Florida Senate - 2011                          SENATOR AMENDMENT
       Bill No. CS/HJR 7111, 2nd Eng.
       
       
       
       
       
       
                                Barcode 802676                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                 Floor: WD/3R          .                                
             05/02/2011 06:01 PM       .                                
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       Senators Bogdanoff, Simmons, Dockery, Jones, Detert, Storms,
       Diaz de la Portilla, Fasano, Latvala, and Evers moved the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3  
    4         Delete everything after the resolving clause
    5  and insert:
    6         That the following amendment to Sections 2, 4, 11, 12, and
    7  14 of Article V of the State Constitution is agreed to and shall
    8  be submitted to the electors of this state for approval or
    9  rejection at the next general election or at an earlier special
   10  election specifically authorized by law for that purpose:
   11                              ARTICLE V                            
   12                              JUDICIARY                            
   13         SECTION 2. Administration; practice and procedure.—
   14         (a) The supreme court shall adopt rules for the practice
   15  and procedure in all courts including the time for seeking
   16  appellate review, the administrative supervision of all courts,
   17  the transfer to the court having jurisdiction of any proceeding
   18  when the jurisdiction of another court has been improvidently
   19  invoked, and a requirement that no cause shall be dismissed
   20  because an improper remedy has been sought. The supreme court
   21  shall adopt rules to allow it the court and the district courts
   22  of appeal to submit questions relating to military law to the
   23  federal Court of Appeals for the Armed Forces for an advisory
   24  opinion. Rules of court may be repealed by general law that
   25  expresses the policy behind the repeal enacted by two-thirds
   26  vote of the membership of each house of the legislature. The
   27  court may readopt the repealed rule only in conformity with the
   28  public policy expressed by the legislature. If the legislature
   29  repeals the readopted rule, the rule may not be readopted
   30  thereafter without prior approval of the legislature.
   31         (b) The chief justice of the supreme court of Florida shall
   32  be chosen by a majority of the members of the court; shall be
   33  the chief administrative officer of the judicial system; and
   34  shall have the power to assign justices or judges, including
   35  consenting retired justices or judges, to temporary duty in any
   36  court for which the judge is qualified and to delegate to a
   37  chief judge of a judicial circuit the power to assign judges for
   38  duty in that circuit.
   39         (c) A chief judge for each district court of appeal shall
   40  be chosen by a majority of the judges thereof or, if there is no
   41  majority, by the chief justice. The chief judge of a district
   42  court shall be responsible for the administrative supervision of
   43  the district court.
   44         (d) A chief judge in each circuit shall be chosen from
   45  among the circuit judges as provided by supreme court rule. The
   46  chief judge of a circuit shall be responsible for the
   47  administrative supervision of the circuit courts and county
   48  courts in the his circuit.
   49         SECTION 4. District courts of appeal.—
   50         (a) ORGANIZATION.—There shall be a district court of appeal
   51  serving each appellate district. Each district court of appeal
   52  shall consist of at least three judges. Three judges shall
   53  consider each case and the concurrence of two shall be necessary
   54  to a decision.
   55         (b) JURISDICTION.—
   56         (1) District courts of appeal shall have jurisdiction to
   57  hear appeals, that may be taken as a matter of right, from final
   58  judgments or orders of trial courts, including those entered on
   59  review of administrative action, not directly appealable to the
   60  supreme court or a circuit court. They may review interlocutory
   61  orders in such cases to the extent provided by rules adopted by
   62  the supreme court.
   63         (2) District courts of appeal shall have the power of
   64  direct review of administrative action, as prescribed by general
   65  law.
   66         (3) A district court of appeal or any judge thereof may
   67  issue writs of habeas corpus returnable before the court or any
   68  judge thereof or before any circuit judge within the territorial
   69  jurisdiction of the court. A district court of appeal may issue
   70  writs of mandamus, certiorari, prohibition, quo warranto, and
   71  other writs necessary to the complete exercise of its
   72  jurisdiction. To the extent necessary to dispose of all issues
   73  in a cause properly before it, a district court of appeal may
   74  exercise any of the appellate jurisdiction of the circuit
   75  courts.
   76         (c) CLERKS AND MARSHALS.—Each district court of appeal
   77  shall appoint a clerk and a marshal who shall hold office during
   78  the pleasure of the court and perform such duties as the court
   79  directs. Their compensation shall be fixed by general law. The
   80  marshal shall have the power to execute the process of the court
   81  throughout the territorial jurisdiction of the court, and in any
   82  county may deputize the sheriff or a deputy sheriff for such
   83  purpose.
   84         SECTION 11. Vacancies.—
   85         (a) Whenever a vacancy occurs in a judicial office to which
   86  election for retention applies, the governor shall fill the
   87  vacancy by appointing for a term ending on the first Tuesday
   88  after the first Monday in January of the year following the next
   89  general election occurring at least one year after the date of
   90  appointment, one of not fewer than three persons nor more than
   91  six persons nominated by the appropriate judicial nominating
   92  commission.
   93         (b) The governor shall fill each vacancy on a circuit court
   94  or on a county court, wherein the judges are elected by a
   95  majority vote of the electors, by appointing for a term ending
   96  on the first Tuesday after the first Monday in January of the
   97  year following the next primary and general election occurring
   98  at least one year after the date of appointment, one of not
   99  fewer than three persons nor more than six persons nominated by
  100  the appropriate judicial nominating commission. An election
  101  shall be held to fill that judicial office for the term of the
  102  office beginning at the end of the appointed term.
  103         (c) The nominations shall be made within thirty days from
  104  the occurrence of a vacancy unless the period is extended by the
  105  governor for a time not to exceed thirty days. The governor
  106  shall make the appointment within sixty days after the
  107  nominations have been certified to the governor.
  108         (d)Each appointment of a justice of the supreme court is
  109  subject to confirmation by the senate. The senate may sit for
  110  the purpose of confirmation regardless of whether the house of
  111  representatives is in session or not. If the senate fails to
  112  vote on the appointment of a justice within 90 days, the justice
  113  shall be deemed confirmed. If the senate votes to not confirm
  114  the appointment, the supreme court judicial nominating
  115  commission shall reconvene as though a new vacancy had occurred
  116  but may not renominate any person whose prior appointment to
  117  fill the same vacancy was not confirmed by the senate. The
  118  appointment of a justice is effective upon confirmation by the
  119  senate.
  120         (e)(d) There shall be a separate judicial nominating
  121  commission as provided by general law for the supreme court, one
  122  for each district court of appeal, and one for each judicial
  123  circuit for all trial courts within the circuit. Uniform rules
  124  of procedure shall be established by the judicial nominating
  125  commissions at each level of the court system. Such rules, or
  126  any part thereof, may be repealed by general law enacted by a
  127  majority vote of the membership of each house of the
  128  legislature, or by the supreme court, five justices concurring.
  129  Except for deliberations of the judicial nominating commissions,
  130  the proceedings of the commissions and their records shall be
  131  open to the public.
  132         SECTION 12. Discipline; removal and retirement.—
  133         (a) JUDICIAL QUALIFICATIONS COMMISSION.—A judicial
  134  qualifications commission is created.
  135         (1) There shall be a judicial qualifications commission
  136  vested with jurisdiction to investigate and recommend to the
  137  Supreme Court of Florida the removal from office of any justice
  138  or judge whose conduct, during term of office or otherwise,
  139  occurring on or after November 1, 1966, (without regard to the
  140  effective date of this section) demonstrates a present unfitness
  141  to hold office, and to investigate and recommend the discipline
  142  of a justice or judge whose conduct, during term of office or
  143  otherwise occurring on or after November 1, 1966 (without regard
  144  to the effective date of this section), warrants such
  145  discipline. For purposes of this section, discipline is defined
  146  as any or all of the following: reprimand, fine, suspension with
  147  or without pay, or lawyer discipline. The commission shall have
  148  jurisdiction over justices and judges regarding allegations that
  149  misconduct occurred before or during service as a justice or
  150  judge if a complaint is made no later than one year following
  151  service as a justice or judge. The commission shall have
  152  jurisdiction regarding allegations of incapacity during service
  153  as a justice or judge. The commission shall be composed of:
  154         a. Two judges of district courts of appeal selected by the
  155  judges of those courts, two circuit judges selected by the
  156  judges of the circuit courts and two judges of county courts
  157  selected by the judges of those courts;
  158         b. Four electors who reside in the state, who are members
  159  of the bar of Florida, and who shall be chosen by the governing
  160  body of the bar of Florida; and
  161         c. Five electors who reside in the state, who have never
  162  held judicial office or been members of the bar of Florida, and
  163  who shall be appointed by the governor.
  164         (2) The members of the judicial qualifications commission
  165  shall serve staggered terms, not to exceed six years, as
  166  prescribed by general law. No member of the commission except a
  167  judge shall be eligible for state judicial office while acting
  168  as a member of the commission and for a period of two years
  169  thereafter. No member of the commission shall hold office in a
  170  political party or participate in any campaign for judicial
  171  office or hold public office; provided that a judge may campaign
  172  for judicial office and hold that office. The commission shall
  173  elect one of its members as its chairperson.
  174         (3) Members of the judicial qualifications commission not
  175  subject to impeachment shall be subject to removal from the
  176  commission pursuant to the provisions of Article IV, Section 7,
  177  Florida Constitution.
  178         (4) The commission shall adopt rules regulating its
  179  proceedings, the filling of vacancies by the appointing
  180  authorities, the disqualification of members, the rotation of
  181  members between the panels, and the temporary replacement of
  182  disqualified or incapacitated members. The commission’s rules,
  183  or any part thereof, may be repealed by general law enacted by a
  184  majority vote of the membership of each house of the
  185  legislature, or by the supreme court, five justices concurring.
  186  The commission shall have power to issue subpoenas. Until formal
  187  charges against a justice or judge are filed by the
  188  investigative panel with the clerk of the supreme court of
  189  Florida all proceedings by or before the commission shall be
  190  confidential; provided, however, upon a finding of probable
  191  cause and the filing by the investigative panel with said clerk
  192  of such formal charges against a justice or judge such charges
  193  and all further proceedings before the commission shall be
  194  public.
  195         (5) The commission shall have access to all information
  196  from all executive, legislative and judicial agencies, including
  197  grand juries, subject to the rules of the commission. At any
  198  time, on request of the speaker of the house of representatives
  199  or the governor, the commission shall make available to the
  200  house of representatives all information in the possession of
  201  the commission, which information shall remain confidential
  202  during any investigation and until such information is used in
  203  the pursuit for use in consideration of impeachment or
  204  suspension, respectively.
  205         (b) PANELS.—The commission shall be divided into an
  206  investigative panel and a hearing panel as established by rule
  207  of the commission. The investigative panel is vested with the
  208  jurisdiction to receive or initiate complaints, conduct
  209  investigations, dismiss complaints, and upon a vote of a simple
  210  majority of the panel submit formal charges to the hearing
  211  panel. The hearing panel is vested with the authority to receive
  212  and hear formal charges from the investigative panel and upon a
  213  two-thirds vote of the panel recommend to the supreme court the
  214  removal of a justice or judge or the involuntary retirement of a
  215  justice or judge for any permanent disability that seriously
  216  interferes with the performance of judicial duties. Upon a
  217  simple majority vote of the membership of the hearing panel, the
  218  panel may recommend to the supreme court that the justice or
  219  judge be subject to appropriate discipline.
  220         (c) SUPREME COURT.—The supreme court shall receive
  221  recommendations from the judicial qualifications commission’s
  222  hearing panel.
  223         (1) The supreme court may accept, reject, or modify in
  224  whole or in part the findings, conclusions, and recommendations
  225  of the commission and it may order that the justice or judge be
  226  subjected to appropriate discipline, or be removed from office
  227  with termination of compensation for willful or persistent
  228  failure to perform judicial duties or for other conduct
  229  unbecoming a member of the judiciary demonstrating a present
  230  unfitness to hold office, or be involuntarily retired for any
  231  permanent disability that seriously interferes with the
  232  performance of judicial duties. Malafides, scienter or moral
  233  turpitude on the part of a justice or judge shall not be
  234  required for removal from office of a justice or judge whose
  235  conduct demonstrates a present unfitness to hold office. After
  236  the filing of a formal proceeding and upon request of the
  237  investigative panel, the supreme court may suspend the justice
  238  or judge from office, with or without compensation, pending
  239  final determination of the inquiry.
  240         (2) The supreme court may award costs to the prevailing
  241  party.
  242         (d) REMOVAL POWER.—The power of removal conferred by this
  243  section shall be both alternative and cumulative to the power of
  244  impeachment.
  245         (e) PROCEEDINGS INVOLVING SUPREME COURT JUSTICE.
  246  Notwithstanding any of the foregoing provisions of this section,
  247  if the person who is the subject of proceedings by the judicial
  248  qualifications commission is a justice of the supreme court of
  249  Florida all justices of such court automatically shall be
  250  disqualified to sit as justices of such court with respect to
  251  all proceedings therein concerning such person and the supreme
  252  court for such purposes shall be composed of a panel consisting
  253  of the seven chief judges of the judicial circuits of the state
  254  of Florida most senior in tenure of judicial office as circuit
  255  judge. For purposes of determining seniority of such circuit
  256  judges in the event there be judges of equal tenure in judicial
  257  office as circuit judge the judge or judges from the lower
  258  numbered circuit or circuits shall be deemed senior. In the
  259  event any such chief circuit judge is under investigation by the
  260  judicial qualifications commission or is otherwise disqualified
  261  or unable to serve on the panel, the next most senior chief
  262  circuit judge or judges shall serve in place of such
  263  disqualified or disabled chief circuit judge.
  264         (f) SCHEDULE TO SECTION 12.—
  265         (1) Except to the extent inconsistent with the provisions
  266  of this section, all provisions of law and rules of court in
  267  force on the effective date of this article shall continue in
  268  effect until superseded in the manner authorized by the
  269  constitution.
  270         (2) After this section becomes effective and until adopted
  271  by rule of the commission consistent with it:
  272         a. The commission shall be divided, as determined by the
  273  chairperson, into one investigative panel and one hearing panel
  274  to meet the responsibilities set forth in this section.
  275         b. The investigative panel shall be composed of:
  276         1. Four judges,
  277         2. Two members of the bar of Florida, and
  278         3. Three non-lawyers.
  279         c. The hearing panel shall be composed of:
  280         1. Two judges,
  281         2. Two members of the bar of Florida, and
  282         3. Two non-lawyers.
  283         d. Membership on the panels may rotate in a manner
  284  determined by the rules of the commission provided that no
  285  member shall vote as a member of the investigative and hearing
  286  panel on the same proceeding.
  287         e. The commission shall hire separate staff for each panel.
  288         f. The members of the commission shall serve for staggered
  289  terms of six years.
  290         g. The terms of office of the present members of the
  291  judicial qualifications commission shall expire upon the
  292  effective date of the amendments to this section approved by the
  293  legislature during the regular session of the legislature in
  294  1996 and new members shall be appointed to serve the following
  295  staggered terms:
  296         1. Group I.—The terms of five members, composed of two
  297  electors as set forth in s. 12(a)(1)c. of Article V, one member
  298  of the bar of Florida as set forth in s. 12(a)(1)b. of Article
  299  V, one judge from the district courts of appeal and one circuit
  300  judge as set forth in s. 12(a)(1)a. of Article V, shall expire
  301  on December 31, 1998.
  302         2. Group II.—The terms of five members, composed of one
  303  elector as set forth in s. 12(a)(1)c. of Article V, two members
  304  of the bar of Florida as set forth in s. 12(a)(1)b. of Article
  305  V, one circuit judge and one county judge as set forth in s.
  306  12(a)(1)a. of Article V shall expire on December 31, 2000.
  307         3. Group III.—The terms of five members, composed of two
  308  electors as set forth in s. 12(a)(1)c. of Article V, one member
  309  of the bar of Florida as set forth in s. 12(a)(1)b., one judge
  310  from the district courts of appeal and one county judge as set
  311  forth in s. 12(a)(1)a. of Article V, shall expire on December
  312  31, 2002.
  313         g.h. An appointment to fill a vacancy of the commission
  314  shall be for the remainder of the term.
  315         h.i. Selection of members by district courts of appeal
  316  judges, circuit judges, and county court judges, shall be by no
  317  less than a majority of the members voting at the respective
  318  courts’ conferences. Selection of members by the board of
  319  governors of the bar of Florida shall be by no less than a
  320  majority of the board.
  321         i.j. The commission shall be entitled to recover the costs
  322  of investigation and prosecution, in addition to any penalty
  323  levied by the supreme court.
  324         j.k. The compensation of members and referees shall be the
  325  travel expenses or transportation and per diem allowance as
  326  provided by general law.
  327         SECTION 14. Funding.—
  328         (a) All justices and judges shall be compensated only by
  329  state salaries fixed by general law. Funding for the state
  330  courts system, state attorneys’ offices, public defenders’
  331  offices, and court-appointed counsel, except as otherwise
  332  provided in subsection (c), shall be provided from state
  333  revenues appropriated by general law.
  334         (b) All funding for the offices of the clerks of the
  335  circuit and county courts performing court-related functions,
  336  except as otherwise provided in this subsection and subsection
  337  (c), shall be provided by adequate and appropriate filing fees
  338  for judicial proceedings and service charges and costs for
  339  performing court-related functions as required by general law.
  340  Selected salaries, costs, and expenses of the state courts
  341  system may be funded from appropriate filing fees for judicial
  342  proceedings and service charges and costs for performing court
  343  related functions, as provided by general law. Where the
  344  requirements of either the United States Constitution or the
  345  Constitution of the State of Florida preclude the imposition of
  346  filing fees for judicial proceedings and service charges and
  347  costs for performing court-related functions sufficient to fund
  348  the court-related functions of the offices of the clerks of the
  349  circuit and county courts, the state shall provide, as
  350  determined by the legislature, adequate and appropriate
  351  supplemental funding from state revenues appropriated by general
  352  law.
  353         (c) No county or municipality, except as provided in this
  354  subsection, shall be required to provide any funding for the
  355  state courts system, state attorneys’ offices, public defenders’
  356  offices, court-appointed counsel or the offices of the clerks of
  357  the circuit and county courts performing court-related
  358  functions. Counties shall be required to fund the cost of
  359  communications services, existing radio systems, existing multi
  360  agency criminal justice information systems, and the cost of
  361  construction or lease, maintenance, utilities, and security of
  362  facilities for the trial courts, public defenders’ offices,
  363  state attorneys’ offices, and the offices of the clerks of the
  364  circuit and county courts performing court-related functions.
  365  Counties shall also pay reasonable and necessary salaries,
  366  costs, and expenses of the state courts system to meet local
  367  requirements as determined by general law.
  368         (d) The judiciary shall have no power to fix
  369  appropriations.
  370         BE IT FURTHER RESOLVED that the following statement be
  371  placed on the ballot:
  372                      CONSTITUTIONAL AMENDMENT                     
  373              ARTICLE V, SECTIONS 2, 4, 11, 12, AND 14             
  374         STATE COURTS.—Proposing a revision of Article V of the
  375  State Constitution relating to the judiciary.
  376         Under current law, the Governor appoints a justice from a
  377  list of nominees provided by a judicial nominating commission,
  378  and appointments by the Governor are not subject to
  379  confirmation. This revision requires Senate confirmation of a
  380  justice before the appointee can take office. If the Senate
  381  votes not to confirm the appointment, the judicial nominating
  382  commission must reconvene and may not renominate any person
  383  whose prior appointment to fill the same vacancy was not
  384  confirmed by the Senate. For the purpose of confirmation, the
  385  Senate may meet at any time. If the Senate does not vote against
  386  confirmation within 90 days, the justice will be deemed
  387  confirmed and will take office.
  388         The State Constitution authorizes the Supreme Court to
  389  adopt rules for the practice and procedure in all courts. The
  390  constitution further provides that a rule of court may be
  391  repealed by a general law enacted by a two-thirds vote of the
  392  membership of each house of the Legislature. This proposed
  393  constitutional revision eliminates the requirement that a
  394  general law repealing a court rule pass by a two-thirds vote of
  395  each house. The Legislature could repeal a rule of court by a
  396  general law approved by a majority vote of each house of the
  397  Legislature that expresses the policy behind the repeal. The
  398  court could readopt the rule in conformity with the public
  399  policy expressed by the Legislature, but if the Legislature
  400  repeals the readopted rule, this proposed revision prohibits the
  401  court from readopting the repealed rule without the
  402  Legislature’s prior approval.
  403         The Judicial Qualifications Commission is an independent
  404  commission created by the State Constitution to investigate and
  405  prosecute before the Florida Supreme Court alleged misconduct by
  406  a justice or judge. Currently under the constitution, commission
  407  proceedings are confidential until formal charges are filed by
  408  the investigative panel of the commission. Once formal charges
  409  are filed, the formal charges and all further proceedings of the
  410  commission are public. Currently, the constitution authorizes
  411  the House of Representatives to impeach a justice or judge.
  412  Further, the Speaker of the House of Representatives may
  413  request, and the Judicial Qualifications Commission must make
  414  available, all information in the commission’s possession for
  415  use in deciding whether to impeach a justice or judge. This
  416  proposed revision requires the commission to make all of its
  417  files available to the Speaker of the House of Representatives,
  418  rather than just the file of a justice or judge under
  419  investigation by the House of Representatives. Such files would
  420  maintain their confidentiality unless the House of
  421  Representatives initiates impeachment proceedings against a
  422  justice or judge, in which case the files related to that
  423  justice or judge may be open. This revision deletes a
  424  requirement that a general law repealing a commission rule be
  425  passed by a majority vote of the membership of each house of the
  426  Legislature and revises the number of Supreme Court justices
  427  needed to repeal such a rule.
  428         This revision will take effect January 7, 2013, if approved
  429  by the electors. This revision makes other conforming and
  430  modernizing changes to the State Constitution regarding the
  431  judicial system; removing outdated schedules related to the
  432  Judicial Qualifications Commission; and making conforming and
  433  technical changes in the judicial articles of the constitution.
  434  
  435         BE IT FURTHER RESOLVED that the following statement be
  436  placed on the ballot if a court declares the preceding statement
  437  defective and the decision of the court is not reversed:
  438                      CONSTITUTIONAL AMENDMENT                     
  439              ARTICLE V, SECTIONS 2, 4, 11, 12, AND 14             
  440         JUDICIARY.—Proposing a revision of the Judiciary Article of
  441  the Florida Constitution; requiring Senate confirmation for
  442  appointment of a Supreme Court justice; providing standards and
  443  procedures for legislative repeal of a court rule; allowing
  444  legislative review of confidential files of the Judicial
  445  Qualifications Commission; and making other ancillary
  446  amendments, including, but not limited to, technical and
  447  conforming amendments.
  448  
  449         BE IT FURTHER RESOLVED that the following statement be
  450  placed on the ballot if a court declares the preceding
  451  statements defective and the decision of the court is not
  452  reversed:
  453                      CONSTITUTIONAL AMENDMENT                     
  454              ARTICLE V, SECTIONS 2, 4, 11, 12, AND 14             
  455         STATE COURTS.—Proposing a revision to Article V of the
  456  State Constitution relating to the judiciary; changing the
  457  authority of the Legislature to repeal a court rule by 2/3 vote
  458  of the membership of each house to a simple majority of each
  459  house; limiting the Supreme Court’s ability to readopt a rule
  460  repealed by the Legislature; requiring Senate confirmation
  461  before a justice may take office; providing that if the Senate
  462  does not act within 90 days the nominee is deemed confirmed as a
  463  justice; allowing the Senate to meet outside of regular session
  464  without having the House of Representatives convene at the same
  465  time; deleting outdated references; requiring the Judicial
  466  Qualifications Commission to provide the House of
  467  Representatives access to records; providing for confidentiality
  468  of records.
  469  
  470  ================= T I T L E  A M E N D M E N T ================
  471         And the title is amended as follows:
  472         Delete everything before the resolving clause
  473  and insert:
  474                        A bill to be entitled                      
  475         A joint resolution proposing a revision of Article V
  476         of the State Constitution, relating to the judiciary,
  477         consisting of amendments to Sections 2, 4, 11, 12, and
  478         14 of Article V of the State Constitution; revising
  479         provisions relating to repeal of court rules; limiting
  480         readoption of a repealed court rule; providing for
  481         Senate confirmation of Supreme Court justices;
  482         requiring the Judicial Qualifications Commission to
  483         make all of its files available to the Speaker of the
  484         House of Representatives; revising provisions relating
  485         to repeal of commission rules; making other conforming
  486         and modernizing changes to the State Constitution
  487         regarding the judicial system; providing an effective
  488         date.