FIREFIGHTERS UNION. WITH ME CO-COUNSEL RICH SWICA FROM ORLANDO AND CORY FROM CORAL GABLES.
IN PERTINENT PART THE RIGHT OF PUBLIC EMPLOYEES TO BARGAIN COLLECTIVELY SHALL NOT BE ABRIDGED.
>> WE KNOW FULLY THE BACKGROUND. CAN WE CUT INTO THIS. THIS HAS REALLY CONSTITUTIONAL CONUNDRUMS CONFLICT WITH THAT
POSITION, WELL ACKNOWLEDGED HIS TORE POSITION OF A GOVERNOR TO VETO LEGISLATIVE ACTION. >> THAT IS THE CONFLICT.
>> THIS IS WHERE WE COME DOWN HERE. IT SEEMS, IT IS VERY UNUSUAL THAT WHEN WE COME TO A
SITUATION, JUST STAND BACK FROM THIS. AVERAGE CITIZEN WOULD SAY THIS IS INSANITY WHERE YOU HAVE TWO
PARTIES THAT ARE AT ODDS OVER SOMETHING. THE GOVERNOR AND THE UNION OVER WHAT'S GOING TO BE, WHAT'S GOING
TO HAPPEN. THE PROVISION IT GOES TO THE LEGISLATURE AND THEN THE LEGISLATURE THEN DECIDES WHAT'S
GOING TO HAPPEN BUT IT'S WELL-KNOWN AT THAT POINT IN TIME THAT THE GOVERNOR WILL HAVE TO SIGN OFF AND THE GOVERNOR'S A
PARTY TO THAT DISPUTE. THAT TO ME IS THE EPITOME OF INSANITY. I MEAN TO SEE THAT CONFLICT, I
MEAN RIGHT THERE, IT IS JUST SO PLAIN. I THINK AN AVERAGE IT SEND COULD SEE THAT.
WHAT WOULD HAPPEN IF THIS COURT SHOULD DECLARE THE STATUTE, THE STATUTE PROVISION FOR GUBERNATORIAL, SOME WAY, IMPACT
THAT, THAT IMPASSE PROCEDURE TO TRY TO CIRCUMVENT THE GOVERNOR'S NEED TO APPROVE IT? >> THERE ARE TWO POSSIBILITIES.
POSSIBILITY NUMBER ONE IS, HE CAN'T BE JUDGE AND PARTY AT THE SAME TIME. >> AGREED.
I DON'T THINK ANYBODY IS DISPUTING THAT. >> SO THAT WOULD MEAN IT WOULD NOT BE COLLECTIVE BARGAINING IF
HE COULD HAVE HIS OWN WAY AT THE END OF THE PROCESS. >> I THINK THAT'S PRETTY OBVIOUS.
>> SO THAT'S ONE OF THE POSSIBILITIES. THE OTHER POSSIBILITY IS, SOMETHING THAT SURPRISED ME
ABOUT THE DISTRICT COURT'S DECISION. THEY NEVER MENTION WHAT THE CONSTITUTIONAL TEST IS FOR
RESOLVING SUCH A CONFLICT. AND YOU HELD IN THE ATTORNEY'S GUILD CASE AND CHILD TEACHERS CASE, THE RIGHT OF PUBLIC
EMPLOYEES TO BARGAIN COLLECTIVELY IS A FUNDAMENTAL RIGHT SUBJECT TO THE STRICT SCRUTINY RULE.
THAT WOULD MEAN, ALL RIGHT, YOU SAY THE GOVERNOR CAN STILL PARTICIPATE IN THIS PROCESS BUT IF HE DOES VETO WHAT THE
LEGISLATURE RESOLVED THE IMPASSE, HE HAS GOT TO PROVE THAT HE DID SO BY STRICT SCRUTINY.
IN THIS CASE-- >> SO DO YOU, ARE YOU URGING US TO ADOPT JUDGE THOMAS' DISSENT. IS THAT YOUR, WHAT RELIEF ARE
YOU SEEKING? WHAT WOULD YOU LIKE THIS COURT TO HOLD? >> I WOULD LIKE YOU TO HOLD HE
IS NOT INVOLVED IN THE PROCESS AT ALL. LET ME EXPLAIN WHY. BUT I RECOGNIZE--
>> BUT YOU SAID SOMETHING ABOUT STRICT SCRUTINY, COMPELLING STATE INTEREST. ISN'T THAT WHAT JUDGE THOMAS'
OPINION, DISSENT SETS FORTH WHICH DOESN'T REQUIRE DECLARING A STATUTE UNCONSTITUTIONAL? IT ALSO DOESN'T COMPLETELY
EVISCERATE THE GOVERNOR'S VETO AUTHORITY? >> I AM ONLY THE ADVISOR. I RECOGNIZE THAT THERE ARE THOSE
TWO LOGICAL POSSIBILITIES. YOU ASKED ME WHICH ONE I PREFER. I DON'T THINK HE SHOULD BE INVOLVED IN IT BECAUSE IT'S A
FUNDAMENTAL RIGHT. THE PEOPLE MADE NO EXCEPTION. IT'S THEIR GOVERNMENT. AND THEY SAID--
>> BUT WHAT I'M STRUGGLING WITH THIS HERE, LOOKING AT THE TEXT OF THE AMENDMENT. IT DOESN'T, IT DOES NOT
GUARANTY A PARTICULAR RESULT. THE RIGHT TO COLLECTIVE BARGAINING DOES NOT GUARANTY A PARTICULAR PATH TO A PARTICULAR
RESULT, DOES IT? >> NO. AS A MATTER OF FACT, THE LEGISLATURE COULD HAVE REVOLVED
THIS IF THEY WERE WITH THE GOVERNOR'S POSITION. BUT THEY DIDN'T. THAT IS THE POINT.
WE HAVE TO DEAL WITH IT THE WAY IT IS. >> SEEMS LIKE WE'RE TALKING ABOUT A CONFLICT BETWEEN THIS
PROVISION OF THE CONSTITUTION AND THIS FUNDAMENTAL FEATURE OF OUR CONSTITUTION, WHICH INVOLVES THE GOVERNOR'S VETO RIGHT OVER
LEGISLATION, WOULD YOU CONCEDE THAT THAT IS A FUNDAMENTAL ASPECT OF OUR SYSTEM OF GOVERNMENT?
>> YES AND NO, I KNOW THAT IS A LAWYER'S ANSWER BECAUSE THERE IS ANOTHER FUNDAMENTAL AND MUCH MORE FUNDAMENTALLY AND THAT'S
THE LIMITATION ON THE POWER OF GOVERNMENT CONTAINED IN THE DECLARATION OF RIGHTS. >> WHEN THIS WAS ADOPTED, THIS
RIGHT TO WORK PROVISION, THIS IS PART OF THE RIGHT TO WORK SECTION, WHEN THAT WAS ADOPTED, HOW IN THE WORLD WOULD THE
VOTERS LOOKING AT THAT HAVE UNDERSTOOD THAT THERE WAS GOING TO FLOW OUT OF THAT SOME IMPLICITLY, SOME LIMITATION ON
THE GOVERNOR'S AUTHORITY TO BE INVOLVED IN THE USE OF THE VETO, AND THAT SOMEHOW, THERE WERE GOING TO BE APPROPRIATIONS THAT
WOULD BE MADE, THAT THE GOVERNOR COULD DO NOTHING ABOUT? HE WOULD HAVE HIS VETO AUTHORITY, WOULD BE TOTALLY SET
ASIDE, THAT THAT ASPECT OF THE GUBERNATORIAL POWER UNDER OUR CONSTITUTION, WOULD BE SET ASIDE?
IF YOU LOOK AT THOSE WORDS, THAT FLOWS FROM THAT? THAT'S WHAT, I'M HAVING TROUBLE WRAPPING MY MIND AROUND THAT?
>> THIS COURT HAD TO ANSWER THAT RATHER EARLY ON BECAUSE THERE WERE, THE LEGISLATURE MET EVERY TWO YEARS AT THAT TIME.
THEY WENT THROUGH TWO SESSIONS WITHOUT DOING ANYTHING TO IMPLEMENT. IN RAND II JUSTICE ROBERTS
WRITING FOR THE COURT SAID, YOU WILL HAVE TO DO THAT AT THE NEXT SESSION OF THE LEGISLATURE OR WE'LL DO IT FOR YOU.
THEN HE WENT ON TO SAY THE ARGUMENT WHETHER PUBLIC EMPLOYEES SHOULD HAVE THE RIGHT TO BARGAIN COLLECTIVELY IS OVER.
QUOTE, THE PEOPLE HAVE SPOKEN, CLOSE QUOTE. >> THAT IS UNQUESTIONABLY TRUE. IT'S HERE.
IT'S IN THE CONSTITUTION BUT THE PRECISE CONTOURS OF THAT AND HOW THAT PROCESS FLOWS AND HOW IT REACH AS PARTICULAR CONCLUSION,
YOU CAN'T DIVINE FROM WHAT THOSE WORDS SAY, CAN YOU? >> IT MAY BECOME AWKWARD DEALING WITH THE STATE LEGISLATURE.
WORKS MUCH EASIER IN THE CITY OBVIOUSLY. MORE PEOPLE INVOLVED. LEGISLATURE DOESN'T MEET ALL
YEAR LONG BUT THAT DOESN'T DIMINISH THE RIGHT. THE RIGHT IS STILL THERE. IT IS NOT THAT DIFFICULT BECAUSE
ALL THAT REALLY HAPPENS, AND BY THE WAY, WHEN THEY FIRST IMPLEMENTED IT, THE RESOLUTION OF IMPASSE WAS BY ARBITRATION
WHICH IS COMMONLY DONE IN THE PRIVATE SECTOR. BUT THE LEGISLATURE REPEALED THAT.
SO THAT IS OUT. IF THE PARTIES HAVE NOT REACHED AGREEMENT, IF THEY'RE AT IMPASSE, THERE HAS TO BE, HAS TO
BE SOME CONSTITUTIONALLY AUTHORIZED THIRD PARTY DECIDER AND IN THIS CASE IT WAS THE LEGISLATURE.
THE BIG DIFFERENCE HERE THE LEGISLATURE APPROPRIATED THE MONEY AS WELL AS HAVING RESOLVED IT.
>> SOUNDS LIKE EVEN THOUGH IF YOU WOULD HAVE ARBITRATION AND IT REQUIRES LEGISLATIVE ACTION TO APPROPRIATE THE MONEY TO
SATISFY IT, IT IS STILL GOING TO FLOW UP TO THE GOVERNOR? >> THEY HAVE ALREADY APPROPRIATED THE MONEY.
THE QUESTION HERE WHICH IS FUNDAMENTAL, IS, CAN THE GOVERNOR USE HIS VETO POWER OVER THE BUDGET TO VIOLATE THE
FUNDAMENTAL RIGHTS OF THE PEOPLE? HE COULD CANCEL ELECTIONS. HE COULD DO ANYTHING.
IT CAN NOT BE. I FEEL FOOLISH STANDING HERE THAT I'M ADVOCATING FOR THE IMPORTANCE OF THE DECLARATION OF
RIGHTS. THE DECLARATION OF RIGHTS IS BY DEFINITION A LIMITATION ON THE POWER OF THE GOVERNMENT NO
MATTER HOW BIG THAT POWER IS. THE GOVERNMENT CAN NOT USE, WHATEVER BRANCH, IT IS NOT JUST THIS GOVERNOR, ANY GOVERNOR,
EXECUTIVE POWER CAN NOT BE USED TO VIOLATE FUNDAMENTAL RIGHTS UNLESS THE GOVERNMENT CAN SHOW THAT IT WAS A COMPELLING STATE
INTEREST AND THAT IT WAS THE LEAST INTRUSIVE WAY TO DO SO AND YOU SAID IN THE CHILES CASE, I THINK IT WAS A
700 MILLION-DOLLAR SHORTFALL IN A 28 BILLION-DOLLAR BUDGET. AND YOU SAID, THAT IS NOT A COMPELLING STATE INTEREST.
YOU ALSO SAID THAT POLITICAL NECESSITY EITHER. >> WAS CONTEXT THERE, REFRESH MY MEMORY ABOUT THAT.
THE CONTEXT THERE WAS ABOUT A CONTRACT THAT WAS ENTERED AND THE QUESTION WAS WHETHER THAT CONTRACT COULD BE SET ASIDE,
RIGHT? >> EXACTLY. >> THAT IS NOT SOMETHING WE'VE GOT HERE.
THIS HAS NEVER ACTUALLY COME TO FRUITION BECAUSE OF THE GOVERNOR'S VETO. >> THIS IS NEW, YOU'RE RIGHT BUT
THE PRINCIPLE IS THE SAME. THE PRINCIPLE HAS TO BE THAT ONCE THE LEGISLATURE, WHICH IS THE DESIGNATED AND, THERE HAS TO
BE SOMEBODY WHO RESOLVES THE IMPASSE. IT CAN'T GO BACK TO THE PARTY WHO SAID NO IN THE FIRST PLACE.
YOU CAN READ IT. >> BUT LEGISLATURE RESOLVED THE IMPASSE. >> THEY DID AND APPROPRIATED THE
MONEY. >> THEY HAVE A SEPARATE PROVISION, IF MONEY IS NOT THERE IT IS RESOLVED THE OTHER WAY,
CORRECT. >> YES, BUT IT WAS RESOLVED. EITHER THE GOVERNOR IS AN INTERLOPER AND OUT OF THIS
PROCESS-- TRY ANOTHER WAY. WHAT IF THE LEGISLATURE DESIGNATED THE COURTS AS THE RESOLUTION OF IMPASSE?
>> BUT THE LEGISLATURE CAN NOT APPROPRIATE FUNDS EXCEPT BY PASSING A LAW. THAT'S THE WAY THE LEGISLATURE
ACTS. AGAIN THAT IS PART OF THE PROCESS OF OUR GOVERNMENT THAT IS FUNDAMENTAL.
AND THE GOVERNOR IS PART OF THAT PROCESS. >> AND THE PEOPLE HAVE PUT LIMITATIONS ON THAT IN THE
DECLARATION OF RIGHTS ABOUT ALL SORTS OF THINGS. THIS PARTICULAR ONE IS RIGHT THERE WITH RIGHT OF ASSEMBLY AND
FREEDOM OF RELIGION. >> THERE IS A DIFFERENCE BETWEEN THE RIGHT TO COLLECTIVELY BARGAIN THAT IS IN THE
DECLARATION OF RIGHTS AND THE RIGHT TO RECEIVE HOW MUCH MONEY OF PUBLIC FUNDS YOU'RE GOING TO GET PURSUANT TO THAT THING,
PURSUANT TO THE COLLECTIVE BARGAINING AGREEMENT. THOSE ARE TWO SEPARATE THINGS. THE RIGHT TO COLLECTIVELY
BARGAIN IS PROTECTED, DECLARATION OF RIGHTS, BUT IT DOESN'T GUARANTY WITHOUT LIMITATION HOW MUCH MONEY YOU
GET AND THAT IS SUBJECT TO THE APPROPRIATION PROCESS AND GOVERNOR'S POWERS OVER THAT PROCESS LIKE ALL OTHER PUBLIC
FUNDS, IS IT NOT? >> THIS CASE IS NOT ABOUT THE AMOUNT. IT WAS NEVER ABOUT THE AMOUNT.
THIS CASE IS ABOUT ONE OF TWO THINGS THE GOVERNOR CAN NOT USE THE POWER OF BUDGET TO VIOLATE THE FUNDAMENTAL RIGHTS OF THE
PEOPLE IN ANY WAY? OR AT LEAST WITH REGARD TO COLLECTIVE BARGAINING THE STRICT SCRUTINY RULE APPLIES, AND HE
WOULD HAVE TO DEMONSTRATE A COMPELLING STATE INTEREST AND HE DIDN'T DO THAT. >> ARE WE NOT TALKING ABOUT
MONEY? NO. THEY HAD ALREADY APPROPRIATED MONEY.
HE SAID NO. HE CAN ONLY SAY NO IF HE CAN DEMONSTRATE THERE WAS COMPELLING STATE INTEREST TO DO SO AND
THERE ISN'T. THEY WERE NEVER GIVEN THAT. >> FINISH YOUR THOUGHT ABOUT RESOLVING AN IMPASSE.
THEY COULD HAVE USED A JUDICIAL MECHANISM. EXPLAIN THAT. >> WELL, WOULDN'T HAVE
SEPARATION OF POWERS. CERTAINLY THE LEGISLATURE WOULD HAVE TO HONOR THE DECISIONS OF THE COURT.
THAT IS WHY WE'RE HERE. YOU KNOW, THERE IS NO SEPARATION OF POWERS. THE STATE HASN'T ADJUDICATED ITS
RIGHTS ALL THE TIME BY THE COURTS. THERE IS NOTHING NEW ABOUT THAT. THE QUESTION WHETHER IT IS
APPROPRIATE TO HAVE A-- THEY'RE NOT THE EMPLOYER. >> BUT EVEN IF THE COURT, OR THE PERSON WHO, OR ENTITY THAT WAS
TO RESOLVE THE IMPASSE AND THE COURT CAME UP WITH SOME AMOUNT AND LEGISLATURE HAD TO APPROPRIATE THE MONEY, WHAT
WOULD STOP THE GOVERNOR, EVEN UNDER THOSE CIRCUMSTANCES FROM VETOING? >> WELL, OF COURSE THAT IS A
DIFFERENT PROCESS AND I THINK YOU MAY RECOGNIZE WHERE IT COMES TO PLAY BECAUSE IF A COURT, CIRCUIT JUDGE DECIDED WHO IS
GIVEN POWER TO DO RESOLUTION OF THE IMPASSE AND HE SIDED IN FAVOR OF THE UNION, THAT COULD GO TO A WRIT OF EXECUTION AND
THE SHERIFF WOULD TAKE THE BANK ACCOUNT OF THE STATE TO SATISFY IT. >> YOU CAN'T EXECUTE AGAINST THE
STATE? THAT IS NOT THE REMEDY. THE POINT, IF WE HAD A JUDGMENT OF SOME KIND, THE QUESTION WOULD
BE, WHAT'S THE PROCESS TO FLOW UP TO, UP THE CHAIN. SO FIRST IT WOULD GO THROUGH THE LEGISLATIVE PROCESS AND THEN,
LET'S ASSUME THAT THE LEGISLATURE APPROVES PAYMENT OF A JUDGMENT OF SOME KIND AND THEN IT GOES TO, STILL GOES TO THE
GOVERNOR. THAT IS THE PROBLEM. EVERYTHING THE LEGISLATURE DOES FLOWS UP TO THE GOVERNOR.
THAT'S THE FUNDAMENTAL FIGHT THAT, OR IT IS NOT A FIGHT. IT IS A FUNDAMENTAL PROBLEM TO DEAL WITH IN THIS AREA.
>> WE DO NOT HAVE A GUBERNATORIAL FORM OF GOVERNMENT. WE HAVE A CONSTITUTIONAL FORM OF
GOVERNMENT. >> WELL THAT'S TRUE, BUT THE CONSTITUTION GIVES WHOEVER IS SITTING IN THAT CHAIR THE POWER
TO EITHER APPROVE OR VETO. >> YEAH, BUT THIS AMENDMENT THAT GAVE THE PEOPLE RIGHTS WAS LATER IN TIME.
SO WE CERTAINLY KNOW THAT THE PEOPLE WHEN THEY VOTED FOR THIS, AND ROBERTS SAID THE PEOPLE HAVE SPOKEN.
>> LET ME HAVE YOU ADDRESS A PRACTICAL QUESTION I HAVE. WHAT AGENCY OR AGENCIES WERE THE RECIPIENT OF THE FUNDS IN THE
APPROPRIATION THAT GOT VETOED? >> WELL THE, THAT'S KIND OF COMPLICATED BECAUSE THE STATE FIREFIGHTERS ACTUALLY WORK FOR A
NUMBER OF DIFFERENT AGENCIES. SOME OF WHICH ARE INDEPENDENT OF THE GOVERNOR. THAT IS TO SAY, THERE IS THE
TEACHERS AT THE STATE FIRE COLLEGE. THEY WORK FOR THE CHIEF FINANCIAL OFFICER.
THERE IS THE FORESTRY FIREFIGHTERS WHO FIGHT FOREST FIRES. THEY WORK FOR THE COMMISSIONER
OF AGRICULTURE. BOTH OF THOSE PEOPLE ARE INDEPENDENT CONSTITUTIONAL OFFICERS IN THEIR OWN RIGHT AND
DON'T ANSWER TO THE GOVERNOR. SO THERE ARE-- >> THEY'RE STILL FUNDED THROUGH THE SAME APPROPRIATION BILL,
RIGHT? >> RIGHT. >> AS A PRACTICAL MATTER, ISN'T IT CORRECT THAT THE LEGISLATURE
CAN PRACTICALLY MAKE VETO-PROOF APPROPRIATION BECAUSE OF THE, THERE IS THE, THE GOVERNOR CAN VETO ANY SPECIFIC APPROPRIATION
BUT CAN NOT VETO A PROVISO WITHOUT A VETOING THE APPROPRIATION CONNECTED WITH IT, CORRECT?
>> YES BUT FUNDAMENTAL-- >> SO THE LEGISLATURE COULD HAVE PUT A PROVISO LANGUAGE ATTACHED WITH THE SALARY BUDGET FOR THE
DEPARTMENT OF AGRICULTURE AND WHATEVER OTHER DEPARTMENTS ARE INVOLVED AND SAYS THAT OUT OF THIS SPECIFIC APPROPRIATION OF
HOWEVER MANY MILLIONS OR HUNDREDS OF MILLIONS OF DOLLARS THE WHOLE OPERATING BUDGET OR SALARY BUDGET SO MUCH CAN BE
USED FOR THAT AND THAT PUTS THE GOVERNOR OF A POSITION HE IS GOING TO HAVE TO, IF HE WANTS TO VETO THE PROVISO, HE HAS TO VETO
THE ENTIRE BUDGET FOR THE AGENCY. THE LEGISLATURE DOES THAT ALL THE TIME, RIGHT?
>> BUT NOT WITH FUNDAMENTAL RIGHTS. THE FACT OF THE MATTER-- >> I GUESS THE THING THAT
DISTURBS ME, IF THE LEGISLATURE CAN ESSENTIALLY PRACTICALLY MAKE AN APPROPRIATION VETO-PROOF BECAUSE OF THAT SECOND PROVISO,
PARTICULARLY IN LIGHT OF THAT I HAVE, IT IS TROUBLING TO ME THAT THE THOUGHT THAT THE LEGISLATURE CAN BY STATUTE MAKE A SPECIFIC
APPROPRIATION VETO-PROOF IN CONTRAVENTION OF THE FIRST PART OF THE VETO LANGUAGE THAT SAYS THE GOVERNOR MAY VETO ANY
SPECIFIC APPROPRIATION. I MEAN THEY-- THEY CHOSE TO DO THIS IN A WAY THAT THE CONSTITUTION ALLOWS THE POSITIVE
TO VETO IT. THAT IS THEIR PREROGATIVE. THEY RESOLVED THE IMPASSE IN THAT MANNER.
THEY COULD HAVE RESOLVED THE IMPASSE IN A MANNER THAT MADE IT PRACTICALLY IMPOSSIBLE FOR THE GOVERNOR TO VETO.
JUST-- >> FUNDAMENTAL RIGHTS ARE SUPPOSED TO BE FREE AND AVAILABLE.
THEY ARE NOT SUBJECT TO INTRICACIES OF THE LEGISLATURE. >> YOU'RE NOT CONTENDING THAT, THAT YOU HAVE FUNDAMENTAL RIGHT
TO THE $2,000, RIGHT? I MEAN, THERE IS NO FUNDAMENTAL RIGHT FOR THE, THAT REQUIRED THAT THE LEGISLATURE PROVIDE
THAT AMOUNT OF MONEY. >> THAT IS NOT THE ISSUE HERE. >> I UNDERSTAND THAT, BUT, THAT YOU'RE SAYING THAT BUT IT IS THE
ISSUE. THAT'S WHAT WE'RE TALKING ABOUT. IT IS ALL ABOUT WHETHER THAT MONEY IS GOING TO BE SPENT BY
THE STATE OR NOT AND I'M HAVING TROUBLE FOLLOWING THE LINE OF ARGUMENT, IT'S A FUNDAMENTAL RIGHT BUT IT IS NOT A
FUNDAMENTAL RIGHT SO THE LEGISLATURE HAD TO DO IT, RIGHT? >> SOMEBODY HAS TO DO IT. EITHER THE JUDICIAL BRANCH,
ARBITRATION OR THE LEGISLATIVE BRANCH. >> FUNDAMENTAL RIGHT TO GET THAT AMOUNT OF MONEY?
>> WHAT IS A FUNDAMENTAL RIGHT TO HAVE THE IMPASSE RESOLVED. >> I UNDERSTAND THAT. >> THEY COULD RESOLVE IT BY
1999, WAVER IT IS. >> OR BY ZERO, RIGHT? >> YES THEY COULD HAVE DONE IT IN FAVOR OF THE GOVERNOR BUT
THEY DIDN'T. THAT'S THE POINT. THEY APPROPRIATED THE MONEY. THE GOVERNOR VIOLATED THE
FUNDAMENTAL RIGHT OF THE PARTIES TO BARGAIN COLLECTIVELY. >> IF THEY CAN DO IT IN FAVOR OF THE GOVERNMENT, THEY HAVE AT
LEAST THREE OPTIONS. THEY CAN SAY, NO, YOU DON'T GET IT. YES, YOU GET IT I WILL DO IT IN
A WAY PRACTICALLY IMPOSSIBLE FOR THE GOVERNOR TO VETO, OR YES YOU CAN DO IT, AND DO IT IN A WAY THE GOVERNOR ALLOWS IT TO
VETO. IF YOU DON'T HAVE A FUNDAMENTAL RIGHT TO THE MONEY, WHY DO YOU HAVE A FUNDAMENTAL RIGHT TO
DICTATE THE WAY THE LEGISLATURE DOES IT IN A MANNER THAT CONFLICTS WITH THE CONSTITUTION? >> FUNDAMENTAL RIGHTS ARE
SUPPOSED TO BE FREELY AVAILABLE. THEY'RE NOT SUPPOSED TO BE THE SUBJECT OF INTRICACIES OF THE GOVERNMENT MAKING A KIND OF
OBSTACLE FOR IT SO YOU DON'T GET THE TO GET THE PEOPLE SAID YOU'RE ENTITLED TO. >> THERE IS THE FOLLOW-UP STEP
TO THAT. THAT THE LEGISLATURE KNEW THAT IF A GOVERNOR IS GOING TO VETO A FUNDING BILL, THAT THEY CAN
OVERRIDE THAT. >> SAME ARGUMENT. >> THEY CAN OVERRIDE THAT WITH A, WITH A VOTE.
SO THAT WHY WOULD THAT NOT, IF I'M SITTING HERE TOTALLY LOOKING AT THIS WHOLE PICTURE, THAT WOULD BE THE FALL-BACK POSITION.
OKAY SO THE GOVERNOR DON'T GO ALONG, WE'LL OVERRIDE THE VETO? WHY COULD THAT NOT WORK? >> FUNDAMENTAL RIGHTS, YOU SAID
IT'S A FUNDAMENTAL RIGHT, SUBJECT TO STRICT SCRUTINY. NOW IT IS NO LONGER SUBJECT TO STRICT SCRUTINY?
IT SHOULD BE. THE POINT IF IT'S A FUNDAMENTAL RIGHT YOU CAN'T HAVE INTRICACIES LIKE OVERRIDING A VETO OR JUST
TRASH. IT ISN'T FUNDAMENTAL AT ALL. THE FACT OF THE MATTER I KNOW THIS IS A LITTLE DIFFERENT BUT
IT IS JUST THE WORKERS, BUT THE FACT OF THE MATTER THE PEOPLE WANTED THIS, AND IT IS THEIR GOVERNMENT.
REMEMBER WHAT ABRAHAM LINCOLN SAID-- >> THAT IS NOT IN DISPUTE HERE. >> OKAY.
>> THIS COURT RECOGNIZES THAT, THE QUESTION IS, WHAT DOES THAT MEAN? THAT JUST ELIMINATE ANY
DISCUSSION OF THE PROCESS BY WHICH THOSE, THAT FUNDAMENTAL RIGHT IS IMPLEMENTED? AND PART OF THE BARGAINING
PROCESS DOESN'T INCLUDE PARTICULAR AMOUNT BUT IT DOES I THINK, FAIR TO SAY HAVE A PROCESS THAT'S FAIR.
SO THAT YOU DON'T HAVE THE ACTUAL OPPONENTS TO THE PROCESS HAVING A SAY WHAT HAPPENS. >> THE ARGUMENT IS THE SAME.
I OFFERED THAT AS AN ALTERNATIVE, WHICH IS A REASONABLE APPROACH. AND IS THE ONE YOU ALWAYS USED
FOR EVERYTHING. AND THAT IS, THE GOVERNOR CAN PARTICIPATE IN THIS PROCESS AS YOU'RE SUGGESTING BUT IF HE IS
GOING TO GO AGAINST THE LEGISLATURE'S RESOLUTION OF THE IMPASSE, THEN HE IS GOING TO HAVE TO DEMONSTRATE THE STRICT
SCRUTINY TEST, A COMPELLING STATE REASON FOR DOING SO. THAT IS THE RULE OF LAW. IT IS ORDINARY WAY OF
OPERATING-- >> COUNSEL, YOU HAVE USED ALL YOUR TIME. PLUS A LITTLE MORE.
BUT I WILL AFFORD YOU TWO MINUTES FOR REBUTTAL. >> GOOD MORNING MR. CHIEF JUSTICE AND MAY IT PLEASE THE
COURT IF I MAY I WOULD LIKE TO START OUT BY ADDRESSING WHAT WE THINK IS THE SINGLE MOST IMPORTANT ISSUE THAT'S PRESENTED
IN THIS CASE AND THAT IS WHETHER THE LEGISLATURE SHOULD BE UNDERSTOOD TO HAVE THE AUTHORITY TO STATUTORILY MODIFY OR REPEAL
OR LIMIT THE GOVERNOR'S CONSTITUTIONALLY-AS SIGNED ROLE IN THE APPROPRIATION PROCESS? WE THINK THE ANSWER TO THAT
QUESTION UNDER THE PLAIN TEXT OF ARTICLE III, SECTION 8, AND THIS COURT'S PRECEDENCE CONSTRUING THAT PROVISION HAS TO BE NO.
THAT CONCLUSION STANDING ALONE PROVIDE SUFFICIENT BASIS FOR DISPOSING OF THIS CASE. >> I GUESS WHAT I'M STRUGGLING
WITH THERE, AND I UNDERSTAND YOUR ARGUMENT BUT IT GOES BACK TO THE STATUTE ITSELF. WOULD WE BE SAYING, WHEN IT
COMES TO MONEY THAT IT'S ESSENTIALLY WHATEVER IS DECIDED WITHIN THE SCOPE OF THAT COLLECTIVE BARGAINING STATUTE?
THAT THE GOVERNOR CAN VETO THAT FOR ANY REASON HE WANTS? I JUST WOULD LIKE YOU TO ADDRESS JUDGE THOMAS', WAS IT A DISSENT
OR, TO SAY, WELL, AT LEAST THOUGH, IF THERE IS A COMPELLING INTEREST TO OVERRIDE IT, THAT THAT THEN HARMONIZES THE RIGHT
TO COLLECTIVE BARGAIN, MEANINGFULLY COLLECTIVE BARGAINING WITH THE RIGHT TO VETO?
BECAUSE IT DOESN'T SEEM TO ME THE OVERRIDE, YOU KNOW, AFTER THE LEGISLATURE IS OUT OF SESSION, THE VETO OCCURS.
YOU'RE GOING TO BRING BACK THE ENTIRE LEGISLATURE FOR A SPECIAL SESSION TO OVERRIDE THAT ONE ITEM.
THAT IS ALMOST, WOULD BE NOTHING AT ALL. SO WHAT ABOUT, WHY ISN'T THAT AN APPROPRIATE WAY TO RESOLVE THE
CONFLICT BETWEEN RIGHT TO COLLECTIVE BARGAINING AND RIGHT TO VETO? >> FOR A COUPLE OF REASONS, YOUR
HONOR. FIRST, THIS COURT HAS NEVER HELD THAT THE GOVERNOR'S EXERCISE OF HIS VETO POWER IS SUBJECT TO
STRICT SCRUTINY, BASED ON THE REASON SUPPORTING THE EXERCISE OF THAT POWER. SO THIS IS AN ENTIRELY NOVEL
CONSTITUTIONAL INNOVATION THAT OUR FRIENDS ON THE OTHER SIDE ARE ASKING THIS COURT TO EMBRACE FOR THE VERY FIRST TIME IN THE
HISTORY OF THIS STATE. AND THAT'S A DANGEROUS ROAD TO GO DOWN. WE WOULD EMPHASIZE IN RESPONSE
TO YOUR HONOR'S QUESTION THE PRACTICAL AND DOCTRINAL IMPLICATIONS OF ACCEPTING PETITIONER'S NOVEL
CONSTITUTIONAL THEORY. FIT IS TRUE THAT THE LEGISLATURE WHEN IT IS ENFORCING OR IMPLEMENTING ARTICLE 1 SECTION 6
CAN DO AWAY WITH THE PRESENTMENT REQUIREMENT OF OUR ARTICLE III, SECTION 8, WHAT ELSE CAN IT DO AWAY WITH?
FOR EXAMPLE, WHY CAN'T THE LEGISLATURE DO AWAY WITH THE BICAMERAL REQUIREMENT SET OUT IN SECTION 8?
>> ARE YOU SAYING THE STATUTE ITSELF THAT THE LEGISLATURE PASSED UNCONSTITUTIONAL? >> IT IS NOT BECAUSE WE BELIEVE
THAT THE STATUTE NEED NOT AND SHOULD NOT BE CONSTRUED TO LIMIT THE BICAMERALISM OR PRESENTMENT REQUIREMENT THAT IS SET OUT IN
ARTICLE III SECTION 8. THAT IS NOT JUST OUR VIEW, JUSTICE PARIENTE. THIS COURT IN FLORIDA VERSUS--
>> I'M STILL, MAYBE, YOU GOT A PROCEDURE FOR COLLECTIVE BARGAINING. BOTH PARTIES COME.
THEY COME TO AN IMPASSE. THEN THE STATUTE IS, REQUIRES THAT THE LEGISLATURE MAKE THAT DECISION AND APPROPRIATE,
CORRECT? >> YES. >> SO THE ISSUE OF HOW IT GETS RESOLVED, IF IT HAS, IF THE
GOVERNOR HAS PLENARY AUTHORITY TO VETO THAT APPROPRIATION, THEN DOESN'T IT UNDERMINE THE ENTIRE STATUTORY SCHEME?
AGAIN, YOU MAY, IT'S, I DON'T KNOW. I'M JUST, I DON'T THINK IT IS, LIKE WHAT YOU JUST SAID, COULD
THEY AMEND, I MEAN YOU'RE TALKING ABOUT A BICAMERAL LEGISLATURE. ISN'T THAT IN THE CONSTITUTION?
>> IT IS. >> SO I DON'T REALLY THINK-- >> SO IS THE PRESENTMENT REQUIREMENT IN ARTICLE III,
SECTION 8. IN OTHER WORDS THERE IS A SINGLE EXCLUSIVE, AND MANDATORY PROCEDURE BY WHICH A BILL CAN
BECOME LAW IN THIS STATE AND THAT IS SET OUT IN THE EXPRESS TERMS OF OUR ARTICLE III, SECTION 8.
THE LEGISLATURE HAS NO MORE AUTHORITY WHEN IT IS IMPLEMENTING ARTICLE I, SECTION 6 TO DO AWAY WITH THE
PRESENTMENT REQUIREMENT THAN IT DOES TO DO AWAY WITH ANY OTHER GENERALLY APPLICABLE CONSTITUTIONAL REQUIREMENT.
>> MAKE SURE I UNDERSTAND, AS YOUR DISTINGUISHED OPPOSITION SUGGESTS, THAT YOU WOULD INTERPRET OUR CONSTITUTIONAL
SCHEME SO THAT THE EXECUTIVE HAS ABSOLUTE DICTATORIAL POWER WITH REGARD TO REVIEWING EVERY ITEM THAT DEALS WITH FINANCES EITHER
TO ACCEPT IT, OR VETO IT? IT HAS NO, WHETHER THAT DEALS WITH ELECTIONS, WHETHER THAT DEALS WITH OTHER FORMS OF WHAT
WE CONSIDER OUR AMERICAN WAY OF GOVERNMENT, AND THERE IS NO EXCEPTION TO THAT? IS THAT THE PREMISE THAT YOU'RE
FOLLOWING? >> SO OUR PREMISE IS THAT THIS COURT SHOULD FOLLOW THE PRECEDENT THAT IT IS ARTICULATED
IN BROWN VERSUS FIRESTONE, WHICH IS NOT THAT THE GOVERNOR HAS ABSOLUTE DICTATORIAL POWER, FAR FROM IT.
THIS COURT IN THE BROWN CASE STRESSED THAT THE VETO POWER HAS TO BE EXERCISED IN CONFORMITY SET OUT IN ARTICLE III, SECTION
8, INCLUDING THE REQUIREMENT WHICH JUSTICE LAWSON REFERRED IF THE GOVERNOR VETOES A SPECIFIC PROVISO HAVING TO DO WITH AN
APPROPRIATION, HE HAS TO VETO THAT WHOLE APPROPRIATION. THAT FOR EXACTLY THE REASON JUSTICE LAWSON STRESSED PROVIDES
A VERY SIGNIFICANT CHECK ON THE GOVERNOR'S POWER. >> BUT OTHER THAN THAT, IF IT IS NOT CONTAINED, DON'T FOLLOW
THROUGH WITH THE PROVISO, PLAYING THAT GAME, THAT THE GOVERNOR, WHOEVER IT IS, THIS ONE OR THE NEXT ONE OR ANY OF
THEM, WOULD HAVE THE POWER UNDER CIRCUMSTANCES SUCH AS THIS TO TAKE AN ACTION THROUGH A VETO THAT, THAT, LET'S ASSUME, LET'S
ASSUME, CLEARLY VIOLATES ANOTHER PROVISION OF OUR CONSTITUTIONAL WE CONSIDER TO BE THE RIGHTS? IS THAT WHERE WE ARE?
>> NO. BECAUSE WE'RE ABSOLUTELY NOT ASSERTING THE AUTHORITY OF THE GOVERNOR TO VIOLATE ANY OTHER
GENERALLY APPLICABLE CONSTITUTIONAL PROVISION. WHAT WE'RE ASKING FOR THIS COURT TO FOLLOW THE PRONOUNCEMENT THAT
IT ARTICULATED IN STATE VERSUS FLORIDA POLICE BENEVOLENT ASSOCIATION WHERE THIS COURT STRESSED THAT THE COLLECTIVE
BARGAINING RIGHT THAT IS CREATED BY ARTICLE I, SECTION 6 DOES NOT CHANGE OR INVADE OTHER GENERALLY APPLICABLE CONSTITUTIONAL
REQUIREMENTS INCLUDING, AND THIS IS VERY IMPORTANT, THE CONSTITUTIONAL PRINCIPLE OF THE SEPARATION OF POWERS WHICH IS
EMBODIED IN ARTICLE II, SECTION 3. NOT TO STRESS THE SEPARATION POWERS.
>> THAT VIEW IS ADOPTED, THEN WHY IS NOT THE STATUTORY SCHEME UNCONSTITUTIONAL AND WE CRY TO THE LEGISLATURE TO FIND A
DIFFERENT, DIFFERENT PROGRAM OR PLAN THAT'S CONSISTENT WITH THE RIGHT OF FLORIDA CITIZENS TO FREELY BARGAIN?
>> YOU COULD GO DOWN THAT ROAD, YOUR HONOR, AND WE WOULD RESPECTFULLY SUGGEST TO THE COURT THAT YOU NEED NOT, IN OUR
VIEW SHOULD NOT CONSTRUE CHAPTER 447 OF FLORIDA STATUTES TO CONFLICT WITH THE BUY BICAMERALISM AND PRESENTMENT
REQUIREMENT SET OUT IN SECTION 8. WHY? BECAUSE THE FLORIDA POLICE
BENEVOLENT ASSOCIATION. THE COURT CAN SAY THE RIGHT TO ENGAGE IN COLLECTIVE BARGAINING UNDERSTOOD TO BE SUBJECT TO THE
APPROPRIATION POWER AND THE APPROPRIATION POWER IS SET OUT IN ARTICLE II, SECTION 8. >> THAT DIDN'T THROW INTO
CONFLICT THE VETO POWER OF THE GOVERNMENT THOUGH, DID IT? >> WELL, WHAT THE COURT SAID THE RIGHT TO COLLECTIVELY BARGAIN IS
GENERALLY SUBJECT TO THE APPROPRIATION POWER. >> TRUE. >> THE COURT EXCITED, FOR
EXAMPLE A SECOND DISTRICT COURT OF APPEAL CASE THAT EXPRESSLY STATED THAT THE APPROPRIATION POWER OF COURSE INCLUDES ALL
GOVERNMENTAL OFFICERS WHO PLAY A CONSTITUTIONALLY ASSIGNED ROLE IN THE APPROPRIATION PROCESS AND THAT OF COURSE INCLUDES THE
GOVERNOR. >> OKAY, THAT HAS BEEN ANSWERED THEN, IS YOUR VIEW? >> SO OUR VIEW THE STATUTE NEED
NOT BE CONSTRUED TO CONFLICT WITH THE CONSTITUTION BUT IF YOU UNDERSTOOD THE STATUTE TO TRY TO ASSERT A POWER ON THE PART OF
THE LEGISLATURE TO DO AWAY WITH THE PRESENTMENT REQUIREMENT, THEN WE CERTAINLY WOULD ARGUE AND WE DO IN OUR BRIEF THAT THE
STATUTE SO CONSTRUED WOULD NOT BE CONSTITUTIONAL, NOT JUST IN CONTRAVENTION OF ARTICLE II, SECTION 8, BUT CON HAVE TENSION
OF SEPARATION OF POWERS PRINCIPLE IN ARTICLE II. HERE IS THE POINT I WOULD STRESS, JUSTICE LEWIS, YOU RAISE
IMPORTANT CONCERNS. AS IN CASE IN LAW AND LIFE THERE IS NO PERFECT SEVEN SOLUTION. AND IN SOME WAYS YOU'RE
LOOKING-- >> YOU ALL COME HERE TO FIND THAT PERFECT SOLUTION. >> USUALLY LEAVE DISAPPOINTED.
>> EVERYONE. >> WELL, WE'D LIKE TO SUGGEST THAT THE LEAST BAD ANSWER HERE IS TO CONSTRUE THE STATUTE IN
SUCH A WAY IT CONFORMS WITH THE REQUIREMENTS OF ARTICLE III, SECTION 8. WHY IS THAT?
THE PRACTICAL ALTERNATIVE IS TO GIVE THE LEGISLATURE THE POWER TO DO AWAY WITH BY STATUTE, TO DO AWAY WITH WHAT THIS COURT IN
BROWN VERSUS FIRESTONE CHARACTERIZED AS THE PRIMARY CHECK ON WHAT WOULD OTHERWISE BE UNFETTERED LEGISLATIVE POWER
WITH RESPECT TO THE APPROPRIATION PROCESS. THAT WOULD BE A PRETTY BIG DEAL. THAT HAS NEVER BEEN DONE BEFORE
IN THE HISTORY OF THIS STATE. WE WOULD SUGGEST IF THERE IS ANY WAY TO AVOID THAT OUTCOME, AND THERE IS HERE, THAT THE COURT
SHOULD A VEIL ITSELF OF THAT OPPORTUNITY. >> YOU KNOW, I GUESS, THIS GOES BACK TO SOMETHING THAT WAS SAID
RIGHT AT THE BEGINNING OF THE ARGUMENT BUT IT SEEMS TO ME IN THIS WHOLE COLLECTIVE BARGAINING SITUATION HOW DO WE GET AROUND
THE FACT THAT THE GOVERNOR IS A PARTICIPANT IN THIS COLLECTIVE BARGAINING, YOU GET AN IMPASSE, AND SO WHAT YOU'RE SAYING IS THE
GOVERNOR HAS THE LAST SAY IN THIS WHOLE PROCESS BECAUSE THE GOVERNOR GETS TO VETO EVEN THOUGH YOU GOT A PROCESS WHERE
THE IMPASSE GOES TO SUPPOSEDLY A NEUTRAL BODY, LOOKS AT THE GOVERNOR'S POINT OF VIEW, LOOKS AT THE OTHER PARTICIPANTS POINT
OF VIEW, COMES TO A COMPROMISE, OR A SOLUTION, AND THEN THE GOVERNOR STILL GETS TO SAY NO? SO HOW DO WE GET AROUND THAT?
IS THERE SOME WAY TO RESOLVE THAT? >> IT'S A VERY IMPORTANT QUESTION, YOUR HONOR.
AND I WOULD ANSWER IT IN A COUPLE OF WAYS. THE FIRST IS TO SAY THAT IT IS NOT ALL TOGETHER UNCOMMON IN OUR
CONSTITUTIONAL SYSTEM FOR ONE BRANCH OF GOVERNMENT TO HAVE THE POWER TO RESOLVE DISPUTES THAT TOUCH ON ITS OWN POWER.
SO FOR EXAMPLE, THE LEGISLATURE CAN APPROPRIATE FUNDS THAT AFFECT AND GO TO LEGISLATIVE OPERATIONS.
THIS COURT ON QUITE FREQUENT BASIS DECIDES CASES THAT SPEAK TO THE DISTRIBUTION OF POWER BETWEEN THE JUDICIAL BRANCH AND
OTHER BRANCHES OF GOVERNMENT. THERE IS NOTHING IMPROPER ABOUT THAT, EVEN THOUGH YOU COULD CONCEPTUALIZE IT AS SPECIES OF
SELF-INTEREST. ANOTHER WAY OF SAYING THIS BRANCH UNDER OUR CONSTITUTION UNDER THE CONSTITUTION HAS TO
PERFORM THEIR CONSTITUTIONALLY ASSIGNED ROLE. >> I'M SORT OF STUCK ON THE ARGUMENT, MAYBE YOU ALREADY
ANSWERED IT THE BEST THAT IS AVAILABLE, WE'RE DEALING WITH A FUNDAMENTAL RIGHT TO COLLECTIVELY BARGAIN.
AND SO, IT IS NOT THE SAME AS-- WE'RE NOT TALKING ABOUT THE SEPARATION OF POWERS ISSUE HERE. AND YOU KNOW, YOU'RE SAYING, YOU
WOULD ADMIT THERE IS A WAY TO OVERRIDE THE VETO BY GOING TO A SPECIAL SESSION, AND THAT'S THE ANSWER TO IT.
THAT IS HOW THE COLLECTIVE BARGAINING RIGHT WOULD GET EFFECTUATED. AGAIN FOR THE REASONS I POINTED
OUT THAT'S REALLY MEANINGLESS. SO I'M STILL, I GUESS I'M STRUGGLING WITH THE WHY THE SOLUTION OF, THAT IF THE
GOVERNOR IS GOING TO VETO THIS PARTICULAR APPROPRIATION HE HAS TO SHOW MORE THAN, OVER, EVERYONE SHOULD HAVE GOTTEN THE
MONEY. HE WANTED ALL STATE EMPLOYEES TO GET THE MONEY OR NO ONE GETS IT. BUT, THAT'S NOT WHAT THIS CASE
WAS ABOUT. SO WHY WOULDN'T THERE BE, LISTEN WE'RE IN A FINANCIAL CRISIS. I'M VETOING ALL THESE OTHER,
SOMETHING ELSE OTHER THAN, I WANT EVERYONE TO GET A PAY RAISE? I MEAN MA WOULD BE, WHY WOULD
THAT WHY WOULD THAT NULLIFY IN THIS PARTICULAR AREA THE VETO, THE AUTHORITY OF THE GOVERNOR TO VETO?
>> SO, I THINK THE ANSWER TO YOUR HONOR'S QUESTION IS, THAT ARTICLE III SECTION EIGHT. I THINK THE ANSWER TO YOUR
HONOR'S QUESTION IS ARTICLE 3 SECTION 8 DOESN'T SAY THE LEGISLATURE CAN DO AWAY WITH THE PRESENTMENT REQUIREMENT.
>> ALL WE ARE DOING IS GOING BACK TO THE SAME ISSUE WHICH YOU ARE SAYING THE TO SEND CANNOT BE -- CANNOT COMPORT WITH THE
PRESENTMENT REQUIREMENT. I AM SAYING I DON'T KNOW WHY IF IT IS STILL REQUIRING THE GOVERNOR TO DEMONSTRATE
SOMETHING. I TOLD YOU I DON'T WANT TO COLLECTIVELY BARGAIN, DIDN'T AGREE WITH THAT.
THE LEGISLATURE WENT THROUGH IT, THEY APPROPRIATED BUT I CAN SAY NO. >> JUST TO STRESS A PRACTICAL
REALITY WE DISAGREE WITH THE SUGGESTION THERE IS NOT A MEANINGFUL RIGHT TO ENGAGE IN COLLECTIVE BARGAINING AS
EVIDENCED BY THE FACT THE FIREFIGHTERS ASKED FOR $1500 PER PERSON PAY RAISE AND THEY GOT A $2000 --
>> THEY GOT NOTHING. >> IN 2016. SOME OF THEIR MEMBERS GOT AN ADDITIONAL $2500 PER PERSON
PAY RAISE IN 2018. BASED ON PUBLIC ENACTMENTS THEY CITED ON PAGE 5 OF OUR ANSWER BRIEF WITH CITATION TO PUBLIC
LAWS. THE MORE FUNDAMENTAL ANSWER TO YOUR HONOR'S QUESTION ABOUT THE CONFLICT OF INTEREST.
WHAT IS THE GREATER CONFLICT OF INTEREST? THE FACT THAT THE GOVERNOR LIKE MANY CONSTITUTIONAL OFFICES
SOMETIMES WEARS TWO HATS AND HAS TO PLAY A ROLE IN CONSTITUTIONALLY ASSIGNED ROLE IN THE APPROPRIATION PROCESS
EVEN THOUGH HE CAN BE A PUBLIC EMPLOYER WITHIN THE MEANING OF CHAPTER 447 OR IS THE GREATER CONFLICT OF INTEREST GIVING THE
LEGISLATURE THE AUTHORITY TO MODIFY OR REPEAL WHAT IS THE PRIMARY CHALLENGE. >> IT WOULD SEEM THAT WOULD
VINDICATE THAT SOLUTION, WOULD VINDICATE BOTH RIGHTS. >> SUBJECTING THE VETO TO THE STATE INTEREST TEST.
THE ANSWER TO THAT IS A LOT OF PRACTICAL REASONS WHY YOU MIGHT NOT GO DOWN THAT ROAD. THE RIGHT TO COLLECTIVE
BARGAINING IS NOT THE ONLY RIGHT THAT IS IMPLICATED, A LOT OF CONSTITUTIONAL RIGHTS AS A PRACTICAL MATTER REQUIRE FUNDING
TO BE MEANINGFULLY PROTECTED. LET ME GIVE YOU A COUPLE EXAMPLES, THERE IS THE RIGHT OF ALL CHILDREN UNDER THE STATE
CONSTITUTION TO HAVE ADEQUATE EDUCATION UNDER ARTICLE 9 SECTION 1. THERE IS THE RIGHT OF CRIMINAL
DEFENDANTS TO HAVE SPEEDY AND IMPARTIAL TRIALS UNDER ARTICLE 1. AND APPROPRIATIONS.
PART OF THE QUESTION THE COURT ONCE TO ANSWER IS DO WE WANT TO GET INTO THE BUSINESS, DOES THE COURT WANT TO GET INTO THE
BUSINESS OF HAVING TO DETERMINE WHETHER A SUFFICIENT JUSTIFICATION SUPPORTS THE EXERCISE OF THE VETO POWER.
THAT WOULD AND MESH THE JUDICIARY OF ALL MANNER OF QUINTESSENTIALLY POLITICAL DISPUTES IN THE SUBMISSION CAN'T
BE RESOLVED ON JUDICIALLY MANAGEABLE STATEMENTS. I CAN GIVE YOU AN EXAMPLE OF ILLUSTRATING THE PROBLEM IN THIS
CASE. >> EVEN WITH THAT DOESN'T IT MAKE A DIFFERENCE, IF THE GOVERNOR IS A PARTY AT THE TABLE
AND MOST OF THESE OTHER SITUATIONS YOU ARE TALKING ABOUT, A PARTY AT THE TABLE. THAT IS WHAT WE HAVE.
>> THE OPERATION OF STATUTE IN 447.03 SUBSECTION 2. ONE MEMBER OF THE COURT SUGGESTED THE LEGISLATURE CAN
COME UP WITH A STATUTORY SCHEME THAT WOULD ADDRESS YOUR HONOR'S CONCERN AT RESPECT. WHATEVER THE SOLUTION IS THE
SOLUTION SHOULD NOT BE HOLDING FOR THE FIRST TIME THE COURTS SHOULD BE SECOND GUESSING THE REASON SUPPORTING GUBERNATORIAL
VETO THAT IS EXERCISED IN FULL COMPLIANCE WITH ALL THE REQUIREMENT OF ARTICLE 3 SECTION 8.
THAT IS NOT JUST OUR VIEW BUT THE VIEW THE COURT ARTICULATED IN BROWN VERSUS FIRESTONE WHEN IT SAID THE GOVERNOR'S VETO
POWER MAY BE EXERCISED FOR ANY REASON WHATSOEVER SPEAKING TO THE RATIONALE FOR THE VETO AS OPPOSED TO THE SUBJECT MATTER.
I WOULD LIKE IF I MAY IN THE TIME I HAVE REMAINING TO ADDRESS SOME ADDITIONAL PRACTICAL CONCERNS THAT MIGHT COME UP IF
WE GO DOWN THIS ROAD OF SUBJECTING THE GOVERNOR'S VETO POWER TO STRIP SCRUTINY AND ILLUSTRATE WITH RESPECT TO THE
PROBLEM IN THIS CASE, JUSTICE PARIENTE. THEY ASKED FOR $1500 PAY RAISE AND THE LEGISLATURE IN THE FIRST
INSTANCE PAST THE $2000 PER PERSON PAY RAISE. COULD THE GOVERNOR REASONABLY HAVE DETERMINED THOSE
FIREFIGHTERS WHO ARE IN THE COLLECTIVE BARGAINING UNIT SHOULD GET THE PAY RAISE THEY ASKED FOR BUT THE ADDITIONAL
FUNDING THAT WAS AVAILABLE SHOULD GO TO VINDICATING CONSTITUTIONAL RIGHTS INCLUDING RIGHT TO AN ADEQUATE EDUCATION.
ARE THERE JUDICIALLY MANAGEABLE STANDARDS BY WHICH THE COURTS OF THIS STATE COULD SAY UNREASONABLE FOR THE GOVERNOR TO
SAY THAT ADDITIONAL MONEY, PAYING FOR EDUCATION EVEN THOUGH ADDITIONAL MONEY IS ABOVE AND BEYOND WHAT THE UNION REQUESTED.
ONE POINT I WOULD LIKE TO STRESS IS THE LEGISLATIVE PROCESS PLAYED ITSELF OUT, THE GOVERNOR DIDN'T DECIDE THIS CASE, THE
LEGISLATURE DID RESOLVE THE IMPASSE AND NOT BECAUSE THE LEGISLATURE DECLINED TO OVERRUN THE GOVERNOR'S VETO AND THEY
EXPRESSLY PROVIDED OUTSTANDING IMPASSE ISSUES WOULD BE RESOLVED AS MATTER OF LAW BY MAINTAINING THE STATUS QUO AND THAT IS
CHAPTER 2015-223 SECTION 1. THE LEGISLATURE DIDN'T HAVE TO DO THAT BUT IT DID THAT. PETITIONERS MAY NOT THINK THAT
IS GOOD RESOLUTION OF THE COLLECTIVE BARGAINING DISPUTE BUT IS A RESOLUTION INTO THE RESOLUTION THE LEGISLATURE HAD
THE CONSTITUTIONAL AUTHORITY TO ENACT. MY TIME HAS RUN OUT BUT I WILL ANSWER ANY QUESTIONS YOU HAVE.
THANK YOU. >> SHALL NOT BE ABRIDGED HAS NO EXCEPTION, NO EXCEPTION. THERE IS A NEW CONFLICT HERE
BETWEEN THE GOVERNOR'S POWER OR THE BUDGET AND THE FUNDAMENTAL RIGHT. THE SOLUTION FOR THIS CONFLICT
IS THE ONE YOU HAVE ALWAYS USED, THAT IF A FUNDAMENTAL RIGHT IS INVOLVED, YOU HAVE TO ASK THE QUESTION DID THE GOVERNMENT
DEMONSTRATE COMPELLING STATE INTEREST IN THE LEAST INTRUSIVE WAY. YOU HEARD A LOT OF ARGUMENT FROM
THE RESPONDENT BUT NO STATEMENT OF THE COMPELLING STATEMENT, YOU HEARD NO STATEMENT OF WHY THIS WAS THE LEAST INTRUSIVE.
THEY DID NOT MEET THE TEST OF STRICT SCRUTINY AND A TEST OF STRICT SCRUTINY MUST APPLY TO ALL FUNDAMENTAL RIGHTS OR WE
DON'T HAVE CONSTITUTIONAL GOVERNMENT. THAT IS THE SOLUTION TO THIS CASE AND I THANK YOU FOR YOUR
TIME AND ATTENTION. >> THANK YOU BOTH FOR YOUR ARGUMENTS AND THAT CONCLUDES TODAY'S SESSION OF COURT.
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