Supreme court weighs putting legislators under oath on redistricting

Mary Ellen Klas | Herald/Times Tallahassee Bureau | 09/16/2013

Florida’s Supreme Court justices engaged in a vigorous dialogue with lawyers on Monday as they were asked to rule on a precedent-setting question: Should state lawmakers and their staffs be forced to answer questions and turn over documents about the redistricting process?

The Legislature argues that it has turned over more than 30,000 documents in the legal challenges to the state Senate and congressional maps, and that the separation of powers in the state and federal Constitutions shield them from being subjected to questioning about the legislative decision-making process, known as legislative privilege.

Opponents, led by the League of Women Voters and a group of individual voters, say that the redistricting amendments approved by voters in 2010 trump the claim that legislators cannot be asked why they drew the maps the way they did.

Justices indicated Monday they aren’t too sure either side is completely right.

“What we’re dealing with is a once in 10 years process,’’ said Justice Barbara Pariente, the most vocal of the justices. “It seems to me we need to effectuate the will of the voters,’’

Pariente suggested that the Fair Districts amendments adopted in 2010 provided a “unique” set of circumstances that allow for the limited questioning of legislators, as long as the court makes sure “that a legislator doesn’t get hauled into court every time a bill gets passed.”

But Justice Jorge Labarga raised doubts.

“It seems to me when you have a deposition with a legislator there’s going to be an objection to just about every question,’’ he said. “I just see it as unworkable.”

Voters overwhelmingly approved two Fair Districts amendments in 2010 that forced legislators to abide by a new set of rules when conducting the once-a-decade redrawing of legislative districts based on Census data. Among the rules was a requirement that legislators could not draw the districts with the intent to favor a political party or incumbent to avoid what had become legalized gerrymandering.

The League of Women Voters has joined with other parties in lawsuits claiming that the congressional and Senate maps drawn by the Republican-controlled Legislature violated those rules.

They asked the Leon County circuit court for permission to question legislators and their staff under oath about the maps and demanded emails between lawmakers and their political consultants. The Legislature fought back, arguing that the court has previously rejected efforts to force staff and lawmakers to testify, and that if they change course it will have a chilling effect on the legislative process.

The trial court rejected that argument and allowed for the limited questioning of legislators as long as the testimony related to objective facts. The First District Court of Appeal disagreed, ruling that legislative privilege shields lawmakers and staffers from discovery. The League of Women Voters appealed to the state’s high court.

Former Justice Rauol Cantero, arguing for the Legislature, said that the court can’t compel a legislator to testify because that would violate the separation of powers doctrine in the Constitution and that the restriction should be broadly applied to all communications relating to legislative business.

Pariente suggested that Circuit Court Judge Terry Lewis “struck a good balance” when he limited questioning.

But the lawyer for the League, Talbot “Sandy” D’Alemberte said there is no common-law legislative privilege and therefore no need to limit questions. He said the League wants to ask legislators why they drew the maps the way they did because that would be how they would determine intent.

“We take the position that intent is in the constitution and we should be able to ask questions,’’ he said. Among the questions: “Why did you consult with partisan political operatives in developing your plan?” and “Was there a parallel secret process going on at the same time as the open process?”

He noted that in 2002, the Legislature admitted in court that when it drew its redistricting maps it intended to give the advantage to the Republican party — a practice that was legal at the time.

“The constitutional amendments adopted in 2010 were intended to chill the Legislature,’’ D’Alemberte said. “The Legislature could no longer do what it did in 2002 and adopt a plan that favors a partisan party.”

Justice Charles Canady, himself a former legislator, asked D’Alemberte to cite a single case in which a court has ordered a member of the Legislature to submit to a deposition about a legislative matter.

D’Alemberte said he could not cite a case but there was also no other state that had a constitutional amendment like Florida’s “that uses the word intent.”

Justice Peggy Quince and R. Fred Lewis each warned that allowing the unlimited deposition of legislators or their aides could lead to problems.

D’Alemberte responded that “if we go overboard” with deposing legislators, the lower court “is equipped to limit that.”

Although questioning legislators came up during the challenge to the congressional maps, Pariente suggested that the issue will apply to the challenge to the Senate map, now winding its way through the lower courts.

That lawsuit has already resulted in a prolonged fight over documents and depositions. One GOP consultant in that case, Marc Reichelderfer, said outside consultants were included in Republican strategy sessions with legislators and staff until lawyers advised them that their conversations would not be protected by legislative privilege and they could be questioned under oath.

Whichever way the court rules, both sides believe it could have sweeping repercussions. The state and federal Constitutions do not exempt legislators from testifying under oath but it is generally only allowed in corruption and criminal cases.

If the court asserts a broad privilege for legislators, as their lawyers contend, D’Alemberte warned that it could be used by lawmakers to justify withholding other documents and information under Florida’s public records laws.

“We have great pride in being an open-government state,” D’Alemberte told reporters after the hearing. “If you now can’t get to what the Legislature did… what does that do to the core of our principles about open government?”

If the court allows legislators to be deposed, Cantero warned that it could harm their ability to interact with each other and could stifle debate.

“No court in the country has ever ordered that a legislator testify about the legislative process,” Cantero said after the hearing. “If the court were to order depositions in this case, they’d be the first court in this country to do so. We just want them to do what every other state has done.”

The Legislature’s warning about a chilling effect also was underscored in a brief filed by former Republican Senate Presidents Ken Pruitt and John McKay and former Speaker of the House James Harold Thompson, a Democrat from Quincy who was speaker in the 1980s.

Mary Ellen Klas can be reached at Follow her on Twitter @MaryEllenKlas

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