One of the cases the Supreme Court of Florida will be considering this Fall concerns “legislative privilege” – specifically, whether Florida legislators or legislative staff members can be forced to give deposition testimony and produce documents relating to legislation establishing new congressional districts. See Fla. House of Representatives v. League of Women Voters of Fla.; Romo v. Fla. House of Representatives, Nos. SC13-949 & SC13-951, accepted for review July 2, 2013, on review from 113 So. 3d 117 (Fla. 1st DCA 2013).
Proceedings in the Trial Court
When the Florida Legislature enacted a new redistricting plan in February of 2012, various individuals and organizations filed lawsuits claiming that the plan as a whole, and a number of individual districts, violated the Florida Constitution by impermissibly favoring Republicans and incumbents and by diminishing the ability of minorities to elect representatives of their choice. The plaintiffs sought an order declaring the plan or the challenged districts unconstitutional and enjoining future elections.
Because the constitutional provision alleged to be violated prohibits drawing an apportionment plan with the intent to favor a political party or an incumbent or with the intent to deny or abridge the equal opportunity of minorities to participate in the political process, the plaintiffs served a notice of taking depositions of the Senate Majority Leader and two staff members to obtain evidence of the intent underlying the plan. The plaintiffs also requested unfiled draft reapportionment maps and related documents. The Legislature sought a protective order to prevent the depositions and, more broadly, prohibit the deposition of any legislator or legislative staff member based on “legislative privilege,” a privilege earlier established by Florida’s First District Court of Appeal in Florida House of Representatives v. Expedia, Inc. 85 So. 3d 517 (Fla. 1st DCA 2012).
The trial court granted the Legislature’s motion for protective order in part and denied it in part, acknowledging Expedia, but reasoning that the legislative privilege “must bend somewhat” because of the constitutional requirement that the motive or intent of legislators be considered in determining the validity of the redistricting plan. The court distinguished between “subjective” and “objective” information and concluded that only the subjective thought processes and confidential communications of legislators and their staff warranted the full protection of legislative privilege. The court authorized the plaintiffs to depose legislators or staff members regarding objective information or communication that did not encroach on their subjective thoughts or impressions. The court applied the same subjective/objective dichotomy to the maps and documents, but ordered an in camera review. The Legislature petitioned the First District Court of Appeal for certiorari review of the trial court’s order.
Proceedings in the First District Court of Appeal
The First District quashed the trial court’s order. To view the First District’s slip opinion click here. Relying heavily on its earlier decision in Expedia, the court determined that because Expedia held that legislative privilege broadly protects legislators and legislative staff members from being compelled to testify about any matter “that is an essential part of the legislative process” or pertains to the performance of “a legitimate legislative function,” the privilege equally protects subjective information like the legislator’s rationale or motivation for proposing or voting on a piece of legislation, and objective information like data or materials relied on by legislators and their staff in the legislative process. The court concluded that the trial court departed from the essential requirements of law when it permitted the plaintiffs to depose legislators and legislative staff members on any matter pertaining to their activities in the reapportionment process. The court added that the trial court’s objective/subjective dichotomy was unworkable because there was no clear demarcation between subjective and objective. The court applied the same analysis to the plaintiffs’ request for maps and supporting documents, subject to Florida’s public records law.
Chief Judge Benton dissented on the basis that the First District had no jurisdiction “absent a demonstrated need to prevent irremediable harm.” In his view, that harm had not been demonstrated because no one knew what questions would have been asked at the depositions, and “[t]he mere appearance for deposition of a senator and two staff persons” was not sufficient harm to justify certiorari review. “The . . . Constitution makes plain that how and why the Legislature redistricts is a matter of paramount public concern. Petitioners have fallen far short of demonstrating why failing to keep this quintessentially public business under wraps would work irreparable harm.”
The Florida Supreme Court designated this case as “high profile” and expedited the briefing, which was completed on August 12, 2013. Oral argument is scheduled for September 16, 2013 at 9:00 am. To check the current status of this case, click on the hyperlinked supreme court case number at the beginning of this article.