Fla. Supreme Court hears arguments over whether legislators must testify in legal battle

GARY FINEOUT | Associated Press | 09/16/2013
TALLAHASSEE, Florida — The Florida Supreme Court was asked on Monday to sort out another bitter dispute in the protracted legal battle over Florida's legislative and Congressional districts.
Groups suing over the way legislators drew up new districts for the state Senate and Congress want to interview legislators about why they made certain decisions. But lawyers for the Republican-controlled Florida Legislature said such a move would violate a long-standing privilege that shields legislators from testifying in lawsuits.
A decision in the case could prove pivotal in the effort to show whether legislators violated the "Fair Districts" constitutional amendments. Voters in 2010 mandated that legislators can't draw districts intended to protect incumbents or members of a certain political party.
But justices sounded skeptical about allowing the coalition of groups suing the Legislature the ability to directly question lawmakers.
"I really don't understand your argument about why this has to be an open-ended, 'Let's do whatever we want to, let's ask whatever we want to," said Justice Peggy Quince.
Sandy D'Alemberte, one of the lawyers representing the League of Women Voters and other groups suing the Legislature, told the justices that no court would allow endless questioning of legislators. But he said it was still important to find out the rationale behind the final maps passed by the Legislature.
"It seems to me we ought to be able to ask the why question - why was this done?" D'Alemberte said.
Every 10 years, lawmakers redraw legislative and congressional districts based on new population figures. After the "Fair Districts" amendments legislators adopted maps that led to the election of more Democrats. But critics contend the final districts still do not accurately reflect Florida's political divide.
The lawsuits filed over the districts so far have already caused secrets to spill out that show both sides may have used partisan political consultants to draw up maps in violation of the new standards. But access to some documents — such as draft maps — and interviews with legislators and legislative staff have not been allowed.
A circuit court judge agreed nearly a year ago to allow depositions of legislators but a divided appeals court overturned the ruling. The appeals court ruling stated those challenging the new districts could prove "improper intent" by relying on existing legislative records and analysis instead of putting lawmakers under oath. One of the dissenting judges in that ruling, however, contended that "partisan political shenanigans are not state secrets."
Justice Barbara Pariente suggested during Monday oral arguments that there may be a reason to allow some limited questioning of legislators in order to make sure there wasn't some sort of "parallel secret process." She also said that the Fair Districts amendments are unique since they deal only with redistricting.
"We are dealing with a once in a decade process," Pariente said.
But Justice Jorge Labarga questioned whether such an arrangement would really work.
That point was echoed by Raoul Cantero, a former state Supreme Court justice representing the Senate. He argued that allowing the questioning of legislators would violate the separation of powers between the judicial and legislative branches of government.
He also said it would have a "chilling effect" on legislators if they knew they could wind up testifying in a lawsuit.
"Legislators are still going to be reluctant to do anything to get involved in this redistricting process," Cantero said.
D'Alemberte later countered, however, that the Fair Districts amendments were intended to "chill the Legislature" and change the way legislators draw political maps.
This is the second time this year the Supreme Court has been asked to referee the slow-moving legal battle over legislative and Congressional districts.
A majority of justices in July refused to throw out a legal challenge to last year's new map for state Senate districts. The court — by a 5-2 vote — ruled that blocking the lawsuit would go against the will of voters who adopted the amendments.

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