League of Women Voters of Fla. v. Fla. House of Representatives

• Decision Date: 13 December 2013
• Docket Number: SC13–951.,Nos. SC13–949,s. SC13–949
• Citation: 132 So.3d 135
• Parties: The LEAGUE OF WOMEN VOTERS OF FLORIDA, et al., Petitioners, v. The FLORIDA HOUSE OF REPRESENTATIVES, et al., Respondents. Rene Romo, et al., Petitioners, v. The Florida House of Representatives, et al., Respondents.
• Court: Florida Supreme Court

132 So.3d 135

The LEAGUE OF WOMEN VOTERS OF FLORIDA, et al., Petitioners,

v.The FLORIDA HOUSE OF REPRESENTATIVES, et al., Respondents.

Rene Romo, et al., Petitioners,

v.The Florida House of Representatives, et al., Respondents.

Nos. SC13–949, SC13–951.

Supreme Court of Florida.

Dec. 13, 2013.

Talbot D'Alemberte of D'Alemberte & Palmer, PLLC, Tallahassee, FL; Adam M. Schachter and Gerald E. Greenberg of Gelber Schachter & Greenberg, P.A., Miami, FL; David B. King and Thomas A. Zehnder of King, Blackwell, Zehnder & Wermuth, P.A., Orlando, FL; Mark Herron, Robert J. Telfer III and Angelina Perez of Messer Caparello P.A., Tallahassee, FL; and Marc Elias and John Devaney of Perkins Coie LLP, Washington, D.C., for Petitioners.

Raoul G. Cantero, Jason N. Zakia, and Jesse L. Green of White & Case LLP, Miami, FL; George T. Levesque, General Counsel, The Florida Senate, Tallahassee, FL; Charles T. Wells, George N. Meros, Jr., Jason L. Unger, and Andy Bardos of Gray Robinson, P.A., Tallahassee, FL; Miguel A. DeGrandy of Holland & Knight LLP, Miami, FL; and Daniel E. Nordby, General Counsel, The Florida House of Representatives, Tallahassee, FL; J. Andrew Atkinson, General Counsel, and Ashley E. Davis, Assistant General Counsel, Florida Department of State, Tallahassee, FL, for Respondents.

Daniel J. Gerber of Rumberger, Kirk & Caldwell, Orlando, FL, for Amici Curiae James Harold Thompson, John M. McKay, and Ken Pruitt.

PARIENTE, J.

Does enforcement of the explicit prohibition in the Florida Constitution against partisan political gerrymandering and improper discriminatory intent in redistricting outweigh a claim of an absolute legislative privilege? Specifically, the issue presented to the Court is whether Florida state legislators and legislative staff members have an absolute privilege against testifying as to issues directly relevant to whether the Legislature drew the 2012 congressional apportionment plan with unconstitutional partisan or discriminatory “intent.” Seeart. III, § 20(a), Fla. Const.

This Court is charged with the solemn obligation to ensure that the constitutional rights of its citizens are not violated and that the explicit constitutional mandate to outlaw partisan political gerrymandering and improper discriminatory intent in redistricting is effectively enforced. While the Legislature asserts that the challengers should be precluded from accessing relevant discovery information because it is absolutely privileged, we conclude that there is no unbending right for legislators and legislative staff members to hide behind a broad assertion of legislative privilege to prevent the discovery of relevant evidence necessary to vindicate the explicit state constitutional prohibition against unconstitutional partisan political gerrymandering and improper discriminatory intent.

This Court has held, in interpreting the constitutional redistricting “intent” standard, that “the focus of the analysis must be on both direct and circumstantial evidence of intent.” In re Senate Joint Resolution of Legislative Apportionment 1176 (Apportionment I), 83 So.3d 597, 617 (Fla.2012). Further, this Court has stated that “there is no acceptable level of improper intent.” Id. As Chief Judge Benton aptly observed in his dissenting opinion to the First District Court of Appeal's decision below, “[t]he enactment of article III, section 20 of the Florida Constitution makes plain that how and why the Legislature redistricts is a matter of paramount public concern.” Fla. House of Reps. v. Romo, 113 So.3d 117, 131 (Fla. 1st DCA 2013) (Benton, C.J., dissenting).

In this opinion, we decide for the first time that Florida should recognize a legislative privilege founded on the constitutional principle of separation of powers, thus rejecting the challengers' assertion that there is no legislative privilege in Florida. We also hold, however, that this privilege is not absolute where, as in this case, the purposes underlying the privilege are outweighed by the compelling, competing interest of effectuating the explicit constitutional mandate that prohibits partisan political gerrymandering and improper discriminatory intent in redistricting. We therefore reject the Legislature's argument that requiring the testimony of individual legislators and legislative staff members will have a “chilling effect” among legislators in discussion and participation in the reapportionment process, as this type of “chilling effect” was the precise purpose of the constitutional amendment outlawing partisan political gerrymandering and improper discriminatory intent.

We also unequivocally reject the dissent's hyperbolic assertion that our decision “grievously violates the constitutional separation of powers,” dissenting op. at 156, by recognizing a legislative privilege but concluding that it is not absolute as to enforcing this explicit constitutional mandate. To the contrary, we strike the appropriate balance between respecting the separation of powers and fulfilling this Court's obligation to uphold the citizens' explicit constitutional protection against partisan political gerrymandering and improper discriminatory intent in redistricting.

Accordingly, we quash the First District's decision in Florida House of Representatives v. Romo, 113 So.3d 117 (Fla. 1st DCA 2013), which erroneously afforded legislators and legislative staff members the absolute protection of a legislative privilege. We approve the circuit court's order permitting the discovery of information and communications, including the testimony of legislators and the discovery of draft apportionment plans and supporting documents, pertaining to the constitutional validity of the challenged apportionment plan. Further, we emphasize that the circuit court is not constrained by this opinion from considering, as discovery proceeds, how a specific piece of information protected by the privilege fits into the balancing approach set forth in this opinion.

FACTS AND BACKGROUND

In February 2012, the Florida Legislature approved the decennial plan apportioning Florida's twenty-seven congressional districts, based on population data derived from the 2010 United States Census. Soon after its adoption, two separate groups of plaintiffs filed civil complaints in circuit court, which were later consolidated, challenging the constitutionality of the plan under new state constitutional redistricting standards approved by the Florida voters in 2010 and now enumerated in article III, section 20, of the Florida Constitution. Those standards, governing the congressional reapportionment process, appeared on the 2010 general election ballot as “Amendment 6” and, together with their identical counterparts that apply to legislative reapportionment (“Amendment 5”), were generally referred to as the “Fair Districts” amendments.¹ All together, these “express new standards imposed by the voters clearly act as a restraint on legislative discretion in drawing apportionment plans.” Apportionment I, 83 So.3d at 599.

The Florida Constitution's Redistricting Standards

Article III, section 20, of the Florida Constitution prohibits the Legislature from drawing an apportionment plan or individual district “with the intent to favor or disfavor a political party or an incumbent” and “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. Specifically, this constitutional provision provides in its entirety as follows:

In establishing congressional district boundaries:

(a) 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; and districts shall consist of contiguous territory.

(b) Unless compliance with the standards in this subsection conflicts with the standards in subsection (a) or with federal law, districts shall be as nearly equal in population as is practicable; districts shall be compact; and districts shall, where feasible, utilize existing political and geographical boundaries.

(c) The order in which the standards within subsections (a) and (b) of this section are set forth shall not be read to establish any priority of one standard over the other within that subsection.

Art. III, § 20, Fla. Const.

In interpreting the identical standards in article III, section 21, ² during its initial 2012 review of the legislative apportionment plan, this Court explained that the requirement that “[n]o apportionment plan or district shall be drawn with the intent to favor or disfavor a political party or an incumbent” is “a top priority to which the Legislature must conform during the redistricting process.” Apportionment I, 83 So.3d at 615. This Court stated that “by its express terms, Florida's constitutional provision prohibits intent, not effect, and applies to both the apportionment plan as a whole and to each district individually.” Id. at 617.

Because “redistricting will inherently have political consequences,” this Court explained that “the focus of the analysis must be on both direct and circumstantial evidence of intent.” Id. In reviewing the objective evidence before it, this Court held that “the effects of the plan, the shape of district lines, and the demographics of an area are all factors that serve as objective indicators of intent.” Id. Moreover, as to the intent to favor or disfavor an incumbent, this Court stated that “the inquiry focuses on whether the plan or district was drawn with this purpose in mind,” and as to objective indicators of intent to favor or disfavor a political party, these ...