APPENDIX TO PETITION FOR WRIT OF …redistricting.lls.edu/files/FL romo 20121031 cert app.pdfMIAMI...

MIAMI 958793 (2K)

IN THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, STATE OF FLORIDA

OCTOBER 31, 2012

THE FLORIDA HOUSE OF REPRESENTATIVES, et al., Petitioners, Case No. vs. L.T. Case Nos. 37 2012 CA 000412 37 2012 CA 000490 RENE ROMO, et al., Respondents. _____________________________/

APPENDIX TO PETITION FOR WRIT OF CERTIORARI TO

THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT _______________________________________________________

Raoul G. Cantero Florida Bar No. 552356 Jason N. Zakia Florida Bar No. 698121 Jesse L. Green Florida Bar No. 95591 White & Case LLP Southeast Financial Center 200 South Biscayne Boulevard, Suite 4900 Miami, Florida 33131-2352 Telephone: 305-371-2700 Facsimile: 305-358-5744 Email: [email protected] Email: [email protected] Email: [email protected]

Charles T. Wells Florida Bar No. 086265 George N. Meros, Jr. Florida Bar No. 263321 Jason L. Unger Florida Bar No. 0991562 Allen Winsor Florida Bar No. 016295 GrayRobinson, P.A. Post Office Box 11189 Tallahassee, Florida 32302 Telephone: 850-577-9090 Facsimile: 850-577-3311 Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected]

Florida House of Representatives, et al. v. Romo, et al. Appendix to Petition for Writ of Certiorari

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Leah L. Marino Florida Bar No. 309140 Deputy General Counsel The Florida Senate Ste. 409, The Capitol 404 South Monroe Street Tallahassee, FL 32399-1100 Telephone: 850-487-5229 Facsimile: 850-487-5087 Email: [email protected] Attorneys for the Florida Senate and President Mike Haridopolos

Miguel De Grandy Florida Bar No. 332331 800 Douglas Road, Suite 850 Coral Gables, Florida 33134 Telephone: 305-444-7737 Facsimile: 305-443-2616 Email : [email protected] George T. Levesque Florida Bar No. 55541 General Counsel, Fla. House of Rep. 422 The Capitol Tallahassee, Florida 32399-1300 Telephone: 850-410-0451 Email: [email protected]

Attorneys for the Florida House of Representatives and Speaker Dean Cannon


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TABLE OF CONTENTS

Tab Document Pages

1. Order Granting in Part and Denying in Part Motion for Protective Order dated Oct. 3, 2012

A. 1 – A. 10

2. Romo Plaintiffs’ Second Amended Complaint dated April 3, 2012

A. 11 – A. 28

3. Coalition Plaintiffs’ First Amended Complaint for Declaratory and Injunctive Relief dated April 3, 2012

A. 29 – A. 57

4. Notice of Taking Depositions dated July 11, 2012 A. 58 – A. 62

5. Legislative Defendants’ Motion for Protective Order Based on Legislative Privilege dated July 12, 2012

A. 63 – A. 87

6. Legislative Defendants’ Notice of Supplemental Authority in Support of Their Motion for Protective Order Based on Legislative Privilege dated August 15, 2012

A. 88 – A. 101

7. Romo Plaintiffs’ Opposition to Legislative Defendants’ Motion for Protective Order Based on Legislative Privilege dated August 28, 2012

A. 102 – A. 150

8. Coalition Plaintiffs’ Opposition to Legislative Defendants’ Motion for Protective Order Based on Legislative Privilege dated August 28, 2012

A. 151 – A. 172

9. Romo Plaintiffs’ Notice of Supplemental Authority in Support of Their Opposition to Legislative Defendants’ Motion for Protective Order Based on Legislative Privilege dated August 30, 2012

A. 173 – A. 178


4 MIAMI 958793 (2K)

10. Legislative Defendants’ Consolidated Reply in Support of Motion for Protective Order Based on Legislative Privilege dated August 31, 2012

A. 179 – A. 198

11. Legislative Defendants’ Supplemental Memorandum Regarding Legislative Privilege dated September 10, 2012

A. 199 – A. 219

12. Romo Plaintiffs’ Supplemental Brief Relating to Legislative Defendants’ Motion for Protective Order Based on Legislative Privilege dated September 10, 2012

A. 220 – A. 240

13. Coalition Plaintiffs’ Adoption of Romo Plaintiffs’ Supplemental Brief Relating to Legislative Defendants’ Motion for Protective Order Based on Legislative Privilege dated September 10, 2012

A. 241 – A. 246


5 MIAMI 958793 (2K)

CERTIFICATE OF SERVICE

I certify that on October 31, 2012, a copy of this appendix was served by

mail and email to all counsel on the attached service list.

/s/ Raoul G. Cantero Raoul G. Cantero


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SERVICE LIST

Joseph W. Hatchett Thomas A. Range Akerman Senterfitt 106 E. College Avenue, Ste. 1200 Tallahassee, FL 32301 Telephone: (850) 224-9634 Fax: (850) 222-0103 [email protected] [email protected]

Jon L. Mills Elan Nehleber Boies, Schiller & Flexner LLP 100 SE 2nd Street, Ste. 2800 Miami, FL 33131-2144 Telephone: (305) 539-8400 Fax: (305) 539-1307 [email protected] [email protected]

Abha Khanna Kevin J. Hamilton Noah G. Purcell Perkins Coie, LLP 1201 Third Avenue, Ste. 4800 Seattle, WA 98101-3099 Telephone: (206) 359-8000 Fax : (206) 359-9000 [email protected] [email protected] [email protected]

John M. Devaney Mark Erik Elias Elisabeth C. Frost Perkins Coie, LLP 700 Thirteenth Street, NW, Ste. 700 Washington, DC 20005 Telephone: (202) 654-6200 Fax: (202) 654-6211 [email protected] [email protected] [email protected]

Karen C. Dyer Boies, Schiller & Flexner LLP 121 South Orange Avenue, Ste. 840 Orlando, FL 32801 Telephone: (407) 425-7118 Fax: (407) 425-7047 [email protected]

Attorneys for Respondents Rene Romo, Benjamin Weaver, William Everett Warinner, Jessica Barrett, June Keener, Richard Quinn Boylan and Bonita Agan


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Gerald E. Greenberg Adam M. Schachter Gelber Schachter & Greenberg, P.A. 1441 Brickell Avenue, Suite 1420 Miami, FL 33131 Telephone: (305) 728-0950 Fax: (305) 728-0951 [email protected] [email protected]

Bruce V. Spiva The Spiva Law Firm, PLLC 1776 Massachusetts Ave., N.W. Suite. 601 Washington, DC 20036 Telephone: (202) 785-0601 Fax: (202) 785-0697 [email protected]

Jessica Ring Amunson Paul Smith Michael B. DeSanctis Kristen M. Rogers Christopher Deal Jenner & Block LLP 1099 New York Ave, N.W., Ste. 900 Washington, DC 20001-4412 Telephone: (202) 639-6023 Fax: (202) 661-4993 [email protected] [email protected] [email protected] [email protected] [email protected] J. Gerald Hebert 191 Somervelle Street, #405 Alexandria, VA 22304 Telephone: (703) 628-4673 [email protected]

Ronald Meyer Lynn Hearn Meyer, Brooks, Demma and Blohm, P.A. 131 North Gadsden Street Post Office Box 1547 (32302) Tallahassee, FL 32301 Telephone: (850) 878-5212 Fax: (850) 656-6750 [email protected] [email protected]

Attorneys 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


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Daniel E. Nordby General Counsel Ashley Davis Assistant General Counsel Florida Department Of State R.A. Gray Building 500 S. Bronough Street Tallahassee, FL 32399 Telephone: (850) 245-6536 [email protected] [email protected] Attorneys for Respondent Ken Detzner, in his Official Capacity as Florida Secretary of State

Harry O. Thomas Christopher B. Lunny Radey, Thomas, Yon & Clark, PA 301 South Bronough Street Suite 200 Tallahassee, Florida 32301-1722 Telephone: (850) 425-6654 Fax: (850) 425-6694 [email protected] [email protected] Attorneys for Bill Negron, Anthony Suarez, Luis Rodriguez, Father Nelson Pinder; N.Y. Nathiri; Mayor Bruce B. Mount, Pastor Willie Barnes, Mable Butler, and Judith A. Wise

Timothy D. Osterhaus Deputy Solicitor General Blaine H. Winship Office Of Attorney General Capitol, Pl-01 Tallahassee, FL 32399-1050 Telephone: (850) 414-3300 Fax: (850) 401-1630 [email protected]@myfloridalegal.com Attorneys for Pam Bondi, in her capacity as Florida Attorney General


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Charles G. Burr Burr & Smith, LLP Grand Central Place 442 West Kennedy Blvd., Ste. 300 Tampa, FL 33606 Telephone: (813) 253-2010 Fax: (813) 254-8391 [email protected]

Stephen Hogge Stephen Hogge, LLC 117 South Gadsden Street Tallahassee, FL 32301 Telephone: (850) 459-3029 [email protected]

Victor L. Goode Dorcas R. Gilmore NAACP 4805 Mt. Hope Drive Baltimore, MD 21215-3297 Telephone: (410) 580-5790 Fax: (410) 358-9350 [email protected] [email protected]

Allison J. Riggs Anita S. Earls Southern Coalition For Social Justice 1415 West Highway 54, Ste. 101 Durham, NC 27707 Telephone: (919) 323-3380 Fax: (919) 323-3942 [email protected] [email protected]

Attorneys for the Florida State Conference of NAACP Branches

Michael A. Carvin Louis K. Fisher Jones Day 51 Louisiana Avenue, N.W. Washington, DC 20001 Telephone: (202) 879-7643 Fax: 202-626-1700 [email protected] [email protected]

Cynthia Skelton Tunnicliff Peter M. Dunbar Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, 2nd Floor Tallahassee, FL 32301 Telephone: (850) 222-3533 Fax: (850) 222-2126 [email protected] [email protected]

Attorneys for the Florida Senate and President Mike Haridopolos

A. 1

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA

RENE ROMO, et al,

Plaintiffs, vs.

KEN DETZNER and PAM BONDI,

Defendants. I ----------------------------

THE LEAGUE OF WOMEN VOTERS OF FLORIDA, et al,

Plaintiffs, vs.

KEN DETZNER, et al,

Defendants.

----------------------------~/

CASE NO: 2012-CA-412

CASE NO: 2012-CA-490

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PROTECTIVE ORDER

This case is before me on motions for protective order filed by the legislative

defendants. They assert that legislative privilege protects them and their staff from having

to sit for depositions or otherwise provide information relating to their legislative duties,

including the production of certain documents. The plaintiffs agree that legislative

privilege exists in Florida but do not agree that it affords the defendants protection from

the discovery sought. For the reasons set forth below, I conclude that the motion should

be granted in part and denied in part.

The case of Florida House of Representatives v. Expedia, Inc., 85 So. 3d 517 (Fla.

1st DCA 20 12), is the most recent authority on the subject of legislative privilege. In that

case, the court confirmed that legislative privilege does exist in the State of Florida, both

A. 2

because it existed at common law, and because the privilege is an essential implied

component of the separation of powers doctrine implicit in constitutional government.

The court held that the privilege was broad in scope and applied to both legislators and

their staff. The court also held, however, that the privilege is not absolute and must be

balanced against other compelling government interests.

The legislative defendants argue that, per Expedia, only in criminal cases might a

compelling government interest trump legislative privilege. However, the court in

Expedia did not so hold. Had the panel wished to limit the instances in which the

governmental interest might override the legislative privilege to criminal cases, it

certainly could have said so. Indeed, the case before it was a civil case, so it would have

been logical for the court to note that, regardless of the application of the privilege and

any exceptions thereto in criminal cases, the case before it was civil and there could be no

compelling government interest to balance against the privilege. Instead, the court

engaged in a balancing test and found the competing governmental interest wanting.

In Expedia, the governmental interest was extremely minimal. One side in a civil

case wanted to establish that it had not provided certain information and documents to a

legislator. They wished to depose the legislator and ask him from whom he had received

a certain document which he later passed along to other legislators. The court noted that

the other side of the lawsuit had offered to stipulate that its counsel was the person who

had provided the document and information to the legislator. Onbalance, the court said,

the governmental interest in clearing up this issue in a civil case was not sufficient to

override legislative privilege.

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Thus, it is clear that the Expedia court contemplated instances in civil cases in

which, on balance, the legislative privilege must give way to a compelling government

interest in the information sought. The court in Expedia did not, however, elaborate on

how this balancing test was to be conducted and there are no other Florida cases on point.

I must, thus, look to other jurisdictions for guidance, mindful ofthe particular

constitutional provisions, statutes and case law of Florida that might suggest a different

result.

The parties have cited cases from other jurisdictions which offer some options,

and some guidance. Ofthe cases cited, I find Committee for a Fair and Balanced Map v.

Illinois State Bd of Elections, 2011 WL 4837508 (N.D. Ill 2011 ), 1 to be illustrative of a

practical and reasoned approach consistent with principles of Florida constitutional case

law. The CFBJvf court was presiding over a redistricting challenge brought under the

Voting Rights Act and United States Constitution. The issues being explored in the

litigation were similar in nature to those in the instant case.

The court concluded that the Illinois Legislature enjoyed a qualified legislative

privilege. It analyzed the following factors in determining when the privilege should

yield: "(i) the relevance of the evidence sought to be protected; (ii) the availability of

other evidence; (iii) the seriousness of the litigation and the issues involved; (iv) the role

of the government in the litigation; and (v) the possibility offuture timidity by

government employees who will be forced to recognize that their secrets are violable."

ld at 7. After applying the test the court found that information regarding the motives,

t I will refer to this case as CFBM

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objectives, or procedures was privileged. However, the privilege yielded as to

information regarding consultants and objective data relied upon by lawmakers.

A question inherent in this balancing exercise, and not answered in Expedia, is

whether the applicability of the legislative privilege is an ali-or-nothing proposition. In

other words, do I look at the governmental interest involved, weigh it against legislative

privilege, and determine whether it should apply at all? It would, of course, be much

easier and cleaner to do so, but both the privilege and the governmental interest would be

better served, in most cases, by carefully considering and differentiating between the

legislative functions most in need of protection and those least in need of the protection

offered by the privilege.

Some of the public policies or reasons behind recognizing a legislative privilege

are, at their essence, practical in nature. Legislators could not properly do their job if they

had to sit for depositions every time someone thought they had information that was

relevant to a particular court case or administrative proceeding. We also recognize the

importance of legislators being able to develop policy without fear that every iteration

leading up to the ultimate policy choice can be second guessed with 20/20 hindsight, or

that their communications will be taken out of context, requiring them to try to defend

their decisions. There is a reason the old saying about making sausages and laws is an old

saymg.

And the legislature is not alone in this. The same applies for the workings of the

executive and judicial branches of government. Inherent in the constitutional separation

of powers is the concept that no branch should interfere with the essential core functions

of the others, so that each may properly perform those functions. Each should be able to

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work through various issues and problems in their own mind, and discuss with their

colleagues various options, without the chilling effect of third parties, who perhaps wish

to be critical, being able to inquire into the thought processes and the confidential

communications that are inherent in the process.

Considering the public policy and practical reasons for such a privilege, it

naturally follows that there are some categories of information and communications that

are most in need ofthe protection offered by the privilege and some that are less in need

of such protection. The thought processes of a legislator or the communications between

legislators, or between legislators and their staff fall into the first category and the second

category would include routine transmittal communications between legislators, between

legislators and their staff, and communications with outside consultants or constituents.

Though not completely descriptive, these two categories may be distinguished by calling

the first "subjective" information and the second, "objective" information.

Similarly, the public policy behind the privilege is also better served by drawing a

distinction between discovery aimed at oral examination of a legislator by deposition, at a

particular place and time, and discovery which requires the production of documents. In

general, the latter will be less onerous and less likely to take a legislator away from his or

her legislative duties. The former is more intrusive and more difficult to apply on a case

by-case basis because one does not know what questions will be asked at a deposition.

In applying this balancing test to the case at bar, I find it difficult to imagine a

more compelling, competing government interest than that represented by the plaintiffs'

claim. It is based upon a specific constitutional direction to the Legislature, as to what it

can and cannot do with respect to drafting legislative reapportionment plans. It seeks to

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protect the essential right of our citizens to have a fair opportunity to select those who

will represent them. In this particular case, the motive or intent of legislators in drafting

the reapportionment plan is one of the specific criteria to be considered when determining

the constitutional validity ofthe plan. The information sought is certainly relevant and

probative of intent. Frankly, if the compelling government interest in this case does not

justify some relaxing ofthe legislative privilege, then there's probably no other civil case

which would. I thus find that the legislative privilege must bend somewhat to allow

inquiry into certain areas. The scales tip in favor of the Plaintiffs here, though not

completely.

Although the motive and intent of legislators in drafting the legislative

redistricting plan is of crucial importance in this case, it must be balanced against the

public policy behind the application of legislative privilege. Specifically, the subjective

thought processes of legislators and the confidential communication between them and

between legislators and their staff should remain protected by the privilege. Of course, to

the extent that these subjective thoughts and ideas were shared with third persons who are

not within the legislative branch, i.e., not legislators or staff, or contracted consultants,

those third persons are not protected by nor bound by legislative privilege. Those persons

can be compelled to provide information relevant to the case at bar.

All other "objective" information or communications should not be protected by

the privilege. This allows the plaintiffs access to important and probative information,

while still accommodating the strong policy in favor of the separation of powers doctrine,

which is implicit in the legislative privilege. What is subjective versus objective material

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may be difficult to determine in some instances but this demarcation should give some

guidance.

This demarcation or distinction applies to documents sought by plaintiffs as well,

with the proviso that any documents that qualify as public records pursuant to section

11.0431, Fla. Stat. and do not fall under a specific exemption, are discoverable by

Plaintiffs notwithstanding a claim of legislative privilege. A related issue in this respect is

whether drafts of redistricting plans and supporting documents, which the defendants say

are specifically exempted under the public records law, should be discoverable by

plaintiffs.

Florida has a long and rich tradition of open government and the case law in this

area suggests that questions about the interpretation of the Public Records Act should be

resolved in favor of access by the public. Any specific exemptions are therefore to be

strictly construed. Noting the legislative history of the exemption under which the

defendants seek protection, I conclude that their very broad interpretation of the

exemption is not supported by the language of the statute nor the case law in this area.

The plaintiffs' interpretation might be a little too narrow, as they suggest that once any

plan has been passed, any documents that might have been exempted from the act, are no

longer so.

It is difficult for me to know where to draw the line between the plan that was

actually proposed and adopted by the legislature and any other draft of a plan. The

plaintiffs' argument is that the entire process is designed to create a plan, not several

plans. Without having precise knowledge of how plans are proposed, discussed, and

developed, it is difficult for me to evaluate that assertion. The only way I know how to do

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so is to have any disputed documents presented to me in camera, with explanatory

testimony as to their nature and how they compare or contrast with the plan ultimately

adopted.

Two other issues remain: 1. May the legislative privilege be waived if a legislator

speaks about the legislation in public, or to others who are not a part of the legislative

branch? 2. Is there any adverse inference to be drawn in this case from the invocation of

legislative privilege?

After reviewing the memoranda submitted by the parties on these additional

issues, I'm convinced that the privilege is not waived by speaking in public or to non

legislative persons about the legislation. To the extent, of course, that they have done so,

there is no legislative privilege involved as to those statements. Although the legislator

cannot be required to submit to further inquiry into the subject area, his statements can't

be "taken back" by invoking legislative privilege.

I am also convinced that it would be counterproductive to the public policy

reasons behind the privilege to allow an adverse inference to be drawn from its

invocation. In that sense, it is analogous to the invocation of the Fifth Amendment

privilege in a criminal case, which by law, carries no adverse inference. Hence the jury

instruction to the jury that they are not to infer guilt or otherwise hold it against a

defendant who chooses not to be a witness in his case.

Of course, if at trial in a criminal case the State presents strong evidence of a

defendant's guilt, and the defendant chooses not to contest that evidence by testifying or

otherwise, a jury may very well be convinced beyond a reasonable doubt of his guilt.

Similarly, in the case at bar, if the plaintiffs present compelling evidence of improper

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motive or intent in the drafting of the legislative plan under challenge, and the legislative

defendants choose not to present any contrary evidence, it may put them at a

disadvantage. And, once the legislative defendants invoke the privilege and deprive the

plaintiffs of the discovery necessary for them to properly prepare their claim, it may be

difficult to overcome the prejudice inherent in a last moment decision to waive the

privilege and testify at trial.

There are also practical and public perception reasons why a legislator may wish

to waive the privilege. Some constituents may not understand why he or she refuses to

answer questions or provide information relevant to the issues. While there·may be no

legal adverse inference, the court of public opinion is not bound by the rules of evidence

or the rule of law. In this respect, legislators perhaps face a damned if you do and damned

if you don't dilemma.

Finally, I note that the legislative privilege is to be invoked by the individual

legislator and his or her staff. Each individual legislator is free to invoke the privilege or

waive it as he or she sees fit. The Speaker of the House and the President of the Senate

cannot dictate to an individual legislator how they should respond if asked to give

information related to this case. Thus, this ruling only applies to the Speaker, the

President, and those legislative staff directly under their supervision. It is hoped, of

course, that this order will give guidance to those individual legislators who are

considering whether to invoke legislative privilege.

Accordingly, it is ORDERED AND ADJUDGED that Defendant's Motion is

GRANTED in part and DENIED in part as follows:

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1. The legislative defendants and their staff, and any individual legislators or

staff members who assert legislative privilege shall not be deposed regarding

their "subjective" thoughts or impressions or regarding the thoughts or

impressions shared with them by staff or other legislators.

2. Plaintiffs may depose legislators or staff, notwithstanding an assertion of

legislative privilege, regarding "objective" information or communication

which does not encroach into the thoughts or impressions enumerated above.

3. Defendants shall produce all documents requested which do not contain

"subjective" information as described above. The parties are directed to

schedule an in camera review as to any disputed documents.

DONE AND ORDERED this at:!::.. day of October, 2012.

Copies to: Counsel of Record

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IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, lN AND

FOR LEON COUNTY, FLORIDA

RENE ROMO, an individual; BENJAMIN V/EAVER, an individual; WILLIAM EVERETT WARINNER, an individual; JESSICA BARRETT, an individual; JUNE KEENER, an individual; RICHARD QUIN"N BOYLAN, an individual; and BONITA AGAN, an individual,

Plaintiffs,

V.

KEN DETZNER, in his official capacity as Florida Secretary of State, and PAM BONDI, in her official capacity as Attorney General of the State ofFiorida,

Defendants.

THE LEAGUE OF WOMEN VOTERS OF FLORIDA, et al.

Plaintiffs,

v.

KE\l DETZJ\:ER, in his official capacity as Florida Secretary of State; THE FLORIDA SB<ATE; MICHAEL HARIDOPOLOS, in his official capacity as President ofthe Florida Senate; THE FLORIDA HOUSE OF REPRESENT A liVES; and DEA~ CAN:.JO]'.;, in his onicial capacity as Speaker ofthe Florida House of Representatives,

Defendants

CASE NO. 2012-CA-00412

CASE NO. 2012-CA-00490

ROMO PLAINTIFFS' SECOND AMENDED COMPLAINT

:24009907~ l \

72'•72-0003/LEGAl 2323CJ.J2l l

":, _,,-.. ·

·--~ ... /

A. 12

INTRODUCTION

1. Plaintiffs bring this action to challenge the constitutionality of Florida's

congressional reapportionment plan, Committee Substitute for Senate Bill 1174 (''20 12

Congressional Plan"), and the constitutionality of individual districts in the 2012 Congressional

Plan.

2. Article III, Section 20 of the Florida Constitution provides the standards for

reapportionment of Florida's congressional districts. Unfortunately, in conducting the 2012

congressional reapportionment process, the Florida Legislature violated these constitutional

requirements. Plaintiffs bring this action to ensure that Florida's congressional districts and

reapportionment plan abide by the fair, neutral, and constitutionally-mandated requirements of

Article Ill, Section 20.

PARTIES

3. Plaintiffs Rene Romo, Benjamin Weaver, Jessica Barrett, June Keener, Richard

Quinn Boylan, William Everett Warinner, and Bonita Agan are citizens of the United States and

residents and qualified voters in the State ofFlorida.

4. Plaintiff Rene Romo resides at 626 Caroline Street in Key West, Florida. Under

the 2012 Congressional Plan, she resides in Congressional District 26.

5. Plaintiff Benjamin Weaver resides at 1649 Stockton Street in Jacksonville,

Florida. Under the 2012 Congressional Plan, he resides in Congressional District 4.

6. Plaintiff \Villiam Everett Warinner resides at 306 NE 5th A venue in Gainesville,

Florida. Cnder the 2012 Congressional Plan, he resides in Congressional District 5.

(24009907,1) -2-

72972-000311 _EGAI-23239421 I

A. 13

7. Plaintiff Jessica Barrett resides at 217 Palm A venue in Auburndale, Florida.

Under the 2012 Congressional Plan, she resides in Congressional District 1 0.

8. Plaintiff June Keener resides at 9424 Via Segovia in New Port Richey, Florida.

Under the 2012 Congressional Plan, she resides in Congressional District 12.

9. Plaintiff Richard Quinn Boylan resides at 2950 Alton Drive in St. Pete Beach,

Florida. Under the20 12 Congressional Plan, he resides in Congressional District 13.

I 0. Plaintiff Bonita Agan resides at 251 Driftwood Road SE in St. Petersburg,

Florida. Under the 2012 Congressional Plan, she resides in Congressional District 14.

11. Defendant Ken Detzner is the Secretary of State for the State of Florida. In his

official capacity, Defendant Detzner is the chief elections officer for the State of Florida and is

charged with administering Florida election laws.

12. Defendant Pam Bondi is the Attorney General of the State of Florida. ln her

official capacity, Defendant Bondi is the chief legal officer of the State of Florida.

JURISDICTION AND VENUE

13. This Court has jurisdiction over this action pursuant to Article V, Section 5(b) of

the Florida Constitution, and has authority to grant declaratory and injunctive relief pursuant to

Fla. Stat. §§ 86.011 and 26.012(3) respectively.

14. Venue is proper in Leon County pursuant to Fla. Stat.§ 47.011.

FACTUAL ALLEGATIONS

15. On November 2, 2010, Florida voters overwhelmingly voted to amend Florida's

Constitution to include a provision requiring that fair and neutral standards be used when

drawing congressional district lines.

124009907.1: -3-

7::'972-0003/LEGAL23239421.1

A. 14

16. The congressional reapportionment provision, designated "Amendment 6'' on the

ballot and now contained in Article III, Section 20 of the Florida Constitution, provides:

SECTION 20. Standards for establishing congressional district boundaries.-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.

17. On February 9, 2012, the Florida Legislature passed the 2012 Congressional Plan.

18. On February 16,2012, Governor Rick Scott signed the 2012 Congressional Plan

into law.

19. The 2012 Congressional Plan violates multiple aspects of Article III. Section 20

of the Florida Constitution and deprives Plaintiffs ofrights guaranteed them by the Florida

Constitution.

a. The 2012 Congressional Plan was drawn with the intent to favor the Republican

{2~009907:1}

Party and incumbents, as indicated by, among other things, objective indicators of

improper intent, including, but not limited to, a failure to comply with the

principles of compactness and respect for political and geographical subdivision

boundaries, relevant voter registration and elections data, incumbents' addresses, -4-

72'-l72-0003/LEGAL23239421 I

A. 15

{2~009907, I)

demographics, the maneuvering of district lines in order to avoid pitting

incumbents against one another, the drawing of new districts so as to retain large

percentages of incumbents' former districts, and the fact that the Plan produces a

wider disparity in favor of the Republican Party and to the disadvantage of the

Democratic Party than the 2002 congressional plan.

b. The 2012 Congressional Plan was drawn with the intent to deny or abridge the

equal opportunity of racial and language minorities to participate in the political

process and the result of denying or abridging the equal opportunity of racial and

language minorities to participate in the political process. In particular, the Plan

presents a pattern of packing more minorities into districts than is necessary to

protect the minority group's ability to elect its preferred candidate. The Plan also

was drawn without a proper functional analysis of minority voting rights.

c. The 2012 Congressional Plan was drawn with the intent to diminish the ability of

racial and language minorities to elect representatives of their choice, as indicated

by, among other things, the fact that the Plan was drawn without a proper

functional analysis of minority voting rights.

d. The 2012 Congressional Plan contains districts that are not compact. In

particular, a visual inspection of the Plan reveals a number of districts that are

clearly less compact than other districts, with visually bizarre and unusual shapes

and districts that score low on quantitative measures of compactness, and the

Florida Legislature applied an incorrect definition of compactness when drawing

district lines. The Plan's violation of the compactness standard is not justified by

adherence to other constitutional requirements.

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A. 16

e. The 2012 Congressional Plan fails to utilize existing political and geographical

boundaries, including municipaL county, and water boundaries. \Vhere feasible.

20. Congressional District 5 under the 2012 Congressional Plan violates multiple

aspects of Article Ill, Section 20 of the Florida Constitution and deprives Plaintiffs of rights

guaranteed them by the Florida Constitution.

i 2-J00990 i _I l

a. Congressional District 5 was drawn w·ith the intent to favor the Republican Party

and an incumbent, as demonstrated by, among other things, the packing of

Democrats into the district, the failure to abide by the compactness standard and

to utilize existing political and geographical subdivision boundaries where

feasible, the shape ofthe district in relation to the incumbent's legal residence,

and the large percentage of the incumbent's prior district (80.7%) that is

contained in the District.

b. Congressional District 5 was drawn \Vith the intent to deny or abridge the equal

opportunity of racial and language minorities to participate in the political process

and the result of denying or abridging the equal opportunity of racial minorities to

participate in the political process, as it unnecessarily packs more African

Americans into the District than is necessary to protect the minority group's

ability to elect its preferred candidate and was drawn without a proper functional

analysis of minority voting rights. The Legislature could have drawn a far more

compact district that, although it \vould have decreased the percentage of African

American population, would not have diminished the minority group's ability to

elect its preferred candidates.

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A. 17

c. Congressional District 5 was drawn with the intent to diminish the ability of racial

and language minorities to elect representatives of their choice, as, among other

things, it was drawn without a proper functional analysis of minority voting

rights.

d. Congressional District 5 is not compact, as demonstrated by, among other things,

a visual inspection of the District and quantitative measures, and creates

compactness violations in surrounding districts. For instance, as a quantitative

matter, the district has a Reock score of 0.09, which is the lowest score among all

of the congressional districts and is lower than almost all of the Senate districts

deemed unconstitutional by the Florida Supreme Court in In Re: Senate Joint

Resolution of Legislative Apportionment 1176 (Fla. Sup. Court Mar. 9, 20 12).

Although Congressional District 5's predecessor district was notoriously non

compact, the compactness of District 5 decreases 36% from the prior

congressional map. The violation of the compactness standard is not justified by

adherence to other constitutional requirements.

e. Congressional District 5 fails to utilize existing political and geographical

boundaries where feasible, including but not limited to the Seminole, Orange, and

Lake County boundaries. The district also unnecessarily cuts through the

Apopka, Orange Park, Orlando, and Sanford municipal boundaries, and creates

violations with respect to the utilization of political and geographical boundaries

in surrounding districts.

21. The constitutional deficiencies of Congressional District 5 have ripple effects

across the 2012 Congressional Plan, in particular in districts adjacent to Congressional District 5.

{2~009907~ I j -7-

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A. 18

For instance, the improper intent to favor the Republican Party reflected in Congressional

District 5 is further reflected in surrounding Congressional Districts 3, 4, 6, 7. and 11, as the

packing of Democrats in Congressional District 5 strips Democrats from surrounding districts to

the benefit of the Republican Party. Additionally, the unnecessary packing of African

Americans in Congressional District 5 strips members of this minority group from surrounding

Congressional Districts 3, 4, 6, 7, and II, denying or abridging the equal opportunity of racial

minorities to participate in the political process in those districts. The Florida Legislature's

failure to perform a functional analysis ofminority voting rights in Congressional District 5

holds true for the districts surrounding Congressional District 5 as well. Moreover,

Congressional District 5 'slack of compactness and failure to utilize existing political and

geographical subdivision boundaries where feasible creates similar problems in surrounding

Congressional Districts 3, 4, 6, 7, and Il. As a result ofthe constitutional violations reflected in

Congressional District 5, Congressional District 5 and the districts surrounding it need to be

redrawn.


aspects of Article III, Section 20 of the Florida Constitution and deprives Plaintiffs of rights


(:4009907: I)

a. Congressional District 10 was dravm with the intent to favor the Republican Party

and an incumbent, as demonstrated by, among other things, the packing of

Democrats into Congressional District 5, which strips Democrats from

neighboring Congressional District 10 to the benefit of the Republican Party and

the incumbent, and the failure to abide by the compactness standard and to utilize

existing political and geographical subdivision boundaries \Vhere feasible.

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A. 19

b. Congressional District 1 0 was drawn with the intent to deny or abridge the equal


and the result of denying or abridging the equal opportunity of racial minorities to

participate in the political process, as it is affected by the unnecessary packing of

African-American voters into neighboring Congressional District 5, which strips

members of this minority group from Congressional District 10, and was drawn

without a proper functional analysis of minority voting rights.

c. Congressional District 10 was drawn \Vith the intent to diminish the ability of

racial and language minorities to elect representatives of their choice, as, among

other things, it was drawn w·ithout a proper functional analysis of minority voting

rights.

d. Congressional District 10 is not compact, as demonstrated by, among other things,

a visual inspection of the District. The violation of the compactness standard is

not justified by adherence to other constitutional requirements.

e. Congressional District 10 fails to utilize existing political and geographical

boundaries where feasible, including but not limited to the Orange County

boundary and the Orlando and Winter Haven municipal boundaries.


aspects of Article III, Section 20 of the Florida Constitution and deprives Plaintiffs of rights


:::4009907: ll

a. Congressional District 13 was drawn with the intent to favor the Republican Party

and an incumbent, as demonstrated by, among other things, its failure to utilize

existing political and geographical subdivision boundaries where feasible, the

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7~972-0003/LEGAL2323942l I

A. 20

packing of Democrats into neighboring Congressional District l4. and the large

percentage of the incumbent's prior district (83.5~'o) that is contained in the

District.

b. Congressional District 13 \Vas dra\vn vvith the intent to deny or abridge the equal


and the result of denying or abridging the equal opportunity of racial or language

minorities to participate in the political process, as the Legislature intentionally

drew minority voters out of Congressional District 13 and into neighboring

Congressional District 14 without a proper functional analysis of minority voting

rights.

c. Congressional District 13 was drav·m \vith the intent to diminish the ability of

racial and language minorities to elect representatives of their choice. as the

Legislature intentionally drew minority voters out of Congressional District 13

and into neighboring Congressional District 14 without a proper functional

analysis of minority voting rights.

d. Congressional District 13 fails to utilize existing political and geographical

boundaries where feasible. including but not limited to the St. Petersburg

municipal boundary and Tampa Bay. For instance, the city of St. Petersburg

contains just under 245,000 people, and thus could easily be contained in one

congressional district. Nonetheless. the Legislature chose to split St. Petersburg

in two. dividing it benveen Congressional Districts 13 and 14, even though doing

so required ignoring the obvious presence of Tampa Bay.

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72972-0003/LEGAL23239421 1

A. 21

e. The Legislature's disregard for political and geographical boundaries in District

13 is a clear indicator of improper intent, for "a disregard for the constitutional

requirements set forth in tier two is indicative of improper intent, which Florida

prohibits by absolute terms." In Re: Senate Joint Resolution of'Legislative

Apportionment 1176, slip op. at 95. The Legislature chose to include part of St.

Petersburg in Congressional District 14, despite its separation from the rest of the

district by miles of water, because including all of St. Petersburg in Congressional

District 13 would have made that district too favorable for Democrats, and no

longer a safe seat for the Republican incumbent, who retained nearly 85% of his

prior district in the enacted plan.


aspects of Article IlL Section 20 ofthe Florida Constitution and deprives PlaintitTs of rights


[24009907: I}

a. Congressional District 14 was drawn with the intent to favor the Republican

Party, as demonstrated by, among other things, its failure to utilize existing

political and geographical subdivision boundaries where feasible and the packing

of Democrats into the District.

b. Congressional District 14 was drawn with the intent to deny or abridge the equal


and the result of denying or abridging the equal opportunity of racial or language

minorities to participate in the political process, as it ignores political and

geographical boundaries to pack minority voters into a single district without a

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A. 22

proper functional analysis of minority voting rights, such as whether African

American and Hispanic voters in the area vote cohesively.

c. Congressional District 14 was drawn with the intent to diminish the ability of

racial and language minorities to elect representatives of their choice, as, among

other things, it was drawn to remove minority voters from Congressional District

13 and pack them into Congressional District 14 without a proper functional

analysis of minority voting rights.

d. Congressional District 14 fails to utilize existing political and geographical

boundaries where feasible, including but not limited to Tampa Bay, the Pinellas

and Hillsborough County boundaries, and the St. Petersburg and Tampa

municipal boundaries. For instance, District 14 stretches across Tampa Bay to

split off a small portion of south St. Petersburg from the rest of the peninsula and

combine it into a district otherwise entirely contained in Hillsborough County.

25. On information and belief, absent an injunction from this Court, Defendants

intend to and \viii conduct primary and general elections for the United States House of

Representatives on the basis of the congressional districts set forth in the 2012 Congressional

Plan.

26. Plaintiffs intend to and will vote in the state primary and general elections to be

held in 2012 and thereafter for candidates for the United States House of Representatives. If

those elections are conducted by Defendants on the basis of an unconstitutional reapportionment

plan and unconstitutional congressional districts, Plaintiffs and all other similarly situated

individuals will be further deprived of rights guaranteed by the Florida Constitution.

{:?-1009907:1] -12-

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A. 23

COUNT 1 (Violation of Article III, Section 20 of the Florida Constitution)

27. Plaintiffs restate and incorporate by reference the allegations of paragraphs 1

through 26 above as though fully set forth herein.

28. The 2012 Congressional Plan was drawn with the intent to favor a political party

and certain incumbents, was drawn with the intent to deny or abridge-and the result of denying

and abridging-the equal opportunity of racial and language minorities to participate in the

political process and the intent to diminish their ability to elect representatives of their choice,

contains non-compact districts, and fails to utilize existing political and geographical boundaries

where feasible. As a result, the 2012 Congressional Plan as a whole violates Article III, Section

20 of the Florida Constitution. The 2012 Congressional Plan as a whole deprives Plaintiffs and

all other citizens of Florida of the rights guaranteed them by the Florida Constitution.

29. The 2012 Congressional Plan contains districts, including but not limited to

districts in which Plaintiffs reside, that \Vere drawn with the intent to favor a political party and

certain incumbents, were drawn with the intent to deny or abridge-and the result of denying and

abridging-the equal opportunity of racial and language minorities to participate in the political

process and the intent to diminish their ability to elect representatives of their choice, are non-

compact, and fail to utilize existing political and geographical boundaries where feasible, all in

violation of Article III, Section 20 of the Florida Constitution. These districts deprive Plaintiffs

and all similarly situated citizens of Florida of the rights guaranteed them by the Florida

Constitution.

PRAYER FOR RELIEF

\VHEREFORE, PlaintitTs request that this Court:

(:24009907; I ) -13-

7.~972-0003/LEGAI.23239421 I

A. 24

I. Declare, pursuant to Fla. Stat.§ 86.011, that the 2012 Congressional Plan deprives

PlaintifTs and all citizens of Florida of their rights under Article IIL Section 20 of the Florida

Constitution, and that the 2012 Congressional Plan is unconstitutional, unlawful, null, and void:

or. in the alternative, declare that Congressional Districts 5, 10, 13, 14, and the districts

surrounding Congressional District 5 under the 2012 Congressional Plan deprive Plaintiffs and

other residents of these districts of their rights under Article III, Section 20 of the Florida

Constitution, and that these districts are unconstitutional, unlawful, null, and void;

2. Issue a permanent injunction and judgment, pursuant to Fla .Stat. § 26.0 12(3 ), barring

Defendants from calling, holding, supervising, or certifying any further elections under the 2012

Congressional Plan; or, in the alternative, enjoin Defendants from calling, holding, supervising,

or certifying any further elections using Congressional Districts 5, 10, 13, 14, and the districts

surrounding Congressional District 5 under the 2012 Congressional Plan;

3. Hold hearings, consider briefing and evidence, and otherwise take actions necessary to

determine and order valid plans for new congressional districts for the State of Florida: and

4. Grant such other or further relief as the Court deems to be appropriate, including but not

limited to an award of Plaintiffs' attorneys' fees and reasonable costs.

(2-l009907:1) -14-

7~972-0003/LEGAL2323942 I I

A. 25

Dated: April 3, 2012

(2-10099071)

72972-000JILEGAL23239421 I

I , I

('Joseph W. Hatchett (FL Bar #34486) , A_KERMAN SENTERFITT

106 E. College Ave., Suite 1200 Tallahassee, Florida 32301 Tel: (850) 224-9634 Fax: (850) 222-0103 E-mail: joseph.hatchetva;akerman. com

Marc Elias (admitted pro hac vice) Kevin J. Hamilton (admitted pro hac vice) John Devaney (admitted pro hac vice) Abha Khanna (admitted pro hac vice) PERKINS COlE LLP 700 13th St., N.W., Suite 600 Washington, D.C. 20005-3960 Phone: (202) 654-6200 Fax: (202) 654-6211 Email: [email protected] E-mail: [email protected] E-mail: [email protected] E-mail: [email protected]

Jon L. Mills (Bar# 148286) Karen C. Dyer (Bar # 716324) Elan M. Nehleber (Bar# 79041) BOIES, SCHILLER & FLEXNER LLP 121 S. Orange Ave., Suite 840 Orlando, Florida 32801-3233 Telephone: (305) 539-8400 Facsimile: (305) 539-1307 E-mail: [email protected] E-mail: [email protected] E-mail: [email protected]

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A. 26

CERTIFICATE OF MAJLING

I DO CERTIFY that a copy of ROMO PLAINTIFFS' SECOND AMENDED COMPLAINT has been furnished by e-mail and United States mail to each of the following parties:

Counsel for the Secretary of State

Daniel E. Nordby, General Counsel Ashley E. Davis, Assistant General Counsel Florida Department of State R. A. Gray Building 500 South Bronaugh Street, Suite 100 Tallahassee, FL 32399-0250 Dani e I.N ord vra~dos. m vflorida.com [email protected]

Counsel for the Florida Senate

Michael A. Carvin Louis K. Fisher Jones Day 51 Louisiana Avenue N.W. Washington, DC 20001 (202) 879-7643 macarvin~a)jonesdav.com

lktishen'(i;jonesdav.com

Andy V elosy Bardos The Florida Senate 404 S. Monroe Street, Suite 409 Tallahassee, FL 32399 (850) 487-5229 [email protected]

Cynthia Skelton Tunnicliff Peter M. Dunbar Pennington. Moore, et. al. 215 South Monroe Street Second Floor Tallahassee, FL 32301 (850) 222-3533 [email protected] [email protected]

72'172·00031LEG/\L232J9421.1

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A. 27

--- -------------------

Counsel for Common Cause Florida, the National Council Of La Raza and tire League Of Women Voters Of Florida, Inc.

Ronald Gustav Meyer Meyer, Brooks, Demma & Blohm P.O. Box 1547 Tallahassee, FL 32302 (850) 878-52 I 2 rmeyer(W,meyerbrookslaw .com

Jessica Ring Amunson Michael B. DeSanctis Kristen M. Rogers Paul M. Smith Jenner & Block, LLP 1099New York Ave, N.W., Suite 900 Washington, DC 20001 (202) 639-6000 j amunson ,'£i1jenner.com mdesam;.ti srci:jenner .com kro~Zers(a1 jenner .com psmith(a;jenner.com

J. Gerald Hebert J. Gerald Hebert, P.C. 191 Somervelle Street, Unit 415 Alexandria, VA 22304 (703) 628-4673 hebert(Zi:;votela\v.com

Counsel for the Honorable Pamela Jo Bondi

Baine Winship General Counsel Office of the Attorney General The Capitol, PL-01 Tal:ahas5ee, FL 32399 (850) 414-3300 Blaine. Winship(@.mvfloridalegal.com

;24009907; I J

7297:'.{)003/LEGAL23239421.1

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A. 28

Counsel for the Florida House Of Representatives

Miguel A. De Grandy Miguel De Grandy, P.A. 800 S. Douglas Road, Suite 850 Coral Gables, FL 33134 (305) 444-7737; Fax (305) 443-2616 [email protected]

George T. Levesque General Counsel Florida House of Representatives 422 The Capital Tallahassee, FL 32399 (850) 488-0451 george.levesque(q!,mytloridahouse.gov

Charles Talley Wells Gray Robinson, P.A. 301 E. Pine Street, Suite 1400 Orlando, FL 32801 (407) 843-8880; Fax (850) 222-3494 Charles. Wells(cl.;gray-robinson.com

George N. Meros, Jr. Jason L. Unger Allen C. Winsor Charles Burns Upton, II Gray Robinson, P .A. P.O. Box 11189 Tallahassee, FL 32302 (850) 577-9090; Fax (850) 577-3311 george .meros@gray-ro binson.com [email protected] allen. winsor(cV,gray-robinson.com [email protected]

this 3 rd day of March, 20 12.

{24009907;1)

7:~972-0003/LEGAL23239421 I

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A. 29

-----··------· ·······--·--------·-····-· --------

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA

RENE ROMO, et al.,

Plaintitis,

V.


Defendants.

THE LEAGUE OF WOMEN VOTERS OF FLORIDA, eta!.

Plaintiffs,

V.

KEN DETZNER, et al.,

Defendants.

CASE NO. 2012-CA-00412

CASE NO. 2012-CA-00490

COALITION PLAINTIFFS' FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs THE LEAGUE OF WOMEN VOTERS OF FLORIDA, THE NATIONAL

COUNCIL OF LA RAZA, COMMON CAUSE FLORIDA, (hereinafter ''the Coalition"),

ROBERT ALLEN SCHAEFFER, BRENDA ANN HOLT, ROLAND SANCHEZ-MEDINA,

JR., and JOHN STEEL OLMSTEAD, hereby allege:

1

A. 30

INTRODUCTION

1. On November 2, 2010, the voters approved Amendment 6 (FairDistricts

Amendment) for inclusion in the Florida Constitution, greatly expanding the standards that

govern the Legislature during congressional apportionment. The Florida Supreme Court has

explained that the "overall goal" of the Amendment was twofold: "[T]o require the Legislature to

redistrict in a manner that prohibits favoritism or discrimination, while respecting geographic

considerations" and "to require legislative districts to follow existing community lines so that

districts are logically drawn, and bizarrely shaped districts ... are avoided." Advisory Op. to Atty.

Gen. re Standards for Establishing Legislative Dist. Boundaries, 2 So.3d 175, 181, 187-88

(Fla.2009) (plurality opinion). After its passage, the FairDistricts Amendment was codified as

Article III, Section 20, of the Florida Constitution.

2. With the advent of the FairDistricts Amendment, the Florida Constitution now

imposes more stringent requirements on the Legislature in conducting congressional

reapportionment. The new standards enumerated in Article III, Section 20, are set forth in two

tiers, each of which contains three requirements. The first tier, contained in section 20(a), lists

the following requirements: (1) no apportionment plan or district shall be drawn with the intent

to favor or disfavor a political party or an incumbent; (2) 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 (3) districts shall consist of contiguous territory. The second tier, located in section

20(b ), lists three additional requirements, the compliance with which is subordinate to those

listed in the first tier of section 20 and to federal law in the event of a conflict: ( 1) districts shall

be as nearly equal in population as is practicable; (2) districts shall be compact; and (3) where

2

A. 31

-------

feasible, districts shall utilize existing political and geographical boundaries. See art. III, § 20(b ),

Fla. Const. The order in which the constitution lists the standards in tiers one and two is "not [to]

be read to establish any priority of one standard over the other within that [tier]." Art. III, §

20( c), Fla. Const.

3. The citizens of the state of Florida, through the Florida Constitution, employed

the essential concept of checks and balances, granting to the Legislature the ability to apportion

the state in a manner prescribed by the citizens and entrusting the judiciary with the

responsibility to review the apportionment plans to ensure they are constitutionally valid. The

obligations set forth in the Florida Constitution are directed not to the Legislature's right to draw

districts, but to the people's right to elect representatives in a fair manner so that each person's

vote counts equally and so that all citizens receive fair and effective representation. There is no

question that the goal of minimizing opportunities for political favoritism was the driving force

behind the passage ofthe FairDistricts Amendment.

4. On February 9, 2012, the Florida Legislature passed CS/SB 1174, a bill of

redistricting for Florida's 27 congressional seats following the 2010 decennial census ("the

Legislature's Congressional Plan"). That plan violates both the intent and the letter of the

constitutional requirements of Article III, Section 20.

5. Plaintiffs file this action seeking declaratory and injunctive relief to prevent the

implementation and enforcement of the Legislature's Congressional Plan in any future elections.

The Legislature's Congressional Plan threatens to harm Plaintiffs' right to a fair and neutral

redistricting plan, free of political gerrymandering or incumbent protection efforts. It likewise

threatens to deny Plaintiffs' right to a redistricting plan that respects the constitutionally required

redistricting principles of compactness and respect for political and geographical boundaries.

3

A. 32

The injury to these voters and all citizens of Florida, and the deprivation of their rights under

Article III, Section 20, caused by the Legislature's Congressional Plan are neither necessary nor

justified.

JURISDICTION AND VENUE

6. This Court has jurisdiction over this matter pursuant to Fla. Stat. § 26.012 (2011)

and Article V, Section 5(b) of the Florida Constitution. Venue is proper pursuant to Fla. Stat.

§ 47.011 (2011). Plaintiffs' action for declaratory and injunctive relief is authorized by Fla. Stat.

§ 86.011 (2011) as well as Fla. Stat. § 26.012(3) (2011).

PARTIES

Plaintiffs

7. Plaintiffs are citizens and registered voters residing throughout the State of

Florida and organizations representing the interests of Floridians who supported the Fair Districts

Amendments and will be affected by the Legislature's Congressional Plan.

8. Plaintiff LEAGUE OF WOMEN VOTERS OF FLORIDA ts a nonpartisan

political organization founded in 1939 to promote active citizenship through informed and

engaged participation in government. The League was one of the primary proponents of the

FairDistricts Amendments and its members have been actively engaged in the redistricting

process. A substantial number of its members will be harmed by the Legislature's Congressional

Plan.

9. PlaintiffNATIONAL COUNCIL OF LA RAZA, formerly known as Democracia,

Inc., is a Hispanic civil rights and advocacy organization that works to improve opportunities for

Hispanic Americans through community-based organizations. It was one of the primary

proponents of the FairDistricts Amendments and its members were actively engaged in the

4

A. 33

redistricting process. A substantial number of its members will be harmed by the Legislature's

Congressional Plan.

10. Plaintiff COMMON CAUSE FLORIDA is a nonpartisan, nonprofit advocacy

organization dedicated to helping citizens have their voices heard in the political process and

hold public officials accountable to the public interest. It was a primary proponent of the

FairDistricts Amendments and its members have been actively engaged in the redistricting

process. A substantial number of its members will be harmed by the Legislature's Congressional

Plan.

11. Plaintiff ROBERT ALLEN SCHAEFFER is a citizen and registered voter in

Sanibel, Florida.

12. Plaintiff BRENDA ANN HOLT is a citizen and registered voter in Quincy,

Florida.

13. Plaintiff ROLAND SANCHEZ-MEDINA, JR. is a citizen and registered voter in

Coral Gables, Florida.

14. Plaintiff JOHN STEEL OLMSTEAD is a citizen and registered voter in Tampa,

Florida.

Defendants

15. Defendant KEN DETZNER, Secretary of State for the State of Florida, is the

State's chief elections officer. Defendant Detzner is responsible for administering and

supervising the elections of the United States Representatives from the State of Florida. He is

sued in his official capacity.

16. Defendant the FLORIDA SENATE ("Senate") is one house of the Legislature of

the State of Florida. Defendant FLORIDA SENA IE is responsible for drawing reapportionment

5

A. 34

plans for the United States Representatives from the State of Florida that comply with the Florida

Constitution.

17. Defendant, MIKE HARIDOPOLOS, is the President of the Florida State Senate.

He is sued in his official capacity. Defendant FLORIDA SENATE is responsible for drawing

reapportionment plans for the United States Representatives from the State of Florida that

comply \Vith the Florida Constitution.

18. Defendant FLORIDA HOUSE OF REPRESENTATIVES ("House") is the other

house of the Legislature of the State of Florida. Defendant FLORIDA HOUSE OF

REPRESENTATIVES is responsible for drawing reapportionment plans for the United States

Representatives from the State of Florida that comply with the Florida Constitution.

19. Defendant, DEAN CANNON, is the Speaker ofthe Florida House of

Representatives. He is sued in his official capacity. Defendant FLORIDA HOUSE OF

REPRESENTATIVES is responsible for drawing reapportionment plans for the United States

Representatives from the State of Florida that comply with the Florida Constitution.

FACTUAL ALLEGATIONS

20. On November 2, 2010, the voters of Florida amended the state constitution by

adopting two provisions that provide standards by which the Legislature must abide when

drawing state legislative and congressional districts after each decennial census. See Roberts v.

Brown, 43 So. 3d 673 (Fla. 2010); Advisory Op. to Att 'y Gen. re Standards for Establishing

Legislative Dist Boundaries, 2 So. 3d 175 (Fla. 2009). These amendments 'Were referred to as

the "FairDistricts Amendments" and are now part of Florida's Constitution at Article III, Section

20 (Congressional redistricting) and 21 (Legislative redistricting).

6

A. 35

21. In drawing their proposed Congressional redistricting plan, neither the Senate nor

the House complied with Article III, Section 20.

22. On November 28, 2011, the Senate publicly revealed its proposed congressional

redistricting plan for the first time. The Senate formally introduced the plan in committee on

December 6, 20 11.

redistricting plans.

On that same day, the House released seven separate congressional

23. On January 6, 2012, the Coalition filed an alternative Congressional redistricting

proposal on the Legislature's internet website. This proposal, SPUBC0170, comported with the

constitutional requirements in Article III, Section 20: it sought to maximize electoral possibilities

for Florida's 27 Congressional seats by leveling the playing field and fostering competitiveness,

was drawn without favoring incumbent officials, preserved minorities' ability to participate in

the political process, expanded the influence of minority voters, and respected the Amendment's

mandates of contiguity, equal population, compactness, and respect for political and geographic

boundaries.

24. The Coalition requested that both Houses consider its proposed plan as an

alternative to those already under consideration. Both chambers rejected the Coalition's

compliant plan.

25. On January 6, 2012, the Coalition wrote a letter to Senator Don Gaetz, Chairman

of the Senate Reapportionment Committee, requesting that he or another member of the

Committee offer the SPUBC0170 plan as a strike-all amendment and put it to a vote during a

Committee meeting. The Senate Reapportionment Committee received the plan and had a full

opportunity to consider it. Nonetheless, Senator Gaetz refused to offer the plan as a strike-all

amendment and offer it for a vote.

7

A. 36

26. On January 24, 2011, the Coalition wrote a letter to Representative Will

Weatherford, Chairman of the House Committee on Redistricting, requesting that he or another

member of the Committee offer the SPUBCO 1 70 plan as a strike-all amendment and put it to a

vote during a Committee meeting. In response to Chairman Weatherford's request that the

Coalition explain the merits of its proposed alternative plan, the Coalition prepared a written

submission detailing how on Article III, Section 20 requirements, its SPUBC0170 plan was

superior to the plan that the House Committee was then considering, HOOOC9047. Moreover, the

Coalition informed the Committee of vanous ways in which HOOOC904 7 violated the

requirements of Article III, Section 20.

27. At its January 27, 2012 meeting, the House Committee on Redistricting

considered the Coalition's plan along with its written submission. Chairman Weatherford

offered the alternative plan as a strike-all amendment, which the Committee rejected.

Ultimately, the House Committee passed its own proposal, HOOOC904 7, despite having been

informed by the Coalition of some of the plan's constitutional deficiencies.

28. On February 9, 2012 the Florida Legislature passed the 2012 Congressional Plan,

HOOC9047.

29. On February 16, 2012, Governor Rick Scott signed the Legislature's

Congressional Plan into law.

30. On March 9, 2012, the Florida Supreme Court issued a historic decision

interpreting, applying, and enforcing Florida's new constitutional provisions regarding

redistricting for the first time. See In Re: Senate Joint Resolution of Legislative Apportionment

1176, No. SC12-1, _So. 3d_, 2012 WL 753122, at *53 (Fla. Mar. 9, 2012) (hereinafter

8

A. 37

"Op."). In its opinion, the Supreme Court provided the judiciary with a detailed roadmap to

interpret, apply, and enforce Florida's constitutional requirements on redistricting.

31. As the Court held, the requirements of the constitutional provision fall into two

tiers. Because compliance with the tier-two principles is objectively ascertainable, it provides a

good starting point for analyzing challenges to the Legislature's congressional reapportionment

plan. Where adherence to a tier-one requirement explains the irregular shape of a given district,

a claim that the district has been drawn to favor or disfavor a political party can be defeated.

Where it does not, however, further inquiry into the Legislature's intent is necessary.

32. The Court held that if an alternative plan can achieve the same constitutional

objectives that prevent vote dilution and retrogression of protected minority and language groups

and also apportions the districts in accordance with tier-two principles so as not to disfavor a

political party or an incumbent, this will provide circumstantial evidence of improper intent.

That is to say, an alternative plan that achieves all of Florida's constitutional criteria without

subordinating one standard to another demonstrates that it was not necessary for the Legislature

to subordinate a standard in its plan.

33. In considering whether a reapportionment plan is drawn with the intent to favor or

disfavor a political party, the Court held that the partisan effects of a plan can be an objective

indicator of intent. There is no acceptable level of improper intent. The inquiry for intent to

favor or disfavor a political party looks at the shapes of districts together with undisputed

objective data, such as the relevant voter registration and elections data, incumbents' addresses,

and demographics, as well as any proffered undisputed direct evidence of intent. 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. Disregard for compactness and political and geographical

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boundaries also serve as objective indicia of improper intent. Improper intent may also be shown

through direct evidence.

34. In considering whether a reapportionment plan is drawn with the intent to favor or

disfavor an incumbent, the Court held that the effects of a plan can be an objective indicator of

intent. There is no acceptable level of improper intent. The inquiry for intent to favor or

disfavor an incumbent focuses on the shape of the district in relation to the incumbent's legal

residence, as well as other objective evidence of intent, such as the maneuvering of district lines

in order to avoid pitting incumbents against one another in new districts or the drawing of a new

district so as to retain a large percentage of the incumbent's former district. Improper intent may

also be shown through direct evidence.

35. As to both intent to favor a political party and intent to favor an incumbent, the

Court held that where the shape of a district in relation to the demographics is so highly irregular

and without justification that it cannot be rationally understood as anything other than an effort

to favor or disfavor, improper intent may be inferred.

36. The Court held that alternative plans may be offered as relevant proof that the

Legislature's apportionment plans consist of district configurations that are not explained other

than by the Legislature considering impermissible factors, such as intentionally favoring a

political party or an incumbent.

37. The Court held that the Legislature cannot eliminate majority-minority districts or

weaken other historically performing minority districts where doing so would actually diminish a

minority group's ability to elect its preferred candidates. A slight change in percentage of the

minority group's population in a given district does not necessarily have a cognizable effect on a

minority group's ability to elect its preferred candidate of choice. To undertake a retrogression

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evaluation requires an inquiry into whether a district is likely to perform for minority candidates

of choice, requiring consideration not only of the minority population in the districts, or even the

minority voting-age population in those districts, but of political data and how a minority

population group has voted in the past. In other words, the Legislature must undertake a

functional analysis.

38. The Court held that the Legislature may depart from the criteria of compactness

and respect for political and geographical boundaries "only to the extent necessary" to avoid

diminishing the ability of minorities to elect candidates of choice. Alternative plans that make

less departure from compactness and respect for political and geographical boundaries would

serve as objective indicators of the Legislature's improper intent.

39. The Court held that a violation of the Florida minority voting protection provision

can be established by a pattern of overpacking minorities into districts where other coalition or

influence districts could be created.

40. The Court held that compactness means geographical compactness, not functional

compactness or communities of interest.

41. The Court held that political boundaries primarily encompass municipal or county

boundaries. Geographical boundaries are boundaries that are easily ascertainable and commonly

understood, such as rivers, railways, interstates, and state roads. The Legislature must be

consistent in its use of political and geographical boundaries.

42. The Legislature's Congressional Plan does not comply with the Florida Supreme

Court's holding regarding the meaning of the FairDistricts Amendments.

43. If allowed to stand, the Legislature's Congressional Plan will be used to define the

districts for Florida's primary and general congressional elections in 2012 and for the rest of the

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decade, thus permanently and irreparably denying Plaintiffs' rights guaranteed by Article III,

Section 20 of the Florida Constitution.

Whole-Plan Constitutional Violations

44. The Legislature's Congressional Plan unjustifiably violates the mandates of

Florida's Constitution in numerous respects.

45. Article III, Section 20 requires that "[n]o apportionment plan or individual district

shall be drawn with the intent to favor or disfavor a political party." Although Florida's voters

have split virtually evenly between Democratic and Republican candidates in recent statewide

elections for President and United States Senate, the Legislature's Congressional Plan provides

one party- the Republican party- with fully double the number of "safe" seats (i.e., seats that

statistks show the party is almost certain to win) as it does the other party - the Democratic

party. Indeed, Florida's congressional districts are so strongly gerrymandered in favor of the

Republican party that even if voters statewide divide nearly evenly between Democratic and

Republican candidates, Democrats are likely to win only eight of Florida's 27 congressional

seats.

46. The Legislature's intentional 2:1 Republican favoritism ratio with respect to the

safe Congressional districts is made all the more egregious by the intentional favoritism evident

in the design of the "competitive" districts. Competitive districts are defined as districts that

perform within 4% of a partisan shift, or between 46% and 54% Democratic in a two-way vote.

Those competitive districts favor the Republican Party by a ratio of 5:1 over the Democratic

Party. The House introduced and considered 14 separate congressional redistricting plans before

settling on C904 7 and the Senate introduced and considered three separate congressional plans.

For almost every district in the Legislature's Congressional Plan that falls within a Democratic

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performance range of 43% to 57%, the Legislature chose the version of that district that had the

best Republican performance numbers rather than the district that was most compact and

respectful of political and geographical boundaries. Members of the Legislature were well aware

of this intentional partisan favoritism and nevertheless voted to pass the Legislature's

Congressional Plan.

47. Article III, Section 20 requires that "[n]o apportionment plan or individual district

shall be drawn with the intent to favor or disfavor ... an incumbent." Incumbents in the

Legislature's Congressional Plan are favored by receiving districts in which they keep

approximately 73% of their former districts. Moreover, district lines were manipulated so that

Republican performance in the districts of some Republican incumbents, including but not

limited to Mario Diaz-Balart (District 25) and Daniel Webster (District 1 0), was intentionally

enhanced in the map passed by the Legislature. Members of the Legislature were well aware of

these and other types of intentional partisan and incumbent favoritism and nevertheless voted to

pass the Legislature's Congressional Plan.

48. Article III, Section 20 requires that "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." To determine when Tier 2 criteria must yield to this Tier 1 imperative, the Legislature

is required to conduct a "functional analysis" to justifY any departure from compactness or

respect for political and geographical boundaries by showing that the departure was absolutely

necessary to avoid retrogression. The Legislature did not conduct the required functional

analysis.

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49. Article III, Section 20 requires that districts shall be compact. The Legislature's

Congressional Plan contains numerous districts that are not compact, including Districts 3, 4, 5,

6, 7, 9, 10, 11, 12, 13, 14, 15, 17, 20, 21, 22, 23, 24, 25, 26, and 27.

50. Article III, Section 20 requires that districts shall utilize existing political and

geographical boundaries where feasible. The Legislature's Congressional Plan contains

numerous districts that do not utilize existing political and geographical boundaries, including

Districts 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 17, 20, and 21.

51. By contrast, the redistricting plan submitted by the Coalition was compact,

respected existing political and geographical boundaries, and plainly did not favor a particular

party or any particular incumbents. To the contrary, by faithfully adhering to the criteria of

Article III, Section 20, the Coalition Plan naturally resulted in a competitive plan in which either

party could win a majority of the seats in the Congressional delegation, and that had the effect of

leveling the political playing field by maximizing electoral opportunities for all candidates.

52. Both the Senate Reapportionment Committee and House Redistricting Committee

were aware of the Coalition Plan and the Coalition's criticism of the intentional partisan and

incumbent favoritism that characterized the committee's proposals. Both committees

affirmatively considered the Coalition Plan. Both rejected it and adopted the House Redistricting

Committee's unlawful plan into law.

District-Specific Constitutional Violations

53. Specific districts in the Legislature's proposed congressional plan unjustifiably

violate Article III, Section 20 in numerous respects. The following examples are apparent on the

face of the Legislature's Congressional Plan. Other may be uncovered with discovery.

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a. District 5

54. District 5 in the Committee's plan violates Article III, Section 20 of the Florida

constitution. This district is unnecessarily and unjustifiably non-compact, fails to respect

political and geographical boundaries, was drawn to favor an incumbent, and dilutes minority

voting strength by overpacking minorities into a district where other coalition or influence

districts could be created.

55. District 5 is facially non-compact and fails to respect political and geographic

boundaries where feasible. It weaves through eight counties, stretching from north Jacksonville

over 150 miles to Orlando. On its way, it twists and turns to grab as many African-American

voters as it can, resulting in a contorted district that strains for contiguity.

56. District 5 scores extremely low on the two metrics for compactness used by the

Florida Supreme Court: it has a Reock score of 0.09 and an Area/Convex Hull score of 0.29.

The Florida Supreme Court invalidated District 5 's counterpart, Senate District 6, for lack of

compactness, and Senate District 6 was actually more compact than District 5 in the

Legislature's proposed congressional plan. That district had a Reock score of 0.12 and

Area/Convex Hull score of0.43.

57. District 5 retains the vast majority of its predecessor district's population, which

the Supreme Court found is an "objective indicator[] of intent" to favor an incumbent. District 5

unconstitutionally favors an incumbent Member of Congress, Corrine Brown by keeping 81% of

the district she formerly represented (District 3) in the new district (District 5).

58. District 5 contains more African-American voters than are needed to provide

African-Americans the ability to elect representatives of their choice. This confines the

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influence of African-Americans to merely one district instead of providing this group broader

influence in neighboring districts.

59. The Legislature did not conduct a functional analysis to shov,; that District 5

departed from the requirements of compactness and utilization of political and geographical

boundaries only to the extent necessary to avoid retrogression of minority voting strength.

60. The Coalition presented an alternative district (District 3) that complied with the

Tier 1 and Tier 2 criteria of Article III, Section 20 and proves that the Legislature's failure to

comply with these criteria was neither necessary nor justified. The Coalition's district was

drawn without the intent to favor an incumbent, ensured minority voters' ability to elect without

packing unnecessarily high levels of minority voters into the district, and complied v.ith the

constitutional requirements of compactness and respect for political and geographical

boundaries. By unpacking minority voters in District 5, the Coalition was also able to create an

additional minority influence district in CJ:ntral Florida.

61. The Coalition's alternative district - District 3 - achieves all of Florida's

constitutional criteria v .. i thout subordinating one standard to another and demonstrates that it v,:as

not necessary for the Legislature to subordinate a standard in its plan

b. Districts 3, 4, 6, 9, 11, 12, 15, and 17

62. Districts 3, 4, 6, 9, 11, 12, 15 and 17 share District 5's borders. These districts as

drawn accommodate the incumbent favoritism and minority packing agenda effectuated by the

Legislature's unconstitutional District 5. Because these districts are dravvn to limit minority

influence to District 5 and protect District 5's incumbent congress member, all but one of these

districts (District 9) are safe Republican districts in which minority voters do not have the

opportunity to influence electoral outcomes.

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63. The Coalition's alternative proposal proves that by unpacking District 5 and

complying with Tier 2 criteria, it is possible to create districts in Central Florida that provide

minority voters opportunities to influence electoral outcomes.

64. Because District 5 is not compact and does not utilize existing political and

geographical boundaries, these districts contiguous to District 5 are likewise non-compact and·

share boundaries with District 5 that are not existing political and geographical boundaries.

65. To the extent that these districts accommodate the Legislature's unconstitutional

District 5, they too are unconstitutional and must be redrawn.

66. The Coalition's alternative districts achieve all of Florida's constitutional criteria

without subordinating one standard to another and demonstrate that it was not necessary for the

Legislature to subordinate a standard in its plan

c. District 7

67. District 7 is unnecessarily and unjustifiably non-compact, fails to respect political

and geographical boundaries, violates Article III, Section 20's minority protection provision, and

was drawn to favor an incumbent.

68. District 7 is defined by contorted borders to enable the very same racial packing

and incumbent protection agenda effectuated by District 5.

69. District 7 unnecessarily and unjustifiably fails to respect political and

geographical boundaries by crossing the Volusia County line to include Deltona and Orange

City. In total, District 7 sprawls across portions of three counties and does not follow any

consistent existing political or geographic boundary to do so.

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70. The Legislature's motivation for drawing a non-compact district that disregards

county lines was to preserve a safe seat in District 7 for incumbent Congresswoman Sandy

Adams and to preserve District 6 as a safe Republican seat.

71. The Legislature's final amendment to District 7 placed the incumbent's home

back in the district, and also returned some of District 7' s original constituents to the district.

72. The Coalition submitted an alternative District 7 that complied with Article III,

Section 20's compactness and respect for political and geographic boundaries requirement. The

Coalitions' alternative district was defined exclusively by county borders and contains two whole

counties. It was also more compact on standard compactness measurements than the

Legislature's proposed District 7.

73. The Coalition's alternative District 7 achieves all of Florida's constitutional

criteria without subordinating one standard to another and demonstrates that it was not necessary

for the Legislature to subordinate a standard in its plan.

d. District 10

74. District 10 is unnecessarily and unjustifiably non-compact, fails to respect

political and geographical boundaries, violates Article III, Section 20's minority protection

provision, and was drawn to favor an incumbent.

75. District 10 is visually and statistically non-compact. As drawn, this district

includes the same "odd-shaped" appendage as was present in the corresponding Senate District

10 that the Florida Supreme Court invalidated for failure to meet the constitutional compactness

requirement.

76. District 1 0' s non-compactness is due to the Legislature's unconstitutional

minority packing in District 5. District 10 was drawn to exclude Democratic, African-American

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voters and to preserve a safe Republican seat. The Legislature's proposed District 10 performs at

44.3% Democratic performance, based on a four-race average (including the 2010 and 2006

gubernatorial elections and the 2008 and 2004 presidential elections).

77. District 10 was drawn with the intent to favor an incumbent, Daniel Webster. A

late amendment to the plan removed Democratic voters from Congressman Webster's district.

This had the effect of shoring up his reelection chances. In recent elections, his district had been

trending more Democratic. This last minute amendment bolstered District 1 0' s Republican lean.

78. The Coalition's alternative district unpacks the Legislature's unconstitutional

District 5 to spread minority influence into another district: the Coalition's alternative District 8.

79. The Coaltion's District 8 is a district in which African American voters will have

the opportunity to influence electoral outcomes.

80. The Coalition's District 8 achieves all of Florida's constitutional criteria without

subordinating one standard to another and demonstrates that it was not necessary for the

Legislature to subordinate a standard in its plan.

e. Districts 13 and 14

81. Districts 13 and 14 unjustifiably disregard political and geographic boundaries

and are non-compact without any justification based on Tier 1 or federal law. District 14 crosses

Tampa Bay and the Pinellas County line in order to remove African-American and Democratic

voters from Pinellas and pack them into Hillsborough-based District 14.

82. The Legislature did not conduct a functional analysis to show that District 14



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83. In the 2002 benchmark map, African-Americans comprised just 25.2% of District

14. The Legislature increased that to 26.6% African-American percentage in the 2012 map.

However, the Legislature did not undertake a functional analysis of African-American voters'

ability to elect representatives of their choice within District 14. Nor did the Legislature perform

any analysis to determine whether the district performed as a "coalition district" where African

American and Hispanic voters vote cohesively and together have the ability to elect candidates of

choice. Rather, the Legislature simply focused on keeping the minority percentages the same in

District 14 as in the benchmark district.

84. By keeping minority voters confined to District 14, the Legislature was able to

ensure that District 13 would remain a safe Republican seat for an incumbent Republican

congress member, Bill Young. Additionally, District 14 remains a solidly Democratic seat for

incumbent congress member, Kathy Castor.

85. These incumbents overwhelmingly retain their original constituents in the

Legislature's plan. Incumbent Bill Young in District 13 keeps 85% of his former district while

incumbent Kathy Castor in District 14 keeps 86% of her former district.

86. The Coalition's plan keeps each of its corresponding districts, District 10 and 11,

entirely within a single county rather than crossing the Pinellas County line. District 10 is

entirely in Pinellas County and District 11 is entirely in Hillsborough County.

87. The Coalition's plan respects city and county boundaries and the geographical

boundary imposed by Tampa Bay. Additionally, the Coalition's plan demonstrates that by

respecting the geographic boundary of the bay as well as the county line, District 1 0 becomes far

more compact. The Coalition's District 10 has a Reock score of 0.57 and an Area/Convex Hull

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score of 0.91, as compared to the Legislature's corresponding District 13, which has a Reock

score of 0.46 and an Area/Convex Hull score of 0.82.

88. The Coalition's Districts 10 and 11 comply with both Tier 1 and Tier 2 of Article

III, Section 20. By respecting the county line and the boundary of Tampa Bay, the Coalition's

corresponding districts become naturally more politically competitive and less safe for the two

incumbent Members of Congress.

89. The Coalition's Districts 10 and 11 achieve all of Florida's constitutional criteria

without subordinating one standard to another and demonstrate that it was not necessary for the

Legislature to subordinate a standard in its plan.

f. Districts 20, 21, and 22

90. Districts 20, 21, and 22 fail to comply with Article III, Section 20's requirements

of compactness and respect for political boundaries.

91. District 20 is non-compact, scoring only 0.48 on Reock and 0.74 on Area/Convex

Hull. It contains two spindly tentacles without any Tier I or federal law justification. This non

compactness is neither necessary nor justified, and it causes the surrounding districts to be even

less compact.

92. The Legislature did not conduct a functional analysis to show that District 20



93. The Coalition's alternative district (District 23) is more visually compact, and it

scores 0.53 on Reock and 0.77 on Area/Convex Hull. Additionally, the Coalition's district

contains virtually the same level of African-American voting age population as does the

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Legislature's district and ensures that this minority group will continue to have an ability to elect

representatives of its choice.

94. Under the Legislature's Congressional Plan, District 20's neighboring districts,

Districts 21 and 22, are needlessly non-compact These districts have Reock scores of 0.28 and

0.18, respectively, and Area/Convex Hull scores of 0.60 and 0.61. Additionally, District 22's

non-compactness is visually striking because it is sliced to the core by District 20's tentacle and

reaches down across the Broward County line to extend an appendage of its own into Broadview

Park and Plantation. At their southern ends, both Districts 21 and 22 cross the Palm Beach

County line.

95. Again, the Coalition's districts are comparatively much more compact. In the

Coalition's map these are Districts 22 and 19, which have Reock scores of 0.48 and 0.42

respectively, and Area/Convex Hull scores of 0.73 and 0.79. These districts also show greater

respect for political boundaries; unlike the Legislature's corresponding Districts 21 and 22, only

one of the Coalition's districts crosses the Palm Beach County Line.

96. The Coalition's alternative Districts 19, 22, and 23 achieve all of Florida's

constitutional criteria without subordinating one standard to another and demonstrate that it was

not necessary for the Legislature to subordinate a standard in its plan.

g. District 25

97. District 25 was drawn to favor an incumbent Republican congress member, Mario

Diaz-Balart.

98. Representative Diaz-Balart's 2002 district had begun to trend Democratic, with an

average of 50.9% Democratic performance in the 2008 presidential and 2010 gubernatorial

elections. In a last-minute amendment to the plan before it was finally adopted, the Legislature

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- -----------~--

selectively shed Democratic territory, making the new district a solid Republican seat with only

45.1% Democratic performance under the same metric.

99. Of all the versions of District 25 that the Legislature considered, it selected the

least compact version that contained the strongest Republican performance. The Legislature

selected this new heavily Republican district for Mario Diaz-Balart from two possible variations

of District 25 in all of the Legislature's proposed Congressional maps - one version that

appeared in the Senate's map at SOOOC9014 (which was derived from SOOOC9002) and one

version that appeared on all of the House maps. The Legislature's final version of District 25 is

somewhat in between the two, contains lower Democratic performance than in either of the

earlier proposed versions. Both variations of District 25 that appeared in the Legislature's other

proposals were also far more compact than the final version of District 25 that was adopted.

100. The Coalition's alternative District 25 achieves all of Florida's constitutional

criteria without subordinating one standard to another and demonstrates that it was not necessary

for the Legislature to subordinate a standard in its plan.

h. Districts 22, 23, 24, 26, and 27

1 01. The Legislature's proposed Southeast Florida districts are unjustifiably and

unnecessarily non-compact. The Coalition's analogous districts are more compact on both the

Reock and Area/Convex-Hull metrics. Additionally, the Coalition's analogous districts are all

more visually compact than those the Legislature has proposed.

102. By drawing compact districts as required by Article III, Section 20, the

Coalition's districts are more politically competitive under averaged results from recent

statewide elections than those proposed by the Legislature.

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103. The Coalition's alternative Southeast Florida districts achieve all of Florida's

constitutional criteria without subordinating one standard to another and demonstrates that it was

not necessary for the Legislature to subordinate a standard in its plan.

*****

COUNT I

a. Plaintiffs reallege the facts set forth in paragraphs 1 through 103, above.

b. The Legislature's Congressional Plan and individual districts in the Legislature's

Congressional Plan, including but not limited to Districts 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15,

17, 25, 26, and 27 were drawn with the intent to favor the controlling political party and to

disfavor the minority political party in violation of the Florida Constitution, Article III, Section

20(a).

COUNT II



Congressional Plan, including but not limited to Districts 3, 4, 5, 7, 10, 11, 12, 13, 14, 15, 17,

25, 26, and 27 were drawn with the intent to favor certain incumbents and disfavor others in

violation of the Florida Constitution, Article III, Section 20(a).

COUNT III



Congressional Plan, including but not limited to Districts 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15,

and 17 were drawn with the intent to diminish and/or the effect of diminishing the ability of

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---------------- ---- ------

racial and language minorities to participate in the political process and to elect candidates of

their choice in violation of the Florida Constitution, Article III, Section 20(a).

COUNT IV


b. The districts in the Legislature's Congressional Plan, including but not limited to

Districts 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 17, 20, 21, 22, 23, 24, 25, 26, and 27, are not

compact in violation of the Florida Constitution, Article III, Section 20(b ).

COUNTV


b. The districts in the Legislature's Congressional Plan, including but not limited to

Districts 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 17, 20, and 21, fail to utilize existing political and

geographic boundaries where feasible in violation of the Florida Constitution, Article Ill, Section

20(b).

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully pray that this Court:

a. Assume jurisdiction of this action.

b. Issue a declaratory judgment, pursuant to Fla. Stat. § 86.011 (2011) as well as Fla.

Stat. § 26.012(3) (2011) declaring that the Legislature's Congressional Plan and/or individual

districts in the Legislature's Congressional Plan violate Article III, Section 20 of the Florida

Constitution.

c. Issue preliminary and permanent injunctions enJommg the Defendants, their

agents, employees, and those persons acting in concert with them, from enforcing or giving any

effect to the proposed Congressional district boundaries as drawn in the Legislature's

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A. 54

Congressional Plan, including enJommg Defendants from conducting any elections for the

United States House of Representatives based on the Legislature's Congressional Plan.

d. Enter an order adopting a lawful Congressional redistricting plan for the State of

Florida or direct the Florida Senate and the Florida House to adopt a lawful Congressional

districting plan for the State of Florida.

e. Make all further orders as are just, necessary, and proper to ensure complete

fulfillment of this Court's declaratory and injunctive orders in this case.

f. Issue an order requiring Defendants to pay Plaintiffs' costs and expenses incurred

in the prosecution ofthis action, as authorized by Fla. Stat.§ 86.081 (2011).

g. Grant such other and further relief as it seems is proper and just.

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Respectfully submitted this 3rd day of April, 2012,

Rotfl.M?! [email protected] Florida Bar No. 0148248 MEYER, BROOKS, DEMMA AND

BLOHMP.A. 131 North Gadsden Street Post Office Box 154 7 Tallahassee, Florida 32302 Telephone: 850-878-5212 Facsimile: 850-656-6750

Paul M. Smith* [email protected] Michael B. DeSanctis* [email protected] Jessica Ring Amunson* [email protected] Kristen M. Rogers* [email protected] *Pro Hac Vice JENNER & BLOCK, LLP 1099 New York Ave NW, Suite 900 Washington, DC 20001 Telephone: 202-639-6000 Facsimile: 202-639-6066

J. Gerald Hebert [email protected] Pro Hac Vice 191 Somervelle Street, #415 Alexandria, VA 22304 Telephone: 703-628-4673

Counsel for The Coalition

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I certify that a true and correct copy of this submission was furnished by email and by

overnight mail to the following parties on this 3rd day of April, 2012:

Blaine Winship OFFICE OF THE ATTORNEY GENERAL

PL-0 1, The Capitol Tallahassee, Florida 32399-0400 Telephone: (850) 414-3300 Facsimile: (850) 488-4872 blaine. wins hi [email protected]

Attorney for the Attorney General

Ashley E. Davis Daniel E. Nordby FLORIDA DEPARTMENT OF STATE

500 South Bronaugh Street, Suite 100 Tallahassee, Florida 32399 Telephone: (850) 245-6536 Facsimile: (850) 245-6127 Ashley .Davis@DOS .myflorida.com Daniel.N ordby@DOS .myflorida.com

Attorneys for Florida Secretary of State

Andy Bardos Special Counsel to the President THE FLORIDA SENATE

404 South Monroe Street, Suite 409 Tallahassee, Florida 32399 Telephone: (850) 487-5229 [email protected]

Michael A. Carvin JONES DAY

51 Louisiana Avenue N.W. Washington, D.C. 20001 macarvin@jonesday .com

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A. 57

Cynthia Skelton Tunnicliff Peter M. Dunbar PENNINGTON, MOORE, ET. AL.

215 South Monroe Street, Second Fl. Tallahassee, FL 32301 Telephone: (850) 222-3533 [email protected] [email protected]

Attorneys for the Florida Senate

Charles T. Wells George N. Meros, Jr. Jason L. Unger Allen C. Winsor Charles B. Upton II GRA YROBINSON, P.A. Post Office Box 11189 Tallahassee, Florida 32302 Telephone: (850) 577-9090 Facsimile: (850) 577-3311 Charles. [email protected] [email protected] [email protected] Allen. [email protected] [email protected]

George T. Levesque General Counsel FLORIDA HOUSE OF REPRESENTATIVES

422 The Capitol Tallahassee, Florida 3 23 99-13 00 Telephone: (850) 488-0451 [email protected]

Miguel De Grandy 800 Douglas Road, Suite 850 Coral Gables, Florida 33134 Telephone: (305) 444-7737 Facsimile: (305) 443-2616 [email protected]

Attorneys for the Florida House of Representatives

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IN THE CIRCUIT coURT oF THE sECOND JUDICIAL ciRcuif I L E D IN AND FOR LEON COUNTY, FLORIDA ,12 JUL· I 'f PM

4: 2 3

RENE ROMO, an individual; BENJAMIN ) WEAVER, an individual; eta!., )

Plaintiffs,

BOB INZEr\ CLERK CIRCUIT COURT

r,EO'I rOIHITY, FLORIDA

v.

) ) ) ) ) ) ) ) ) ) )

CASE NO.: 2012-CA-00412

KENNETH W. DETZNER, in his official capacity as Florida Secretary of State; PAMELA JO BONDI, in her capacity as Attorney General,

Defendants.

THE LEAGUE OF WOMEN VOTERS OF FLORIDA, et a!.,

Plaintiffs,

V.

) ) ) ) ) ) )

KENNETH W. DETZNER, in his official ) capacity as Florida Secretary of State; THE ) FLORIDA SENATE; eta!., )

Defendants. ) )

CASE NO.: 2012-CA-00490

NOTICE OF TAKING DEPOSITIONS

TO: ALL COUNSEL OF RECORD (SEE SERVICE LIST)

PLEASE TAKE NOTICE that counsel for the Coalition Plaintiffs will take the

depositions of the following individuals at the times noted below. These depositions will be held

at Meyer, Brooks, Demma and Blolun, P.A., 131 North Gadsden St., Tallahassee, FL 32301

before a Court Reporter authorized by law to take depositions.

A. 59

Senator Andy Gardiner

Jay Ferrin Administrative Assistant Senate Reapportionment Committee

J. Alex Kelly Staff Director House Redistricting Committee

August 27, 9:30a.m.

August 28, 9:30a.m.

August 29, 9:30a.m.

These depositions are being taken for the purpose of discovery or any other purpose for

which they may be used under applicable laws and rules of the State of Florida.

DATED this f ;:Ji day ofJuly, 2012.

BRUCE V. SPIVA The Spiva Law Firm PLLC [email protected] Admitted Pro Hac Vice 1776 Massachusetts Ave., N.W. Suite 601 Washington, D.C. 20036 Telephone: 202-785-0601

Facsimile: 202-785-0697

J. Gerald Hebert [email protected] Admitted Pro Hac Vice 191 Somervelle Street, #415 Alexandria, VA 22304 Telephone: 703-628-4673

bmitted,

;\_ .MEYER

Florida Bar No. 0148248 Email: [email protected] Meyer, Brooks, Demma and Blohm, P.A. 131 North Gadsden Street Post Office Box 1547 (32302) Tallahassee, FL 32301 (850) 878-5212 Telephone (850) 656-6750 facsimile

Michael B. DeSanctis [email protected] Paul M. Smith [email protected] Jessica Ring Amunson [email protected] Kristen M. Rogers [email protected] Jenner & Block, LLP All above counsel admitted Pro Hac Vice 1099 New York Ave NW, Suite 900 Washington, DC 20001 Telephone: 202-639-6000 Facsimile: 202-639-6066

ATTORNEYS FOR COALITION PLAINTIFFS

2

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I certify that a copy hereof has been furnished on this J}5ay of July, 2012 by e-mail

and U.S. mail to:

Joseph W. Hatchett Akerman Senterfitt I 06 E. College A venue, Suite 1200 Tallahassee, FL 3230 I

Jon L. Mills Karen Dyer Elan Nehleber Boies, Schiller & Flexner, LLP 121 S. Orange Avenue, Suite 840 Orlando, FL 32801-3233

Marc Elias Kevin J. Hamilton John M. Devaney AbhaKhanna Perkins Coie, LLP 700 Thirteenth Street, NW, Suite 600 Washington, D.C. 20005-3960

Attorneys for Rene Ramo, Benjamin Weaver, William Everett Warinner, Jessica Barrett, June Keener, Richard Quinn Boylan (Ramo Plaintiffs)

Blaine Winship OFFICE OF THE ATTORNEY GENERAL

PL-01, The Capitol Tallahassee, Florida 32399-0400 [email protected]



500 South Bronough Street, Suite 100 Tallahassee, Florida 32399 [email protected] [email protected]


3

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Leah Marino Deputy General Counsel THE FLORIDA SENATE

404 South Monroe Street, Suite 409 Tallahassee, Florida 32399 marino .leah@flsenate. gov


51 Louisiana Avenue N.W. Washington, D.C. 20001 [email protected]


215 South Monroe Street, Second Fl. Tallahassee, FL 32301 [email protected] [email protected]


Charles T. Wells George N. Meros, Jr. Jason L. Unger Allen C. Winsor Charles B. Upton II GRA YROBINSON, P.A.

Post Office Box 11189 Tallahassee, Florida 32302 Charles. [email protected] [email protected] [email protected] Allen. [email protected] [email protected]


422 The Capitol Tallahassee, Florida 32399-1300 [email protected]

Miguel De Grandy 800 Douglas Road, Suite 850 Coral Gables, Florida 33134 [email protected]


4

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Harry 0. Thomas Christopher B. Lunny Radey Thomas Yon & Clark, P.A. 301 S. Bronough Street, Suite 200 Tallahassee, Florida 32301 [email protected] [email protected]

Attorneys for Intervenors/Defendants Negron, Suarez, Rodriguez, Pinder, Mathiri, Mount, Barnes, Butler, and Wise

Stephen Hogge 117 South Gadsden Street Tallahassee, Florida 3230 I [email protected]

Charles G. Burr Burr & Smith, LLP Grand Central Place 442 W. Kennedy Blvd., Suite 300 Tampa, Florida 33606 [email protected]

Allison J. Riggs Anita S. Earls Southern Coalition for Social Justice 1415 W. Highway 54, Suite 101 Durham, North Carolina 27707 [email protected] [email protected]

Victor L. Goode Dorcas R. Gilmore NAACP 4805 Mt. Hope Drive Baltimore, Maryland 21215 [email protected] [email protected]

Attorni!Jls for lntervenor!De,Endant, NAACP

RootlJJ:::.. /

5

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IN THE CIRCUIT COURT FOR THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA

RENE ROMO, an individual; BENJAMIN WEAVER, an individual; et. al,

Plaintiffs, vs.

KEN DETZNER, in his official capacity as Florida Secretary of States, PAMELA JO BONDI, in her official capacity as Attorney General,

Defendants.

------------------------------~/ THE LEAGUE OF WOMEN VOTERS OF FLORIDA; THE NATIONAL COUNCIL OF LA RAZA; et al.,

Plaintiffs,

vs.

KEN DETZNER, in his official capacity as Florida Secretary of State; THE FLORIDA SENATE; et al.,

Defendants.

------------------------------~/

CASE NO. 2012-CA-000412

CASE NO. 2012-CA-000490

LEGISLATIVE DEFENDANTS' MOTION FOR PROTECTIVE ORDER BASED ON LEGISLATIVE PRIVILEGE

The Hon. Dean Cannon, in his official capacity as the Speaker ofthe Florida House of

Representatives, the Florida House of Representatives, the Hon. Mike Haridopolos, in his official

capacity as President of the Florida Senate, and the Florida Senate ("Legislative Defendants")

respectfully submit this motion for protective order based on legislative privilege.

Discovery is underway in this case and set to close December 28, 2012. Trial begins

February 11, 2013. Although discovery is in its early stages, it is clear that Plaintiffs' discovery

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will implicate important issues oflegislative privilege. Specifically, Plaintiffs have indicated

that they will seek (i) deposition testimony oflegislators and legislative staff and (ii) discovery

of legislatively drawn draft redistricting plans that were never filed as bills. Cf § 11.0431(2)(e),

Fla. Stat. (exempting from public disclosure a "draft ... of a reapportionment plan or

redistricting plan and an amendment thereto [and a ]ny supporting documents associated with

such plan or amendment until a bill implementing the plan, or the amendment, is filed").

On July 11, 2012, the LOWV Plaintiffs filed notices of depositions directed to one

legislator (Senate Majority Leader Andy Gardiner) and two legislative staff members (Jay Ferrin,

Administrative Assistant to the Senate Reapportionment Committee, and J. Alex Kelly, Staff

Director of the House Redistricting Committee). While the LOWV Plaintiffs have agreed to

defer the depositions until this Motion is resolved, they have indicated that this is only the

beginning. The Ramo Plaintiffs have also indicated that they will seek deposition testimony

from members or staff of the Legislature.

Because of the litigation schedule already in place, the depositions that Plaintiffs have

already noticed, and the need to advance this important issue in sufficient time to permit

appellate review (if necessary), the Legislative Defendants now seek entry of an order regarding

legislative privilege. This Court's ruling on this critical issue will promote efficiency with

remaining discovery issues and provide the parties a roadmap for further discovery.

Based on legislative privilege, this Court should enter an order declaring that (i) no

legislators or legislative staff may be deposed, and (ii) unfiled legislative draft maps and

supporting documents are not discoverable. 1

1 By raising these specific issues now, the Legislative Defendants do not waive any other privileges or objections.

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I. STATE LAW PROVIDES FOR A LEGISLATIVE PRIVILEGE.

In unmistakable terms, the First DCA recently held that state legislators are entitled to a

testimonial privilege. In Florida House of Representatives v. Expedia, 85 So. 3d 517 (Fla. 1st

DCA 2012), litigants sought testimony of a Representative and his aide relating to their work in

the legislative process. The Court concluded that legislative privilege precluded the discovery

for two independent reasons: First, a legislative privilege long existed at common law, which

was incorporated by statute into Florida law. And second, the Florida Constitution's strict

separation of powers protects against judicial intrusion into the legislative function.

A. Florida Law Provides a Legislative Privilege By Expressly Incorporating Common Law.

As the First DCA recognized, Section 2.01, Florida Statutes, incorporates into Florida

law "[t]he common law and statute laws of England which are of a general and not a local nature

... provided said statutes and common law [are] not inconsistent with the Constitution and laws

ofthe United States and the acts of the Legislature ofthis state." Therefore, "iflegislative

privileges and immunities existed under the common law, they continue to exist." Expedia, 85

So. 3d at 523.

The Court had little trouble finding that these privileges existed at common law. It began

by observing that "[t]he principle oflegislative immunity was so well established in English and

American law that it was incorporated into the United States Constitution." Id. at 522. Article I,

section 6, of the United States Constitution, known as the "Speech or Debate Clause," affords

federal legislators a testimonial privilege, providing that "they shall not be questioned in any

other Place." In Tenney v. Brandhove, 341 U.S. 367 (1951), which the DCA described as "the

leading case," the United States Supreme Court explored the privilege's rich and uninterrupted

history, which "has taproots in the Parliamentary struggles of the Sixteenth and Seventeenth

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Centuries":

As Parliament achieved increasing independence from the Crown, its statement of the privilege grew stronger. In 1523, Sir Thomas More could make only a tentative claim. In 1668, after a long and bitter struggle, Parliament finally laid the ghost of Charles I, who had prosecuted Sir John Elliot and others for "seditious" speeches in Parliament. In 1689, the Bill of Rights declared in unequivocal language: "That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament."

Freedom of speech and action in the legislature was taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation. It was deemed so essential for representatives of the people that it was written into the Articles of Confederation and later into the Constitution ....

341 U.S. at 372.

Although the Florida Constitution does not include an express analogue to the Federal

Constitution's Speech or Debate Clause, the First DCA nonetheless found Tenney and its

progeny significant: "These decisions illustrate that the Speech or Debate Clause is based on

legislative privileges and immunities that are firmly rooted in the common law." Expedia, 85 So.

3d at 522. Additionally, the First DCA noted that although the federal Speech or Debate Clause

applies only to federal legislators, the Supreme Court in Tenney "applied the underlying common

law principles" to grant state legislators immunity. Id.

The principles underlying the Speech or Debate Clause and those underlying the common

law privilege are the same. "In order to enable and encourage a representative of the public to

discharge his public trust with firmness and success, it is indispensably necessary, that he should

enjoy the fullest liberty of speech, and that he should be protected from the resentment of every

one, however powerful, to whom the exercise of that liberty may occasion offense." Tenney, 341

U.S. at 3 73 (quoting II Works of James Wilson (Andrews ed. 1896) 3 8). In short, legislative

privilege was necessary "to protect the integrity of the legislative process by insuring the

independence of individual legislators." United States v. Brewster, 408 U.S. 501, 507 (1972);

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accord United States v. Johnson, 383 U.S. 169, 181 (1966) (privilege existed "to prevent

intimidation by the executive and accountability before a possibly hostile judiciary"); Expedia,

85 So. 3d at 524 (recognizing that"[ o ]ne purpose of common law legislative immunity was to

protect the independence of the legislature"); cf also id. at 522 ("The principles that give rise to

the need to immunize legislators are the same as those that justify immunity for members of

other branches of government.").

The paramount interest in protecting the integrity of the legislative process is plainly at

stake here. Plaintiffs, who were political opponents of the challenged legislation, now seek to

depose the legislators who voted contrary to Plaintiffs' political wishes. Our democracy depends

on the freedom of legislators to make independent, uncoerced decisions, without intimidation or

threat of deposition by political opponents. The First DCA emphasized that "[t]he power vested

in the legislature under the Florida Constitution would be severely compromised iflegislators

were required to appear in court to explain why they voted a particular way or to describe their

process of gathering information on a bill." Jd. at 524.

To address these very issues, a legislative privilege emerged and has long been firmly

established by common law. And through Section 2.01, Florida Statutes, that deep-rooted

common law is the law of Florida. See id. at 523-24. But even putting this common law aside,

Florida's strict separation-of-powers principles independently support the same privilege.

B. The Florida Constitution's Strict Separation of Powers Independently Provides a Legislative Privilege.

"As an independent ground" for its decision finding legislative privilege, the First DCA

concluded "that legislative privilege exists by virtue of the separation-of-powers provision of the

Florida Constitution." Jd. at 524. The separation-of-powers issue is closely related to the

common law because, in addition to "protect[ing] the independence of the legislature," another

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purpose of the common law was actually "to 'reinforce the separation of powers' between the

branches of government." I d. (quoting Fowler-Nash v. Democratic Caucus of Pa. House of

Representatives, 469 F.3d 328, 331 (3d Cir. 2006)). Florida's separation-of-powers doctrine,

though, extends beyond common law, which is why the First DCA found it an entirely

independent ground for establishing the privilege.

The Florida Constitution provides that "[t]he powers of the state government shall be

divided into legislative, executive and judicial branches. No person belonging to one branch

shall exercise any powers appertaining to either of the other branches unless expressly provided

herein." Art. II,§ 3, Fla. Canst. "The importance of this provision cannot be overstated,"

Expedia, 85 So. 3d at 524, and, indeed, the Florida Supreme Court has described the separation

of powers as "the cornerstone of American democracy," Bush v. Schiavo, 885 So. 2d 321, 329

(Fla. 2004); accord State v. Cotton, 769 So. 2d 345, 353 (Fla. 2000) ("This Court ... has

traditionally applied a strict separation of powers doctrine .... "). This "cornerstone" provision

prevents one branch of state government from intruding on powers vested in another, and "[ o ]ur

state government could not maintain the proper 'separation' required by Article II, section 3 if

the judicial branch could compel an inquiry into these aspects of the legislative process."

Expedia, 85 So. 3d at 524.

For these reasons, and as the First DCA plainly found, Florida law affords a legislative

privilege, which this Court must enforce. Because Florida law is clear, the Court need look no

further. Nonetheless, it is noteworthy that principles of federal law are also implicated in this

case,· and federal common law provides an equally strong legislative privilege.

II. FEDERAL COMMON LAW PROVIDES FOR A LEGISLATIVE PRIVILEGE.

Even though a state court would not ordinarily apply (or be bound by) federal common

law, where "uniquely federal interests are so committed by the Constitution and laws of the

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United States to federal control that state law is pre-empted and replaced, where necessary,

by ... federal common law." Boyle v. United Technologies Corp., 487 U.S. 500, 504 (1988); see

also United States v. Standard Oil Co. of Cal., 332 U.S. 301, 310 (1947) (whether federal

common law applies "necessarily is dependent upon a variety of considerations always relevant

to the nature of the specific governmental interests and to the effects upon them of applying state

law [including] considerations of federal supremacy in the performance of federal

functions .... "). This is plainly one such area with unique federal interests. In enacting a

congressional redistricting plan, the Florida Legislature is exercising a federal power expressly

delegated to it by the federal Elections Clause, Article I, Section 4 of the United States

Constitution. It is undisputed that state legislatures have no inherent authority to regulate federal

elections, see Cook v. Gralike, 531 U.S. 510, 522 (2001), and it is likewise undisputed that

congressional redistricting constitutes regulation of federal elections, see, e.g., Branch v. Smith,

538 U.S. 254, 266 (2003). Thus, when the Florida Legislature enacted the plan at issue, it was

operating "only within the exclusive delegation of power under the Elections Clause." Cook,

531 U.S. at 523. Likewise, when Florida's citizens vote for congressional representatives under

the enacted plan, they are not (as Plaintiffs suggest) vindicating any state right, they are "act[ing]

in a federal capacity and exercis[ing] a federal right." US. Term Limits, Inc. v. Thornton, 514

U.S. 779, 842 (1995) (Kennedy, J., concurring); accord id. ("The federal character of

congressional elections flows from the political reality that our National Government is

republican in form and that national citizenship has privileges and immunities protected from

state abridgment by the force of the Constitution itself.").

The privilege recognized by the federal common law is essentially the same as the

privilege recognized by states. In fact, many states import federal common-law immunity into

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state law, and as explained above, the First DCA in Expedia relied on federal decisions. See

also, e.g., Camacho v. Samaniego, 954 S.W.2d 811, 823 (Tex. App. 1997) ("Because the

jurisprudence of legislative immunity is not well developed in Texas, we will rely on federal

authorities to assess the applicability of this form of immunity to the case before us."); Brown v.

City of Bordentown, 791 A.2d 1007, 1010 (N.J. Super. Ct. App. Div. 2002) (adopting federal

common-law legislative immunity in state-law action); Dublin v. State, 742 N.E.2d 232, 236-37

(Ohio Ct. App. 2000) (evaluating federal cases to define legislative immunity).

Because important federal interests are at stake, and because state courts frequently look

to federal law on the issue of legislative privilege, a recent decision from Judge Hinkle is

particularly instructive here. In the State of Florida's federal lawsuit for Section 5 preclearance

of certain provisions in a recently enacted election law, Florida v. United States, Case No. 1:11-

cv-01428 (D.D.C.), numerous interest groups intervened to oppose the State of Florida's

preclearance request. Among those were some Plaintiffs here, including the National Council of

La Raza and the League of Women Voters of Florida. Those parties sought testimony and

documents from Florida legislators, and, in an ancillary discovery proceeding, moved the United

States District Court for the Northern District of Florida for an order compelling the discovery.

See Florida v. United States, Ancillary Case No. 4:12-mc-3-RH (N.D. Fla.). After extensive

argument from counsel for La Raza and the League of Women Voters and others, Judge Hinkle

denied the motion and upheld the legislative privilege. 2

Applying federal law, Judge Hinkle recognized the existence of the legislative privilege.

2 Judge Hinkle ruled from the bench on February 3, 2012. Although he indicated he will enter a written order, he has not yet done so. On the record, he noted that if movants sought an appeal, they could file a notice and he would immediately file an appealable final written order. Movants filed no such notice, took no appeal, and discovery has now closed in the Washington, D.C., case. Judge Hinkle explained the basis ofhis order at length, and this Motion will cite to that portion of the hearing transcript, which is attached as Exhibit A.

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(Tr. at 91.) In reaching his decision, he indicated that Florida state law impacted his analysis of a

federal privilege, and he had "no doubt that, if the issue were presented to the Florida Supreme

Court of whether a legislator has a privilege against testify-being compelled to testify about the

legislator's motivation, the Florida Supreme Court would say there is such a privilege." (Jd. at

95.)3 Judge Hinkle next noted the LOWV and La Raza's inability "to identify a single case"

"where a court had compelled a state legislator to give a deposition over objection when the

legislator was not going to testify voluntarily in the case." (Jd. at 97.) He went on to recognize,

"[i]n fairness, there's no case quite like this sustaining the privilege either," which he attributed

"[p ]artly because in practice people recognize, without even thinking about it, that there is the

privilege." (Jd.)4

In addition to Judge Hinkle's recent order in an elections case, the federal challenge to

Florida's last redistricting addressed the same privilege issue. In Martinez v. Bush, Case No. 02-

20224 (S.D. Fla. 2002) (three-judge court), Plaintiffs sought depositions of several legislators

and staff. The Court granted protective orders, finding that:

A state legislator cannot, under the circumstances of this case, be compelled to testify concerning his or her reasons for actions taken as part of the legislative process (which includes not only the casting of votes but the processes leading to the formulation and the consideration oflegislation).

(Id. doc. 201 at 1-2) (Exhibit B to this Motion).

For the same reasons that Judge Hinkle denied LOWV and La Raza's request to depose

Florida legislators in the Section 5 case and the three-judge Martinez Court denied challengers'

request to depose Florida legislators in the 2002 case, this Court should deny Plaintiffs' request

3 Judge Hinkle's bench ruling did not mention the First DCA's decision in Expedia, which had not yet issued.

4 Judge Hinkle, like the First DCA, recognized "the chilling effect that compelled testimony would impose on a legislator" along with the "interest that underlies the constitutional principle of separation of powers." (!d. at 96-97.)

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to depose Florida legislators in this case. (Additionally, unlike Florida's federal district courts,

this Court is bound by the First DCA's Expedia decision and other Florida law.)

III. THE PRlVILEGE APPLIES EQUALLY TO LEGISLATORS AND LEGISLATIVE STAFF.

The privilege is not limited to the legislators themselves. The DCA had "little doubt that

the privilege may be asserted by legislative staff members as well." Expedia, 85 So. 3d at 525.

Otherwise, "[t]he reason for affording a legislative privilege could be subverted entirely." !d.;

see also Gravel v. United States, 408 U.S. 606, 616-617, 629 (1972) (applying privilege to both

legislator and aides and assistants, "the day-to-day work of [whom] is so critical to [a

legislator's] performance that they must be treated as the latter's alter egos"); Martinez, doc. 201

at 2 ("Similarly, a legislator's staff cannot, under the circumstances of this case, be compelled to

testify concerning communications with the legislator on the same topics."). The same is true

whether the staff member is a legislator's personal aide or committee staff. See, e.g., Eastland v.

US. Servicemen's Fund, 421 U.S. 491, 507 (1975); Doe v. McMillan, 412 U.S. 306, 312-13

(1973); see also Fla. Legislature v. Sauls, Case No. 80,834 (Fla. Feb. 3. 1993) (unpublished writ

of prohibition directing that the "Circuit Judge in and for Leon County, Florida, desist from

compelling testimony from Ms. Wendy Westling, a legislative assistant of the Florida

Legislature") (attached as Exhibit C). Even an independent contractor retained by a redistricting

commission is entitled to the same protection as commission members, when he performs tasks

on their behalf. Ariz. Indep. Redist. Comm 'n v. Fields, 75 P.3d 1088 (Ariz. Ct. App. 2003).

Therefore, just as this Court must prohibit legislator depositions, it must prohibit depositions of

legislative staff and aides.

IV. NOTHING UNIQUE ABOUT AMENDMENT SIX OR REDISTRlCTING COMPELS A

DIFFERENT RESULT.

Faced with clear authority establishing legislative privilege in Florida, Plaintiffs are likely

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to argue that a redistricting challenge-or specifically an Amendment Six case-is somehow

different. It is not.

First, the principles on which the privilege is based are just as applicable to redistricting

challenges as to challenges to any other legislative action. Therefore, numerous other courts

have applied the privilege in redistricting cases. For example, in Holmes v. Farmer, 475 A.2d

976 (R.I. 1984), the Rhode Island Supreme Court found the privilege "ensures the separation of

powers" and "allows the free flow of debate among legislators and the maximization of an

effective and open exchange of ideas." Id. at 982. That it was a redistricting case changed

nothing:

The excluded testimony of the legislators concerned the actions and motivations of the legislators and the General Assembly in proposing and passing the reapportionment plan. Inquiry by the court into the actions or motivations of the legislators in proposing, passing, or voting upon a particular piece of legislation ... falls clearly within the most basic elements oflegislative privilege.

Id. at 984. Likewise, in In re Perry, 60 S.W.3d 857 (Tex. 2001), the Texas Supreme Court

upheld privilege in a redistricting challenge, finding that a legislative redistricting board, "in

apportioning legislative districts pursuant to constitutional mandate, were acting in a legislative

capacity and are cloaked, as are their aides, with legislative immunity." Id. at 858. And in The

Arizona Independent Redistricting Commission v. Fields, 75 P.3d 1088 (Ariz. Ct. App. 2003),

the Court applied the privilege to an independent redistricting commission specially established

by the Arizona Constitution. Even though voters in that state removed redistricting from the

Legislature altogether, that constitutional sea change did not alter the legislative privilege.

Next, Amendment Six's enactment cannot undermine Florida's legislative privilege. The

Amendment's text says nothing about altering legislative privilege-or altering the Florida

Constitution's strict separation-of-powers provision. Had Amendment Six done so-had it

changed the separation of powers and longstanding principles by vesting this Court with

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authority to compel legislator depositions-the Florida Supreme Court would not have allowed

its submission to the voters. A citizen initiative amendment "shall embrace but one subject and

matter directly connected therewith." Art. XI, § 3, Fla. Const. The Florida Supreme Court

requires "strict compliance with the single-subject rule," which is violated "when a proposal

substantially alters or performs the functions of multiple branches." Advisory Opinion to

Attorney General re Standards For Establishing Legislative Dists., 2 So. 3d 175, 180-81 (Fla.

2009) (plurality) (citations and quotations omitted). In finding Amendment Six consistent with

the single-subject rule, the Florida Supreme Court held that it "address[ es] a single function of a

single branch of government-establishing additional guidelines for the Legislature to apply when

it redistricts ... congressional boundaries." Id. at 181. It found nothing about altering privilege.

Moreover, the ballot summary accompanying the Amendment said nothing of privilege,

judicial authority to compel legislator testimony, or separation of powers, id., and a

constitutional amendment must be "accurately represented on the ballot; otherwise, voter

approval would be a nullity," Armstrong v. Harris, 773 So. 2d 7, 12 (Fla. 2000). Although a

ballot summary must disclose the proposed amendment's effect on existing provisions of the

Constitution, see, e.g., Fla. Dep 't of State v. Fla. State Conference of NAACP Branches, 43 So.

3d 662, 669 (Fla. 2010); Advisory Opinion to the Att'y Gen. re Tax Limitation, 644 So. 2d 486,

494 (Fla. 1994), Amendment Six's ballot summary did not disclose any change to the

Constitution's separation-of-powers provision, see Art. II, § 3, Fla. Const. Any suggestion that

Amendment Six demands a more lenient privilege standard finds no support in law. If anything,

the fact that Amendment Six (and therefore federal redistricting) is involved demands an even

higher standard to overcome privilege because of the important federal interests involved.

To the extent Plaintiffs argue that the analysis is different because of Amendment Six's

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focus on legislative purpose or intent, that argument fails too. Amendment Six's "intent" or

"purpose" inquiry is hardly unique. Indeed, the Florida Supreme Court recognized that part of

Amendment Six "reflects the statement codified in Section 5 of the VRA prohibiting

apportionment plans that have 'the purpose of or will have the effect of diminishing the ability of

any citizens ... on account of race or color ... to elect their preferred candidates of choice.'" In

re Senate Joint Resolution of Legislative Apportionment 1176, 83 So. 3d 597, 620 (Fla. 2012)

(quoting VRA Section 5, 42 U.S.C. § 1973c(b) (2006)) (emphasis added). 5 Judge Hinkle

squarely rejected Plaintiffs' argument that Section 5 litigation-with its identical "purpose"

prong-was sufficiently special to overcome the privilege. (Tr. at 99) ("I'm certain that Voting

Rights Act cases are especially important, but they are not uniquely important.").

Additionally, purpose and intent were plainly at issue with the multiple federal claims

rejected in the Martinez case in 2002, which included claims based on Equal Protection and

Section 2 ofthe VRA. See Parks v. City of Warner Robins, 43 F.3d 609, 616 (11th Cir. 1995)

("[P]roof of discriminatory intent or purpose is a necessary prerequisite to any Equal Protection

Clause claim."); In re Senate Joint Resolution, 83 So. 3d at 619 (Amendment's imperative "that

'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,' is essentially a

restatement of Section 2 of the Voting Rights Act") (citing 42 U.S.C. § 1973(b) (2006))

(emphasis added). There is simply nothing about Amendment Six that makes it more important

or unique when compared to the federal Voting Rights Act or the Equal Protection Clause of the

United States Constitution.

Finally, Plaintiffs' misplaced allegations of improper purpose cannot overcome the

5 The Florida Supreme Court was interpreting Amendment Five-not Amendment Sixbut the relevant language is identical.

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privilege. As the United States Supreme Court said in Tenney, "[t]he claim of an unworthy

purpose does not destroy the privilege." 341 U.S. at 377. If Plaintiffs could subject legislators to

deposition merely by alleging they legislated for improper purposes, "[t]he privilege would be of

little value." !d. A court order compelling testimony to explore charges of improper legislative

purpose would offend the separation of powers and undermine legislative function just as much

as allowing the testimony to explore legislative motives otherwise. Moreover, even iflegislators

acted improperly, the privilege is not to protect them individually-it is to protect the overall

legislative function: "Legislators are immune from deterrents to the uninhibited discharge of

their legislative duty, not for their private indulgence but for the public good." Tenney, 341 U.S.

at 377; accord Girardeau v. State, 403 So. 2d 513, 516-17 (Fla. 1st DCA 1981) (quoting

Tenney); Coffin v. Coffin, 4 Mass. 1, 27 (1808) (privilege is not to protect legislators' individual

interests, "but to support the rights of the people, by enabling their representatives to execute the

functions of their office without fear").

V. LEGISLATIVE DOCUMENTS RELATED TO LEGISLATIVE COMMUNICATIONS THAT ARE NOT PUBLIC RECORDS ARE ENTITLED TO PROTECTION.

Next, the legislative privilege is not limited to oral testimony because"[ d]ocumentary

evidence can certainly be as revealing as oral communications." Brown & Williamson Tobacco

Corp. v. Williams, 62 F.3d 408, 420 (D.C. Cir. 1995). Therefore, the legislative privilege

reaches legislative documents that are not public records under Florida law. Indeed, numerous

courts have recognized that the legislative privilege extends beyond oral testimony and reaches

document production, see, e.g., Simpson v. City of Hampton, Va., 166 F.R.D. 16, 18-19 (E.D. Va.

1996) (denying motion to compel discovery of "personal notes and files, as they are protected by

testimonial legislative privilege."); 2BD Assocs. Ltd. P 'ship v. County Comm 'rs for Queen

Anne's County, 896 F. Supp. 528 (D. Md. 1995) (finding that documents relevant to the

\255036\8 - # 323103 v4 14

A. 77

challenged ordinance were protected by legislative immunity); Brown & Williamson Tobacco

Corp., 62 F.3d at 420, 421 (holding documentary evidence can be as revealing as oral

communications and thus documents in the hands of congressional members are discoverable

"only if the circumstances by which they come can be thought to fall outside 'legislative acts' or

the legitimate legislative sphere"); United Transp. Union v. Springfield Terminal Ry. Co., 132

F.R.D. 4, 7 (D. Me. 1990) (permitting discovery of internal legislative communications would

cause a "significant entrenchment on legislative independence"), including in the redistricting

context, see, e.g., Ariz. Indep. Redist. Comm 'n v. Fields, 75 P.3d 1088, 1099 (Ariz. Ct. App.

2003) (redistricting case finding not only testimonial privilege but also that "to the extent the

legislative privilege protects against inquiry about a legislative act or communications about that

act, the privilege also shields from disclosure documentation reflecting those acts or

communications").

Nonetheless, Plaintiffs in this case have requested certain legislative materials that are

or relate to-draft maps that were never filed as bills or amendments. Although the Florida

Constitution grants public access to many government records, it expressly authorizes the

Legislature to exempt certain materials. Art. I, § 24, Fla. Const. Pursuant to this express

authority, the Legislature exempted "[a] draft, and a request for a draft, of a reapportionment

plan or redistricting plan and an amendment thereto [and a]ny supporting documents associated

with such plan or amendment until a bill implementing the plan, or the amendment, is filed."

§ 11.0431(2)(e), Fla. Stat.; see also Fla. H. Rep. R. 14.1 (incorporating§ 11.0431, Fla. Stat. by

rule as applied to public records exceptions); Fla. Sen. R. 1.444(8) (exempting from public

records same documents).

Access to public records that are not exempt from public disclosure does not offend

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A. 78

Florida's separation of powers because the Florida Constitution expressly provides such public

access. To the extent the Constitution grants access to legislative records, it derogates from the

common law legislative privilege and must be read to coexist with the separation-of-powers

provision. But with records exempt from disclosure, the public has no such constitutional right

of access, and the legislative privilege continues to apply without impairment.

Even if the public had access to exempt documents, it would not be through this Court.

Chapter 119 affords public access to executive documents and authorizes judicial relief if the

executive fails to provide them. See generally Ch. 119, Fla. Stat. But Chapter 119 does not

provide access to legislative documents. See Locke v. Hawkes, 595 So. 2d 32, 36 (Fla. 1992).

Instead, public access to legislative documents is governed by legislative rule. See Art. I,

§ 24( c), Fla. Const. And by rule, the House provides for appeals of public records decisions to

the Speaker of the House-not to the courts. See Fla. H. Rep. R. 14.1 ("Any person who is

denied access to a legislative record and who believes that he or she is wrongfully being denied

such access may appeal to the Speaker the decision to deny access.").

Overriding these mechanisms and ordering production of materials the Legislature has

exempted from public view (pursuant to the Legislature's express constitutional authority to do

so) would violate separation of powers. And for the same reasons that compelling legislator

testimony would implicate legislative privilege, compelling production of exempt records in

these circumstances would as well. This is particularly true with draft maps, which directly

reflect the legislative balancing and tradeoffs protected by legislative privilege. If opponents

could use non-public drafts to second-guess the Legislature's enacted product (as Plaintiffs

surely would here), the Legislature would be deterred from making continual improvements to

early drafts-precisely the type oflegislative chill the privilege exists to prevent.

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The balancing of the many Amendment Six criteria is inherently legislative, which is why

the United States Supreme Court found that judicial oversight of redistricting should be resisted:

And what is to happen to the [court's] plan if a resourceful mind hits upon a plan better than the [court's] by a fraction of a percentage point? Involvements like this must end at some point, but that point constantly recedes if those who litigate need only produce a plan that is marginally "better" . . . . The point is, that such involvements should never begin. We have repeatedly recognized that state reapportionment is the task of local legislatures or of those organs of state government selected to perform it.

Gaffoey v. Cummings, 412 U.S. 735, 750-51 (1973). The Florida Supreme Court recognized the

same thing, noting that "endeavoring to be respectful to the critically important role of the

Legislature, the Court has previously acknowledged that its duty is not to select the best plan, but

rather to decide whether the one adopted by the legislature is valid." In re Senate Joint

Resolution, 83 So. 3d at 608.

Granting Plaintiffs access to these deliberative documents, which are not public records,

would chill legislators and violate separation of powers. The Court should not permit it.

VI. INTENT OF ANY INDIVIDUAL LEGISLATOR OR STAFF MEMBER IS OF NO PROBATIVE

VALUE.

Last, overcoming legislative privilege and separation of powers would be particularly

inappropriate here, where the discovery sought is of little probative value, if any. Decades ago,

the Florida Supreme Court was asked to consider "affidavits of members of the Senate as to what

they intended to accomplish by the act brought in question." Sec. Feed & Seed Co. v. Lee, 189

So. 869, 870 (Fla. 1939). The Court properly rejected the invitation, concluding that "[t]he law

appears settled that such testimony is of doubtful verity if at all admissible to show what was

intended by the Act." Id. Similarly, the Court rejected a legislator's sworn testimony in

McLellan v. State Farm Mut. Auto Ins. Co., 366 So. 2d 811, 813 (Fla. 4th DCA 1979), overruled

on other grounds by S.C. Ins. Co. v. Kokay, 398 So. 2d 1355 (Fla. 1981), because "such proof is

\255036\8- # 323103 v4 17

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generally not accepted as admissible evidence to demonstrate legislative intent." Accord State v.

Patterson, 694 So. 2d 55, 58 n.3 (Fla. 5th DCA 1997) ("[T]estimonyprovided by former

Representative Glickman did not shed meaningful light on the legislature's intent ... . ");Fields

v. Zinman, 394 So. 2d 1133, 1135 (Fla. 4th DCA 1981) ("Our doubts are not assuaged by

affidavits of members of the legislature as to what their subjective intent was since there is no

indication that this intent was expressed to other members ofthe legislature."). 6

Deposing individual legislators or staff members or introducing privileged legislative

documents would not reveal the intent of the legislature as a body-the only intent at issue.

"Proving the motivation behind official action is often a problematic undertaking," Hunter v.

Underwood, 471 U.S. 222,228 (1985), and "is often an unsatisfactory venture," Pac. Gas &

Elec. Co. v. State Energy Res. Conservation & Dev. Comm 'n, 461 U.S. 190, 216 (1983). "What

6 Florida courts certainly are not outliers in this regard. See, e.g., Cave City Nursing Home, Inc. v. Ark. Dep 't of Human Servs., 89 S.W.3d 884, 890 (Ark. 2002) ("[T]he testimony of the legislators with respect to their intent in introducing legislation is clearly inadmissible."); Nadler v. Schwarzenegger, 137 Cal. App. 4th 1327, 1336, 41 Cal. Rptr. 3d 92, 98 (Cal. Ct. App. 2006) ("In this state, evidence that relates to the mental processes of individual legislators is irrelevant to the judicial task. Consequently, such evidence is not the proper subject of discovery requests.") (marks omitted); Jackson v. Delk, 361 S.E.2d 370, 372 (Ga. 1987) ("[I]n a judicial proceeding, the testimony of a legislator, with respect to the legislative intent underlying the enactment of a particular piece of legislation, is inadmissible."); Plymouth County Bus Transp., Inc. v. Greater New Bedford Reg'! Vocational Technical High Sch. Comm., 417 N.E.2d 481,486 n.15 (Mass. App. Ct. 1981) ("It is established that post-enactment testimony of an individual legislator is inadmissible to show the Legislature's intent in enacting a statute ... . ");State ex rel. Lute v. Mo. Bd. of Probation & Parole, 218 S.W.3d 431, 436 n.5 (Mo. 2007) ("[A]ffidavits of legislators are not admissible to discern legislative intent because an affidavit from a legislator only reflects the intent of one legislator out of 197 that voted on a particular bill."); Styers v. Phillips, 178 S.E.2d 583, 590 (N.C. 1971) ("The intention of the legislature cannot be shown by the testimony of a member."); United Tel. Emps. PAC v. Sec 'y of State, 906 P.2d 306 (Or. Ct. App. 1995) ("Subsequent statements by legislators are not probative of the intent of statutes already in effect.") (marks omitted); City of Yakima v. Int'l Ass 'n of Fire Fighters, AFL-CIO, Local469, Yakima Fire Fighters Ass 'n v. Int'l Ass 'n of Fire Fighters, AFL-CIO, 818 P.2d 1076, 1087 (Wash. 1991) ("The affiant's statements regarding legislative intent are inadmissible, it being well settled that the legislature's intent in passing a particular bill cannot be shown by the affidavit of a legislator.").

\255036\8 - # 323103 v4 18

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motivates one legislator to vote for a statute is not necessarily what motivates scores of others to

enact it." !d. Therefore, the United States Supreme Court refused to "give probative weight" to

legislator testimony "because such statements represent only the personal views of this

legislator," and "post hoc observations by a single member of Congress carry little if any

weight." Bread Political Action Comm. v. Fed. Election Comm 'n, 455 U.S. 577, 582 n.3 (1982)

(marks omitted); accord Tinsley Media, LLC v. Pickens County, Ga., 203 Fed. Appx. 268, 273

(11th Cir. 2006) ("The County cites no case in which this Court has upheld the admission of an

affidavit of a legislator as evidence of legislative intent. Our own review of the case law reveals

that the vast majority of courts reject the use of post hoc testimony as a means of determining

legislative intent."); Covalt v. Carey Canada Inc., 860 F.2d 1434, 1438 (7th Cir. 1988)

("Subsequent writings may be nothing but wishful thinking, and unless they are uttered as part of

the process of enacting a later law (and therefore show assumptions on which Congress as a

whole acted at least once) they are of no account."); Am. Constitutional Party v. Munro, 650

F.2d 184, 188 (9th Cir. 1981) ("As a member of the Conference Committee which drafted the

legislation, Representative Nelson's statement might be entitled to some weight if it had been

made contemporaneously with the passage of the legislation. Coming one year later, it is entitled

to no weight and cannot be relied on as indicative of legislative motivation or intent.").

Thus, legislative motive is most appropriately ascertained from objective evidence,

such as the enactment itself and the legislative record. See Flemming v. Nestor, 363 U.S. 603,

617 (1960) ("Judicial inquiries into Congressional motives are at best a hazardous matter, and

when that inquiry seeks to go behind objective manifestations it becomes a dubious affair

indeed."); Tamiami Trail Tours v. City ofTampa, 31 So. 2d 468, 470-71 (Fla. 1947) ("[W]e

should, if possible, determine from the legislative record what was the legislative intent."). This

\255036\8 - # 323103 v4 19

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familiar principle applies to redistricting plans no less than to other legislative enactments.

During the preclearance process, the Department of Justice determined compliance with the

"discriminatory purpose" provision of Section 5 without a single deposition, see 42 U.S.C.

§ 1973c, and, in its review of state legislative redistricting plans, the Florida Supreme Court

looked to "objective indicators of intent," In re Senate Joint Resolution, 83 So. 3d at 617.7 The

Court began its review with the plan itself, explaining that "the extent to which the Legislature

complies with the sum of Florida's traditional redistricting principles serves as an objective

indicator of the impermissible legislative purpose proscribed under tier one." Id. at 639; see id.

at 618 ("At the outset, objective indicators of intent to favor or disfavor a political party can be

discerned from the Legislature's level of compliance with our own constitution's tier-two

requirements, which set forth traditional redistricting principles."); id. at 672 ("Further, the

failure to comply with the tier-two standards, in the absence of any constitutionally valid

justification, objectively indicates intent to favor an incumbent."). The United States Supreme

Court considers the same objective evidence under the Equal Protection Clause to determine

whether race was the "predominant motive" in the enactment of a redistricting plan. See, e.g.,

Miller v. Johnson, 515 U.S. 900, 919 (1995) (concluding that "a legislature's compliance with

traditional districting principles such as compactness, contiguity, and respect for political

subdivisions may well suffice to refute a claim of racial gerrymandering") (marks omitted).

This is not to say that Plaintiffs are limited to the enactment itself. In discerning

legislative intent, courts have traditionally looked to the history of the enactment, and

7 In Village of Arlington Heights v. Metropolitan Housing Development Co., 429 U.S. 252 (1977), the United States Supreme Court discussed the sources from which a court might divine racially discriminatory intent under the Equal Protection Clause. The Court severely restricted the use of legislator testimony, limiting it to "extraordinary instances," and noting that "even then such testimony will frequently be barred by privilege." 429 U.S. at 268.

\255036\8 - # 323103 v4 20

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specifically to the legislative record. In this case, the legislative record is ample. The recent

redistricting process was beyond comparison the most open and transparent in the history of the

state. Over the course of two years, the Legislature compiled and publicized a vast legislative

record, which included recordings and transcripts of scores of committee meetings and public

hearings, as well as extensive floor debate. Plaintiffs have long had access to much of this

record, and tens of thousands of pages of documents have been or will be produced in discovery.

This production includes all records provided to the Department of Justice, on which it based its

"intent" evaluation. Staff analyses and other legislative staff materials have also been made

public, cf Ellsworth v. Ins. Co. ofN Am., 508 So. 2d 395, 398 (Fla. 1st DCA 1987) ("[C]ourts

may consider legislative staff summaries in construing statutes."), and countless press accounts

(also available to Plaintiffs) underscore the intense public scrutiny to which the legislative

process and the enacted plans were subjected. Further, the Legislature introduced and published

numerous redistricting alternatives, which legislative committees publicly evaluated, and which

remain publicly accessible. The enacted map and alternatives were debated at length, and those

debates are already available to Plaintiffs. Cf Amos v. Moseley, 77 So. 619 (Fla. 1917) (taking

judicial notice oflegislative journals in considering constitutionality oflaw). Additionally,

members of the public submitted no fewer than eighty-six congressional map proposals to the

Legislature through the House and Senate public websites, all of which the Legislature

immediately made public. The Legislature considered these along with nearly twenty other

public maps that it drew.

These and other materials that compose the record of proceedings in the Legislature

have been or will be produced, and they are plainly more probative than the privileged testimony

and materials Plaintiffs seek. Reliance on this record-as distinguished from the post-enactment

\255036\8- # 323103 v4 21

A. 84

testimony of select legislators or documents exempted by law from public inspection-not only

respects the Legislature's position as a coordinate branch, it is consistent with the usual method

by which courts determine the legislative intent of any statute. As in other cases, the Court here

must base its analysis of legislative intent on objective indicators in the legislative record.

This Court should therefore uphold the privilege and deny the requested discovery.

\255036\8 - # 323103 v4 22

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I HEREBY CERTIFY that a copy of the foregoing was sent by electronic mail on July

12, 2012, to the persons listed on the attached Service List.

Deputy General Counsel The Florida Senate Suite 409, The Capitol 404 South Monroe Street Tallahassee, FL 32399-1100 (850) 487.5229 Facsimile (850) 487-5087 [email protected]

Attorney for the Florida Senate

\255036\8 - # 323103 v4 23

~~BN086265) George N. Meros, Jr. (FBN 263321)

Jason L. Unger (FBN 0991562)

Allen Winsor (FBN 016295)

Charles B. Upton II (FBN 0037241)

GRA YROBINSON, P .A. Post Office Box 11189

Tallahassee, Florida 32302 (850) 577-9090

Facsimile (850) 577-3311 [email protected] [email protected]

Jason. [email protected] [email protected]

[email protected]

Miguel De Grandy (FBN 332331)

800 Douglas Road, Suite 850 Coral Gables, Florida 33134

(305) 444-7737 Facsimile (305) 443-2616

[email protected]

George T. Levesque (FBN 555541)

General Counsel Florida House of Representatives

422 The Capitol Tallahassee, Florida 32399-1300

(850) 410-0451 [email protected]


A. 86

SERVICE LIST

Joseph W. Hatchett AKERMAN SENTERFITT 106 E. College Ave., Suite 1200 Tallahassee, FL 32301 Telephone (850) 224-9634 Facsimile: (850) 222-0103 [email protected]

Jon L. Mills Elan N ehleber BOIES, SCHILLER & FLEXNER LLP 100 SE 2nd Street, Suite 2800 Miami, FL 33131-2144 Telephone: (305) 539-8400 Facsimile: (305) 539-1307 [email protected] [email protected]

AbhaKhanna Kevin J. Hamilton Marc Elias Perkins Coie, LLP 1201 Third Avenue, Suite 4800 Seattle, Washington 98101-3099 (206) 359-8000; Fax (206) 359-9000 [email protected] [email protected] melias@perkinscoie. com

Jessica Ring Amunson Paul Smith Michael B. DeSanctis Kristen M. Rogers Christopher Deal Jenner & Block LLP 1099 New York Avenue, N.W., Suite 900 Washington, DC 20001-4412 Tel (202) 639-6023 Fax (202) 661-4993 [email protected] [email protected] [email protected] [email protected] [email protected]

\255036\8- # 323103 v4

Karen C. Dyer BOIES, SCHILLER & FLEXNER LLP 121 South Orange Avenue, Suite 840 Orlando, FL 32801 Telephone: ( 407) 425-7118 Facsimile: ( 407) 425-704 7 [email protected]

John M. Devaney Mark Erik Elias Perkins Coie, LLP 700 Thirteenth Street, NW, Suite 700 Washington, DC 20005 (202) 654-6200; Fax (202) 654-6211 [email protected] [email protected]

Timothy D. Osterhaus Deputy Solicitor General Blaine H. Winship Office of Attorney General Capitol, Pl-01 Tallahassee, Florida 32399-1050 Attorney General of Florida 850-414-3300 850-401-1630 Timothy. [email protected] [email protected]

Ronald Meyer Lynn Hearn Meyer, Brooks, Demma and Blohm, P .A. 131 North Gadsden Street Post Office Box 1547 (32302) Tallahassee, Florida 850-878-5212 [email protected] Lhearn@meyerbrookslaw .com

24

A. 87

J. Gerald Hebert 191 Somervelle Street, #405 Alexandria, VA 22304 703-628-4673 Hebert@voterlaw .com

Harry 0. Thomas Christopher B. Lunny Radey, Thomas, Yon & Clark, P A 301 South Bronaugh Street Suite 200 Tallahassee, Florida 32301-1722

Charles G. Burr Burr & Smith, LLP Grand Central Place 442 West Kennedy Blvd., Suite 300 Tampa, Florida 33606

Daniel E. Nordby General Counsel Ashley Davis Assistant General Counsel Florida Department of State R.A. Gray Building 500 S. Bronaugh Street Tallahassee, Florida 32399 850-245-6536 850-294-8018 (cell) [email protected] [email protected]

Peter M. Dunbar Cynthia S. Tunnicliff Pennington, Moore, Wilkinson, Bell & Dunbar, P.A.

215 South Monroe Street, Second Floor Tallahassee, Florida 32301 (850) 222-3533 [email protected] cynthia@penningtonlaw. com

\255036\8 - # 323103 v4

Victor L. Goode Dorcas R. Gilmore NAACP 4805 Mt. Hope Drive Baltimore, MD 21215-3297

Stephen Hogge Stephen Hogge, Esq., LLC 117 South Gadsden Street Tallahassee, Florida 32301

Allison J. Riggs Southern Coalition for Social Justice 1415 West Highway 54, Suite 101 Durham, NC 27707

Michael A. Carvin Jones Day 51 Louisiana Avenue N.W. Washington, D.C. 20001 (202) 879-7643 [email protected]

25

A. 88



Plaintiffs, vs.

KEN DETZNER, in his official capacity as Florida Secretary of State, PAMELA JO BONDI, in her official capacity as Attorney General,

Defendants.

------------------------~/ THE LEAGUE OF WOMEN VOTERS OF FLORIDA; THE NATIONAL COUNCIL OF LA RAZA; et al.,

Plaintiffs,

vs.


Defendants.

--------------------------~/

CASE NO. 2012-CA-00412

CASE NO. 2012-CA-00490

LEGISLATIVE DEFENDANTS' NOTICE OF SUPPLEMENTAL AUTHORITY IN SUPPORT OF THEIR MOTION FOR PROTECTIVE ORDER

BASED ON LEGISLATIVE PRIVILEGE

The Hon. Dean Cannon, in his official capacity as Speaker of the Florida House of

Representatives, the Florida House of Representatives, the Hon. Mike Haridopolos, in his official

capacity as President of the Florida Senate, and the Florida Senate (collectively, the "Legislative

Defendants"), hereby call to the Court's attention the Order Denying the Motion to Compel State

Legislators and Staff Members to Appear for Depositions, entered by United States District

Judge Robert L. Hinkle in State of Florida v. United States of America, et al., Case No. 4:12mc3-

\255036\8 - # 331316 v2

A. 89

RH/CAS (N.D. Fla. Aug. 10, 2012), which is pertinent to the Court's consideration of the

Legislative Defendants' Motion for Protective Order based on Legislative Privilege. In their

Motion, the Legislative Defendants discussed Judge Hinkle's oral ruling, but noted that no

written order had yet issued.

A copy of the decision is attached to this notice.

\255036\8 -# 331316 v2 2

A. 90


I HEREBY CERTIFY that a copy of the foregoing was sent by electronic mail on this/ S ~ day of August, 2012, to those on the attached Service List. ,

Leah L: Marino (FBN 309140) Deputy General Counsel The Florida Senate Ste. 409, The Capitol 404 South Monroe Street Tallahassee, FL 3 23 99-11 00 Telephone: (850) 487-5229 Fax: (850) 487-5087 marino .leah@flsenate. gov


\255036\8 -# 331316 v2 3

Charles T. Wells (FBN 086265)

George N. Meros, Jr. (FBN 263321)

Jason L. Unger (FBN 0991562)

Allen Winsor (FBN 016295)

Charles B. Upton II (FBN 0037241)

GRAYROBINSON, P.A. Post Office Box 11189 Tallahassee, FL 32302

Telephone: (850) 577-9090 Fax: (850) 577-3311

Charles.Wells(mgray-robinson.com [email protected]

Jason.Unger(W,gray-robinson.com Allen.Winsor(a1gray-robinson.com

[email protected] Secondary email addresses:

[email protected] tbarreiroCCllgray-robinson.com

[email protected]

Miguel De Grandy (FBN 332331)

800 Douglas Road, Ste. 850 Coral Gables, FL 33134

Telephone: (305) 444-7737 Fax: (305) 443-2616

mad@degrandylaw .com

George T. Levesque (FBN 555541)

General Counsel Florida House of Representatives

422 The Capitol Tallahassee, FL 32399-1300 Telephone: (850) 410-0451

[email protected]


A. 91

SERVICE LIST

Joseph W. Hatchett Akerman Senterfitt 106 E. College Avenue, Ste. 1200 Tallahassee, FL 32301 Telephone: (850) 224-9634 Fax: (850) 222-0103 [email protected]

Jon L. Mills Elan N ehleber Boies, Schiller & Flexner LLP 100 SE 2nd Street, Ste. 2800 Miami, FL 3 3 131-2144 Telephone: (305) 539-8400 Fax: (305) 539-1307 [email protected] [email protected]

AbhaKhanna Kevin J. Hamilton Marc Elias Perkins Coie, LLP 1201 Third Avenue, Ste. 4800 Seattle, WA 98101-3099 Telephone: (206) 359-8000 Fax : (206) 359-9000 [email protected] [email protected] melias@perkinscoie. com

Timothy D. Osterhaus Deputy Solicitor General Blaine H. Winship Office Of Attorney General Capitol, Pl-01 Tallahassee, FL 32399-1050 Telephone: (850) 414-3300 Fax: (850) 401-1630 [email protected] Blaine. [email protected]

\255036\8 - # 331316 v2 4

Karen C. Dyer Boies, Schiller & Flexner LLP 121 South Orange A venue, Ste. 840 Orlando, FL 32801 Telephone: (407) 425-7118 Fax: (407) 425-7047 [email protected]

John M. Devaney Mark Erik Elias Perkins Coie, LLP 700 Thirteenth Street, NW, Ste. 700 Washington, DC 20005 Telephone: (202) 654-6200 Fax: (202) 654-6211 [email protected] [email protected]

Ronald Meyer Lynn Hearn Meyer, Brooks, Demma and Blohm, P .A. 131 North Gadsden Street Post Office Box 1547 (32302) Tallahassee, FL 32301 Telephone: (850) 878-5212 Fax: (850) 656-6750 rmeyer@meyerbookslaw .com Lheam@meyerbrookslaw .com

Daniel E. Nordby General Counsel Ashley Davis Assistant General Counsel Florida Department Of State R.A. Gray Building 500 S. Bronaugh Street Tallahassee, FL 32399 Telephone: (850) 245-6536 Cell: (850) 294-8018 [email protected] [email protected]

A. 92

J. Gerald Hebert 191 Somervelle Street, #405 Alexandria, VA 22304 Telephone: (703) 628-4673 [email protected]

Bruce V. Spiva The Spiva Law Firm, PLLC 1776 Massachusetts Avenue, N.W., Ste. 601 Washington, DC 20036 Telephone: (202) 785-0601 Fax: (202) 785-0697 bspiva@spi vafim1. corn www. spivafirm.com

Jessica Ring Amunson Paul Smith Michael B. DeSanctis Kristen M. Rogers Christopher Deal Jenner & Block LLP 1099 New York Avenue, N.W., Ste. 900 Washington, DC 20001-4412 Telephone: (202) 639-6023 Fax: (202) 661-4993 [email protected] [email protected] mdesanctis@j enner.com [email protected] [email protected]

Stephen Hogge Stephen Hogge, Esq., LLC 117 South Gadsden Street Tallahassee, FL 32301 Telephone: (850) 459-3029 [email protected]

\255036\8 -#331316v2 5

Cynthia Skelton Tunnicliff Peter M. Dunbar Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, 2nd Floor Tallahassee, FL 32301 Telephone: (850) 222-3533 Fax: (850) 222-2126 Cynthia@penningtonlaw .com [email protected]

Harry 0. Thomas Christopher B. Lunny Radey, Thomas, Yon & Clark, P A 301 South Bronaugh Street, Ste. Ste. 200 Tallahassee, Florida 32301-1722 Telephone: (850) 425-6654 Fax: (850) 425-6694 hthomas@radeylaw .com [email protected]

Michael A. Carvin Louis K. Fisher Jones Day 51 Louisiana Avenue N.W. Washington, DC 20001 Telephone: (202) 879-7643 Fax: 202-626-1700 [email protected] lkfisher@j onesday. com


A. 93

Victor L. Goode Dorcas R. Gilmore NAACP 4805 Mt. Hope Drive Baltimore, MD 21215-3297 Telephone: (410) 580-5790 Fax: (410) 358-9350 [email protected] [email protected]

\255036\8 -#331316v2 6


A. 94

Case 4:12~mc-00003-RH-CAS Document 31 Filed 08/10/12 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

STATE OF FLORIDA,

Plaintiff,

Page 1 of8

v. CASE NO. 4:12mc3-RH/CAS

UNITED STATES OF AMERICA et al.,

Defendant.

--------------------------------~/

ORDER DENYING THE MOTION TO COMPEL STATE LEGISLATORS AND STAFF MEMBERS

TO APPEAR FOR DEPOSITIONS

The issue in this proceeding is whether Florida state legislators have a

privilege not to testify on matters at the core of their legislative functions. This

order holds that they do have such a privilege and that it extends also to their staff

members.

This proceeding is ancillary to a case pending in the United States District

Court for the District of Columbia. The plaintiff in that case-the State of

Florida-seeks preclearance of recent legislation, as required by section 5 of the

Voting Rights Act of 1965. Parties who intervened in that case in opposition to

Case No. 4:12mc3-RH/CAS

A. 95

Case 4:12-mc-00003-RH-CAS Document 31 Filed 08/10/12 Page 2 of 8

Page 2 of8

preclearance-referred to in this order as intervenors even though they are original

parties here-have served subpoenas in this district under which specific members

of the Florida Legislature and staff members would be required to sit for

depositions. The defendant in that case-the United States-supports the effort to

take the depositions. The state, legislators, and staff members have taken identical

positions in opposition to the depositions; for convenience, this order often refers

to them collectively as "the state."

The state notified the intervenors of its objection to the depositions. To

avoid delay, the intervenors promptly filed a motion in this district to compel the

legislators and staff members to appear. The proposed depositions would take

place in this district, making this the proper forum for the motion to compel. With

commendable professionalism, the parties promptly briefed and submitted the

issues, so that a ruling could be made without delay. The ruling was announced at

some length on the record of the hearing and is summarized here.

An issue in a preclearance case is legislative purpose. The testimony of

legislators may be relevant on that issue. See Fed. R. Evid. 401 (defining

relevance broadly to include evidence that has "any tendency to make a fact" "of

consequence" "more or less probable than it would be without the evidence"). A

single legislator's testimony on the legislator's own purpose, or a single

legislator's opinion testimony about other legislators' purpose, may not say much

Case No. 4:12rnc3-RH/CAS

A. 96

Case 4:12-mc-00003-RH-CAS Document 31 Filed 08/10/12 Page 3 of 8 Page 3 of8

about the actual overall legislative purpose, but the testimony may say enough to

move the needle at least a little, and relevance requires nothing more. Similarly, a

legislator's or staff member's testimony about the progress of a bill through the

legislature, or about similar matters, may be relevant. The conclusion that such

testimony may be relevant is consistent with the routine practice of the Department

of Justice, when considering a request for administrative preclearance under the

Voting Rights Act, to seek out the views of legislators.

It thus is not surprising that states seeking judicial preclearance routinely

offer the testimony oflegislators, and courts routinely admit it. A legislator who

agrees to testify of course may be deposed; by voluntarily testifying, the legislator

waives any legislative privilege on the subjects that will be addressed in the

testimony. The state does not assert otherwise.

But here the state has chosen not to introduce the testimony of any legislator.

The proposed depositions thus cannot be justified as discovery of the other side's

evidence. And the legislators have not waived any privilege by agreeing to testify.

Whether the legislators and staff members have a privilege not to give the

proposed deposition testimony is an issue of federal common law "as interpreted

by United States courts in the light of reason and experience." Fed. R. Evid. 501.

The parties have cited no case-under the Voting Rights Act or in any other

context-in which a state legislator who has not agreed to testify at a trial has been


A. 97


Page4 of8

compelled to sit for a deposition addressing legislative functions. Nor have they

cited any Voting Rights Act case in which a legislator has successfully invoked

legislative privilege. The situation apparently has never come up, perhaps because

states usually choose to offer legislative testimony, and perhaps because when

states do not offer legislative testimony, opponents usually do not seek to take

depositions of this kind. The issue of legislative privilege in this context is one of

first impression.

But legislative purpose is an issue in many other cases, not just those arising

under the Voting Rights Act. Indeed, in many equal-protection cases, legislative

purpose is an issue that precisely mirrors the issue in a Voting Rights Act case. In

equal-protection cases, as in Voting Rights Act cases, the critical question often is

whether the legislature acted with a discriminatory purpose. See, e.g., Washington

v. Davis, 426 U.S. 229 (1976). The relevance of a legislator's testimony on the

issue of discriminatory purpose and the legislator's privilege not to testify thus are

identical in equal-protection and Voting Rights Act cases.

The Supreme Court has addressed these matters in language squarely

applicable here:

The legislative or adm.:hlistrative history [of the legislative action] may be highly relevant, especially where there are contemporaneous statements by members of the decisionrnaking body, minutes of its meetings, or reports. In some extraordinary instances the members might be called to the stand at trial to testify

Case No. 4: 12mc3-RH/CAS

A. 98

Case 4:12~mc~00003~RH~CAS Document 31 Filed 08/10/12 Page 5 of 8

concerning the purpose of the official action, although even then such testimony frequently will be barred by privilege.

Page 5 of8

Vi!!. of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252,268 (1977)

(citing Tenney v. Brandhove, 341 U.S. 367 (1951), and United States v. Nixon, 418

U.S. 683 (1974)) (emphasis added). The Court added:

This Court has recognized, ever since Fletcher v. Peck, 6 Cranch 87, 130-31,3 L.Ed. 162 (1810), that judicial inquiries into legislative or executive motivation represent a substantial intrusion into the workings of other branches of government. Placing a decisionmaker on the stand is therefore "usually to be avoided."

Arlington Heights, 429 U.S. at 268 n.l8 (quoting Citizens to Preserve Overton

Park v. Volpe, 401 U.S. 402, 420 (1971)).

Arlington Heights accurately sets out the law on this subject. The

considerations that support the result include the burden that being compelled to

testify would in1pose on state legislators, the chilling effect the prospect of having

to testify might impose on legislators when considering proposed legislation and

discussing it with staff members, and perhaps most importantly, the respect due a

coordinate branch of government. Legislators ought not call unwilling judges to

testify at legislative hearings about the reasons for specific judicial decisions, and

courts ought not compel unwilling legislators to testify about the reasons for·

specific legislative votes. Nothing in the Voting Rights Act suggests that Congress

intended to override this long-recognized legislative privilege.


A. 99


Page 6 of8

To be sure, a state legislator's privilege is qualified, not absolute; a state

legislator's privilege is not coterminous with the privilege of a member of

Congress under the Constitution's Speech and Debate Clause. Thus, for example,

in United States v. Gillock, 445 U.S. 360 (1980), the Supreme Court held that a

state legislator had no legislative privilege in a federal criminal prosecution for

bribery. The court distinguished Tenney v. Brandhove, 341 U.S. 367 (1951)-one

of the cases relied on in Arlington Heights for the proposition that a state

legislator's testimony on legislative purpose often is privileged-on the ground

that it was a civil case. But even if the state legislative privilege is qualified in

civil as well as criminal cases, there is no reason not to recognize the privilege

here. Voting Rights Act cases are important, but so are equal-protection

challenges to many other state laws, and there is nothing unique about the issues of

legislative purpose and privilege in Voting Rights Act cases.

The intervenors say Florida does not recognize a legislative privilege for its

own legislators and that a federal court thus also should not recognize a privilege.

As set out above, the question of legislative privilege in a Voting Rights Act case

is a question of federal law. Even so, if a state indeed did not recognize a privilege

for its own legislators, the case for recognizing a federal privilege would be

weaker. This makes no difference here, because Florida does recognize a state

legislative privilege. This is confirmed by a decision rendered in the interim


A. 100


Page 7 of8

between the ruling announced oti the record in this case and the issuance of this

written order. See Fla. House of Representatives v. Expedia, Inc., 85 So. 3d 517

(Fla. 1st DCA 2012). If faced with the issue, the Florida Supreme Court almost

surely would agree.

So the legislators have a federal legislative privilege-at least qualified, if

not absolute-not to testify in this civil case about the reasons for their votes. The

privilege is broad enough to cover all the topics that the intervenors propose to ask

them and to cover their personal notes of the deliberative process. The privilege

also extends to staff members at least to the extent that the proposed testimony

would intrude on the legislators' own deliberative process and their ability to

communicate with staff members on the merits of proposed legislation. See, e.g.,

Gravel v.United States, 408 U.S. 606, 618 (1972) (holding "that the Speech or

Debate Clause applies not only to a Member but also to his aides insofar as the

conduct of the latter would be a protected legislative act if performed by the

Member himself').


A. 101


Page 8 of8

For these reasons and those set out on the record of the hearing on these

issues,

IT IS ORDERED:

The motion to compel legislators and staff members to appear for

depositions, ECF No. 1, is DENIED. The clerk must close the file.

SO ORDERED on August 10,2012.

s/Robert L. Hinlde United States District Judge

Case No. 4:12mo3-RH/CAS

A. 102

IN THE CIRCUIT COURT FOR THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLOIUDA

RENE ROMO, an individual; BENJAMIN WEAVER, an individual; et al.,

Plaintiffs,

vs.

KEN DETZNER, in his official capacity as Florida Secretary of State; PAMELA JO BONDI, in her official capacity as Attorney General,

Defendants.

------------------------~/

THE LEAGUE OF WOMEN VOTERS OF FLORIDA; THE NATIONAL COUNCIL OF LA RAZA; et al.,

Plaintiffs,

vs.

KEN DETZNER, in his official capacity as Florida Secretary of State; THE FLORIDA SENATE, et al.,

Defendants.

--------------------------~/

CASE NO. 2012-CA-000412

ROMO PLAINTIFFS' OPPOSITION TO LEGISLATIVE DEFENDANTS' MOTION FOR PROTECTIVE ORDER BASED ON LEGISLATIVE PRIVILEGE

A. 103

TABLE OF CONTENTS

Page

BACKGROUND ............................................................................................................... 1

ARGUMENT ..................................................................................................................... 2

I. FLORIDA LAW FORECLOSES DEFENDANTS' CLAIMS OF A LEGISLATIVE PRIVILEGE IN THIS CASE ...................................... 3

A. Whether a legislative privilege applies is a question of Florida law ..................................................................................... 3

B. The common law legislative privilege recognized by the First District in Expedia does not apply to cases brought pursuant to Amendment 6 .............................................................. 6

C. The Florida Constitution's separation of powers provision does not create an applicable privilege ........................................ 10

D. The federal cases relied upon by Defendants are inapplicable .................................................................................. 14

II. FLORIDA'S SUNSHINE AMENDMENT REQUIRES DEFENDANTS TO PRODUCE THE DOCUMENTS THEY HAVE WITHHELD FROM DISCOVERY ............................................ 17

A. The Sunshine Amendment imposes broad public access requirements on the Florida Legislature ...................................... 17

B. The documents Plaintiffs have requested are public records and are not exempt from public access ........................................ 21

I. The documents Plaintitis have requested are public records .............................................................................. 22

2. There are no common law exceptions to the Sunshine Amendment's requirements ............................. 24

3. The documents requested are not exempted by Florida Statutes, Section 11.0431(d) ................................ 25

4. This Court has the power to order Defendants to produce the requested documents .................................... 29

III. EVEN IF DEFENDANTS COULD CLAIM SOME FORM OF LEGISLATIVE PRIVILEGE, IT DOES NOT SUPPORT THEIR MOTION FOR A PROTECTIVE ORDER ............................................. 31

-i-

A. 104

TABLE OF CONTENTS (continued)

A. The compelling constitutional interest in knowing the Legislature's intent outweighs any interest advanced by the

Page

legislative privilege ...................................................................... 31

B. Even if the legislative privilege applied, it would not support the broad protective order that Defendants are seeking ......................................................................................... 36

CONCLUSION ................................................................................................................ 38

-ii-

A. 105

TABLE OF AUTHORITIES

Page

Cases

Advisory Op. to Aft y Gen. re Standards for Establishing Legislative Dist. Boundaries, 2 So. 3d 175 (Fla. 2009) .............................................................................................. 11

Baldus v. Brennan, No. 11-CV-562, 2011 WL 6122542 (E.D. Wise. Dec. 8, 2011) ..................... 33, 35,36

Bent v. State, 46 So. 3d 1047 (Fla. App. 4 Dist. 2010) ..................................................................... 19

Boyle v. United Technologies Corp., 487 u.s. 500 (1988) ...................................................................................................... 6

Branch v. Smith, 538 U.S. 254 (2003) ...................................................................................................... 6

Brown v. Bullerworth, 831 So. 2d 683 (Fla. App. 4 Dist. 2002) ..................................................................... II

Brown v. Sec J' of Stale, 668 FJd 1271 (lith Cir. 2012) ................................................................................ 2, 5

Cano v. Davis, 193 F. Supp. 2d 1177 (C.D. Cal. 2002) ...................................................................... 35

T.MH v. D.MT., 79 So. 3d 787 (Fla. App. 5 Dist. 2011) ....................................................................... 32

Chiles v. Phelps, 714 So. 2d 453 (Fla. 1998) .......................................................................................... 30

City of Pompano Beach v. Swerdlow Lightspeed Mgmt. Co., 942 So. 2d 455 (Fla. App. 4 Dist. 2006) ..................................................................... 37

Comm. for a Fair & Balanced lvfap v. Ill. Stale Ed. of Elections, No. II C 5065,2011 WL 4837508 (N.D. Ill. Oct. 12, 2011) ..................... 4, 35, 36,37

Cook v. Gralike, 531 u.s. 510 (2001) ...................................................................................................... 5

Coi'IJ' v. Meggs, 498 So. 2d 508 (Fla. App. I Dist. 1986) ....................................................................... 6

-i-

A. 106

Donato v. Am. Tel. & Tel. Co.,

TABLE OF AUTHORITIES (continued)

Page

767 So. 2d 1146 (Fla. 2000) ........................................................................................ 26

Douglas v. Webber, 128 So. 613 (Fla. 1930) ............................................................................................... 30

1'7a. Ass 'n of Rehabilitation Facilities, Inc. v. Fla. Dep 'I of Health & Rehabilitative Servs., 164 F.R.D. 257 (N.D. Fla. 1995) ................................................................ 4, 10, 32,37

Fla. Dep't ofState v. Fla. State Con.f of NAACP Branches, 43 So. 3d 662 (Fla. 2010) .............................................................................................. 1

Florida House of Representatives v. Erpedia, Inc., 85 So. 3d 517 (Fla. App. 1 Dist. 2012) ................................................................ passim

Florida v. United States, No. 4:12-MC-3 (N.D. Fla. Aug. 10, 2012) ................................................................. 14

Girardeau v. State, 403 So. 2d 513 (Fla. App. 1 Dist. 1981) ..................................................................... 13

Horne v. Flores, 557 U.S. 433 (2009) ...................................................................................................... 3

In reApportionment Law Senate Joint Resolution No. I 305, 1972 Regular Session, 263 So. 2d 797 (Fla. 1972) .......................................................................................... 12

In re Grand JWJ', 821 F.2d 946 (3d Cir. 1987), cerl. denied, 484 U.S. 1025 (1988) ................................ 4

In re Senate Joint Resolution of Legislative Apportionment 1176 ("In re Legislative Apportionment1176"), 83 So. 3d 597 (Fla. 2012) ..................................................................................... passim

In re Subpoena Duces Tecum Served on Office of Comptroller of Currency, 145 F.3d 1422 (D.C. Cir. 1998) ................................................................ 10, 16, 17,33

Lake Count1y Estates, Inc. v. Tahoe Reg 'I Planning Agency, 440 u.s. 391 (1979) ...................................................................................................... 4

Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007) ........................................................................ 19, 25, 26, 28

-ii-

A. 107

Locke v. Hawkes,


No. 76090, 1991 WL 231589 (Fla. Nov. 7, 1991),

Page

vacated and superseded by 595 So. 2d 32 (Fla. 1992) ............................................... 18

1\fartinez v. Bush, 234 F. Supp. 2d 1275 (S.D. Fla. 2002) ................................................................. 15, 16

1\fartinez v. Bush, No. 02-20244-CIV (S.D. Fla. July 15, 2002) ........................................................ 14, 15

Matthews v. 1vicCain, 170 So. 323 (Fla. 1936) ............................................................................................. 6, 9

Media Gen. Operation, Inc. v. Feeney, 849 So. 2d 3 (Fla. App. 1 Dist. 2003) ............................................................. 23, 24, 30

Moffitt v. Willis, 459 So. 2d I 018 (Fla. 1984 ) ........................................................................................ 30

Nat 'I Collegiate Athletic Ass 'n v. Associated Press, 18 So. 3d 1201 (Fla. App. I Dist. 2009) ..................................................................... 23

Rhea v. Dis/. Bd. o.fTrustees of Santa Fe College, -So. 3d-, No. 1Dl1-3049, 2012 WL 2924068 (Fla. App. 1 Dist. July 19, 2012) ..................................................................... 19, 22,23

Roberts v. Brown, 43 So. 3d 673 (Fla. 201 0) ............................................................................................ 12

State v. City of Clearwater, 863 So. 2d 149 (Fla. 2003 ) .......................................................................................... 19

Stone v. Wall, 734 So. 2d I 038 (Fla. 1999) ...................................................................................... 6, 7

Tenney v. Brandhove, 341 u.s. 367 ( 1951) .............. " ...... " .. " ....... "" ......... ""."." .... "" .............. "" ..... """"" ... 4

Times Pub/ 'g Co. v. City of Clearwater, 830 So. 2d 844 (Fla. App. 2 Dist. 2002) ..................................................................... 23

Trammel v. United States, 445 U.S. 40 ( 1980) ...................................................................................................... 32

-iii-

A. 108


U.S. Term Limits, Inc. v. Thornton,

Page

514 U.S. 779 (1995) ...................................................................................................... 5

United States v. Gillock, 445 u.s. 360 (1980) ................................................................................................ 4, 31

United States v. Irvin, 127 F.R.D. 169 (C.D. Cal. 1989) .......................................................................... 16,33

United States v. Standard Oil Co., 332 U.S. 301 (1947) ...................................................................................................... 6

Wait v. Florida Power & Light Co., 372 So. 2d 420 (Fla. 1979) ........................................................................ 20, 21, 24,25

Waller v. First Sav. & Trust Co., 138 So. 780 (Fla. 1931) ................................................................................................. 7

Statutes

42 U.S.C. § 1973c ............................................................................................................. 14

42 u.s.c. § 1983 ................................................................................................................. 4

42 U .S.C. § 1985 ................................................................................................................. 4

Fla. Stat. § 11.0431 .................................................................................................... passim

Fla. Stat.§ 119.01 ............................................................................................................. 19

Fla. Stat. § 119 .07(2) ......................................................................................................... 25

Fla. Stat. § 2.01 ............................................................................................................... 6, 9

Other Authorities

Fla. H. Rep. R. 14.1 .......................................................................................................... 30

Patricia A. Gleason & Joslyn Wilson, 1/w Florida Constitution's Open Government Amendments: Article L Section 24 and Article IlL Section 4(e)-Let the Sunshine In!, 18NOVA L. REV. 973,974 (1994) ................................ 18, 27,28

Rules

Fed. R. Evid. 501 ................................................................................................................ 5

-iv-

A. 109

Constitutional Provisions


Page

Fla. Const. art. I,§ 24(a) ................................................................................. 13, 19, 21,22

Fla. Const. art. I, § 24( c) ................................................................................................... 20

Fla. Con st. art. III, § 16 ..................................................................................................... 22

Fla. Const. art. III,§ 20(a) .............................................................................................. I, 9

Fla. Const. art. V, § S(b) ................................................................................................... 3 0

-v-

A. 110

The Romo PlaintifTs respectfully submit this brief in opposition to the Legislative

Defendants' ("Defendants") motion for a protective order based on legislative privilege.

For the reasons that follow, no legislative privilege applies in this case, but even if

Defendants could lay claim to such a privilege, it would not support their overbroad and

premature motion.

BACKGROUND

In 2010, the voters approved Amendment 6 to the Florida Constitution by an

overwhelming majority, imposing "stringent new standards" on the Florida Legislature in

conducting congressional reapportionment. lnre Senate Joint Resolution of Legislative

Apportionment 1176 ("lnre Legislative Apportionment 1176"), 83 So. 3d 597, 615-17

(Fla. 2012). Now incorporated into the Constitution as Article III, Section 20,

Amendment 6 makes political gerrymandering constitutionally impermissible, prohibiting

the Legislature from drawing any congressional apportio11111ent plan or individual district

"with the intent to favor or disfavor a political party or an incumbent." Fla. Cons!. art.

III, § 20(a). As the Florida Supreme Court recently held, "there is no acceptable level of

improper intent." Inre Legislative Apportionment 1176, 83 So. 3d at 617 (emphasis

added).

The Legislature actively opposed this reform. Prior to its approval, the

Legislature attempted to submit to the voters a different amendment meant to neutralize

Amendment 6. That proposal was removed from the ballot by the Florida Supreme

Court. Fla. Dep't of State v. Fla. State Conf a,( NAACP Branches, 43 So. 3d 662,662

(Fla. 201 0). After Amendment 6 was approved, several elected officials (including

Defendant Florida House of Representatives) challenged the provision in federal court.

I

A. 111

That challenge was rejected by the Eleventh Circuit Court of Appeals earlier this year.

Brown v. Sec J' of State, 668 FJd 1271 (lith Cir. 2012).

The Defendants' motion for a protective order continues this effort to thwmt the

will of Florida's voters and protect partisan and incumbent advantage. Despite the plain

text of Amendment 6, which prohibits any intent to favor or disfavor a political party or

incumbent, Defendants seek a blanket court order that would largely bar Plaintiffs from

discovering facts relating to the Legislature's intent underlying the 2012 Congressional

reapportionment plan (the "2012 Plan"). The order Defendants seek would prohibit

Plaintiffs from deposing the legislators and legislative staff that prepared the 2012 Plan

and would shield from public review any and all "unfiled legislative draft maps," as well

as documentary evidence that "relate[s] to" these materials. Defs.' Mot. 2, 15.

Defendants' request is contrary to Florida law, including the Constitutional provision that

puts the Legislature's intent directly at issue, and should be rejected.

ARGUMENT

On the basis of legislative privilege, Defendants seek a protective order broadly

forbidding Plaintiffs from taking the depositions of any legislators or legislative staff and

prohibiting any discovery of draft maps or documentary evidence that "relate[ s] to" maps

prepared during the 2011-2012 redistricting process. See Defs.' Mot. 2, 15. Defendants

claim that these materials are exempt from disclosure pursuant to a common law

legislative privilege and statutory law. In Section I of this Brief, Plaintiffs address

Defendants' broad claim of legislative privilege as it applies to both the document

requests and depositions. In Section II, Plaintiffs address the arguments that Defendants

make specifically with regard to Plaintiffs' document requests.

2

A. 112

As to Plaintiffs' requests for documentary discovery, Defendants' privilege logs

(Exhibits A and B) demonstrate that Defendants are already withholding multiple

documents based on legislative privilege that could bear directly on the Legislature's

intent in creating the 2012 Plan. See, e.g., Exhibit A (House Privilege Log) at 2-3

(withholding communications between legislators as to requests for amendments to the

plan); Exhibit B (Senate Privilege Log) at 21-22 (withholding communications regarding

drafts of reapportionment plan). In addition, Defendants have stated that they are still

collecting many other documents relating to the 2011-2012 redistricting process that they

also may withhold from discovery based on legislative privilege. With only four months

of discovery remaining in this case, Plaintiffs have a compelling need for a prompt ruling

on Defendants' attempt to stymie document and deposition discovery through their

baseless assertion of privilege.

I. FLORIDA LAW FORECLOSES DEFENDANTS' CLAIMS OF A LEGISLATIVE PRIVILEGE IN THIS CASE

Defendants' claim that legislative privilege forbids discovery into the intent of the

makers of the 2012 Plan must be rejected because recognition of such a privilege in this

litigation would be inconsistent with the Florida Constitution and thwart the intent of the

voters in enacting Amendment 6. This litigation seeks to enforce Amendment 6's intent

provision and other requirements, and Defendants may not avoid either testimonial or

document discovery based on a claim oflegislative privilege.

A. Whethet· a legislative privilege applies is a question of Florida law

Whether Defendants can claim a legislative privilege in a challenge brought in

Florida State court to enforce a Florida State constitutional provision is plainly a question

of Florida law. See, e.g., Horne v. Flores, 557 U.S. 433, 471 (2009) (holding

3

A. 113

interpretation of provision of State constitution "is a question of state law, to be

determined by state authorities"). Although Defendants stop shoti of explicitly arguing

that federal law governs, they strongly imply that it might. See Defs.' Mot. 6-7. That

implication is false. 1

First, even if this Court were bound to apply the Federal Rules of Evidence

(which it clearly is not), those Rules explicitly provide that, "in a civil case, state law

governs privilege regarding a claim or defense for which state law supplies the rule of

1 Even in a case arising out of federal law, Defendants' motion would fail. The Speech and Debate Clause of the U.S. Constitution does not apply to state legislators. Lake Country Estates, Inc. v. Tahoe Reg'/ Planning Agency, 440 U.S. 391,404 (1979); Fla. Ass 'n of Rehabilitation Facilities, Inc. v. Fla. Dep 't of Health & Rehabilitative Servs., 164 F.R.D. 257,262,266-67 (N.D. Fla. 1995). In Tenneyv. Brandhove, 341 U.S. 367 (1951 ), the Supreme Court held only that, "by the enactment of 42 U.S. C. §§ 1983 and 1985, Congress did not intend to override the absolute immunity .. . ji·om suit" that state legislators enjoyed at common law. Fla. Ass'n of Rehabilitation Facilities, 164 F.R.D. at 262 (emphasis added). See also Tenney, 341 U.S. at 378-79 ("We have only considered the scope of the privilege as applied to the facts of the present case .... [and w]e conclude only that here the individual defendants and the legislative committee were acting in a field where legislators traditionally have power to act, and that the statute ... does not create civil liability for such conduct."). Because Tenney addressed only legislative immunity and did not consider legislative privilege, for several years the federal courts were divided as to whether the decision could also be read to announce a general legislative privilege for state legislators in federal litigation. That question was settled in United States v. Gillock, 445 U.S. 360, 374 (1980), which rejected the argument that federal common law immunity from suit gives rise to a general evidentiary privilege. See id. (holding no legislative privilege for state legislator in federal criminal prosecution based on balancing of interests). See also In re Grand JWJ', 821 F.2d 946, 948-49 (3d Cir. 1987), cert. denied, 484 U.S. I 025 ( 1988); Comm. for a Fair & Balanced Map v. 1/1. State Bd of Elections, No. 11 C 5065, 2011 WL 4837508, at *6 (N.D. Il1. Oct. 12, 2011) (quoting Manzi v. DiCarlo, 982 F. Supp. 125, 129 (E.D.N. Y. 1997)). Thus, to the extent that some form of federal common law legislative privilege may exist in certain cases arising under federal law, it is plainly qualified, as discussed further in Section III of this Brief. Finally, it is important to note that the legislative immunity recognized in Tenney does not apply to claims under state law. Lake Count1y Estates, 440 U.S. at 405 (applying Tenney in§ 1983 action and holding "[w]hatever potential damages liability regional legislators may face as a matter of state law, ... petitioners' federal claims do not encompass the recovery of damages from the members ... acting in a legislative capacity").

4

A. 114

decision." Fed. R. Evid. 501. Plaintiffs seek to enforce a provision in the Florida

Constitution. State law therefore plainly supplies the rule of decision and determines

whether the privilege applies.

Second, Defendants' suggestion that em action to enforce Amendment 6

implicates "uniquely federal interests ... so committed by the Constitution and laws of

the United States to federal control" that Federal law pre-empts and replaces state

privilege law, Defs.' Mot. 6-7, is manifestly inconsistent with the Eleventh Circuit's

decision in Brown v. Secretmy of State earlier this year. There, the defendants similarly

argued that, because congressional redistricting is an area of strong federal interests,

Amendment 6 was contrary to federal law and therefore invalid. The Brown defendants

relied on the very cases that Defendants now urge support the application of federal law

to their claims ofprivilege~US. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995),

and Cook v. Gralike, 531 U.S. 510 (2001). See Defs.' Mot. 7. But the Eleventh Circuit

rejected the defendants' attempts to analogize to these cases, correctly finding that the

restrictions set forth in Amendment 6 are "profoundly different and easily distinguishable

from the provisions outlawed" in either US. Term Limits or Cook. Brown, 668 F.3d at

1284. Defendants fail to explain why this Court should come to a different conclusion.

If federal law does not preempt the substantive standards in Amendment 6, why would it

preempt Florida's rules of evidence in an action brought to enforce Amendment 6?

Defendants further fail to explain how US. Term Limits or Cook~both of which

involved state constitutional provisions that were invalidated under federal law--can be

read to require state privilege law be supplanted with federal common law in an action to

5

A. 115

enforce a state constitutional provision that has been upheld. These cases simply do not

stand for such a radical proposition?

As in any other case brought in Florida's courts pursuant to Florida law, federal

law is relevant to the question of privilege only to the extent that (I) Florida law does not

answer the question presented, and (2) the Court finds the federal courts' reasoning

persuasive and applicable to the facts before it. See Cony v. Meggs, 498 So. 2d 508, 510

(Fla. App. I Dist. 1986) (noting that "Florida courts frequently refer to federal decisions

as persuasive in interpretation of Florida's Evidence Code" but that such reference is "of

limited assistance" where there are significant differences in the relevant State and

Federal law). As explained below, there is no applicable privilege under Florida law. To

the contrary, Amendment 6 and state statutes foreclose such an argument.

B. The common law legislative privilege recognized by the First District in Expedia does not apply to cases brought pursuant to Amendment 6

Section2.01, Florida Statutes, recognizes and incorporates the common law, but

only insofar as it is "not inconsistent with the Constitution and laws of the United States

and the acts of the Legislature of this state." Fla. Stat.§ 2.01 ("Section 2.01") (emphasis

added). Accordingly, when considering whether the common law applies, Florida courts

ask first whether any statutory or constitutional law precludes its application. See Stone

v. Wall, 734 So. 2d I 038, 1044 (Fla. 1999). Any inconsistency renders the common law

inapplicable and ends the inquiry. See, e.g., Matthews v. McCain, 170 So. 323, 327 (Fla.

1936) ("The Constitution and statutes of Florida must of course control, and take

2 None of the other cases that Defendants rely upon are remotely applicable. Neither Boyle v. United Technologies Corp., 487 U.S. 500 (1988), nor United States v. Standard Oil Co., 332 U.S. 301 (1947), is a redistricting case. Branch v. Smith, 538 U.S. 254 (2003), concerned the propriety of a congressional redistricting plan adopted by a federal district court and did not opine on choice oflaw issues.

6

A. 116

precedence over the common law when there are any inconsistencies between them.");

Waller v. First Sav. & Trust Co., 138 So. 780 (Fla. 1931) (rejecting common law rule as

inconsistent with Florida Constitution's Declaration of Rights).

Even where the common law is fully consistent with statutory or constitutional

law, Florida courts do not apply it as a matter of course. Instead, they consider "whether

there are any contrary policy considerations that would preclude" its application. Stone,

734 So. 2d at 1046. As the Florida Supreme Court has repeatedly recognized, "the

common law 'must keep pace with changes in our society"' and '"may be altered ...

when change is demanded by public necessity or required to vindicate fundamental

rights."' !d. at I 043-44 (quoting United States v. Dempsey, 635 So. 2d 961, 964 (Fla.

1994)).

Application of a common law legislative privilege that would prohibit the

depositions of legislators and others involved in the redistricting process and forbid

meaningful documentary discovery in this case would be directly inconsistent with the

Florida Constitution. This conclusion is evident from the plain language of Amendment

6, which makes the intent of the drafters of the congressional plan one of the central

issues in this litigation. It is fmther compelled by one of the "fundamental tenet[s] of

constitutional construction," which requires that courts "construe a constitutional

provision in a manner consistent with the intent of the framers and the voters and ...

interpret its terms in their most usual and obvious meaning." In re Legislative

Apportionment 1176,83 So. 3d at 631. Accordingly, "[c]onstitutional provisions 'must

never be construed in such a mam1er as to make it possible for the will of the people to be

frustrated or denied."' !d. (quoting Lewis v. Leon Cnty., 73 So. 3d 151, 153-54 (Fla.

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2011)) (emphasis added). Permitting Defendants to avoid deposition and document

discovery would clearly jeopardize the will of the people by erecting a serious obstacle to

discovering the full Legislative intent underlying a reapportionment plan. Both this

Court and the Florida Supreme Court have held that statistical analysis alone will rarely

be sufficient to demonstrate that the Legislature acted with improper intent in drafting a

redistricting or reapportionment plan. See Order Denying Pis.' Summ. J. Mot 8-9

("There are simply too many other factors at play for me to find unlawful intent based

merely on the projected partisan breakdown of the congressional plan.") (citing In re

Legislative Apportionment 1176, 83 So. 3d at 641-42). Thus, in order to ensure

meaningful enforcement of Amendment 6, Plaintiffs must be permitted to obtain the

discovery that they seek.

The First District's decision in Florida House of Representatives v. Expedia, Inc.,

85 So. 3d 517 (Fla. App. I Dist. 2012), is not to the contrary. In that case, Expedia's

counsel sought to depose a legislator and his aide to discover how certain confidential

documents that were disclosed to opposing counsel under a protective order came to be

public knowledge. !d. at 519-20. Evidently, opposing counsel had disclosed these

materials to the legislator, who in turn made them available to other legislators and the

press. !d. at 520. Neither the substantive claims in the underlying case nor the discovery

that was sought had anything to do with redistricting or provisions in the Florida

Constitution. Nor were the representative or his aide parties to the underlying action.

Accordingly, the intent of the legislator and the aide could not possibly have been

relevant to any of the claims brought by the plaintiffs. The First District's conclusion that

the legislator and his aide were entitled to claim a common law testimonial legislative

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privilege to avoid the noticed depositions was the first Florida decision to recognize any

such privilege. Critical to the Court's decision was its determination that, "we know of

no law abrogating the common law on this point." !d. at 523. But in this litigation, that

is plainly not the case. Amendment 6 clearly obviates any claim to a legislative privilege

to protect against discovery of the intent of the drafters of the redistricting plan. Fla.

Cons!. art. III,§ 20(a).3

Defendants' argument that "Amendment Six's enactment cannot undermine

Florida's legislative privilege" because "[t]he Amendment's text says nothing about

altering legislative privilege" misunderstands the relationship between the common law

and statutory or constitutional law in Florida. Defs.' Mot. II. Defendants presume that

the common law is equivalent to laws expressly enacted by the Legislature or the people.

But it is not. The common law applies only insofar as it is "not inconsistent with"

statutory and constitutional law. Fla. Stat. § 2.0 I (emphasis added). There is therefore

no requirement that, in order to "overrule" the common law, a statute or constitutional

provision must do so explicitly. Instead, it has long been the rule that "when there are

any inconsistencies" between the common law and the Constitution or statutes of Florida,

the latter "of course" controls. }.Iatthews, 170 So. at 327 (emphasis added).

Amendment 6 imposes new requirements on the Legislature that "dramatically

alter the landscape with respect to redistricting by prohibiting practices that have been

acceptable in the past, such as crafting a plan or district with [any] intent to favor a

political party or an incumbent." In re Legislative Apportionment 1176,83 So. 3d at 607.

See also id. at 617 ("[T]here is no acceptable level of improper intent.") (emphasis

3 Expedia did not involve any requests for documentary discovery. As such, it did not require consideration of the Sunshine Amendment discussed in Section II of this Brief.

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added). As a result, the discovery that Plaintiffs seek is not evidence oflegislative intent

in an abstract or general sense, it is evidence of the ve1y conduct that Amendment 6

explicitly prohibits. Application of a common law legislative privilege to prohibit

discovery of the precise act that a constitutional provision explicitly makes impermissible

would be plainly inconsistent with that provision. Thus, under well-established and long

standing Florida precedent, which requires that the common law yield when it is

inconsistent with statutory or constitutional law, Amendment 6 invalidates any claim of

legislative privilege in this case.4

C. The Florida Constitution's separation of powers provision does not create an applicable privilege

Defendants' argument that the Florida Constitution's separation of powers

provision independently entitles them to avoid discovery in this litigation must also be

rejected. See Defs.' Mot. 5-6. As an initial matter, if the separation of powers provision

independently created an absolute legislative privilege, there would be no reason to look

to the common law in the first instance as the source of any legislative privilege.

But that inconsistency aside, permitting Plaintiffs to obtain the discovery they

seek to enforce Amendment 6 does not violate the separation of powers. Amendment 6

"imposes a higher standard on the Legislature when formulating the state's

apportionment plans [and congressional redistricting plans]," including "prohibiting

practices that have been acceptable in the past, such as crafting a plan or district with the

intent to favor a political party or an incumbent." In re Legislative Apportionment 1176,

4 See also In re Subpoena Duces Tecum Served on Office of Comptroller of Currency, 145 F.3d 1422, 1424 (D.C. Cir. 1998) (holding deliberative process privilege not applicable when plaintiffs cause of action "turns on the government's intent"); Fla. Ass 'n of Rehabilitation Facilities, 164 F.R.D. at 268 (noting "privilege may not be applicable" where "the subject matter of th[ e] case, as defined by ... law, is in part the legislative process itself').

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83 So. 3d at 607 (emphasis added). The judiciary retains the power to determine whether

the Legislature has conducted itself as the law requires. See Brown v. Butterworth, 831

So. 2d 683, 689 (Fla. App. 4 Dist. 2002) (holding the circuit courts of Florida have

jurisdiction to hear legal challenges to congressional redistricting plans). Indeed, as the

Florida Supreme Court has recognized, the Legislature's new obligations under

Amendment 6 "requir[ e] a commensurately more expanded judicial analysis oflegislative

compliance." In re Legislative Apportionment 1176, 83 So. 3d at 607. There is no basis

for Defendants' argument that the Florida Constitution's general separation of powers

provision acts to shield from discovery evidence directly relevant to the Legislature's

compliance with legitimate constitutional strictures that govern its conduct in the

redistricting process. 5

Defendants' insistence that the redistricting plan is just like any other legislative

enactment has been rejected by the Florida Supreme Court: "Unlike a legislative act

promulgated separate and apart from an express constitutional mandate, the Legislature

5 Defendants' argument that the Florida Supreme Court would not have allowed Amendment 6 to be submitted to the voters if it would have permitted depositions and discovery into the intent of the makers of the apportionment plans is squarely at odds with the Florida Supreme Court's explicit conclusion that these changes to the Florida Constitution require a commensurate expansion of judicial review to ensure meaningful enforcement of the will of the voters. See Defs.' Mot. 11-12; In re Legislative Apportionment 1176, 83 So. 3d at 607. And Defendants' related argument that Amendment 6 could not displace a common law privilege without violating the singlesubject rule is similarly without merit. "A proposed amendment is not invalid merely because it affects more than one branch of government or may interact with other provisions of the Florida Constitution." Advismy Op. to Att :v Gen. re Standards for Establishing Legislative Dis/. Boundaries, 2 So. 3d 175, 180-81 (Fla. 2009). Nor does the fact that an amendment would require a '"branch of government ... to comply with a provision of the Florida Constitution ... necessarily constitute the usurpation of the branch's function within the meaning of the single-subject rule."' !d. at 181 (quoting Advismy Op. to Att 'y Gen. re Protect People, E;,pecially Youth, fi'om Addiction, Disease, & Other Health Hazards of Using Tobacco, 926 So. 2d 1186, 1192 (Fla. 2006)).

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adopts a joint resolution of legislative apportionment solely pursuant to the 'instructions'

of the citizens as expressed in specific requirements of the Florida Constitution governing

this process." !d. at 607-08. As of2010, those instructions forbid the Legislature from

making apportionment plans with any intent to favor an incumbent or political party.

Granting the Defendants' motion and prohibiting discovery as to the intent of the plan's

drafters would render those instructions unenforceable and meaningless.

A finding that the general separation of powers provision imposes a blanket and

general legislative privilege that prohibits Plaintiffs from obtaining testimonial or

documentary discovery regarding the very intent that Amendment 6 prohibits would also

be contrary to the canons of constitutional construction applied by Florida courts. "Every

word of the Florida Constitution should be given its intended meaning and effect," In re

Apportionment Law Senate Joint Resolution No. 1305, 1972 Regular Session, 263 So. 2d

797, 807 (Fla. 1972), and "[c]onstitutional provisions 'must never be construed in such a

manner as to make it possible for the will of the people to be frustrated or denied,"' In re

Legislative Apportionment1176, 83 So. 3d at 631 (quoting Lewis, 73 So. 3d at 153-54).

But interpreting the Constitution to bar this crucial means of inquiry into legislative

intent-intent put squarely at issue by Amendment 6-would utterly defeat the

Amendment's purpose. Moreover, in constitutional interpretation, specific provisions

control over general provisions. See Roberts v. Brown, 43 So. 3d 673, 680 (Fla. 2010).

And while Amendment 6 expressly places legislative intent at issue, the general

separation of powers provision does not explicitly forbid discovery into legislative intent.

Nor does the mere existence of a separation of powers provision give rise to a

legislative privilege. In fact, as the First District has recognized, many state constitutions

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contain both a general separation of powers provision and a specific provision

establishing a legislative privilege. If the former always implicitly gave rise to the latter,

then the legislative privilege provision would be superfluous. Girardeau v. State, 403 So.

2d 513,515 n.3 (Fla. App. 1 Dist. 1981) ("The State's brief informs us that thirty-nine

states have a separation of powers clause in their State Constitutions, yet many of those

also have explicit legislative privilege clauses, so that apparently as to states having both

it was not considered that the 'separation of powers' clause implied the existence of a

speech or debate clause.").

Furthermore, Defendants' argument that Amendment 6 cannot implicitly limit the

legislative privilege that Defendants claim cannot be reconciled with Defendants'

admission, elsewhere in their brief, that Article I, Section 24(a) of the Florida

Constitution "derogates" the same privilege. See Defs.' Mot. 16. In order to reconcile

their argument that the Florida Constitution's separation of powers provision gives rise to

an implicit legislative privilege, with the default rule of public access to legislative

records set forth in Article I, Section 24(a) (the "Sunshine Amendment," discussed

further in Section II), Defendants concede that the Sunshine Amendment "derogates from

the common law legislative privilege." !d. But, like Amendment 6, the Sunshine

Amendment says nothing about altering any common law legislative privilege or altering

the separation-of-powers provision. Fla. Const. art. I,§ 24(a). There is no rational basis

for Defendants to concede, on the one hand, that the Sunshine Amendment alters the

legislative privilege, but to insist that Amendment 6 cannot possibly do the same.

Put simply, applying a legislative privilege in this case would not only render

Amendment 6 's "intent" requirement meaningless, it would fi·ustrate and deny the will of

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the people, who enacted the Amendment for the very purpose of eliminating any intent to

favor incumbents or a particular political party in redistricting. And it would do so in the

name of the separation of powers clause, a general clause that has not been found to give

rise to a blanket and absolute legislative privilege. See, e.g., Expedia, 85 So. 3d at 525

("The court will always have to make a preliminary inquiry to determine whether the

information [sought] is within the scope of the privilege and whether the need for privacy

is outweighed by a more important governmental interest.").

D. The federal cases relied upon by Defendants are inapplicable

Neither U.S. District Judge Hinkle's unpublished opinion in Florida v. United

States, No. 4:12-MC-3 (N.D. Fla. Aug. 10, 2012) ("J. Hinkle Aug. 10, 2012 Order"), nor

the unpublished memorandum opinion in Martinez v. Bush, No. 02-20244-CIV (S.D. Fla.

July 15, 2002) ("Martinez July 15, 2002 Order"), are applicable to or instructive under

the circumstances of this litigation.

The case before Judge Hinkle was brought pursuant to Section 5 of the Voting

Rights Act ("VRA"), 42 U.S.C. § 1973c, and the question of privilege was one offederal

law. See Hr'g Tr. 91:19-24. See also J. Hinkle Aug. I 0, 2012 Order 1-2. Judge Hinkle

did not purport to interpret Amendment 6 or analyze questions oflegislative privilege

under Florida law. 6 These fundamental differences alone make the decision inapplicable

here. But Defendants' reliance on Judge Hinkle's opinion for the proposition that

Amendment 6's prohibition on partisan or incumbent intent is not "sufficiently special to

6 At most, Judge Hinkle noted in dicta that he believed that, if the issue were presented to the Florida Supreme Court, it "almost surely" would find that some form of legislative privilege exists. J. Hinkle Aug. 10,2012 Order 6-7. Not only is Judge Hinkle's belief in this regard not authoritative, when he announced his decision he was careful to couch it with a substantial caveat: "Now, whether [the Florida Supreme Court] would say [the privilege] is absolute or it's qualified, and the circumstances under which the court would recognize it, I'm much less confident of any predictions of that." Hr' g Tr. 95:19-22.

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overcome the privilege" that Defendants assert, Defs.' Mot. 13, is also unsound for

another reason. Judge Hinkle's conclusion that a federal legislative privilege was

applicable in the VRA case before him was based on his analogy to the application of the

privilege in federal equal protection cases. See Hr' g Tr. 92:22-94: 14; J. Hinkle Aug. I 0,

2012 Order 4, 6. The Florida Supreme Court, however, has foreclosed this analogy in

relation to Amendment 6. See In re Legislative Apportionment 1176, 83 So. 3d at 617

("In contrast to the federal equal protection standard applied to political genymandering,

the Florida Constitution prohibits drawing a plan or district with the intent to favor or

disfavor a political party or incumbent; there is no acceptable level of improper intent.").

Because Judge Hinkle's opinion rests on reasoning that has been rejected by the Florida

Supreme Court in this context, it cannot carry even persuasive import with this Court in

this litigation.

For the same reasons, the unpublished opinion that Defendants cite from the

Martinez v. Bush litigation is neither applicable nor persuasive under the circumstances

here. That case considered a federal challenge to a Florida redistricting plan adopted in

2002-eight years before Amendment 6's enactment. See Martinez v. Bush, 234 F. Supp.

2d 1275, 1278 (S.D. Fla. 2002). The plaintiffs alleged solely federal claims. See id. at

1278-79. The decision explicitly did not interpret or apply Florida law. Martinez July

15,2002 Order 5 ("We do not need to look to state law to determine whether Florida

grants legislative immunity here because testimonial privilege is a matter of federal law

with regard to the federal claims in this case."). Furthermore, the court's decision not to

permit the plaintiffs to take depositions "under the circumstances," rested heavily on its

conclusion that the motivations of a "handful of members" was not probative of the

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federal claims that the plaintiffs alleged. !d. at 4, 5. But as the Florida Supreme Court

has recognized, the plain text of Amendment 6 renders any improper intent by the makers

of the 2012 Plan impermissible. In re Legislative Apportionment 1176,83 So. 3d at 617.

Finally, the Martinez court noted that, in that case, "there was no dispute that the party in

power normally seeks to maximize its political strength through the redistricting

process." Martinez July 15, 2002 Order 5 n.2. That is no longer constitutionally

permissible in Florida, following the enactment of Amendment 6.7

Nor are the decisions upon which Defendants rely representative of a universally

accepted rule of decision in federal courts. For example, in United States v. Irvin, 127

F.R.D. 169, 173-74 (C.D. Cal. 1989), the court found that a county board that prepared a

redistricting plan could not claim a deliberative process privilege in a VRA action.

Among the factors relevant to the court's decision was that the plaintiffs allegations

"place in issue the [board]'s deliberations themselves." !d. at 174. The D.C. Circuit has

similarly found that the deliberative process privilege is not applicable "when a plaintiffs

cause of action turns on the government's intent." In re Subpoena Duces Tecum, 145

F.3d at 1424. The comi explained that,

[T]he [privilege] is absent in these cases because if either the Constitution or a statute makes the nature of governmental officials' deliberations the issue, the privilege is a nonsequitur. The central purpose of the privilege is to foster government decisionmaking by protecting it from the chill of

7 To the extent that Defendants rely on the Mar/inez order to support their claim that federal courts recognize a broad, blanket legislative privilege for state legislators, that reliance is also misplaced. The Martinez court explicitly recognized that some comis have found that no federal common law legislative privilege protects state legislators; at most, state legislators may be able to claim a deliberative process privilege, which is "qualified" and "may be overcome by showing a sufficient need for the information or by making a prima facie showing of misconduct."

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potential disclosure. If Congress creates a cause of action that deliberatively exposes government decisionmaking to the light, the privilege's raison d'etre evaporates.

I d. (citation omitted).

The same is true here, where the voters have, through Amendment 6, created a

cause of action that makes the Legislature's intent in preparing the 2012 Plan the issue in

a claim of partisan gerrymandering. Under these circumstances, no privilege applies.

II. FLOIUDA'S SUNSHINE AMENDMENT REQUIRES DEFENDANTS TO PRODUCE THE DOCUMENTS THEY HAVE WITHHELD FROM DISCOVERY

Defendants' attempt to withhold documents based on legislative privilege should

be rejected for two additional reasons. First, under governing Florida Supreme Court

precedent interpreting the Florida Constitution, there is no latitude for creating a common

law legislative privilege exception to Plaintiffs' fundamental constitutional right of

access to records received or generated by the Legislature in connection with its official

business. Second, Defendants read the redistricting exception for access to public records

far too broadly.

A. The Sunshine Amendment imposes broad public access requirements on the Florida Legislature

Defendants' motion all but ignores the Florida Constitution's Sunshine

Amendment, relegating it to a passing mention. See Defs.' Mot. 15-16. But the

Amendment requires more than mere lip service; indeed, together with the Florida

statutes that implement it, the Sunshine Amendment establishes that---even before the

enactment of Amendment 6-Plaintiffs possess a fundamental constitutional right to

obtain virtually all documents relating to the Legislature's 2011-2012 redistricting

process and activities. The claim of legislative privilege that Defendants invoke does not

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overcome this constitutional right. Moreover, while Section 24(c) of the Sunshine

Amendment allows the Legislature to enact narrowly tailored exceptions to the public

right of access, no exception to this right applies to the documents Plaintiffs seek.

Florida has a long tradition of open government. See Patricia A. Gleason &

Joslyn Wilson, The Florida Constitution's Open Government Amendments: Article I,

Section 24 and Article III, Section 4(e)-Letthe Sunshine Inl, 18 NovA L. REV. 973, 974

(1994). But until the Sunshine Amendment was enacted in 1992, the public's "rights of

access were primarily secured by statutory enactments," making them "subject to the

discretion of the Legislature" in "continual threat of being weakened or dismantled by

future legislatures." !d. In the late 1980s, "increased public awareness, coupled with a

growing dissatisfaction that key legislative decisions were being made by the legislative

leadership behind closed doors," spurred a movement to amend the Florida Constitution

to require that the Legislature conduct its business in open meetings. !d. at 976. An open

meetings amendment was proposed and "overwhelmingly approved by the voters" in

1990. !d. at 977.

The very next year, the related issue of public access to records was pushed to the

forcfl·ont by a Florida Supreme Court decision holding that the Public Records Law did

not apply to the courts or the Legislature. Locke v. Hawkes, Nos. 76090, 76803, 1991

WL 231589 (Fla. Nov. 7, 1991), vacated and superseded by 595 So. 2d 32 (Fla. 1992).

The Sunshine Amendment was put on the general election ballot in November 1992.

Gleason & Wilson, supra, at 979. Like the related open meetings amendment, it was

overwhelmingly approved by the voters. !d.

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By its terms, the Sunshine Amendment guarantees "[e]very person ... the right to

inspect or copy any public record made or received in connection with the official

business of any public body, officer, or employee of the state, or persons acting on their

behalf." Fla. Const. art. I, § 24(a). Pursuant to this provision, Florida citizens have "a

fundamental constitutional right" of access to the records of Florida's public institutions.

Rhea v. Dis/. Ed. of Trustees of Santa Fe College,- So. 3d-, No. IDII-3049, 2012 WL

2924068, at *3 (Fla. App. I Dist. July 19, 2012) (citing Fla. Const. art. I,§ 24(a)). This

constitutional right specifically extends to "the legislative ... branch[] of government and

each agency or department created thereunder." Fla. Const. ati. I, § 24(a).

The rights created by the Sunshine Amendment are enforced and implemented

through the Public Records Act, Fla. Stat. § 119.0 I, for documents under the control of a

public agency. The purpose of this Act '"is to open public records to allow Florida's

citizens to discover the actions of their government."' Bent v. State, 46 So. 3d 1047,

I 049 (Fla. App. 4 Dist. 20 I 0) (quoting Christy v. Palm Beach Cnty. Sheriff's Office, 698

So. 2d 1365, 1366 (Fla. App. 4 Dist. 1997)). Given the strong public policy in favor of

disclosing public records, the Florida Supreme Comi has ruled that the Public Records

Act must "be construed liberally in favor of openness, [with] all exemptions from

disclosure [] constmed narrowly and limited in their designated purpose." Light bourne v.

McCollum, 969 So. 2d 326, 332-33 (Fla. 2007) (internal quotation marks and citation

omitted).8

8 Cases interpreting and applying the term "public record" in the agency context are equally applicable in the legislative context. State v. City of Clearwater, 863 So. 2d 149, 153 (Fla. 2003) (holding precedent regarding public access to records of the judicial branch applicable to case involving public access to records of agencies because the deiinition of 'judicial record" "is viliually identical to the legislative definition of 'public

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These same principles are embodied in Florida Statutes, Section 11.0431, which

implements the Sunshine Amendment for documents under the control of the Florida

Legislature. That provision provides that "[i]t is the policy of the Legislature that eve1y

person has the right to inspect and copy records of the Senate and the House of

Representatives received in connection with the official business of the Legislature as

provided for by the constitution of this state." Fla. Stat.§ 11.0431(1). Exceptions to this

policy are permitted only if "specific public necessity justifies that public records be

exempt from such inspection and copying." !d. And the nanow exceptions to public

access that are permitted are lawful only if the legislature has followed the express

procedure provided in Article I, Section 24(c) of the Florida Constitution, which requires

that the exception be passed by a two-thirds vote of each chamber, state "with specificity

the public necessity justifying the exemption and ... be no broader than necessary to

accomplish the stated purpose of the law." Fla. Canst. art. I,§ 24(c).

The Sunshine Amendment and statutes implementing it do not leave any room for

courts to excuse the Legislature from providing public access to documents based on

common law privileges or policy considerations. The only exceptions a court may apply

are those expressly established by statute. Thus, in Wait v. Florida Power & Light Co.,

372 So. 2d 420, 424 (Fla. 1979), the Florida Supreme Court rejected a public utility

commission's attempt to avoid disclosing public documents based on attorney-client

privilege and the attorney work product doctrine, holding that "[i]fthe common law

privileges are to be included as exemptions, it is up to the legislature, and not this Comi,

to amend the [Public Records Act]."

records' contained in section 119.011 (1 )") (internal quotation marks and citation omitted).

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B. The documents Plaintiffs have requested arc public records and are not exempt from public access

The documents and other materials Plaintiffs are seeking are clearly "public

records" under the Sunshine Amendment and are not within any of the statutory

exceptions to public access. These materials are described in the Romo Plaintiffs' First

Request for Production of Documents (Exhibit C) and fall into the following categories:

(I) Written or recorded communications between or among members, employees, and consultants of the House Redistricting Committee relating to 2011-2012 redistricting, proposed redistricting maps, and the redistricting process;

(2) Written or recorded communications relating to the subjects listed immediately above between or among (i) members, employees, and consultants of the House Redistricting Committee, and (ii) members of the Senate Redistricting Committee, map drawers for the House or Senate Redistricting Committee, incumbent members of the Florida delegation to the U.S. Congress, the Florida Governor, the Florida Attorney general, and the Florida Republican Party, or the Florida Republican National Committee;

(3) Meeting agendas, announcements, minutes, recordings, and notes prepared by any member, employee, or consultant of the House Redistricting Committee relating in any way to redistricting or the 2011-2012 redistricting process; and

(4) Documents reflecting or relating to work performed by any expert retained by the House Redistricting Committee in connection with redistricting in 2011 or 2012.

Under the language of Article I, Section 24(a), the Legislature must produce every

document encompassed by these categories that (I) is a "public record," meaning any

record "made or received in connection with the official business of any public body,

officer, or employee of the state"; and (2) is not within a statutory exception to the

Sunshine Amendment's requirements of public access. All of the documents that

Plaintiffs seek meet these criteria. Under the Florida Supreme Court's holding in Wait,

Defendants cannot withhold these documents on the basis oflegislative privilege. 372

So. 2d at 424.

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1. The documents Plaintiffs have requested are public records

The documents Plaintiffs seek clearly relate to the Legislature's "official

business." Article III, Section 16, of the Florida Constitution gives the Legislature

responsibility for drawing the state's congressional districts. Accordingly, any document

or other material created or received by the Legislature in the redistricting process is a

public record under the Sunshine Amendment because it was "made or received in

connection with the official business of[ a] public body, officer, or employee of the

state." Fla. Cons!. mi. I,§ 24(a). Similarly, any materials in the Legislature's custody

generated in the redistricting process are public records under Florida Statutes, Section

11.0431, because they were "received in connection with the official business of the

Legislature as provided for by the constitution of this state." Fla. Stat. § 11.0431 (I).

Plaintiffs' document requests seek only materials made or received in connection

with redistricting or the redistricting process. Because that is the case, all the materials

Plaintiffs seek relate directly to "the official business" of the Legislature and members,

employees, and consultants of the Legislature. The materials are therefore indisputably

within the definition of "public records," as that term is used in the Sunshine Amendment

and Florida Statutes, Section 11.0431.

The Florida Supreme Court's interpretation of"public records" further confirms

this conclusion. The Court has construed public records "to encompass all materials

made or received by an agency, in connection with official business, which are used to

'perpetuate, communicate or formalize knowledge of some type."' Rhea, 2012 WL

2924068, at *3 (quoting Shevin v. Byron, Harless, Schaffer, Reid & Assocs., 379 So. 2d

633, 640 (Fla. 1980)). Written and recorded communications relating to the redistricting

process, minutes of redistricting meetings, and work product from experts and

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consultants relating to redistricting are all materials used to "perpetuate, communicate or

formalize knowledge of some type" and thus are within the Florida Supreme Court's

construction of"public record."

Defendants' obligation to provide access to these materials does not depend in

any way on the physical format in which the materials exist: the "public records law is

not limited to paper documents ... it applies, as well, to documents that exist only in

digital form." Nat'! Collegiate Athletic Ass'n v. Associated Press, 18 So. 3d 1201, 1207

(Fla. App. I Dis!. 2009). This principle matches the broad description of public records

in Florida Statutes, Section 11.0431 ( 4), which includes "documents, papers, letters, maps,

books, tapes, photographs, films, sound recordings, or other material, regardless of

physical form or characteristics." Consistent with this broad definition, Florida courts

have regularly found that e-mails are public records. See, e.g., Rhea, 2012 WL 2924068,

at *3. See also Times Pub! 'g Co. v. City ofC!ea111'ater, 830 So. 2d 844, 847 (Fla. App. 2

Dist. 2002) ("Information stored on a computer is as much a public record as written

documents in official files .... Although digital in nature, there is little to distinguish ...

e-mail from ... letters delivered to government workers via a government post office box

and stored in a government-owned desk."). Phone records are also public records within

the meaning of Section 11.0431. See Media Gen. Operation, h1c. v. Feeney, 849 So. 2d

3, 6 (Fla. App. I Dist. 2003) (holding cellular phone records of staff employees of the

Florida House of Representatives for calls made in connection with the House's official

business must be turned over in response to a public records request).9

9 In Feeney, the House of Representatives agreed that the phone records generally were responsive to the records request, but resisted turning over unredacted records, arguing that the disclosure of the telephone numbers that the staffers called could result in

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2. There are no common law exceptions to the Sunshine Amendment's requirements

Because the documents Plaintiffs seek are public records, Defendants cannot

avoid producing them unless they demonstrate that the legislative privilege is expressly

included in the statutory exceptions to the Sunshine Amendment. But Defendants cam10t

make this showing: the exceptions set forth in Florida Statutes, Section 11.0431(2), do

not mention a legislative privilege and, as described, the Florida Supreme Court has

already held that a common law privilege cmmot be implied into the exceptions. Wait,

372 So. 2d at 424.

Florida Statutes, Section 11.0431 (2), lists nine narrow exceptions to the

constitutional obligation to provide public access under the Sunshine Amendment. These

exceptions address very specific types of documents, such as formal complaints about

members of the Legislature, records prepared for use in executive sessions of the Senate,

requests for advisory opinions on the application of the Legislature's ethical rules, and

documents that could threaten a person's health and safety if released. None of the

exceptions mentions or refers to a legislative privilege.

The Florida Supreme Court's ruling in Wait confirms that there are no common

law exceptions to the Sunshine Amendment. In that case, the Florida Power and Light

Company requested records from the New Smyrna Beach Utilities Commission relating

to its operations and maintenance of an electrical system. In resisting the request based

on the attorney-client privilege and the attorney work product doctrine, New Smyrna

argued that these "confidential privileges ... [were], at the time the Public Records Act

was enacted, ... a part of the common law" and are therefore "common law privilege[] ..

unreasonable consequences to the persons called. The court found this argument unpersuasive and ordered the House to produce the umedacted records. Id.

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. exemptions 'provided by law."' 372 So. 2d at 423-24 (citing Fla. Stat.§ 119.07(2)(a)).

The court squarely rejected this argument, holding that the Public Records Act does not

contain any exemptions for common law privileges and that those privileges cannot be

implied into the statute. Id. at 424. The court also rejected New Smyrna's argument that

"public policy considerations compel recognition of these litigation-related privileges as

exemptions to the act," stating that this "argument should be addressed to the legislature,"

not to the comi. !d.

While Wait involved application of Florida Statutes, Section 119.07(2), its

holding applies with equal force to Florida Statutes, Section 11.0431(2). Both statutory

provisions set forth exceptions to disclosure under the Sunshine Amendment and, at the

time Wait was decided Section 119.07(2), like Section 11.0431 (2) today, did not list any

common law privileges. Given this omission and the Florida Supreme Court's

admonition that "all exemptions from disclosure [must] be construed narrowly and

limited in their designated purpose," Lightbourne, 969 So. 2d at 332-33 (internal

quotation marks and citation omitted), it is not possible to conclude that the legislative

privilege grants an exception to the constitutional right of access created by the Sunshine

Amendment. Defendants' attempt to assert this privilege in response to Plaintiffs'

document requests must be rejected.

3. The documents requested are not exempted by Florida Statutes, Section 11.043l(d)

As previously noted, Section 11.0431 of the Fla. Stat. implements the Sunshine

Amendment as it applies to public records requests from the Florida Legislature. See Fla.

Stat. § 11.0431 (I). It sets forth nine narrow exceptions to the Legislature's constitutional

obligation to provide public access to "all documents, papers, letters, maps, books, tapes,

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A. 135

photographs, films, sound recordings, or other material, regardless of physical form or

characteristics, made or received ... in connection with the transaction of official

business by the legislative branch." !d. § 11.0431 ( 4). Among them is an exception

"from inspection and copying" for:

A draft, and a request for a draft, of a reapportionment plan or redistricting plan and an amendment thereto. Any supporting documents associated with such plan or amendment until a bill implementing the plan, or the amendment, is filed.

!d.§ 11.0431(2)(e). Defendants rely upon this exception to argue that the public has no

constitutional right of access to any "legislative materials that are--or relate to--draft

maps that were never filed as bills or amendments." Defs.' Mot. 15 (emphasis added).

Defendants' argument must fail for several reasons.

By its plain terms, Section 11.0431 only exempts (I) drafts of redistricting plans,

(2) requests for drafts, or (3) -until a bill is .filed- a plan's "supporting documents."

Thus, a record must fall into one of these three narrow categories to be covered by the

exemption. See Lightbourne, 969 So. 2d at 332-33 ("[A]ll exemptions from disclosure

[must] be construed nan·owly and limited in their designated purpose.") (internal

quotation marks and citation omitted). Any and all other records made or received by the

Legislature or by legislative staff in relation to the redistricting process-including any

documents related to the enacted plan-are not exempt from disclosure.

Moreover, each of the categories of documents addressed by Section 11.0431(1)

must also be construed narrowly and in accordance with their common and ordinary

meaning. See id.; Donato v. Am. Tel. & Tel. Co., 767 So. 2d 1146, 1154 (Fla. 2000).

Dei(mdants argue that the exception covers all "legislative materials that are--or relate

to-draft maps that were never filed as bills or amendments." Defs.' Mot. 15 (emphasis

26

A. 136

added). But that is not what the statute says. The statute restricts access only to drafts,

requests for drafts, and - until a bill is filed - "supporting documents."

The term "supporting documents" is not defined in Section 11.0431, but neither

the general rule requiring that exceptions be construed narrowly, nor the legislative

history of this exception specifically, suppmis Defendants' impermissibly broad

construction of the term. In particular, Defendants' definition would equate "supporting

documents" with "working papers" of the Legislature and its staff-an exception that was

among the original exemptions to the Sunshine Amendment vetoed by the Governor.

Gleason & Wilson, supra, at 996-99 (discussing evolution of early exceptions to the

Sunshine Amendment). Shortly after the Sunshine Amendment was enacted, the Senate

proposed a bill that would have excepted both (1) "Requests for, and drafts of, bills,

amendments, reapportionments plans, and redistricting plans, including supporting

documentation," with no temporal limitation; and (2) "Working papers of employees,

officers or members, relating to their official or legislative oversight responsibilities."

FLA. S. JOURNAL, 1993 REG. SESS. 615 (amendment 1, § 2(g), (h)). Before that bill was

approved, the House amended the "working papers" exception to apply to "[w]orking

papers of employees, officers, or members relating to their legislative responsibilities."

FLA. H.R. JouRNAL, 1993 REo. SESS. 1515, 1516 (House amendment to Senate

amendment 1, § 2( c)). As noted above, Governor Chiles vetoed the bill. In doing so, he

"wrote that he was concerned about the breadth of the exemptions for working papers and

legislative drafts." Gleason & Wilson, supra, at 998. He stated that "these provisions ...

served to frustrate the will of the people as expressed in the passage of the [Sunshine

Amendment]," "impede[] 'public understanding of influences on, and the purpose of,

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A. 137

legislation, and diminish[] the ability of Floridians to hold their lawmakers accountable."'

!d. (quoting Lucy Morgan, Records Secret Bill Is to Become Law, St. Petersburg Times,

May 12, 1993, at B3). The Legislature held a special session and revised the exceptions

bill "in an attempt to address the Governor's concerns." Id. Among the revisions that

became law- and remain law today- was the omission of a broad "working papers"

exception and the revision to the redistricting exception to make "supporting documents"

public once a bill implementing a plan is filed. !d. at 998-99.

Defendants, however, would have this Comt read the te1m "supp01ting

documents" so broadly that it is indistinguishable from the concept of working papers.

But the Florida Supreme Court has mandated that such exceptions be read narrowly.

Lightboume, 969 So. 2d at 332-33. As such, "supporting documents" should be deemed

to encompass only those materials that clearly and directly support a specific plan.

Communications about the making of that plan should fall outside of the narrow sphere

of documents subject to the exception.

In addition to requiring disclosure of"[a]ny supporting documents associated"

with the 2012 Plan now that a bill implementing the plan has been filed, Section

11.0431 (I) is also best read to require access to draft maps once a final version resulting

from the drafting process is filed. In accordance with the Florida Supreme Court's

direction that exemptions must be construed narrowly, any and all drafts of plans created

during the 2012 congressional redistricting process (which began in 2011) should be

deemed by this Court to be drafts of the 2012 Plan. Defendants' apparent attempt to

characterize drafts of the 2012 Plan that were not ultimately approved reads the exception

too broadly and in contrast to the common and ordinary meaning of the statutory

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A. 138

language. By definition, a "draft" of a plan is a preliminary version of a plan, not

necessarily bearing resemblance to the plan ultimately enacted. Plaintiffs do not seek

materials related to drafts of plans from years past; they only seek materials related to this

d. . . 10

most recent re tstnctmg process.

Finally, for the reasons discussed in Section I of this Brief, if the only possible

reading of the exception encompasses the materials that Plaintiffs seek in order to

discover the intent of the makers of the 2012 Plan, Section 11.0431 (2)(e) is

constitutionally invalid following the passage of Amendment 6.

4. This Court has the power to order Defendants to produce the requested documents

Defendants' argument in the alternative that, "[ e ]ven if the public had access to

exempt documents," Plaintiffs must "appeal" Defendants' decision to deny them access

to these public records "to the Speaker of the House-not to the courts," Defs.' Mot. 16,

is without merit.

First, the House Rule that Defendants cite applies, at most, to documents received

or created by the House of Representatives; Defendants cite no parallel rule in the Senate,

whose Rules of Procedure do not appear to provide for any in-house appeals process.

Second, the Speaker of the House is a party to this action. The House Rules do

not state the mechanism by which a public records appeal must be taken or provide the

10 The terms "drafts" and "requests for drafts" must also be construed narrowly to include only any actual drafts or specific requests for preparation of the same. Thus, to the extent that a draft or request for drat! also includes some other communication related to the redistricting process-for example, if an incumbent Senator requested that a new draft of the plan be prepared so as not to threaten his or her seat-the exception in Section 11.0431 (2)( e) would not absolve the Legislature of its constitutional obligation to provide copies of these records in redacted form, subject to in camera review by the Court. That Defendants interpret these terms impermissively broadly is evidenced by their privilege logs. See, e.g., Exhibit Bat 21-23 (asserting as protected by the legislative privilege several emails "regarding a draft bill").

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means by which the Speaker must convey his ruling on that appeal. Thus, his position in

litigation should be construed as an assertion of his position that Plaintiffs' request for

these materials was not "wrongfully ... denied." Fla. H. Rep. R. 14.1.

Third, under longstanding law, this Court plainly has the authority to determine

whether the Speaker's refusal to produce these materials violates the Florida Constitution.

See Douglas v. Webber, 128 So. 613, 615 (Fla. 1930) (holding that "in adjudicating rights

in a justiciable case," Florida courts "may determine, in so far as the rights being

adjudicated are involved, whether a power that has been exercised by the legislative

department, as it affects the particular case ... was exerted in the manner required by the

Constitution"). And, where documents are wrongfully withheld, this Couti has the power

to order the House to produce them. See Feeney, 849 So. 2d. at 6 (ordering House of

Representatives to produce cellular phone records of staff employees in response to a

public records request). See also Chiles v. Phelps, 714 So. 2d 453, 456 (Fla. 1998)

(holding Florida courts can hear proceedings quo warranto to enforce the public's "right

to have the legislature and its leaders exercise their powers in a constitutional manner");

Fla. Const. art. V, § 5(b) (circuit courts have power to issue writs quo warranto ). 11

Finally, this issue comes before the Court on Defendants' motion for a protective

order. Thus, Defendants have put in issue the legality of their refusal to produce these

11 The Florida Supreme Court has long distinguished between review of purely internal legislative rules-which are nonjusticiable-and legislative action which is either subject to constitutional restraints, or "which reaches out to effect some action or result outside of the legislature itself and therefore beyond their intemal procedures"-which is subject to judicial review and intervention Moffitt v. Willis, 459 So. 2d 1018, I 021-22 (Fla. 1984). The House's refusal to produce these documents is both a refusal to comply with a constitutional duty and an action which reaches outside of the Legislature itself, to affect the public at large.

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A. 140

documents. Under such circumstances, a conclusion that the Court is without power to

determine whether these materials must be produced would be nonsensical.

III. EVEN IF DEFENDANTS COULD CLAIM SOME FORM OF LEGISLATIVE PRIVILEGE, IT DOES NOT SUPPORT THEIR MOTION FOR A PROTECTIVE ORDER

For the reasons set forth above, both the Florida Constitution and state statutes

foreclose Defendants' claim of privilege. Their motion for a protective order should

therefore be denied. But even were this Court to find Defendants' claim to a common

law or implicit legislative privilege under these circumstances persuasive, their motion

for a protective order is both overbroad and premature. Defendants seek nothing less

than a blanket order prohibiting all testimonial and a significant amount of documentary

discovery as to the intent of the drafters of the 2012 Plan, regardless of who is deposed or

what they are asked. Not only would such an order render Amendment 6's prohibition on

political gerrymandering essentially meaningless, it is not supported by either the

decision in E~pedia-the only decision fl'Dm the Florida courts to recognize a legislative

privilege thus far-or case law interpreting the federal common law in this area.

A. The compelling constitutional interest in knowing the Legislature's intent outweighs any interest advanced by the legislative privilege

Even in the limited circumstances in which it has been recognized, the legislative

privilege is not absolute and must give way to more important interests. As the court

stated in E>.pedia, "[t]he court will always have to make a preliminary inquiry to

determine whether the information [sought] is within the scope of the privilege and

whether the need for privacy is outweighed by a more important governmental interest."

&pedia, 85 So. 3d at 525 (emphasis added). See also United States v. Gillock, 445 U.S.

360, 374 (1980) (holding no evidentiary privilege for state legislator charged in federal

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A. 141

criminal case based on balancing of interests); Trammel v. United States, 445 U.S. 40,50

(1980) (holding that evidentiary privileges must be "strictly construed" and applied "only

to the very limited extent that permitting a refusal to testify or excluding relevant

evidence has a public good transcending the normally predominant principle of utilizing

all rational means for ascertaining truth") (internal quotation marks and citation omitted);

Ji'la. Ass 'n of Rehabilitation Facilities, Inc. v. Fla. Dep 't of Health & Rehabilitative

Servs., 164 F.R.D. 257,266-68 (N.D. Fla. 1995) (noting several factors courts must

consider in determining whether a legislative privilege is applicable in any given case).

Through enactment of Amendment 6, Florida's voters have done the balancing

test for the court by establishing a compelling governmental interest in eliminating

political gerrymandering- an interest that outweighs any interest legislators might have

in hiding their intent in drafting the 2012 Plan. The Amendment outlaws any

reapportionment plan drawn with the intent to favor a particular party or incumbent. The

voters have thus declared that there is a compelling interest in knowing the Legislature's

intent when it drafted a reapportionment plan and specifically whether the Legislature

acted with a motive that the Florida Constitution forbids. Because knowledge of that

intent goes to the heart of a constitutional right, the governmental interest at stake is of

the highest order. Cj Tlv!H v. D.M T, 79 So. 3d 787, 799 (Fla. App. 5 Dist. 2011)

(holding that "the Legislature's undeniably important role" in shaping policy "does not

relieve the courts from the solemn duty to ensure the protection of constitutional rights").

In contrast to the compelling constitutional interest at stake, the alleged privacy

interest that Defendants invoke carries little weight in this context. As Defendants'

acknowledge, legislative privilege does not exist "to protect legislators' individual

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A. 142

interests, 'but to support the rights of the people, by enabling their representatives to

execute the functions of their office without fear."' Defs.' Mot. 14 (quoting Coffin v.

Co_ffin, 4 Mass. I, 27 (1808)). In this case, the people have necessarily determined

through the enactment of Amendment 6 that the procedural protection afforded by the

legislative privilege must yield to the peoples' substantive right to congressional districts

drawn without any intent to favor a particular party or incumbent. Indeed, if the

procedural protection were to prevail, the peoples' substantive right to a reapportionment

plan devoid of any favoritism would be effectively gutted. That is because the most

effective way to learn of the Legislature's intent in drawing a reapportionment plan is to

obtain information concerning the objectives and methods relied upon by the legislators,

map drawers, legislative staff: and others who created the plan. Without this type of

direct evidence, Amendment 6 could become an empty right. Under these circumstances,

any legislative privilege must yield, as comts have found in analogous situations. See

United States v. Irvin, 127 F.R.D. 169, 173-74 (C.D. Cal. 1989) (finding federal common

law deliberative process privilege overridden in VRA case that placed legislative

deliberations themselves at issue). See also In re Subpoena Duces Tecum, 145 F.3d at

1424 ("[T]he [privilege] is absent in these cases because if either the Constitution or a

statute makes the nature of governmental oilicials' deliberations I he issue, the privilege is

a nonsequitur."); Baldus v. Brennan, Nos. 11-CV-562, 11-CV-101 1, 2011 WL 6122542,

at *2 (E. D. Wise. Dec. 8, 2011) ("[G]iven the serious nature of the issues in this case and

the government's role in crafting the challenged redistricting plans, ... legislative

privilege simply does not apply .... ").

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A. 143

To demonstrate the peril of allowing legislative privilege to trump Plaintiffs'

interest in learning about the intent underlying the congressional reapportionment plan,

consider a hypothetical in which a member of the House Redistricting Committee

instructs a House employee with responsibility for drafting a reapportionment plan to

draw a particular district in a way that would ensure the re-election of an incumbent

congressman. Upon receiving an email from the member, the employee deliberately

creates district boundaries that ensure victory for the incumbent, and that district becomes

part of the plan the Legislature eventually passes. Although the reapportionment plan

would obviously violate Amendment 6's prohibition against favoring incumbents, under

Defendants' theory of legislative privilege, the citizens of Florida could never learn that

the Legislature acted illegally. The House member would be protected from disclosing

his unlawful purpose, the House employee would be insulated from revealing the

improper instruction he received, and the offending email from the member to the

employee would never see the light of day. The practical effect, of course, would be to

efiectively read the improper "intent" language out of Amendment 6 and to give the

Legislature continued license to engage in precisely the type of political favoritism and

gerrymandering that Amendment 6 was designed to eliminate.

The hypothetical also highlights the important difference between this case and

the cases cited by Defendants in which courts found that testimony from legislators is not

reliable evidence of the meaning of a piece of legislation. See Defs.' Mot. 17-18. Unlike

in those cases, Plaintiffs here are seeking information about the legislative process itself

and whether the Legislature acted unconstitutionally. The intent of the legislators in

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A. 144

drafting the 2012 Plan is the central question at issue. Thus, unlike the cases Defendants

cite, the discovery is not sought to support a claim about the interpretation of legislation.

Defendants' assertion that the discovery Plaintiffs seek is irrelevant and "of no

probative value," Defs. Mot. 17, hardly merits a response. Evidence of the intent of the

drafters of the 2012 Plan is plainly relevant, as confirmed by the Florida Supreme Court's

statement that "there is no acceptable level of improper intent." In re Legislative

Apportionment 1176, 83 So. 3d at 617 (emphasis added). In fact, even the decision by

Judge Hinkle (upon which Defendants elsewhere heavily rely) found testimony from

legislators about their intent and motivation "obviously" relevant. See Hr' g Tr. 91:1-11.

See also J. Hinkle Order 2-3. Judge Hinkle's conclusion in this regard was consistent

with the prevailing judicial opinion about the relevance of legislative intent in

redistricting cases. See, e.g., Baldus, 2011 WL 6122542, at *I; Comm.for Ci Fair &

Balanced Map v. Ill. State Bd. of Elections, No. II C 5065, 2011 WL 4837508, *3 (N.D.

Ill. Oct. 12, 20 II). As one federal judge noted in a redistricting case alleging

discriminatory intent, "[i]t would be odd were it otherwise ... [as m ]otive is often most

easily discovered by examining the unguarded acts and statements of those who would

otherwise attempt to conceal evidence of ... intent." Cano v. Davis, 193 F. Supp. 2d

1177, 1182 (C.D. Cal. 2002) (Reinhardt, J., concurring in patt). See also id. at 1181

("[T]he statements oflegislators involved in the process, especially leaders and

committee chairmen, as well as the authors of the legislation involved, may in some

instances be the best available evidence as to legislative motive.") (citing Vi//. of

Arlington Heights v. Metro. Housing Dev. C01p., 429 U.S. 252, 267 (1977)).

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A. 145

B. Even if the legislative privilege applied, it would not support the broad protective order that Defendants arc seeldng

Even where courts have found that the legislative interest in privacy outweighs

the governmental interest in the litigation, the privilege does not serve as a blanket

protection for all communications by legislators and their aides equally. Instead, claims

of privilege must be evaluated in a specific factual context, as the privilege could apply in

some circumstances but not in others. Defendants' motion is flawed because it seeks a

broad pronouncement that legislative privilege applies, without linking the claim of

protection to specific documents or to specific subjects and questions addressed to

witnesses. While Defendants' motion should be denied in its entirety, at a minimum, the

Court should deny the motion on the ground that it lacks the factual context needed to

assess the claim of legislative privilege.

For example, the identities of experts and/or consultants retained to assist in

drafting the 2012 Plan should not be privileged. Comm. for a Fair & Balanced Map,

2011 WL 4837508, at *10. The same is true of any objective facts upon which the

legislators or their staff relied in drawing the plan. I d. This would include, for example,

any data on partisan affiliation in proposed districts that legislators may have considered,

as well as any data on incumbent addresses that legislators may have considered. In

addition, any privilege enjoyed by legislators or their staff is waived with regard to their

communications with external consultants and experts, and Plaintiffs should be permitted

to ask about such communications. See id.; see also Baldus, 2011 WL 6122542, at *2

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A. 146

(finding legislature "waived its legislative privilege [in redistricting case] to the extent

that it relied on ... outside experts for consulting services"). 12

In sum, the legislative privilege comes with multiple exceptions and may be

waived. Thus, even if Defendants could show that the privilege applies- which they

cannot- their motion for a blanket protective order is not justified, and a motion for a

narrower protective order would be premature. Instead of receiving blanket,

undifferentiated protection from discovery, Defendants should be required to attend the

depositions noticed by Plaintiffs and to answer Plaintiffs' questions. Any claim of

privilege should be made specifically in response to a particular question, so that

Plaintiffs can test the claim of privilege and bring a motion to compel, if necessary. See,

e.g., City of Pompano Beach v. Swerdlow Lightspeed Mgmt. Co., 942 So. 2d 455,456-57

(Fla. App. 4 Dist. 2006) (dismissing petition challenging court order requiring city

commissioners to appear for deposition as "premature" where respondents had not yet

formulated their deposition questions); Fla. Ass'n of Rehabilitation Facilities, 164 F.R.D.

at 260 ("The witnesses here have not appeared at their depositions and asserted their

privilege in the context of specific questions ... [therefore] the question of the operation

of a privilege in a specific setting is not ripe."). Similarly, any documents withheld on

the basis oflegislative privilege must be disclosed on a privilege log and potentially made

available to the Court for in camera review.

12 These external consultants may include but are not limited to lobbyists and members of party committees or campaign committees, in addition to any outside consultants specifically consulted for assistance with preparing the plan. Comm. for a Fair & Balanced Map, 2011 WL 4837508, at *10.

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A. 147

CONCLUSION

For the foregoing reasons, the Court should deny Defendants' motion for a

rimwy E-mail: [email protected] SecondaJJ' E-mail: [email protected] Akerman Senterfitt 106 East College Avenue, Suite 1200 Tallahassee, Florida 32301 Telephone: (850) 224-9634 Telecopier: (850) 222-0 I 03

THOMAS A. RANGE PrimWJ' E-mail: [email protected] Secondary E-mail: [email protected] Akem1an Senterfitt I 06 East College Avenue, Suite 1200 Tallahassee, Florida 3230 I Telephone: (850) 224-9634 Telecopicr: (850) 222-0 I 03

JOHN DEVANEY (admitted pro hac vice) Primal)' E-mail: [email protected] SecondWJ' E-mail: S Yarboro ugh@perkinsco i e. com

PERKINS COlE, LLP 700 131

h St., N.W., Suite 600 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Telecopier: (202) 654-6211

KEVIN J. HAMILTON (admitted pro hac vice) Primal)' E-mail: [email protected] Secondwy E-mail: [email protected]

ABI-lA KHANNA (admitted pro hac vice) PrimWJ' E-mail: AKhanna@perkinscoie. com Secondw)' E-mail: [email protected]

PERKINS COlE, LLP 1201 Third Ave, Suite 4900 Seattle, W A 981 0 I Telephone: (206) 359-8000 Telecopier: (206) 359-9000

Attorneys for Romo Plaintiffs

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I HEREBY CERTIFY that a true and correct copy of the foregoing has been

furnished by Electronic Mail this 28th day of 1gust to each of the following parties on / .? 1

the attached service list:

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A. 149

Daniel E. Nordby, General Counsel Ashley Davis, Assistant General Counsel Florida Department of State R.A. Gray Building 500 S. Bronaugh Street, Suite I 00 Tallahassee FL 32399 [email protected] [email protected]

Michael A. Carvin Louis K. Fisher JONES DAY 51 Louisiana Avenue N.W. Washington, D.C. 20001 [email protected] [email protected]

Leah L. Marino, Deputy General Counsel THE FLORIDA SENATE Suite 409, The Capitol 404 South Monroe Street Tallahassee, FL 32399-1100 marino.lcah@flsenate. gov

Peter M. Dunbar Cynthia Skelton Tunnicliff PENNINGTON, MOORE, WILKINSON, BELL & DUNBAR, P.A. 215 South Monroe Street, 2d Floor Tallahassee, FL 32301 [email protected] [email protected]

Charles T. Wells George N. Meros, Jr. Jason L. Unger Allen Winsor Charles B. Upton II GRAY ROBINSON, P.A. Post Office Box 11189 Tallahassee, FL 32302 charles. we lls@gra y-ro bi nson.com

SERVICE LIST

40

[email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]

Miguel A. De Grandy MIGUEL DE GRANDY, P.A. 800 Douglas Road, Suite 850 Coral Gables, FL 33134 [email protected]

George T. Levesque, General Counsel FLORIDA HOUSE OF REPRESENTATIVES 422 The Capitol Tallahassee, FL 32399-1300 [email protected]

Ronald G. Meyer Lynn Hearn MEYER, BROOKS, DEMMA & BLOHM 131 North Gadsden Street P.O. Box 1547 Tallahassee, FL 32302 [email protected] [email protected]

Jessica Ring Amunson Michael B. DeSanctis Kristen M. Rogers Paul M. Smith Christopher Deal JENNER & BLOCK LLP 1099 New York Ave, N.W., Suite 900 Washington, D.C. 20001 [email protected] [email protected] [email protected] psmi th@j enner. com [email protected]

A. 150

J. Gerald Hebert J. GERALD liEBERT, P.C. 191 Somervelle Street, Unit 415

Alexandria, VA 22304 [email protected]

Bruce V. Spiva, Esq. THE SPIV A LAW FIRM PLLC 1776 Massachusetts Avenue, N.W. Suite 601 Washington, D.C. 20036 [email protected]

Timothy D. Osterhaus, Deputy Solicitor General Blaine Winship, General Counsel OFFICE OF THE ATTORNEY GENERAL The Capitol, PL-0 I Tallahassee, FL 32399 [email protected] [email protected]

Stephen Hogge STEPHEN HOGGE, ESQ., LLC 117 South Gadsden Street Tallahassee, FL 32301 [email protected]

Charles G. Burr

41

BURR & SMITH, LLP Grand Central Place 442 W. Kennedy Blvd., Suite 300 Tampa, FL 33606 [email protected]

Allison J. Riggs Anita S. Earls SOUTHERN COALITION FOR SOCIAL JUSTICE 1415 W. Highway 54, Suite 101 Durham, NC 27707 [email protected] [email protected]

Victor L. Goode Dorcas R. Gilmore NAACP 4805 Mt. Hope Drive Baltimore, MD 21215-3297 [email protected] [email protected]

Harry 0. Thomas Christopher B. Lunny RADLEY THOMAS YON & CLARK, P.A. 301 S. Bronough Street, Suite 200 Tallahassee, FL 32301-1722 [email protected] [email protected]

A. 151

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA ,·- n

~""'~r


Plaintiffs,

v.

KENNETH W. DETZNER, in his official capacity as Florida Secretary of State; PAMELA JO BONDI, in her capacity as Attorney General,

Defendants.

TIIE LEAGUE OF WOMEN VOTERS OF FLORIDA, et al.,

Plaintiffs,

v.

KENNETH W. DETZNER, in his official capacity as Florida Secretary of State; THE FLORIDA SENATE; et al.,

Defendants.

) ) ) ) ) ) ) ) ) ) )

) )

) ) ) ) ) ) ) ) ) ) ) ) )

Or-; "Y-AJ n:::::.C" 0 (""l

C~(!1 :x::.-;o -K'l:;; -<C:-. -f'. --n-lrr. -n-r. oo'"

CASE NO.: 2012-CA-0~ 1>

CASE NO.: 2012-CA-00490

.... ~ , c: (i)

~ en -o :::!t

-f."' cJ1 -.J

COALITION PLAINTIFFS' OPPOSITION TO LEGISLATIVE DEFENDANTS' MOTION FOR PROTECTIVE ORDER BASED ON LEGISLATIVE PRIVILEGE

INTRODUCTION

The ftrst line of the Florida Constitution states that "all political power is inherent in the

people." FLA. CoNST. Art. 1, § 1. In reaction to decades of blatant partisan gerrymandering and

incumbent protection by the Florida Legislature, the Florida voters in November 2010 passed the

"Fair Districts Amendments" to the Florida Constitution, which explicitly prohibit the state

,...,n -l-~

rn 0

A. 152

Legislature from drawing apportionment plans or districts "with the intent to favor or disfavor a

political party or incumbent." FLA. CONST. Art. 3, §§ 20, 21. In this case, Plaintiffs seek

vindication of their rights under the Fair Districts Amendments, and specifically Amendment 6,

''to elect representatives in a fair manner so that each person's vote com1ts equally and so that all

citizens receive 'fair and effective representation.'" In re Senate Joint Resolution of Legislative

Apportionment 1176 ("In re Legislative Apportionmenf'), 83 So. 3d 597, 600 (Fla 2012).

Granting the Legislative Defendants' motion for a broad protective order that would

enable them to conceal from Plaintiffs and the public the most direct evidence of their intent

during the redistricting process would frustrate the will of the people clearly expressed in the

Fair Districts Amendments. It is also unjustified under existing law. 1

Further, both this Court and the Florida Supreme Court have stated that looking only at

the face of the congressional map and the written legislative history of its passage is likely

insufficient to determine the Legislature's intent. Thus, if the Legislative Defendants are

permitted to shield from discovery all non-public documents and testimony regarding their intent

in enacting a congressional map with such demonstrable partisan effects, they may succeed in

preventing Plaintiffs from obtaining the very type of evidence this Court and the Supreme Court

have said is necessary to determine whether the Legislature's actions violated the Fair Districts

Amendments. This would effectively render the Amendments unenforceable.

The League of Women Voters of Florida, the National Council of La Raza, Common

Cause Florida, and four individual registered Florida voters (the "Coalition Plaintiffs")

respectfully submit this brief in opposition to the Legislative Defendants' Motion for Protective

1 Moreover, to the extent such a privilege even arguably applies in this case, it may have been waived to the extent the Legislature used outside consultants to prepare the congressional map.

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Order Based on Legislative Privilege (''Defendants' Motion"). In addition to these and other

arguments set forth below, the Coalition Plaintiffs adopt and incorporate herein the arguments

advanced by the Plaintiffs in Romo eta!. v. Detzner et al. in their Opposition to Defendants'

Motion. Defendants' motion should be denied.

BACKGROUND

I. THE FAIR DISTRICTS AMENDMENTS CHANGED THE LEGAL LANDSCAPE BY MAKING INTENTIONAL PARTISAN GERRYMANDERING AND INTENTIONAL INCUMBENT PROTECTION UNCONSTITUTIONAL IN FLORIDA

On November 2, 2010, Florida voters took the historic step of amending their state

Constitution to restrict the discretion of the Florida Legislature in the redistricting process. The

Fair Districts Amendments imposed new restraints on the Legislature designed to ensure that

voters will choose their representatives, rather than having the representatives choose their

voters. By an overwhelming margin, Florida citizens amended their state Constitution by

adopting two provisions that provide standards the Legislature must abide by when drawing state

legislative and congressional districts. The purpose of the Fair Districts Amendments is to

prevent partisan gerrymandering and incumbency protection, and to protect the traditional

redistricting principles of equal population, compactness, contiguity, and respect for political and

geographic boundaries. 2

In supporting the Fair Districts Amendments, the voters were responding to a long history

of political gerrymandering in Florida. See Motion of Plaintiffs The League of Women Voters of

Florida, et al., For Summary Judgment on the Facial Unconstitutionality of the Legislature's

Congressional Redistricting Plan Or, Alternatively, For Preliminary Injunctive Relief and

2 Amendment 5 and 6 adopted identical standards. Amendment 5 governs legislative redistricting, whereas Amendment 6, at issue in this case, governs congressional redistricting.

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Memorandum of Law in Support at 3-4 (hereinafter, "Coalition Summary Judgment Brief').

Indeed, in the 2002 redistricting cycle, the Legislature "stipulated .. . at trial" that in drawing the

last congressional map, ''the intent of the Florida legislature, comprised of a majority of

Republicans, was to draw the congressional districts in a way that advantages Republican

incumbents and potential candidates." Martinez v. Bush, 234 F. Supp. 2d 1275, 1300-01, 1340

(S.D. Fla 2002) (the "legislature's overriding goal with respect to congressional reapportionment

was to adopt a plan that would . .. maximize the number of districts likely to perform for

Republicans''). The Fair Districts Amendments made such partisan and incumbent

gerrymandering unconstitutional under the Florida Constitution.

In passing the amendments, the voters emphatically expressed their desire to rid the state

redistricting process of rampant and acknowledged partisan and incumbent favoritism. They

sought to eliminate back-room dealing and to ensure that Florida's voting districts are drawn to

benefit the people, not the self-serving interests of politicians. The Fair District Amendments

completely changed the legal landscape for redistricting in Florida and impose a substantial

limitation on legislators' discretion in drawing reapportionment plans and voting districts. This

restriction is unprecedented for Florida's state legislators; there is no other provision of Florida

law that imposes a similar prohibition on them. In order to eliminate the partisan and incumbent

favoritism that has pervaded the redistricting process in Florida, the Amendments focus squarely

on the intent of the legislators in drawing apportionment plans and districts.

As the Florida Supreme Court has recognized, these new legal obligations "requir[ e J a

commensurately more expanded judicial analysis oflegislative compliance." In re Legislative

Apportionment, 83 So. 3d at 607. The Court has a "constitutional obligation to conduct ... the

heightened review contemplated and expressed by the citizens of Florida who voted to add this

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amendment to our constitution." ld at 687 (Lewis, J. concurring). Assessing compliance with

the Constitution now requires an inquiry into the intent of the legislators and the decision

making process that resulted in the challenged congressional plan. In the words of the Florida

Supreme Court, under the new Amendments ''there is no acceptable level of improper intent."

Jdat617.

II. THE LEGISLATIVE DEFENDANTS' MOTION FOR A PROTECTIVE ORDER

Defendants seek a blanket protective order that would prevent Plaintiffs from asking state

legislators or any of their staff members about what transpired during the redistricting process

and from gaining access to any draft maps - or any supporting documents - that might evidence

the intent of the legislators. 3

Thls request for a protective order is the latest in a series of efforts by state legislators to

frustrate the people's desire to limit the Legislature's discretion during the redistricting process

flrst by attempting to prevent the passage of the Fair District Amendments in their current form4

3 It is clear that much of the redistricting process took place behind closed doors, and that if

Plaintiffs are unable to ask about such non-public discussions, the most direct evidence of legislators' intent will be shielded from view. For instance, as part of the Senate redistricting process, there were meetings between legislative staff and, in some instances, the leadership of the redistricting committees and individual Senators to discuss their individual districts. Fla. S. Comm. on Reapportionment, Transcript of proceeding at 165-168 (Dec. 6, 2011) (Tallahassee, Fla.) (Statements of Sens. Rich and Gaetz and Staff Director of the Senate Reapportionment Committee John Guthrie). There are no transcripts of these individual meetings, and thus, no public record of whether any legislators made statements in those meetings that betray an intent to favor an incumbent or party.

4 The Florida Supreme Court removed the legislators' alternative proposal from the ballot. Fla. Dept. of State v. Fla. State Conf of NAACP Branches, 43 So. 3d 662,662 (Fla. 2010). The Court noted that the Legislature's proposal was misleading: "While purporting to create and impose standards upon the Legislature in redistricting, the amendment actually eliminates actual standards and replaces them with discretionary considerations." ld

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and then, after it passed, by challenging the Amendments in federal court. 5 Through the current

motion, the Legislative Defendants attempt to shield from Plaintiffs, the public, and the Court the

best and most direct evidence of intentional partisan gerrymandering and incumbent favoritism-

the very behavior Florida voters amended their Constitution to eliminate.

ARGUMENT

I. APPLYING LEGISLATIVE PRIVILEGE TO PREVENT PLAINTIFFS FROM OBTAINING THE REQUESTED DISCOVERY WOULD CONFLICf Wlffi THE PURPOSES OF THE FAIR DISTRICTS AMEND:MENTS AND THWART THE WILL OF THE PEOPLE

Granting Defendants' motion would impose a substantial barrier to the Court's ability to

assess compliance with Amendment 6 and Plaintiffs' efforts to uncover evidence of the

Legislature's intent in adopting the congressional map- a map the Coalition Plaintiffs have

shown bears all the outward hallmarks of unconstitutional incumbent favoritism and partisan

gerrymandering.6 As discussed below, despite the Legislative Defendants' contentions, Florida

law does not support application oflegislative privilege to allow Defendants to avoid the

discovery Plaintiffs seek. To the contrary, applying the privilege here would be inconsistent

with the Florida Constitution and would thwart the will of the people as expressed in

Amendment 6, which puts the intent of the legislators involved in drawing the challenged map

squarely at issue. "Constitutional provisions must never be construed in such a manner as to

make it possible for the will of the people to be frustrated or denied." In re Legislative

Apportionment, 83 So. 3d at 631 (quoting Lewis v. Leon Cnty., 73 So. 3d 151, 153-54 (Fla.

5 The legislators unsuccessfully challenged the amendment in Brown v. SecyofState, 668 F.3d 1271 (11th Cir. 2012).

6 See Coalition Summary Judgment Brief at 8-41.

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2011)). ''Every word of the Florida Constitution should be given its intended meaning and

effect." In reApportionment Law, etc.J 263 So. 2d 797, 807 (Fla. 1972).

The Legislative Defendants' assertion oflegislative privilege in this matter is yet another

attempt to eviscerate the Fair Districts Amendments by shielding from discovery the most direct,

and possibly the only, source of evidence of improper legislative intent; the testimony and

documents of the legislators and staff who drew and enacted the map, and even potentially third-

party consultants. 7 Indeed, allowing the use of the privilege here would provide legislators -

particularly those acting with prohibited intent- a clear path to circumvent the Constitution and

a free pass to do so. It will mean that the very behavior that the people of Florida, through their

Constitution, have forbidden, i.e., backroom deals favoring or disfavoring a party or an

incumbent, may be conducted with impunity so long as legislators and their staff are careful

enough not to reveal their intent on the public record. This was clearly not the people's will in

enacting the Fair Districts Amendments -which the Florida Supreme Court has held permit "no

7 Defendants have refused even to identify outside consultants who were involved in the redistricting process. In response to the Coalition Plaintiffs' Interrogatories and Document production requests requesting the identify of outside consultants or organizations and production of documents pertaining to communications with them, the Legislative Defendants do not deny that they used outside consultants, but decline even to provide their identities, claiming that information is protected from discovery. See Florida Senate's Resp. and Objections to LOWV Pls' First Req. for Interrogs, Responses to lnterrogs. 1, 2, Exhibit 1 hereto; Florida House of Representatives' Resp. and Objections to LOWV Pls' First Interrogs and Req. for Produc. Of Docs.: Responses to Req. for Prod. 7, 13 and Response to Interrog. 1, Exhibit 2 hereto. Not only does this prevent Plaintiffs from seeking information from those sources, it precludes an assessment of whether the privilege has been waived. Even if this court were to find that legislative privilege does potentially apply, the privilege has likely been waived. As noted by one Court, it is "all but disingenuous" for the state legislature to claim legislative privilege in a proceeding determining the constitutionality of the Legislature's actions, when the Legislature "clearly did not concern itself with maintaining that privilege when it hired outside consultants to help develop its plans." Baldus v. Members of the Wis. Gov't Accountability Bd., 2011 U.S. Dist. LEXIS 142338, *7 (E.D. Wis. Dec. 8, 2011) (citation omitted).

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acceptable level of improper intent." In re Legislative Apportionment, 83 So. 3d at 617

(emphasis added).

Neither the Florida Constitution nor any Florida statute provides for a legislative

privilege for Florida state legislators. As discussed below, one court has recently recognized a

limited common law legislative privilege for Florida state legislators. This limited common law

privilege should not be permitted to override a constitutional provision expressing the will of the

people.

D. THE LIMITED COMMON LAW PRIVILEGE RECENTLY RECOGNIZED FOR FLORIDA STATE LEGISLATORS DOES NOT JUSTIFY NONDISCLOSURE IN THIS CASE

Under Florida law, the legislative privilege is quite limited and does not shield production

of documents and testimony where, as here, the Florida Constitution requires inquiry into

legislative intent. The Legislative Defendants rely heavily on the one case that has directly

addressed the question of whether there is a legislative privilege for Florida state legislators,

Florida House of Representatives v. Expedia, 85 So. 3d 517 (Fla. Dist. Ct. App. 1st Dist. 2012).

This reliance is misplaced. Expedia supports disclosure in this case.

In Expedia, the First District Court of Appeal found that, despite the fact that neither

Florida's Constitution nor Florida's statutes provide for such a privilege, Florida state legislators

may assert a limited legislative privilege based on common law. However, the Expedia court

made clear that the legislative privilege it was recognizing for the first time under Florida law "is

not absolute." Expedia, 85 So. 3d at 525 (emphasis added). The court emphasized tha~ "[a]

court will always have to make a preliminary inquiry to determine whether the information is

within the scope of the privilege and whether the need for privacy is outweighed by a more

important governmental interest." /d at 525 (emphasis added). In this matter, it could not be

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clearer that the enforcement of the voters' constitutional right to fair districts far outweighs

whatever minimal interest, if any, the Legislature has in shielding its deliberations over the very

public business of redistricting from disclosure. "The obligations set forth in the Florida

Constitution [by the Fair Districts Amendments] are directed not to the Legislature's right to

draw districts, but to the people's right to elect representatives in a fair manner so that each

person's vote counts equally and so that all citizens receive 'fair and effective representation."'

In re Legislative Apportionment, 83 So. 3d at 600.

In Expedia, the dispute that gave rise to the court's application oflegislative privilege

was peripheral to the case, and the Court noted that Expedia claimed to need the subpoenaed

documents to refute a potential argument that Expedia had waived a privilege, which the

opposing party had not even raised. In that context, the court determined that "no [important

governmental] interest has been demonstrated in the present case.'' Expedia, 85 So. 3d at 525.

This case is at the opposite end of the spectrum from Expedia. Plaintiffs seek the most direct and

potentially the only available evidence that the Florida Legislature violated the state's

Constitution in order to make out their core claims in this action.

Here, the important governmental interest at stake clearly outweighs the legislators'

claimed need for privacy. Plaintiffs seek to vindicate the people's constitutional right to a fair

and unbiased reapportionment plan that will give them a true opportunity to elect the political

representatives of their choice, as opposed to the candidates favored by the powers-that-be in the

current Legislature. The discovery sought by Plaintiffs would be highly probative, since

improper legislative intent would establish a violation of Amendment 6, and the testimony and

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documents requested will likely be the best available evidence of the legislators' intent.8 It is

unlikely that revealing information about the legislators' intent will be available to Plaintiff's

through other means. 9

Further, obtaining this evidence is vital to Plaintiffs' case, as both this Court and the

Florida Supreme Court have stated that the partisan results of the Legislature's actions-

evidenced by the map itself- are likely insufficient to prove the legislators' intent. See Order

Denying Pls.' Summary Judgment Mot at 8-9 ("There are simply too many other factors at

play .. . to find unlawful intent based merely on the projected partisan breakdown of the

congressional plan.") (citing In re Legislative Apportionment 83 So. 3d at 641-42). See also In

8 "[M]otive is often most easily discovered by examining the unguarded acts and statements of those who would otherwise attempt to conceal evidence of ... intent." Cano v. Davis, 193 F. Supp. 2d 1177, 1182 (C.D. Cal. 2002) (Reinhardt, J., concurring in part). "The statements of legislators involved in the process, especially leaders and committee chairmen, as well as the authors of the legislation involved, may in some instances by the best available evidence as to legislative motive." Id. Moreover, as noted below, this Court and the Supreme Court have already rejected the very argument Defendants are making here - that the face of the statute and other objective indicia of legislative intent are sufficient to determine whether the Legislature has complied with the Amendments. See Order Denying Pls.' Summary Judgment Mot at 8-9; In Re Joint Resolution of Legislative Apportionment 2-B, 89 So. 3d 872, 897 (Fla. 2012).

9 Defendants suggest in their brief that "legislative motive is most appropriately ascertained from objective evidence, such as the enactment itself and the legislative record," Defs Mot. p. 19. They point out that there is a substantial legislative record available to Plaintiffs in publicly available sources and through documents being produced. Id at 21. However, during the redistricting process that led to the congressional map, all of the legislators were aware of the proscriptions of Amendment 6. Legislators were unlikely to make damning statements in public, and indeed during the public hearings on redistricting, the Chairman of the Senate Reapportionment Committee, Don Gaetz, wrote a letter to his Senate colleagues stating that leaders of both chambers had agreed lawmakers "will not be recognized for comments or discussion or even for questions" at the hearings. Bill Kaczor, "Redistricting Group Calls Fla Hearings 'Charade'" Real Clear Politics, June 14,2011, http://www.realclea.rpolitics.com/news /ap/politics/20 11/Jun/14/redistricting_group _calls_ fla_hearings_charade _ .html; see also Aaron Deslatte, "Florida Legislators Gird for Redistricting Battles," Orlando Sentinel, June 19, 2011, http:/ /articles.orlandosentinel.com/2011-06-19/news/os-redistricting-battle-begins-20 110619 _1_ incumbents-or-political-parties-legislative-districts-congressional-districts (reporting that "Florida House and Senate leaders have already instructed their members to zip their lips during public hearings this summer.").

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Re Joint Resolution of Legislative Apportionment 2-B, 89 So. 3d 872, 897 (Fla. 2012)

("Restricted to only a facial review of the Legislature's intent, there will be times when this Court

may seriously question the drawing of certain lines or the partisan balance of the plan but

nevertheless uphold it because impermissible intent has not been proven based on the limited

nature of the record before us"). Thus, if the Legislative Defendants are permitted to shield from

discovery documents and testimony regarding their intent in enacting a congressional map with

such demonstrable partisan effects, they may succeed in preventing any meaningful inquiry into

whether their actions violated the Fair Districts Amendments, effectively rendering the

Amendments unenforceable. However far the limited legislative privilege announced in Expedia

extends, it should not extend that far.

On the other side of the balance required by Expedia, there is no apparent legitimate need

for legislators and their staff to withhold documents and information concerning their reasons for

drawing the congressional map the way they did. Apart from general assertions about the need

of legislators to be free from the supposedly chilling effects of disclosure of their redistricting

work prior to announcing and enacting the final product, see, e.g., Defs Mot at 14, 16-17, the

Legislative Defendants make no serious case concerning the need for privacy with regard to their

redistricting deliberations.

That is not surprising. Redistricting is public business that plays a "crucial role . .. with

respect to the right of citizens to elect representatives." In re Legislative Reapportionment, 83

So. 3d at 600. "Indeed, the right to elect representatives - and the process by which we do so -

is the very bedrock of our democracy.'' Id The Fair Districts Amendments reflect the people's

will that the Legislature redistrict in an open and fair manner, which is free of the partisan and

incumbent-protecting taint so prevalent in past cycles. See id at 599 ("With the recent addition

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of [Amendment 6] to article III of the Florida Constitution. the Legislature is governed by a

different and more comprehensive constitutional measurement than before - the limitations on

legislative authority in apportionment decisions have increased and the constitutional yardstick

has more measurements").

As the court opined in Baldus v. Members of the Wis. Gov't Accountability Bd., 843 F.

Supp. 2d 955, 959 (E.D. Wis. 2012), "the truth here- regardless of whether the Court ultimately

finds the redistricting plan unconstitutional - is extremely important to the public, whose

political rights stand significantly affected by the efforts of the Legislature. On the other hand,

no public good suffers by the denial of privilege in this case." There is no legitimate reason for

relevant information about the Legislature's intent in drawing the congressional map to be

shielded from public view; it must be disclosed so that Florida citizens may see and the Court

may determine whether the Legislature faithfully complied with the requirements of the Florida

Constitution.

Applying the Expedia court's balancing test to the facts of this case weighs heavily in

favor of allowing the discovery Plaintiffs' seek. This Court should not expand the legislative

privilege to enable Defendants to avoid this discovery.

ID. DECISIONS FROM MANY OTHER COURTS SUPPORT PLAINTIFFS' POSITION THAT THE LEGISLATIVE P~EGE IS A QUALIFIED PRIVILEGE AND DOES NOT APPLY HERE

A. Legislative Privilege Does not Permit Legislators to Avoid Disclosure where, as Here, the Plaintiffs' Interest in Obtaining the Discovery Sought Outweighs the Legislators' Interest in Confidentiality.

As in Expedia, other courts, including the United States Supreme Court, have recognized

that to the extent a legislative privilege exists, it is a qualified privilege that must yield in certain

circumstances, and the need for requested testimony or documents may outweigh any arguable

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harm to the legislative process caused by requiring legislators to provide them. For instance, in

US. v. Gillock, 445 U.S. 360 (1980), the Supreme Court found that the privilege did not apply to

state or local legislators in federal criminal prosecutions. Gillock, 445 U.S. 360 at 373 ("[W]e

believe that recognition of an evidentiary privilege for state legislators for their legislative acts

would impair the legitimate interest of the Federal Government in enforcing its criminal statutes

with only speculative benefit to the state legislative process."); Village of Arlington Heights v.

Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977) (stating that in extraordinary instances

members of a legislative body might be called to testify at trial in civil case concerning the

purpose of official action); see also Girardeau v. State, 403 So. 2d 513, 514 (Fla. Dist. Ct. App.

1st Dist. 1981) (legislative privilege based only on "generalized interest in confidentiality'' does

not permit legislator to avoid testifying before grand jury).10

In Baldus v. Members of the Wis. Gov't Accountability Bd., 2011 U.S. Dist. LEXIS

142338 (E.D. Wis. Dec. 8, 2011), a three judge panel of the U.S. District Court for the Eastern

District of Wisconsin considered motions to quash subpoenas issued to a legislative aide to the

Wisconsin State Senate Majority Leader and a lawyer employed by a finn the legislature had

hired as a consulting expert to provide legal advice related to the development of a state

redistricting plan. The Court found that legislative privilege would not apply, since legislative

privilege is "a qualified privilege that can be overcome by a showing of need." Id. at 8.

10 In general, privileges are to be strictly construed since ''testimonial exclusionary rules and privileges contravene the fundamental principle that 'the public .. . has a right to every man's evidence"' Trammel v. United States, 445 U.S. 40, 50 (1980), quoting United States v. Bryan, 339 U.S. 323, 331 (1950). They must be construed narrowly because "[p]rivileges impede the search for the truth." Pierce County v. Guillen, 537 U.S. 129, 144-145 (2003), citing Baldrige v. Shapiro, 455 U.S. 345, 360 (1982). The Supreme Court has made clear that it does not apply an evidentiary privilege unless it "promotes sufficiently important interests to outweigh the need for probative evidence." Trammel, 445 U.S. at 51.

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After determining that the requested deposition testimony and documents pertaining to

the legislative body's intent were both relevant and important as direct evidence, the court

ordered that the depositions should proceed and the documents be produced. The Court opined

that while allowing the plaintiffs access to the requested discovery "may have some minimal

'chilling effect' on the legislature," it was outweighed by the "highly relevant and potentially

unique nature of the evidence." I d. at 8. In a subsequent opinion, the court characterized the

Defendants' efforts to avoid disclosure as an apparent "desperate attempt to hide from both the

Court and the public the true nature of exactly what transpired in the redistricting process."

Baldus v. Members of the Wis. Gov't Accountability Bd., 843 F. Supp. 2d 955,958 (E.D. Wis.

2012). "[T]he Legislature bas taken action that affects the voting rights of Wisconsin's citizens

and now attempts to cloak the record of that action behind a charade masking as privilege." Id.

See also Florida Assoc. of Rehabilitation Facilities v. Fl. Dep 't of Health & Rehabilitative Serv.,

164 F.R.D. 257,268 (N.D. Fla. 1995) ("even if a privilege as to particular questions is to be

recognized, it may be overcome by a showing of need"); United States v. Irvin, 127 F.R.D. 169,

174 (C.D. Cal. 1989) ("[The Voting Rights Act] requires vigorous and searching federal

enforcement . . . . [T]he Supervisors' deliberative process privilege must yield in this instance to

the need for disclosure. . . . This Court is not convinced that the occasional instance in which

disclosure may be ordered in a civil context will add measurably to the inhibitions already

attending legislative deliberations'').

Similarly, in Manzi v. DiCarlo, 982 F. Supp. 125 (E.D.N.Y. 1997), an employment

termination case, the court ordered the production of certain documents concerning allocations of

funds to a state senator because "the discovery and trial needs of plaintiff in enforcing her rights

under federal law clearly outweigh the State Defendants' need for confidentiality." Manzi, 982 F.

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Supp. at 129. 11 As argued above, the negligible privacy interests of individual legislators in

shielding their discussions concerning the very public business of enactment of the Florida

congressional map must give way to the public's right to know whether their representatives

have faithfully fulfilled their duties under the Florida Constitution -particularly when that

determination turns on the intent of the legislators - and to challenge an unconstitutional map

effectively.

B. Legislative Privilege Does Not Permit Legislators to Avoid Disclosure Where, as Here, the Legislative Process Itself is at Issue in the Case.

When the subject of the legal claims at issue is the legislative process itself, legislative

privilege does not apply. See, e.g., East End Ventures eta/. v. Village of Sag Harbor, 2011 U.S.

Dist. LEXIS 145472, *12-13 (E.D.N.Y. Dec. 19, 2011) ("Because the subject matter on which

Plaintiffs seek testimony is one of the central issues in this case, the legislative privilege is

inapplicable.") (citations omitted). See also Children First Found, Inc. v. Martinez, No. 04-

0927,2007 U.S. Dist. LEXIS 90723, *26-27 (N.D.N.Y. Dec. 10, 2007) (holding that the

deliberative process privilege only protects the government's deliberative process from inquiry if

u In balancing a party's need for the evidence against the legislature's interest in protecting it from disclosure, some courts have applied a five factor test including "(i) the relevance of the evidence sought to be protected; (ii) the availability of other evidence; (iii) the 'seriousness' of the litigation and the issues involved; (iv) the role of the government in the litigation; and (v) the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable." See, e.g., Rodriguez v. Pataki, 293 F. Supp. 2d 302,304 (S.D.N.Y. 2003). As discussed above, the information Plaintiffs seek is (i) clearly highly relevant, and (ii) unlikely to be available through other sources. With respect to the seriousness of the litigation (iii), Plaintiffs allege violation of a constitutional provision and raise serious questions about the legitimacy of the Florida state Legislature's redistricting process and the viability of the challenged map. Regarding the role of the government (iv), state legislators were directly involved in the allegedly unlawful conduct. With respect to factor (v), while the need to encourage frank and open discussions among the legislators is not unimportant, in this case where a constitutional provision explicitly limits the motivations upon which legislators may take certain action- the privacy interest must take a back seat to the people's right to enforce the Constitution.

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it is collateral to the litigation); Fl. Ass'n of Rehab. Fac., Inc., 164 F.R.D. at 268 ("[EJven if the

information sought is privileged, the privilege may not be applicable in this case. Plaintiffs have

made a persuasive argument that the subject matter of this case ... is in part the legislative

process itself.").

"The privilege was fashioned in cases where the governmental decision making process

is collateral to the plaintiff's suit." In re Subpoena Duces Tecum Served on the Office of the

Controller of the Currency, 145 F.3d 1422, 1424 (D.C. Cir. 1998). But "[i]f either the

Constitution or a statute makes the nature of governmental officials' deliberations the issue, the

privilege is a nonsequitur." Id (emphasis in original); see also Jones v. City of College Park,

237 F.R.D. 517, 521 (N.D. Ga. 2006) (finding that the deliberative process privilege which

protects against disclosure of governmental deliberations "is simply inapplicable [where]

government intent is at the heart of the issue"). This is because where the government

information protected by the privilege -legislators' deliberative process- is the basis for a

constitutional or statutory cause of action, "the privilege's raison d'etre evaporates." In re:

Subpoena Duces Tecum, 145 F.3d at 1424 (D.C. Cir. 1998). 12 In short, if the plaintiff's cause of

action is directed at the government's intent, as here, "it makes no sense to permit the

government to use the privilege as a shield., Id

The intent of the Legislature in enacting the redistricting plan is the primary issue to be

assessed in evaluating Plaintiffs' claims; an inquiry into the Legislature's intent is required to

determine whether or not there has been a violation of the Florida Constitution. Creating

districts with improper intent is a direct violation of the Florida Constitution, and it is this alleged

12 While some courts have made this finding in the context of discussing application of the "deliberative process" privilege as opposed to "legislative" privilege, the distinction is not significant for purposes of this argument. See East End Ventures 2011 U.S. Dist. LEXIS 145472 at *7 [citation format]( discussing the interchangeability of the two privileges).

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unlawful conduct that is being challenged in this action. Assessing the legislature's intent

includes considerations such as how the challenged map- and the districts within it- came

about, what factors were taken into account in drafting the map, and what the legislators'

motivations were when doing so. The legislative process - and specifically the legislators'

decision making process - are the focus of the assessment.

As Defendants recognize in their brief, the purpose of the legislative privilege is

ultimately to benefit the people, not to protect legislators individually. Defs Mot. at 14.

Legislative privilege does not exist "to protect legislators' individual interests, 'but to support the

rights of the people, by enabling their representatives to execute the functions of their office

without fear."' Id at 14 (quoting Coffin v. Coffin, 4 Mass. 1, 27 (1808)). As one court put it,

Government documents are protected from discovery so that the public will benefit from more effective government; when the public's interest in effective government would be furthered by disclosure, the justification for the privilege is attenuated. Thus, [when the information] sought may shed light on alleged government malfeasance, the privilege is denied.

In re Franklin Nat'l Bank Sec. Litig., 478 F. Supp. 577, 582 (E.D.N.Y. 1979). Amendment 6

imposes specific limitations on how the legislative decision making process takes place, and the

defendants should not be permitted to use legislative privilege as a shield to conceal any such

potentially illegal conduct.

For all of these reasons, the plaintiffs' need for the discovery requested clearly outweighs

the Legislature's alleged privacy interests. Amendment 6 explicitly limits the freedom of

legislators to draw apportionment plans and districts in a manner that advances whatever

intentions they may have. Enabling more effective government and furthering the public interest

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-the rationales for the privilege in the first place - are better served in this case by disclosure

than by allowing the legislative process to remain cloaked in secrecy.

CONCLUSION

Preventing the Plaintiffs in this action from obtaining information about the legislators'

process in drawing the challenged map beyond what is available in the public record provides the

Legislature a clear path to violating the will of the people as expressed in Amendment 6. If the

Court grants the Legislative Defendants' motion for a protective order, it would be expanding the

scope of the legislative privilege and frustrating the will of the people of Florida by imposing a

significant and unnecessary barrier to enforcement of Amendment 6. For the reasons stated

herein, and those stated in the Romo Plaintiffs' brief, the Court should deny Defendants' motion.

RONALD . YER Florida Bar No. 0148248 Email: [email protected] Meyer, Brooks, Demma and Blohm, P.A. 131 North Gadsden Street Post Office Box 1547 (32302) Tallahassee, FL 32301 (850) 878-5212 Telephone (850) 656-6750 facsimile (850) 222-1840 facsimile

The Spiva Law Firm PLLC Bruce V. Spiva [email protected] Admitted Pro Hac Vice 1776 Massachusetts Ave., N.W. Suite 601 Washington, D.C. 20036 Telephone: 202-785-0601 Facsimile: 202-785-0697

18

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Jenner & Block, LLP Michael B. DeSanctis [email protected] Admitted Pro Hac Vice Paul M. Smith [email protected] Admitted Pro Hac Vice Jessica Ring Amunson [email protected] Admitted Pro Hac Vice Kristen M. Rogers [email protected] Admitted Pro Hac Vice 1099 New York Ave NW, Suite 900 Washington, DC 20001 Telephone: 202-639-6000 Facsimile: 202-639-6066


ATTORNEYS FOR COALITION PLAINTIFFS


I ~fy that the foregoing was furnished by electronic mail to the following parties on

this~ day of August, 2012:

Blaine Winship Timothy D. Osterhaus OFFICE OF THE AITORNEY GENERAL PL-01, The Capitol Tallahassee, Florida 32399-1050 Blaine. [email protected] Timothy. [email protected]


Ashley E. Davis Daniel E. Nordby FLORIDA DEPARTMENT OF STATE 500 South Bronaugh Street, Suite 100 Tallahassee, Florida 32399 [email protected] [email protected] [email protected] [email protected]


19

A. 170

AndyBardos Special Counsel to the President THE FLORIDA SENATE

404 South Monroe Street, Suite 409 Tallahassee, Florida 32399 [email protected]






Charles T. Wells George N. Meros, Jr. Jason L. Unger Allen C. Winsor Charles B. Upton IT GRA YROBINSON, P.A. Post Office Box 11189 Tallahassee, Florida 32302 Charles. [email protected] [email protected] Jason. [email protected] Allen. [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]


422 The Capitol Tallahassee, Florida 32399-1300 [email protected]



20

A. 171

Joseph W. Hatchett [email protected] [email protected] Thomas A. Range [email protected] Martha [email protected] Akerman Senterfitt 106 E. College Avenue, Suite 1200 Tallahassee, FL 32301

JonL. Mills Karen Dyer Elan Nehleber Boies, Schiller & Flexner, LLP 121 S. Orange Avenue, Suite 840 Orlando, FL 32801-3233

Marc Elias [email protected] [email protected] Kevin J. Hamilton [email protected] [email protected] John M. Devaney [email protected] SY [email protected] Abba Khanna [email protected] [email protected] Perkins Cole, LLP 700 Thirteenth Street, NW, Suite 600 Washington, D.C. 20005-3960

Attorneys for Rene Romo, Benjamin Weaver, William Everett Warinner, Jessica Barrett, June Keener, Richard Quinn Boylan (Plaintiffi)

21

A. 172

Harry 0. Thomas Christopher B. Lunny Radey Thomas Yon & Clark, P .A. 301 S. Bronough Street, Suite 200 Tallahassee, Florida 32301 [email protected] [email protected] [email protected] [email protected]


Stephen Hogge 117 South Gadsden Street Tallahassee, Florida 32301 [email protected]



Victor L. Goode Dorcas R Gilmore NAACP 4805 Mt. Hope Drive Baltimore, Maryland 21215 [email protected] [email protected]

Attorneys for Intervenor/Defendant, NAACP

Ro~

22

A. 173



Plaintiffs,

vs.


Defendants.

------------------------~/


Plaintiffs,

vs.


Defendants.

--------------------------~/

CASE NO. 2012-CA-000412

ROMO PLAINTIFFS' NOTICE OF SUPI'LEMENTAL AUTHORITY IN SUPPORT OF THEIR OPPOSITION TO LEGISLATIVE DEFENDANTS'

MOTION FOR PROTECTIVE ORDER BASED ON LEGISLATIVE PRIVILEGE

The Romo Plaintiffs respectfully submit this notice of supplemental authority in

support of their brief in opposition to the Legislative Defendants' ("Defendants") motion

for a protective order based on legislative privilege. The decision attached hereto as

Exhibit A was issued by a three-judge panel of the D.C. District Comt in Texas v. United

States, Case No. 11-1303 (D.D.C. Aug. 28, 2012), in which the plaintiffs challenged the

I

A. 174

Texas Legislature's recent redistricting and reapportionment plans under Section 5 of the

Voting Rights Act of 1965 ("VRA"), 42 U.S.C. § 1973. Plaintiffs call to the Court's

attention to the D.C. District Court's findings that the plans were drawn with

discriminatory intent based on documentary discovery, including e-mails among

legislators and staff regarding draft plans, and testimony from the legislators themselves.

,x. A at 32-33,48-49,70-71.

~~~:ltr rimary E-mail:

[email protected] SecondWJ' E-mail: [email protected] AKERMAN SENTERFITT I 06 E. College Ave., Suite 1200 Tallahassee, Florida 3230 I Tel: (850) 224-9634 Fax: (850) 222-0103

THOMAS A. RANGE Primmy E-mail: [email protected] SecondWJ' E-mail: [email protected] AKERMAN SENTERFITT I 06 E. College Ave., Suite 1200 Tallahassee, Florida 3230 I Tel: (850) 224-9634 Fax: (850) 222-0 I 03

2

MARC ELIAS (admitted pro hac vice) Primmy E-mail: [email protected] Secondwy E-mail: [email protected]

JOHN DEVANEY (admitted pro hac vice) PrimWJ' E-mail: [email protected] Secondmy E-mail: [email protected]

PERKINS COlE LLP 700 13th St., N.W., Suite 600 Washington, D.C. 20005-3960 Tel: (202) 654-6200 Fax: (202) 654-6211

KEVIN J. HAMILTON (admitted pro hac vice) Primmy E-mail: [email protected] Secondmy E-mail: [email protected]

ABHA KHANNA (admitted pro hac vice) Primary E-mail: [email protected] SecondmJ' E-mail: [email protected]

A. 1753

PERKINS COlE LLP 1201 Third Ave, Suite 4900 Tel: (206) 359-8000 Fax: (206) 359-9000

Attorneys for the Ramo Plaintiffs

A. 176


I HEREBY CERTIFY that a true and correct copy of the foregoing has been

furnished by Electronic Mail this 30th day

the attached service list:

4

A. 177

Daniel E. Nordby, General Counsel Ashley Davis, Assistant General Counsel Florida Department of State R.A. Gray Building 500 S. Bronough Street, Suite I 00 Tallahassee FL 32399 Primary Email: [email protected] Secondmy Email: Betty .money@dos .111 yfl orida.com [email protected] PrimWJ' Email: [email protected] Secondmy Email: [email protected] [email protected]

Michael A. Carvin Louis K. Fisher JONES DAY 51 Louisiana A venue N. W. Washington, D.C. 20001 [email protected] [email protected]

Leah L. Marino, Deputy General Counsel THE FLORIDA SENATE Suite 409, The Capitol 404 South Monroe Street Tallahassee, FL 32399-1100 [email protected]

Peter M. Dunbar Cynthia Skelton Tunnicliff PENNINGTON, MOORE, WILKINSON, BELL & DUNBAR, P.A. 215 South Monroe Street, 2d Floor Tallahassee, FL 3230 I [email protected] [email protected]

SERVICE LIST

5

Charles T. Wells George N. Meros, Jr. Jason L. Unger Allen Winsor Charles B. Upton II GRAY ROBINSON, P.A. Post Office Box 11189 Tallahassee, FL 32302 Primary Email: [email protected] [email protected] [email protected] SecondaJJ' Email: [email protected] [email protected] Primwy Email: [email protected] [email protected] Secondmy Email: teresa. [email protected] [email protected]

Miguel A. De Grandy MIGUEL DE GRANDY, P.A. 800 Douglas Road, Suite 850 Coral Gables, FL 33134 [email protected]

George T. Levesque, General Counsel FLORIDA I-lOUSE OF REPRESENTATIVES 4 22 The Capitol Tallahassee, FL 32399-1300 Primmy Email: [email protected] SecondmJ' Email: [email protected] Velma.carter@myfloridahouse. gov

Ronald G. Meyer Lynn Hearn MEYER, BROOKS, DEMMA & BLOHM 131 North Gadsden Street

A. 178

P.O. Box 1547 Tallahassee, FL 32302 [email protected] [email protected]

Jessica Ring Amunson Michael B. DeSanctis Kristen M. Rogers Paul M. Smith Christopher Deal JENNER & BLOCK LLP 1099 New York Ave, N.W., Suite 900 Washington, D.C. 20001 [email protected] [email protected] [email protected] [email protected] [email protected]

J. Gerald Hebert J. GERALD HEBERT, P.C. 191 Somervclle Street, Unit 415

Alexandria, VA 22304 [email protected]

Bruce V. Spiva, Esq. THE SPIV A LAW FIRM PLLC 1776 Massachusetts Avenue, N. W. Suite 601 Washington, D.C. 20036 [email protected]

Timothy D. Osterhaus, Deputy Solicitor General Blaine Winship, General Counsel OFFICE OF THE ATTORNEY GENERAL The Capitol, PL-0 I Tallahassee, FL 32399 [email protected] Blaine. [email protected]

Stephen Hogge

6

STEPHEN HOGGE, ESQ., LLC 117 South Gadsden Street Tallahassee, FL 3230 I Stephen@stephenhoggeesq .com

Charles G. Burr BURR & SMITH, LLP Grand Central Place 442 W. Kennedy Blvd., Suite 300 Tampa, FL 33606 [email protected]

Allison J. Riggs Anita S. Earls SOUTHERN COALITION FOR SOCIAL JUSTICE 1415 W. Highway 54, Suite 101 Durham, NC 27707 [email protected] [email protected]

Victor L. Goode Dorcas R. Gilmore NAACP 4805 Mt. Hope Drive Baltimore, MD 21215-3297 [email protected] [email protected]

Harry 0. Thomas Christopher B. Lunny RADLEY THOMAS YON & CLARK, P.A. 30 I S. Bronaugh Street, Suite 200 Tallahassee, FL 32301-1722 PrimWJ' Email: [email protected] SecondmJ' Email: [email protected] Primmy Email: [email protected] Secondmy Email: [email protected]

TAB 10

\255036\8 - # 333977 v2

IN THE CIRCUIT COURT FOR THE SECOND JUDICIAL CIRCUITIN AND FOR LEON COUNTY, FLORIDA

RENE ROMO, an individual; BENJAMINWEAVER, an individual; et. al,

Plaintiffs,v. Case No. 2012-CA-000412

KEN DETZNER, in his official capacityas Florida Secretary of State, PAMELA JO BONDI, in her official capacity as Attorney General,

Defendants._____________________________________/

THE LEAGUE OF WOMEN VOTERS OFFLORIDA; THE NATIONAL COUNCILOF LA RAZA; et al.,

Plaintiffs,

v. Case No. 2012-CA-000490

KEN DETZNER, in his official capacity asFlorida Secretary of State; THE FLORIDASENATE; et al.,

Defendants._____________________________________/

LEGISLATIVE DEFENDANTS’ CONSOLIDATED REPLY IN SUPPORT OFMOTION FOR PROTECTIVE ORDER BASED ON LEGISLATIVE PRIVILEGE

The Legislative Defendants respectfully submit this consolidated reply in support of their

Motion for Protective Order Based on Legislative Privilege, dated July 12, 2012, and in response

to the Plaintiffs’ responses, dated August 28, 2012.

Five months ago, the First DCA held that the “power vested in the legislature under the

Florida Constitution would be severely compromised if legislators were required to appear in

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court to explain why they voted a particular way.” Fla. House of Representatives v. Expedia,

85 So. 3d 517, 524 (Fla. 1st DCA 2012). The Court minced no words: “Our state government

could not maintain the proper ‘separation’ required by Article II, section 3 if the judicial branch

could compel an inquiry into these aspects of the legislative process.” Id. Accordingly, the

Court instructed the trial court to quash subpoenas directed to a legislator and his legislative aide.

Plaintiffs make valiant efforts to avoid this controlling decision. They describe their

claims as unique and transcendent in importance, and they disparage the legislative privilege as a

“common law” relic that serves no legitimate purpose. As discussed below, however, Plaintiffs’

claims under Amendment Six are no different from other important claims that have yielded to

the privilege—a privilege inherent in the constitutional separation of powers, “the cornerstone of

American democracy.” Id. at 524 (quoting Bush v. Schiavo, 885 So. 2d 321, 329 (Fla. 2004)).

Plaintiffs’ theory of this case is fundamentally wrong. Plaintiffs suppose that, because

Amendment Six knows “no acceptable level of improper intent,” In re Senate Joint Resolution of

Legislative Apportionment 1176, 83 So. 3d 597, 617 (Fla. 2012), Plaintiffs should be permitted

to depose legislator after legislator until one confesses an improper intent. But while no level of

improper intent is acceptable, it remains the intent of the Legislature as a collective body that the

Court must ascertain, and the intent of an individual member is not the intent of the Legislature.

PLAINTIFFS CANNOT AVOID EXPEDIA

Plaintiffs are not correct that, without compelled testimony, the “intent” standard of

Amendment Six would be meaningless and unenforceable. Other, equally important provisions

with “intent” elements have yielded to the legislative privilege. The United States Supreme

Court did not render the Equal Protection Clause meaningless and unenforceable when it held

that, although a plaintiff must prove racially discriminatory intent, legislator testimony would be

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considered only in “extraordinary instances,” and that “even then such testimony frequently will

be barred by privilege.” See Vill. of Arlington Heights v. Metro. Housing Corp., 429 U.S. 252,

268 (1977). Nor did Judge Hinkle render Section 5 of the Voting Rights Act meaningless and

unenforceable when, in a published opinion, he found that, despite the “discriminatory purpose”

element of Section 5, the legislative privilege protects legislators and staff from deposition. See

State v. United States, --- F. Supp. 2d ----, 2012 WL 3594322 (N.D. Fla. Aug. 10, 2012).

As recently as March, Plaintiffs successfully argued, without any depositions or other

discovery, that the Legislature’s initial plan for Senate districts violated Amendment Six’s intent

standard. See In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So. 3d 597.

In that case, Plaintiffs argued that the intent standard “does not and cannot require a personal

confession from a majority of the Legislature . . . . Such admissions would obviously suffice, but

intent can be shown in many other ways.” Br. of Fla. Democratic Party in Opp’n to J. Res. of

Apportionment, at 10, In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So.

3d 597 (Fla. 2012) (No. SC12-1) (emphasis added), and that, “[t]hough the Court’s inquiry is

much expanded, the method of its analysis remains the same. . . . [T]he Court should look to the

plans themselves, to the legislative history, and to the statistics about those plans,” Reply Br. of

the League of Women Voters of Fla., et al., in Opp’n to the Legislature’s J. Res. of Legis.

Apportionment, at 4 In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So. 3d

597 (Fla. 2012) (No. SC12-1). Plaintiffs did not then suggest that it was impossible to show

improper intent without discovery, or that Amendment Five (Amendment Six’s counterpart) is

meaningless in relation to state legislative districts, which the Florida Supreme Court reviews in

a thirty-day appellate proceeding without legislator testimony. See Art. III, § 16(c), Fla. Const.

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The Florida Supreme Court has outlined the “objective indicators” of impermissible

intent. In In re Senate Joint Resolution of Legislative Apportionment 1176, the Court explained

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.” 83 So. 3d at 617. “One piece of evidence in

isolation may not indicate intent, but a review of all of the evidence together may lead . . . to the

conclusion that the plan was drawn for a prohibited purpose.” Id. Of particular importance, “the

Legislature’s level of compliance with [the] constitution’s tier-two requirements, which set forth

traditional redistricting principles,” is indicative of intent. Id. at 618. “A disregard for these

principles can serve as indicia of improper intent.” Id. With respect to incumbents, “the inquiry

. . . focuses on the shape of the district in relation to the incumbent’s legal residence, as well as

other objective evidence of intent,” including “such factors as the maneuvering of district lines in

order to avoid pitting incumbents against one another in new districts or the drawing of a new

district so as to retain a large percentage of the incumbent’s former district.” Id. at 618-19.

The United States Supreme Court has also outlined the objective factors that establish

improper intent under the Equal Protection Clause, and courts have applied the same factors to

redistricting plans under Section 5 of the Voting Rights Act. In Arlington Heights, the Court

prescribed “a sensitive inquiry into such circumstantial and direct evidence of intent as may be

available,” including (i) the actual impact of the enactment; (ii) its historical background; (iii) the

sequence of events that preceded the enactment; (iv) procedural or substantive departures from

the usual sequence of events; and (v) contemporaneous statements of legislators, minutes of its

meetings, and other phases of legislative history. See 429 U.S. at 266-68.

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Earlier this week, a federal district court followed the “well-worn path” outlined in

Arlington Heights and found a discriminatory purpose beneath Texas’ new redistricting plans.1

See Texas v. United States, --- F. Supp. 2d ----, 2012 WL 3671924 (D.D.C. Aug. 28, 2012). And

the same analysis supported Judge Hinkle’s recent decision to sustain the legislative privilege.

In that case, the League of Women Voters of Florida and the National Council of La Raza (both

Plaintiffs here), made precisely the same arguments as in this case. They argued that because

“legislative purpose and motive are directly at issue . . . , any qualified legislative privilege . . .

must yield.” Defendant-Intervenors’ Reply in Supp. of Mot. to Compel, at 15, State v. United

States, 2012 WL 3594322 (No. 4:12-mc-3-RH-WCS).2 They insisted that the “testimony of the

1 Plaintiffs filed this decision as supplemental authority, but it does not aid their

argument. Earlier in the Texas case, the Court declined to rule on legislative privilege because Texas agreed to provide documents under seal. See Mem. Op. on Privilege Claims, No. 1:11-cv-01303-RMC-TBG-BAH (Jan. 2, 2012). The Court expressed skepticism that a privilege applied because Texas cited no authority for a legislative privilege under Texas law. Id. at 17 (“Texas cannot claim a privilege here that its own courts do not recognize.”). Of course, Florida courts do recognize the legislative privilege.

2 At the hearing, counsel for the League of Women Voters of Florida and the National Council of La Raza argued that “Section 5 is different” and therefore supplants the privilege:

MR. O’CONNOR: Section 5 is different, your Honor, because Section 5 was specifically enacted by Congress in an attempt to reverse years and years of discriminatory actions by certain covered jurisdictions.

THE COURT: That’s different from the Equal Protection Clause how?

MR. O’CONNOR: It’s different because it places the burden on the covered jurisdiction to demonstrate there is no discriminatory purpose and focuses on the legislative motive in enacting the law.

THE COURT: But motive is exactly what the Equal Protection Clause focuses on, too, right?

MR. O’CONNOR: Yes.

THE COURT: And that’s my point. Fair enough. If the burden is on the state in a Section 5 case, the burden is certainly on the challenger to a law in an equal protection case. But, for example, the case I have pending right now that I need to go back and write a decision on, I’ve got one where the assertion is the legislature adopted a law, and it’s intentionally discriminatory in violation of the

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legislators and the legislative staff . . . is not only relevant, it is essential.” Id. at 7. Nevertheless,

Judge Hinkle correctly upheld the privilege. (See Mot. for Protective Order, Exh. A, at 92-94.)

The sponsor of Amendment Six also proposed an objective method to determine

legislative intent. In a paid political advertisement, the amendment sponsor explained that:

The public, the press and non-governmental organizations will have the opportunity to publicly comment before and after the Legislature draws the initial maps and will be able to notify the Legislature of any failure to comply with the standards before the maps are finalized. . . . Then the legislature will have two choices: either ignore the deficiencies or correct them.

If the Legislature corrects them, then the constitutional provisions will have worked.

If the Legislature ignores the deficiencies, then there is evidence on the record that the Legislature was on notice of the defects and nevertheless it drew the district(s) with intent to favor a party or incumbent.

Any deficiencies in the districting that are not corrected after public debate can be challenged in court and the courts will be able to enforce the constitutional standards.

(Exh. A.) The sponsor, therefore, did not propose legislator depositions, but public comment and

participation. And Plaintiffs had ample opportunity to participate in the redistricting process.

The Legislature conducted twenty-seven public hearings3 and, from September 19, 2011, to

January 27, 2012, seventeen meetings of the Senate Committee on Reapportionment, the House

Redistricting Committee, and the House’s Congressional Redistricting Subcommittee. During

Equal Protection Clause. I’m looking at the purpose of the legislature. Why is the testimony of a legislator any more relevant in your case than in my case?

(See Mot. for Protective Order, Exh. A, at 92-94.)3 The LOWV Plaintiffs suggest that legislators were under orders to maintain silence

during the redistricting process, but stubborn facts collide with this narrative. (LOWV Resp. at 10 n.9.) While legislators were urged to permit members of the public to speak first during the public hearings, legislators frequently spoke after public comment had concluded. And, after all public hearings had been conducted, the Legislature held seventeen committee meetings. The transcripts of these proceedings exceed 1,800 pages (even exclusive of floor proceedings), and were submitted to the United States Department of Justice to assist its evaluation of legislative purpose under the Voting Rights Act. See http://www.flsenate.gov/Session/Redistricting/Legal.

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these meetings, legislators proposed and debated numerous redistricting alternatives, providing

every opportunity for statements that reveal intent, and the redistricting plan ultimately approved

by the Legislature was superior to the initial proposals by all relevant measures. At the same

time, Plaintiffs refused repeated invitations to offer concrete and constructive suggestions. On

the last Friday before the regular legislative session, the LOWV Plaintiffs finally submitted a

proposed redistricting map, but then refused to present and defend their map before a legislative

committee. Plaintiffs did not meaningfully participate in the legislative process as contemplated

by the amendment sponsor, and now ask the Court to impose their alternatives.

The statements of the amendment sponsor also refute the contention that, unless the

legislative privilege is ignored, the “will” of the people will be frustrated. There is no evidence

that, in adopting Amendment Six, the people intended to empower Plaintiffs to use the power of

the Judiciary to place the Legislature on trial and compel its members and their staff—perhaps in

endless parade—to testify about legislative activities. The only reliable evidence of the will of

the people is the text of Amendment Six, and the text of Amendment Six does not abrogate the

legislative privilege. The people also adopted the separation-of-powers clause, which reflects

their will no less than Amendment Six. Indeed, if Amendment Six had altered the separation of

powers, its ballot summary would either have disclosed this effect, or been fatally defective. See

Graham v. Haridopolos, 75 So. 3d 315, 320 (Fla. 1st DCA 2011) (construing a constitutional

amendment in a manner that avoids an undisclosed effect on “existing sections of the

constitution,” because the failure to disclose an effect on existing provisions is misleading). In

its review of the ballot summaries of Amendments Five and Six, the Supreme Court held that the

amendments “do not alter the functions of the judiciary. They merely change the standard of

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review to be applied when . . . a redistricting plan is challenged.” Advisory Opinion to Att’y Gen.

re Standards for Establishing Legislative Dist. Boundaries, 2 So. 3d 175, 183 (Fla. 2009).

Plaintiffs suggest that “specific provisions control over general provisions,” and that

Amendment Six therefore controls the separation-of-powers provision. (Resp. at 12.) This rule

of interpretation, however, does not apply unless the two provisions are in irreconcilable conflict.

See, e.g., Knowles v. Beverly Enters.-Fla., Inc., 898 So. 2d 1, 9 (Fla. 2004). The two provisions

do not conflict at all. Like claims under the Equal Protection Clause and the Voting Rights Act,

claims under Amendment Six can be satisfied—as in the case of the original Senate plan—with

objective evidence. Moreover, Amendment Six is anything but “specific” about invalidating the

constitutional separation of powers. Indeed, it says nothing about it.

Despite this fleeting recognition that the legislative privilege is inherent in the

constitutional separation of powers, see Art. II, § 3, Fla. Const., Plaintiffs time and time again

characterize the privilege as a mere “common law” privilege. Of course, it is not. It is both a

constitutional privilege and a statutory privilege, incorporated by Section 2.01, Florida Statutes.

Expedia, 85 So. 3d at 523-24. And it is certainly not true that discovery privileges do not apply

where the rights to be enforced proceed from a higher source of law. Otherwise, the statutory

attorney-client privilege would yield whenever constitutional rights were at issue. See § 90.502,

Fla. Stat. (2012). The legislative privilege is not the weak third cousin of discovery privileges;

on the contrary, no privilege has deeper or more solid foundations than the legislative privilege.

Plaintiffs argue that compelled legislator testimony does not offend the separation of

powers because the “judiciary retains the power to determine whether the Legislature has

conducted itself as the law requires.” (Romo Resp. at 10-11.) But the very purpose of the

separation-of-powers provision is to restrain the various branches of government—including the

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judiciary—from encroachment upon the other branches. As the Expedia Court and Judge Hinkle

recognized, the judiciary is no less bound to respect the legislative sphere than the Legislature is

bound to respect the independence of the judiciary. For this reason, the Florida Supreme Court

has explained that “[i]t is the final product of the legislature that is subject to review by the court,

not the internal procedures.” Fla. Senate v. Fla. Pub. Employees Council 79, AFSCME, 784 So.

2d 404, 408 (Fla. 2001) (quoting Moffitt v. Willis, 459 So. 2d 1018, 1021 (Fla.1984)); accord

Envtl. Confederation of Southwest Fla., Inc. v. State, 886 So. 2d 1013, 1021 (Fla. 2004).

While the Supreme Court stated that Amendment Six requires an “expanded judicial

analysis,” In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So. 3d at 607, it

clearly meant that Amendment Six imposes new and more demanding standards—not that in

redistricting cases courts may now discard the separation of powers and the established rules of

evidence. Further, the Court made this observation in the light of its constitutional obligation to

review state legislative districts, but congressional plans come before this Court in the same

manner as other legislation. See Order Denying Mots. for Summ. J., at 5 (Apr. 30, 2012) (“This

Court has no specific duty under the Florida Constitution to review congressional redistricting.

. . . As a consequence, I must review it under the standards applicable to any other constitutional

challenge to legislation. Specifically, the legislation is presumed to be constitutional and the

burden is on the Plaintiffs to show beyond a reasonable doubt that it is not.”).

AMENDMENT SIX’S IMPORTANCE DOES

NOT DISPLACE THE LEGISLATIVE PRIVILEGE

Plaintiffs next ask the Court to create an exception to the legislative privilege on the

ground that Amendment Six is more important than other claims adjudicated by this Court. But

as Judge Hinkle recognized, even the federal Voting Rights Act, which was enacted to combat

race discrimination and enforce the Civil War Amendments to the United States Constitution, is

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not so unique as to displace the legislative privilege. State v. United States, 2012 WL 3594322,

at *2 (“Voting Rights Act cases are important, but so are equal-protection challenges to many

other state laws, and there is nothing unique about the issues of legislative purpose and privilege

in Voting Rights Act cases.”); cf. Vill. of Arlington Heights, 429 U.S. at 268 (recognizing the

legislative privilege in race-discrimination cases under the Equal Protection Clause). Just as the

importance of particular judicial decisions does not warrant legislative interrogation of judges,

the importance of legislative decisions does not warrant judicial interrogation of legislators. Cf.

State v. United States, 2012 WL 3594322, at *3 (“Legislators ought not call unwilling judges to

testify at legislative hearings about the reasons for specific judicial decisions, and courts ought

not compel unwilling legislators to testify about the reasons for specific legislative votes.”).

Amendment Six is far from the only constitutional mandate that requires consideration

of legislative intent or purpose. Equal Protection Clause claims require proof of “discriminatory

intent,” Washington v. Davis, 426 U.S. 229, 248 (1976), and Establishment Clause claims require

proof of “secular legislative purpose,” Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). Dormant

Commerce Clause claims require proof of “discriminatory effect” or “discriminatory purpose,”

Minnesota v. Clover Leaf Creamer Co., 449 U.S. 456, 471 n.15 (1981), and the Free Speech

Clause prohibits legislation enacted with a “purpose to suppress speech,” Sorrell v. IMS Health

Inc., 131 S. Ct. 2653, 2664 (2011). Yet the privilege does not disappear where a plaintiff must

prove illicit intent. Vill. of Arlington Heights, 429 U.S. at 268; City of Las Vegas v. Foley, 747

F.2d 1294, 1298 (9th Cir. 1984) (“Even where a plaintiff must prove invidious purpose or intent,

. . . the Court has indicated [in Arlington Heights] that only in extraordinary circumstances might

members of the legislature be called to testify, and even in these circumstances the testimony

may be barred by privilege.”); Orange v. County of Suffolk, 855 F. Supp. 620, 623 (E.D.N.Y.

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1994) (same). As Plaintiffs noted, Judge Hinkle found that legislator testimony may have been

relevant to Voting Rights Act claims (Romo Resp. at 35), but nevertheless upheld the privilege.

The cases Plaintiffs cite to support the position that the privilege vanishes when

legislative intent is at issue are unhelpful. In re Subpoena Duces Tecum Served on Office of

Comptroller of Currency, 145 F.3d 1422 (D.C. Cir. 1998), concerned an executive “deliberative-

process” privilege—the target was the FDIC, not state legislators. The unpublished decision in

East End Ventures, LLC v. Incorporated Village of Sag Harbor, No. 09-3967, 2011 WL 6337708

(E.D.N.Y. Dec. 19, 2011), likewise did not involve state legislators; it involved town trustees. In

United States v. Irvin, 127 F.R.D. 169 (C.D. Cal. 1989), the issue was local officials—not state

legislators—and the plaintiffs “disclaimed any intention of discovering the Supervisors’ wholly

uncommunicated motivations.” 127 F.R.D. at 170 n.1 (emphasis in original). Further, the

parties agreed that, other than withheld communications, “there is little evidence concerning the

events immediately preceding the Board’s adoption of the final redistricting plan.” Id. at 173. In

this case, the record is substantial. In Florida Association of Rehabilitation Facilities, Inc. v.

State of Florida, Department of Health and Rehabilitative Services, 164 F.R.D. 257, 268 (N.D.

Fla. 1995), Magistrate Judge Sherrill’s “tentative” opinion (which preceded Expedia) recognized

the likelihood of a legislative privilege in Florida. And in Manzi v. DiCarlo, 982 F. Supp. 125,

129-30 (E.D.N.Y. 1997), the employment-termination case, the legislative records sought by the

plaintiff were “not related to the passage of legislation,” but were “administrative” documents

“removed . . . from regular legislative proceedings.” The legislature, moreover, had agreed to

release the documents subject to a confidentiality agreement.

Plaintiffs’ cases simply are not persuasive, especially in opposition to clear precedent

that the legislative privilege does not disappear where legislative intent is in question. See Vill.

A. 189

\255036\8 - # 333977 v2 12

of Arlington Heights, 429 U.S. at 268; State v. United States, 2012 WL 3594322, at *2-3; City of

Las Vegas, 747 F.2d at 1298; Orange, 855 F. Supp. at 623.

Plaintiffs depend on Baldus v. Brennan, No. 11-CV-562, 2011 WL 6122542 (E.D. Wis.

Dec. 8, 2011), an unpublished federal trial court decision that cannot be reconciled with Expedia,

Arlington Heights, or Judge Hinkle’s recent decision. Unlike Baldus, Expedia does not suggest

that “need” can overcome the privilege. And Baldus fades in comparison with Judge Hinkle’s

more recent, well-reasoned, published decision, which considers the legislative privilege under

Florida law and federal law, as well as the chilling effect on Florida legislators.4 If this were not

enough, the analysis of legislative privilege in Baldus consists of one paragraph, and cites one

case—a case in which the Court granted a protective order as to documents containing the

“motives, objectives, plans, reports and/or procedures created, formulated or used” to draw new

districts. Baldus, 2011 WL 6122542, at *2 (quoting Comm. for a Fair & Balanced Map v. Ill.

State Bd. of Elections, No. 11-C-5065, 2011 WL 4837508, at *11 (N.D. Ill. Oct. 12, 2011)).5

4 The LOWV Plaintiffs ignore Judge Hinkle’s ruling altogether, and the Romo Plaintiffs

dismiss as non-authoritative dicta his conclusion (even before Expedia) that the Florida Supreme Court would recognize a legislative privilege. But Judge Hinkle’s conclusion was not dicta. He maintained that it would “surely” affect his federal-privilege analysis if state law did not recognize the privilege. (Mot. for Protective Order, Exh. A, at 95.)

5 Apart from their reliance on Baldus, the Romo Plaintiffs even deny that the federal courts have recognized a legislative privilege (Romo Resp. at 4 n.1)—an argument that Judge Hinkle flatly rejected (see Mot. for Protective Order, Exh. A, at 94 (“The assertion that there is not a legislative privilege is just four-square at odds with what the United States Supreme Court said in Arlington Heights.”)), and which is refuted by federal cases. Jeff D. v. Otter, 643 F.3d 278, 289-90 (9th Cir. 2011); Schlitz v. Virginia, 854 F.2d 43, 45-46 (4th Cir. 1988); City of Las Vegas v. Foley, 747 F.2d 1294, 1298 (9th Cir. 1984); Johnson v. Metro. Gov’t of Nashville & Davidson County, No. 3:07-0979, 2009 WL 819491, at *4 (M.D. Tenn. Mar. 26, 2009); Cunningham v. Chapel Hill, ISD, 438 F. Supp. 2d 718, 720-23 (E.D. Tex. 2006); Kay v. City of Rancho Palos Verdes, No. 02-03922, 2003 WL 25294710, at *9-10 (C.D. Cal. Oct. 10, 2003); Bannum, Inc. v. City of Beaumont, Texas, 236 F. Supp. 2d 633, 634 (E.D. Tex. 2002); Knights of Columbus v. Town of Lexington, 138 F. Supp. 2d 136, 139-40 (D. Mass. 2001); M. Sec. & Invs., Inc. v. Miami-Dade County, No. 00-CV-1951, 2001 WL 1685515, at *2 (S.D. Fla. Aug. 14, 2001); Sizeler Hammond Square Ltd. v. City of Hammond, No. 99-1816, 1999 WL 615173, at

A. 190

\255036\8 - # 333977 v2 13

Plaintiffs’ reliance on Baldus and other federal cases is peculiar, given their insistence

that only Florida law is relevant. And Florida law clearly supports the privilege, as Judge Hinkle

and Expedia make clear.

PLAINTIFFS CANNOT ASSERT A GOVERNMENTAL

INTEREST THAT OUTWEIGHS THE LEGISLATIVE PRIVILEGE

The LOWV Plaintiffs observe that the legislative privilege is qualified and can be

“outweighed by a more important governmental interest.” Expedia, 85 So. 3d at 525. The only

cases cited in Expedia as examples of a “more important governmental interest” were Girardeau

v. State, 403 So. 2d 513 (Fla. 1st DCA 1981), and United States v. Nixon, 418 U.S. 683 (1974),

both of which concerned criminal prosecutions. In Girardeau, the Court held that a legislator

may not refuse to answer questions before a grand jury because the privilege “cannot override or

defeat the pressing need of the criminal justice system, of which the grand jury is an integral

part, for the evidence of a crime alleged to have been committed in the state.” 403 So. 2d at 517.

In Nixon, the Supreme Court held that “allowance of the privilege to withhold evidence that is

demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of

law and gravely impair the basic function of the courts.” 418 U.S. at 707.6 Any attempt to claim

the same governmental interest in a civil action brought by private parties is novel and must be

rejected. The interests of these Plaintiffs cannot compete with the “strict separation of powers

*1-2 (E.D. La. Aug. 12, 1999); Miles-Un-Ltd., Inc. v. Town of New Shoreham, R.I., 917 F. Supp. 91, 98-99 (D.N.H. 1996); Orange v. County of Suffolk, 855 F. Supp. 620, 623-25 (E.D.N.Y. 1994); Marylanders for Fair Representation, Inc. v. Schaefer, 144 F.R.D. 292, 296-99 (D. Md. 1992); Searingtown Corp. v. Inc. Vill. of N. Hills, 575 F. Supp. 1295, 1298-99 (E.D.N.Y. 1981).

6 Relying on Nixon, the United States Supreme Court explained the important distinction between civil and criminal cases in regard to the “Court’s sensitivity to interference with the functioning of state legislators.” United States v. Gillock, 445 U.S. 360, 372 (1980). “[T]he cases in this Court which have recognized an immunity from civil suit for state officials have presumed the existence of federal criminal liability as a restraining factor on the conduct of state officials.” Id.

A. 191

\255036\8 - # 333977 v2 14

doctrine” explicitly enshrined in Article II, Section 3 of the Constitution. See Schiavo, 885 So.

2d at 329. “The importance of this provision cannot be overstated.” Expedia, 85 So. 3d at 524.

THE PUBLIC RECORDS ACT DOES NOT

SUPPORT PLAINTIFFS’ DEMANDS FOR DISCOVERY

The Romo Plaintiffs’ discussion of the Public Records Act misses the mark for one

simple reason: the Legislative Defendants assert privilege only with respect to records that are

exempted by statute from public inspection. The Legislative Defendants have not asserted the

legislative privilege with respect to documents that are not exempt under the Public Records Act.

Section 11.0431(2)(e), Florida Statutes, exempts from disclosure a “draft . . . of a

reapportionment plan or redistricting plan” and any “supporting documents associated with such

plan . . . until a bill implementing the plan . . . is filed.” While the Romo Plaintiffs suggest that

“supporting documents” should be limited to documents that advocate for the draft, this reading

is plainly unreasonable. This provision, like the provision that protects drafts of legislative bills,

see § 11.0431(2)(c), Fla. Stat. (2012), is designed to allow legislators the necessary freedom, for

the benefit of the public, to explore new ideas and new policies without inhibition. This freedom

to experiment with new and perhaps imperfect or rudimentary concepts—concepts that might in

time develop into serious proposals worthy of public discussion—is of the utmost importance to

public policy. In redistricting, if the exemption is to serve its purpose, all documents that further

or advance the progress and development of new policies (and not merely advocacy pieces) must

be considered “supporting documents.” Thus, it would make little sense to protect a draft map if

an email communication that contains a verbal description of the draft map is not also protected.

A. 192

\255036\8 - # 333977 v2 15

If legislators are restrained from such communication, new ideas would not be proposed or

would die in their early stages. The exemption and privilege guard against this chilling effect.7

Moreover, even if Plaintiffs’ reading of the exemption were reasonable (and it is not),

this Court must defer to the Legislature’s reasonable interpretation, because the exemption is the

Legislature’s to enforce. See, e.g., Escambia County v. Trans Pac, Inc., 584 So. 2d 603, 605

(Fla. 1st DCA 1991).

* * *

The legislative privilege claims a venerable heritage and serves enduring purposes.

There is no question that hostile depositions of legislators, followed by partisan criticism, will

discourage participation in the redistricting process. Legislators will have every reason to refuse

committee chairmanships and committee appointments, and even refuse to express their opinions

and preferences in redistricting. In addition, talented individuals will not easily be persuaded to

serve as professional staff to redistricting committees. The potential chilling effect is real.

Judge Hinkle explained:

Now, the conclusion that there is a legislative privilege makes sense. Frankly, I think the existence of a privilege is honored as a matter of course. . . .

The reason for the privilege partly derives from the burden it would impose on a legislator, partly it derives from the chilling effect that compelled testimony would impose on a legislator. . . . But the bigger factor in the legislative privilege comes from the same interest that underlies the constitutional principle of separation of powers, the interest that is sometimes referred to as “comity,” the interest that underlies some of the federalism decisions. The interest is in part a recognition of the role of the two institutions—the legislature on the one hand and the courts on the other—in our system of government. And so partly the privilege recognizes the respect due to the office of a legislator. Partly the privilege is an adherence to the limited role of a court in our constitutional system.

7 Plaintiffs’ discussion of legislative history is not illuminating. The fact that the

Legislature once intended to exempt all working papers that related to any legislative business yields no inference about the nature of the targeted exemption for supporting documents in the redistricting context.

A. 193

\255036\8 - # 333977 v2 16

(Mot. for Protective Order, Exh. A, at 96-97.) Plaintiffs produce no civil case in which a

legislator of this State has been compelled over an objection to furnish evidence of the internal

operations of the Legislature. This Court should follow binding precedent and refuse Plaintiffs’

attempts to place the Legislature—and all of its members and staff—on trial in Plaintiffs’ open-

ended search for any nefarious intent. The Court should deny the requested discovery.

A. 194

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I HEREBY CERTIFY that a copy of the foregoing was sent by electronic mail on August

31, 2012, to the persons listed on the attached Service List.

/s/ Leah Marino (by AW with permission)Leah L. Marino (FBN 309140)Deputy General CounselThe Florida SenateSuite 409, The Capitol404 South Monroe StreetTallahassee, FL 32399-1100(850) 487.5229Facsimile (850) 487-5087 [email protected]


/s/ Allen WinsorCharles T. Wells (FBN 086265)

George N. Meros, Jr. (FBN 263321)Jason L. Unger (FBN 0991562)

Allen Winsor (FBN 016295)Charles B. Upton II (FBN 0037241)

GRAYROBINSON, P.A.Post Office Box 11189


Facsimile (850) [email protected] [email protected]

[email protected]@gray-robinson.com

[email protected]

Miguel De Grandy (FBN 332331)800 Douglas Road, Suite 850Coral Gables, Florida 33134

(305) 444-7737Facsimile (305) 443-2616

[email protected]

George T. Levesque (FBN 555541)General Counsel

Florida House of Representatives422 The Capitol

Tallahassee, Florida 32399-1300(850) 410-0451

[email protected]


A. 195

\255036\8 - # 333977 v2 18

SERVICE LIST

Joseph W. HatchettAkerman Senterfitt106 E. College Avenue, Ste. 1200Tallahassee, FL 32301Telephone: (850) 224-9634Fax: (850) [email protected]

Karen C. DyerBoies, Schiller & Flexner LLP121 South Orange Avenue, Ste. 840Orlando, FL 32801Telephone: (407) 425-7118Fax: (407) [email protected]

Jon L. MillsElan NehleberBoies, Schiller & Flexner LLP100 SE 2nd Street, Ste. 2800Miami, FL 33131-2144Telephone: (305) 539-8400Fax: (305) [email protected]@bsfllp.com

John M. DevaneyMark Erik EliasPerkins Coie, LLP700 Thirteenth Street, NW, Ste. 700Washington, DC 20005Telephone: (202) 654-6200Fax: (202) [email protected]@perkinscoie.com

Abha KhannaKevin J. HamiltonMarc EliasPerkins Coie, LLP1201 Third Avenue, Ste. 4800Seattle, WA 98101-3099Telephone: (206) 359-8000Fax: (206) [email protected]@[email protected]

Ronald MeyerLynn HearnMeyer, Brooks, Demma and Blohm, P.A. 131 North Gadsden StreetPost Office Box 1547 (32302)Tallahassee, FL 32301Telephone: (850) 878-5212Fax: (850) [email protected]@meyerbrookslaw.com

Timothy D. OsterhausDeputy Solicitor General Blaine H. WinshipOffice Of Attorney General Capitol, Pl-01Tallahassee, FL 32399-1050Telephone: (850) 414-3300Fax: (850) [email protected]@myfloridalegal.com

Daniel E. NordbyGeneral CounselAshley Davis Assistant General Counsel Florida Department Of StateR.A. Gray Building500 S. Bronough StreetTallahassee, FL 32399Telephone: (850) 245-6536Cell: (850) [email protected]@dos.myflordia.com

A. 196

\255036\8 - # 333977 v2 19

Michael A. CarvinLouis K. FisherJones Day51 Louisiana Avenue N.W.Washington, DC 20001Telephone: (202) 879-7643Fax: [email protected]@jonesday.com

Cynthia S. TunnicliffPeter M. DunbarPennington, Moore, Wilkinson, Bell & Dunbar, P.A.215 South Monroe Street, 2nd FloorTallahassee, FL 32301Telephone: (850) 222-3533Fax: (850) [email protected]@penningtonlaw.com

Bruce V. SpivaThe Spiva Law Firm, PLLC1776 Massachusetts Avenue, N.W., Ste. 601Washington, DC 20036Telephone: (202) 785-0601Fax: (202) [email protected]

Harry O. ThomasChristopher B. LunnyRadey, Thomas, Yon & Clark, PA301 South Bronough Street, Ste. Ste. 200Tallahassee, Florida 32301-1722Telephone: (850) 425-6654Fax: (850) [email protected]@radeylaw.com

Jessica Ring AmunsonPaul SmithMichael B. DeSanctisKristen M. RogersChristopher Deal Jenner & Block LLP 1099 New York Avenue, N.W., Ste. 900Washington, DC 20001-4412Telephone: (202) 639-6023Fax: (202) [email protected]@[email protected]@[email protected]

Charles G. BurrBurr & Smith, LLPGrand Central Place442 West Kennedy Blvd., Ste. 300Tampa, FL 33606Telephone: (813) 253-2010Fax: (813) [email protected]

Stephen HoggeStephen Hogge, Esq., LLC117 South Gadsden StreetTallahassee, FL 32301Telephone: (850) [email protected]

J. Gerald Hebert191 Somervelle Street, #405Alexandria, VA 22304Telephone: (703) [email protected]

A. 197

\255036\8 - # 333977 v2 20

Victor L. GoodeDorcas R. GilmoreNAACP4805 Mt. Hope DriveBaltimore, MD 21215-3297Telephone: (410) 580-5790Fax: (410) [email protected]@naacpnet.org

Allison J. RiggsAnita S. EarlsSouthern Coalition For Social Justice1415 West Highway 54, Ste. 101Durham, NC 27707Telephone: (919) 323-3380Fax: (919) [email protected]@southerncoalition.org

A. 198

TAB 11

A. 199



Plaintiffs, v.

KEN DETZNER, in his official capacity as Florida Secretary of State, and PAMELA JO BONDI, in her official capacity as Attorney General,

Defendants. _______________________________ !

THE LEAGUE OF WOMEN VOTERS OF FLORIDA, THE NATIONAL COUNCIL OF LA RAZA, et al.,

Plaintiffs,

v.


Defendants.

----------------------------~/

Case No. 2012-CA-000412

Case No. 2012-CA-000490

LEGISLATIVE DEFENDANTS' SUPPLEMENTAL MEMORANDUM REGARDING LEGISLATIVE PRIVILEGE

The Legislative Defendants respectfully submit this memorandum pursuant to the

request of this Court at its hearing of the Legislative Defendants' Motion for Protective Order

Based on Legislative Privilege on September 5, 2012.

# 334793 vl

A. 200

I. THE ASSERTION OF LEGISLATIVE PRIVILEGE DOES NOT WARRANT AN ADVERSE

INFERENCE.

First, this Court inquired whether the assertion of legislative privilege warrants an

inference adverse to the Legislature. It does not. After Judge Hinkle held that the legislative

privilege prohibits compelled legislator testimony on the question of "discriminatory purpose"

under Section 5 of the federal Voting Rights Act, see State v. United States,--- F. Supp. 2d ----,

2012 WL 3594322 (N.D. Fla. Aug. 10, 2012), the United States Department of Justice argued

that the Court "should draw an adverse inference against the State because Florida deliberately

chose not to put forward any legislator [deposition] testimony, and actively opposed the United

States' and Intervenors' efforts to compel" such testimony, Florida v. United States,--- F. Supp.

2d ----, 2012 WL 3538298, at *44 n.65 (D.D.C. Aug. 16, 2012). The Court disagreed:

Although there have certainly been section 5 cases in which legislators have testified during the litigation, drawing an adverse inference from the absence of such testimony would run contrary to the instruction of [Village of Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252 (1977)]. There, after stressing the relevance of legislators' contemporaneous statements, the Court said: "In some extraordinary instances the members might be called to the stand at trial to testify concerning the purpose of the official action, although even then such testimony frequently will be barred by privilege." 429 U.S. at 268. "This Court has recognized," it continued, "that judicial inquiries into legislative or executive motivation represent a substantial intrusion into the workings of other branches of government. Placing a decisiorimaker on the stand is therefore usually to be avoided." !d. at n. 18 (internal quotation marks omitted); see also UAW v. NLRB, 459 F.2d 1329, 1338 (D.C.Cir.l972) (holding that where a "judge plays a role in suppression of the evidence, the force of [any adverse] inference is dissipated").

!d. Thus, in a recent case and related context, the Court declined to draw an adverse inference

from the refusal of four Florida legislators to testify about the "purpose" of an enactment.

Whether the assertion of a particular privilege warrants an adverse inference depends

on the policies and purposes served by the privilege. The Fifth Amendment privilege against

self-incrimination was designed to protect individuals from criminal liability, and protects all

individuals who have "reasonable cause to apprehend danger from a direct answer." Ohio v.

# 334793 vl 2

A. 201

Reiner, 532 U.S. 17,21 (2001) (quotingHo.ffinan v. United States, 341 U.S. 479,486 (1951));

see also U.S. Const. Amend. V ("No person ... shall be compelled in any criminal case to be

a witness against himself." (emphasis added)). Thus, adverse inferences from assertions of the

Fifth Amendment are barred in criminal cases, but not in civil cases. See Baxter v. Palmigiano,

425 U.S. 308, 318-19 (1976). In civil suits, "an adverse inference to be drawn from the exercise

of the [Fifth Amendment] privilege does not implicate the policy considerations underlying the

privilege." !d. at 335 (Brennan, J., concurring in part and dissenting in part).

By contrast, courts have held that assertion of the attorney-client privilege does not

warrant an adverse inference. In Nabisco, Inc. v. PF Brands, Inc., 191 F.3d 208, 226 (2d Cir.

1999), abrogated on other grounds, Moseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003),

the Court found "no precedent supporting such an inference based on the invocation of the

attorney-client privilege." The "privilege is designed to encourage persons to seek legal advice,

and lawyers to give candid advice, all without adverse effect." 191 F.3d at 226. If its assertion

were to support an adverse inference, "persons would be discouraged from seeking opinions, or

lawyers would be discouraged from giving honest opinions. Such a penalty for invocation of the

privilege would have seriously harmful consequences." !d.; accord Knorr-Bremse Systeme Fuer

Nutzfahrzeuge GmbHv. Dana Corp., 383 F.3d 1337, 1344-45 (Fed. Cir. 2004) (en bane); Parker

v. Prudential Ins. Co. of Am., 900 F.2d 772, 774 (4th Cir. 1990); In re Terazosin Hydrochloride

Antitrust Litig., 335 F. Supp. 2d 1336, 1365 (S.D. Fla. 2004). As another Court explained:

The policy behind the Fifth Amendment privilege, by its own terms, relates to criminal law. The concern is that allowing a negative inference in a criminal action would allow the government to load up on a defendant or tilt the scales too far against a defendant. These policies have no application in civil law. The attorney-client privilege, to the contrary, applies both to criminal and civil law, it being a policy enacted to allow effective legal representation in any context. Thus, the Supreme Court's pronouncements in Baxter have no applicability to the attorney-client privilege.

# 334793 vi 3

A. 202

THK Am., Inc. v. NSK, Ltd., 917 F. Supp. 563, 567 (N.D. Ill. 1996).

The same principles apply in this case. The legislative privilege exists to protect the

public interest in representative government. Unlike the privilege against self-incrimination, the

legislative privilege does not presuppose that legislators have "reasonable cause to apprehend

danger from a direct answer," Reiner, 532 U.S. at 21, and was not designed to avoid furnishing

"the government with incriminating evidence from the speaker's own mouth," Grunewald v.

United States, 353 U.S. 391, 421-22 (1957). Instead, the privilege promotes comity among the

coequal branches of government and secures the Legislature from intimidation and interference.

An adverse inference would require legislators to choose between hostile inferences

and hostile interrogation, and weaken the strict separation of powers envisioned by the Supreme

Court. See, e.g., Whiley v. Scott, 79 So. 3d 702, 708 (Fla. 2011) ("In applying the separation of

powers doctrine, the Court has done so strictly .... "); Fla. House of Representatives v. Crist,

999 So. 2d 601, 611 (Fla. 2008) ("[W]e have 'traditionally applied a strict separation of powers

doctrine.' (quoting Bush v. Schiavo, 885 So. 2d 321, 329 (Fla.2004))). It is inconceivable that

Article II, Section 3, Florida Constitution, requires lawmakers to purchase their independence at

the price of inferences hostile to their motivations and the validity of their enactments. Cf Doe

v. Glanzer, 232 F.3d 1258, 1265 (9th Cir. 2000) ("[U]nder certain circumstances, within the civil

framework, because of the constitutional nature of the right implicated, an adverse inference

from an assertion of one's privilege not to reveal information is too high a price to pay.").

It is not true, as Plaintiffs assert, that legislators who avoid wrongdoing have no reason

to assert the privilege. It is the nature of politics to subject even the lawful conduct of well

intentioned legislators to cynical and sometimes severe and dishonest criticism. Of this, the

# 334793 vi 4

A. 203

recent redistricting process was a prime example. And when legislators are hailed into court to

answer for their votes, the chilling effect on the legislative process will be real and pronounced.

In light of the policies and purposes served by the legislative privilege, an adverse

inference is inappropriate. Like the Court in Florida, this Court should conclude that "judicial

inquiries into legislative or executive motivation represent a substantial intrusion into the

workings of other branches of government." 2012 WL 3538298, at *44 n.65 (quoting Vill. of

Arlington Heights, 429 U.S. at 268 n.18). It should refuse to erode the separation of powers

through adverse inferences from the assertion of a time-honored and constitutional privilege.

II. LEGISLATIVE PRIVILEGE IS NOT WAIVED IN THE ABSENCE OF AN EXPLICIT AND

UNEQUIVOCAL RENUNCIATION.

Next, the Court requested the views of the parties regarding waiver of the legislative

privilege. Like all privileges, the legislative privilege can be waived. But because the legislative

privilege is an essential preservative ofthe constitutional separation of powers, waiver requires

more than intentional relinquishment: it requires an "explicit and unequivocal renunciation."

In United States v. Helstoski, 442 U.S. 477 (1979), the Supreme Court considered

whether a member of Congress can waive legislative immunity against criminal prosecution for

legislative acts. The Court explained that the purpose ofthe Speech and Debate Clause ofthe

United States Constitution "was to preserve the constitutional structure of separate, coequal, and

independent branches of government," and that therefore the "ordinary rules for determining the

appropriate standard for waiver do not apply." 442 U.S. at 491. The Court articulated a higher

standard: only an "explicit and unequivocal renunciation" can waive the Clause's protections.

Courts have applied the same high standard to the evidentiary aspect of the legislative

privilege. In 2BD Associates Limited Partnership v. County Commissioners for Queen Anne's

County, 896 F. Supp. 528, 535 (D. Md. 1995), the Court held that county commissioners who

# 334793 vl 5

A. 204

had voluntary answered certain deposition questions had not explicitly and unequivocally

renounced the legislative privilege and may therefore assert the privilege with respect to other

questions. 1 Similarly, in Greenberg v. Collier, 482 F. Supp. 200, 203-04 (E.D. Va. 1979), where

the plaintiffs sought to depose a legislator to determine the "true purpose" of certain legislation,

the Court found no "explicit and unequivocal renunciation" of the privilege, even though the

legislator had submitted an affidavit regarding the history of the legislation. Accord Wilkinson v.

O'Neil, No. 81-0lOOA, 1983 WL 30230 (D. Guam App. Div. Apr. 6, 1983) (holding that the

voluntary submission of an affidavit by a senator was not an "explicit and unequivocal" waiver

and that the courts "must safeguard the legislature's freedom to engage in the creative and broad-

ranging legislative activity which lies at the heart of representative democratic government.").

In State v. Township of Lyndhurst, 650 A.2d 840 (N.J. Super. Ct. Ch. Div. 1994), the

Court concluded that legislators' voluntary participation in a criminal investigation, voluntary

1 Judge Hinkle, who had read 2BD Associates Limited Partnership, explained the high standard for waiver as follows:

If we were talking about attorney-client privilege or spousal privilege or priestpenitent privilege, and somebody went down to the comer store or to the nextdoor neighbors, or even worse, on national television and said, "Here's what I talked about with my lawyer, priest, spouse," we would say, "Well, the privilege has been waived with respect to that conversation," because that privilege is part and parcel of the interest in protecting the confidentiality of those communications.

The legislative privilege, it seems to me ... is different. We're not talking about . . . communication that is privileged because the communication was confidential. We're talking about the thoughts of a legislator that are privileged because the person is a legislator, and because making somebody sit down and answer questions in the judicial branch may not adequately respect the legislative branch.

So the legislator stands up on the floor and says, "I think we should raise taxes, lower taxes, build more roads, build fewer roads." If all we cared about was confidential communications, we'd say, "Well, the legislator said it on the floor." But that's not what we care about. So we don't ask that legislator, "Why did you vote to build more roads?"

(Mot. for Protective Order, Exh. A at 76-77, 82.)

# 334793 vl 6

A. 205

submission of affidavits regarding legislative functions, and voluntary waiver of the privilege as

to legislative staff did not waive the legislative privilege against compelled testimony. Because

the privilege "is a function of the separation of powers designed to 'preserve the constitutional

structure of separate, coequal, and independent branches of government,' the ordinary rules for

waiver ... do not apply." 650 A.2d at 844 (quoting Helstoski, 442 U.S. at 491). The legislative

privilege in the New Jersey Constitution's Speech and Debate Clause was not "personal," but

institutional; it implicates "the conduct of other legislators and the legislative process itself' and

"involves the independence and integrity of a coequal branch of government. The necessity for

an 'explicit and unequivocal waiver' reflects this distinction." Id. at 845.Z

Communications with the press and public cannot waive the privilege. In Brown and

Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 421 n.11 (D.C. Cir. 1995), the Court held

that a congressman who stated in a radio interview that his committee had received documents

stolen from a law office did not waive the privilege and retained protection against a subpoena

directed to those documents. InA Helping Hand, LLC v. Baltimore County, Md., 295 F. Supp.

2d 585 (D. Md. 2003), the Court concluded that a councilman did not waive the privilege when

he discussed a bill with the press. The Court found "no authority to suggest that simply speaking

to the press may constitute [an explicit and unequivocal] renunciation of the privilege." 295 F.

Supp. 2d at 591. Further, the Court noted that "meetings with constituents and interest groups

are ordinary legislative business and fall within the scope of the immunity." Id. (citing Bruce v.

Riddle, 631 F.2d 272, 279-80 (4th Cir. 1980). Thus, "public statements about legislative matters

2 Of course, a "legislator who agrees to testify ... may be deposed; by voluntarily testifying, the legislator waives any legislative privilege on the subjects that will be addressed in the testimony." Florida, 2012 WL 3594322, at *1 (Hinkle, J.); accord Alexander v. Holden, 66 F.3d 62, 68 n.4 (4th Cir. 1995); Virgin Islands v. Lee, 775 F.2d 514, 520 n.7 (3d Cir. 1985). And the privilege does not bar members of the public unaffiliated with the Legislature from testifying to conversations with legislators. Cano v. Davis, 193 F. Supp. 2d 1177, 1179 (C.D. Cal. 2002).

# 334793 vl 7

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would appear to be an ordinary function of representative government and therefore a matter

covered by legislators' testimonial privilege." Id.; accord Northfield Dev. Co., Inc., v. City of

Burlington, 523 S.E.2d 743, 750 (N.C. Ct. App. 2000) (no waiver where former council member

"spoke with the newspapers, as there is no explicit showing he intended to waive the privilege").

To infer a waiver from contacts with the press and public would either discourage

those contacts-an unacceptable consequence in a representative government-or render the

legislative privilege altogether useless and nominal. See Johnson v. Metro. Gov 't of Nashville

and Davidson County, No. 3:07-0979,2009 WL 1952780, at *3 (M.D. Tenn. July 2, 2009)

("Indeed, finding a waiver [where legislators comment about the legislative process to the press]

seems potentially unwise, as it could chill contact between legislators and the press."). As courts

have explained in the related context of legislative immunity from civil liability, meetings with

constituents and interested parties are inseparable from the legislative process. See, e.g., Almonte

v. City of Long Beach, 478 F.3d 100, 107 (2d Cir. 2007) ("Meeting with persons outside the

legislature ... to discuss issues that bear on potential legislation ... assist legislators in the

discharge of their legislative duty. These activities are also a routine and legitimate part of the

modern-day legislative process."); Bruce v. Riddle, 631 F .2d 272, 280 (4th Cir.1980) ("Meeting

with 'interest' groups, professional or amateur, regardless of their motivation, is a part and parcel

of the modern legislative procedures through which legislators receive information possibly

bearing on the legislation they are to consider."). Communications with the press and public are

so common and unavoidable that legislators would constantly-and unintentionally-waive the

legislative privilege. On the other hand, legislators who attempted to preserve the privilege by

silence in the face of inquiries from the press and public would dis serve the democratic process.

# 334793 vi 8

A. 207

Communications with consultants retained by the Legislature do not waive the privilege.

In fact, the privilege protects consultants from compelled testimony. In Gravel v. United States,

408 U.S. 606 (1972), a United States Senator convened a subcommittee and read passages from

the Pentagon Papers. Earlier in the same day, the Senator had added to his staff Dr. Leonard S.

Rodberg, a resident fellow at the Institute of Policy Studies, who had prepared the Senator for the

hearing. 408 U.S. at 608. When a grand jury subpoenaed Rodberg, Rodberg asserted privilege.

The Court held that Rodberg was entitled to claim the privilege. The legislator and his aide "are

to be 'treated as one"':

[I]t is literally impossible, in view of the complexities of the modem legislative process, with Congress almost constantly in session and matters of legislative concern constantly proliferating, for Members of Congress to perform their legislative tasks without the help of aides and assistants; that the day-to-day work of such aides is so critical to the Members' performance that they must be treated as the latter's alter egos; and that if they are not so recognized, the central role of the Speech or Debate Clause-to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary-will inevitably be diminished and frustrated.

Id. at 616-17 (citation omitted).

In Arizona Independent Redistricting Commission v. Fields, 75 P.3d 1088 (Ariz. Ct.

App. 2003), the Court applied Gravel to consultants retained by a redistricting commission. It

found "no practical difference ... between placing a consultant temporarily 'on staff,' as Senator

Gravel did with Dr. Rodberg, and retaining the same consultant as an independent contractor."

75 P.3d at 1097-98. Entitlement to the privilege "turned on the function fulfilled"-not the "job

title"-because the "manner of employment does not affect the consultant's function within the

legislative process." Id.; accord Favors v. Cuomo, ---F. Supp. 2d ----, 2012 WL 3307449, at

# 334793 vl 9

A. 208

*20 (E.D.N.Y. Aug. 10, 2012) (holding that communications with a consultant retained to assist

in redistricting were privileged); Holmes v. Farmer, 475 A.2d 976, 982-85 (R.I. 1984) (same).3

Consultants are within the legislative privilege because legislatures (including the

Florida Legislature) frequently collaborate with outside consultants in the development of

complex and technical policies, from health care to redistricting. Fields, 75 P.3d at 1098. Thus,

a "cramped interpretation of the legislative privilege" that excludes retained consultants "would

constrain legislators from freely engaging in legislative acts without the threat of executive or

judicial oversight; the core concern of legislative privilege." Id. As one court explained:

Legislators must be permitted to have discussions and obtain recommendations from experts retained by them to assist in their legislative functions, without vitiating or waiving legislative privilege. To hold otherwise under the particular circumstances of this case would impair the legislative function by requiring them to exclude their own retained experts from the critical legislative conversations about the precise issues the experts were hired to address.

ACORN v. City of Nassau, No. 05-cv-2301, 2009 WL 2923435, at *6 (E.D.N.Y. Sep. 10, 2009).

The small number of cases to the contrary are conclusory and unsupported, and they fail to

appreciate the inevitable realities of modem lawmaking. See Baldus v. Brennan, No. 11-CV-

562, 2011 WL 6122542, at *2 (E.D. Wis. Dec. 8, 2011); Comm.for a Fair & Balanced Map v.

Ill. State Bd. of Elections, No. 11-C-5065, 2011 WL 4837508, at *10 (N.D. Ill. Oct. 12, 2011).

Well-reasoned precedent holds, therefore, that (i) a waiver of the privilege must be

"explicit and unequivocal"; (ii) that communications with the press and public do not waive the

privilege; and (iii) retained consultants, like legislative staff, are protected by the privilege.4

3 In Fields, the Court also held that the designation of an outside consultant who participated in the legislative process as a testifying expert in litigation is a waiver of the privilege as to the consultant, who may then be deposed and subjected to other discovery in accordance with judicial rules of procedure. 75 P.3d at 1102-03.

4 Plaintiffs' attempt to question legislative staff about instructions received from legislators conflicts with Section 11.26(1 ), Florida Statutes, which provides that no "employee of

# 334793 vl 10

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Ill. PLAINTIFFS CANNOT SHOW A MORE IMPORTANT GOVERNMENTAL INTEREST.

This Court noted that the legislative privilege is a qualified privilege, and asked the

parties to consider what interests might outweigh the legislative privilege as a "more important

governmental interest." See Fla. House of Representatives v. Expedia, Inc., 85 So. 3d 517 (Fla.

1st DCA 2012). Expedia mentioned only criminal prosecutions, and the cases on which it relied

recognize a clear distinction between civil litigation and criminal prosecution.

The phrase "more important governmental interest" does not appear in any legislative-

privilege case besides Expedia. To complicate the task, cases in other states differ dramatically

in the limitations placed on the privilege. At one end of the spectrum, the privilege is absolute.

See, e.g., Copsey v. Baer, 593 So. 2d 685, 688 (La. Ct. App. 1991). At the opposite extreme, the

privilege yields to an imprecise and endlessly manipulable "balancing test." See, e.g., Favors v.

Cuomo,--- F. Supp. 2d ----,2012 WL 3307449, at *17 (E.D.N.Y. Aug. 10, 2012).

In this respect, decisions from other states are unhelpful. This Court must look to

Expedia and apply it in light of the "strict separation of powers" embodied in Article II, Section

3 of the Florida Constitution. See Crist, 999 So. 2d at 611 (quoting Schiavo, 885 So. 2d at 329).

Expedia specifically discussed two cases in connection with the "more important

governmental interest" standard: United States v. Nixon, 418 U.S. 683 (1974), and Girardeau v.

State, 403 So. 2d 513 (Fla. 1st DCA 1981 ). In Nixon, a grand jury subpoenaed various materials

in the possession of the President of the United States, who asserted absolute executive privilege.

The Court rejected the claim, concluding that the fundamental importance of criminal justice and

the rule of law superseded the privilege: "The impediment that an absolute, unqualified privilege

the Legislature" may "reveal to any person outside the area of the employee's direct responsibility the contents or nature of any request for services made by any member of the Legislature, except with the consent of the member making such request."

# 334793 vl 11

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would place in the way of the primary constitutional duty of the Judicial Branch to do justice in

criminal prosecutions would plainly conflict with the function ofthe courts .... " 418 U.S. at

707; see id. at 708-09 ("But this presumptive privilege must be considered in light of our historic

commitment to the rule of law. This is nowhere more profoundly manifest than in our view that

'the twofold aim (of criminal justice) is that guilt shall not escape or innocence suffer.'" (quoting

Berger v. United States, 295 U.S. 78, 88 (1935))). The Court explained that the production of all

evidence at a criminal trial is a right of "constitutional dimensions":

[T]he allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial could cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated.

Id. at 712-13. The Court declined to address the application ofthe privilege to civil litigation, id.

at 712 n.19, but held that the executive privilege "must yield to the demonstrated, specific need

for evidence in a pending criminal trial," id. at 713.

In Girardeau, a member of the Florida Legislature who, in the course of legislative

activities, had received possible evidence of a crime, refused to testify before a grand jury. The

Court did not decide whether the privilege existed because, at any rate, the privilege "cannot

override or defeat the pressing need of the criminal justice system ... for evidence of a crime

alleged to have been committed in this state." 403 So. 2d at 517. Quoting at length from Nixon,

the Court explained that "[i]fthere is one principle that emerges clearly from the now legendary

'Watergate' episode, it is that even the power of the [President] cannot override the power of the

judicial branch to compel a full disclosure of the facts in a criminal investigation." !d.

# 334793 vi 12

A. 211

After Nixon and before Girardeau, the Supreme Court decided United States v. Gillock,

445 U.S. 360 (1980). In Gillock, a state legislator indicted under federal criminal laws asserted

that the legislative privilege barred the introduction of evidence relating to legislative activities.

The Court rejected the claim, explaining that, "in protecting the independence of state legislators,

[Tenney v. Brandhove, 341 U.S. 367 (1951)] and subsequent cases have drawn the line at civil

actions." 445 U.S. at 373 (emphasis added). Thus, the Court distinguished civil and criminal

cases and held that, in criminal matters, "an evidentiary privilege for state legislators would

impair the legitimate interest of the Federal Government in enforcing its criminal statutes." !d.

Expedia stressed the criminal aspect ofthese and similar cases. See 85 So. 3d at 521

(noting, in its discussion of Girardeau, that the privilege "could not be asserted in any event to

withhold information from a grand jury investigating a crime"); id. at 522 (noting, as to Gravel v.

United States, 408 U.S. 606 (1972), that "the privilege cannot be used, in any event, as a shield

against the commission of a crime"); id. at 523 (noting, as to Nixon, that "recognizing the

existence of executive privilege but holding that it is not absolute, in that it cannot be asserted to

shield evidence of a crime"); id. at 525 (noting, in its discussion of Girardeau, that "we adhere to

our decision in Girardeau that the privilege could not be used to withhold evidence of a crime").

Notably, Judge Hinkle did not find that claims under Section 5 of the Voting Rights

Act present a "more important governmental interest." In State v. United States,--- F. Supp. 2d

----, 2012 WL 3594322 (N.D. Fla. Aug. 10, 2012), Judge Hinkle noted the Expedia decision, but

nevertheless concluded that Voting Rights Act litigation is not uniquely important:

But even if the state legislative privilege is qualified in civil as well as criminal cases, there is no reason not to recognize the privilege here. Voting Rights Act cases are important, but so are equal-protection challenges to many other state laws, and there is nothing unique about the issues of legislative purpose and privilege in Voting Rights Act cases.

# 334793 vi 13

A. 212

2012 WL 3594322, at *3.5 Judge Hinkle found that claims under the Voting Rights Act do not

present an overriding governmental interest, even though the Voting Rights Act was adopted

pursuant to Congress' authority to enforce the Civil War Amendments to the United States

Constitution-amendments "designed to remedy pervasive racial discrimination," Nipper v.

Smith, 39 F.3d 1494, 1515-15 (11th Cir. 1994) (en bane). If any civil case presents a "more

important governmental interest," it would have been an action under the Voting Rights Act.

Expedia contains no suggestion that the legislative privilege must yield in some civil

cases, but not others. 6 Cases implicating the freedom of speech and religion, due process, and

equal protection-cherished rights secured by Florida's Declaration of Rights-are all important,

and each might entail an inquiry into legislative purpose or motive. If the Court were to set aside

the privilege in this case, the privilege might routinely be discarded in litigation to enforce any of

these constitutional provisions. It would further invite any person (not limited to these Plaintiffs)

to challenge redistricting plans and depose the legislators of their choice. Only last week, the

LOWV Plaintiffs brought a challenge to the new State Senate districts. See League of Women

Voters of Fla. v. Detzner, No. 2012-CA-2842 (Fla. 2d Cir. Ct.). Ifthe privilege is disregarded

here, interference with the independence of the Legislature would become commonplace.

Plaintiffs' reliance on cases in other jurisdictions is flawed. Plaintiffs cite cases with

relaxed, multi-factored balancing tests, rather than the strict standard announced in Expedia and

5 While Judge Hinkle applied the federal law of privilege, Florida law was not irrelevant to his decision. Judge Hinkle recognized that "surely, it would affect the analysis if the state didn't recognize the privilege. The grounds for recognizing a federal privilege of a Florida State Legislator would be substantially weaker if Florida itself did not recognize such a privilege." (Mot. for Protective Order, Exh. A at 95.)

6 Any attempt to distinguish one civil case from another would be painfully subjective. As Judge Hinkle explained: "And, candidly, if I were trying to rank cases by importance, I'm not sure how I'd do that. The man and his family who were in court before we started this morning for a sentencing probably think that case was important, and I think it was." (See Mot. for Protective Order, Exh. A at 100.)

# 334793 vl 14

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demanded by the Florida Constitution's separation-of-powers provision. In addition, Plaintiffs

confuse the "deliberative-process privilege" with the legislative privilege, despite their obvious

differences. Unlike the legislative privilege, the deliberative-process privilege was originally

designed to protect the executive branch, has ordinarily been applied to agency documents, and

originated in public policy considerations, not in the constitutional separation of powers. See

Kay v. City of Rancho Palos Verdes, No. CV-02-03922, 2003 WL 25294710, at *15-16 (C.D.

Cal. Oct. 10, 2003); accord Corporacion Insular de Seguros v. Garcia, 709 F. Supp. 288, 295

(D.P .R. 1989), ("[T]he main justification for the deliberative process privilege has little to do

with the separation of powers, as opposed to the legislative privilege, and much to do with the

public policy of protecting confidential exchanges of opinions and advice within the executive

branch."). Thus, Plaintiffs emphasize that the deliberative-process privilege affords protection

only where government decision-making is "collateral" to the litigation, but legislative-privilege

cases do not recognize the same limitation. See, e.g., City of Las Vegas v. Foley, 747 F.2d 1294,

1298 (9th Cir. 1984) ("Even where a plaintiff must prove invidious purpose or intent, ... the

[Supreme] Court has indicated that only in extraordinary circumstances might members of the

legislature be called to testify, and even in these circumstances the testimony may be barred by

privilege."); Orange v. County of Suffolk, 855 F. Supp. 620,623 (E.D.N.Y. 1994) (same).

Plaintiffs' heavy reliance on deliberative-process privilege cases is hardly surprising, since "the

common-law deliberative process privilege [is] weaker than, and thus more readily outweighed

than, the constitutionally-rooted legislative process privilege." Kay, 2003 WL 25294710, at *18.

# 334793 vl 15

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IV. PLAINTIFFS' CONTENTIONS UNDER THE PUBLIC RECORDS ACT ARE MISGUIDED.

Plaintiffs argue that, as to documents, the Public Records Act defeats the legislative

privilege. The Legislative Defendants, however, have asserted the privilege only with respect to

documents expressly and statutorily exempted from disclosure under the Public Records Act.

The Legislative Defendants have not asserted the privilege with respect to all records that relate

to redistricting. Quite to the contrary, the Legislative Defendants have produced more than

25,000 documents, many of which include scores or even hundreds of pages. (Plaintiffs, on the

other hand, have produced a single PDF document containing 38 pages of scanned press releases

and bulk emails.) The Legislative Defendants have also produced privilege logs that identify all

responsive documents as to which they have asserted the legislative privilege. The number of

those documents, in comparison with the number already produced, is miniscule.

Section 11.0431(2)(e), Florida Statutes, exempts draft redistricting plans and, until a bill

embodying that draft is filed, supporting documents. The Legislative Defendants have produced

member communications that relate to plans filed as bills (unless protected otherwise than by

legislative privilege) and have therefore produced records of communications which, but for the

Public Records Act, would be privileged. Ultimately, the clearest articulation oflegislative

intent is the redistricting plan adopted by the Legislature-not drafts which the Legislature either

rejected or never considered. To the extent the Public Records Act allows access to records that

otherwise would be protected by legislative privilege, Plaintiffs have been afforded such access.

V. CONCLUSION.

The Court should adhere to Expedia and the strict separation of powers reflected in the

Florida Constitution. The legislative privilege has not been waived, and Plaintiffs cannot show a

"governmental interest" more important than the separation of powers, which the Supreme Court

# 334793 vi 16

A. 215

described as the "cornerstone of American democracy." Schiavo, 885 So. 2d at 329. Because

the legislative privilege serves purposes fundamental to balanced government, its assertion does

not admit an adverse inference. Accordingly, the Court should grant the Legislative Defendants'

Motion for Protective Order Based on Legislative Privilege and deny the requested discovery.

Respectfully submitted this tenth day of September 2012.

# 334793 vl 17

A. 216


I HEREBY CERTIFY that a copy of the foregoing was sent by electronic mail on

September 10, 2012, to the persons listed on the attached Service List.

Is/ Leah Marino Leah L. Marino (FBN 309140) Deputy General Counsel The Florida Senate Suite 409, The Capitol 404 South Momoe Street Tallahassee, FL 32399-1100 (850) 487.5229 Facsimile (850) 487-5087 marino .leah@flsenate. gov


# 334793 vl 18

Is/ George N Meros, Jr. Charles T. Wells (FBN 086265)

George N. Meros, Jr. (FBN 263321) Jason L. Unger (FBN 0991562)

Allen Winsor (FBN 016295) Charles B. Upton II (FBN 0037241)

GRAYROBINSON, P.A. Post Office Box 11189


Facsimile (850) 577-3311 [email protected] [email protected]

J [email protected] [email protected]

[email protected]

Miguel De Grandy (FBN 332331) 800 Douglas Road, Suite 850 Coral Gables, Florida 33134

(305) 444-7737 Facsimile (305) 443-2616

mad@degrandylaw .com

George T. Levesque (FBN 555541) General Counsel

Florida House of Representatives 422 The Capitol

Tallahassee, Florida 32399-1300 (850) 410-0451

[email protected]


A. 217

Joseph W. Hatchett Akerman Senterfitt 106 E. College Avenue, Ste. 1200 Tallahassee, FL 32301 Telephone: (850) 224-9634 Fax: (850) 222-0103 joseph.hatchett@akerman. com

Jon L. Mills Elan N ehleber Boies, Schiller & Flexner LLP 100 SE 2nd Street, Ste. 2800 Miami, FL 33131-2144 Telephone: (305) 539-8400 Fax: (305) 539-1307 [email protected] [email protected]

AbhaKhanna Kevin J. Hamilton Marc Elias Perkins Coie, LLP 1201 Third Avenue, Ste. 4800 Seattle, WA 98101-3099 Telephone: (206) 359-8000 Fax: (206) 359-9000 akhanna@perkinscoie. com khamilton@perkinscoie. com melias@perkinscoie. com

Timothy D. Osterhaus Solicitor General Blaine H. Winship Office Of Attorney General Capitol, Pl-01 Tallahassee, FL 32399-1050 Telephone: (850) 414-3300 Fax: (850) 401-1630 [email protected] [email protected]

# 334793 vi

SERVICE LIST

Karen C. Dyer Boies, Schiller & Flexner LLP 121 South Orange Avenue, Ste. 840 Orlando, FL 32801 Telephone: (407) 425-7118 Fax: (407) 425-7047 kdyer@bsfllp. com

John M. Devaney Mark Erik Elias Perkins Coie, LLP 700 Thirteenth Street, NW, Ste. 700 Washington, DC 20005 Telephone: (202) 654-6200 Fax: (202) 654-6211 j devaney@perkinscoie. com [email protected]

Ronald Meyer Lynn Hearn Meyer, Brooks, Demma and Blohm, P .A. 131 North Gadsden Street Post Office Box 1547 (32302) Tallahassee, FL 32301 Telephone: (850) 878-5212 Fax: (850) 656-6750 [email protected] lheam@meyerbrookslaw .com

Daniel E. Nordby General Counsel Ashley Davis Assistant General Counsel Florida Department Of State R.A. Gray Building 500 S. Bronaugh Street Tallahassee, FL 32399 Telephone: (850) 245-6536 Cell: (850) 294-8018 [email protected] [email protected]

19

A. 218

Michael A. Carvin Louis K. Fisher Jones Day 51 Louisiana Avenue N.W. Washington, DC 20001 Telephone: (202) 879-7643 Fax: 202-626-1700 [email protected] [email protected]

Bruce V. Spiva The Spiva Law Firm, PLLC 1776 Massachusetts Avenue, N.W., Ste. 601 Washington, DC 20036 Telephone: (202) 785-0601 Fax: (202) 785-0697 [email protected]

Jessica Ring Amunson Paul Smith Michael B. DeSanctis Kristen M. Rogers Christopher Deal Jenner & Block LLP 1099 New York Avenue, N.W., Ste. 900 Washington, DC 20001-4412 Telephone: (202) 639-6023 Fax: (202) 661-4993 [email protected] [email protected] [email protected] krogers@j enner.com [email protected]

Stephen Hogge Stephen Hogge, Esq., LLC 117 South Gadsden Street Tallahassee, FL 32301 Telephone: (850) 459-3029 [email protected]

# 334793 vl

Cynthia S. Tunnicliff Peter M. Dunbar Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, 2nd Floor Tallahassee, FL 32301 Telephone: (850) 222-3533 Fax: (850) 222-2126 cynthia@penningtonlaw .com [email protected]

Harry 0. Thomas Christopher B. Lunny Radey, Thomas, Yon & Clark, P A 301 South Bronaugh Street, Ste. Ste. 200 Tallahassee, Florida 32301-1722 Telephone: (850) 425-6654 Fax: (850) 425-6694 hthomas@radeylaw. com [email protected]


J. Gerald Hebert 191 Somervelle Street, #405 Alexandria, VA 22304 Telephone: (703) 628-4673 [email protected]

20

A. 219

Victor L. Goode Dorcas R. Gilmore NAACP 4805 Mt. Hope Drive Baltimore, MD 21215-3297 Telephone: ( 41 0) 580-5790 Fax: (410) 358-9350 vgoode@naacpnet. org [email protected]

# 334793 vi


21

TAB 12

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Plaintiffs,

vs.


Defendants.

------------------------~/


Plaintiffs,

vs.


Defendants.

--------------------------~/

CASE NO. 2012-CA-000412

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ROMO PLAINTIFFS' SUPPLEMENTAL BRIEF RELATING TO LEGISLATIVE DEFENDANTS' MOTION FOR PROTECTIVE ORDER BASED ON LEGISLATIVE

PRIVILEGE

I. Introduction

Pursuant to the Court's directive during the hearing on September 5, 2012,

relating to the Legislative Defendants' motion for a protective order ("Defendants'

Motion"), the Romo Plaintiffs submit this supplemental brief that provides case law and

additional discussion of four issues that are triggered by the Defendants' Motion:(!)

{25114927;1}

A. 221

whether courts have rejected claims of legislative privilege in favor of the public interest

in transparency in legislative decision-making; (2) whether the legislative privilege can

be waived and the circumstances that can result in a waiver; (3) whether Defendants

should be barred from presenting testimony from legislators about the congressional map

if the Comi accepts their claim of legislative privilege; and (4) whether Plaintiffs will be

entitled to an adverse evidentiary inference against Defendants if Plaintiffs are prevented

from taking depositions of legislators and discovering other relevant evidence about the

Defendants' redistricting process and decision-making.

In the discussion that follows, which supplements their prior briefing and oral

argument on these issues, the Romo Plaintiffs provide multiple examples of courts

rejecting legislative privilege and other privileges based upon the compelling public

interest in transparency in legislative decision-making. Courts have reached this

conclusion in several redistricting cases, finding that the importance of understanding the

legislature's intent in enacting a voting map outweighs the legislature's desire to protect

its decision-making from public scrutiny. Significantly, this case presents even more

compelling reason for rejecting legislative privilege because of Amendment 6's strict

prohibition against any intent by the Florida Legislature to favor a political party or an

incumbent in drawing a map - a standard that is more stringent than any at issue in the

cases discussed below.

As also shown below, a decision to shield legislative decision-making from public

scrutiny does not come without a litigation cost to a legislature that asserts the privilege.

Courts have routinely barred legislatures from asserting legislative privilege, precluding

discovery of relevant evidence, and then trying to present testimony from legislators or

{25114927;1} 2

A. 222

legislative employees at trial. That result should follow here if the Court accepts the

Defendants' claim of privilege, as Plaintiffs would be severely prejudiced if legislators

were pe1mitted to testify without proper advance disclosures in discovery.

Finally, decisions from multiple courts make it clear that the legislative privilege

can be waived. While the Romo Plaintiffs urge the Comito reject Defendants' claim of

legislative privilege in its entirety, if the Court is inclined to allow the claim, it should

conduct an in camera review of the many documents Defendants are withholding from

discovery to determine if there has been a waiver.

II. Discussion

A. Courts Have Regularly Rejected Legislative Privilege In Favor Of The More Compelling Interest In Public Disclosure Of The Legislative Decision-Making Process In Redistricting Cases

Courts have consistently held that legislative privilege, to the extent it may exist,

is qualified and subject to a balancing test that requires weighing the importance of the

information a legislature seeks to withhold. In Baldus v. Brennan, Nos. 11-cv-562, 11-

cv-1011, 2011 WL 6122542 (E.D. Wis. Dec. 8, 2011), for example, the Wisconsin

Legislature asserted legislative privilege in response to plaintiffs' requests for documents

and testimony from a redistricting consultant to the Wisconsin legislature and from a

legislative aide. Applying a balancing test, the court found that any potential future

chilling effect on the legislature was minimal and was outweighed by the compelling,

legitimate need for plaintiffs to discover infmmation about the redistricting process. !d.

at *2 ("Allowing the plaintiffs access to these items may have some minimal future

'chilling effect' on the Legislature, but that fact is outweighed by the highly relevant and

potentially unique nature of the evidence .... given the serious nature of the issues in this

case and the government's role in crafting the challenged redistricting plans, the Court

{25114927;1}

3

A. 223

finds that legislative privilege simply does not apply to the documents and other items the

plaintiffs seek in the subpoenas they have issued.") (citations omitted). As an additional

ground for its ruling, the court found that even if legislative privilege applied, the

legislature "waived its legislative privilege to the extent that it relied on ... outside

experts for consulting services." !d.

In Baldus, after the Wisconsin Legislature failed to comply with the ruling that

legislative privilege did not apply, the Court sanctioned counsel for disregarding the

ruling. The Court again explained the importance of the Legislature disclosing

information about its redistricting decision-making, stating emphatically that "the

Legislature has taken action that affects the voting rights of Wisconsin's citizens and now

attempts to cloak the record of that action behind a charade masking as privilege."

Baldus v. Brennan, 843 F. Supp. 2d 955 (E.D. Wis. 2012). The couti continued, stating

that "the Legislature and the actions of its counsel give every appearance of flailing

wildly in a desperate attempt to hide from both the Court and the public the true nature of

exactly what transpired in the redistricting process." Jd

In Favors v. Cuomo, No. 11-cv-5632 (DLI) (RR) (GEL), 2012 WL 3307449

(E.D.N.Y. Aug. 10, 2012), legislator defendants similarly sought a protective order

batTing plaintiffs from obtaining documents regarding legislators' motivations. The

three-judge federal district comi panel observed that the "clear weight of authority" holds

that "the legislative privilege is qualified and subject to a judicial balancing test." Jd. at

*21; see also id. at *25 ("This Court, like nearly every court to address the issue in the

redistricting context, concludes that state legislators eJ\ioy only a qualified evidentiary

privilege."). The Court also found that the relevant factors "generally support[ed]

{25114927; I) 4

A. 224

overcoming the privilege" and is in the process now of "perform[ing] an analysis of the

allegedly privileged documents, in camera, prior to ruling as to the specific documents

(or categories of documents) over which the privilege has been invoked." !d. at *28.

Another leading decision on whether privilege may protect legislative decision-

making in the context of redistricting is United States v. Irvin, 127 F.R.D. 169 (C.D. Cal.

1989), which involved claims under the Voting Rights Act. There, the federal

government sought documents and testimony regarding the intent of county redistricting

officials. 1 The officials objected, invoking the deliberative process privilege. After

balancing multiple factors, the court further held that the privilege had to yield and

ordered disclosure of both documents and testimony. !d. at 174. Responding to concerns

about the "chilling effects" of disclosing legislative deliberations, the court stated that it

was "not convinced that the occasional instance in which disclosure may be ordered in a

civil context will add measurably to the inhibitions already attending legislative

deliberations." !d. See also Committee for a Fair and Balanced Map v. Ill. State Bd. of

Elections, No. 11-C-5065, 2011 WL 4837508 at 10 (N.D. Ill. Oct. 12, 2011) (finding that

while legislative privilege provides some protection, "It does not protect facts or

information available to lawmakers at the time of their decision); Rodriguez v. Pataki,

280 F. Supp. 2d 89, 100 (S.D.N.Y. 2003) ("A legislator may be required to disgorge

documents or provide other inf01mation in appropriate circumstances," and "in deciding

whether and to what extent the [legislative] privilege should be honored, the Court must

1 Defendants may argue that cases involving decision-making bodies other than state legislatures are inapposite. See Defs.' Reply in Support of Mot. for Protective Order II. There is no basis for such a distinction. In fact, Arlington Heights v. Metro. Housing Corp., 429 U.S. 252 (1977), the case that Defendants rely heavily upon to define the privilege that they claim, involved the decisions of a village mayor, zoning board and board of trustees, not a state legislature at all. !d. at 255.

{25114927;1) 5

A. 225

balance the extent to which production of the information sought would chill the New

York State Legislature's deliberations concerning such important matters as redistricting

against any other factors favoring disclosure"; the court eventually required production of

memorandum to legislator relating to racial issues and redistricting).2

B. Any Privilege the Legislative Defendants Could Have Claimed Has Been Waived

Even if the Defendants' claimed need for secrecy could override Florida voters'

constitutional interest in a legal redistricting plan, any privilege Defendants might have

been able to claim has been waived for several reasons. In evaluating these grounds for

waiver, it is imp011ant to remember that a "waiver of [legislative] privilege need not be

'explicit and unequivocal,' and may occur either in the course of the litigation ... or

when purportedly privileged communications are shared with outsiders." Favors v.

2 In addition to the cases in which comis have found that the privilege yields, a number of comis have held that, where legislative intent is itself the central issue in the case, the legislative and deliberative process privileges simply does not apply, as it would undermine the law sought to be enforced. See, e.g., In re Subpoena Duces Tecum Served on Off of Comptroller of Currency, 145 F.3d 1422, 1424 (D.C. Cir. 1998) (deliberative process privilege inapplicable when cause of action "turns on the govemment's intent"); East End Ventures, LLC v. Inc. Village of Sag Harbor, 2011 WL 6337708, at *3-4 (E.D.N.Y. Dec. 19, 2011) ("The [legislative] privilege, however, may be inapplicable where the legislative deliberations are among the central issues in the case .... Because the subject matter on which Plaintiffs seek testimony is one of the central issues in this case, the legislative privilege is inapplicable."); Acorn v. County of Nassau, No. CV 05-2301,2008 WL 708551, at *4 (E.D.N.Y. 2008) ("When the decision making process is itself at issue, pmiicularly in civil rights actions, the deliberative process privilege and other privileges designed to shield that process from public scrutiny may not be raised as a bar against disclosure of relevant information; it must yield to the oveniding public interest in challenging discrimination.") (internal quotation marks and citations omitted); Children First Found., Inc. v. Martinez, No. 04-0927,2007 WL 4344915, at *7 (N .D .N.Y. Dec.IO, 2007) (explaining that the "historical and overwhelming consensus and body of law within the Second Circuit is that when the decision-making process itself is the subject of the litigation, the deliberative process privilege cannot be a bar to discovery"); Jones v. City of College Park, 237 F.R.D. 517, 521 (N.D. Ga. 2006) (concluding that deposition testimony of officeholders is appropriate where "government intent is at the heart of the issue in this case").

{251!4927;1} 6

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Cuomo, 2012 WL 3307449, at *19 (E.D.N.Y. Aug. 10, 2012) (quoting Almonte v. City of

Long Beach, 2005 WL 1796118, at *3-4 (E.D.N.Y. July 27, 2005)).

First, where, as here, legislators intervene in a case they did not have to be party

to, and then seek the benefits but not the burdens of litigation, they lose any claim of

privilege. For example, in Powell v. Ridge, 247 F.3d 520 (3d Cir. 2001), the Third

Circuit held that legislators who intervened in the case could not avoid discovery while

remaining parties and seeking discovery themselves:

[T]he Legislative Leaders build from scratch a privilege which would allow them to continue to actively participate in this litigation by submitting briefs, motions, and discovery requests of their own, yet allow them to refuse to comply with and, most likely, appeal from every adverse order. As we noted at the outset, ... the privilege they propose would enable them to seek discovery, but not respond to it; take depositions, but not be deposed; and testify at trial, but not be cross-examined. In short, they assert a privilege that does not exist.

Id. at 525. What the court forbade in Powell is exactly what Defendants seek here.

While they claim to be exempt from depositions or producing documents, they have

chosen to intervene in the case and have demanded extensive discovery from plaintiffs.

Such a privilege "does not exist." Jd.

Second, "[a]s with any privilege, the legislative privilege can be waived when the

parties holding the privilege share their communications with an outsider." Comm. for a

Fair & Balanced Map v. Illinois State Bd. of Elections, 2011 WL 4837508, at* 10 (N.D.

Ill. Oct. 12, 2011) (citing ACORN v. County of Nassau, 2007 WL 281581, at *4

(E.D.N.Y. Sept. 25, 2007) (same)); see also Almonte, 2005 WL 1796118, at *3-4 (same).

Thus, "the legislative privilege does not apply" to any matter legislators discussed with

those outside the Legislature, including "consultants," "experis," "members of

Congress," "lobbyists," or political operatives. Comm. for a Fair & Balanced Map, 2011

{25114927;1} 7

A. 227

WL 4837508, at *10 (citing ACORN, 2007 WL 281581, at *4; Rodriguez v. Pataki, 280

F. Supp. 2d 89, 101 (S.D.N.Y. 2003)). '"While legislators are ce1iainly free to seek

information from outside sources, they may not assume that every such contact is forever

shielded from view .... [A] contrary ruling would allow a legislator to cloak any

communication with legislative privilege by simply retaining an outsider in some

capacity." Id (quoting ACORN, 2007 WL 2815810, at *6); see also Baldus v. Brennan,

201 I WL 6122542, at *2 (E.D. Wis. Dec. 8, 2011) ("The Legislature has waived its

legislative privilege to the extent that it relied on such outside experts for consulting

services."). In shoJi, the Legislative Defendants cannot asse1i the privilege as to any

subject matter they discussed with those outside the Legislature.

It is clear from Defendants' privilege logs, however, that they are withholding a

wide range of documents and information they shared with outsiders. For example,

Defendants seek to withhold based on legislative privilege communications they had with

Michael Carvin, a lawyer in Washington, DC. Senate Privilege Log pages I 0, 35. They

also seek to withhold communications with Bob West, a "Database and Political

Consultant" based in Tallahassee. Senate Privilege Log pages 17, 22. They even claim

the privilege as to emails to and from Ryan Terrell, apparently a college student who

submitted a draft plan. Senate Privilege Log page 141. Such "conversation[s] between

legislators and ... outsiders" are ones "for which no one could seriously claim privilege."

Rodriguez, 280 F. Supp. 2d at 101. Yet Defendants do exactly that. As to such

communications, and their subject matter, Defendants have clearly waived any claim of

legislative privilege. See, e.g., Comm.for a Fair & Balanced Map, 201 i WL 4837508, at

*I 0 (finding the privilege waived as to any matter legislators discussed with

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"consultants," "experts," "members of Congress," "lobbyists," or political operatives)

(citing ACORN, 2007 WL 281581, at *4; Rodriguez, 280 F. Supp. 2d at 101).

Finally, as Defendants' conceded at oral argument last week, the privilege·- to the

extent it exists- is individual to each legislator; it is not a collective privilege of the

legislative body as a whole. See Alamonte, 2005 WL 1796118, at *3 n.2. As such, each

individual legislators may either voluntarily choose to submit to depositions or authorize

their papers to be disclosed through discovery or, through their actions, affect a waiver of

the privilege. Put simply, "it is not up to the [Legislature] to assert or waive the

privilege; the [legislators] must do so for themselves." ld. Thus, even if the Comi finds

that the individual legislators may be entitled to claim a privilege under the circumstances

of this case, Plaintiffs should be petmitted "to notice for deposition individual ...

legislators and to require each of those persons to asseti the privilege on his own behalf."

I d. (internal quotations and citation omitted). As with the assertion of other privileges,

Plaintiffs should similarly be petmitted to engage in limited questioning of even those

legislators that assert a privilege, in order to determine whether the privilege has been

properly asserted or ifthere is an argument that the legislator has waived the privilege.

C. If The Legislature Is Permitted To Avoid Discovery Based On Legislative Privilege, Defendants Should Not Be Allowed To Present Evidence At Trial In Support Of Legislative Intent

If the Court does uphold the Legislative Defendants' claim of privilege,

innumerable cases make clear that no legislator may then be allowed to testify or submit

evidence in support of the constitutionality of the enacted plan:

[ C]ourts have been loath to allow a legislator to invoke the privilege at the discovery stage, only to selectively waive it thereafter in order to offer evidence to suppmi the legislator's claims or defenses. Accordingly, once

{25114927;1) 9

A. 229

the privilege is invoked, the Comi should not later allow the proponent of the privilege to strategically waive it to the prejudice of other pmiies. e

Favors, 2012 WL 3307449, at* 19 (citation omitted). In other words, legislators "cannot

invoke the privilege as to themselves yet allow others to use the same information against

plaintiffs at trial." !d. at 11 (citing Brown v. City of Detroit, 259 F.Supp.2d 611, 623-24

(E.D. Mich. 2003); Pacific Gas & Elec. Co. v. Lynch, 2002 WL 32812098, at *3 (N.D.

Cal. Aug.19, 2002)). Cf Int'l Tel. & Tel. Corp. v. United Tel. Co. of Fla., 60 F.R.D. 177,

186 (M.D. Fla. 1973)). ("Fundamental fairness and justice requires that if the defendant

intends to waive the privilege at trial by the introduction of evidence within that

privilege, then the defendant will be required to allow discovery with regard to matters

material to that testimony."). Thus, if it grants Defendants' motion, the Court should bar

Defendants from later testifYing or submitting evidence in support of the enacted plan.

D. Plaintiffs Are Entitled To An Adverse Evidentiary Inference If The Legislature Is Permitted To Avoid Discovery Based On Legislative Privilege

If the Comi finds that the legislators and their staff may avoid depositions and

documentary discovery into the very intent that Amendment 6 renders illegal, Plaintiffs

are entitled to an adverse inference at trial. As the United States Supreme Comi has long

recognized; the voluntary and strategic decision not to proffer testimony in one's own

defense "is often evidence of the most persuasive character." Baxter v. Palmigiano, 425

U.S. 308, 319 (1976) (internal quotation marks and citation omitted). In fact, silence

under these circumstances can be so persuasive that it is well-settled that fact-finders may

make "adverse inferences against parties to civil actions when they refuse to testifY in

response to probative evidence offered against them," even where that silence is based in

the Fifth Amendment's privilege against self-incrimination. !d. at 318. The Florida

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A. 230

Comis have similarly endorsed the "general rule" "permit[ting] adverse inferences to be

drawn from a party's silence in a civil case," recognizing that it furthers justice: "Such a

rule is both logical and utilitarian. A party may not trample upon the rights of others and

then escape the consequences by invoking a constitutional privilege--at least not in a civil

setting." Fraser v. Security & Investment Corp., 615 So. 2d 841, 842 (Fla. Dist. 4 App.

1993). See also Atlas v. Atlas, 708 So. 2d 296, 299 (Fla. Dist. 4 App. 1998) (finding

adverse inference appropriate where patiy intentionally chose not to testifY in civil

litigation by invoking Fifth Amendment privilege against self-incrimination).

Defendants have even less at stake than a witness in a civil litigation that invokes

their Fifth Amendment privilege against self-incrimination, because they do not risk

exposing themselves to later criminal prosecution if they testify truthfully. Furthermore,

it is undisputed that, to the extent that state legislators can lay claim to a legislative

privilege, it is an individual privilege that each legislator must make an affirmative

decision to invoke. Legislators regularly voluntarily submit to depositions and produce

the type of discovery that the Plaintiffs seek in this litigation in redistricting cases.

Nothing prohibits the legislators and staff that created the Florida congressional plan to

do the same. Instead, they have made the affitmative and strategic decision to refuse to

answer questions about and produce a complete evidentiary record from which Plaintiffs

and this Comi could fairly discern whether the Legislature violated Amendment 6's

prohibition of any intent to favor an incumbent or political party. This decision severely

prejudices the Plaintiffs in their efforts to enforce this constitutional amendment. As with .

the Fifth Amendment privilege, Defendants should not be permitted to. use the legislative

privilege as both a shield and a sword. See SEC v. Monterosso, 746 F. Supp. 2d 1253,

{25114927;1) II

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1261 (S.D. Fla. 2010) (finding adverse inference appropriate on equitable grounds where

civil litigant exercised Fifth Amendment privilege).

Nor should the Comi give credence to any argument that the individual decisions

of the legislators to invoke the privilege to protect themselves and their staff should be

imputed to the Legislature as a whole. By seeking a blanket protective order to prohibit

Plaintiffs from deposing any members or their staff, the Court can presume that

Defendants speak for the individual members and that, if petmitted to hide behind the

privilege, every single member of the Legislature that had a hand in the congressional

plan will refuse to voluntarily submit to questions or produce documents (beyond those

which Defendants have selectively chosen to produce) as to the intent behind the plan.

Under such circumstances, adverse inferences that could be drawn against the individual

legislators and staffers may be imputed to the Legislature as a whole. See id. at 1263-64

(listing non-exclusive factors for determining whether adverse inferences that could be

drawn against a non-pmiy invoking a privilege may be drawn against a party).3

In opposition, Defendants are likely to cite a recent decision from the District of

Columbia in Florida v. United States,-- F. Supp. 2d --,2012 WL 3538298 (D.D.C. Aug.

16, 2012). As an initial matter, the question of whether an adverse inference is

appropriate is a decision that must be made on a case-by-case basis, left to the sound

discretion of the trial court judge. See Monterosso, 746 F. Supp. at 1261-62 ("[A] trial

court must carefully balance the interests of the party claiming protection [under a

privilege] and the adversary's entitlement to equitable treatment.") (quotation marks and

3 The relevant factors include: "(I) the nature of the reievant relationships; (2) the degree of control of the party over the non-pmiy witnesses; (3) the compatibility of the interests of the party and non-pmiy witness in the outcome of the litigation; and ( 4) the role of the non-pmiy witness in the litigation." ld.

{25114927;1} 12

A. 232

citation omitted). Thus, conclusions by other courts that an inference is not appropriate

under the circumstances cannot and should not influence this Court's decision as to

whether, under the circumstances of this litigation, it would be inequitable to allow

Defendants to voluntarily withhold this testimony and evidence free of any consequences.

See id. (noting "[t]he principle that the invocation of the privilege may not be too 'costly'

does not mean it must be 'costless"') (quoting SEC v. Grays/one Nash, Inc., 25 F.3d 187,

191 (3d Cir. 1994)).

But in any event, this Comi should decline to credit the District of Columbia's

adverse inference decision in Florida v. United States. That court's conclusion was not

only cursory and poorly reasoned, it is also not indicative of a universally-accepted rule.

In fact, as Defendants acknowledged at oral argument, Judge Hinkle indicated- at a

hearing over which he presided to decide issues of legislative privilege in the very same

case- that he believed Plaintiffs would be entitled to an adverse inference if Defendants

were permitted to avoid depositions based on the privilege. See J. Hinkle Tr. 19:12-16

(asking challengers whether they would "rather have the deposition than the adverse

inference"). Judge Hinkle's role in Florida v. United States was necessarily limited, as

the only matter before him was whether to permit the compelled deposition of certain

legislators and staff members in the underlying Voting Rights Act case; the substantive

issues in the case were ultimately decided by the D.C. court. However, Judge Hinkle's

colloquy with counsel indicates that had he had the opportunity to decide the adverse

inference question, he might very well have imposed the inference. The D.C. comi

decided otherwise, declining to draw an adverse inference against the State based on its

conclusion that the inference "would run contrary to . . . Arlington Heights." 2012 WL

{25114927;1} 13

A. 233

3538298, at *44 n.65. Specifically, the D.C. court relied on Arlington Height's statement

that, because "judicial inquiries into legislative or executive motivation represent a

substantial intrusion in to the workings of other branches of government," "[p ]lacing a

decisionmaker on the stand is ... usually to be avoided." I d. (quoting 429 U.S. 252, 268

(1977)).

But the D.C. court's discussion of this issue is relegated to a brief footnote that is

more notable for what it does not consider than what it does. In particular, the opinion

does not consider or attempt to distinguish the analogous case law applying adverse

inferences when a witness invokes his or her constitutional privilege against self-

incrimination. See id. It also fails to explain how drawing an adverse inference based on

a legislator's voluntary decision not to provide evidence that would enable the court to

determine whether the legislature followed the law "intrudes" upon the workings of other

branches of government. As explained in Plaintiffs' brief in opposition to the

Defendants' motion for a protective order, the roles of the judiciary and legislature

remain unchanged after the enactment of Amendment 6-and Defendants certainly do

not contest that this Court has the authority to determine whether the Florida

Constitution's redistricting standards were in fact complied with. The D.C. court also

inexplicably conflates "putting a decisionmaker on the stand" with drawing an adverse

evidentiary inference based on a decisionmaker's strategic decision not to take the stand.

As the case law discussing adverse inferences in the Fifth Amendment context makes

clear, treating both circumstances the same is not appropriate. 4

4 In addition, the D.C. court mistakenly relies on language from a 1972 D.C. Circuit decision, in which that court stated "if ... the judge plays a role in suppression of the evidence, the force of the inference is dissipated." Jd. (quoting UAWv. NLRB, 459 F.2d

{25114927;1) 14

A. 234

To the contrary, even when a privilege is constitutionally-based, courts must take

care to "carefully balance the interests" of the party invoking the privilege with their

adversary's "entitlement to equitable treatment." Monterosso, 746 F. Supp. 2d at 1262.

In doing so, "[c]ourts should give due consideration to the nature of the proceedings, how

and when the privilege was invoked, and the potential for harm or prejudice to opposing

parties." Id. (quotation marks and citation omitted). Here, the Plaintiffs seek to enforce a

constitutional provision enacted by Florida's voters who meant to eliminate political

gerrymandering in this State. Defendants have invoked the privilege in order to avoid

any meaningful discovery into this process, arguing instead that they should be permitted

to rest on their self-serving testimony to the public about their intent to follow the law.

The potential hatm and prejudice to the Plaintiffs-as well as all of Florida's voters-is

enormous. It is equitable to require Defendants to choose between explaining their action

or accepting an adverse inference based on their refusal to do so. Nor would requiring

Defendants to make that choice chill future legislative action. Not only are litigations

that put the intent of the legislature at issue exceedingly unusual, imposition of an

adverse inference under these circumstances would allow the legislators who are

unwilling to explain their intent keep it secret. At the same time, it would not allow the

1329, 1338 (D.C. Cir. 1972)). But in UAWthe coutt was not referring to circumstances under which a comt holds that a privilege protects a patty against compelled testimony. Indeed, if that were the rule, then the Fifth Amendment adverse inference jurisprudence would make no sense at all. Instead, as the citation in.UAWto NLRB v. Drennon Food Products Co., 272 F. 2d 23,27 (1959), makes clear, the court was referring to the highly unusual circumstances where a judge's own independent actions are the reason that the evidence was not produced. See id. at 27 ("The failure of Drennon to produce the records was patently brought about in large part by the action of the Trial Examiner in taking over the cross examination concerning the records.") (emphasis added).

{25114927;1} 15

A. 235

Legislature to insulate itself against any meaningful challenge by its citizens as to its

compliance with their constitutional directions.

III. Conclusion

For these reasons and those set forth in the Romo Plaintiffs' response to the

Legislative Defendants' motion for a protective order, the Court should deny Defendants'

Motion. Alternatively, the Court should conduct an in camera review of documents

withheld on grounds of legislative privilege to dete1mine if any privilege has been

waived. Further, if the Court accepts the Legislative Defendants' claim of privilege, it

should establish an adverse evidentiary inference and bar the legislative Defendants from

calling as witnesses at trial any legislators, legislative aides or employees, or consultants

JOS PH W. HA TCHEIT @my E-mail: [email protected] Secondary E-mail: Martha.pan·[email protected] AKERMAN SENTERFliT !06 E. College Ave., Suite 1200 Tallahassee, Florida 3230 I Tel: (850) 224-9634 Fax: (850) 222-0 I 03

{25114927;1) 16

MARC ELIAS (admitted pro hac vice) Primary E-mail: [email protected] Secondmy E-mail: [email protected]

JOHN DEVANEY (admitted pro hac vice) Primary E-mail: [email protected] Secondary E-mail: [email protected]

PERKINS COlE LLP 700 13th St., N. W., Suite 600 Washington, D.C. 20005-3960 Tel: (202) 654-6200 Fax: (202) 654-6211

KEVIN J. HAMILTON (admitted pro hac vice) Primary E-mail: [email protected] Secondary E-mail: [email protected]

A. 236{25114927;1)

17

ABHA KHANNA (admitted pro hac vice) Primary E-mail: [email protected] Secondary E-mail: [email protected]

PERKINS COlE LLP 1201 Third Ave, Suite 4900 Seattle, Washington 98101-3099 Tel: (206) 359-8000 Fax: (206) 359-9000

Attorneys for the Romo Plaintiffs

A. 237


I HEREBY CERTr a true and correct copy of the foregoing has been furnished by

Electronic Mail this& day of September, 201 o ch of the following parties on the attached

service list:

. {25114927;1)

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SERVICE LIST

Daniel E. Nordby, General Counsel Charles T. Wells Ashley Davis, Assistant General Counsel George N. Meros, Jr. Florida Department of State Jason L. Unger R.A. Gray Building Allen Winsor 500 S. Bronaugh Street, Suite I 00 Charles B. Upton II Tallahassee FL 32399 ORA Y ROBINSON, P.A. Primary Email: Post Office Box 11189 [email protected] Tallahassee, FL 32302 Secondary Email: Primary Email: Bett)'[email protected] [email protected] [email protected] [email protected] Primary Email: [email protected] ashley .dav [email protected]. fl.us Secondary Email: Secondary Email: [email protected] [email protected] [email protected] [email protected] Primmy Email:

[email protected] [email protected] Secondary Email: [email protected] allenwinsor!alvahoo.com

Michael A. Carvin Miguel A. De Grandy Louis K. Fisher MIGUEL DE GRANDY, P.A. JONES DAY 800 Douglas Road, Suite 850 51 Louisiana Avenue N.W. Coral Gables, FL 33 I 34 Washington, D.C. 20001 [email protected] [email protected] [email protected] Leah L. Marino, Deputy General Counsel George T. Levesque, General Counsel THE FLORIDA SENATE FLORIDA HOUSE OF REPRESENTATIVES Suite 409, The Capitol 422 The Capitol 404 South Monroe Street Tallahassee, FL 32399-1300 Tallahassee, FL 32399-1100 Primary Email: [email protected] [email protected] .

Secondary Email: [email protected] velma.carter!almvfloridahouse.gov

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Peter M. Dunbar Ronald G. Meyer Cynthia Skelton Tunnicliff Lynn Hearn PENNINGTON, MOORE, WILKINSON, MEYER, BROOKS, DEMMA & BLOHM BELL & DUNBAR, P.A. 131 N01th Gadsden Street 215 South Monroe Street, 2d Floor P.O. Box 1547 Tallahassee, FL 3230 I Tallahassee, FL 32302 [email protected] [email protected] C','nthia@[)enningtonlaw.com [email protected]

Jessica Ring Amunson Stephen Hogge Michael B. DeSanctis STEPHEN HOGGE, ESQ., LLC Kristen M. Rogers 117 South Gadsden Street Paul M. Smith Tallahassee, FL 32301 Christopher Deal [email protected] JENNER & BLOCK LLP I 099 New York Ave, N.W., Suite 900 Washington, D.C. 20001 [email protected] [email protected] [email protected] [email protected] cdealfalienner.com J. Gerald Hebert Charles G. Burr J. GERALD HEBERT, P.C. BURR & SMITH, LLP 191 Somervelle Street, Unit 415 Grand Central Place Alexandria, VA 22304 442 W. Kennedy Blvd., Suite 300 Hebert@votelaw .com Tampa, FL 33606

cburl·falburrandsmithlaw.com Bruce V. Spiva, Esq. Allison J. Riggs THE SPIVA LAW FIRM PLLC Anita S. Earls 1776 Massachusetts Avenue, N.W. SOUTHERN COALITION FOR SOCIAL JUSTICE Suite 601 1415 W. Highway 54, Suite 101 Washington, D.C. 20036 Durham, NC 27707 [email protected] A II ison@southerncoalition .org

[email protected] Timothy D. Osterhaus, Deputy Solicitor General Victor L. Goode Blaine Winship, General Counsel Dorcas R. Gilmore OFFICE OF THE ATTORNEY GENERAL NAACP The Capitol, PL-0 1 4805 Mt. Hope Drive Tallahassee, FL 32399 Baltimore, MD 21215-3297 [email protected] [email protected] Blaine.winshiofalmvfloridalegal.com d gi I morefalnaacpnet .org

Gerald E. Greenberg Harry 0. Thomas Adam M. Schachter Christopher B. Lunny GELBER SCHACHTER & GREENBERG, P.A. RADLEY THOMAS YON & CLARK, P.A. 1441 Brickell Avenue, Suite 1420 30 I S. Bronaugh Street, Suite 200 Miami, FL 33131 Tallahassee, FL 32301-1722 Primary Emails: Primary Email:

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[email protected], [email protected] [email protected] Secondary Email: [email protected] [email protected] [email protected] Primmy Email: Secondmy Email: [email protected] [email protected] Second my Email:

cdemeoralradevlaw.com Jon L. Mills George N. Meros, Jr. Karen C. Dyer Jason L. Unger Elan M. Nehleber Allen C. Win sor BOIES, SCHILLER & FLEXNER, LLP Charles Burns Upton, II 121 S. Orange Avenue GRAY ROBINSON, P.A. Suite 840 P.O. Box 11189 Orlando, FL 32801-3233 Tallahassee, FL 32302 Primary Emails: Primary Emails: [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]

[email protected]

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RENE ROMO, et al.,

Plaintiffs,

v.


Defendants.

THE LEAGUE OF WOMEN VOTERS OF FLORIDA, et al.,

Plaintiffs,

v.

KEN DETZNER, et al.,

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CASE NO. 2012-CA-00412

CASE NO. 2012-CA-00490

COALITION PLAINTIFFS' ADOPTION OF ROMO PLAINTIFFS' SUPPLEMENTAL BRIEF RELATING TO LEGISLATIVE DEFENDANTS' MOTION FOR PROTECTIVE

ORDER BASED ON LEGISLATIVE PRIVILEGE

Plaintiffs 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 ("Coalition Plaintiffs") fully adopt all arguments set forth in the Romo

Plaintiffs' Supplemental Brief Relating to Legislative Defendants' Motion for Protective Order

Based on Legislative Privilege.

A. 242

RONAL G. MEYER Florida Bar No. 0148248 Email: [email protected] Meyer, Brooks, Demma and Blohm, P .A. 131 North Gadsden Street Post Office Box 1547 (32302) Tallahassee, FL 32301 (850) 878-5212 Telephone (850) 656-6750 facsimile (850) 222-1840 facsimile

Greenberg Schachter & Greenberg, P.A. Gerald E. Greenberg Florida Bar No. 0440094 [email protected] Adam M. Schachter Florida Bar No. 647101 [email protected] [email protected] 1441 Brickell Avenue, Suite 1420 Miami, Florida 3 3131 (305) 728-0950 (305) 728-0951

Jenner & Block, LLP Michael B. DeSanctis [email protected] Admitted Pro Hac Vice Paul M. Smith [email protected] Admitted Pro Hac Vice Jessica Ring Amunson [email protected] Admitted Pro Hac Vice Kristen M. Rogers [email protected] Admitted Pro Hac Vice 1099 New York Ave NW, Suite 900 Washington, DC 20001 Telephone: 202-639-6000 Facsimile: 202-639-6066

2

A. 243


Counsel for Coalition Plaintiffs


I 5ijrtify that the foregoing was furnished by electronic mail to the following parties on this _R!_a ay of September, 2012:

Blaine Winship Timothy D. Osterhaus OFFICE OF THE ATTORNEY GENERAL

PL-0 1, The Capitol Tallahassee, Florida 32399-1050 Blaine. [email protected] Timothy. [email protected]



500 South Bronough Street, Suite 100 Tallahassee, Florida 32399 [email protected] [email protected] [email protected] [email protected]

Attorneys for Florida Secretary ofState

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Leah Marino [email protected] [email protected] THE FLORIDA SENATE

404 South Monroe Street, Suite 409 Tallahassee, Florida 32399 [email protected]






Charles T. Wells George N. Meros, Jr. Jason L. Unger Allen C. Winsor Charles B. Upton II GRA YROBINSON, P .A. Post Office Box 11189 Tallahassee, Florida 32302 Charles. [email protected] [email protected] [email protected] Allen. [email protected] [email protected] [email protected] [email protected] teresa. [email protected] [email protected]


422 The Capitol Tallahassee, Florida 32399-1300 [email protected] [email protected] [email protected]



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Joseph W. Hatchett [email protected] [email protected] Thomas A. Range [email protected] [email protected] Akerman Senterfitt 106 E. College Avenue, Suite 1200 Tallahassee, FL 32301

Jon L. Mills [email protected] [email protected] Karen Dyer [email protected] Elan Nehleber [email protected] Boies, Schiller & Flexner, LLP 121 S. Orange Avenue, Suite 840 Orlando, FL 32801-3233

Marc Elias [email protected] [email protected] Kevin J. Hamilton [email protected] [email protected] John M. Devaney [email protected] SY [email protected] AbhaKhanna [email protected] [email protected] Perkins Cole, LLP 700 Thirteenth Street, NW, Suite 600 Washington, D.C. 20005-3960

Attorneys for Rene Romo, Benjamin Weaver, William Everett Warinner, Jessica Barrett, June Keener, Richard Quinn Boylan (Plaintiffs)

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Harry 0. Thomas Christopher B. Lunny Radey Thomas Yon & Clark, P .A. 301 S. Bronough Street, Suite 200 Tallahassee, Florida 3 23 01 [email protected] [email protected] [email protected] [email protected]


Stephen Hogge 117 South Gadsden Street Tallahassee, Florida 32301 [email protected]



Victor L. Goode Dorcas R. Gilmore NAACP 4805 Mt. Hope Drive Baltimore, Maryland 21215 [email protected] [email protected]

Attorneys for Intervenor/Defendant, NAACP

m}_.vA...........==~..../Ronald G. 'Meyer

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