JUSTICES WRESTLE WITH LEGISLATIVE PRIVILEGE

BRANDON LARRABEE | THE NEWS SERVICE OF FLORIDA | 09/16/2013

THE CAPITAL, TALLAHASSEE - A coalition of voting-rights groups trying to get lawmakers to testify about the 2012 redistricting process asked a skeptical Supreme Court on Monday to rule that legislators should not be shielded from speaking in court.

Those challenging new district maps under the anti-gerrymandering "Fair Districts" constitutional amendments are appealing a 1st District Court of Appeal ruling that prevents the legislators who drew the districts from having to testify about "objective" facts about the redistricting process.

A lower court had initially ruled that the lawmakers should have to testify, though the trial court didn't order lawmakers to testify about "subjective" issues, like why they made certain decisions.

Attorneys for the League of Women Voters and others opposed to the new maps, which were put in place before the 2012 election, told the justices that lawmakers should be required to fully explain their process, including testifying about "subjective" matters.

But even justices who have been sympathetic to the opponents in the past seemed unwilling to go that far.

"I can see real problems down the road if we allow just an unlimited deposition of a legislator or the legislative aide," said Justice Peggy Quince.

But Talbot "Sandy" D'Alemberte, a former Democratic lawmaker and former dean of the Florida State University College of Law, said that would prevent opponents of the maps from finding out why lawmakers drew the lines they way they did — a critical part of the Fair Districts amendments' ban on lawmakers drawing lines that are intended to favor political parties or incumbents.

Raoul Cantero, arguing for the Legislature, countered that legislative privilege from being forced to offer testimony has been upheld by courts across the nation. He told reporters outside the court that it would be "unprecedented" for the justices to uphold the trial court's order or allow wider testimony to be taken.

"If the court would order depositions in this case, they'd be the first court in the country to do so," he said.

Some justices, though, seemed to be willing to make an exception in some cases, in part because of the Fair Districts standards.

"We're dealing with a once in every ten years process and a unique constitutional provision," noted Justice Barbara Pariente.

The Legislature also argues that it would have a chilling effect on the legislative process if lawmakers knew they could be hauled into court to testify under oath about their actions. That idea drew a sharp retort from D'Alemberte.

"The constitutional amendments adopted in 2010 were intended to chill the Legislature," he said.

Depositions from outside consultants already filed in redistricting cases suggest that those consultants kept tabs on the process and perhaps tried to influence it.

"It's equally clear, though, that those communications continued inside the Legislature as well," said Adam Schachter, an attorney for the groups seeking lawmaker testimony.

The Supreme Court has no definitive timeline for ruling on the question.


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