Constitutional experts say the work of the session could be imperiled. But state lawmakers say they don't have a problem.
By LUCY MORGAN
Published April 13, 2004
TALLAHASSEE - Legislators take an oath to uphold the Florida Constitution.
On Monday, former legislators and constitutional experts say, they decided to ignore it.
Legal experts say lawmakers are putting at risk the proposed $56-billion state budget and every other bill they may consider during the next three weeks.
The problem stems from the failure of the House and Senate to comply with a provision of the Constitution requiring them to adopt concurring resolutions whenever they adjourn for more than 72 hours during their annual 60-day session.
"They violated the Constitution, but that doesn't seem to bother them," said Dexter Douglass, a Tallahassee lawyer and chairman of the 1998 Constitutional Revision Commission.
Legislative experts say the only way to cure the problem would be for Gov. Jeb Bush or for lawmakers to call a special session. If that happened, all bills would have to be refiled, a situation that would essentially start the session all over again.
The situation could set the stage for another confrontation between the Florida Supreme Court and the Republican-led Legislature if anyone decides to mount a challenge. If lawmakers lost in court, that would force them to return in special session to pass a budget.
Former District Court Judge Tom Barkdull, the only person to serve on the Constitutional Revision Commissions of 1968, 1978 and 1998, said lawmakers have a problem.
"The court can't intervene internally," he said, "but if they pass a law that someone doesn't like, it would put in jeopardy anything they pass after today."
Carl Ogden, former dean of the House, urged Bush to avoid a legal challenge by calling lawmakers into special session. A spokeswoman for Bush said the governor plans no action because lawmakers say they don't have a problem.
Legislative leaders did not directly respond to questions from reporters. A spokesman for House Speaker Johnnie Byrd said the House thinks the provision of the Constitution was intended to keep one chamber from leaving without the other and in this case they agreed to take a week off for the Passover and Easter holidays.
Senate Rules Chairman Tom Lee, R-Brandon, said the Senate's use of the word "recess" instead of "adjourn" was intended to avoid the problem. The House used "adjourn" when it left for 10 days on April 2.
"Somehow it doesn't disturb me to lose it all," Lee said. "If we've done something wrong, we'll come back and do it over again. I don't have to run for election this year."
House spokesman Tom Denham said the 10-day vacation was scheduled well in advance, and no one questioned it at the time.
"No legislation is in jeopardy," he said.
Steve Kahn, general counsel for the Senate, said the Senate recessed subject to recall by the president and did not adjourn. Members could have been quickly recalled if needed, he said.
Rep. Allen Bense, R-Panama City, chairman of the House Procedures Committee, said the House could still pass a resolution if the situation poses a problem.
House Clerk John Phelps said he recommended passing a resolution now to retroactively approve last week's absence and any others that lasted more than 72 hours.
House Democratic Leader Doug Wiles said he doesn't think a retroactive resolution would resolve the problem. He said Bush could seek a legal opinion from the Supreme Court to help determine what lawmakers should do.
Mallory Horne, a Tallahassee lawyer who is the only person in modern times to serve as speaker of the House and president of the Senate, said the issue is unlikely to be challenged in court.
"I don't think there is a remedy," Horne said. "Nobody raised the issue in time to prohibit it, but it indicates a predisposition to violate the rules - it's either arrogant or they don't know the rules."
The last time a concurring resolution was proposed to allow an absence of more than 72 hours, it was approved by the House on Dec. 12, 2000, during a special session called to consider the presidential recount.
The resolution was offered by Byrd, who was chairman of House rules at the time. The Senate never voted on the resolution, because the U.S. Supreme Court intervened with a decision that decided the election.
