Johnson v. Mortham

• Decision Date: 07 February 1996
• Docket Number: No. TCA 94-40025-MMP.,TCA 94-40025-MMP.
• Citation: 915 F. Supp. 1574
• Parties: Andrew E. JOHNSON, et al., Plaintiffs, v. Sandra MORTHAM, etc., et al., Defendants.
• Court: U.S. District Court — Northern District of Florida

915 F. Supp. 1574

Andrew E. JOHNSON, et al., Plaintiffs, v. Sandra MORTHAM, etc., et al., Defendants.

No. TCA 94-40025-MMP.

United States District Court, N.D. Florida, Tallahassee Division.

February 7, 1996.

Gerald J. Sullivan, Jr., Sullivan & Boyd, Jacksonville, FL, for plaintiffs.

Stephen N. Zack, Pro Hac Vice, Miami, FL, Brenda Wright, Pro Hac Vice, Jackqueline A. Berrien, Pro Hac Vice, Lawyers Committee for Civil Rights under Law, Washington, DC, Gerald B. Curington, General Counsel, House of Representatives, Tallahassee, FL, for Pat Thomas.

Richard A. Hixson, Tallahassee, FL, Thomas R. Tedcastle, Florida House of Representatives, Tallahassee, FL, Stephen N. Zack, Pro Hac Vice, Miami, FL, Brenda Wright, Pro Hac Vice, Jackqueline A. Berrien, Pro Hac Vice, Lawyers Committee for Civil Rights under Law, Washington, DC, Gerald B. Curington, B. Elaine New, General Counsel, House of Representatives, Tallahassee, FL, for Bolley L. Johnson.

George L. Waas, Attorney General's Office, Department of Legal Affairs, Tallahassee, FL, David Alan Tepper, Department of State, Office of the General Counsel, Tallahassee, FL, for Sandra Mortham.

Brenda Wright, Pro Hac Vice, Todd A. Cox, Pro Hac Vice, Lawyers Committee for Civil Rights under Law, Washington, DC, for Frank Cummings.

Brenda Wright, Pro Hac Vice, Lawyers Committee for Civil Rights under Law, Washington, DC, for Samuel L. Green, Sr., Leonard O'Neal, Glynell Presley, and Mary Lawson Brown.

Rodney G. Gregory, Jacksonville, FL, J. Gerald Hebert, Pro Hac Vice, Alexandria, VA, for Corrine Brown.

Charles G. Burr, Tampa, FL, for Florida State Conference of NAACP Branches.

Before HATCHETT, Circuit Judge, PAUL, Chief District Judge, and VINSON, District Judge.

ORDER

PAUL, Chief Judge:

On January 12, 1996, the Court ordered the parties in this cause to fully brief the status of the burden of proof in the strict scrutiny context (Doc. 117). The following parties filed briefs on the issue: Plaintiffs (Doc. 122); Defendant-Intervenors Cummings and Brown (Doc. 123); Defendant-Intervenor United States (Doc. 125); Defendant Mortham (Doc. 126); and Defendant-Intervenor NAACP (Doc. 128). Not surprisingly, Plaintiffs argue that since they have proven that Florida's Third Congressional District was drawn primarily for race-conscious reasons, Defendants and Defendant-Intervenors bear the burden of proving that the Third District passes strict scrutiny. On the other hand, Defendants and Defendant-Intervenors argue that Plaintiffs bear the ultimate burden of proof on all issues, and that Defendants' burden at the strict scrutiny stage is one of production only.

DISCUSSION:

The Supreme Court recently addressed the distinction between the burden of persuasion and the burden of production. The burden of persuasion, also known as the burden of proof, is "the notion that if the evidence is evenly balanced, the party that bears the burden of persuasion must lose." Director, Office of Workers' Compensation Programs, Dep't of Labor v. Greenwich Collieries, ___ U.S. ___, ___ - ___, 114 S.Ct. 2251, 2255-56, 129 L.Ed.2d 221, 228-29 (1994). In contrast, the burden of production is "a party's obligation to come forward with evidence to support its claim." Id.; see also United States v. Hollis, 569 F.2d 199, 204 n. 6 (3d Cir.1977) ("The burden of persuasion includes the burden of establishing before a fact-finder that a given proposition is correct. The burden of production deals with the burden of coming forward with enough evidence to raise a genuine issue of fact."). "The distinction is now very generally accepted, although often blurred by careless speech." Greenwich, supra, ___ U.S. at ___, 114 S.Ct. at 2256, 129 L.Ed.2d at 229. (quoting Hill v. Smith, 260 U.S. 592, 594, 43 S.Ct. 219, 220, 67 L.Ed. 419, 422 (1923)). This appears to be an occasion when the parties have blurred the distinctions between these burdens.

There has been a great deal of confusion among the parties about the appropriate trial burdens in this cause. The parties have had difficulty in reconciling what seem to be two competing black letter rules: first, that plaintiffs ordinarily bear the burden of proving all the essential elements of their prima facie cases; and second, that when strict scrutiny applies, the government defendants bear the burden of demonstrating that the challenged government action is narrowly tailored to further a compelling governmental interest. The Court will clarify this matter, as discussed below.

The Supreme Court has repeatedly held that once a plaintiff establishes that governmental action was based on a suspect classification, the government bears the burden of demonstrating that the classification is narrowly drawn to achieve a compelling governmental interest. E.g., Miller v. Johnson, ___ U.S. ___, ___, 115 S.Ct. 2475, 2490, 132 L.Ed.2d 762, 782 (1995) ("To satisfy strict scrutiny, the State must demonstrate that its districting legislation is narrowly tailored to achieve a compelling governmental interest.") (emphasis supplied); Adarand Constructors, Inc. v. Pena, ___ U.S. ___, ___, 115 S.Ct. 2097, 2110, 132 L.Ed.2d 158, 180 (1995) ("Any person, of whatever race, has the right to demand than any governmental actor justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny.") (emphasis supplied); Bernal v. Fainter, 467 U.S. 216, 227, 104 S.Ct. 2312, 2319, 81 L.Ed.2d 175, 184 (1984) ("To satisfy strict scrutiny, the State must show that the challenged law furthers a compelling state interest by the least restrictive means practically available.") (emphasis supplied); Plyler v. Doe, 457 U.S. 202, 217, 102 S.Ct. 2382, 2395, 72 L.Ed.2d 786, 799 (1982) ("With respect to suspect classification, it is appropriate to enforce the mandate of equal protection by requiring the State to demonstrate that its classification has precisely tailored to serve a compelling governmental interest.") (emphasis supplied); University of California Regents v. Bakke, 438 U.S. 265, 305, 98 S.Ct. 2733, 2756, 57 L.Ed.2d 750, 781 (1978) ("We have held that in order to justify the use of a suspect classification, a State must show that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary to the accomplishment of its purpose or the safeguarding of its interests.") (emphasis supplied) (citations omitted); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 16-17, 93 S.Ct. 1278, 1287-88, 36 L.Ed.2d 16, 32-33 (1973) ("Strict scrutiny means that the State's system is not entitled to the usual presumption of validity, that the State rather than the complainants must carry a `heavy burden of justification,' that the State must demonstrate that its racial classification has been structured with `precision,' and is `tailored' narrowly to serve legitimate objectives and that it has selected the `less drastic means' for effectuating its objectives.") (emphasis supplied); Dunn v. Blumstein, 405 U.S. 330, 342-43, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274, 284 (1972) ("In sum, the laws must be measured by a strict equal protection test: they are unconstitutional unless the State can demonstrate that such laws are `necessary to promote a compelling governmental interest.' ... A heavy burden of justification is on the State.") (emphasis supplied) (quoting Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600, 615 (1969)); see also Duke v. Cleland, 954 F.2d 1526, 1529 (11th Cir.1992) ("If the challenged law burdens a fundamental constitutional right, then the law can survive only if the State demonstrates that the law advances a compelling interest and is narrowly tailored to meet that interest.") (emphasis supplied); Stiles v. Blunt, 912 F.2d 260, 263 (8th Cir.1990) ("The strict scrutiny test requires the government to prove that it has a compelling interest in the classification it has selected.") (emphasis supplied), cert. denied, 499 U.S. 919, 111 S.Ct. 1307, 113 L.Ed.2d 241 (1991).

Likewise, even when the challenged governmental action is evaluated under the less stringent "intermediate scrutiny" test, the Supreme Court has held that the government is required to demonstrate that its actions are substantially related to an important governmental objective. E.g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090, 1098 (1982) ("The party seeking to uphold a statute that classifies individuals on the basis of their gender must carry the burden of showing an `exceeding persuasive justification' for the classification."); Kirchberg v. Feenstra, 450 U.S. 455, 461, 101 S.Ct. 1195, 1199, 67 L.Ed.2d 428, 434 (1981) (same); Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 151, 100 S.Ct. 1540, 1545, 64 L.Ed.2d 107, 115 (1980) ("The burden ... is on those defending the discrimination to make out the claimed justification.").

Moreover, when applying the strict-scrutiny test in other areas of constitutional law, the Supreme Court has consistently required the government to demonstrate that the challenged actions are narrowly tailored to a compelling governmental interest. E.g. Burson v. Freeman, 504 U.S. 191, 199, 112 S.Ct. 1846, 1852, 119 L.Ed.2d 5, 15 (1992) ("To survive strict scrutiny ... a State must do more than assert a compelling state interest, it must demonstrate that its law is necessary to serve the asserted interest.") (emphasis supplied); Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 222, 109 S.Ct. 1013, 1019, 103 L.Ed.2d 271, 281 (1989) ("If the challenged law burdens the rights of political parties and their members, it can survive constitutional scrutiny only if the State shows that it advances a compelling state interest.") (emphasis supplied); Employment Division, Dep't of Human Resources of Oregon v. Smith, 494 U.S. 872, 899, 110 S.Ct. 1595, 1611, 108 L.Ed.2d 876, 899 (1990) ("Once it has...