE: I don't believe there are limitations

11 :;; on any of the others. There was this one, and we didn't choose

.~

0'

_~ ~r"''' ~ ~sY.!t$

i2 ~ to -- we really don't know why, but we didn't explore why.
2:
CHAIRMAN SMITH: Does anybody know why the personnel

-~ i4 ~ board was limited to two terms historically?
<'\
'r.
MR. TIDWELL: I think it's just to get fresh blood

on there, new ideas.

"J

J

II

REPRESENTATIVE WOOD: The Governor would take care of l

that.

CHAIRMAN SMITH: How long are these terms?

20

MR. STERNE: Five years.

CHAIRMAN SMITH: That would be ten years.

MR. GOWEN: Plus a possible unexpired term.

MR. STERNE: Possibly fourteen.

CHAIRMAN SMITH: Yes. Well, I think in the other

boards we have generally wanted continunity as being a

PAGE 58
-----l
desirable aim. In this one there may be a contrary philosophy. :
Is it important enough to cut it up in two or three I

sentences, or should we just leave it out?

I

MR. HARROLD: I move to take it out.

i
!

I

I

(Seconded. )

l

CHAIRMAN SMITH: All right, strike the whole sentence

At the top of page 3, "A member of the State

Personnel Board may not be employed in any other capacity in

state government."

The next sentence, "A chairman shall be selected by

the members of the board from its memership."

@;.:.!o 0,~

"The qualifications ... " and again we strike this

" ...manner and time of appointment, filling of vacancies."

14 >-

I would suggest that the second sentence which states

V>

<:

1:

15 -:> the aim of merit be incorporated into the second paragraph;

:>
}(; :~:t,1 in other words, it be the first sentence in the second
l::
<.:
17 'c"< paragraph.

1;)

MR. HILL: You mean under veterans' preference?

!i

1')

CHAIRMAN SMITH: We don't have to have that heading,

20 but what we were trying to do before was to put the composition

21 of the board in one paragraph and sort of its duties and powers

2,; in the second paragraph, and you could just simply state powers

-"-' or something.

24

JUDGE FINDLEY: Wouldn't we strike the first part

" under the &lid merit system"? My, goodness, couldn't we

.

lPAGE 59

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

I'I,

i:
II

just say state personnel shall be selected on the basis

of

:I:I

---

- Ii merit as provided by law instead of under said merit system?

I

j

It would just be the sentence would read "State

I

4 personnel shall be selected on the basis of merit as provided

5 by law."

I

I

!

(,

CHAIRMAN SMITH: I assume the purpose there was to I

i
i
7 refer back to the original grant of power which gives this boar~

I

g policy responsibility for the state merit system, and then

I

l) saying that system must be based on merit.

iO

Since it's dropped down -- Have you got that?

MR. HILL: Since it's dropped down, we're going to

leave it in or take it out?

CHAIRMAN SMITH: Take it out was the suggestion,

take out the system and say state personnel shall be selected

J:

j 5 ,~, on the basis of ... " :J

"..

:~

10 '.!oj I.

MR. HILL: And then the second sentence would be

W

Z.

<.

17 '",:tl "Any veteran who has served ... "

Ii'

JUSTICE HILL: I'm not sure, Mr. Chairman, you and

19 Mel are communicating.

20,

Mel, as I understand it, under Section III, Paragraph

). ,1 I, Subparagraph (a), "There shall be a State Personnel Board,;

'I ,
Subparagraph (b) shall be "State personnel shall be selected on
,
2.1 the basis of merit as provided by law."

"The qualifications, compensation, removal from

I

office, and powers and duties of the members of the board shallJ

' .. _.""_' " __ .... _.---;-__~~_.

._L

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

be as provided by law."

60 PAGE
------, ------- - ------~--- - - ---------- ----
I
i

.2

CHAIRMAN SMITH: That's right.

JUSTICE HILl.: Then you come to Paragraph II which II

I

I

4 ,I is veterans preference.

I

5

I
CHAIRMAN SMITH: To make it consistent with the other.

b

Okay. The first paragraph would be the board; the

7 II second would be the merit selection, plus the catchall the

duties and powers as provided by law.

Then are you suggesting a third paragraph?

10

JUSTICE HILL: We have what is designated as

1l ~ Paragraph II.

"'

@- 12; ~~~
(@)V ~~

CHAIRMAN SMITH: It would become a third paragraph. MR. GOWEN: I think he's suggesting it stay as

I
14 >-
:~ Paragraph II since it deals with an entirely different

1-

15 'I
:; subject.

CHAIRMAN SMITH: It would now be a third paragraph.
I-
11 -s L We would have subparagraphs (a) and (b) in Paragraph I; (a),
lS
(b) and then II?
1()
MR. HILL: I think I'm somewhat lost.
2lJ
Let me read what I understand to be our draft so far.

Subparagraph (a) of Paragraph I would state that

"There shall be a State Personnel Board which shall consist of

five members appointed by the Governor subject to canfirmation

of the Senate. The members of the board in office on July 1,

1981, shall serve out the remainder of their respective terms.

. l.,.....----~---------"'---~--------------,---------~----------,--~.-.-----.--~--.-~--~-~--
1;
i A member of the State Personnel Board may

not

be

PAGE 61
--.--....---..- . - - - - . - - ;
employed in

I
2 : any other capacity in state government."

JUSTICE HILL: What about "Thereafter all terms of

,( membership shall be for five years"?

5

MR. HILL: "All terms of members shall be for five

6 years." This is still subparagraph (a). "A member of the

7 (I State Personnel Board mayrot be employed in any other capacity I
8 in state government.' A chairman shall be selected by the

'J :, members of the board from among its membership. II That's (a). !I

10

(b) would say that the State Personnel Board shall

Cl Z
Jl ~ provide policy direction for state merit system and personnel o Q. w
,SVJ:I Ii ~ administration, and may be vested with additional powers and

5 (/\\(:~/~--j_<),1)/\If~

:.:
":

duties

as

provided

by

law.

... - _..~-

i
14 ~

JUSTICE HILL: Such additional.

':t

:r.

15 ..0
co

MR. HILL: Such additional powers and duties as

'::">

16

~
w

provided

by

law.

'L"

<

il ~

Now, the question is, is this next sentence to be

18 another paragraph or still continue, state personnel shall be

J9 se1ected on the basis of merit as provided by law.

20

MR. GOWEN: That goes in there.

21

MR. HILL: The qualifications, compensation, removal

from office and powers .and duties of members of the board shall

23 i be as provided by law will be a separate subsection (c) or 24 still continue (b)?

JUSTICE HIL: No, no.

PAGE 62

II

'I
II!'

MR. HILL: The veterans preference will be left as

ilI" '
2 paragraph II of this?

:1

II

3 Ii

JUSTICE HILL: That's right.

CHAIRMAN SMITH: I have a question to ask the

5 legislators. Maybe we should have caught Joe.

In the veterans preference section, the last part of

7 ,itffiys that veterans shall be given veterans preference in any

R civil service program established in the state government or

') any political subdivision thereof.

10

Is that the current law? In other words, can they

11 ~pass a law that says veterans shall have preference in

o

"-
@\ ,,~~ j~ Lidiwisi? MR. STERNE,

'gJ/~.

That's the current law, but that's a

i4 ~ good question.

"1:

15 ,~

MR. GOWEN: The legislature creates it, and they can

16 ~ do anything they want to.

zCl

<

17 ~

CHAIRMAN SMITH: They would have to do it in the

18 charter of Lidiwisi.

::

19 !!

MR. GOWEN: Or in the law establishing the merit

20 system of Lidiwisi.

21

JUDGE FINDLEY: You all sure pick out some bad

22 examples.

-",' i

MR. GOWEN:

,,
_"-t better example.

I believe the chairman could have got a

L'

,

(Laughter. )

._.

~

PAGE 63

n-----------------

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

I'II

CHAIRMAN SMITH: Anywhere.

- -._---_._--------- ----------------,
I

1

Ii

2 Ii

I didn't know under the current law that the

i"!
I
3 'IIi legislature could pass an act that says in Blairsville you

4 Ii shall give veterans preference to anybody that works for the

Ii
5 Ii city. That seems pretty far reaching to me. II

b "li,[1

MR. STERNE : Me too.

II

7 II

MR. TIDWELL: I don't believe they do now, Judge.

II

x I:'i

The power is vested in counties and municipalities

:1
II
9 il since 1966 which is subsequent to whenever this appeared in

10 the constitution, gives self-executing grant of authority to

"z

II

I-
a:

those

political subdivisions

to

provide

a merit

system,

and

o

u.

~

(M~drcc~,,:.1, ~"_/

the General Assembly just can't fool with it any more, so you really by reenacting it in its present form make a substantive

'-

14

~,
I-

change

in what

is

the

present

situation.

'<

I

15 .:>

Does anybody disagree with that?

'a":

::>

16 ~ ozw

MR. STERNE: I think we ought to find some way to



17 ::; back it out of there.

Ix

MR. GOWEN: What it says is provided by law. I

19 think reenactment of it wouldn't change anything there unless

20 it changed the law.

21

MR. HILL: I think this covers charter authorization

22 to give the General Assembly in the charter -- I mean the right I

23 to give the local government in its charter, a local act of

24

,
I

the

county

the

right

to

provide

for

veterans

preference.

25

CHAIRMAN SMITH: Couldn't they pass simply a general

._________________

_

.-J

r

.

II statute that says in every merit system in the state you shall

2 i give a veterans preference under this language we have here,
!I
!,
3 ii and I think that's going too far.
"

4

MR. TIDWELL: I do think that is contrary to the law

5 now. Do you agree, Mel? You're an expert in local government.
6 Ii Doesn't the '66 amendment allow local political subdivisions II II
7 Ii either to give a veterans preference or not give a veterans
i"i
8 II preference?
II
MR. HILL: Under the home rule?

10

MR. TIDWELL: Right. Now, here you put the General

..,

z

11 ~ Assembly back into that area insofar as veterans preference is

o

0.. w

~@/~'12 : concerned. They're out of it right now. MR. GIBSON: Could we move to strike that last,

14 ;:I "or any subdivision thereof"?

~:r

15 .~

CHAIRMAN SMITH: All right. There is a motion simply

~

:':">

16 ~ to strike "or any political subdiv.i3ion thereof" from this

z
17 ~ veterans preference grant in the state government.

1k I!

Do you all want to vote on this? Is there a second?

II

19 II;i

(Motion seconded.)

It

20 11 II

CHAIRMAN SMITH: Any further discussion?

I'

Ii

21

JUSTICE HILL: How much is being deleted?

22

CHAIRMAN SMITH: Simply "or any political subdivision

23 thereof." In other words, that incorporates the veterans

24 preference in all of state government, but not as to counties

2) ,,; and cities.

L._ _.

__._ __~.

._~. __ _ _

._ __ _._ _._ .._ _ .

PAGE 65

1 Ii

CHAIRMAN SMITH: Okay. All those in favor of the

L IIII motion please raise your hand.

I

I
3 I,

(A show of hands.)

I:

ii

4 II

CHAIRMAN SMITH: Fourteen.

I:

Ii

5 Ii

All opposed. Okay.

it

6 II ,I

MR. GIBSON: What was the vote on that?

II

IiI,
7

CHAIRMAN SMITH: Fourteen to zip.

II

II

8

Okay. That completes that section unless somebody

9 I can conjure up some more problems.

10

All right. State Transportation Board.

"z

[1 ;::

MR. HILL: This language is identical to the present

Co:

o

a.

~

12 ~ provision except two sentences have been deleted because it

@r~ ~ was felt they were not necessary; there are carry-over

-
-

l"f ~ provisions in the previous draft, but the staff has not attempted



1:
15 ,~,,, in any way to change this provision. This is exactly what's

I,~
:>
i6 3 in there now, and so you may want to conform this.

oz [7 ~

CHAIRMAN SMITH: Okay, let's look at it.

The first sentence creates a board with as many

19 members as there are congressional districts. It retains the

20 current method of selection, which is the majority vote of

21 I members of the House of Representatives and the Senate whose

), respective districts are embraced or partly embraced within

23 I such congressinnal district meeting in caucus.

For my own information, does this mean, for example,

that a fellow might vote in two of those elections but it works'

I,.'

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

: out all right?

PACE 66

SENATOR KENNEDY: I've got a situation where I

.:- ii represent -- most of my counties are in the First Congressional'

4 i District, but I've got part of a county in the Eighth

Congressional District, and I vote in both caucuses.

I

6:

CHAIRMAN SMITH: That works out all right in practice,

7 there's no problem?

8

SENATOR KENNEDY: Yes.

9

MS. HOLMES: Mr. Chairman, would I be in order in

10 making a motion right now to change something, or are we just

discussing sentences?

CHAIRMAN SMITH: I think this committee can do any-

thing it wants to.

MS. HOLMES: I was a little vague, you know, not that

15 ~ your ground rules were vague, but I just didn't want to take

0<
:>
16 ~,., up any more time.

z

-0:

17 :ii

I think something happened at the last meeting that

lR a lot of people who are here today weren't at the last meeting

19 and might want an opportunity to discuss or to find out why we

20 I decided to put this back into the constitution, and what I

21 would like to propose is reconsideration of this being placed

22 !1 in the constitution.

J ' --)

I think the arguments we heandcould apply to almost

24 any commission that was deleted, and I don't think there was

2S any really compelling argument to retain it in, and I would

PAGE 67

r~allY frankly like to hearf;om;;;;.-

!

2 IiI

CHAIRMAN SMITH: I suppose the way I ought to proceed Ii

3 II from a parliamentary basis is to say that this is a motion to

4 il reconsider, first as to whether this committee wants to put it
II
5 ilback on the agenda and have it handled as the previous meeting.!

Is there a second?

'7

MR. STERNE: I would be glad to second that motion.

CHAIRMAN SMITH: Any further discussion on that

9 , motion?

10

The motion would be to reconsider without saying which

!

"z 11 ~way it's going to go the placement of the DOT or the State

o

<l-

oU

(~~])/'""." ~ A\C-''V-1.~'-A1\

12 ~. Transportation Board in the constitution. ~ All right. All those in favor of the motion.

14 ~

r<
15 .:>

":".t:

16

0::
Z

U>

Cl

Z

-..::

'" 17 ,~

(A show of hands.) CHAIRMAN SMITH.: Opposed .
(A show of hands.) CHAIRMAN SMITH: The motion is defeated ten to four.

16

Okay. We had gotten through the selection or

19 election of the members.

20

Now I think we ought to be consistent here about this'

21 phrase "until their successors are duly elected and qualified,":

1) and cut it back down to t he language we have elsewhere. "All

23 members shall be elected for terms of five years."

,~4

Okay. "The State Board shall elect a ... ", I suppose

25 here it ought to be capitalized -- somebody can check all that

PAGE 68
II
I capitalization. Probably when you use the word "board" in all

2 of these things it ought to be capitalized.

3

MR. HILL: This has been going through editorial

4 process. The way it appears is the way the Office of

5 Legislative Counsel is

6

MS. NONIDEZ: It's the Code Commission; they have

7 adopted the style for the new code.

8

MR. HILL: This does follow the style.

MR. GIBSON: Judge Smith, is there any sanctity in

10 using the word "elect" in this provision? I guess I have an
"z
11 ~ old fashioned idea that election means the constituents have
@;:;."o.-. the right to do something, and I just wonder why we don't say
"select" instead of "elect."

14 ;
I-

CHAIRMAN SMITH: We don't have to say anything. If

'r<

15 .:. we follow what we've been saying, we can say "All terms of

"'"::J

16 ~'" members shall be for five years, " and that would be consistent

,:l

z

17 :ii with the previous --

lil I'Ii

MR. GIBSON: "Shall be selected by a majority vote."

19 i

CHAIRMAN Sl-IITH: Oh, you want "selected" there.

20

MR. GIBSON: Election seems to me to go too far.

21

MR. STERNE: I don't know why you don't paraphrase

the same language as in the other one, "the chairman shall be _,.,' selected by the board from its membership."

24

CHAIRMAN SMITH: I'm a little bit lost here. Let~

look at this second sentence, "The member of the board from

L'________

_,_ _~ ~

._ ..__.,~

.__~_______

_ ,.,

_

___..__. .- j

PAGE 69

il-:~~~--~::~-;:~-~-~~-~:~-~~s~-rict shall--~:~-.~~-~~e pro~~:al-~:----

;1
, IilI "selected by a maj ority vote of the members of the House of
ji
i:1
3 Representatives ... "

4 Ii

MR. GOWEN: No, no.

II

~

MR. STERNE: We're talking about --

6 ,!

MR. STERNE: He's way down, Judge.

MR. GIBSON: I'll go back, because I think election

implies at least a constituency which votes for someone as

opposed to selection by a portion of that body, and so just as

Iv I wondered what the reason for using that term -- I mean this
"
11 .- is not an election, it's a selection process.

CHAIRMAN SMITH: I don't care whether it's selected

or elected myself, it amounts to the same thing.

,.

MR. GOWEN: The General Assembly calls it an election

r,

-<

1:

I:' ,j
~

CHAIRMAN SMITH: It depends on your definition of

.:J

! C>

2"'
'C"l

constituency.

Z

r.(
,'"" 11 7,

MR. GIBSON: That's true.

)~

CHAIRMAN SMITH: There is a constituency. Let's leave

it elected by a majority vote.

'I I

20

Okay. The third sentencewill now revert back to the

I

previous language which says all terms of members shall be for

-- where is the sentence --

MR. HILL: Line 27.

CHAIRMAN SMITH: -- shall be for five years. Okay.

All right. Then we have -- is it struck or stricken

PAGE 70

i "until their successors are duly elected and qualified."

2I

MR. HILL: Deleted.

3I

CHAIRMAN SMITH: "The State Transportation Board

4 i shall," and let's pick up our other -- that's where you wanted i
5 ! your "select" really, wasn't it?

MR. GIBSON: Yes.

CHAIRMAN SMITH " ... shall select a commissioner of transportation, who shall be the chief executive officer of the

Departament of Transportation."

10

MR. STERNE: Why not conform that to the language

l? Z
11 o~ by which we provide for the selection of the chairman in the a.
~ 12 ~"' other boards. the commissioner of transportation shall be
~ ~ _ selected by the members of the board n

14 ;....

CHAIRMAN' SMITH: But you would say "The commissioner

J>
r

IS ~ of transportation, who shall be the chief executive officer of

'";:>

16 ~ the Department of Transportation shall be selected by the

z

<:

17 :i, members of the board."

IX i

MR. STERN: By the members of the board.

"

19

MR. HILL: This is a different thing altogether.

20 This is the board --

21

MR. GOWEN: To go out to hire somebody, and the others

Y'l !
are elected from the members.

MR. HILL: This states the board has the power to

do something else, to hire this chief executive officer. It's

not necessary to be conformed because it's a different type.

PACE 71

MR. STERNE: . ~-~i~hdraw the SUg~:-s~~on:-~r ~-c~~~~:~l I

2

CHAIRMAN SMITH: Okay. The last sentence "The

3 General Assembly shall define by law the powers, duties,

4 qualifications, and compensation of the board and of the

5 connnissioner ... " And let's look at this " ... and shall be law

6 prescribe the manner, time, and procedure for the election of

7 members of the board and the manner of filling vacancies

8 therein. "

9

JUSTICE HILL: I move that sentence be stricken and

10 .., the standard language which we have heretofore used on all of

z

11 ~ the other boards be inserted, with the possible exception that

o

w"-

(~~ ~ SV

1'~" ~'" we might also ought to provide here that the qualifications,

,..,.. compensation. removal from office and powers and duties of

.-

J4;~ the members of the board andcr the connnissioner of transporta-

'r<

15 ~ tion shall be as provided by law.

:":>"
16 ~ C
z:

CHAIRMAN HILL: Let me ask our legislative members,

<i
17 ~ how long is Moreland's term?

18

SENATOR KENNEDY: He serves at the pleasure of the

board, doesn't he?

20

REPRESENTATIVE BUCK: I think so too.

21

CHAIRMAN HILL: Okay. Now, under what we're talking

about the legislature could change that term if it so desired.

I don't have any particular objections to it, I just --

24 '

I suspect this language crept in there about how

25

going to meet in caucus and all that stuff, but I

If

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

1 Iii' think the standard language is preferable here.

!i

PAGE 72

2 !I

Have you got that, Mel?

I

i

3I

MR. HILL: Wait. I think there is a major change

ii

4 II! here I mean this came up with the Board of Education as well. II
5 il If we would provide that the qualifications, compensation,
i
6 I,I' removal from office and powers and duties of the -- you know,

7 II I don't think we can use removal from office in our list
i'
I,
8 II because for one thing the members of the well, they're
II
9 il selected by the General Assembly itself, so that would be all

10 right, but in terms of the commissioner himself should the
"z
11 ~ board be the one that's going to decide whether he goes, or
p "~"
(@~r)'- ~ should the General Assembly be able to? CHAIRMAN SMITH: I think it ought to be the board.

14 ;
!;;

If you wanted to, back there in that preceding

-

1:

15 ~ sentence where you said they shall select the commissioner

'"::> 16 of ~OJ transportation, you can add "who shall serve at the pleasure

z

-'i

17 :ii of the board," and make that clear.

18 i i
i

Does that make sense?

19

MR. HILL: Yes.

20

MR. GIBSON: Who shall be executive officer and who

21 shall serve --

22 1

CHAIRMAN SMITH: Shall be chief executiv~ officer of

the Department of Transportation and who shall serve at the

24 i pleasure of the board.

2'\ I,

How often are they elected now? Do they stagger,

PAGE 73

[1-------

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

Ii you all in the legislature?

I
I

2 II

REPRESENTATIVE BUCK: The board members? They're

3 I,II staggered.

i:

4 ii

CHAIRMAN SMITH: Okay. So that would just continue.

II

I:

5 II I assume it's two a year, ten districts.

6 II

Are these five-year te~? It would be two a year.

I

7 II

JUSTICE HILL: Mr. Chairman, rather than provide that!

il
8 II the commissioner shall serve at the pleasure of the board
II!

9 :1 which might be read as prohibiting the board from appointing

10 him for a term, can we agree on some language which would let

Cz?

II ~ the board pre~cribe that he will serve at their pleasure, or

o

"w-

svr. 12 ~ if the board felt like he needed some sort of job security to

/\~--~\

;::

~~-""''' ~ give him an appointment of whatever number of years the board

14 ~ thought was appropriate?

<t :r:
15 .~
":'"J 16 o~n well.

MR. GOWEN: The present language is doing mighty We've got a pretty good highway board.

-z

<

17 ;~

CHAIRMAN SMITH: We're only talking about the

!}-' IIII commissioner now. "The State Transportation Board shall ;:
19 Ii select a commissioner of transportation who shall be the chief

20 executive officer of the Department of Transportation."

21

MR. GOWEN: That leaves it up to the board whether

they give him a contract or --

JUDGE FINDLEY: Yes, serve such term as provided by 24 the board, term of office.

MR. GIBSON: What did we recommend for the School
- --------- --- - - - --- - -------------

PAtiE 74

I I'I I:S:uperintendent? What was the language on that?
!i

2I

MR. HILL: The State Board shall prescribe the

.' qualifications, period and conditions of employment, duties,

4 authority.
ii

5

MR. GIBSON: In the interest of consistency, why

r don't we make it that way?

I:

7 11

MR. HENRY: The present commissioner is by statute

I,

8 i and says shall serve for a term of four years and may be

9 removed by the board for just cause, and they also fill that

10 vacancy.

CHAIRMAN SMITH: I think we're all in agreement what

to do if we just knew how to say it. It looks like out

group somebody would do it.

JUSTICE HILL: We look to you for leadership, Mr.

15 ~ Chairman.

<:J

~,

:J

16 ~
"'z"

CHAIRMJ.IN SMITH: I can't seem to grasp it.

<:

17 ~

MR. HILL: We could say "and who shall be the chief

l~ ii executive officer of the Department of Transportation and who

I'

il

19

'I
il

shall

have

such

conditions

of

employment

as

prescribed

by

the

II

20

i'
il

board."

ii'

You see, I think this arose because of our attempt

YI to have conformity with our previous language on the compensa-

23 tion, qualifications, removal from office and all the rest.

I'm not sure but the language we have does the job

25 adequately now, and we may be turning inside out to conform it.;

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

_ _ _ _ ._~_.

.

.

.

...J

PAGE 75
------------------------------- -----1
CHAIRMAN SMITH: How about something to the effect I
,I
2 the State Transportation Board shall select a commissioner of

3 transportation on such terms and conditions as deemed proper,

4 or on its terms and conditions?

5

MR. TIDWELL: I wonder if the committee really wants

6 :i to do that.

,.,
I

JUDGE FINDLEY: Why don't we leave it like it is?

1-\ '

MR. GOWEN: That 's taking away his term.

9

CHAIRMAN SMITH: It already has.

10

Maybe this is one of those where if it ain't broke

;:J
z
11 t don't fix it. o ~ ~ JUDGE FINDLEY:

That's right.

Leave it as it is.

SENATOR KENNEDY: I make a motion we leave it as it

is.

15 -"

JUDGE FINDLEY: Seconded.

-~

)6 ~ aw

CHAIRMAN SMITH: Okay. Now, Mel, would you read the

L

-<l

17 ~ last sentence as currently changed now?

Ii'S

MR. HILL: My understanding was we were not going to

19 , change it, that it would just say the Genera~ Assembly shall 20 define by law the powers and duties, qualifications and

compensation of the commissioner of transportation.

CHAIRMAN SMITH: I think the proposal on the table 23 was that this language be the same as in the other boards, but

only apply to the board. That is where we were. In other

words, put in your boilerplate.

J'AC I: 76

MR. HILL: The qualifications, compensation,

2

i !

removal

from

office

and

powers

and

duties

of

the

members

of

the

i

3

I
I

board

shall

be

as

provided

by

law.

I

4!

CHAIRMAN SMITH: Right, to make it consistent with

~ the others.

~)

SENATOR KENNEDY: Mr. Chairman, I think the General

., Ii Assembly is bound by law as to exactly how and when we will
I,
8 il elect these board members; it spells out how it will be done
!1
9 Ii and who will preside. 1\

10

CHAIRMAN SMITH: This would simply preserve that

power if it needed to be changed.

Mel, does the staff see any objection to using the

standard boilerplate provision?

MR. HILL: If we're not going to refer to the

c01IDIlissioner.

CHAIRMAN SMITH: We are not.

MR. HILL: Then I don't suppose we

18

CHAIRMAN SMITH: In other words, I think the feeling

19 is that that ought to be up to the board to determine.

20
i

MR. GIBSON: Does it have the inherent power to make I

I

21 I: those changes under that language that you have there?

:,'

22 !i

Suppose the General Assembly would repeal the existing

,,
---' statute setting up terms and conditions. Would the board then

24 have the power to set a four-year term or a six-year term?

25 'i

CHAIRMAN SMITH: I think they would myself.

r r - - - - -..- - - - - - - - - - - - ..- - -

- ---.-_.-. ------ -.-.

PAGE 77

I

MR. HENRY: As long as you retain the power of the

!
2 Ii board to select the commissioner

3

II
:1

CHAIRMAN SMITH: Then they could do it on such terms

4 as they want.

5

MR. HENRY: -- they could write their own contract.

6

CHAIRMAN SMITH: Should there be any language in there

7 that says what the purpose of the board is?

8

MR. HILL: Like a powers provision?

9

CHAIRMAN SMITH: Yes. I mean "There shall be a

10 State Transportation Board who shall fix the roads," or

lz'l

II ~ whatever.

o

Q.

12 "~'

MR. GOWEN:

~(~~r'\~!E. ~~ General Assembly.

The present language leaves it up to the

14 ~

CHAIRMAN SMITH: Okay.

.1

~

'l:

15 .:>

Would anybody like this one re-read?

l'l

':">

16 .~...

JUSTICE HILL: I have one more proposal I would like

oz

.~

17 : t o put '~n.

It:

CHAIRMAN SMITH: Okay.

19

JUSTICE HILL: My recollection of the law relating to!

20 the Department of Transportation is that the law as presently

21 written now imposes certain duties on the commissioner of

22 transportation which is presently authorized in the constitu-

23 tion because the constitution says the commissioner of

24 transportation shall perform such duties as prescribed by law,

25 ! and I would propose that where we have down there about line 29

I.l

..

.

. _.

..._.

_

PAGE 78
III "IThe State Transportation Board shall elect a commissioner of

2 !I transportation, who shall be the chief executive officer of the
II
3 !I Department of Transportation, and who shall perform such duties

I
4 :i as prescribed by law and the board."

il

5 :i

CHAIRMAN SMITH: If you're going to do that, you might

I
(, i as well put him back in the last sentence, hadn't you?

7 II

JUSTICE HILL: No, because that adds him to the

Ii

1\ :IIi removal problem.

II

9i

CHAIRMAN SMITH:

Yes, that's right.

10

MR. HILL: And who shall perform such duties as

"z

I! ~ prescribed by law or by the board?

..o,...

Q-_.' ~ ~

12 ~

JUDGE FINDLEY: It couldn't be in the alternative.

It would have to be in the disjunctive; it would have to be

14

;.
!;,

"and,"

wouldn't

it?

-<rl

15 .0
"='":>

MR. HILL: Yes.

16 :o;

CHAIRMAN SMITH: All right. As I understand it, there

2~

<

17

"
m

must

be

various

statutes

on

the

books

now

that

require

the

Ii! commissioner of transportatiOn to do certain things like remove

19 billboards or whatever it is.

20

JUSTICE HILL: Sign condemnation orders.

21

CHAIRMAN SMITH: That kind of thing. And so we're

22 afraid of a vacuum here in those duties now imposed by law on

23 the commissioner of transportation.

24

A philosophical question is, do we want to have the

25 commissioner subject to the board only, or also subject to

PAGE 79

~--~-------~--------
II certain laws passed by the General Assembly?

i
2 II

JUDGE FINDLEY: I think the judge's suggestion would

i1
J take care of that, wouldn't it, because it brings --

4I

CHAIRMAN SMITH: If your idea is that he ought to have

5 i laws that control him; if it's not, then it would just be
I'
6 II it would be unwieldy if the legislature wanted to control him

7 through the board, it would be a very difficult kind of act

8 to draw, so say that the board shall not appoint a commissioner

q who does not do something in a sort of around-the-horn way.

10

Charlie, do you see any problem with that?

MR. TIDWELL: No, sir.

CHAIRMAN SMITH: Okay. Would you read that sentence,

MR. HILL: The State Transportation Board shall

15 ,~ select a commissioner of transportation who shall be the chief '-"~ ~; ::>
]() ~ executive officer of the Department of Transportation, and who a z <
17 ~ shall perform such duties as prescribed by law and by the

18 board. "

19 !

CHAIRMAN SMITH: Who shall perform such duties? What

20 , was your phrase?
I'
MR. HILL: That was it, "who shall perform such

22 dutie.s. "

CHAIRMAN SMITH: What if we say "who shall have such

powers and duties."

JUSTICE HILL: Powers rod duties.

80

CHAIRMAN SMITH: Have such powers and duties as

2 prescribed by law and the board.

3

MR. STERNE: What happens if there's a conflict

~ between what the law provides and the board provides?

MS. CROCKETT: Which comes first? Who has priority?

MR. GOWEN: "The law and the board" makes it the same.

7 If it was "the law or the board" it means the board could fill

K a vacuum where the law didn't prescribe it.

9

CHAIRMAN SMITH: Somebody said "Suppose the board

!(j orders him to do something that is contrary to the law."

11 ~'" Where is he? ':":>

I mean he's got to decide.

MR. TIDWELL: Presently he's controlled only by the

General Assembly. There's nothing in the constitition that

14 ~ says the board as a practical matter, he's employed by the
."(
:r
l~ ~I board, he does what the board asks him to do, but the board u'":
::>
16 ~ can't tell him to do something contrary to law. It seems to ::> z <
\' g me like perhaps that system ought to be preserved where you

don't get this possibility.

19

CHAIRMAN SMITH: I do think we do want for the board

20 to have power to direct him, though, don't we?

21

I mean we don't want a commissioner of transportation

" who just tells the board to go to hell, all you do is

MR. TIDWELL: He won't be there very long.

CHAIRMAN SMITH: He will be for whatever term he's

got.

81

MR. TIDWELL: The way it is now he's there --

::

CHAIRMAN SMITH: Four years is what they say over

3 here.

4

MR. TIDWELL: I just wonder if that's constitutional.

5

CHAIRMAN SMITH: The suggestion over there is that if i

he is going to serve at the pleasure of the board, which our

7 present language would presumably do, then maybe you don't need

any provision for him to do what the board tells him to do;

9 they'll just fire him if he doesn't.

MR. TIDWELL: All of your boards now, your commissioners

;~'':Nl:t.d

'.,.:.)
11 ~ carry out the policy and directives, except the only time I o -o,.
12 ~ think you might find that's not so would be the State School

~~/~., ~ Superintendent.

].+ ~

CHAIRMAN SMITH: Okay. If that meets with everybody's

<-

15

"
~

approval,

it will be

"Who

shall have

such duties

and powers

as

x ;,

J()

<Xl
~ provided by

law. "

z

<

"' 17 ;:".~

JUDGE FINDLEY:

That will be fine.

Ik

JUSTICE HILL: Let me add one other problem. Under

the present constitution the General Assembly has the power to

20 !r provide the compensation of the commissioner of transportation.

MR. GOWEN: They have done it by delegatiag that

power to the board. The board fixes the compensation of the 23 commissioner of transportation.

CHAIRMAN SMITH: I see what you're talking about,

though. You could have and the politicians ought to be

__ [ , ' - - - - - - - - . _ - - .. ., . ., - ... . . ...

PAGE 82

I interested in this -- suppose that board set some enormous

, '! salary for the commissioner of transportation, and then you

3 have other people in similar positions who are controlled.

4 Does that create a problem in the administration of government?

5 I think it does.

h

,I

MR. GOWEN: They have a provision now that any of

7 [these boards that are going to increase the salary of the

director of their department has to notify the General Assembly

'j " and the Governor a certain length of time before it becomes

10 effective to give them an opportunity to do something about it.

11
'';

That was a compromise between putting back in the

::>

"'-

"""

12:;'" legislature the power to fix salaries for the Director of

(~~'))~.~'!"~ ~ Human Resources,

~//

'~

Natural

Resources,

things

of

that kind.

14

CHAIRMAN SMITH: Is the commissioner in that group?

1:' ,!,)
,,'

MR. GOWEN: The commissioner is in that group.

I::::

';:>

](1 ~ "o,

MR. TIDWELL: Yes, he is. When their salary is

1-

Ii :"i-; increased, the notify the public and the Governor -- presumably

thepublic can't do much about it, but if the Governor sees it's
19 getting out of line he talks to the board members, and there 20 has been one'board member who did not receive what his board
21 proposed to give him. It's a brand new law, it's just gone
, ...,
into effect.

CHAIRMAN SMITH: So it's apparently handled under the'

24 present system.

:::5

JUSTICE HILL: Fine.

PAGE 83

CHAIRMAN SMITH: Okay.

Would anybody like this paragraph read now?

I would like you to read it just to make sure you

4 have it, Mel.

MR. HILL: Do you want the whole paragraph?

CHAIRMAN SMITH: Yes.

7

MR. HILL: "There shall be a State Transportation

x Board composed of as many members as there are congressional
I,
') ,I districts in the state. The member of the board from each

/fYI(~\

10 congressional district shall be elected by a majority vote of
,;;)
z:
[I. ~- the members of the House of Representatives and Senate whose .:,. w
12 ~'" respective districts are embraced or partly embraced within suc~

(\(il=J) )r.E.'!"""~ ~ congressional meeting in caucus. All terms of members shall

\".

,'il

14 Sbe for five years. The State Transportation Board shall

r

15 ~ select a commissioner of transportation who shall be the chief

]1) ~'"-'::!l executive officer of the Department of Transportation, and who

2.

<

,~.,

i:%:

'"' shall have such powers and duties as provided by law. The

19 , qualifications, compensation, removal from office and powers

I')
and duties of the members of the board shall be as provided by

20 law. "

21

CHAIRMAN SMITH: Okay.

MR. HILI.: Now, one last thing, "shall have such

compensation, powers and duties with respect to the commissioner
.J _~
of transportation," shall we had in your list that the

commissioner shall have such compensation, powers and duties

[ 1 - - - - - -------~-~~-.~--~-----------

I II'I as provided by law?

Ii

I'

2

CHAIRMAN SMITH:

PAGE 84 That's what we just had. There is

3 I another act that takes care of that.

4

MR. HILL: Okay.

5

CHAIRMAN SMITH: All right. Veterans Service Board.

6

MR. HILL: This is identical to the present provision.

7

MS. HOLMES: Do I jump into the vacuum?

(Laughter.)

q;

MS. HOLMES: I was hoping someone else would do this.

10

I would like to --

11 ~
'o"

MR. STERNE: I'll do it, and you second me.

~.

~\~i'"

~

"

MS. HOLMES: All right. MR. STERNE: I would like to ask that it be

14 ~I reconsidered.

~

<

1:

J 5 ,~

CHAIRMAN SMITH: I assume Ms. Holmes seconds it.

'':"",

16 ~
'"2"'-

Any discussion on the motion?

17 ~

The motion is whether to reconsider the placement of

Ii) " the Veterans Service Board in the constitution. All those in

19 :'[ favor of the motion please raise your hand.

20

(A show of hands. )

21

CHAIRMAN SMITH: Seven. All opposed.

-,..,
(A show of hands. )

,,

...... ~

CHAIRMAN SMITH: Seven.

MR. STERNE: The chairman gets to vote.

25 I

(Laughter)

PAGE 85

CHAIRMAN SMITH, : I feel disloyal to Joe because he came here mainly for that purpose and had to leave and meet

3 the Legislative Forum.

4

Obviously I vote in favor of the motion from what I

5 have said previously, but I think it is kind of unfair to Joe. I

(0

MR. STERNE: I think we ought to try to --

7

I don't know, I have a little conscience about that

8 too. I'm pleased with the way the vote came out, but I would

9 like it better if he were here.

10

CHAIRMAN SMITH: Mel.

"z
1 l I-

MR. HILL: There were several others who were 'pretty

o0<

"-

12 ~ adamant. This thing carried about eleven to four last time.

~ ~ ~sv!t:t,

~

CHAIRMAN SMITH: To avoid that problem, I'm going to

""1"4.1~ switch my vote and let it go as before. I think that's

0:
r

IS ~ probably the fair thing to do, as much as I am opposed to it.

l,:J

'"::>

16 ~ w

MS. ADAMS: Why did we change the designation from

zCJ

17 <~: director to commissioner on line 13 of the Veterans Service

1K Board?

19

MR. HILL: Joe handed this to us, and we put it in

20 here, and my understanding was it was identical, but you say

21 there has been a change?

71

MS. ADAMS: It says "Said board shall appoint a

commissioner who shall be the executive officer of the

department," and in the constitution now it says director.

I guess it doesn't make any difference how it's worded.

ii

!I

CHAIRMAN SMITH:

i
I
2 I Board came up wi th ?

PAGE 86
Was this the draft that the Veterans

3

MR. HILb: That Joe handed out.

4

CHAIRMAN SMITH: Most everybody else is called a

5 commissioner, aren't they? It doesn't change his power or pay

6 or anything, does it, Charlie?

MR. TIDWELL: No, sir. I was just wondering if the

8 statute in the reorganization act of '72 changed everybody from

') a director to a commissioner. They may have done that by

10 statute. I could check that.

z"
t J i=

CHAIRMAN SMITH: You mean he may now be a commissioner?

e ,-" ~",

o

"-

12 ~"'

MR. TIDWELL: I don't believe he is. I think we still

call him director of veterans service. I don't believe he is a

14 ~ commissioner.

<i

L

15 ~

CHAIRMAN SMITH: Apparently this proposal came from

<.:J
'";:>

16 3'" the board itself.

<.z:.I

<i

17 "'"'

MR.. TIDWELL: They would kind of like to have him

Ix ! commissioner apparentI y. All department heads now are

19 commissioners.

Ii 20 ;'1

CHAIRMAN SMITH: Let's go on and make him commissioner

2i too, unless somebody objects.

221

Okay. It seems to me this language is not quite the

same as we used elsewhere. Just in the interest of literary

24 style I would like to see us rephrase the same substance but

2'\ in sort of the form we have.

PAGE 87

Judge?

2

JUSTICE HILL; May I undertake a shot at that?

CHAIRMAN SMITH: Please do.

4

JUSTICE HILL; First it seems to me that the last

5 ,sentence in Paragraph (b) is unnecessary, and we have I think

b II already determined that to be unnecessary in a previous 'I
7 provision.

8

CHAIRMAN SMITH; You mean vacancies shall?

'9 III:

JUSTICE HILL: Right.

II)

And to follow the boilerplate language on the

.?

11 t qualifications, compensation, removal from office and powers

oo.

<'W

12 ~"' and duties of the members of the board shall be as provided by

'\:. . , (("'..(,--i1J1.~..j-'1)r\ '""-""!~ ~'~= law we can strike on Line 10 after the words "seven members"

---, , 14 ~ the phrase "Who shall have such control, duties and powers"

<:

':I:

15 ~ down through "as provided by law."

<!J

':<:

::>

16 ~

CHAIRMAN SMITH: Okay .

z:>



17 ~

JUSTICE HILL: We will add in the boilerplate as

subparagraph (b).

CHAIRMAN SMITH: Okay.

20

JUSTICE HILL: Then we should take what I think is

presently in subparagraph (b) and make it the second sentence.

CHAIRMAN SMITH: Why don't we do this: It is almost 23 time for a break, and we can go and either break and go and

eat and, Mel, maybe you and your staff could rewrite that like

the others are written in the same order during the lunch.

__ I ------,-"-- ---~_._---_.

._-~_.-

- - - - - - - - - - - - - - - - !r-------~-----

PAGE 88

Ii.
It
2 !: coffee?
I' :1
3 I'

Do you want to break to eat, or break to get a cup of VOICES: Eat.

4

MS. ADAMS: Why don't we wait unti~ twelve to break to

5 eat?

6

CHAIRMAN SMITH: It's going to take them a little

i
7 ii while to do this. We could go on and then come back.

8

MR. GOWEN: We can go on and then come back to that.

CHAIRMAN SMITH: Let's do that.

1/,')

MR. TIDWELL: He's still called a director. They

'.:l

7-

11 ~ didn't change that.

."".-.

@) _.. ~ v

12 ~

CHAIRMAN SMITH: By changing it to a commissioner

the only problem we have is that all the statutes now read

14 S director, but you can pick that up and clean it up anyway. It

<l

1:

15

.:>
'J

seems

to me

it's

better

to

have

it

uniform

throughout

the

~

:>

16 ~.'" state.

"T

! 7 :;

Okay. Article V, later to be possibly Article IV on

!l) the Executive Branch. Section I, "There shall be a Governor

19 who shall ... "

20

Why don't you read all of (a)? We discussed this

21 before. It provides for two terms after a lay-out of four

22 years and you can run again.

MR. HILL: I'll point out that we have deleted

because we didn't feel it was necessary, you know, a sentence

ID the effect -- we originally said persons holding the office I

rr------------------

--

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

-------------------P-A--G-

E 89
---~

1 !i of Governor may succeed himself for one four-year term of

'I

.,

I,!i
I'

office,

comma,

provided

that no

person

shall

serve

for more

I
I

:1

I

Ii

I

.) II than eight consecutive years.

II

'I
4 ii

Now, we deleted that because we felt itWis

I" I

5 11 unnecessary because the way this is written that is in fact the

6

III
II

case,

and we

just

deleted

it

because

it

did not

appear

to

be

:i

7 !i necessary I and --

8

MS. ADAMS: I was going to ask you about that becaUse

I

9

il
I.I,

I

was

wondering

if now a person can serve eight years, then

10 sit out a four-year term and the run agaih for Governor.

"Z
11 ...
'o"
"w-
12 ~
~~r~~

MR. HILL: Yes, that's the idea of the change. CHAIRMAN SMITH: The committee approved that. MS. ADAMS: All right.

14 >!;;

CHAIRMAN SMITH: When he comes back, can he serve



1:

15

.:>
~

two

terms?

Does everybody agree that's what this says?

'"::>

16 I~ "a'

Okay.

Z

-<

17 :ii

Any questions on paragraph (a)?

18

All right. Look at (b). What's an emolument?

MS. CROCKETT: And is that the correct spelling?

20

CHAIRMAN SMITH: If the Governor~ summoned to a

21 regional meeting on energy by the federal government and they

22 pay his way to attend, is that an emolument?

23

MR. GOWEN: Not unless he has an expense account that

24 wasn't accurate. If it went to him, it would be an emolument.

If it was reimbursing the state for his expenses, it wouldn't
--- ----~-- ------------- ---------- --------'

__ __ __ ,.. . ._-_._-_._-_.__.. . _._---.-- ---- -_._.. _----
be.

PA(;r 90

2

MR. TIDWELL: I had occasion to look at that one

3 time. I believe the meaning of emolument doesn't embrace

4 reimbursement; it embraces the concept of profit, so if you

) are merely reimbursing the Governor for going to the White

h' House for a conference that is not an emolument. If you

7 reimburse him and pay him $20, then that is.

MR. GIBSON: Suppose he gets an expensive gift,

9 Charlie?

10

CHAIRMAN SMITH: What do they do at the Southern

'z.:1
11 ~ Governors Conference about all these lawn mowers and everything

-'
-'-
~,

12 ~ that the states give them?

(~'~ ~-f--J\ -)<//)r~~~"'~

~
:

MR. TIDWELL: They probably afe not given byfue states.

--

J,~ ,r..

CHAIRMAN SMITH: I think they are.

v.

I

<:>'

MR. HARROLD: What if somebody was a retired Army

.1

.::r:

:;,

1b ~ officer and wanted to run for Governor? Would this not

D

l

<.

17 ~ prohibit him from receiving his retirement benefits?

CHAIRMAN SMITH: I think it would.

19

The suggestion is if you had a retired Army officer

20 or any retired officer from any of the states or the United

21 I States, then if he were Governor he could not receive his 1 -J pension.

MR. HARROLD: I don't see that language as necessary.

24

CHAIRMAN SMITH: That's really the question I was

raising.

PAGE

r ,I ~

II
II

MR. HARROLD:

I'II

') ,1I\ to strike it. The legislature can set out the other things

il
3 II about you can't continue to practice law

4

MR. HILL: This is the present provision in the

5 constitution; it was carried forward. It may not be necessary.

6

CHAIRMAN SMITH: In the grant of power, could they

not prohibit that in the same grant?

s

JUDGE FINDLEY: I'm sure of it.

()

MR. GIBSON: I guess we're forgetting there's been a

10 good many cases at the national level of a question that came

11 ;;: up as to what constitutes public and private property.

o

0..

12 '~"

If the Governor goes to Japan, for example, on a

,J)) ~ ~,'-21-":1,/~~\

~

(f.., \~~)c.n- .,,"o ~ goodW'J. 11

trip,

and

t he

Japanese

government

presents

h im W.J.th

',_.-

14 tI a diamond encrusted sword, is that his or does that belong to

<
1:
IS '~the state of Georgia?

'~"J'

16 ~

We talked about this in our subcommittee very early

z
<:
1~ ~ on and decided we wanted some restriction, but we couldn't

IK II figure where to put the doggone thing.

1'1

CHAIRMAN SMITH: Then it was shifted over to another

:w : one, and they said "We don't want it."

Now, as I understand it the federal government has a 22 theoretical hundred-dollar limitation on personal gifts. For

example, an ambassador to a country can accept a gift up to a 2+ hundred; if it's a diamond encrusted sword it belongs to the

United States.

rr----~

il

1 II

MR. GIBSON: That's right.

II

I

2

iI
Ii

CHAIRMAN SMITH: That's the way they work it.

II

3 !i

JUDGE FINDLEY: It's not a question of constitutional

i

4 magnitude, that it ought to address itself to.

5

CHAIRMAN SMITH: I don't think it is either.

6

I would suggest we not encumber the constitution

7 with any hundred dollars. It would be worth about five by the

8 time we get this thing back.

9:

The motion is simply to strike the entire sentence.

10

(Motion seconded.)

CHAIRMAN SMITH: Any discussion? All those in favor.

(A show of hands.)

CHAIRMAN SMITH: Opposed.

(A show of hands.)

'.:I

CHAIRMAN SMITH: Carried.

'"::J

16 ,~... oz

MR. STERNE: Can we go back to (a) for just a minute?

17 ~

CHAIRMAN SMITH: Yes, sir.

18

MR. STERNE: If the Governor dies in mid-term, the

19 Lieutenant Governor succeeds to his office. Does this make it

20 clear that the then Governor has the same opportunity?

21

MR. GOWEN: The provision under the Lieutenant

Governor I think deals with that ,which we'll come to.

MR. HILL: If the Governor dies or is permanently 24 disabled, the Lieutenant Governor becomes the Governor; he

PAGE 93

four-year term.

CHAIRMAN SMITH: We debated that.

MR. STERNE: I thought it was in this.

4

CHAIRMAN SMITH: Okay. Any further questions on

paragraph I(a) or (b)?

MS. HOLMES: I have one. Could I just suggest some

different language? I don't think it would change the sense

8 of it.

9 ii

On line 8 where it says "Persons holding the office

10 of Governor may succeed themselves for one ... ", could we

"z

11 ~ substitute "The Governor may serve two consecutive four-year

o

"w-

12 ~ terms"?

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(\,--_1 )\) /(-4\'

;::

\ ,~,~_,:-t,-:,:-J~~///')rC-O-".-...-.

~3
!

Then the next sentence would be "A Governor who has

14 ~ held the office for two consecutive terms shall not be

':(

!

To

i

1~ ~ eligible for election to that office until after the expirationi

I '":;0

16

~
w

of

four

years

from

the

conclusion

of

their

term

as

governor."

Cl

z.

..:

'" J,'

;":0

I don't think that changes the meaning, but it takes

IS I the "themselves" and the "persons" out which is a little aWkwar~. I

j<.j I

CHAIRMAN SMITH: I'm trying to think -- it seems to

:~~ I
IiL _ . ._~~ .

CHAIRMAN SMITH: What we had decided was that the

_ _ ~_~

~

~

. _._~_

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

PAGE 94

[I
Ii Lieutenant Governor ought not to in the earlier debate. In
il

2

11
II

other words,

we

got

into

that

question

of

if

a

fellow

came

in

I!
3 II on February the 1st and served three years and eleven months,
II

4 I,II, could he then serve eleven years and eleven months, and every-

I
ii
5 Ij'l body decided not to, and I think that is how we backed into

6 I this language. That is why it's worded the way it is, so he
ii

7 i would normally succeed himself for one term because a threeII ii
8 il year Lieutenant Governor could only succeed himself for one

9

Ii!II
I.

term,

he

couldn't

have

two.

10

I believe that is why we're where we are.

"z

11 ...
'o"

MS. ADAMS: I'm concerned about the sentence that was

o-

w

g '12 ~ stricken in paragraph (b) or Section (b).

0,~,'~)?Jem"/'"

~
I

Is there something in the statutes that limits what

14

>~

a

Governor

can

accept?

I mean we strike it from the

:r

15 ~ constitution; is there something that provides for that because

'"::> 16 ~IX> there really is an opportunity for abuse there.

z

17 ~

CHAIRMAN SMITH: I think we ran into this with the

18 earlier thing and wanted to put it over in the Bill of Rights,

19 but isn't it true they rejected that, Mel?

20

MR. HILL: Yes, they rejected it, and it can be

21 covered by law if it's not. I mean this very well may be

22 covered by law this minute.

23

Tom, did you check this Section I of Article V to see

24 whether that's covered by law? Whether it's covered now or

25 II not, we have the next session of the legislature .to be able

l~;

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

'." .. -. ".".'-'."

PAGE 95

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

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

to do that. It's a matter that can be covered by law; it does

2 not have to be in the constitution, and that was the decision

3 we came to with respect to the other question.

4

CHAIRMAN SMITH: Which was the compensation question.

5 I It seemed to me on its face to prohibit a man who might have a

private business from holding any public office, and I think

our last thought was, and hopefully our legislative members

will carry the baton, that they really ought to have a

U -

: i

committee

appointed

to

study

that

and

come

up

with

a

good

law

10 that would handle all of these problems.

',,;\?-'U{'':h

11 ~
..o0...:..

MR. TIDWELL: Judge, so we won't be accused of

12 ~- misleading anybody, the answer to the question is I don't

((c'J;J) )(.~!.'!E believe there's any statute which prohibits them from taking a

--_. /; \ " "....-

/ ,,/ /

I: .>... gift other than the conflict of interest statute which applies ~ r

15

.:>
'"r.;::"

to

all

state

employees.

There is no specific statute that says;

::l

1c'

~
w

anything

about

the

Governor

taking

emoluments

from

private

'z"

<:

folks or not.

CHAIRMKN SMITH: This doesn't say anything about

19 private folks. The other one was directed to that.

20
II

MR. TIDWELL: Private or public.

I,

,~

LI

CHAIRMAN SMITH: It is a big problem, and certainly

" something that ought to be handled, but it can be handled by

23 law is the point, instead of encumbering the constitution.

') -1

~-r

MR. GIBSO~: Are you suggesting the General Assembly

l;-,
.-. under that first sentence in (b) could then pass an act which
,
-------_._-'

CHAIRMAN SMITH: I think they could, but I think the

problem is bigger than the Governor. I think it ought to be

addressed statewide and come up with some specifics, then they

could change it to meet inflation and all that kind of thing

as we travel on.

JUSTICE HILL: Mr. Chairman, in view of the deletion

8 of the second sentence of subparagraph (b), do we need a

9 subparagraph (b)?

10

CHAIRMAN SMITH: Yeah. Who's going to set the

Cz1

11 ~ Governor's pay?

."o.-.

~ ~ t~ ~ 12

JUSTICE HILL: Couldn't we add that sentence to

-_. subparagraph (a) and just have one paragraph?

14 ~
'r<
15 ~
\!J
'";:J
16 .o~.. II. z <.
17 ~

CHAIRMAN SMITH: Oh, yes. I think that's all right. If there's nothing else on I, let's go to Paragraph
I had a question mark here as to whether anybody

18 Ii could take the position that the new constitution started over

19 II with the Governor. In other words, would Governor Busbee be

,I
,I

20 IIii the first Governor under this constitution and therefore be

I"I
21 :i entitled to two more terms.

i:
I:

22 II

MR. GIBSON: Under this constitution he would be.

'I

_".' II

CHAIRMAN SMITH: Well, there's no change in the time

24 " of e leet ion, and I don't think there is. Couldn't you jus t say

2) , an election for Governor shall be held on the Tuesday after

L

~--------~

rr------:--

PAGE 97

I' the f~rst Monday? I think it is the "under this constitution"
II
I'
2 that raised that thought in my mind.

3

MR. HILL: That would be good, the election for

4 Governor shall be held --

5

CHAIRMAN SMITH: Yes.

MR. HILL: -- on Tuesday after the first Monday in

7 November.

MR. GOWEN: We could put "an" instead of "the," an

9 election shall be held.

lO

CHAIRMAN SMITH: Shall be held on Tuesday after the

"z 1! ~ first Monday in November of 1982. You could still make the

.o0..-

~~}~ ~ ~~

1 -,
-

'"
u~

same

argument

I

suppose,

but

somehow

the

"under

this

constitution" seemed to infer that you might start over.

-i I I I

'-...-~

14':'
i;;

MR. TIDWELL: I promise you we won't take that



J:

15 ~ position.

:o:XJ

j6 ~ "a'

CHAIRMAN SMITH: I'm satisfied the incumbent won't.

I assume you're looking on through the balance of thaf

I;, paragraph.

J9

MR. GIBSON: Why do you say until an election is

I

thOUgh~ 20 " fixed? That suggests there will be another election. I

""
21 " that was "unless another date was fixed."

CHAIRMAN SMITH: Oh, "unless'! instead of "until"?

MR. GIBSON: Yes. "Until" seems to suggest that 24 they're going to provide -- I just wondered if there was any ,

reason for that language.

PAGE 98

CHAIRMAN SMITH: "Unless" suits me. I assume

2 otherwise it's standard.

3

MR.. HILL: Yes.

4

CHAIRMAN SMITH: Okay. So there are those two minor

5 changes, "under this constitution" first, and "unless."

6

Okay. Paragraph III, I never have understood what

7 all this was.

8

Why is all this in here? Does anybody know?

9

JUDGE FINDLEY: I don't either, but it's sealed up.

10 That's pretty good too.

~

11 ...
o0:

MR.. TIDWELL: I made the suggestion -- Justice Hill

~.

12 ~~ and I were the scriveners of that, and it was necessary to do

~ ~ _ that at the time. I thought and the subcommittee that perhaps

14 ~: that was a fruitful area to cut down on. Justice Hill wasn't
'"
:r
15 ~ there, and the subconnnittee said "Well, you talk with Justice .';.":,,
16 ~ Hill and see about it, and report back to us, 11 and Justice Hill z
17 ~< thought we could change some words around, but the thrust of it

18 ;1 ought to be the same, so I said ''Why don't we just leave it
19 IIii just precisely as it is, and nobody would be upset about it," I' :1
20 ii and I'm

21 ,

CHAIRMAN SMITH: All I'm saying is, does this

provision have to be in here to get us a duly elected

23 Governor? I mean what's the difference

24

MR. TIDWELL: My answer would be no, but Justice Hill

25 i thought it was -- he can speak for himself -- he thought it was. -i - - - - - - - - - - - - - - - - - - - -

PAGE 99
of such magnitu~~t~~--~~~ughtto be in here, but the ans~:~-l

to the plain question -- I think, Harold, perhaps you'll agree I

I
with me -- is no, it's not necessary, you don't have to have I

!

this in here.

I

He's elected now by the election code just like

I

everybody else is, and there is no constitutional reason for i

it to be in here other than a policy reason to be in here.

I

JUSTICE HILL: There is this problem that under the

election code the Secretary of State would determine whether

,(J or not there was a necessity for a run-off. That's a pretty
': f',' awesome responsibility on one elected official, whereas this

" ~ provides there shall be an election board to make that

~::0/{<4

~

~;,/i\_c~'/-.11.:.._,;:,.~."'"'")\/'-I"':1l.-,~"!"

c~:
';")

determination.

\.

I,

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>,""

, .... /

, ---,"

,-

CHAIRMAN SMITH: Which is all the members of --

"
MR. TIDWELL: That could be by statute, Harold; it

10 ~: doesn't have to be in the constitution. ;)

i;

JUSTICE HILL: That would be true.

MR. TIDWELL: This just tracks what is the present

situation about canvass and returns and setting them up ~ere

20 and just creates this board, and if you've ever been there

it's right interesting; there's a whole room full of people

..\';
-

when they start, andiafter about an hour all that's there are

,-, _.) the Secretary of State personnel calling out all these votes

.':--+- for Joe Mundo and George Busbee, but that's --

JUSTICE HILL: All this came about as a result of

PAGE 100

11"--------------

II

'

the Bo Callaway-Lester Maddox nonelection in which the General

Assembly elected Governor Maddox. When the General Assembly

1 determined that they didn't want that chore again, these

4 provisions were adopted.

CHAIRMAN SMITH: Well, again -- and I understand what

h you're saying, but isn't the question whether it's in the

7 constitution or don't you just simply pass a statute that does s all these things, and heretofore we have generally been saying if

9 it can be done by statute let it be done by statute.

10

MR. TIDWELL: Why it's so lengthy, having done a lot

:'
L
1l ~ of these constitutional amendments before, you want to pin down! ::> .J.

@}~.,:J1 .7L everything so everybody will know what you're doing and they can vote on the merits of it and not leave it all sort of

1.1 ~ vague. It's absolutely necessary to get this change adopted

15 .~ to be like this -- right, Harold? we thought it was
:"J
16 ~;[\ necessary to let everybody know what you do had the situation
l.
17 ~": ever been. Whether that's true now or not, that's up to this

connnittee.

19

CHAIRMAN SMITH: If it was spelled out in this detail:

20 in the statute, wouldn't they know then as well as they know

21 if it's in here?

I don't have any particular objection, I just don't -l-', see why we need to burden the constitution with it.

MR. GIBSON:

25 paragraph.

,_1-.

.._._.

~_ .. "_

I move we strike the whole third

JUDGE FINDLEY: I second.

PAGE 101_ -, --------_._----------------_...

CHAIRMAN SMITH: Any further discussion?

-'

All those in favor of the motion raise your hand.

(A show of hands.)

CHAIRMAN SMITH: Eleven. Opposed?

(A show of hands.)

CHAIRMAN SMITH: Eleven to one.

Whoever is going to -- and I suppose it's the staff,

Melvin -- this talks about the president pro tem of the

10 Senate, that's just something that's reincorporated. If it's

1.
.. II ~ reincorporated it ought to be changed since you will have a "~.

...~'o.!t.'l J..~. pres ident .

. / / ,"\\

\'~'\::;,J))(''':-'''" 2:

Now we may have moved too fast. Is the run-off

,.~::,_~~=.~~>/

'/1

Il .:' provision any different?

,~

15 ~,
l.:J

MR. TIDWELL: IV and V go with III.

:,

j ,,} ~.~,

CHAIRMAN SMITH: I mean is there any different

..

l'~ .~ provision for a run-off in the Governor and the Secretary of

i ") : Agriculture?

MR. TIDWELL: No.

of it?

CHAIRMAN SMITH: There's something there to take carel
i

MR. TIDWELL: Yes. This is all now in the statute.
J .'
CHAIRMAN SMITH: The same statute?

MR. TIDWELL: Yes.

CHAIRMAN SMITH: What do you think about that, Dr.

u !j! Gibson?
I: 21
"
I
"
3 ;!

PACE 102
MR. GIBSON: I would remove it. CHAIRMAN SMITH: Do you want to make a motion?

4

MR. GIBSON: I would so move, yes, sir.

5I

CHAIRMAN SMITH: Second?

(Motion seconded.)

7

MR. GIBSON: You've got V too.

CHAIRMAN SMITH: I assume the motion is to remove IV

9 and V, III, IV and V.

10

All right. Any further discussion of the subject?

'J

l'

. 11 o~,,.

The information is that there is a statute which

(~),.,.,,~ ~12 "'.' tracks this that's in place anyway.

~_/I

Okay. All those in favor of the motion raise your

ld ~ hand, please.

<! 1.

15 .:>

(A show of hands.)

3:>
10
,z"

17 ;';

CHAIRMAN SMITH: Opposed? Unanimous. Okay. That gets us down to the Lieutenant Governor,

~8 :: and Mel is tolling. Would you like to break for lunch? Let's

19 be back at one.

20

Mel, if you and Vickie and Tom and Mike could redo

21 that Veterans Service Board and the exception language --

(Whereupon, at 12:00 noon the committee meeting was

recessed, to reconvene at 1:00 p.m. in the same place.)

AFTERNOON SESSION

CHAIRMAN SMITH: I don't know where the people are.

PAGE 103

~~---~--

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

Ms. Watkins I know was in here a minute ago. and how about

I

Charlie Gowen? Did he

I

Well. let's proceed.

We were down to the -- Do you have a rewording of

that Veterans Service? Did you give your attention to that?

MR. HILL: The Veterans Service Board now would

appear as follows.

CHAIRMAN SMITH: Speak up a little bit. please.

'.1

MR. HILL: Yes. Subparagraph (a). "There shall be a

J'l State Department of Veterans Service and Veterans Service Board

J J ~: which shall consist of seven members appointed by the Governor G o.

-~'jJYf1~r..

l'
-

O'
';.~J~

subj ect

to

confirmation of

the

Senate.

The members in office

(((i:)'))r-c~.!.",~~ ~ on the effective date of this constitution shall serve out the

\''::'',._ ..._"_:./ /

VI
1,1 remainder of their respective terms. All terms of members
c J:
1:) ,~ shall be for seven years. The board shall appoint a
,.(.
::1
J(i ~ commissioner who shall be the executive officer of the Q

~.
department. All members of the board and the commissioner

shall be veterans of some war in which the United States has i 'J engaged."

Subparagraph (b) would be "The qualifications.

compensation. removal from office and powers and duties of

22 members of the board shall be as provided by law."

23 I

CHAIRMAN SMITH: The only thing that pops out. you

said the effective date of the constitution. and in the rest

of them we said on July the 1st. 1981. Let's keep it the same

PACE 104

MR. HILL: That's right.

2

CHAIRMAN SMITH: What's the definition of war?

MR. HILL: It just says some war in which the United

4 States was engaged.

5

SENATOR KENNEDY: I was going to ask that same

6 question. Would it preclude Korean veterans? That was a

7 conflict instead of a war.

8

MR. STERNE: Maybe we should change it to military

9 conflict. Under the veterans preference thing you use the

10 term "war or armed conflict" when referring to war. Armed

-,

"2:

11 ~ conflict would cover everybody. Maybe that's what you want.

o

"

~ 12 ~

CHAIRMAN SMITH: Why don't we just say that, war or

~); ,,~ ~ anned conflict.

//

:

l-~ >

c

MR. HILL: OkaY,that's fine.

15 !.)

CHAIRMAN SMITH: Then the courts can decide.

,I

:.

16

r.
L

..

All right. Any corrections to that?

'.

17

J~
'"

Okay. Now, we had gone through the Governor's

j~ Ii section.

I'

19

I understood, Judge, you had some question you wanted

I

20 to raise on what we struck. Listen to this, Charlie, because I!

don't know what's in the statute.

JUSTICE HILL: The elective franchise provision of

the constitution presently provides that any person shall be

2< : eligible to register and vote if that person will have

I

,I

2~ . attained the age or durational residency qualificat~_o~_~!_.~.~.~.~I

PAGE 105

of the election. Now, if a run-off election is a separate election,

3 then anyone who attains the age or durational residency
requirement between the general election and the run-off
5 election would be eligible to vote in the run-off election.
I am not opposed to people being eligible to vote,
but I am opposed to having confusion in the voter registration
,!
!:
I office between an election and a run-off election by the
') necessity of receiving applications for voter registration

during that period of time.

I

11 .-:..

As a consequence, there was a provision in the langua~e

,.]

"
'~ which has been stricken to say that the run-off election shall

c' be -- and this is on page 2, Paragraph IV, lines 24 through 29,

"The run-off election shall be a continuation of the general

j" " election and only the electors who were entitled to vote in

:'

1(i

the ~
'JI

general

election

sh~ll be

entitled

to

vote

therein;

and

U

" (, only those votes cast for the two persons designated shall be

counted in the tabulation and canvass of the votes cast," this to preclude the possiblity that there might be a further write-in campaign in the general election which would preclude ";.' I either of the candidates authorized to participate in that general election from getting a, quote, majority of the votes.
CHAIRMAN SMITH: Query. Under the election code

what happens in any other run-off election besides the gubernatorial? All this does is handle the Governor's race.

----_.. r:----~---- ------ -------------. -- ---------.--

Ii

JUSTICE HILL:

I don't know.

PAI;F; 106

:1
2 ii

CHAIRMAN SMITH: I mean something has got to happen.

3 If one of our people here was in a run-off for representative,

4 " don't they know how to handle it now under the election code?

I

:;

MR. TIDWELL: I think that the position the Attorney

6 General would take is precisely what this language says. If

7 i and when that question arises as to every other elected

~ official, I'm sure he'll take the position that run-off

9 ! election is a continuation of the general election and these

10 consequences could flow, but your point is well taken. It's

11

...
"o

treated for

the Governor,

but

in

this

situation

that Harold

cw"

@;~ points out to us we would then have a dual registration, then everybody else -- they could register to vote, but they

14 '>- would have to have a separate registration for the Governor,

~

r

15

~
:'

so

you're

sort

of

damned

if you

do

and

damned

if you

don't.

,,L

:J

16 z<Xl ,~

CHAIRMAN SMITH: My second question is, whatever the

r

<l

17 ''"" problem is, just like everything else we struck, couldn't that

18 be handled by statute?

19

JUSTICE HILL: I'm not sure, because you're faced

20 " with the elective franchise provision which says people who
I:
21 I:
become eligible to vote prior to an election are eligible to
22 register and vote in that election.

If the run-off election is an election, they would 24 ' be eligible to do that at that time.

CHAIRMAN SMITH: Well, but today they're eligible in
___._.. ._ ._~. "__.__._. .__ " J

--------------_._---- PAGE 107 _-------~I

everything but the Governor if your predicate is correct.

I

If you had a run-off election for Secretary of

I

Agriculture, then what you've just stated wouldn1t apply

I

I

because this only says the Governor's race.

I

'j

JUSTICE HILL: No, but the provisions for the secreta~y

of Agriculture say he shall be elected in the same manner as I

the Governor, and this is a part of the manner of election of

the Governor.

MR. TIDWELL: It would apply to the Supreme Court

Justices. Harold is right, all the other so-called

1-
l! ~. constitutional officers, this applies to them, but it would

_.

I~S\lid, J".- 1": not other statewide elected officers or any other elected
(\r~;~;J'j )\\-j '~"J ~".'~ officer. ""~--~-_/ "

..

CHAIRMAN SMITH: Well, is it important enough to put

r
I; .~ in the constitution? That's really the question.

MR. TIDWELL: I think that's what we're faced with.

I think Harold thinks it is.

JUSTICE HILL: We had one election messed up by a
/'-)
write-in campaign. I'm not speaking for or against that ::'.j particular write-in campaign, but it wasn't a very satisfactory

election, and we could have it again.

CHAIRMAN SMITH: Well, again, could not the

I
i

i

legislature pass an act that says all elections shall be

conducted whichever way they want to go, either let them vote

I

or don't?

._- ----~

PAGE 108

JUSTICE HILL: Well, that's my point that I would

: like to propose that there be a provision to say that the

3 !I General Assembly mall provide by law for the transmission,

4 I canvassing and publishing of election returns and for run-off

5 elections in the event no gubernatorial candidate receives a

majority of the whole number of votes cast in the general

election, and then include the sentence which I just referred

8 to.

9

CHAIRMAN SMITH: Which would say provided

10

JUSTICE HILL: The run-off election shall be a

z\.J

e ~IJ ~ continuation of the general election, et cetera.

"'-

1 ) .::r..:
1~ ',I

CHAIRMAN SMITH: Well, that would shorten it and still

0,__ preserve the point.

14 ~

The only value I see is that so many other places it

15 :; says they wi11be elected in the same way the Governor is,

'-:":.

16

~
r.,

that's

the

only

--

otherwise,

I

would be

for

just

letting

the

l

legislature handle it.

18

MR. HILL: Could we address your problem in Article

19 'Ii II, because we're going to be looking at Article II, the

20 elective franchise article, to have a statement in there-that

21 a person that is entitled to vote in a general election -- to

'""'I')
address the issue so that then the run-off would be a ,) .~.) continuation of the general election, just have a statement to

-.";'~ that effect over in the elective franchise article.

CHAIRMAN SMITH: That's where it ought tobe.

-- - -.----. - PACE

~--------- ~

-~ ~

109
~-----l

MR. TIDWELL: You ought to get everybody in step.

I think that's what you're saying, Ju4ge.

I
!

I

Right now we've got the Governor and the constitu- I

,; tional officers fixed, but we haven't got everybody else, so

maybe that is where we could include that, Mel, make that

change.

MR. HILL: That article will be presented.

JUSTICE HILL: That article is going back to the

voters as is I understood.

MR. HILL: Not unless the Select Committee at its

jj ~ meeting December 17th decides to accept an amendment to it
...

"'
!.~JYJi:/<\ -I.' ~'" which we can propose, so it's not too late to do that.

1 \~~JY"~="

MR. TIDWELL: That point didn't come up at that

]1 ~ committee, it might should have because we forgot about that.

i. 5 .~
('/
'x
:J
; b "~.. section?

CHAIRMAN SMITH:

Why don't we add it to the comments

MR. HILL: Fine.

:,

i'

CHAIRMAN SMITH: So that if it's not being done there

1') let it be known what our feelings are, and I'm not particularly

20 for either side, we just want to avoid confusion.

21

The essense is -- well, the important thing to me is

),
, they only vote for the two persons designated. I don't care

if there are additional voters myself.
24
JUSTICE HILL: When you have a requirement that in I' i
order to get elected you must have a majority, a~~ yo~?ave__~

PAGE 110
rr---------~-------~
unauthorized votes sufficient to keep you from getting a

majority, do you include or not include the unauthorized

votes?

CHAIRMAN SMITH: I mean I don't care if they're

5 authorized, so long as they have to vote for one of the two

6 in the run-off is what I'm saying.

JUDGE FINDLEY: Doesn't paragraph II, the last

sentence, say that the election shall be held at the places

() of holding general elections in the several counties of this

10 state, in the manner prescribed for the election of members

11 ~ of the General Assembly, and the electors shall be the same"? ",Doesn't that take care of it? In other words, you

have a run-off sometimes in the General Assembly also.

JUSTICE HILL: I have always read that provision as
15 ,~ simply providing that the General Assembly cannot create one
~l
16 ~ voter registration list for members of the General Assembly

and another voter registration list for the office of Governor.!

l~

JUDGE FINDLEY: All right, sir.

IlJ

JUSTICE HILL:, If you're eligi~le to vote for members

2CJ of the General Assembly, you're also eligible to vote for

21 Governor.

JUDGE FINDLEY: Here it says the electors shall be

the same. That mandates who can vote. In other words, if you

can vote for the members of the General Assembly you can vote

)C ,

...J for the Governor, and then conversely if you can vote for the i

_~_________

__ __

.__~ ....J

PAGE 111
---- ---_... _ - - _ .... _-_._-......,
Governor you can votE for the General Assembly, and any run-off

would be the same, so whatever the second qualification would

be for a member of the General Assembly, possibly that would

'1 also apply to the Governor, and it seems that either takes carel

of it or it needs to be removed.

I

o

CHAIRMAN SMITH: It ought to be cleared up, and it

ought to be the same, but it ought to be in the election --

whatever the name of that is.

I

n

'I

I

MR. HILL: We can amend that. No trouble.

I
I

10

CHAIRMAN SMITH: Okay. Let's go then to the

I

I

~ .I

t:<:
1..,.-

Lieutenant

Governor.

o

I

~.

"'

Does this reference back "who shall be elected at thel

same time, for the same term and in the same manner as the

!

Governor" run afoul of what we were just talking about?

i

.1.

As now written it wou~d simply have Paragraph II

I
i

that the election shall be held at the places of holding

general elections in the several counties of this state, in

the manner prescribed for the election of members of the

General Assembly, and the electors shall be the same, so

there is a reference back.
-,
I just wondered if we were referring in a vacuum herel.

I guess not.

All right. If you all recall the second sentence, wei
I
spent a good bit of time on it, which was the prescribing of

duties by the Governor as well as by the General Assembly.

n------------- - ._..-- ------- -------.--- _.--------- _.- ....

H

J Ii

I had a note here two ter,ms, but later on I think

!I

2 I::i

Oh, that was my question. Can you be Lieutenant

I;

3 i Governor for five terms?

4

JUSTICE HILL: You mean Lieutenant Governor for life?

5 i:

MR. HILL: There's no limitation on it in the

(, constitution.

7

CHAIRMAN SMITH: Does anybody have any thoughts on

8 that good or bad?

9

We have limited the Governor to two ter.ms, and the

10 question of succession is taken care of later.

Czl 11 ~.
.,().,
12 ~
@j~~

I don't have any particular reaction. MR. STERNE: It doesn't seem like a problem. JUDGE FINDLEY: Just a question. I don't know, would

14 ~. it have any effect if they're trying to run as a team and the .:r
15 ~~ Governor can't run? It may be that the man who is now seeking
.~:
:e.
III ~ the gubernatorial post wouldn't want the incumbent Lieutenant z:
17 ~~ Governor to run with him, but he will have built a power base
18 such that you might be forced to run with him. Does it mess
19 up the team proposition, or are we interested in that? I just
20 ,! don't know, but I thought that the Governor might want to work
21 a closely knit organization with the Lieutenant Governor as

distinguished from what we now have. If that's so, then his

23 ter.m should be limited it would seem like.

24

MR. TIDWELL: I don't think you've got a team.

CHAIRMAN SMITH: I think everybody said we would not :

require the team approach.

---J PAGE 113
--------------- ----------- - - - -

Charlie, the question is was there any discussion ~n !

J ' the subcommittee about limiting the number of terms of a

i

i

'. ' Lieutepant Governor?

MR. GOWEN: None that I recall.

,)

MR. STERNE: The picture that's been painted there

I seems to be very unlikely to happen given the control the

Governor has over the situation if this was adopted.

CHAIRMAN SMITH: The only thing that could happen

'0) that I could see under what we've done is a fellow could be
,)

! i ~ Governor two years, and then layoff and be Lieutenant Governor

~

I

:', ,';

i

~' for a term, and then come back, which I guess is all right too.

MR. GOWEN: That was discussed, and they decided if

,:: the people wanted to elect him that was their business.

MR. TIDWELL: That precise scenario was attempted.

CHAIRMAN SMITH: That's right.

r'

Okay. Any questions about Paragraph VI?

Okay. Number VII is the qualifications as to

citizenship .
.... j
MR. TIDWELL: Just a point of information. I think

the other Article III committee is in agreement with you now

on the office of Lieutenant Governor. Aren't they, Mel?

Isn't that finally the way -- we all are together, there's no

conflict? MR. HILL: That's right.

i
_________ J

I' .lGE 114
CHAIRMAN SMITH: We finally opted for the phrase

legal resident. Okay.

3

Paragraph VIII, Succession to Executive Power.

_\ There was a good deal of time spent on this. In the case of

s temporary disability the Lieutenant Governor would succeed as

'1 ! long as that disability is certified by the Supreme Court.

7 When they decertify it, or whatever the word is, it would

g revert back. I guess he would revert back; there's no

9 question about that, is there?

JUDGE FINDLEY: He never did depart.

1i !

CHAIRMAN SMITH: That's right.

":

')..

e,

12 ".

An early thought that we had was, this business of

(~;)~~ ~ the Governor being out of the state, as I recollect the

~--:://I :,:

-

14 .. subcommittee decided not to worry about that.

15

MR. GOWEN: Charles reported that that would have

l(i .~ been a problem.

17 "

CHAIRMAN SMITH: I think it's liable to create more

IS problems than it would solve if we monkey around with it, a

1'; lot like California.

MR. HILL: We could lock this in if you wanted to

21 say in thQ case of the temporary disability of the Governor

)' as determined pursuant to Section IV of this Article if you're

23 . worried about somebody just claiming they are. I mean we have

2,~ a procedure to in fact determine that. We could have a cross- I

reference to that if you wanted to lock it down.

1'1\G1:'.: 115

'1------

CHAIRMAN SllITH:

- - - - - - - - - - - - - - - - - ' , --~----------------
I,
Temporary disability of the

~ Governor as hereinafter determined?

MR. HILL: As determined in Section IV, Section IV

on disability.

CHAIRMAN SMITH: I, suppose you could put that in

there.

i
I All right. The next one refers to death, resignation!

or permanent disability of the Governor or the Governor-elect,

and it provides that the Lieutenant Governor or Lieutenant

I,' Governor-elect upon becoming the Lieutenant Governor shall

jj ~ become the Governor for the unexpired term. It's a little
;,"1
~~ :' confusing, but I think it means what we intend.

Okay. In paragraph (c) I was 'pst questioning

I 'whether he had to become Lieutenant Governor first before he

is :: became the Govemnor. I'm talking about a Lieutenant Governor-

!u _' elect.

MR. HILL: I think he would become both automatically~
I
MR. TIDWELL: The twinkling of a legal eye?

CHAIRMAN SMITH: I'm just wondering if it needs to be

, 1'
.-1

I

in

there.

Why couldn't it jus t read the Lieutenant Governor

or Lieutenant Governor-elect shall become the Governor. It

:
I I'

wouldn't be for the unexpired term, it would be for the term.

MR. TIDWELL: There might be a second or two

consumed before that legal eye twinkled.

CHAIRMAN SMITH: Maybe that saves the unexpired part 1
_ _ _ ....J

PAGE 116

of it. He would be Lieutenant Governor for a twinkling, and

, it would be an unexpired term thereafter. Okay.

Paragraph (c) provides for succession by the speaker
I'
l of the House, but only for ninety days, and the last is the

:; oath.

C'

JUSTICE HILL: Can we add "and Lieutenant Governor"

"/ after the word Governor?

1\

CHAIRMAN SMITH: About the oath?

'" ~

JUSTICE HILL: Yes, sir.

lU

CHAIRMAN SMITH: I think so.

l I ---

Again I keep wanting to say "such oath" instead of

"

! ~ ~ "the oath," such oath or affirmation.

Okay. Page 5, Section II, duties and powers of the
1
:: Governor.

15 ,

Executive powers. "The chief executive powers shall

16" be vested in the Governor. The other executive officers shall
.1'
<:
17 ~have such powers as may be prescribed by this constitution and

I ",l,J by law, not inconsistent with the powers of the Governor as
i
1
19 'the chief executive officer of the state."
'I
Did we ever decide whether executive officer was

11 defined anywhere? I mean there can be an executive officer

22 who is not a constitutional executive officer. Do we need to

say anything more about that?
I
MR. HILL: They're the only ones who I think you need!

to worry about with respect to this section because they're the! _____________ .-1

PAGE 117 only ones whose executive powers could be construed on a level with the Governor's, so I don't think any other executive, their powers could ever be considered to be on the same level as his.
CHAIRMAN SMITH: All I meant was, what is the definition of other executive officers? If you're the number two man in some department, are you an executive officer?
MR. TIDWELL: In my presentation on that point, Mel, (' I thought that it did apply to anybody that is exercising an
executive power, and you didn't just intend this to be limited , to those, quote, other executive officers that are mentioned
in the constitution. CHAIRMAN SMITH: It would be any employee in the
executive department is what you -MR. TIDWELL: Exercising that power. JUDGE FINDLEY: Could we say something like "the
executive powers not expressly reserved unto the Governor who shall be the chief executive officer shall be vested in" or "belong to all of the other executive officers"?
In other words, you give him the -- he has all the powers that are expressly given him by the constitution, and those executive powers not given him by the constitution are shared by all of the other executive officers.
CHAIRMAN SMITH: I think the intent was going the other way.

MR. HILL:

PAGE 118
-------- - - - - - l ---.---------~------.---
What if we just stated other executive

:2 I: officers rather than the other. If we just stated other

.1 executive officers shall have such powers, that would indicate

l :. morebroadly -- maybe the statement of the executive implies we

mean just a few listed here.

b

JUDGE FINDLEY: It's the chief executive powers that

7 I'm having trouble with. Executive powers is vague enough,

8 but chief executive powers is a creature that no one has ever

heard of that I can conceive of. Chief executive powers?

lG

CHAIRMAN SMITH: It doesn't say chief executive

,-

powers, it says powers of the Governor as the chief executive'
:1

I~ ~ officer of the state.

JUDGE FINDLEY: Well, sir, Paragraph I I was reading

says "The chief executive powers shall be vested in the

Governor." That's Paragraph I, Section II.

CHAIRMAN SMITH: Oh, your suggestion is to leave out :/ the word chief; the executive powers shall be vested in the I "\' Governor.

MR. TIDWELL: That's the way it presently is, and I 2(: ,I think Ed Jackson worried about it, and I think what he -- his

rationale was there are certain things that the Governor does

now not by virtue of express constitutional or statutory

i

-1 authority but simply by the fact that he is the chief execut1ve:!.
I

Many times the Attorney General advises him that he

I
I

I
can do what he wants to do by virtue of the fact that he is ; .- -----------j

._-----, _ _ PAGE
-_._-._-_.. _--_. __ _.. --_.

119

t he ch 1 ef execut1. ve 0 f thestate and t here are certa1.n

Ii

inherent powers, and Ed was worried that when we vested the

executive powers in the Governor that by some stretch of the

imagination that the Governor had it all and these other folks

didn't have any, and that's what he was trying to

CHAIRMAN SMITH: For example, the other constitu-

tionally elected officers?
!
MR. TIDWELL: That's what he was trying to address

here, and I don't kno~ whether it's been properly done, but I

think that's my recollection of where we are.

CHAIRMAN SMITH: The only problem I have is what

does "other executive officers" mean. If everybody is in

agreement that it's anybody that's working for the state !.j absent those who work for the judiciary or legislature, then I

i .1 have no problem with it, but if there's any confusion on that
'.t:
I think we ought to clear it up.

MR. TIDWELL: I think we'll just let the record

reflect that's what this committee

CHAIRMAN SMITH: That is our intention that any

employee of the state, he doesn't have to have a title, is )1 imbraced within the meaning of that.

Okay. If nobody has any problem it suits me.

MR. HILL: What about the "chief," shall we leave

the --

CHAIRMAN SMITH: On the first part I think Charlie

I: I'
has a point.

PAGE 120

MR. HILL: Then just:; say "other executive" as

3 i opposed to "the other"?

,";

MS. GREENBERG: If that's the intent of the committee,

I

!.~ then why don't we just say "other employees of the executive

branch shall have such powers."

CHAIRMAN SMITH: Again I get confused about the

other constitutionally elected officers.

')

MR. GOWEN: They're hardly employees, you see.

JUSTICE HILL: How about "other executive officers

l' l- and employees shall have ... "

MR. STERNE: What did you use in the powers of the

Governor?

MR. HILL: This was a recommendation in the '70

15 '.~. proposal that this be stated so it was clear to the members

~

1(,

~
I.:

of

these

other

boards

and

commissions

that the

Governor

is

the

chief executive. It was an attempt to give the Governor some

more authority over some of these other boards and elected

officials; they just wanted them clarified, that all the other

executive powers are in relation to his power as chief

executive.

JUDGE FINDLEY: You have executive powers of the
i
Governor that he alone can do, you have some that he and others

can do, and you have some under the constitution that just

others can do. There is that division in the constitution the ~~.. _ _ .. ~.. ~_.~ _,,_ . _ ..-J

PAGE 121
way it's ::::~-a-::-g-:-:-m-:~~athe cand~.s-om-~~-h-athe Share~~1

with others, and some that others alone can do that you have
i
specifically conferred upon them like the Labo~ Board,
I
Highway Department, any of thoseconstitutional boards, and he i

has absolutely no jurisdiction to do anything in any of those

areas. That's why it appeared to me that if you used that,

the powers that he has that are not expressly conferred upon

him -- I'm not using the right words, but the idea is that

whatever, he has the supreme power in the matter, and to the

extent that he does not have it it belongs to the other people

as specified in the constitution, however that could be

phrased, but you have a three-way split.

CHAIRMAN SMITH: I think the intent here was to say

" that other executive officers have the power as long as it's

not inconsistent with the Governor's power.

JUDGE FINDLEY: Yes, sir.

, , here?

CHAIRMAN SMITH: Isn't that what we're trying to say

MR.. HILL: Yes.

CHAIRMAN SMITH: I think understanding what Jackson

was after, this is probably all right as long as it's the sensei
,I
of the committee that the executive officer means anybody in

the executive department. Okay.

Paragraph II. Well, we're waving the flag I guess.
----- ------- --- ---- --- - - - ~

PAGE 122

I don't know -- When he removes sheriffs and all, '/ that's important, isn't it? Doesn't he have the power to

suspend a sheriff from office even though the sheriff was 't independently elected because he's not enforcing the law? So

I guess this is the repository of that power.

but --

MR. TIDWELL: I don't think he has that authority,

CHAIRMAN SMITH: They've done it.

MR. TIDWELL: No, sir. They just put up billboards

10 and blew the whistle.

1;-

CHAIRMAN SMITH: I thought there were --

MR. TIDWELL: He has a method for removing the

.~ sheriff.

CHAIRMAN SMITH: The Governor can suspend him and

~ put somebody else in charge. I thought they did that once or 1c- r; twice.

MR. TIDWELL: We have quite a few folks that want us 18 to do that, but --

CHAIRMAN SMITH: Maybe some conviction for a felony.

20

MR. TIDWELL: That's what it is, a procedure for

removing a bad sheriff. MR. HILL: The way Jackson felt, this is one of the
23 most important functions of the Governor and he felt it

deserved more prominence in the new revised version than it

has now. That's why it's here.

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

PAGE 123

I,.: -.

!!

CHAIRMAN SMITH: Okay. I have no problem with it.

Paragraph III, commander in chief of the military

J forces so long as he does not accept emoluments from foreign

states.

Veto power. Our legislative members had looked

particularly at this. If you legislative members will lOok at

that, just as a civics lesson I would like to know what happens

at the end of the term when all the acts get there and he

vetoes. Does it automatically go over to the next session,

or does it have to be repassed?

,_~;i
J1 X ~l

MR. GOWEN: I have lost you.

CHAIRMAN SMITH: Okay. At the end of the session he

- has five thousand bills passed the last week, and as I under-

stand it he has so many days to do something with them.

J-'

15

MR. GOWEN: Thirty days or something.

~1

.~,

MR. TIDWELL: They can override him at the next

-:'

".,~, session except the last year of his term in office. The

General Assembly cannot override bills that the Governor :; vetoes in his fourth year of the term of office under the

present constitution.

CHAIRMAN SMITH: They don't have to repass the bill?

MR. TIDWELL: No.

CHAIRMAN SMITH: In other words, the next session is

automatically

MR. TIDWELL: Can override.

-_. --_.._-_._---_.._------'i

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

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

I !I

CHAIRMAN SMITH: I was just curious.

PAGE 124 I just wanted

2 to know.

3

MR. HILL: The first ten days.

4

CHAIRMAN SMITH: The first ten days. Okay.

Is there a pocket veto, Charlie?

()

MR. TIDWELL: No.

~

I

I'

CHAIRMAN SMITH: In other words, it has to be an

8 affirmative yes or negative veto?

9

MR. TIDWELL: That's right.

10

CILAIRMAN SMITH: On every bill?

L

11

MR. TIDWELL: It becomes law unless he vetoes it.

CHAIRMAN SMITH: Okay.

MR. TIDWELL: For information, there is a change in

14

>.
,,.,

the

veto

being

recommended

in

the

legislative

article.

<

1:

JS ;~
c]

CHAIRMAN SMITH: Would this one conform with it?

,~;

OJ

ll,

1 C'

MR. TIDWELL: Yes. This just kind of restates it

here, doesn't it, Mel?

MR. HILL: Yes.

19

MR. TIDWELL: It's just to make it clear .

.20

CHAIRMAN SMITH: Unless there is some veto of the

21 veto provision by Senators Kennedy and Gillis we will roll on. I

Paragraph V, writs of election, whatever they are.

It just says that somehow he requires the vacancies to be 24 filled, doesn't it?

What is a writ of election?

;
~ ... . i

PAGE 125

-~~'--'-'-'-'-"~'--"~-'---'-----',

i'

MR. TIDWELL: We prepare an executive order.

I

CHAIRMAN SMITH: Why don't you jus t say the Governor \I

3 can issue an executive order to fill all vacancies?
i
MR. TIDWELL: Writs of election jJ.st sounds mysteriousi

and appealing.

()

CHAIRMAN SMITH: Paragraph VI I assume is the

requirement on the Governor to give his state of the state

I) address .

-J

Paragraph VII. Special sessions. You all had some

;U discussion about this earlier .

.'-

Id ' ,

Paragraph sub (a) took care of the problem of perhaps

l~ u a special session being called for a stated purpose, and then

i }~/~.~~\

~,

r----- 1 ..~.1u~.~} :/;) ".w", '~: it would appear practical at the time that those .purposes be

;j~, expanded, and there apparently has been some confusion as to

15 ~, the legality of anything the special session did that was not
.1:';
,!, 1 strictly within the confines of the proclamation, so this 'z:, " allows an amendment of the proclamation with the approval of

three-fifths afthe members of each house, and it seems to me

,') it's just a practical thing to allow them while they are )J spending all that money in that session to do something else

if it became appropriate.

Section (b) requires the Governor to call it on --

Should you say certify in writing to the Governor?

~.l

MR. TIDWELL: Yes.

SENATOR GILLIS: It ought to be in writing it looks

to me like.

PAGE 126
--------, ------ - ----------~--

CHAIRMAN SMITH: I think so too.

MR. STERNE: It's got to be in writing with a copy to:

.( the Secretary of State.

C J

CHAIRMAN SMITH: We'll say that later.

(Laughter. )

CHAIRMAN SMITH: Just trying to avoid somebody saying

"Well, I called him up and said I was for it," and he counted c) up the written ones and there wasn't enough. Okay.

10

The forty-day limitation except for the continuation

z
J1 ~ of an impeachment trial. That's picked up from the present. :, -.,~-.

(t~~' -''",.~12 ,

JUSTICE HILL: Out of a sense of symmetry I would

\~J!
~~/

like to suggest that the veto power be moved down to that point
>,

14 ~ where you are now rather than preceding the writs of election

1):':,J and state of the state address.

1f

,n

.:.. l ~ :?"

,:,

CHAIRMAN SMITH: You mean let it follow the special

sessions?

18

JUSTICE HILL: Yes.

19

CHAIRMAN SMITH: I see no problem with that.

20

MR. HILL: Except the committee itself had put these

2J in a descending order of priority from the subcommittee's

22 standpoint. They felt the veto power was one of the more

23 significant powers, more so than the making an annual report

and whatnot.

JUSTICE HILL: I agree. I was putting them in

PAGE
_- - --~-- ---------- - - - - - - - - - - - - - - - - - - - _.. --------_ .. _----------- - - - - - - - -
chronological order rather than order of weight.

127

MR. TIDWELL: Mr. Chairman, since you treated Joe

, so good, I'm going to presume the same treatment for us; I

feel like it's safe to leave this meeting.

CHAIRMAN SMITH: I have already made my only honest
i!
6 vote, fair vote of the day. I have used it up.

(Laughter.)

CHAIRMAN SMITH: Let's go back. Apparently I assume

Ed Jackson and those people wanted to highlight the point.

1i~~ Unless you have particular objection, let's let it stand.

Okay. Filling vacancies. Is it anywhere otherwise

provided in the constitution that he not fill a vacancy?

JUSTICE HILL: Yes, sir, writs of election and

J .. ~

.,... ,-

members

of

the

G~neral Assembly.

He cannot appoint a member

V)

"','

;'; '" of the General Assembly.

",'J-
-,1
CHAIRMAN SMITH: That's right, and I don't guess he

17 .~ could appoint a member of the Highway Board either.

j,

JUSTICE HILL: That would be one.

CHAIRMAN SMITH: All right.
-,:,
Are there any provisions where they don't continue

in office for the unexpired term? I guess I've got gun-shy

and I'm looking for trouble. The word "continue" bothers me

I I

a little bit.

I

MR. GOWEN: There may be some officers such as city I
I
court judges and state court judges or whatever you call the~

PAGE 128

now who go, and they would appoint somebody until an election

] could be held, things of that kind; you may run into some.

3 I,

CHAIRMAN SMITH: I think "serve" is a better word

4 than "continue," shall serve in such office for the unexpired

5 term.

I'

MR. HILL: Serve for the unexpired term, " ... so

appointed shall serve for the unexpired ... "

CHAIRMAN SMITH: Shall serve for the unexpired term.

Does that suit everybody, "unless otherwise provided by the

1\) constitution or law."
-J

11 --,;

The next one says if somebody dies between election

-:')

and taking office, then the Governor~elect has the power to

fill such office.

MR. HILL: There are two changes in here IBnt to
"

J

15 ~: point out, and I'm not sure if this was an affirmative decision'

L

::

,D

16

- - I.
~

I

think

it was

an

affirmative

decision.

The present

l.

17 d
- 'Xl constitution states that the Governor would fill these

l~ positions until the next general election, at which time a

19 successor is elected to fill out the unexpired term. That's

20 the present provision.

This states that he would appoint them for the 22 unexpired term. The committee's decision, if I can remember

correctly, was based on trying to save the state an election

for Attorney General or one of these officers.

25

Now, perhaps in the present provision the Lieutenant

PAGE 129

Governor is not one of these people that's in here, and he's

in here now, and I'm not sure if you want the Lieutenant

Governor to also be able to have his term filled by the

Governor or whether that office could be appointed by the

Governor. MR. GOWEN: I think the committee felt they should do

it because they were taking away from the Lieutenant Governor

all of his duties except those the Governor gave him, so the

Governor might just as well appoint the man he wants.

CHAIRMAN SMITH: It was our agreement to have a four-

j, year appointment instead of the two. I remember that

(.'.'r.T'''111
ij
.,

expressly. So apparently as it stands it's all right. MR. HILL: Lieutenant Governor is okay? CHAIRMAN SMITH: Let's take some other elected

office, say a superior court judge or a district attorney.

What happens under these circumstances with them?

JUDGE FINDLEY: The supreme court judge is for the

unexpired term. Well, I don't know if he fills

CHAIRMAN SMITH: It might be a month, you see, but

the then Governor, the outgoing Governor could appoint for the i

month, and then how would you get the new one?

JUDGE FINDLEY: The superior court judges, though,

have a specific beginning and ending time, so it would be for

an unexpired term. A lot of them won't take it for that, it i

... __..... _...

...

...

..1

I'.A(~E 130

just stays vacant. Not a lot, but it happens if it's a very

short period of time.

3

CHAIRMAN SMITH: I guess what I'm really asking --

4 let's use the judge since we're talking about that there

S I is an election in November and a man is elected judge to take

[l office in January, and he dies. Well, the holdover guy is

still there until the first of the year. Who appoints at the

8 first of the year?

9

JUSTICE HILL: To make it even harder, suppose it

10 was the incumbent who was reelected and dies.

7'

J 1 ""

CHAIRMAN SMITH: I would guess the outgoing Governor

12 C' could fill the term until January, but then does the new

(@\/ ~.: ~s~\~: cm,,,"p. Governor appoint for a whole term?

~ /; ':

_/

I

14

JUDGE FINDLEY: Under the present law I believe he

15 ':' would. t'~ 1.;,-'
j II '
r

CHAIRMAN SMITH:

Ii , stuff, Mel?

Is this anywhere in the electorate

ib

MR. HILL: Not to my knowledge, no.

J9

MR. GOWEN: It's in the statute I think, but not the

20 constitution.

"_l

CHAIRMAN SMITH: Well, of course, all we're dealing

2.' with here is executive officers and that's what we're trying

to take care of by this. JUSTICE HILL: I think this authority here is the

judicial appointive power as well.

MR. HILL:

This filling vacancies

PAGE 131

---_ _- - .

..

.... ... -

._,

_------~

certainly the I

subsection (a) certainly applies to this case, when any public

> office -- and that's one -- would become vacant then the

"~ Governor could fill it for the unexpired term.

Now, the question is whether you would construe that

(J once the new term begins does it become vacant by virtue of

the person's having died prior to taking office.

CHAIRMAN SMITH: It's a gap for anybody except these

9 named people in subparagraph (b).

MS. NONIDEZ: On the superior court judges, though,

Ii jyou have a provision in the constitution relative to filling c' vacancy there.

CHAIRMAN SMITH: How about district attorneys?

,-

MS. GREENBERG: That's in the constitution, but with

'.II

<'

1:

15 ~ our change it's in Article VI -- we're taking the references to

.?

'"
,L

~,;U the DA out

of Article VI to Article V,

so

that would delete the

i

l'

,'L
tJ

reference

to

the method

of

filling

vacancies

of

a

district

J~) attorney.

i

I

CHAIRMAN SMITH: What happens if a sheriff is electedt

MR. GOWEN: They have a statute for a special

I

2i election.
I

I

JUSTICE HILL: Were it not for that statute, the

i

Governor could appoint under this authority, but there is such II

a statute. MR. GOWEN: I think the ordinary as I recall,

I i
.--- -_---!

PACE 132

somebody appointing somebody to act as sheriff until a general ~

2 election. JUDGE FINDLEY: In the absence of a general election

.1 the county commissioners just appointed -- in the interim the s county commissioners appointed under a 1789 law.

CHAIRMAN SMITH: Well, I would assume that what we

have here, that 98 percent of the problem is covered by some

~' statute under sheriffs or clerks of court or ordinaries or

';I whatever it happens to be, and the only question here would be 10 in that situation, if it were not so covered I would assume

11 ~ the outgoing Governor could fill until the end of the year, o and the incoming Governor could fill it at the first of the

year. So be it.

All right. Any further questions about (a) and (b)?

15 ,.:J

MR. HILL: Would you like to extend this coverage

liJ .~ in (b) to just state -- you know, you could list all of these ~
17 ~ people, the Commissioner of Labor or any elected public

Ii' officer and just give the Governor specifically the power to

l'l ' fill that office for the unexpired term unless otherwise

20 provided by law.

,1,
~

CHAIRMAN SMITH: No, we don't want him appointing our

sheriff for four years.

23

MS. GREENBERG: You may want to cover the district

attorneys since there's no provision at all for district

attorneys because of the deletion.

----.-----1 PAGE 133

!

CHAIRMAN' SMITH: Are there statutes on the office of

, I district attorney? 'i

.,I

MS. GREENBERG: No, it's just the parallel code

I

I

provision which is the equivalent of Article VI, Section XI, I
I
i
which deals with a district attorney's removal.

CHAIRMAN SMITH: I don't think the people would want

the Governor appointing the district attorney for four years.

MS. GREENBERG: But he presently does. He presently

-- its filled by appointment of the Governor until the next

general election.

CHAIRMAN SMITH: That's all right.

MR. HILL: But not for the unexpired term.

JUDGE FINDLEY: That's true, but then if the death

is in October and the general election is going to be in

.; ,~ November, then they just delay the appointment through that "

c,

J \J

i.
'..~'

general

election until

De~ember. and

then

it's

two

years

hence

as a practical matter the way it's been handled.

CHAIRMAN SMITH: Vickie, were you reading the currentl

draft? Where did you get this?

II

MS. GREENBERG: I'm reading the current constitution.

21

The current draft has no reference to it.

CHAIRMAN SMITH: So something needs to be done with

the district attorney on this question, and the question is

do we reinsert in the provisiDn on a district attorney's

appointment

until

the

next

general

e

l
-

e

c
..

tio
- -- -..

n,
---

-

_o._r.._d-o-

-w-e

-f-o-l_lo.w_

-

-

~'

.- -_..-.--- :r~_------'-- --------.----. -------

---- . -----

------1

:! the program here where the incoming Governor could appoint for

2 the whole term.

3

Now, in my circuit the solicitor general is not

4 elected at the same time as the Governor, he's elected on

5 alternate general elections.

MR. GOWEN: Couldn't you leave the district attorneys

7 i to the legislature to provide how vacancies would be filled?

CHAIRMAN SMITH: You could put our catchall in there.

Okay.

10

Paragraph IX, this mainly relates to confirmation by

11 '; the Senate and says he can't keep proposing him, that he's

~~

'.,

(~))r: ~VJ4

12 ,~_ once rejected he can't put the name up for another year. Paragraph X is they've got to tell him what they're

~/

i

14 '.~' doing.

15

MR. HILL: Remember that we have discussed this

~ :")
1(. ,t,
~ earlier, but we have omitted from the draft the provision in

?::
i7 ~"; the current constitution that states that the General Assembly

shall have authority to provide by law for the suspension of 19 any constitutional officer or department head from the discharg~ 20 of the duties of his office, and also for the appointment of a 21 suitable person to discharge the duties of the same. We have

deleted that from the draft.

23

CHAIRMAN SMITH: The reason was that was inconsistent

with the disability provisions, but what happens to other

executive officers than those named?

PAGE 135
.......__ .~-- .._-_.. "---'--1 Example. The Commissioner of Human Resources. The I

Governor just appoints, doesn't he?

: I

All right. But what if he becomes disabled? What

I is the mechanism that we have if a non-elected constitutional

officer becomes disabled or turns crooked or --

MR. GOWEN: Well, impeachment would be

The non-

elected ones aren't constitutional officers.

CHAIRMAN SMITH: I know it.

MS. ADAMS: Wouldn't the Governor jus t remove them

from office because they weren't able to fulfill their duties?

J:

CHAIRMAN SMITH: Can he? That's the question I'm

;: raising.

MS. ADAMS: I would think so if he has the power to

d > appoint him.

,t .(

MR. HARROLD: They're not merit system, so he can

fire them. ,') .I. '".~-\ CHAIRMAN SMITH:

Again I need Charlie, but when he

appoints a non-merit system, nonconstitutional officer, how i) long is it for?

MR. HARROLD: It's open.

21

SENATOR KENNEDY: I think it's at the pleasure of the

Governor.

JUDGE FINDLEY: That may be, but there's a case the

Supreme Court decided not too long ago where they held

specifically that he -- when he took the resignation at the

PACt'; 136

time he made the appointment, they said that this is not

2 appointing him for the term prescribed by law, that is four

.) years or whatever it was, "You give me your letter of

4 resignation and I'll give you the appointment, and I can take

the letter of resignation any time I want to," and they said

I, that he couldn't do that.

I can't give you the cite right now, but I just

i\ looked at it within the last day or so.

MR. GOWEN: These people who aren't constitutional

10 officers have the powers and duties and terms of their office

-...'J

;:

11 ~,; set by statute anyway.

:,

o.

"'

1,:

CHAIRMAN SMITH:

That's true, including removal I

guess.

SENATOR GILLIS: At the pleasure of the Governor I

!, "think.
Ii.:
.:.>
1f.l i~
,:'
i. rl

CHAIRMAN SMITH: What did you say, Hugh? SENATOR GILLIS: I think they serve at the pleasure

11> of the Governor, and he may want to get rid of them, I don't

know.

20

CHAIRMAN SMITH: Does the merit system have a

-,1 disability section?

MR. HARROLD: For just regular employees?

CHAIRMAN SMITH: Yes.

MR. HARROLD: Yes.

CHAIRMAN SMITH: Wouldn't that apply to everybody

PAGE 137

except this one group that serves at the pleasure

Governor?

In other words, if there were an executive officer

who was under the merit system, then there would be a

disability provision for him, but I don't know about removal,

'.' whether you can kick a drunk out or not.

MR. HARROLD: It's hard to do.

CHAIRMAN SMITH: I know it is.

MR. HARROLD: I think the other elected officials

that are under the merit system, that all that's taken care of

I; .~ anyway under their procedures, so we're only talking probably <)

j:
c.:';IIi1 T 'IJr", .-_. l~--_

"ten ,'-

people. CHAIRMAN

SMITH:

If you all are satisfied they serve

)' :. at the pleasure of the Governor we needn't convolute this thing

) :. any further.

1(-

Any other questions on the powers of the Governor?

I

JUSTICE HILL: Yes. Does that include Paragraph IX? I

I

I

CHAIRMAN SMITH: Yes.

i

1,~.
JUSTICE HILL: All right. I would like to propose th1

last word in that paragraph be changed from "nomination" to I !
"rejection," for this reason:

It would be possible I think for a Governor to

nominate a person for office April the 5th, for him not to get
,'
.... '-j Senate confirmation at the following session of the General

Assembly, and for the Governor nevertheless to reappoint that i

, ".....~-"", ,-"~-",,,-

---~,,--, ".--,---- ,----,,-,~--,----!

PAGE 138

same person April the 5th as soon as the General Assembly

has gone home because the year would have expired at that

,
.'

time.

CHAIRMAN SMITH: You may be telling me something.

5

Can he make an appointment subject to confirmation a

" year off? The answer is yes, I guess. Okay. I think your

point is well taken.

Date of such rej ection -- I keep putting "such" in. 9 ; Date of such rejection.

Okay. Anything else on the Governor and Lieutenant 11 ~; Governor?

MR. HILL: I wanted to go back just very quickly, there was one change, a minor change back in Section II which

v, says that if the -- that's on page 4 where we discuss the
l'
15~: speaker of the House under the succession to the executive
f.'. ~
j(, ~.~l power.

1i:

The present constitution provides that this election

for the Governor in the event the speaker of the House should

assume the powers of office shall take place within sixty

days. That's the present provision. In the committee or

somewhere along the line the proposal was it be ninety days to

give more time for the election and the mechanics of it, and
,,
) I didn't want that to slip by without someone approving it.
CHAIRMAN SMITH: I think we all agreed on that.

MR. HILL: Okay.

PAGE 139

some direction in there as to how long a Governor has to make

these appointments to fill these vacancies?

CHAIRMAN SMITH: Are you talking about under VIII(a)

or (b)?

MR. HARROLD: I guess it would come under the catch-

all under Paragraph IX, Appointments by Governor.

Well, that's not really vacancies.

CHAIRMAN SMITH: That's just in the original

appointment, it says he shall appoint everybody he's supposed

to like all these boards.

MR. HARROLD: Then it will be VIII(b).

SENATOR GILLIS: Is there a limit of time that the

Governor has on appointing?

For instance, I know a board member right now on one

of our top boards, his term has been out for almost a year

and nothing has been done about it, he hasn't been reappointed

or nobody has been named successor.

MR. HARROLD: This happens a lot.

JUDGE FINDLEY: It sure does.

SENATOR GILLIS: He serves until his successor is

duly qualified, but it looks to me like he ought to be

reappointed or kicked out,
CHAIRMAN SMITH:
know how practical it is.
~L___

one or the other.
I
I think it is a good point. I don'tl
i
Say you give him sixty days to make: ._-'.'-""- .- _._--. ~._--_ .._._---_-..!

PAG!'~ 140

an appointment and he didn't, where would you be?

MR. GOWEN: Just where you are now .

.)

CHAIRMAN SMITH: I can think of a lot of instances

4 where it does take time. For example, the judicial nominating

commission might not function in time for him to do it.

SENATOR GILLIS: People are always saying all

vacancies on all boards have to be filled within ~inety days .
I
CHAIRMAN SMITH: That's the question we're addressing;. o Suppose he didn't do it.

1')

SENATOR GILLIS: You couldn't kick him out of office,]

t I could you? (I

(~~~ J2 ,.

JUSTICE HILL: You could terminate the holdover

~2), "... :: power of the incumbent officeholder.

14 r

MR. GOWEN: That would leave the office vacant; it

15 '~might be important.

'" It) .'l'1 ,"

JUSTICE HILL:

If you have a ninety-day grace period

MR. GOWEN: I understand, but if he didn't do it

you wouldn't want to leave the office vacant forever.

19

For instance, the Secretary of State issues charters

LJ for corporations. If a vacancy of that kind was left then you

21 wouldn't

SENATOR GILLIS: Maybe I could solve it and say if no
,;
successor was appointed within ninety days he shall serve

another term. That would bring on the rain, wouldn't it?

MR. STERNE: What if he resigned, though?

\"
,-

PAGE 141

CHAIRMAN SMITH: Of course, if he reSigned, as he

says, you would be back in the soup.

Tom?

MR. THORNE-THOMSEN: Under VIII(a) the way it is now the Governor is not obligated to fill the vacancy; it says the

Governor may fill such vacancy. You might want at a minimum to

change that to "The Governor shall fill such vacancy."

A VOICE: Shall forthwith, expeditiously.

MR. HARROLD: There have been some real problems.

I' They can't ever make up their mind.

It's like in the old days when the Congress used to

. appoint the postmaster, it's going to make one guy happy and

~ it's going to make twenty mad, so he didn't want to do it, he

.: wants to delay it and play the ostrich and hope it goes away.

1:

CHAIRMAN SMITH: I suppose if you put "shall forthwit~

, (~ fill such vacancy" at least you could mandamus.

I
I

MR. GOWEN: Can you sue to mandamus the Governor?

CHAIRMAN SMITH: I believe you could.

I recognize the problem. I don't know any simple

solution.

MR. STERNE: I think the solution if you had one

would have to outline alternate means of appointment. I just

don't think you ought to get into all that in this instrument.

CHAIRMAN SMITH: Let me say this, Hugh, I think if
I
you put this word in there, itsays unless otherwise _~~~vi~=~~

1)\\(~; 142

by this constitution or by law, could not then the General Assembly pass a law that would modify this thing, looking at Paragraph VIII(a)?
I believe speedily or forthwith or something is about as good as we can do on that.
MR. HARROLD: Are we going to change "may" to "shall"? CHAIRMAN SMITH: "Shall promptly," what about that? "The Governor shall promptly fill such vacancy."

SENATOR GILLIS: One little difficulty about leaving

! 1 it like it was, a board member, hets just sort of on bended

knee, he dontt know whether hets in there today or whether

hets going to be in the next meeting or what hets going to be

able to do.

1.

MR. HARROLD: We think they ought to be appointed

within ninety days or so. JUDGE FINDLEY: Appointments shall not be withheld

for political reasons. (Laughter. )
CHAIRMAN SMITH: I was going to say there used to be a rule in court that if itts a political matter you didn't ) ) mess with it. Politics just takes its course. I'm not sure thatts still the law, but it used to be 25 years ago.

Okay. Anything else on that? If not, letts turn to the other elected executive

officers. This has been redrafted to eliminate the state

PAGE 143

school superintendent and the comptroller general in accordance

2 with our earlier votes.

3

District attorneys have been included because of

4 their inclusion in the executive.

5

MR. HILL: And the Lieutenant Governor really should

6 not be. in this list; I think you could cross this out. We have

7 already stated, we have a separate provision on Lieutenant

g Governor which we have just done that says he shall be elected

9 i at the same time for the same term, so he does not belong in

10 this list.

CHAIRMAN SMITH: I'm having a little trouble with the

part of that sentence. Is that consistent with what we

back here with the

The other one says in the manner prescribed for the

15 ~e1ection of members of the General Assembly and electors shall 16 ''~ ~"" be the same. Shall we not have the same kind of language in
2:
<
17 g; both places?

IH

MR. HILL: Yes, I think we should. What's that,

19 under the Governor?

20

CHAIRMAN SMITH: Yes, it's Paragraph II, election for

.:1 Governor, the last sentence. I think it ought to track the

22 same language.

MR. HILL: Yes, we will repeat that.

24

CHAIRMAN SMITH: Okay. I think the fact that the

~5 :Ii idistrict attorneys are locally elected will be taken care of
c~... ..__.._._

PAGE 144

by that same provision.

.2

Is it not redundant to pick up all this other stuff

3 since we've cut it out?

4

MR. STERNE: Provisions of the constitution?

5

CHAIRMAN SMITH: Yes, we've cut out in III, IV and V.

6

The last sentence would stay in because there are

7 district attorneys on different terms than the Governor.

(c\'

JUSTICE HILL: Mr. Chairman, if you'll excuse me, I

have to catch an airplane, and I have ,left just a few

10 r.maining comments which I'll ask Vickie to bring to you all's

z"

11

~
,"'o"..

attention.

12 ~

(\;(.p(VJ~~),\)r~=

~
S

CHAIRMAN SMITH: Have a nice vacation. JUSTICE HILL: I wish it were so.

\..',-------J// 14:'"

v",

CHAIRMAN SMITH: Okay. That paragraph is pretty

<.

"

15 ~: well truncated now, but it would only have two sentences,

16 ~~ and it would simply recite that these officers, striking the
"2:
~
17 ::. Lieutenant Governor, shall be elected in the manner prescribed

18 for the election of members of the General Assembly and the

19 i electors shall be the same. All right.

20

Then the next sentence would be except for district

21 attorneys such executive officers shall be elected at the same

time and hold their offices for the same term as the Governor.

That's all it would say.

Number II is on qualifications. There is one of the

earlier things that we considered, and we compromised by having

PAGE 145

to be a resident for four years immediately preceding the

election or appointment.
1
I raise a little question as to whether the district!
i
attorney should have those same requirements, which would be

ten years and a legal resident of the state for four years,

6 and be 25 years old, which would mean he would have had to

" live in the state since he was 21.

Does anybody have any problem with that? Okay. The attorney general has to have been an active

1U status member of the State Bar of Georgia for seven years.

-y' !I ,

The next one, the district attorney has to have been

o

G

" ,) an active status member of the State Bar for three years.

This was a problem that came up when it says if he's a member

1 ~ of the bar, and the fellow is a member of the bar in Illinois

!5

J:
:,

and moves

into

the

state and

the next month

runs.

Well, of

Co''; ~-_'
ju ;'.1 course, the whole purpoae is that he have some familiarity

;' ~~ with the state laws, so that's why it has been made active

status member.

:'1

What is a nonactive status member of the State Bar?

',"I '

MR. GOWEN: He's retired, not practicing.

MR. THORNE-THOMSEN: Sometimes a nonresident.

MR. GOWEN: If you quit practicing law, they will

mark you off, and you may become a banker or decide to make a

-f good living.

MR. STERNE: An honest living.

(Laughter.)

CHAIRMAN SMITH: I'm just wondering why active statusi'
I
MR. GOWEN: There's two kinds, one is on active

'f status and one is nonactive. They are listed in the bar

register.

MR. THORNE-THOMSEN: A person can be a nonactive

7 status member of the bar even though they're not a resident of

(, the state.

CHAIRMAN SMITH: This guy couldn't run unles s he was

10 a resident for four years by virtue of the earlier paragraph.

MS. GREENBERG: The present constitution speaks

about practicing law for three years, and we were having

trouble determining what that meant, what does it mean to

~ practice law for three years, so this was a term of art
" T
l~ ~ calling it active status because everyone knows what that is. ".
CHAIRMAN SMITH: If everybody is comfortable with

it --
,
I
JUDGE FINDLEY: The only problem I was having is usin~
,i
the State Bar of Georgia. That's relatively recent in the last

four years. Should we have it State Bar of Georgia, or is it

understood that it will be in a successor organization as this

succeeded to the one before it?

CHAIRMAN SMITH: This is a new animal, and it's

really a prerequisite to a license to practice that you be a

member of the State Bar.

____--I

PAGE 147
JUDGE FIN~~;Y ~ I 'm ~:ly-q~esti~~~~~- ~h~ -~ct;ve-l

status part. It seems to me if he's a member of the State Bar I
I
and has lived here for four years that he ought to be eligible !
I

to run even if he is a banker.

!

MR. GOWEN: Well, if he is practicing law he is an

active status member because he can't practice law without

being one.

CHAIRMAN SMITH: The whole point is that he know

something about Georgia law, that's what we're after, and also I

to avoid this move-in question.

JUDGE FINDLEY: That can't be a criteria. You'd lose

:, half the DAs in Georgia.

MR. GOWEN: Know the law?

(Laughter.)

CHAIRMAN SMITH: Question. Are judges active status ,;: members of the State Bar?

JUDGE FINDLEY: Yes, sir. They have to be.

CHAIRMAN SMITH: In other words, if a fellow came off

the bench and wanted to be DA he wouldn't be precluded by this?

r)

JUDGE FINDLEY: No, sir.

CHAIRMAN SMITH: All right.

Paragraph III is the catchall. "The General Assembly

shall prescribe the duties, authority. compensation and

allowances of the above executive officers ... "

MR. HILL: That is the current language.

PAGE 148

CHAIRMAN SMITH: Let's look at it a minute because

2 don't we prescribe some duties and authority in this ,~ constitution?

4

MR. HILL: Yes, some.

5

CHAIRMAN SMITH: Shouldn't we say the General Assembly

(, shall prescribe

7

JUDGE FINDLEY: Except as provided by this

K constitution.

CHAIRMAN SMITH: Yes," ... and provide help ... "

10 Where did that word come from? I had circled "help."

"

z

11 y.

MS. GREENBERG: That's the present constitutional

?

SENATOR GILLIS: Provide assistance.

I';

MR. HARROLD: Why don't we just say provide for the

IS:: operation of the department?

CHAIRMAN SMITH: And provide such funds as are
,
1 1" a::
" C necessary for the operation of the department?

MS. GREENBERG: Help seems to cover more than just
It)
funds, so far as the assistance in --

21
22 means.
,',
~.l

CHAIRMAN SMITH: That's a problem. MR. GOWEN: We don't know exactly just what that
MR. HILL: Assistance maybe, assistance and expenses

necessary for the operation. Maybe that's a better word than

help.

PAGE 149
----l MS. GREENBERG: Do you also want to add t~:-word I I
"powers" before "dutes," "shall prescribe the powers, duties
1
I
authority, compensation and allowances"?

CHAIRMAN SMITH: Yes.

MR. HILL: What about authority? Then we would

t, strike authority.

MS. GREENBERG: And change the title of the section

" to "Powers, duties, compensation ... "

CHAIRMAN SMITH: How will that read, Mel?

MR. HILL: "Powers, duties, compensation and

.. allowances of other executive officers. Except as otherwise

provided in this constitution the General Assembly shall ~ prescribe the powers, duties, compensation and allowances of

the above executive officers and provide assistance and

the

15;: expenses necessary for/operation of the department of each."

;::

=1

16 ~ 'U

CHAIRMAN SMITH: Paragraph IV has the duties of the

':,

~ Attorney General. Is that a repeat from the current --?

MR. HILL: Yes. It's over in Article VI, and it's a

repeat of the powers that are stated there for the Attorney 2J General.

SENATOR GILLIS: Mr. Chairman, does Attorney General I

'"

!
mean one man? How could he represent the Governor in all casesl

c::: in all courts,
General or

rs::~:s one man? I

think it ought to be the Attorney I
:t:::~d thitlk so to~...... .. ....._.~

"ACF: 150

What is the phrase? They have assistance --

2

SENATOR GILLIS: " ... in all capital felonies and in

.' ;! all civil and criminal cases ... ", but th~ Attorney General
i
!:
represen~s him when he signs the pleadings, and the Attorney

:) General signs every pleading filed on behalf of the state.

b'

MR. STERNE: Could you say the Attorney General

7 would provide all these functions? It's understood that he

8 has to have assistants, isn't it?

SENATOR GILLIS: It's all understood, but it says

here he shall do it himself.

2:

1: ...

MR. GOWEN: It does, but it doesn't say he can't have

There's no pleading filed in behalf of the state that

the Attorney General doesn't sign, that doesn't have his name

I.
IS .~ on it.

,~
:J

16
,,.'
('

SENATOR GILLIS: I understand that, but it don't say

<."
17 ~ here that he does have to have help. It says the Attorney

18 General shall do it.

19

CHAIRMAN SMITH: I can conceive of an emergency

20 situation where they could not get him to sign, and it might

21 clarify that, Hugh, in the sense of letting it be clear that

an assistant attorney general could perform his functions if

. we had "the Attorney General and his staff" or "an assistant

attorney general."

MS. GREENBERG: Would it be better phrased "The

p-'---
:,! office of the Attorney General
JUDGE FINDLEY: No.

have an Attorney General.

CHAIRMAN SMITH: It's now called the law department,

) isn't it?

Ie

MS. NONIDEZ: Yes.

MR. HILL: The Attorney General's staff?

JUDGE FINDLEY: That's the same as sayi~g the

Governor. He can't do all those things either.

lL

The Red Sea isn't going to -- I don't know if it

Ii ~ really parted or nbt. I believe it includes, it would have to -(I 1.
1= " include the present constitution, this is almost the identical

language, isn't it?

15 -:'
':.1

;'", it is.

" ! I

,y

CHAIRMAN SMITH: It is the identical language. JUDGE FINDLEY: And so it seems to me leave it like
SENATOR GILLIS: I wondered how he could do all this

by himself, because I know he does very little of it himself.

.1(\ '

CHAIRMAN SMITH: Are there acts that authorize the

~u , Attorney General to name assistants and so forth?

JUDGE FINDLEY: Yes.

CHAIRMAN SMITH: Wouldn't that take care of it?

MR. STERNE: It would come back to maybe what you

mean by represent; the Attorney General maybe can represent

in court by sending an assistant attorney general.

I

...._~ . ~_ _ ._J

PAGE 152

CHAIRMAN SMITH: I'm just thinking if they have acts i

that provide for assistants and all, it would certainly

empower them to act.

'+ ;

Let's roll on. Somebody answer a question for me.

Does he not have to represent the state unless required by the

Governor?

MR. GOWEN: In all civil cases I think; in criminal

cases in any court when required by the Governor. I would

think that means the Governor can send the Attorney General

10 down to prosecute a criminal case in the Brunswick judicial

11 circuit if he directs him to.

CHAIRMAN SMITH: On a capital felony it's mandatory,

"shall represent the state in the Supreme Court and all

capital felonies." That's mandatory.

<
1

}', '.

And in all civil and criminal cases in any court

~ when required byfue Governor, and I'm sure they have standing
z
orders to do some of that.

Ii!

Okay. District Attorneys

19

MS. GREENBERG: This is language from Article VI,

20 , and this covers all the provisions in Article VI dealing with 21 : or relating to the District attorney, except for the filling

of vacancies which we're covering.

CHAIRMAN SMITH: Yes, and that we've got to do
,,
-" 'something with.

MS. GREENBERG: Do we want to put that provision

PAGE 153
here or over of i~~~~~:-s:~tiO~.:n~t~-:-~:ti:: the Governor;l

CHAIRMAN SMITH: I think, or at least the way I

!

I

heard everybody talking, nobody particularly wanted the

I

I

-i Governor-elect to appoint a district attorney for a full four-

year term. If you do, we can just go back and let him fall

under that general provision.

-,
I

If there should be some other provision for the

8 I, selection of a district attorney

Judge Findley, what do you think about that? If a

:0 district attorney dies in his first year of office, should the
,-')
;::
jj ~ Governor have the power to appoint all the way to the end of
(,.I
,- \.' that?

I :~!
"

"I ,If-~!_I~.l!_n .~

:/

,;\

JUDGE FINDLEY: I believe it would work better if he

could. In the present situation he would appoint until the

1S " next general election, and as a practical matter the way that

~ seems to work out is that iffue next general election is going
",.
" to be quite soon then they just don't make the appointment

until that general election goes by, and then you give him

two years, but very few people would accept or could afford to
tol accept the appointment for such a short period and then have i
offer for election thereafter, so as a practical matter for I
I
the entire term.

CHAIRMAN SMITH: It might help him get a better man

if he had a longer appointment.

JUDGE FINDLEY: Yes, sir.

__ ~_.

~ ~_.~_ ..

.. .__-.J

F:\.CL 154

CHAIRMAN SMITH: If he appoints a sorry one, you're

2 s tuck with him longer.

3

JUDGE FINDLEY: We've learned to live with that.

(Laughter. )

CHAIRMAN SMITH: Okay. Let's look back at another

b one and see whether it would be -- well, it would be the

7 unexpired term, wouldn't it? It would be Paragraph VIII(a) on

;) page 6.

MR. HILL: VIII(b).

10

CHAIRMAN SMITH: No, VIIlta), filling vacancies, and

11 he would appoint for the unexpired term, and it would be back ~~~~\ J~~, to that situation we talked about that if it was a recently
~~,f""'" ~ elected DA the outgoing governor would appoint for the last

"-- 14. month, and then the incoming Governor would appoint for the

1S ';: who le term.

"

16

'~-.
L

~ -.

SENATOR KENNEDY:

He might get better district

<
17 ; attorneys that way, Judge, but I don't know whether the people

would like that too well or not.

CHAIRMAN SMITH: You mean about having that long an

20 appointment?

2l

SENATOR KENNEDY: I think the general election would

be my thinking.

JUDGE FINDLEY: Do you think even for a few months?

24

SENATOR KENNEDY: Until the general election,

whenever it might be.

--------.--.----.-. -- .--PAGE 155 -~-----------l
CHAIRMAN SMITH: I think Judge Findley's po~nt was :
I
that let's say that it was eight months to the next general ,

election, that the guy is not going to take it if he knows he

can be defeated that quickly. Meanwhile he would have given up!
I
his law practice because they can't practice law, but if he had!
I
two years and eight months he might be more willing to do it.

That's kind of your point, isn't it, Judge?

JUDGE FINDLEY: Yes, sir, it is.

CHAIRMAN SMITH: In the old days when they could

!~) still practice law I don't think it would have been any

!: :. problem.
"
1 ,,~
./
'...

JUDGE FINDLEY:

The ones that would give it up would

~ just take a flier at it because his practice was such he could

;":;: get right back into it again anyway.

,'::

J :;

CHAIRMAN SMITH: Or he didn't have it.

,.(.'1

Ib .,(f,:
,I-~'.

JUDGE FINDLEY: That's right, so you would get your

best caliber for the longer term appointment, but Joe's

problem would arise from the citizens' standpoint. I don't

.:9 know how they would react to that, the longer term.

It occurs not very frequently and, as I say, the way 2l it has been handled is that it's ususally three or four months

in there they just don't make the appointment; you have an

assistant, he continues to serve in that office and you just

don't have a. DA for a period of time until the general election

goes by the board or until all qualifying has gone by, then the

make the appointment and then they get a two-year shot at it

4 because really a good man will not take it for a few months.

CHAIRMAN SMITH: Does every district attorney have

i ! an assistant in the state now?

JUDGE FINDLEY: I don't know of any that do not, but

possibly there are some.

CHAIRMAN SMITH: Okay. What are your wishes?

The question is do we provide for the appointment of

district attorneys under the catchall, or do we have a special

provision for some other form of earlier election before the
)
li ~ expiration of the unexpired term?
':.:
SENATOR GILLIS: Mr. Chairman, I think you're going

to find the General Assembly won't appoint it until the next

election.

15 -".'
,J

CHAIRMAN SMITH: Until the next general election?

1(,

'...
].

0
"'

SENATOR GILLIS: Yes.

1!

1,,-'

CHAIRMAN SMITH: Well, we could put it in here or

P' let them put it in there.

,
1

9

SENATOR GILLIS: You can recommend anything you want

, .".."..,.I.I.

to.

2j

MS. NONIDEZ: Under your Paragraph VIII the General

, ) Assembly could provide by law, by statute for that.

./' '~1

CHAIRMAN SMITH: That's true.

-) I

MS. NONIDEZ: So you're okay, you could introduce a

25

CHAIRMAN SMITH: You could do it by statute instead

PAnE 157

of having to put it in the constitution anyway, and that's

probably the best course. That's in keeping with what we have

-' been 'doing. In other words, the Governor would do it that way

unless the General Assembly provided simply by an act; that's

probably the best way.

i

i

n

The last sentence states the immunity which concernedl

I

the District Attorneys' Association.

!

Okay. Any questions?

I
I

I
MS. GREENBERG: On lines 21 and 22, it shall be the I I
duty of the DA to represent the state in all cases -- should I

i l ,that be in all criminal cases? I'm on page 9 again - - in the
,,)..
~'"
i2 ~ superior court of such DA's circuit.

CHAIRMAN SMITH: Yes, I think so.

MR. HARROLD: I have a question on line 24, "taken

up"? How about appealed?

CHAIRMAN SMITH: That's like sealed up, isn't it?

MR. HARROLD: Burned up.

j-<

(Laughter.)

CHAIRMAN SMITH: Okay. In all criminal cases and in
.,{,
, "-,.~ all cases appealed from the superior court and the juvenile

courts of that circuit. It's a little neater.

Mike?

MR. HENRY: I have a question about why the words

''whose official term" was used here. Is the word "official"

used to de1ineatethar term as official when nobody else's is?

CHAIRMAN SMITH: Strike "official," that's surplus.

Is there any legal question with special prosecutors?

3 ' I don't mean statewide things, but when the family of a murder

~ victim wants to hire a lawyer to help prosecute, is there any

) problem with it?

6

JUDGE FINDLEY: The district attorney can control it,

7 and would reject him if he doesn't want to use him. The

district attorney is the only one that can prosecute for the

9 state.

10

CHAIRMAN SMITH: He may allow this fellow to assist

l' T
Ii ~ him is what it boils down to? o .:l..
"'
JUDGE FINDLEY: Yes, sir.

That's the way they do

handle it.

CHAIRMAN SMITH: They just sit in, walk in and out

15 while they --

16

JUDGE FINDLEY: If he chooses to let him do it.

17 "': There have been other instances in which they'll appoint

10 someone or citizens groups will appoint someone to represent 1n the state before the grand jury, or try to, and the courts

20 have held on that that again the district attorney presents

21 the cases to the grand jury, and you cannot have private
....) ' .
counsel except with the DA's consent, or he still is the one

that presents it and you may assist him.

,),

--+

CHAI~~ SMITH: That's the problem in that special

25 grand jury in Atlanta about the presence of a non-dis~rict

PAGE 159

attorney in the grand jury during the course of their deliberations, and as I recollect they threw out all those

.l .: indictments because what's his name -- Paul Kattenhead --

JUDGE FINDLEY: That's correct, yes, sir. He's the

only one

CHAIRMAN SMITH: That can go in the room during it.

JUDGE FINDLEY: Except in thosespecial circumstances

where it's a state official being indicted.

CHAIRMAN SMITH: All right.

I, I\)'

Disability, Section IV.

!1

z

11
'"r

MR. HILL: This section was revised since the last

~ time, especially in Paragraph II, because we were losing

petitioners by virtue of taking the state school superintendent

." and the comptroller general out of this list, so we decided to

~ put the president of the Senate and the speaker of the House

in as petitioner, so they have been added as you see in

Paragraph II to be included among those who can petition the

Supreme Court for a determination of disability, but other

,') than that change there hasn't been a change in this section.

SENATOR GILLIS: Mr. Chairman.

CHAIRMAN SMITH: Yes, sir.

SENATOR GILLIS: Could I ask you a question back on

.. ':'J page 9,the last sentence? I guess that would mean that if a

district attorney was late going to court ninety miles out

that that would excuse him, wouldn't it?

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

CHAIRMAN SMITH: It wasn't intended.

2

I think you missed the meeting where the representati~e

I

3 of the District Attorneys' Association came.

4

In the courts today frequently people are trying to

sue the district attorney for prosecuting, and there are cases

which hold that he has immunity from that, and they felt that

to mention that in the constitution would be another argument

should the question come up in their cases, and it's intended

l) there that he can't be sued for prosecuting somebody.

10

SENATOR GILLIS: I can understand that, but the way

11 t it's worded he would be excused from -- he would enjoy

~...

(~~t ~ ~s~

J2 :~ immunity from anything necessary to perform his duties. He
could say "I'm going to court. that's necessary." or if he

''"'-----'
14 ~ would be drunk on the highway he's still going to court.

J

15~,
:'

JUDGE FINDLEY: He's going to judgment there.

(Laughter. )

<;

17 .~

SENATOR GILLIS: Judge, you know my district attorney.

(Laughter. )

19

MR. STERNE: The such as, it ought to cope with that,'

20 shouldn't it, the "such immunity as is necessary"?

2'

CHAIRMAN SMITH: Such immunity as is necessary. I

don't know why anybody would think the two situations used

would be necessary.

24

It's always referred to as judicial immunity; this

2::i I is the kind we all rely on as you know, sir.

PAGE 161

Where did this language come from?

2

MR. HILL: Justiee Hill suggested this.

3

SENATOR GILLIS: Is this in the present constitution

4 oz is this new word~ng?

5I

MR. HILL: This is new, because they have a certain

6 I immunity by virtue of their position being a district attorney,

-

7 Wnd they're in the judict.al article now.

-

There was some concern on their part that by being

placed in the executive article they may not have the same

-

iO degree of judicial immunity that they now enjoy by virtue of

Cl

Z

-

9~

II ~ being over in that other article, so in order to make sure 0w
12 ~ that that didn't change we wanted to add a provision here to
~ "n,,,' that effect.

14 <;~ J:

The reason we didn't say judicial, though, was

15 ~ because there was some question whether it was considered

:":>"

16 ~III prosecutorial or judicial. We didn't want to get hung up on
z

17 :ii the name of it.

18

CHAIRMAN SMITH: What about this, Judge, district

-

19 attorneys shall enjoy 8~ch immunity from private suit as is

-

20 necessary for the performance of their duties? That's what
21

we are talking about, that some disgruntled prisoner wouldn't

22 sue him; such immunity from private suit. Then if the state

23
prosecutes him for speeding or drunkenness that's not a private

24
suit.

25
Okay. Disability. I still have this nagging proble
-------------_._--

about

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

.. _------ -

disability of anybody

PAGE 162

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

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

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

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

----_. -_.-

i

I

else, but I'm just assuming that's I

2 covered by our earlier discussion.

J Ii

Okay. On page 10, " ... the Governor, Lieutenant

4 Governor, the Secretary of State, the Attorney General, the

5 Commissioner of Agriculture, and the Commissioner of Labor"

(; upon the petition of any any three of those plus the President

..,
i

of the Senate and speaker of the House, the charge of disabilit~

8 can be commenced, and it all should be as provided by rules of 9 the Supreme Court.

10

Do they have any now?

I:,
11 ,z... Q, :-:),

MR. HILL: I'm not sure on that. I don't know if

-,

~(~". ~

'''; this has ever come up in a practical case. This is exactly :', well, this is the same language we now have, so it wouldn't

14, change those rules if they exist.

L
CHAIRMAN SMITH: Okay.

16

"
'.,

':1

I have a little problem, Melvin. It says "Upon a

'.>.
17 petition, of any three of the officers listed in subsection (b).'

18

Well, in subsection (b) it doesn't list -- well, yes,'

!

19 i, it says "any elected constitutional officer," so that would go

20 I back up, wouldn't it? Okay. The president of the Senate, the i

! speaker of the House.

Okay. It provides that the Supreme Court shall

certify the -disability, whether it's permanent or temporary.

lS
L.

Charlie, your committee spent a lot of time on this. I
._

PAGE 163
permanent -- at th:-~e;-~o-~to~-=-it--~~-'~-~:te:~nedthat th:l

disability is not permanent.

CHAIRMAN SMITH: "If it is determined that the

disability is not permanent, the Supreme Court shall determine when the disability has ended and when the officer shall

resume the exercise of the powers of office."

MR. HILL: We could say if his term of disability is

\ I temporary. Do you think that would make it --

.,

CHAIRMAN SMITH: Where does it say they can find that

1.:.) , he's not disabled?
L
MR. GOWEN: Oh, that he's not disabled? That goes if

l: ~ they don't find he's disabled; the petitioners lose the case.

L unlfllO !.;J

MR. THORNE-THOMSEN: Judge, you could just clarify it

I . down in Paragraph III, "If, after hearing the evidence on

t5 ~ disability, the Supreme Court determines that there is a
e,
1c.' .~ disability and that said disability is permanent ... II

(i

.,

~1

CHAIRMAN SMITH: I'm a little more comfortable with

\

that. "If,after hearing the evidence on disability, the

I ~,.;. Supreme Court determines that there is a disability which is

permanent ... "

MR. THORNE-THOMSEN: " ... and that such disability is

, permanent ... II

CHAIRHAN SMITH: " ... and that such diaability is .: I permanent ... II

MR. THORNE-THOMSEN: Actually they have to make two

___ .

._-_---1

PAGE 164

determinations.

2

CHAIRMAN SMITH: If they determine the disability is

-' not permanent, I think you could leave that word in, Mel.

4

Does anybody have any problems with any of that?

JUDEE FINDLEY: Is there any appeal from the Supreme ;, ' Court's decis ion?

CHAIRMAN SMITH: No.

JUDGE FINDLEY: All right, sir.

CHAIRMAN SMITH: It's up to the ballot box.

10

MS. GREENBERG: On page 11, lines 4 and 5, for

II ~ clarification could we put in "During the period of temporary
o,-

SV!t:t, 12,'.,'. disability, the powers of such office shall be exercised by a

~~)r~ ~ /~/-,,\\

--
temporary appointee appointed as provided for by this

constitution or the laws enacted in pursuance thereof"?

15 ,~

CHAIRMAN SMITH: Where do we provide for temporary

16 ~;.1 appointment in the constitution? Nowhere that I know.

!

17 ",

MS. GREENBERG: Or the laws. No, no, by a temporary

18 appointee appointed --

1';

MR. GOWEN: I believe there's a provision in the

20 disability --

21

MR. HILL: I don't think there is any place .

.., ")
CHAIRMAN SMITH: We don't have any provision now in

,\
"

the constitution.

JUDGE FINDLEY: That's one right there.

MR. HILL: Maybe we could just say as provided by law;

PAGE 165

CHAIRMAN SMITH: The question on the table is, if

you have a temporary disability -- well, some of you legis-

3 i lators tell me -- if you had one of these constitutional

4 , officers or -- well, the Governor is taken care of -- is there 5 !I any other office that a deputy couldn't function in the job

() while the court determined the issue of temporary disability?

-,. ,

SENATOR GILLIS: I wouldn't know of one.

CHAIRMAN SMITH: You know, the Commissioner of Labor

<) for example, is there anything that --

,(}

SENATOR GILLIS: The big majority of it is done by

l,,"

L

J] 0' deputies anyway.

o

Q.

!) '.:"x:

MR. GOWEN:

I believe if you struck out "as provided

law. "

CHAIRMAN SMITH: Shall be exercised as provided by

~5:: law, becausewe don't have any provision in the constitution.
C1
;0 ~ Then if the legislature wants to pass something particularly,
l,'
~; they could. Okay.

All right. That completes our section of the 1'J constitution.

Attached to it for your information and study are , ! some deletions that would be required in other articles, this

one here, Article VI, Judiciary, because of what we've done.

If you recall, we removed the duty of the district

attorney over to where he is instead of over here by the court

which certainly makes sense.

,,

.-J

PAGE 166

J 1 - - - - - - - - - - ~ ---~

-

~

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

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

i - - - ~ - - - - - - -- - - ~ - ~ - - ~~ - - - - - - ,

::

The Attorney General's duties are moved over to where!

I

he is mentioned, and there is simply left here as part of our

3 great compromise the statement that there is an Attorney

4 General whose duties are prescribed in another article and who

5 shall enjoy such immunity from private suit as is necessary for'

the performance of such duties, and everything else is stricken

7 I relating to district attorneys because it's been moved into the

8 duty part of the attorney general.

9

Now, in the salaries of justices and judges the

10 district attorney has been deleted because he's over in the

(~~~~'

z
11 ~ other section, and on page 3 that's just ancient history there,
..C)
~
12 ~ that business of abolishing the fees so there's no need to have

t((lEd) ~!!' ;: it any more.

"'-.'--/ /

---

14 >

t;;

JUDGE FINDLEY:

I was not here, sir, but on the

15 ,', Richmond County making the special provision or constitutional ~;: :;;l
16 -~:n provision for Richmond County and not with any of the other
7
<
17 ~six or five, I just don't understand that.

18 'i

CHAIRMAN SMITH: What's the reason for that?

19

JUDGE FINDLEY: I don't understand that at all.

20

Fulton County has superior court judges can serve

,

21 !I six-year terms, they have a special constitutional provision

22 ::with respect to them now. That's a constitutional amendment,

1'
-j

'i not

a

local

law.

2-1

CHAIRMAN SMITH:

sphere.

1.L........

~.

~.~_~ __

I
That's really in the judicial articl~
I

PAGE 167

JUDGE FINDLEY: I was just wondering why it w a s . j

2

CHAIRMAN SMITH: You certainly ought to mark that.

I

You've got a number of local supplements around, and there's

I

4 no reason Richmond County should be graven in the constitution I

and everybody else is not.

JUDGE FINDLEY: Chatham is unique, all the six

original counties I think -- Chatham, Richmond, Muscogee, all

~ of those have special provisions.

':I

You've got that flagged, Mel.

MR. HILL: When we work on Article VI --

. " , 7 l

CHAIRMAN SMITH: It should be corrected in Article VII.

I

'.'

MR. HILL: We have the whole problem of local

I
I

:~7.
"<0

amendments

to

deal

with

in

general with

the

next

round

of

i
I

!,~ ~ work we have, so this will be one of the things plus the local
"t-
15 -, amendments.

JUDGE FINDLEY: Then one of the big things the

district attorneys are going to object to is their being there;;

they all receive supplements from the local counties. This

It') eliminates any supplements for the district attorneys from

20 the local counties, and I think there will be

.'[

MR. HILL: What eliminates it, the fact that we

moved it?
i
JUDGE FINDLEY: No, your language here eliminates it'l
=1 You see, the district attorneys shall re~eive such compensation!,

and they may authorize supplements and so forth, and you

I

, ~_.---

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

_ ,,- - ' - ' - ' -- .--. ....-

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

PAGE 168
r--~---------------------------
! struck out on line 22 "and district attorney of the judicial

2 circuit in which such county lies out of the county funds."

3 That's been stricken so they can no longer receive from the

4 county funds, but as a practical matter the county funds

5 usually provide their offices, provide some secretarial help,
:i h I provide all the support .

., I

MR. HILL: There was no intent to change their

II funding.

MS. GREENBERG: It's covered presently in the Georgia

10 Code under Section 24-2905, th~t part about they receive

o, compensation as they are now recei~ing it under Article V, ~ 12~,"' and they receive funding out of the county, they receive funds
~F"; from the county to pay for the office.

1; ..

MR. HILL: Pursuant to law, but would that be still -~

1) ~1

MS. GREENBERG: That section is independent of the

!b

,l-., --'

constitution.

<.

1I

~'

JUDGE FINDLEY:

What I was getting at was you struck

i 1- them, you let the superior courts still receive the county Ie;, funds, but you eliminated the district attorney.

You see, looking at line 20, starting at 21 -- it's
),
.~ ..:. on page 2. "to supplement the compensation and allowances of a 1 ' judge of the superior court and of the district attorney of

the judicial circuit in which such county lies out of county

funds."

Now, you've struck district attorneys and leave the

-_. .- _. - -.-----.-------PAGE 169

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

-:~1

courts as they were. As a practical matter, both the courts

and the district attorney are supplemented out of county
I
funds. They have --
I
CHAIRMAN SMITH: Do they have salary supplements?

5

JUDGE FINDLEY: Yes, they do; they sure do, and they

have substantial ones in some places, and they have all of the
tl

'7 housing facilities, you know, they're in the court house, they

:,~ Ii have their staff in the court house, they usually furnish them

() their telephones, they usually furnish them stationery, many

iU of the operational, day to day operational expenses are all

I

-',
1.\ ~ paid for by the county and not by the state, and this was one
o,.
big problems.

I
I
II

MR. HILL: The question is, there is a law Vickie has ,
I
that states that this will happen. Why will our deletingl

15 : this from the constitution have an affect on that law?

,~
-,''-';
lt~ ,..::

JUDGE FINDLEY: Because the courts have held that

"' l' i< unless there is a specific law authorizing the disbursement of

.,
1.-)

public funds at the county level for the courts or for the

:J district attorneys you can't do it.

CHAIRMAN SMITH: But there is such a law.

,I

JUDGE FINDLEY: Well, you eliminate the

constitutional right to have such a law. You can't pass a law.i

CHAIRMAN SMITh: Anything not prevented is allowed. I

MR. GOWEN: It seems to me there was a provision in I
the constituti~: ~:_~~~_t_~e__~~~~_rior cour~ j_Udge~_~~=ng . ~

PAGE 170

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

.._._-"-"'-

ii

uniform. That's the reason why is was necessary to amend the
i'
I
2 constitution to permit supplements.

3

CHAIRMAN SMITH: Otherwise you could do it by

4 statute.

5

MR. GOWEN: I think you could, but the district

(; attorneys may be in the same -- I don't know whether the ,., uniformity applies to them or not.

b

CHAIRMAN SMITH: We don't have any current provision

~) of uniformity about district attorneys because we've just

l() passed on this.

IJ ..
,''."-,

I think from what you're saying that there isn't any

(~)('~. ~J2 ~~ prohibition against any kind of county supplement or expense,

'g~,

and it is in fact affirmatively provided for by statute.

14

JUDGE FINDLEY: It may be, and I may be just beating

IS :~~ a dead horse, but I was referring -- Take Chatham County,
u.:
::J
16 !>under their board of education, for such a long time, as long

17 'as an appointed board that came into existence I think in 1966,

the first in the state -- all right, they couldn't expend

moneys that were for public education to have hospitalization

20 : insurance for the school teachers, for example, because that

was not an expenditure for public education, and successive

22 'constitutions have brought the school board forward in the same

manner as it had been created in the first instance, so while

all of the other non-independent boards of education had the '.' ~l constitutional right under the general constitution to expend

PAGE 171
public fun~~--~~~~a s~at~~e ~~~Pt~~-:~::-~~e-:on~~-it:~ion-,-l

the Chatham County board and the Richmond and the others

I

couldn't do it because of that constitutional provision, so !

my point is that to expend public moneys you have to have

constitutional authority to do so, and then a statute adopted

pursuant to that. Here we have --

CHAIRMAN SMITH: Excuse me. That's what I'm not surel

I agree with.

i

qI

JUDGE FINDLEY: Maybe not. Here you did have it.

I I

i

MR. GOWEN: It worries me more about the salaries,

L ~ because I keep having in my mind the business of a provision J Q.
"
that the salaries should be uniform

CHAIRMAN SMITH: It's not any more.

It ....

MR. GOWEN:

for public offices.

,,.

;.:)

MS. GREENBERG: Could I read the section of the

.;r.:

:)

1i)

'~ .:.'

Georgia

Code?

2.

<

1 7 ~'

Each DA shall receive an annual salary as prescribed '

by law -- this is the problem area -- which shall include the

sum prescribed by this paragraph, Article VI, Section XII, 20 Paragraph I. Okay.

Then it says the county or counties comprising the

judicial circuit may supplement the salary of the DA in such a

manner as is or may be authorized by local act.

JUDGE FINDLEY: I agree, but again you have your

basis for that in the existing constitution which says in
- ----- -----_. - -------- ----- ----- . ----------------- -_. ----------_.

[1------ -- --------- ------------------ --- -------------------

PAGE 172

I : paragraph I that you can do these things, and the district !
, i attorneys of the judicial circuit in which such county lies

3 can have these funds and so forth. Without constitutional

4 authority I don't think you can adopt a statute to spend money.

CHAIRMAN SMITH: I understood that the constitutional law

(, provision under which we were dealing was that if it wasn't

7 i: prohibited by the constitution it can be done, anything by the

L legislature. That was one of our earlier questions and our

c; earlier matters of research, that anything that's not forbi.dden

10 by the constitution or limited by the constitution can be done 'z,'
11 ~ by statute. ;)
MR. GOWEN: Isn't there a provision in the
,-
~L con. st~tut~ on about uniformity of public officers? It's my

~ recollection that there was such a provision in the

"1:
15 ~ constitution. If that's in there, it's --

'::">
16 ~~ 'u c' L
17 ~ more.

CHAIRMAN SMITH: I don't think it's in there any I think that's the 1910 constitution or something.

18 ,

JUDGE FINDLEY: It's in there, but then they went

19 'ahead and adopted the constitutional amendments -- Fulton 20 County is under a special constitutional amendment as I 2j understand it, and so in the absence of a constitutional

22 amendment I think you're right, Mr. Gowen, that it will apply

23 ", to everybody except those who are exempted by the constitution.

24

MR. HARROLD: Would it solve the problem by just

at the bottom of Paragraph IX when we talked about

PAGE 173

the private immunity just to put a comma there, and "shall

receive such compensation and allowances as provided by law"?

MR. HILL: We have already provided up in Paragraph

III that the General Assembly shall prescribe compensation and

allowances of the above executive officers,of which the DAs

() are one, so we have already said that in Paragraph III. I

don't think we have to repeat it unless you think we have to

make a specific reference to the supplement they get through

county funds.

iv

MR. HARROLD: Or just say "and shall be entitled to

'",i' :; receive supplemental funds by local act," because they would
....")
.~
" ~ be the only ones -- none of the rest of the elected officers

:J-'

would be affected. I

.- -~ \

z

!

'r
\"

',{"-.'", '.;_/I_~:),.'~~!!~.".

.::
'_J

MR. HILL: We do not have any intention to change
l'
15 .~ that method of funding of DAs.

JUDGE FINDLEY: I know you don't, but I see where it

says the General Assembly may authorize any county to

supplement the compensation and allowances of judges of the

superior court and district attorneys. All right. That's

where this enactment came from, but you have deleted "and

district attorneys," and so you no longer have, the General

Assenfuly no longer has the authority to adopt a law to

supplement the salaries or allow the county to supplement the

salaries.

That's the only point that I'm --

I

i

I

CHAIRMAN SMITH: I don't think they need the

i

--- ..-------- -----~ - ---------~-------

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

PAGE 174

authority, but it certainly would be simple to add the phrase.

2

MR. HARROLD: You know, DAs are kind of funny. It

3 reminds me of that bumper sticker that said "Help, the

4 paranoids are chasing me," and, you know, rather than let it

5 get out allover the state they're going to lose their local

() I supplement, if we could just put three words in there --

7

MR. HILL: Supplemented by local act?

MR. HARROLD: Who shall be entitled to receive such

local supplements as may be provided by --

10

JUDGE FINDLEY: As may be authorized by the General

11 .;,::, Assembly .

0.

12 '~"

CHAIRMAN SMITH: Yes, Ms. Holmes.

@t=":

MS. HOLMES: Under Article IX, Section V, local

14 governments have the right to provide funds to provide for the

15 ~ operation of courts, the maintenance and support of prisoners

.:;

1(,

~
c and

the

expense

of

litigation

affecting

the

county.

Would that,

-0:
17 do it?

18

CHAIRMAN SMITH: It probably ought to be expanded a

IS! little bit to make sure it included this.

20

JUDGE FINDLEY: Well, that's in court right now, the

21 inherent powers of the court. That's again looking to your

22 i local counties to fix the court house and that sort of thing.

That is a real keg of worms, so I don't know that it ought to

,

CHAIRMAN SMITH: What do you have written, Mel?

,

The district attorney shall enjoy such immunity as necessary

I I

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

- --------,

PAGE 175

for the performance of their duties, and shall be authorized

to receive such --

MR. HILL: Shall be entitled to receive such

CHAIRMAN SMITH: Such local supplements?

MR. HILL: -- to their compensation and allowances

6 as may be provided by law.

CHAIRMAN SMITH: Okay. I think that will solve it.

MR. HILL: "The district attorney shall enjoy such

immunity from private suit as is necessary for the performance
] I) of their duties, and shall be entitled to receive such local
cz'
1,[' 8 supplements to their compensation and allowances as may be
".
provided by law."

'.' "

CHAIRMAN SMITH: Okay. The last pages in what you I

,,

1'1" ... have before you relate to the state school, superintendent. "

By I

:5 :~ virtue of our action his election is eliminated, and as I f.)'

I I

~:)

i

ie ,2., understand our logistical problem there will have to be

I
I

,. , presented at the same time our proposal is presented something I

I' to take care of his appointment. Isn I t that how it is?

I

1'-,
MR. HILL: Right.

I
CHAIRMAN SMITH: And so Paragraph I is the proposal I

I

1

- j to take care of his selection.

I
I

!

Has this been approved by the education subcommittee?1

i

MR. HILL: This is the exact language that was

II

approved by the educational subcommittee and the decision.of I

that committee, and it was almost unanimous, but not unan~mo~

- - - ---- - - . ~ - - ~ - - - - ---~----

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

.. _

_._-_.~~_.

. ---------

PAGE 176
r;------.---.-------- .. -- ..
1 !I that the school superintendent should have such qualifications
i:
2 Ii period and condition of employment, duties and authority,
!i
3 II compensation and allowances as prescribed by the board, the

4 State Board of Education, and it was an affirmative decision

5 on the part of that committee that the General Assembly not be

h : the one to decide those questions, so you may have a difference

7 of opinion in this committee. I'm not sure how you want to

~. " resolve that. This is the language --

CHAIRMAN SMITH: I think they're the ones that have

10 the ultimate say subject to the Select Committee and the

General Assembly, but it does provide that the appointment is

subject to confirmation by the Senate.

MR. HILL: Yes.

c.

CHAIRMAN SMITH: I notice they use the words advice

'l"'

IS :~ and consent where we have used confirmation all the way through:,

.::l,:

:;,

16 Z and it's an editorial question.

,,:!

7

<.

17 :ii

MR. HILL: They won't mind the change.

18

MR. HARROLD: I would like to ask one question.

19

I know this is not in our area, and I've heard a lot

20 about the free state of Chatham, but there's a lot of language

21 ,in here about Richmond County which -'.,.., ! Mel?

Why is that in there,

MR. HILL: In this Article VI? You know, we did not

24

I I

really

amend

or change

Article

VI

yet.

The Article VI

committee will be addressing this, and hopefully cleaning it

LL- ~

~_ - -- -- -- - - - - - - - - - - - - - - - - - - ---- ~ ---~ - - - - - - - - - - - - - - - - - -

- - - .- - -.- - - - - -.- ---- - -----------------PAGE l177

up. The only changes we made were the ones necessitated by .

2 the DAs being moved over to Article V.

3

CHAIRMAN SMITH: Somebody was afraid that they would I

change the local supplement, so they had it engraved into the I
! constitution. That's obviously what happened, and it's absurd.1

Okay. Would you look at the last material there

I

I

and make sure that what the education committee has done you

:, don't have any real quarrel with. It carries out our thinking II

"

that the board ought to be the one to hire, and they ought to I

have freedom to hire. It has been,as I mentioned, put that

:;

-
.."o-
~

the

Senate

had

to

confirm.

It reads all right to me.

MR. HILL: And they did not change the membership or

14

, ".

size,

size

or method

of

selection of

the board of

education

) ~ itself because they wanted to reserve judgment on whether a

Ii:

:'

16

'~
I,.'
:,.1

change

in

that

should

be

made

as

part

of

their

comprehensive

-<..

revision of Article VIII.

CHAIRMAN SMITH: What is this jazz at the end about

t9 "This sentence shall be repealed and deleted"?

You could do ~hat with all of these that say you'll
,)
serve out your first term. I'm not sure you need it that way,

but let them worry about that.

i

':3

All right. What we have done, folks, is complete ourl

final draft. When this thing is forwarded to the Select

!

I
Committee, which must be done no latertha~__~:==mb=~_th~e 7th ~_J

PAGE 178

-- -

-------- ~-----1

it is proposed that we forward with it a so-called comments

2 section which is in this white folder, and this is the work

3 of the staff. It will have to be revised somewhat, Mel,

4 before it goes to them in view of what's happened here today.

5

With your permission, I would like to appoint just a

6 special committee to look at these comments without our having 7 to meet with the whole committee again, and along with myself

8 I would like to ask Tom Harrold and Judge Hill to serve on that

9 comments committee, and the fewer of us there are the quicker

10 we can get it done, but we're all right here, and when the

11 ~ staff has it they can deliver it to each of us, and then we can

,-

"'

< c,Y1l 12 J. get back in touch.

~))"..,~ ~

There is nothing binding about the comments, it's

~

14 ~ just an attempt to explain to the Select Committee what we have

,-

I:

15 '~done and the underlying reasons why, including the Veterans

<y

16 ,~" Service Board.

}
c:
17 ~

MR. HILL:

And Michael and Vickie have prepared

18 memos which present a statutory analysis of what effects this

19 ; will have on the statutes, which is setting an agenda for us

20 for next session. Those are also in your packets, and also

21 Tom Thorne-Thomsen has done a similar one for Article V,

Section III.

MR. THORNE-THOMSEN: I, II and IV.

24

MR. HILL: So that's all in your packet. If you

25 would look at those notes, I would appreciate your taking a

LI-

-

_

~~_~

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

PAGE 179
.. _ ......._~-----_. _ _. _ - - - ..- - _ ..._ - -

I Ii look at those notes when you have a chance to see if there are

!
} i1 any additions to them that you would like other than what's

3 happened today which will be incorporated in them, or things

4 that should have been said, otherwise, because this will be the

final -- this willbe part offue final report of your committee

to the Select Committee to try to give an explanation of what

-,

;i
i

happened

and why,

and

these

reports will be going out,

by

the

i

way, next Tuesday or Wednesday, so we're going to have to move

on this. The Select Committee has to make its decision

10 quickly, so we'll be trying to get together early next week I

z'w"!

II would think, Tom and Judge Hill, Judge Smith, and I. .o,.
~

1/~/,:'',".-V'-p-t.(-\1\\

J:: ~:
u-. ~:

CHAIRMAN SMITH: Tom, I'm going to suggest if you

\\~~0))/~~ ~ don't mind that we just stay here for a little while and look

">~" ,. '

l'-t ). at this . Does that suit you? .II <: 1:

] 5 .:J
i:l

MR. HARROLD: Okay.

'"-~

,1)

10 u<,.

.1 ',}

az
,;
,"; .:0

CHAIRMAN SMITH: It might save some time. I assume otherwise our work is concluded until

~.:
, countermanded by higher authority.

I want to thank everybody for coming. I wish we had .'l; more time to accomplish what we set out to do, but everybody

made an effort and I'm not sure, as I told Robin Harris this 2.2 morning, had we spent a year and a half that it would be

materially different from what we have ended up with today.

I think the same factors would have entered into our decision,

so maybe it was better and cheaper to go on and do it quickly. !

...,_.

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.

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SENATOR GILLIS:

Mr.

PAGE 180
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Chairman, I want to commend you i

as Chairman for doing a good job.

3

CHAIRMAN SMITH: Thank you. I appreciate it.

4

We are adjourned.

"

(Whereupon, at 3:20 p.m. the committee meeting

b was adj ourned . )

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INDEX Committee to Revise Articles IV and V Full Committee Meeting Held on Nov. 28, 1979

FULL COMMITTEE MEETING, 11-28-79

Proceedings. pp. 3-5

ARTICLE IV: CONSTITUTIONAL BOARDS AND COMMISSIONS Section I: Public Service Commission Paragraph I: Public Service Commission. pp. 5-25, 50

- - Section ll: State Board -of Pardons and Paroles
Paragraph I: State Board of Pardons and Paroles. 33-37, 53-54

pp. 25-27,

Paragraph II:

Powers and autho~ity. pp. 27-32, 37-50, 53-54 (Same powers and authority for other Boards.
pp.50-53)

Section III~ State Personnel Board Paragraph I: State Personnel Board. pp. 55A-62 Paragraph II: Veterans preference. pp. 62-65

Section IV: State Transportation Board Paragraph I: State Transportation Board; Commissioner. pp. 65-84

Section V: Veterans Service Board
Paragraph I: Veterans Service Board; Commissioner. pp. 84-88, 103-104

ARTICLE V: Section I:

EXECUTIVE BRANCH
Election i Governor and Lt. Governor

Paragraph I: Governor; term of office; compensation and allowances. pp. 88-96

Paragraph II: Election for Governor. pp. 96-102, 104-111

Paragraph III: Lieutenant Governor. pp. 102, 111-113

Paragraph IV: Qualifications of Governor and Lieutenant Governor. pp. 113-114

Paragraph V: Succession to executive power. pp. 114-116, 138

Full Committee Meeting 11-28-79 Page 2
Paragraph VI: Oath of office. p. 116
SECTION II: DUTIES AND POWERS OF GOVERNOR Paragraph I: Executive powers. pp. 116-121 Paragraph II: Law enforcement. pp. 121-123 Paragraph III: Commander in chief. p. 123 Paragraph IV: Veto power. pp. 123-124, 126-127 Paragraph V: Writs of election. pp. 124-125 Paragraph VI: Information and recommendations to the General Assembly.
p. 125 Paragraph VII: Special sessions of the General Assembly. pp. 125-126 Paragraph VIII: Filling vacancies. pp. 127-134, 139-142, 152-159 Paragraph IX: Appointment by Governor. pp. 134, 137-138 Paragraph X: Information from officers and employees. pp. 134-137
SECTION III: OTHER ELECTED OFFICERS Paragraph I: Other executive officers, how elected. pp. 142-144, 175-177
(State School Superintendent. pp. 175-177) Paragraph II: Qualifications. pp. 144-145 Paragraph III; Powers, duties, compensation, ind allowances of other
executive officers. pp. 147-149 Paragraph IV: Attorney General, duties. pp. 145-157, 149-152, 166
District Attorneys (Immunity) See Also, Article VI, Section VIII, Paragraph I: District Attorneys; vacancies; qualifi~ationsf compensation;
duties; immunity. pp. 134, 145, 152-161, 165-175
SECTION IV: DISABILITY OF EXECUTIVE OFFICERS Paragraph I: "Elected constitutional executive officer", how defined.
pp. 116-121 Paragraph II: Procedure for determining disability. pp. 159, 161-163

Full Committee Meeting 11-28-79 Page 3
Paragraph III: Effect of determination of disability. pp. 163-165 The State School Superintendent. pp. 175-177

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