Fla. House of Representatives v. Romo

• Decision Date: 22 May 2013
• Docket Number: No. 1D12–5280.,1D12–5280.
• Citation: 113 So.3d 117
• Parties: The FLORIDA HOUSE OF REPRESENTATIVES; Will Weatherford, in his capacity as Speaker of the Florida House of Representatives; The Florida Senate; and Don Gaetz, in his capacity as President of the Florida Senate, Petitioners, v. Rene ROMO; Benjamin Weaver; William Everett Warinner; Jessica Barrett; June Keener; Richard Quinn Boylan; Bonita Agan; The League of Women Voters of Florida; The National Council of La Raza; Common Cause Florida; Robert Allen Schaeffer; Brenda Ann Holt; Roland Sanchez–Medina, Jr.; John Steele Olmstead; Florida State Conference of Naacp Branches; Bill Negron; Anthony Suarez; Luis Rodriguez; Father Nelson Pinder; N.Y. Nathiri; Mayor Bruce B. Mount; Pastor Willie Barnes; Mable Butler; Judith A. Wise; Ken Detzner, in his official capacity as Florida Secretary of State; and Pam Bondi, in her capacity as Florida Attorney General, Respondents.
• Court: Florida District Court of Appeals

113 So.3d 117

The FLORIDA HOUSE OF REPRESENTATIVES; Will Weatherford, in his capacity as Speaker of the Florida House of Representatives; The Florida Senate; and Don Gaetz, in his capacity as President of the Florida Senate, Petitioners,

v.Rene ROMO; Benjamin Weaver; William Everett Warinner; Jessica Barrett; June Keener; Richard Quinn Boylan; Bonita Agan; The League of Women Voters of Florida; The National Council of La Raza; Common Cause Florida; Robert Allen Schaeffer; Brenda Ann Holt; Roland Sanchez–Medina, Jr.; John Steele Olmstead; Florida State Conference of Naacp Branches; Bill Negron; Anthony Suarez; Luis Rodriguez; Father Nelson Pinder; N.Y. Nathiri; Mayor Bruce B. Mount; Pastor Willie Barnes; Mable Butler; Judith A. Wise; Ken Detzner, in his official capacity as Florida Secretary of State; and Pam Bondi, in her capacity as Florida Attorney General, Respondents.

No. 1D12–5280.

District Court of Appeal of Florida, First District.

May 22, 2013.

Charles T. Wells, George N. Meros, Jr.Jason L. Unger, and Andy Bardos of Gray Robinson, P.A., Tallahassee; Miguel A. De Grandy of Miguel De Grandy, P.A., Coral Gables; Daniel E. Nordby, General Counsel, Tallahassee, for Petitioners The Florida House of Representatives and House Speaker Will Weatherford.

Raoul G. Cantero, Jason N. Zakia and Jesse L. Green of White & Case LLP, Miami; George T. Levesque, General Counsel, and Leah L. Marino, Deputy General Counsel, Tallahassee, for Petitioners

The Florida Senate and Senate President Don Gaetz.

Mark Herron, Robert J. Telfer III, and Angelina Perez of Messer, Caparello & Self, P.A., Tallahassee; Marc Elias, Kevin J. Hamilton, and John Devaney, pro hac vice, of Perkins Coie LLP, Washington, D.C., for Respondents Rene Romo, Benjamin Weaver, William Everett Warinner, Jessica Barrett, June Keener, Richard Quinn Boylan, and Bonita Agan.

Gerald E. Greenberg and Adam M. Schachter of Gelber Schachter & Greenberg, P.A., Miami, for Respondents The League of Women Voters of Florida, the National Council of La Raza, Common Cause Florida, Robert Allen Schaeffer, Brenda Ann Holt, Roland Sanchez–Medina, Jr., and John Steele Olmstead.

Daniel E. Nordby, General Counsel, and Ashley E. Davis, Assistant General Counsel, Tallahassee, for Respondent Secretary of State Ken Detzner.

WETHERELL, J.

The Florida House of Representatives, the Florida Senate, and their respective presiding officers (hereafter “the Legislature”) petition for certiorari review of an order that 1) permits Respondents ¹ to depose legislators and legislative staff members regarding the Congressional reapportionment process and 2) requires production of draft reapportionment maps and supporting documents for an in camera review. The Legislature contends that the order departs from the essential requirements of law because it permits discovery of information protected by the legislative privilege recognized by this Court in Florida House of Representatives v. Expedia, Inc., 85 So.3d 517 (Fla. 1st DCA 2012). We agree and therefore quash the challenged order.

I

On February 9, 2012, the Legislature passed Committee Substitute for Senate Bill 1174 (CS/SB 1174), which established new Congressional districts for the State of Florida based on the 2010 Census (hereafter “the Plan”). On that same date, the “Romo Plaintiffs” ² filed a complaint in the Circuit Court for Leon County challenging the constitutionality of the Plan. On February 17, 2012, the day after the Governor signed CS/SB 1174 into law,³ the “Coalition Plaintiffs” ⁴ filed a separate complaint challenging the constitutionality of the Plan. The cases were consolidated by the trial court.

The complaints, as amended, allege that the Plan as a whole, and a number of individual districts in the Plan,⁵ violate the standards in article III, section 20 of the Florida Constitution by impermissibly favoring Republicans and incumbents and by diminishing the ability of racial and language minorities to elect representatives of their choice. The complaints seek an order declaring the entire Plan, or alternatively, the specifically-challenged districts, unconstitutional and enjoining any future elections under the Plan.

The standards in article III, section 20 were added to the Florida Constitution in 2010 by an initiative petition commonly referred to as “Amendment 6” or the “Fair Districts Amendment.” See generally Advisory Op. to Att'y Gen. re Standards for Establishing Legislative Dist. Boundaries, 2 So.3d 175 (Fla.2009) (hereafter “Advisory Op. re Legislative Boundaries ”); Brown v. Sec'y of State, 668 F.3d 1271 (11th Cir.2012). In approving the placement of Amendment 6 on the ballot, the Florida Supreme Court explained that the “overall goal” of the amendment was “[t]o require the Legislature to redistrict in a manner that prohibits favoritism or discrimination, while respecting geographic considerations.” Advisory Op. re Legislative Boundaries, 2 So.3d at 181. Most pertinent to the issue framed by the petition in this case are the standards in article III, section 20(a), which provides in pertinent part that:

No apportionment plan or individual district shall be drawn with the intent to favor or disfavor a political party or an incumbent; and districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect representatives of their choice;....

Art. III, § 20(a), Fla. Const. (emphasis added); see also In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So.3d 597, 617 (Fla.2012) (hereafter “In re Apportionment Law—March 2012 ”) (explaining that the identical language in article III, section 21(a) of the Florida Constitution that governs the drawing of state legislative districts “prohibits intent, not effect”).

In an effort to obtain evidence of the intent underlying the Plan, Respondents served a notice of taking depositions of the Senate Majority Leader, an administrative assistant to the Senate Reapportionment Committee, and the staff director of the House Redistricting Committee. The Legislature filed a motion for a protective order seeking to prevent these depositions and, more broadly, to prohibit the deposition of any legislator or legislative staff member based on legislative privilege. The motion also sought to preclude the discovery of unfiled draft reapportionment maps and any related supporting documents based on legislative privilege and the public records exemption in section 11.0431(2)(e), Florida Statutes (2012).

The trial court granted the Legislature's motion for protective order in part and denied it in part. The court acknowledged the holding in Expedia, but reasoned that the legislative privilege “must bend somewhat” in this case because of the “compelling, competing government interest” embodied in article III, section 20 requiring “the motive or intent of legislators in drafting the reapportionment plan” to be considered in determining the validity of the plan. The court then distinguished between what it characterized as “subjective”and “objective” information—a distinction the court acknowledged “may be difficult to determine in some instances”—and concluded that only the “subjective thought process of legislators and the confidential communication between them and between legislators and their staff” warranted the full protection of the legislative privilege in this case. Accordingly, the court authorized Respondents to “depose legislators or staff, notwithstanding an assertion of legislative privilege, regarding ‘objective’ information or communication which does not encroach into [their ‘subjective’] thoughts or impressions.”

The trial court determined that this subjective/objective dichotomy also applied to the draft maps and supporting documents the Legislature sought to protect from discovery based on the legislative privilege and section 11.0431(2)(e). However, the court explained that it was not in a position to determine precisely how the public records exemption in that statute applied to the draft maps and supporting documents without additional information “as to their nature and how they compare or contrast with the plan ultimately adopted.” Accordingly, the court directed the Legislature to “produce all documents requested which do not contain ‘subjective’ information [and] to schedule an in camera review as to any disputed documents.”

The Legislature timely filed a petition for writ of certiorari with this Court seeking review of the trial court's order.

II

A

Certiorari is the appropriate remedy, in limited circumstances, to review a non-final order that is not appealable under Florida Rule of Appellate Procedure 9.130. See Bd. of Trs. of Internal Improvement Trust Fund v. Am. Educ. Enters., LLC, 99 So.3d 450, 454 (Fla.2012). To obtain review by certiorari, the petitioner must establish that the challenged order [1] departs from the essential requirements of law [2] resulting in material injury for the remainder of the case [3] that cannot be corrected on appeal. Id. The latter two elements are jurisdictional and must be considered first. Id. at 454–55.

“Certiorari jurisdiction does not lie to review every erroneous discovery order.” Id. at 456 (quoting Katzman v. Rediron Fabrication, Inc., 76 So.3d 1060, 1062 (Fla. 4th DCA 2011)); see also Martin–Johnson, Inc. v. Savage, 509 So.2d 1097, 1100 (Fla.1987) (noting that “not every erroneous discovery order creates certiorari jurisdiction in an appellate court”) (emphasis in original). However, when the order permits discovery into privileged matters, the resulting harm cannot be remedied on appeal and it is therefore appropriate for the appellate court to exercise its certiorari jurisdiction to review the order. See Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995) (explaining that “certain kinds of information ‘may reasonably cause material injury of an...